EWHC 3103 (Comm)
This is another in the line of cases deciding whether a commercial instrument is a “demand” or a “see to it” guarantee; but it also involved a careful consideration of many of the “predictable” defences raised on a claim under a guarantee, namely, variation of the underlying contract, non-disclosure of material facts, lack of signature (i.e. Statute of Frauds), and also defences of rectification and estoppel (by convention, acquiescence and representation) and a restitutionary counterclaim.
The claims were brought by the buyers of three new-build bitumen tankers under Refund Guarantees issued by Korean financial institutions in respect of three shipbuilding projects which overran and were cancelled. The defendant financial institutions advanced a whole range of defences, all of which failed.
The conclusions reached by the trial judge, Blair J, included the following:
Stephen Hofmeyr QC appeared for the Claimant.