“(a) granted by the chargor under a security agreement; (b) vested in a person who is the conditional seller under a title reservation agreement; or (c) vested in a person who is the lessor under a leasing arrangement.”
“… the lender group and lessors won’t be able to accept any deferral period that is beyond June 30 2022 – that was the worst case scenario that the lenders and lessors could consider. That is all the deferred JOLCO rentals that are originally due in June, August, September, November and December 2021 and Feb, March and May 2022 shall be settled subject to the prepayment of the then unpaid rentals as soon as the proceeds under the CBs, private placements and etc., VietJet is currently planning to issue becomes available.”
“* Default interest (1% plus the interest rate) to be paid on a quarterly basis at each original payment date of respective JOLCO facilities; * Any unpaid IR fees and FA/ST fees to be paid as soon as practical.”
“FitzWalter seeks to invest in distressed credit assets for the purpose of resolution, in particular ‘fulcrum’ instruments in a capital structure which offers de facto equity upside participation. Examples of investments in situations of financial stress may include: - ‘Loan-to-own’: FitzWalter will seek to acquire loans and other credit assets for the purposes of acquiring economic ownership of the underpinning collateral and prosecuting requisite restructuring in order to own, and ultimately exit a resolved, stabilized, and developed business or asset.”
“7. Following a written request from the Claimant, the Defendant shall, within 7 calendar days of such a request, provide any relevant authority in Vietnam with a letter confirming its consent to the deregistration and export of the Aircraft. 8. The Defendant shall take reasonable steps to provide the Claimant with such other information and documentation which the Claimant reasonably requires in connection with its application to the relevant authority in Vietnam to deregister the Aircraft.”
“On and at any time after the occurrence of an Enforcement Event which is continuing the Security Trustee may, and shall if instructed by the Instructing Group: (a) take such steps as it considers necessary or desirable to preserve, protect and enforce the rights of the Financing Parties under the Operative Documents; and/or (b) take such steps as it considers necessary or desirable for the enforcement, protection and preservation of the Security Interests constituted by the Security Documents.”
“Termination of Lease Period If an Event of Default occurs, then at any time thereafter so long as such Event of Default shall be continuing (but without prejudice to any other rights of the Sub-Lessor under this Agreement or the other Operative Documents or at law): … ii) the Sub-Lessor may serve notice upon the Sub-Lessee (a ‘Notice of Termination’) terminating the leasing of the Aircraft hereunder and the date specified in such Notice of Termination (which date may be the date on which such Notice of Termination is issued or any later date) shall, in this Clause 19 (Remedies) be the ‘Termination Date’.”
“The Lessee hereby, with full title guarantee, assigns and agrees to assign the Assigned Property, free from any Security Interest (other than Permitted Liens which is not a Sub-Lessor Security Interest (as defined in the Sub-Lease)), absolutely and unconditionally by way of security to and in favour of the Lessor, in order to secure the payment, performance and discharge in full of all the Secured Obligations.”
“(i) all claims, rights and remedies of the Lessor arising out of or in connection with a breach of or default under or in connection with any of the Agreements (including, without limitation, all damages and other compensation payable for or in respect thereof); and (ii) all rights of the Lessor to require, enforce and compel performance of all of the provisions of any of the Agreements, and otherwise to exercise all claims, rights and remedies thereunder, including without limitation all rights to terminate the leasing of the Aircraft under or pursuant to the Lease, and all rights to give and receive notices, reports, requests and consents, to make demands, to exercise discretions, options and elections in accordance with the terms of the Agreements and to take all other action thereunder, pursuant thereto or in connection therewith.”
“Notwithstanding any other provision of this Assignment (other than paragraph (b) below and Clause 3.6 (Restrictions on dealing with the Excluded Property and Co-extensive Rights)), the Lessor shall be entitled to exercise, and to benefit from the Co-extensive Rights as separate, independent and co-extensive rights (but without prejudice to the rights of the Security Trustee by virtue of the assignment under Clause 3.1 (Assignment) to exercise, and to benefit from such Co-extensive Rights (it being agreed that the Lessor and the Security Trustee (or any Receiver) shall be entitled to exercise, and to the benefit from, such Co-extensive Rights independently of each other) … .”
“Without prejudice to any of its other rights whether conferred under any of the Operative Documents or by law generally, … .”
