“5.3 Each Transaction will be governed by and subject to this Agreement, including NBP 1997 and the relevant Trade Confirmation. All Transactions are entered into in reliance on the fact that this agreement, NBP 1997 and all Trade Confirmations form a single agreement between the parties (collectively referred to as this ‘Agreement’), and the parties would not otherwise enter into any Transactions… …5.8 Each Transaction entered into by the Parties shall be treated and regarded as a separate contract for the sale and purchase of Gas and Gas Transportation Services.”
“This Agreement, Sales Trade Confirmation [sic; an obvious slip for Trade Confirmation] and the Quote Request constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes and extinguishes any representations and understandings previously given or made, other than those contained herein PROVIDED ALWAYS that nothing in this Agreement shall operate to limit or exclude liability for fraud.”
“(1) The contract must be interpreted objectively by asking what a reasonable person, with all the background knowledge which would reasonably have been available to the parties when they entered into the contract, would have understood the language of the contract to mean. (2) The court must consider the contract as a whole and, depending on the nature, formality and quality of its drafting, give more or less weight to elements of the wider context in reaching its view as to its objective meaning. (3) Interpretation is a unitary exercise which involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its implications and consequences are investigated.”
“Effect is to be given to every word, so far as possible, in the order in which they appear in the clause in question. Words should not be added which are not there, and words which are there should not be changed, taken out or moved from the place in the clause where they have been put by the parties. It may be necessary to do some of these things at a later stage to make sense of the language. But this should not be done until it has become clear that the language the parties actually used creates an ambiguity which cannot be solved otherwise.”
“In a rare case, even where there is no ambiguity in the language, the iterative process may lead the court to conclude that something has gone wrong and that there has been a mistake in the drafting of the document. That may either be because there is an obvious error on the face of the document…; or because when the other terms of the contract and the context is taken into account, it becomes apparent that the ordinary and natural meaning of the words used cannot have been what the drafter meant, because the outcome makes no rational sense. In such a case, the court may engage in a process of “corrective construction” of the document. However, in order to do so, it must be clear both (i) that there has been a mistake and (ii) what the correction required to cure the mistake ought to be…”
“The modern view is accordingly to recognise that commercial parties are free to make their own bargains and allocate risks as they think fit, and that the task of the court is to interpret the words used fairly applying the ordinary methods of contractual interpretation. It also remains necessary, however, to recognise that a vital part of the setting in which parties contract is a framework of rights and obligations established by the common law (and now often codified in statute). These comprise duties imposed by the law of tort and also norms of commerce which have come to be recognised as ordinary incidents of particular types of contract or relationship and which often take the form of terms implied in the contract by law. Although its strength will vary according to the circumstances of the case, the court in construing the contract starts from the assumption that in the absence of clear words the parties did not intend the contract to derogate from the normal rights and obligations which would be expected at common law in any particular type of contract.”
“The limitation of liability set out in clause 13.3 shall not apply to: (i) any breach of [ZOG’s] obligations under clauses 3 (exclusivity); or (ii) 10 (payment).” (i) any breach of [ZOG’s] obligations under clauses 3 (exclusivity); or (ii) 10 (payment).”
“The non-defaulting party shall only be entitled to bring a claim against the defaulting party where the non-defaulting party issues legal proceedings against CNG within the period of 12 months commencing on the date upon which [ZOG] ought reasonably to have known of its entitlement to bring such a claim.”
“A duty and a trust are thus imposed upon the Court, to take care that the assets of the company shall be applied in discharge of its liabilities. What liabilities? All the liabilities of the company existing at the time when the winding-up order was made which gives the right. Itappears to me that it would be most unjust if any other construction were put upon the section. After a winding-up order has been made, no action is to be brought by a creditor except by the special leave of the Court, and it cannot have been the intention of the Legislature that special leave to bring an action should be given merely in order to get rid of the Statute of Limitations.”
“…the Legislature intended us to follow the analogy of other cases where the assets of a debtor are to be divided amongst his creditors, whether in bankruptcy or insolvency, or under a trust for creditors, or under a decree of the Court of Chancery, in an administration suit. In these cases the rule is that everybody who had a subsisting claim at the time of the adjudication, the insolvency, the creation of the trust for creditors, or the administration decree, as the case may be, is entitled to participate in the assets, and that the Statute of Limitations does not run against this claim…”
“All that was intended to be conveyed by the use of the expression ‘trust property’ and ‘trust’ in these and subsequent cases … was that the effect of the statute was to give to the property of a company in liquidation that essential characteristic which distinguished trust property from other property, viz., that it could not be used or disposed of by the legal owner for his own benefit, but must be used or disposed of for the benefit of other persons.”
