Winterbrook Global Opportunities Fund v NB Finance Ltd & Ors [2019] EWHC 737 (Ch) (01 April 2019)

Winterbrook Global Opportunities Fund v NB Finance Ltd & Ors [2019] EWHC 737 (Ch) (01 April 2019)

The Oak Loan liability was never transferred to Novo Banco as a matter of Portuguese law, per the Supreme Court in Goldman Sachs. Therefore, any default on the Oak Loan cannot be attributed to Novo Banco for the purposes of the Events of Default under the Notes. Winterbrook's claim is unarguable and must be struck out.

Citation
[2019] EWHC 737 (Ch)
Parties
Claimant: Winterbrook Global Opportunities Fund; First Defendant: NB Finance Limited; Second Defendant: Novo Banco, S. A.; Third Defendant: The Bank of New York Mellon
Jurisdiction
England and Wales
Judgment Date
01 April 2019
Procedural Posture
Civil (financial List) / Application for Strike Out/summary Judgment and Application to Amend Particulars of Claim
Outcome
Claim struck out; summary judgment for NB Finance and Novo Banco; application to amend dismissed.
Legal Topics
Events of Default, Debt Securities, Guarantees, Jurisdiction, Recognition of Foreign Administrative Decisions
Banking and Finance Law Contract Law Insolvency Law Events of Default Debt Securities Guarantees Jurisdiction Recognition of Foreign Administrative Decisions

Case Brief

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Parties

Winterbrook Global Opportunities Fund

Claimant

NB Finance Limited

First Defendant

Novo Banco, S. A.

Second Defendant

The Bank of New York Mellon

Third Defendant

Procedural Posture

Civil (financial List) / Application for Strike Out/summary Judgment and Application to Amend Particulars of Claim

Legal Issues

  1. 1 Whether an Event of Default under the Notes has occurred attributable to Novo Banco by reason of the Oak Loan default
  2. 2 Whether the Oak Loan liability was transferred to Novo Banco under Portuguese law and the EBRRD
  3. 3 Whether the claim is arguable in light of the Supreme Court decision in Goldman Sachs International v. Novo Banco SA

Ratio Decidendi

The Oak Loan liability was never transferred to Novo Banco as a matter of Portuguese law, per the Supreme Court in Goldman Sachs. Therefore, any default on the Oak Loan cannot be attributed to Novo Banco for the purposes of the Events of Default under the Notes. Winterbrook's claim is unarguable and must be struck out.

Court Disposition

Claim struck out; summary judgment for NB Finance and Novo Banco; application to amend dismissed.

Orders

  • Winterbrook's application to amend particulars of claim dismissed.
  • NB Finance's and Novo Banco's application to strike out and/or for summary judgment granted.