“Of course, what constitutes a ‘benefit’ and what constitutes a ‘burden’ depends on one’s point of view: to the beneficiary of a promise, the promise is a benefit, and to the party obliged it is a burden. Two points follow from this: (1) It is only the beneficiary of a right under a contract who can assign that right. The party obliged cannot - at least by way of assignment - cause his burden to be transferred. (2) Since it is not the contract that is the chose, but the right under the contract, it follows that a contract may contain a number of different choses-as many as there are obligations. Each individual chose may be capable of assignment.”
“Any notice of cancellation or prepayment notice given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made (which date shall not be earlier than five (5) Business Days after the date of the notice) and the amount of that cancellation or prepayment.”
“i) First, of the contractual provision providing for the notice to be served, in order to identify what Lord Goff referred to in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd[1997] AC 749 , 755 as ‘the specification in the clause’. … ii) Second, of the notice, to ascertain whether, properly construed in context, it meets the requirement of that specification (or, picking up the language of Lord Goff at p.755 of Mannai), whether the key represented by the notice fits the lock constituted by the contractual provision requiring the service of a notice to achieve a particular legal effect. That involves the construction of the notice, by reference to the principles identified by Lord Steyn and endorsed by the majority in Mannai.”
“The Parties shall, except where otherwise specified in this Agreement, be relieved from liability under this Agreement: (1) In the case of the Seller, to the extent that owing to Force Majeure it has not delivered the quantities of Natural Gas which it should have delivered under this Agreement or has not performed any one or more of its obligations under this Agreement ... .”
“A Party, when claiming relief under Clause 15.2 shall: (1) within ten (10) Days of the failure or inability to fulfil in [sic] obligation hereunder for which relief is sought, notify the other Party thereof and shall within five (5) Working Days of such notification provide an interim report which shall furnish such relevant information as is available appertaining to the event including the place thereof, the reasons for the failure and the reasons why obligations under this Agreement were affected, and give an estimate of the period of time required to remedy the failure; (2) within twenty (20) Working Days of such notification, if requested, provide a detailed report which shall amplify the information contained in the interim report and contain such further explanation and information relevant to the event causing the failure as may be reasonable [sic] required; (3) upon request, as soon as is reasonably practicable, give or procure access at the risk of the Party seeking access, for a reasonable number of representatives of the other Party to examine the scene of the vent causing the failure and/or the installation, machinery or equipment which has failed, provided that the reasonable costs of transportation to the scene shall be at the expense of the Party seeking access, if such event is agreed or adjudged to give rise to relief from liability under Clause 15.2, and shall otherwise be at the expense of the Party seeking relief; (4) subject in the case where the Seller or the Buyer is seeking relief under Clause 15.2(1) or Clause 15.2(2) (as the case may be) to the provisions of Article 7, take as soon as reasonably practicable all reasonable steps to rectify the cause of the failure and to recommence performance of its obligations under this Agreement ...; (5) keep the other Party informed, on an ongoing basis, of the actions being taken under Clause 15.4(4).”
“Counsel for Scottish Power submitted that, even though Article 15.4 does not say in terms that compliance with its requirements is a condition precedent to a successful claim for relief, this is implied by the imperative force of the word ‘shall’. The clause says that a party ‘when claiming relief under Clause 15.2 shall’ do the various things then set out (my emphasis). Mr McCaughran QC and Mr Emmett argued that the clear implication of the imperative is that, if a party does not comply, it cannot claim relief under Article 15.2. I do not accept that this is the implication of the word ‘shall’. The use of that word signifies that the requirements of the clause are mandatory: they are contractual obligations. But the word ‘shall’ does not say or imply anything about what the consequence is intended to be of failing to perform those obligations. Certainly, if compliance with Article 15.4 was not obligatory – if, for example, the clause had used the word ‘may’ rather than ‘shall’ – it would be impossible to argue that compliance was a condition precedent to a claim for Force Majeure relief. But the inverse proposition does not follow. The fact that Article 15.4 imposes contractual obligations does not dictate or indicate what is to happen if there is a breach of any of the relevant obligations. It is simply the starting point for that discussion – a feature of the contract which must exist in order for the question to arise.”
