Nakanishi Marine Co Ltd v Gora Shipping Ltd & Ors [2012] EWHC 3383 (Comm) (28 November 2012)

Nakanishi Marine Co Ltd v Gora Shipping Ltd & Ors [2012] EWHC 3383 (Comm) (28 November 2012)

The Claimant's declaration of acceleration under the NLA was valid, but subordination and enforcement restrictions in the Deed of Co-ordination prevent payment or enforcement against Gora until Attica's loan is repaid or Attica consents. Notice of event of default by Attica was valid but not timeous; its effect is not retrospective. The Claimant has rights against MFS under the Guarantee, which are not blocked by the DOC, but cannot presently be enforced without Attica's consent or a finding that consent cannot be unreasonably withheld. Declaratory relief is not enforcement and is permitted.

Citation
[2012] EWHC 3383 (Comm)
Parties
Claimant: Nakanishi Marine Co Ltd; First Defendant: Gora Shipping Ltd; Second Defendant: MFS Group SA; Third Defendant: Attica Finance Inc
Jurisdiction
England and Wales
Judgment Date
28 November 2012
Procedural Posture
Commercial Court Summary Judgment Application / Judgment on Summary Determination of Issues
Outcome
Declaratory relief granted; Claimant has no enforceable rights against Gora at present, but has rights against MFS under the Guarantee subject to enforcement restrictions.
Legal Topics
Loan Agreements, Guarantees, Subordination, Declaratory Relief, Enforcement of Security, Notice Requirements
Commercial Law Contract Law Banking and Finance Loan Agreements Guarantees Subordination Declaratory Relief Enforcement of Security +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 15 Party arguments 2
Sign in to unlock

Parties

Nakanishi Marine Co Ltd

Claimant

Gora Shipping Ltd

First Defendant

MFS Group SA

Second Defendant

Attica Finance Inc

Third Defendant

Procedural Posture

Commercial Court Summary Judgment Application / Judgment on Summary Determination of Issues

Legal Issues

  1. 1 Validity and timing of notice of event of default under Attica Loan Agreement
  2. 2 Claimant's entitlement to accelerate sums under Nakanishi Loan Agreement
  3. 3 Effect of subordination clauses on Claimant's rights

Ratio Decidendi

The Claimant's declaration of acceleration under the NLA was valid, but subordination and enforcement restrictions in the Deed of Co-ordination prevent payment or enforcement against Gora until Attica's loan is repaid or Attica consents. Notice of event of default by Attica was valid but not timeous; its effect is not retrospective. The Claimant has rights against MFS under the Guarantee, which are not blocked by the DOC, but cannot presently be enforced without Attica's consent or a finding that consent cannot be unreasonably withheld. Declaratory relief is not enforcement and is permitted.

Court Disposition

Declaratory relief granted; Claimant has no enforceable rights against Gora at present, but has rights against MFS under the Guarantee subject to enforcement restrictions.

Orders

  • Parties to agree form of order reflecting judgment on eight issues
  • Declaratory relief as to Claimant's rights against MFS