McKillen v Misland (Cyprus) Investments Ltd & Ors [2012] EWHC 129 (Ch) (02 February 2012)

McKillen v Misland (Cyprus) Investments Ltd & Ors [2012] EWHC 129 (Ch) (02 February 2012)

Clause 40.3(b) of the Facilities Agreement does not disapply the restrictions in clauses 24.2 and 24.3 to transfers by NAMA; the restrictions and conditions on permitted transferees and consultation with the borrower remain applicable to transfers by NAMA, including the transfer to Maybourne Finance Limited.

Citation
[2012] EWHC 129 (Ch)
Parties
Petitioner/claimant: Patrick McKillen; Respondent/defendant: Misland (Cyprus) Investments Limited; Respondent: Derek Quinlan; Respondent/defendant: Ellerman Corporation Limited; Respondent/defendant: B Overseas Limited; Respondent/defendant: Richard Faber; Respondent/defendant: Michael Seal; Respondent/defendant: Rigel Mowatt; Respondent: Coroin Limited; Defendant: Sir David Rowat Barclay; Defendant: Sir Frederick Hugh Barclay; Defendant: Maybourne Finance Limited; Defendant: The Trustees of the Sir David and Sir Frederick Barclay Family Settlements; Defendant: National Asset Loan Management Limited
Jurisdiction
England and Wales
Judgment Date
02 February 2012
Procedural Posture
Companies Court Preliminary Issue Trial / Judgment on Preliminary Issue
Outcome
Preliminary issue decided in favour of the applicant; restrictions in clauses 24.2 and 24.3 apply to the transfer to MFL.
Legal Topics
Construction of Contractual Clauses, Transfer of Loan Facilities, Statutory Interpretation, Pre Emption Rights, Novation, Jurisdiction Clauses
Company Law Contract Law Banking Law Construction of Contractual Clauses Transfer of Loan Facilities Statutory Interpretation Pre Emption Rights Novation +1 more

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Parties

Patrick McKillen

Petitioner/claimant

Misland (Cyprus) Investments Limited

Respondent/defendant

Derek Quinlan

Respondent

Ellerman Corporation Limited

Respondent/defendant

B Overseas Limited

Respondent/defendant

Richard Faber

Respondent/defendant

Michael Seal

Respondent/defendant

Rigel Mowatt

Respondent/defendant

Coroin Limited

Respondent

Sir David Rowat Barclay

Defendant

Sir Frederick Hugh Barclay

Defendant

Maybourne Finance Limited

Defendant

The Trustees of the Sir David and Sir Frederick Barclay Family Settlements

Defendant

National Asset Loan Management Limited

Defendant

Procedural Posture

Companies Court Preliminary Issue Trial / Judgment on Preliminary Issue

Legal Issues

  1. 1 Whether clause 40.3 of the Facilities Agreement disapplies restrictions in clauses 24.2 and 24.3 to the transfer of loan facilities to Maybourne Finance Limited
  2. 2 Whether the restrictions on transfer in clauses 24.2 and/or 24.3 apply to the transfer of the company's loan facility to MFL

Ratio Decidendi

Clause 40.3(b) of the Facilities Agreement does not disapply the restrictions in clauses 24.2 and 24.3 to transfers by NAMA; the restrictions and conditions on permitted transferees and consultation with the borrower remain applicable to transfers by NAMA, including the transfer to Maybourne Finance Limited.

Court Disposition

Preliminary issue decided in favour of the applicant; restrictions in clauses 24.2 and 24.3 apply to the transfer to MFL.

Orders

  • NAMA is bound by the determination of the validity of the transfer.
  • Further factual inquiry reserved for full trial.