“Counsel for Scottish Power emphasised that Article 15.4(2) specifies a set number of days within which the detailed report must be provided rather than using a less precise phrase such as ‘without delay’. There seems to me, however, to be considerable room for uncertainty about whether the clause has been complied with. For example, although the obligation to provide a detailed report arises only if such a report is requested, the clause does not specify when any such request must be made. It cannot sensibly be made until an interim report has been provided, which under Article 15.4(1) must be within five working days of notification of the failure or inability to fulfil an obligation for which Force Majeure relief is sought. But what if the request for a detailed report is not made for, say, another 12 working days? As the 20 day time period for providing a detailed report runs from the original notification and not from receipt of the request for the report, this could leave the party claiming relief a very short time in which to have to produce the detailed report. It might be argued that there is an implied requirement to make the request promptly upon receipt of the interim report; but the existence and scope of any such requirement and whether it has been satisfied in any given case are themselves areas of uncertainty. There is also potentially significant scope for argument about what degree of detail and amplification of the interim report is necessary in order to satisfy the clause. In addition, the detailed report must contain ‘such further explanation and information relevant to the event causing the failure as may be reasonably required’, and there is again potential uncertainty about whether an explanation or information provided satisfies what was required and/or whether what was required was reasonable. All these points seem to me to tell against the notion that a failure to comply with Article 15.4(2) is intended to disqualify a party from claiming Force Majeure relief.”
“It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored.”
“… We expect to receive your counter agreement soon so we can close the deal and move forward.”
“The provisions of this Agreement shall not be amended or modified otherwise than by an instrument in writing executed by the parties hereto. The Sub-Lessor agrees that it will not modify or amend any of the Operative Documents without the prior written consent of the Sub-Lessee and the Financing Parties. The Sub-Lessee agrees that it will not modify or amend any of the Operative Documents without the prior written consent of the Sub-Lessor, the Lessor and the Financing Parties.”
“Subject to this Clause 17, a Lender (the ‘Existing Lender’) may: (a) assign any of its rights; or (b) transfer by novation any of its rights and obligations, under the Operative Documents, to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the ‘New Lender’).”
“The consent of the Borrower is not required for any assignment or transfer by a Lender of its rights and/or obligations under the Operative Documents to which it is a party provided that: (i) such assignment or transfer is to another Lender who is at the time of such assignment or transfer a Qualifying Lender; or (ii) such assignment or transfer is to a Lender or a New Lender who, upon becoming a Lender, would be a Qualifying Lender; … .”
“… a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under an Operative Document and is a Lender: … (iii) which (x) is a bank or financial institution organised under the laws of any jurisdiction other than Japan, (y) participates in the Facility through a Facility Office outside Japan and (z) benefits from a double tax treaty with Japan so that no withholding tax will be levied in relation to payments of interest (the ‘Relevant DTT’) being qualified as an entity that can receive such interest free of withholding tax under the Relevant DTT and the relevant regulations and not acting through its branch in Japan, … .”
“has a special exemption status with regard to the application of withholding Tax by virtue of any treaty or other similar provision and complies with all relevant requirements with respect to such exemption, such that no withholding tax will be levied in relation to interest (or any other types of payment) that is or may be payable to such Lender … .”
“benefits from a double tax treaty with Japan so that no withholding tax will be levied in relation to payments of interest (the ‘Relevant DTT’) … .”
“(a) the occurrence of an Event of Default which is continuing; and/or (b) the Loan becoming, or being declared, due and payable in full in accordance with the terms of this Agreement and not being paid when due.”
“In my judgment, the Judge correctly concluded that the term ‘other financial institution’ in the expression ‘bank or other financial institution’ need not be a bank or even akin to a bank. Clearly, the disjunctive form of the contractual expression, ‘bank or other financial institution’, allowed for a financial institution that was not a bank, certainly not in the narrow conventional sense of lending money and/or accepting deposits for investment. However, given the use of that expression in a loan agreement allowing the transfer of the rights and obligations of the contract loan to a financial institution other than a bank, the assignment of its rights to anyone, and the known existence of a secondary market in such loans, I can see no basis for the Judge's starting point that one of the characteristics of such an institution was that it had to be a lender, whether in the primary market or otherwise. It is equally beside the point whether a potential transferee is technically a lender as an established trader in loans in the secondary market or, indeed that it would become a lender, if not otherwise qualifying as such, on becoming a transferee under the Agreement.”
