Enka Insaat Ve Sanayi AS v Banca Popolare Dell'alto Adige SPA

Enka Insaat Ve Sanayi AS v Banca Popolare Dell'alto Adige SPA

The banks failed to show a real prospect that they could establish at trial that ENKA could not honestly have believed in the validity of its demands under the guarantees. The guarantees did not require ENKA to state or believe that it had suffered loss or was entitled to repayment at the time of demand. The demands were in the required form, and there was no evidence of fraud. ENKA is entitled to summary judgment.

Parties
Claimant: ENKA INSAAT VE SANAYI A. S; Defendant: BANCA POPOLARE DELL’ALTO ADIGE SPA; Defendant: CASSA DI RISPARMIO DI BOLZANO SPA
Jurisdiction
England and Wales
Judgment Date
06 October 2009
Procedural Posture
Commercial Summary Judgment Application / Judgment on Application for Summary Judgment
Outcome
Summary judgment granted for the claimant (ENKA) against both defendant banks.
Legal Topics
Performance Guarantees, Advance Payment Guarantees, Fraud Exception, Summary Judgment, Construction of Guarantees
Banking and Finance Law Commercial Law Performance Guarantees Advance Payment Guarantees Fraud Exception Summary Judgment Construction of Guarantees

Case Brief

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Parties

ENKA INSAAT VE SANAYI A. S

Claimant

BANCA POPOLARE DELL’ALTO ADIGE SPA

Defendant

CASSA DI RISPARMIO DI BOLZANO SPA

Defendant

Procedural Posture

Commercial Summary Judgment Application / Judgment on Application for Summary Judgment

Legal Issues

  1. 1 Whether the demands made by ENKA under the performance and advance payment guarantees were fraudulent
  2. 2 Proper construction of the guarantees regarding entitlement to payment
  3. 3 Whether the banks have a real prospect of establishing the fraud exception to payment under the guarantees

Ratio Decidendi

The banks failed to show a real prospect that they could establish at trial that ENKA could not honestly have believed in the validity of its demands under the guarantees. The guarantees did not require ENKA to state or believe that it had suffered loss or was entitled to repayment at the time of demand. The demands were in the required form, and there was no evidence of fraud. ENKA is entitled to summary judgment.

Court Disposition

Summary judgment granted for the claimant (ENKA) against both defendant banks.

Orders

  • Judgment for ENKA on its claims against Banca Popolare Dell’Alto Adige SPA and Cassa Di Risparmio Di Bolzano SPA.