Ivanhoe Mines Ltd v Gardner [2019] EWHC 3142 (Comm) (22 November 2019)

Ivanhoe Mines Ltd v Gardner [2019] EWHC 3142 (Comm) (22 November 2019)

The application to set aside the order was dismissed because Mr. Gardner failed to show a good reason for not attending the hearing, despite acting promptly upon learning of the order. The court found that he deliberately made himself difficult to contact to avoid his obligations. Although he raised a weak arguable defence regarding Ivanhoe's alleged breach of its obligation to provide documentation, it did not have a real prospect of success sufficient to justify re-listing the matter. The court held that it was not fair or just to allocate further resources to re-hear the matter at the behest of a party who had sought to evade enforcement.

Citation
[2019] EWHC 3142 (Comm)
Parties
Claimant: Ivanhoe Mines Limited (formerly Ivanhoe Nickel and Platinum Limited); Defendant: Tony Ricky Gardner
Jurisdiction
England and Wales
Judgment Date
22 November 2019
Procedural Posture
Commercial Court Application to Set Aside Order / Post Judgment Application to Set Aside Order Made in Absence of Defendant
Outcome
Application to set aside order dismissed
Legal Topics
Setting Aside Orders, Tomlin Orders, Enforcement of Arbitration Awards, Service of Process, Finality of Settlements
Civil Procedure Commercial Law Contract Law Setting Aside Orders Tomlin Orders Enforcement of Arbitration Awards Service of Process Finality of Settlements

Case Brief

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Parties

Ivanhoe Mines Limited (formerly Ivanhoe Nickel and Platinum Limited)

Claimant

Tony Ricky Gardner

Defendant

Procedural Posture

Commercial Court Application to Set Aside Order / Post Judgment Application to Set Aside Order Made in Absence of Defendant

Legal Issues

  1. 1 Whether the Tomlin Application was validly served on the defendant
  2. 2 Whether the defendant acted promptly in seeking to set aside the order
  3. 3 Whether the defendant had a good reason for not attending the hearing

Ratio Decidendi

The application to set aside the order was dismissed because Mr. Gardner failed to show a good reason for not attending the hearing, despite acting promptly upon learning of the order. The court found that he deliberately made himself difficult to contact to avoid his obligations. Although he raised a weak arguable defence regarding Ivanhoe's alleged breach of its obligation to provide documentation, it did not have a real prospect of success sufficient to justify re-listing the matter. The court held that it was not fair or just to allocate further resources to re-hear the matter at the behest of a party who had sought to evade enforcement.

Court Disposition

Application to set aside order dismissed

Orders

  • Mr. Gardner's application to set aside the order of 23 November 2018 is dismissed.