“I, therefore, end up with a broader interpretation than did the Judge of the term ‘other financial institution’ in the expression, ‘a bank or other financial institution’, in the Agreement. In my view, the Judge, in identifying the nature of the restriction imposed by the Agreement on the meaning of a transferee for the purpose of considering whether a putative transferee was entitled to claim repayment of debts of Essar passed to it, adopted too restrictive a meaning. He should have held that it was satisfied by proof that the putative transferee met the broad fifth criterion he identified in paragraph 38 of his judgement, namely having ‘a legally recognised form or being, which carries on its business in accordance with the laws of its place of creation and whose business concerns commercial finance’, and whether or not its business included the lending of money on the primary or secondary lending market.”
“Neither party was able to point to any provision within the contract itself that supported the construction for which they respectively contended. The phrase is not contractually defined and is ambiguous. There are no provisions within the Facility Agreement that either expressly or inferentially favour one construction over the other. It is difficult to discern any relevant commercial context that could be said to illuminate how the concept of a financial institution would have been perceived by reasonable people in the position of the parties, as at the date that the contract was made.”
“another bank or financial institution” and “a trust, fund or other entity…”
“another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets”
“the courts favour the marketability of assets and will therefore construe restrictions on transferability very narrowly. If the borrower wishes to limit assignees to commercial banks which are able to lend, it is considered that this would have to be specifically stated.”
“Interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State shall be taxable only in that other Contracting State.”
“if the resident is carrying on business in the first-mentioned Contracting State (other than the business of making or managing investments for the resident’s own account, unless the business is banking, insurance or securities business carried on by a bank, insurance company or securities dealer), the income, profits or gains derived from the other Contracting State is derived in connection with, or is incidental to, that business and that resident satisfies any other specified conditions in those paragraphs or Articles for the obtaining of such benefits.”
“I don’t think it was complicated. I think we were [a] financial institution and that was the end of the question. Did we need to be a Japanese fronting bank? No. And that was the end of it.”
“Making or managing investments for the resident’s own account … refers to a business which has the nature of investment such as a business merely acquiring and managing shares in order to obtain dividends or other benefits in the resident’s own account.”
“The business of making or managing investments for the resident’s own account will be considered to be a business only when the relevant activities are part of banking, insurance or securities activities conducted by a bank or financial institution that the Contracting States would consider to be similar to a bank (such as a credit union or building society), an insurance enterprise or a registered securities earlier respectively. Such activities conducted by a person other than a bank (or financial institution agreed to by the Contracting States), insurance enterprise or registered securities dealer will not be considered to be the active conduct of a business … .”
“As an ordinary word in the English language ‘trade’ has or has had a variety of meanings or shades of meaning. Its meaning in tax legislation is a matter of law. Whether or not a particular activity is a trade, within the meaning of the tax legislation, depends on the evaluation of the activity by the tribunal of fact. These propositions can be broken down into the following components. It is a matter of law whether some particular factual characteristic is capable of being an indication of trading activity. It is a matter of law whether a particular activity is capable of constituting a trade. Whether or not the particular activity in question constitutes a trade depends upon an evaluation of all the facts relating to it against the background of the applicable legal principles. To that extent the conclusion is one of fact, or, more accurately, it is an inference of fact from the primary facts found by the fact-finding tribunal.”
“… At the most basic level, it is now clear from Eclipse, if it was not clear before, that the question whether what the taxpayer actually did constitutes a trade has to be answered by standing back and looking at the whole picture: see [111]. Although it is a matter of law whether a particular activity is capable of constituting a trade, whether or not it does so in any given case ‘depends upon an evaluation of all the facts relating to it against the background of the applicable legal principles’: see [112]. It follows that it can never be appropriate to extract certain elements from the overall picture and treat them, viewed in isolation, as determinative of the issue. … The exercise which the FTT has to undertake is one of multi-factorial evaluation … .”
“No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the debt-claim in respect of which the interest is paid to take advantage of this Article by means of that creation or assignment.”
