Newmafruit Farms Ltd & Ors v Pither & Ors

Newmafruit Farms Ltd & Ors v Pither & Ors

Summary judgment is granted in part: Newmafruit is entitled to judgment for sums lent under the June 2011 Agreement (rows 8-27) and for row 4, as Mr Pither has no real prospect of defending these claims. However, for sums arguably governed by regulated agreements (rows 3, 5, 6, 7, 28-30), triable issues arise under the Consumer Credit Act and FSMA regarding licensing and disclosure, so summary judgment is refused for those. The profit-sharing, waiver, estoppel, and set-off defences are rejected as lacking substance or contractual basis. Sums at rows 1 and 2 are owed by AMP, not Mr Pither, so summary judgment is refused for those.

Parties
Claimant: Newmafruit Farms Limited; Claimant: Priory Homes (Kent) Limited (in administration); Claimant: Priory Homes (Norfolk) Limited (in administration); Defendant: Alan Pither; Defendant: Derek Robert Peter; Defendant: Priory Homes East Limited (in creditors’ voluntary liquidation); Defendant: AMP Consultants Limited; Defendant: Brill Links Sports Management Limited (in creditors’ voluntary liquidation)
Jurisdiction
England and Wales
Judgment Date
09 September 2016
Procedural Posture
Civil (commercial/contract) / Summary Judgment Application and Strike Out of Defence
Outcome
Summary judgment granted in part, refused in part; further submissions invited on form of order and ancillary matters.
Legal Topics
Loan Agreements, Summary Judgment, Consumer Credit Act Compliance, Set Off, Waiver and Estoppel, Business Lending, Regulated Agreements
Contract Law Commercial Law Financial Regulation Loan Agreements Summary Judgment Consumer Credit Act Compliance Set Off Waiver and Estoppel +2 more

Case Brief

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Parties

Newmafruit Farms Limited

Claimant

Priory Homes (Kent) Limited (in administration)

Claimant

Priory Homes (Norfolk) Limited (in administration)

Claimant

Alan Pither

Defendant

Derek Robert Peter

Defendant

Priory Homes East Limited (in creditors’ voluntary liquidation)

Defendant

AMP Consultants Limited

Defendant

Brill Links Sports Management Limited (in creditors’ voluntary liquidation)

Defendant

Procedural Posture

Civil (commercial/contract) / Summary Judgment Application and Strike Out of Defence

Legal Issues

  1. 1 Whether loans made by Newmafruit to Mr Pither and related parties are repayable and enforceable
  2. 2 Whether the June 2011 Agreement subsumed prior loan obligations
  3. 3 Whether the loans are unenforceable due to Consumer Credit Act 1974 and Financial Services and Markets Act 2000 provisions (licensing and disclosure)

Ratio Decidendi

Summary judgment is granted in part: Newmafruit is entitled to judgment for sums lent under the June 2011 Agreement (rows 8-27) and for row 4, as Mr Pither has no real prospect of defending these claims. However, for sums arguably governed by regulated agreements (rows 3, 5, 6, 7, 28-30), triable issues arise under the Consumer Credit Act and FSMA regarding licensing and disclosure, so summary judgment is refused for those. The profit-sharing, waiver, estoppel, and set-off defences are rejected as lacking substance or contractual basis. Sums at rows 1 and 2 are owed by AMP, not Mr Pither, so summary judgment is refused for those.

Court Disposition

Summary judgment granted in part, refused in part; further submissions invited on form of order and ancillary matters.

Orders

  • Summary judgment for Newmafruit for sums at rows 8-27 and row 4 of the amended schedule against Mr Pither.
  • Summary judgment refused for sums at rows 1, 2, 3, 5, 6, 7, 28, 29, and 30; those claims to proceed to trial.