Sumitomo Mitsui Banking Corporation Europe Ltd v Euler Hermes Europe SA (Nv)

Sumitomo Mitsui Banking Corporation Europe Ltd v Euler Hermes Europe SA (Nv)

There was no effective assignment of the Performance Bond to SMBCE due to non-compliance with the bond's assignment condition and the non-waiver clause. However, the demand on the Performance Bond was valid as it was made by SMBCE as attorney for RRS. The assignment of the Retention Bond was effective, and the demand made by SMBCE as assignee (or as attorney for RRS) was valid.

Parties
Claimant: Sumitomo Mitsui Banking Corporation Europe Limited; Defendant: Euler Hermes Europe SA (NV)
Jurisdiction
England and Wales
Judgment Date
15 August 2019
Procedural Posture
Commercial Claim (part 8) / Judgment After Expedited Hearing
Outcome
Declarations granted in favour of SMBCE; no order for payment under Performance Bond, but declaration of valid demand; declaration of valid demand under Retention Bond.
Legal Topics
Performance Bonds, Assignment of Contractual Rights, Validity of Demands Under Bonds, Power of Attorney, Waiver and Non Waiver Clauses
Banking and Finance Law Construction Law Contract Law Performance Bonds Assignment of Contractual Rights Validity of Demands Under Bonds Power of Attorney Waiver and Non Waiver Clauses

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 4 Authorities cited 10 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Sumitomo Mitsui Banking Corporation Europe Limited

Claimant

Euler Hermes Europe SA (NV)

Defendant

Procedural Posture

Commercial Claim (part 8) / Judgment After Expedited Hearing

Legal Issues

  1. 1 Whether there was an effective assignment of the Performance Bond and Retention Bond to SMBCE
  2. 2 Whether the demands made under the bonds were valid and enforceable
  3. 3 Whether the requirements for signature and notification under the bonds were met

Ratio Decidendi

There was no effective assignment of the Performance Bond to SMBCE due to non-compliance with the bond's assignment condition and the non-waiver clause. However, the demand on the Performance Bond was valid as it was made by SMBCE as attorney for RRS. The assignment of the Retention Bond was effective, and the demand made by SMBCE as assignee (or as attorney for RRS) was valid.

Court Disposition

Declarations granted in favour of SMBCE; no order for payment under Performance Bond, but declaration of valid demand; declaration of valid demand under Retention Bond.

Orders

  • Declaration that the demand on the Performance Bond by RRS through SMBCE as attorney was a valid demand.
  • Declaration that the notice of demand on the Retention Bond by SMBCE as assignee was a valid demand.