“a) Save in ‘obvious’ cases, ascertaining the object or purpose of something involves an inquiry into the subjective intentions of the relevant actor. b) Object or purpose must be distinguished from effect. Effects or consequences, even if inevitable, are not necessarily the same as objects or purposes. c) Subjective intentions are not limited to conscious motives. d) Further, motives are not necessarily the same as objects or purposes. e) ‘Some’ results or consequences are ‘so inevitably and inextricably involved’ in an activity that, unless they are merely incidental, they must be a purpose for it. f) It is for the fact finding tribunal to determine the object or purpose sought to be achieved, and that question is not answered simply by asking the decision maker.”
“We accept that a tribunal of fact considering Article 12(5) may well consider it relevant to determine the extent of a person's knowledge of the treaty, including whether a party has taken steps to disguise their knowledge or avoid obtaining specific knowledge of its provisions. But those matters would simply form part of the factual enquiry to determine whether a person concerned in the creation or assignment of a debt claim has a main purpose of improperly taking advantage of the Article 12(1) of the UK-Ireland treaty. We respectfully consider that the FTT went too far in saying, at [150], that a necessary condition for Article 12(5) to apply was that SICL knew that the purchaser of the SAAD Claim would be relying on Article 12(1) specifically. We consider that to be an unjustified gloss on the actual words chosen by the contracting States in concluding the treaty.”
“Where, however, an arrangement can only be reasonably explained by a benefit that arises under a treaty, it may be concluded that one of the principal purposes of that arrangement was to obtain the benefit.”
“Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole.”
“No failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under the Operative Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.”
“However, a novation will only be inferred from conduct if that inference is required to give business efficacy to what happened. As Lightman J explained in Evans v SMG Television Ltd[2003] EWHC 1423 (Ch) at [181]: ‘The proper approach to deciding whether a novation should be inferred is to decide whether that inference is necessary to give business efficacy to what actually happened (compare Miles v Clarke[1953] 1 WLR 537 at 540). The inference is necessary for this purpose if the implication is required to provide a lawful explanation or basis for the parties’ conduct.’”
“The Facility Agent shall, as soon as reasonably practicable after it has executed an Assignment Agreement, send to the Borrower a copy of that Assignment Agreement.”
“An assignment will only be effective on: (i) receipt by the Facility Agent and the Borrower of a duly executed Assignment Agreement in substantially the same form as Schedule 4, Part B of this Agreement which includes written confirmation from the New Lender that the New Lender will assume the same obligations to the other Financing Parties and the Borrower as it would have been under if it was an Original Lender; (ii) performance by the Facility Agent of all necessary "Know Your Customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender; and (iii) without prejudice to the other provisions of this Agreement, it shall be a condition of any assignment and/or transfer referred to in this Clause 17 that the relevant assignor or Existing Lender or assignee or New Lender shall have provided to the Borrower at no cost to the Borrower all information which the Borrower may reasonably request relating to the relevant assignee or transferee as may be necessary to enable the Borrower to make any filings, reports or notifications required to be made by applicable law with Japanese governmental and taxation authorities.”
“It was submitted that, even though the assignments were in breach of clause 17, they were effective to vest the causes of action in the assignees, i.e. Professor Goode’s category (1). This argument was founded on two bases: first, the decision in Tom Shaw and Co. v. Moss Empires Ltd. (1908) 25 T.L.R. 190 ; second, the fact that an assignment of a leasehold term in breach of a covenant against assignment is effective to vest the term in the assignee. In the Tom Shaw case an actor, B., was engaged by Moss Empires under a contract which prohibited the assignment of his salary. B. assigned 10 per cent. of his salary to his agent, Tom Shaw. Tom Shaw sued Moss Empires for 10 per cent. of the salary joining B. as second defendant. Moss Empires agreed to pay the 10 per cent. of the salary to Tom Shaw or B. as the court might decide i.e. in effect it interpleaded. Darling J. held, at p. 191, that the prohibition on assignment was ineffective: it could ‘no more operate to invalidate the assignment than it could to interfere with the laws of gravitation.’ He gave judgment for the plaintiffs against both B. and Moss Empires, ordering B. to pay the costs but making no order for costs against Moss Empires. The case is inadequately reported and it is hard to discover exactly what it decides. Given that both B. and Moss Empires were parties and Moss Empires was in effect interpleading, it may be that the words I have quoted merely indicate that as between the assignor, B., and the assignee Tom Shaw, the prohibition contained in the contract between B. and Moss Empires could not invalidate B.’s liability to account to Tom Shaw for the moneys when received and that, since B. was a party, payment direct to Tom Shaw was ordered. This view is supported by the fact that no order for costs was made against Moss Empires. If this is the right view of the case, it is unexceptionable: a prohibition on assignment normally only invalidates the assignment as against the other party to