28 May 2024
The interim injunction granted by the arbitrator was interlocutory in substance and did not constitute an "award" within the meaning of Schedule 2 permitting an appeal on a question of law; accordingly leave to appeal under section 6 was not available and the application for leave was dismissed; costs awarded to the Main Contractor on an indemnity basis.
30 Jun 2022
The 1st Demand was invalid because, on proper construction, it included reference to future damages and losses not yet suffered and therefore the Bonded Sum as demanded did not fall within Clause 2 which permits demands only in respect of damages and losses already sustained; the judge below erred in treating the reference to future losses as surplusage and in holding the demand valid.
2 Apr 2020
The 1st Demand complied with Clause 2 of the Bond because it was written, expressed the Plaintiff's opinion that the Contractor was or had been in default, and identified the amount claimed (the bonded sum) as in respect of damages, losses etc caused by the default; references to future losses were surplusage. The Defendant failed to adduce particularly cogent evidence of fraud such that the fraud exception applied. Summary judgment for the Plaintiff for the full bonded sum with interest was therefore appropriate.
18 Jan 2001
The bond's operative wording required the surety to "satisfy and discharge any claims, actions, damages, losses, charges, costs or expenses" and therefore liability required assessment of default and damages; absence of clear, unambiguous pay-on-demand language meant the bond was a conditional (double) bond and not an on-demand bond, so summary judgment was inappropriate; the appeal was allowed and conditional leave to defend was granted subject to the whole bonded sum being paid into court within seven days.
4 Jul 2000
The Bond was construed as an on-demand performance bond based on its commercial context and express wording (including "irrevocably and unconditionally" and Clause 5) and the absence of words requiring proof of default; accordingly the defendant had no defence and summary judgment was entered for the plaintiff.
23 Mar 2000
The court held that the defendant was liable under the Bond: the plaintiff complied with the conclusive evidence clause making the bond payable on demand; the practical completion certificate related to a later contractor and did not terminate the Bond; the notice of determination was effective in context and any alleged lateness did not defeat the conclusive evidence and the on-demand liability; therefore no arguable defence existed and summary judgment was appropriate.
19 Jun 1998
The ex parte injunctions were discharged because the 1st Defendant's demand on the irrevocable on-demand bond was not shown to be fraudulent and was made honestly on Nishimatsu's representations, and because the Plaintiff materially non-disclosed a signed agreement letter in the ex parte application.