“...this Confirmation, together with all other documents referring to the ISDA Form (each a ‘Confirmation’) confirming transactions (each a ‘Transaction’) entered into between us (not withstanding anything to the contrary in a Confirmation) shall supplement, form part of, and be subject to an agreement in the form of the ISDA Form as if we had executed an agreement in such form (but without any Schedule except for the election of English Law as the governing law) on the Trade Date of the first such Transaction between us. In the event of any inconsistency between the provision of that agreement and this Confirmation, this Confirmation will prevail for the purpose of this Transaction.”
“On the02 April 2012 Anglo Irish Bank Corporation plc has the right but not the obligation to extend this transaction under the following terms- Procedure for Exercise Exercise Period:02 April 2012 , or if such day is not a London Business Day, the following such Business Day Expiration Time: 11:00 am London time Exercise Business Day: London”
“MR. YOUNG: I’ve just been asked to give you a call this morning just in relation to some swaptions we have maturing for you today, I’m not sure if you are familiar with those or are expecting them. MR. LAMONT: Yeah MR. YOUNG: Emm, effectively NAMA have asked us to give you a call just to confirm that we are indeed exercising the rights under all five of those swaptions. Emm, So I might just brief, very quickly run through the details with you if that’s okay? Emm, I’m not sure if you have them to hand? Do you want a second to get your own figures there or will I talk you through what I have? MR. LAMONT: Yeah, okay fire away. MR. YOUNG: We’ve got five swaptions eh today which are expiring- or that we are exercising. I guess the first one there is 1012751 is our trade number which is eh, with [inaudible] dates- MR. LAMONT: Five of them 10 million MR. YOUNG: Sorry? MR. LAMONT: Five of them 10 million each. MR. YOUNG: Five of them at 10 million each, yeah and the rate will be 5.42% eh out to the 1st April 15. So the first one I have there is 1012751 (interrupted) MR. LAMONT: No, I have the five of them here, yeah I know exactly what you are talking about. Can I ask you, emm why would NAMA exercise options and not take it as debt reduction? MR. YOUNG: You would need to speak to them really to be honest on that Michael to be honest. MR. LAMONT: You know I’m only thinking- that’s what would seem to make sense but. MR. YOUNG: Yes, no, listen as I say, emm I guess these do have a value eh so you know, it is purely to them to decide what way they want to approach it I guess, you know, no listen I see your point of view but unfortunately we are just messengers really. I was just told to exercise the five of them against you guys. MR. LAMONT: It’s the very thing I’ve raised in my or put down in my business plan that is due to go in to them, asking them basically the same question, you know? MR. YOUNG: Yeah, yeah, yeah. MR. LAMONT: Emm, why take it as interest when it would be better as- I would have thought, it is what you call it you know. MR. YOUNG: Yeah, yeah, no I appreciate that, well obviously, you know. I’m sure they are expecting you to include that in your discussions with them but obviously as I say for now anyway that they’ve said, told us to just go ahead and exercise them. Do you mind if I just double check we have the same deal numbers? have 1012751 [interrupted] MR. LAMONT: I don’t have the deal numbers in front of me now. MR. YOUNG: Okay, fair enough. But you are happy that you’ve got the five individual swaps for 10 million MR. LAMONT: I’ve got the five- MR. YOUNG: Yeah, and the fifty million total out to the 1st April 15 at 5.42%. We’ll follow up with a formal confirmation to you as you’d normally get with any of the deals with ourselves and that will specify everything but obviously as you say you are familiar with them and you were expecting it anyway. MR. LAMONT: I’m afraid so [laughs].”
“IBRC/NAMA has exercised its right to extend the transaction until1st April 2015 at the fixed rate of 5.42%...Consequently, swap payment obligations of circa£6.5m , based on the current LIBOR rate, will fall due, restricting the ability for Debt Reduction.”
“The ISDA master agreement is one of the most widely used forms of agreement in the world. It is probably the most important standard market agreement used in the financial world. English law is one of the two systems of law most commonly chosen for the interpretation of the master agreement, the other being New York law. It is axiomatic that it should as far as possible be interpreted in a way that serves the objectives of clarity, certainty and predictability, so that the very large number of parties using it should know where they stand.”
“Section 12(a) is mandatory and notice has to be given by the means it prescribes, by reference to and in accordance with the information provided in Part 4 of the Schedule… If the Schedule does not provide certain information necessary for service by a prescribed method, then the contract must be construed as limiting prescribed methods to those expressly permitted by the Schedule unless and until the missing information is notified under Section 12(b) or the contract is formally amended.”
“The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relative objective contextual scene.”