the contract so as to prevent a transfer of the chose in action: in the absence of the clearest words it cannot operate to invalidate the contract as between the assignor and the assignee and even then it may be ineffective on the grounds of public policy. If on the other hand Darling J. purported to hold that the contractual prohibition was ineffective to prevent B.’s contractual rights against Moss Empires being transferred to Tom Shaw, it is inconsistent with authority and was wrongly decided. In the Helstan Securities case [1978] 3 All E.R. 262 Croom-Johnson J. did not follow the Tom Shaw case and held that the purported assignment in breach of the contractual provision was ineffective to vest the cause of action in the assignee. That decision was followed and applied by the Court of Appeal in the Reed Publishing Holdings case,25 May 1983 : see also In Re Turcan , 40 Ch.D. 5. Therefore the existing authorities establish that an attempted assignment of contractual rights in breach of a contractual prohibition is ineffective to transfer such contractual rights. I regard the law as being satisfactorily settled in that sense. If the law were otherwise, it would defeat the legitimate commercial reason for inserting the contractual prohibition, viz., to ensure that the original parties to the contract are not brought into direct contractual relations with third parties.”
“It will be observed that all these effects are limited to relations with the debtor or, in case (4), notice to the debtor. The underlying principle is that the debtor cannot be affected by notice of a prohibited assignment, but that is as far as the principle goes. The prohibition against assignment is for the benefit of the debtor alone, not for the benefit of the assignor, its trustee or liquidator or a competing assignee under a permitted assignment. For the reasons given earlier, the prohibition cannot operate to prevent the assignment from transferring ownership of the debt to the assignee. English courts have yet to rule firmly on the point, but all the indications are that they are moving in that direction.”
“… Speaking for myself, and if this Court were not constrained by authority, I can see strong arguments in favour of Professor Goode's proposition that ‘it is necessary to keep in mind the central principle: bars to assignment or other dealing are relevant only to the relationship with the debtor, not to the relationship between the parties to the dealing in question’; and that, accordingly, it is not competent for the debtor to exclude by contract the proprietary effects of an assignment as between assignor and assignee, or the creation of a trust as between trustee and beneficiary; and that “all he can do is to insist that he will not recognise the title of the beneficiary or the ability of the beneficiary to bring proceedings in his own right.”
“Whether or not the decision in Linden Gardens …, which is binding on us, can be characterised, or distinguished, in the way Professor Goode suggests, as a case where the issue was whether the assignment was effective against the debtor and whether it was under any obligation to recognize the title of the assignee, was not put in play before us. Accordingly, and with a considerable degree of intellectual disappointment, I move to consider the construction arguments on the assumption that any purported equitable assignment without SAMIR's prior consent was ineffective to amount to an equitable assignment of BPOI's contractual rights under the contract … .”
“Such a term does not affect third parties, in that if the term is breached, the assignment of the chose is not ineffective. Breach merely exposes the assignor to a claim for damages, which damages—it can confidently be anticipated-will be difficult to assess. Perhaps for this reason, the English courts have been slow to construe anti-assignment clauses as mere contractual promises that have no effect on the validity of the attempted assignment itself.”
“92. It follows that, unless it can be said that the jurisdiction to give relief in the case of a mortgage is limited to mortgages of real property, no convincing reason has been identified why there should not be jurisdiction here. On the contrary it is a classic case for the exercise of the jurisdiction. The Board has reached the clear conclusion that there is no principled basis upon which the jurisdiction can be limited to real property. Nor is there any authority for such a distinction. 93. The issue was addressed in BICC Plc v Burndy Corporation[1985] Ch 232 , 252A-C, where Dillon LJ said this: ‘There is no clear authority, but for my part I find it difficult to see why the jurisdiction of equity to grant relief from forfeiture should only be available where what is liable to forfeiture is an interest in land and not an interest in personal property. Relief is only available where what is in question is forfeiture of proprietary or possessory rights, but I see no reason in principle for drawing a distinction as to the type of property in which the rights subsist. The fact that the right to forfeiture arises under a commercial agreement is highly relevant to the question whether relief from forfeiture should be granted, but I do not see that it can preclude the existence of the jurisdiction to grant relief, if forfeiture of proprietary or possessory rights, as opposed to merely contractual rights, is in question. I hold, therefore, that the court has jurisdiction to grant Burndy relief.’ Kerr LJ agreed with that part of Dillon LJ’s judgment, and Ackner LJ agreed with the whole of it at 253C and 260A respectively. 94. That reasoning, with which the Board agrees, supports the conclusion that relief from forfeiture is available in principle where what is in question is forfeiture of proprietary or possessory rights, as opposed to merely contractual rights, regardless of the type of property concerned.”