“The fact that winding up involves the imposition on the available assets at the commencement of the winding up of a statutory scheme of rateable division amongst the creditors at that time provides, as it seems to me, an immensely strong context for the laying down of a principle of law that the limitation periods stop running. An administration has none of this: it is not involved with the collection and realisation of all of the assets of the company and the distribution thereof to the creditors. Of course, an administrator must take into his custody and control all the assets of the company: see section 17(1) of the Act of 1986. But he has no power to distribute assets realised, not even to preferential creditors, as does an administrative receiver. The nature of the administration is governed by the purposes for which it was granted, generally a purpose inconsistent with liquidation (at least an immediate one). What seems to me to have been the major feature that led to the decision in In re General Rolling Stock Co is absent here. In my judgment, the moratorium on proceedings, strong though it is, is not nearly enough to enable a court to read into a comprehensive modern statute like theInsolvency Act 1986 an implied disapplication of the limitation periods during the tenure of the administrator.”
“There were assets fixed by the Act of Parliament with a trust for equal distribution amongst the creditors. One creditor has, by means of an execution abroad, been able to obtain possession of part of those assets. The Vice-Chancellor [at first instance] was of opinion that this was the same as that of one cestui que trust getting possession of the trust property after the property had been affected with notice of the trust. If so, that cestui que trust must bring it in for distribution among the other cestuis que trust. So I, too, am of opinion, that these creditors cannot get any priority over their fellow-creditors by reason of their having got possession of the assets in this way. The assets must be distributed in England upon the footing of equality.”
“I should add that I do not consider that the application of either the pari passu principle or the anti-deprivation rule depends on whether there is a ‘statutory trust’ of the assets of the company. I mention this because Mr Moss submitted that the pari passu principle, and the anti-deprivation rule, applied only once the assets of the company were held on the statutory trust, constituted by the insolvency legislation … Mr Moss submitted that the earliest time at which it could arise in an administration was when notice of a proposed distribution was given. I think Mr Moss is probably right when he says that the statutory trust, as discussed in Ayerst’s case, does not apply to the assets of a company in administration, at least before notice of a proposed distribution is given and even then difficulties may arise if only some of the assets are to be distributed. But I cannot see that this matters to the application of the pari passu principle, still less the anti-deprivation rule.”
“In my view, the obvious distinctions between the position of a company in administration and a company in liquidation, illustrated by the retention by directors and the company of powers subject to the constraints of paragraph 64 of Schedule B1, make the description ‘statutory trust’ inapposite in the case of administration. However, neither Ms Toube nor Mr Beswetherick encouraged me to decide the point: and I am content not to do so, since I am also persuaded by the arguments they advanced that whatever ‘trust’ there is does not embrace or prevent the exercise of management powers in relation to a surplus with the permission of the Administrators (and it may well be without it).”
“(a) the survival of the company, and the whole or any part of its undertaking, as a going concern; (b) the approval of a voluntary arrangement under Part I; (c) the sanctioning under [Part 26 of theCompanies Act 2006 ] of a compromise or arrangement between the company and its creditors or members; and (d) a more advantageous realisation of the company’s assets than would be effected on a winding up.”
“The administrator of a company must perform his functions with the objective of– (a) rescuing the company as a going concern, or (b) achieving a better result for the company’s creditors as a whole than would be likely if the company were wound up (without first being in administration), or (c) realising property in order to make a distribution to one or more secured or preferential creditors.”
“The question in these cases always is, whether the admission, where no express promise to pay is made, be sufficient for the law to raise from it an implied promise. If a party admits the debt, and does not say that it is satisfied; or refuses to pay it, alleging at the time an insufficient excuse for not paying it, the law will in these cases raise an implied promise to pay the debt then acknowledged to be due…”
“The Limitation Act 1623 contained nothing which would permit the recovery of simple contract debts after six years. The pleas of acknowledgment and part-payment were invented by the judges in mitigation of the injustices which this statute could work. The basis of the statute had been to free debtors from liability after the limitation period had expired … But where the debtor had acknowledged the debt or made a part-payment on account of it within the limitation period, it was held that in the interests of justice the debtor should then no longer be allowed to invoke the statute. However, in relation to simple contract debts, perhaps because these required consideration moving from the debtor, it was repeatedly held that an acknowledgment must also imply a promise to pay the debt in question. In a large number of decisions the courts accordingly considered, often on highly artificial grounds, whether or not a promise to pay could be implied…”