Van Der Merwe & Anor v IIG Capital LLC [2007] EWHC 2631 (Ch) (13 November 2007)

Van Der Merwe & Anor v IIG Capital LLC [2007] EWHC 2631 (Ch) (13 November 2007)

The guarantee's wording, including the extended definition of 'Guaranteed Monies', the 'principal obligor' clause, the obligation to pay on demand, and the conclusive evidence clause, collectively displace the presumption against an on-demand guarantee outside the banking context. The appellants are contractually bound to pay the amount certified by the lender, and cannot raise defences available to the principal debtor.

Citation
[2007] EWHC 2631 (Ch)
Parties
Appellant/defendant: Fransina Johanna Van Der Merwe; Appellant/defendant: Gerrit Le Roux Van Der Merwe; Respondent/claimant: IIG Capital LLC
Jurisdiction
England and Wales
Judgment Date
13 November 2007
Procedural Posture
Appeal / Judgment on Appeal From Summary Judgment
Outcome
Appeal dismissed
Legal Topics
Guarantees, On Demand Bonds, Conclusive Evidence Clauses, Summary Judgment, Interpretation of Contracts
Commercial Law Contract Law Guarantees On Demand Bonds Conclusive Evidence Clauses Summary Judgment Interpretation of Contracts

Case Brief

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Parties

Fransina Johanna Van Der Merwe

Appellant/defendant

Gerrit Le Roux Van Der Merwe

Appellant/defendant

IIG Capital LLC

Respondent/claimant

Procedural Posture

Appeal / Judgment on Appeal From Summary Judgment

Legal Issues

  1. 1 Whether the guarantee executed by the appellants is a primary obligation payable on demand or a secondary obligation subject to defences available to the principal debtor
  2. 2 Whether the inclusion of a conclusive evidence clause and other terms displaces the presumption against an on-demand guarantee outside the banking context

Ratio Decidendi

The guarantee's wording, including the extended definition of 'Guaranteed Monies', the 'principal obligor' clause, the obligation to pay on demand, and the conclusive evidence clause, collectively displace the presumption against an on-demand guarantee outside the banking context. The appellants are contractually bound to pay the amount certified by the lender, and cannot raise defences available to the principal debtor.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.