“… although that right was then subject to [a contingency], it can nevertheless be truthfully said that there was a forfeiture of proprietary or possessory rights and not merely contractual rights. Even a contingent right to exercise an option appears to me to be properly described as a ‘proprietary right’.”
“Knox J had already referred … to the receivers’ evidence that the continued possession and use of the three lorries was essential to the conduct of Transag’s business … I think that Knox J could have based his decision on Transag’s possessory rights during the currency of each of the hire-purchase agreements, as well as on its option to purchase.”
“contractual rights which entitle the hirer to indefinite possession of chattels so long as the hire payments are duly made, and which qualify and limit the owners general property in the chattels, cannot aptly be described as purely contractual rights.”
“… in a bareboat charter which is also a hire/purchase agreement, the owners provide the ship in anticipation that they will do nothing further after delivery. They receive the charterers’ payments and, if all goes well, transfer the vessel to the charterers on receipt of the final instalment … The demise charterers are given contractual and possessory rights in relation to the vessel …[they] have the right to have ownership transferred to them at the end of the charter period, if there has been compliance with the conditions of the charter.”
“136. There is a caveat, however, concerning one point as to the terms of any relief which is raised by the Defendants (and which did not arise in the arbitration). In the landlord and tenant context, the Defendants point out that the court has long had a jurisdiction to grant relief from forfeiture to underlessees of land on conditions as to the execution of a new deed or other document between the lessor and the under-lessee as the court in the circumstances of each case may think fit. This has been extended to leases of chattels by cases such as BICC plc v Burndy Corpn[1985] Ch. 232 . On this basis, it is submitted that the court has inherent equitable jurisdiction to grant relief from forfeiture to the Sub-Charterers and Sub-Sub-Charterers and, if relief is granted, to instate a new bareboat charter with the Owners on such terms as the court in the circumstances thinks fit. The new charter would be on materially the same terms as the Head Charters (including as to term and rate of hire but without the purchase right at the end of the charter term). That, it is submitted, will put the Owners in no worse position and in some respects a better position because they will get the Vessels back at the end of the 12-year term. 137. The Owners submit there is no such jurisdiction in the court, and to grant it would entail the court rewriting the parties’ contract. In this respect, they rely on well-known authority emphasising the need for certainty in commercial transactions: e.g., Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade)[1983] 1 QB 529 at 540. 138. The Defendants did not cite any authority in support of its case in this respect, or indeed any other material which suggested that the court had adopted this course before. This is not surprising. In my view, cases contemplating the execution of a new deed or other document between the lessor and the under-lessee in the case of underleases of land (or chattels) should be considered with caution in cases involving a series of ship charters where the law must operate in a very different commercial context. In a sense, relief against forfeiture involves in its nature the adjustment of contractual rights by the court. But the interposition by the court of a new charter between Owners and Sub-Charterers or Sub-Sub-Charterers raises some difficult questions and is, in my view, unlikely to be ordered whatever view is taken as to the grant of relief.”
“The general approach of a court of equity, where the default in question is a failure to pay, is to grant relief on terms that the defaulter pays what is due plus the costs of the other party.”
“I only desire to add that the cases in which it is right to give relief against forfeiture where there has been a wilful breach of covenant are likely to be few in number and where the conduct of the person seeking to secure the forfeiture has been wholly unreasonable and of a rapacious and unconscionable character.”
