IIG Capital LLC v Van Der Merwe & Anor

IIG Capital LLC v Van Der Merwe & Anor

The deeds of guarantee, by their clear and unambiguous language, imposed a primary obligation on the Van Der Merwes to pay the amount certified by IIG upon demand, as principal obligors and not merely as sureties. The conclusive evidence clause was binding except for manifest error, and no such error was established. The Van Der Merwes could not rely on defences available to HPIE.

Parties
Respondent: IIG Capital Llc; Appellant: Van Der Merwe & Anr
Jurisdiction
England and Wales
Judgment Date
22 May 2008
Procedural Posture
Civil Appeal / Appeal From Summary Judgment
Outcome
Appeal dismissed
Legal Topics
Guarantees, Conclusive Evidence Clauses, Primary Vs Secondary Liability, Summary Judgment
Contract Law Banking and Finance Guarantees Conclusive Evidence Clauses Primary Vs Secondary Liability Summary Judgment

Case Brief

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Parties

IIG Capital Llc

Respondent

Van Der Merwe & Anr

Appellant

Procedural Posture

Civil Appeal / Appeal From Summary Judgment

Legal Issues

  1. 1 Whether the deeds of guarantee executed by the Van Der Merwes created a primary or secondary liability
  2. 2 Whether the conclusive evidence clause in the guarantee required payment by the guarantors upon certification by the lender
  3. 3 Whether the Van Der Merwes could rely on defences available to the primary obligor (HPIE)

Ratio Decidendi

The deeds of guarantee, by their clear and unambiguous language, imposed a primary obligation on the Van Der Merwes to pay the amount certified by IIG upon demand, as principal obligors and not merely as sureties. The conclusive evidence clause was binding except for manifest error, and no such error was established. The Van Der Merwes could not rely on defences available to HPIE.

Court Disposition

Appeal dismissed

Orders

  • Summary judgment for IIG Capital Llc in the certified amount stands
  • No leave to defend granted to the Van Der Merwes