“It is settled that an estoppel by convention may arise where parties to a transaction act on an assumed state of facts or law, the assumption being either shared by them both or made by one and acquiesced in by the other. The effect of an estoppel by convention is to preclude a party from denying the assumed facts or law if it would be unjust to allow him to go back on the assumption. It is not enough that each of the two parties acts on an assumption not communicated to the other. But it was rightly accepted by counsel for both parties that a concluded agreement is not a requirement for an estoppel by convention.”
“In my judgment, the principles applicable to the assertion of an estoppel by convention arising out of non-contractual dealings, to be derived from Keen v Holland, and the cases which comment upon it, are as follows. (i) It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them. (ii) The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party an understanding that he expected the other party to rely upon it. (iii) The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely upon his own independent view of the matter. (iv) That reliance must have occurred in connection with some subsequent mutual dealing between the parties. (v) Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.”
“93. The question whether the parties manifested assent to the assumption by something said or some conduct which clearly crossed the line is largely a question of fact. The judge was convinced that such assent was indeed manifested and we see no reason to depart from that conclusion. Indeed, what in the judgment is described as the “heated discussion” at the board meeting of20 July 2010 about the transfer of shares to MSK 050 which gave effective control of the company to the Dixon interest to the prejudice of the Bass interest, in the course of which Mr Bass sought to raise a number of arguments against approval of the transfer but never raised any question of preemption rights, is not explicable except on the basis that all present made manifest their assumption, or at least (in the case of Mr Dixon) were prepared to proceed on the footing, that there was no impediment on which Mr Bass could rely to object to that transfer. ” object to that transfer. ”
“Both waiver by election and waiver by estoppel share some common elements. The principal similarity is that both would appear to require that the party seeking to rely on it (i.e. the party in default) must show a clear and unequivocal representation, by words or conduct, by the other party that he will not exercise his strict legal rights to treat the contract as repudiated. But there are also important differences between the two types of waiver. In the case of waiver by election the party who has to make the choice must either know or have obvious means of knowledgeof the facts giving rise to the right, and possibly of the existence of the right. But in the case of waiver by estoppel neither knowledge of the circumstances nor of the right is required on the part of the person estopped; the other party is entitled to rely on the apparent election conveyed by the representation.Waiver by election is final and so has permanent effect, whereas the effect of an estoppel may be suspensory only. This difference may not be so marked in the context of waiver of breach because here the waiver may have permanent effect because, in some circumstances, it would be inequitable to allow the innocent party to retract his waiver. For example, in the case where a buyer assures a seller that the goods are in conformity with the contractual specifications, and the seller, in reliance upon these assurances, does not make a fresh conforming tender when he could have done, the buyer will be held to have waived any breach relating to the conformity of the goods and so the waiver will have permanent effect. Finally, waiver by estoppel requires that the party to whom the representation is made rely on that representation so as to make it inequitable for the representor to go back upon his representation. There is, however, no such requirement in the case of waiver by election; once the election has been made it is final whether or not the party has acted in reliance upon the election having been made. Waiver by estoppel is thus the “more flexible” of the two doctrines.”
"Did the payee have a right to receive the sum which was paid to him?", stating at p. 408: "
“(1) If a person pays money to another under a mistake of fact which causes him to make the payment, he is prima facie entitled to recover it as money paid under a mistake of fact. (2) His claim may however fail if (a) the payer intends that the payee shall have the money at all events, whether the fact be true or false, or is deemed in law so to intend; or (b) the payment is made for good consideration, in particular if the money is paid to discharge, and does discharge, a debt owed to the payee (or a principal on whose behalf he is authorised to receive the payment) by the payer or by a third party by whom he is authorised to discharge the debt; or (c) the payee has changed his position in good faith, or is deemed in law to have done so.”
“… position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively restitution in full.”
“27-28 Kinlan v Crimmin[2007] 2 B.C.L.C. 67 also suggests that lost opportunities can constitute detriment. The defendant was a shareholder and director of a company to which he sold his shares under an agreement that was void for non-compliance with theCompanies Act 1985 ss.164and159(3). The company’s claim to recover its payment was defeated by the change of position defence, for these reasons: “Had [the defendant] realised that the agreement was invalid and the payments made under it were made by mistake, [he] would obviously have wished to consider how his continuing interest in the company should be protected, either by his resuming his rights to protect himself as a quasi-partner in the business or by seeking the reformulation of the agreement so as to ensure that it and the payments to him were valid. These opportunities which were denied him cannot be restored to him.” 27-29 Similarly, in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 C.L.R. 560, the claimant was fraudulently induced to make payments to the defendants, who believed that the money was being paid to discharge debts owed to the defendants by companies controlled by the fraudster. As a result, the defendants continued to deal with the companies and refrained from taking action to enforce the debts. The High Court of Australia held that they were entitled to the defence of change of position.”