“163. In answer to this argument, Mr Dunning did not respond to the individual complaints about the Defendants’ conduct, but relied upon the principle that a party is not precluded from equitable relief unless the misconduct or impropriety has a sufficient connection with the equitable relief sought: see The Royal Bank of Scotland Plc v Highland Financial Partners LP,[2013] EWCA Civ 328 . This principle can be traced back to the words of Lord Chief Baron Eyre in Dering v Winchelsea, (1787) 1 Cos 318, 319, who referred to ‘an immediate and necessary relation to the equity sued for’. 164. I accept that, unless misconduct or impropriety on the part of the applicant for relief from forfeiture is closely connected with the application, while it is relevant to the decision whether to grant relief, it is to be assessed together with other considerations: thus, in Freifeld v West Kensington Court Ltd.,[2015] EWCA 806 , a case about an application for relief from forfeiture of a lease, Arden LJ said ‘The windfall point is about proportionality. The appellants’ egregious conduct is not relevant to the question of the windfall, which is a self-standing consideration to be considered on its own merits and then weighed against the appellants’ egregious conduct. Once it is appreciated that the value of the leasehold interest is an advantage which the respondent will obtain from forfeiture, it has to be thrown into the balance with other considerations’.”
“review, evaluate, and make objective, responsible decisions in accordance with regulations of law, ensuring the legitimate rights and interests of VJA with respect to the Aircraft, including Aircraft 8577 while there has not been a final judgment from the English Court on the dispute between related parties.”
“We also hope to receive the attention and support from the Prime Minister, the Deputy Prime Minister Tran Hong Ha, the Ministry of Transport and the Civil Aviation Authority of Vietnam to protect the legitimate rights and interests of VietJet in particular and Vietnamese domestic airlines in general on the principle of complying with the law, respecting business ethics, fair trade spirit, aiming for sustainable and long-term interests for enterprises, society and our country.”
“we respectfully hope that the Deputy Minister will consider and assess in accordance with the laws to ensure VJA’s legitimate rights and interests towards the disputed Aircraft while there has not been a final decision from the English Court on the dispute between related parties.”
“With the above summary about the contents and developments of the above dispute in the English court, we respectfully hope that the Ministry will consider, assess, and have directions on relevant agencies to implement in accordance with the laws to ensure VJA’s legitimate rights and interests towards the disputed Aircraft while there has not been a final decision from the English Court on the dispute between related parties. (We would like to submit legal opinions of YKVN and Vina Legal).”
“It is of the utmost importance in commercial transactions that, if any particular event occurs which may affect the parties' respective rights under a commercial contract, they should know where they stand. The court should so far as possible desist from placing obstacles in the way of either party ascertaining his legal position, if necessary with the aid of advice from a qualified lawyer, because it may be commercially desirable for action to be taken without delay, action which may be irrevocable and which may have far-reaching consequences. It is for this reason, of course, that the English courts have time and again asserted the need for certainty in commercial transactions - for the simple reason that the parties to such transactions are entitled to know where they stand, and to act accordingly.”
“These are bespoke commercial contracts negotiated between sophisticated counterparties advised by lawyers. Considerations of commercial certainty are very important and the case law demonstrates that relief from forfeiture is (rightly) rarely granted in bespoke contracts negotiated between experienced commercial counterparties.”
“72. I consider that the ASLAs are transactions in respect of which the need for certainty is very much present. As Celestial submitted, commercial certainty is an important consideration in respect of an operating lease of an aircraft in which the lessor maintains a valuable reversionary interest. An aircraft is a valuable asset, with high value components, which is of its very nature ‘moveable’ and depreciating, which is left in the hands of the other party in a foreign country where it will be registered for the purpose of the lease (and need to be deregistered to be operated elsewhere). The lessor, having a reversionary right to the asset, needs to know and agree with precision with the lessee: (a) the obligations of each party, (b) the events that will entitle to lessor to terminate the contract and recover its asset and (c) provisions which will show how, as a matter of business practicality, the contract will be terminated, the asset recovered and possession returned by the lessee to the lessor. 73. The consequence of the relief jurisdiction being exercisable in cases such as the present is likely to be to make it open to any lessee of a commercial aircraft under an English law operating lease such as the ASLAs to contend that relief from forfeiture can be granted. As was borne out by Celestial’s evidence, there are many such leases and this is likely to cause significant uncertainty in the aviation sector: the lessor will not know when (or indeed whether) it can terminate a lease and will be prevented from being able to rely timeously or at all on the clear and detailed default and termination provisions of its leases.”