Durnont Enterprises Ltd v Fazita Investment Ltd & Ors [2024] EWCA Civ 299 (26 March 2024)

Durnont Enterprises Ltd v Fazita Investment Ltd & Ors [2024] EWCA Civ 299 (26 March 2024)

There is no prima facie case against the Bank, Mr Czeremcha, or Mr de Makay for breach of contract, fiduciary duty, or liability under Article 415. The Bank was entitled to accept repayment under Polish law, no evidence supports involvement in events causing loss, and the SPA was conditional on compliance with pre-emption provisions. No causal link between alleged breaches and the Company's losses was established.

Citation
[2024] EWCA Civ 299
Parties
Claimant/appellant: Durnont Enterprises Limited; Defendant/respondent: Fazita Investment Limited; Defendant/respondent: Wladyslaw Jaroszewicz; Defendant/respondent: Michael Carl Jaroszewicz; Defendant/respondent: M-JWK-Management Spólka z Ograniczona Odpowiedzialnoscia; Defendant/respondent: Anna Bandurska; Defendant/respondent: Jan Czeremcha; Defendant/respondent: Maciej de Makay; Defendant/respondent: BNP Paribas Bank Polska S. A.; Defendant/respondent: Polish Real Estate Investment Limited
Jurisdiction
England and Wales
Judgment Date
26 March 2024
Procedural Posture
Appeal (derivative Claim Permission) / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Derivative Claims, Shareholder Rights, Fiduciary Duties, Subrogation, Breach of Contract, Pre Emption Rights, Foreign Company Litigation
Company Law Insolvency Contract Law Civil Procedure Derivative Claims Shareholder Rights Fiduciary Duties Subrogation +3 more

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Parties

Durnont Enterprises Limited

Claimant/appellant

Fazita Investment Limited

Defendant/respondent

Wladyslaw Jaroszewicz

Defendant/respondent

Michael Carl Jaroszewicz

Defendant/respondent

M-JWK-Management Spólka z Ograniczona Odpowiedzialnoscia

Defendant/respondent

Anna Bandurska

Defendant/respondent

Jan Czeremcha

Defendant/respondent

Maciej de Makay

Defendant/respondent

BNP Paribas Bank Polska S. A.

Defendant/respondent

Polish Real Estate Investment Limited

Defendant/respondent

Procedural Posture

Appeal (derivative Claim Permission) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether Durnont Enterprises Limited should have permission to continue derivative claims against the Bank, Mr Czeremcha, and Mr de Makay
  2. 2 Whether there is a prima facie case for breach of contract, fiduciary duty, or liability under Article 415 of the Polish Civil Code against these defendants

Ratio Decidendi

There is no prima facie case against the Bank, Mr Czeremcha, or Mr de Makay for breach of contract, fiduciary duty, or liability under Article 415. The Bank was entitled to accept repayment under Polish law, no evidence supports involvement in events causing loss, and the SPA was conditional on compliance with pre-emption provisions. No causal link between alleged breaches and the Company's losses was established.

Court Disposition

Appeal dismissed

Orders

  • Permission to continue derivative claims against the Bank, Mr Czeremcha, and Mr de Makay refused
  • No order as to costs due to non-appearance of respondents