Aventis Solutions Ltd v Credebt Exchange Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 09 October 2024
• Neutral Citation: [2024] IEHC 573
• Court: High Court
• Docket Number: [Record No: 2021/652S]

Between:

Aventis Solutions Limited

Plaintiff

and

Credebt Exchange Limited

Defendant

[2024] IEHC 573

[Record No: 2021/652S]

THE HIGH COURT

Appeal to High Court - Point of Law from a determination order of Tenancy Tribunal - Residential Tenancies Act 2004 - Duty of Landlords to carry out repairs

Facts: This was an appeal to the High Court on a point of law from a determination order of a Tenancy Tribunal on 31 March 2023. The Tribunal had been asked to determine if Tuath was in breach of its obligations under Clause 1.3 of the letting agreement or the provisions of a.12(1)(b) of the 2004 Act or any obligations arising under any enactment other than the 2004 Act. The High Court found that the Tribunal appeared to have proceeded on an assumption that repair obligation imposed by s.12(1(b) of the 2004 Act did not extend to the circumstances where disrepair to the structure of a residential unit in an apartment block was caused by a structual defects in a part of the block which was not owned by the landlord. The High Court found the Tribunal took a course of action that was not permissible as it did not have the powers other than those confered by statute,. The 2004 Act required that the Tribunal apply the law as set out in the tenancy contract and the legislation relating to the landlord's obligation to carry out repairs to the structure of units which are subject to residential letting and to determine whether statutory and contractual repairing obligations were complied with. The High Court found the appropriate order which embodies the terms of the determination of the Tribunal and to remit this matter back to to the Tribunal for rehearing and decision in accordance with law.

Matter remitted to Tribunal

JUDGMENT ofMs. Justice Siobhán Phelan, delivered on the 9 ^th day of October, 2024.

INTRODUCTION

1 . This matter comes before me on an application for security for costs pursuant to Order 29 of the Rules of the Superior Court, 1986 (as amended).

2 . The central dispute in these proceedings relates to the charging of a fee of £528,000.00 by the Defendant. This fee represents 3% of the money received by the Defendant from the UK Department of Health and Social Care on foot of the invoices traded between the parties. The Plaintiff also alleges that the Defendant incorrectly calculated the currency exchange balance in the sum of £65,610.49 and failed to apply a current exchange gain of £17,969.00 when it transferred £3,004,283.30 to the Plaintiff on or about 31 ^st of July, 2020 in settlement of the parties' affairs. These claims are denied.

3 . This application for security for costs was heard together with an application pursuant to s. 52 of the Companies Act 2014 and/or Order 29 in separate but related proceedings entitled Credebt Exchange Limited v. Aventis Solutions Limited and Harry Parkinson[2024] IEHC 572. In these separate but related proceedings, the Defendant sues the Plaintiff and a former employee of the Defendant in respect of an alleged unlawful disclosure of confidential documents by the said former employee which documents were then in turn deployed, it is claimed unlawfully, by the Plaintiff in the within proceedings.

4 . Although there is an overlap in the applicable legal principles and the same legal team acted in both applications which were heard sequentially, the differences between the cases are such that it is necessary to make separate rulings on each application, each of which are delivered contemporaneously (See Credebt Exchange Limited v. Aventis Solutions Limited and Harry Parkinson[2024] IEHC 572.)

BACKGROUND

5 . The Plaintiff is a limited liability company registered in England (company no. 07673288) with a registered address at Suite 7, The Colony Wilmslow, Altrincham Road, Wilmslow, England, SK9 4LY and is engaged in the business of medical goods supply and procurement.

6 . In May, 2020, the Plaintiff entered into an agreement with the Department of Health and Social Care in the United Kingdom (the “Department”) to supply it with 42 million facemasks for use in combatting COVID-19 (the “Supply Agreement”). The monetary sum agreed to be paid under the Supply Agreement was GDP£18 million. Also in May 2020, the Plaintiff entered into an agreement with a Chinese Supplier (the “Supplier”) to purchase 42 million facemasks to be supplied to the Department (the “Purchase Agreement”) in discharge of obligations under the Supply Agreement. To comply with the Supply and Purchase Agreements, the Plaintiff required a short-term trade finance facility.

7 . The Defendant is a private company limited by shares with a registered office in Dublin. It is a receivables exchange platform that provides sub-prime funding for businesses. The Defendant was approached by the Plaintiff for trade finance facilities permitting it to purchase medical goods (face masks) for onward supply to the Department of Health and Social Care in the UK. Following discussions, a trade finance facility was provided to the Plaintiff by the Defendant and a written agreement was executed.

8 . Under the terms of the arrangement in place, payments on foot of the supply agreement were first paid to the Defendant who, following a reconciliation whereby fees due to the Defendant were deducted, in turn made payment to the Plaintiff.

9 . By July, 2020 the parties were in dispute in relation to the deductions permitted under the arrangement and sums due to be paid out to the Plaintiff. Most notably, an issue arose as to whether a fee was payable in respect of an invoice finance facility in the sum of 3% of monies received.

10 . It is common case that a meeting was convened on or about the 29 ^th of July, 2020 during which the Plaintiff entered into an agreement in writing (hereinafter referred to as the “Purported Settlement Agreement”) which it has subsequently contended is not enforceable against it and/or did not settle the dispute between the parties.

11 . On or about the 31 ^st of July 2020, after the execution of the Purported Settlement Agreement, the Defendant transferred £3,004,283.30 to the Plaintiff in accordance with its terms. The Plaintiff maintains that this figure was wrongfully reduced by the charge of an additional fee of £528,000.00 for an invoice service facility which was not properly due under the Finance arrangement. The Plaintiff further maintains that in calculating the sum due and agreed at the meeting on the 29 ^th of July, 2020, the Defendant improperly made deductions in respect of an incorrectly calculated currency exchange balance loss in the sum of £65,610.49. The Plaintiff claims that properly a net currency exchange balance gain of approximately £17,969.00 ought to have been applied.

12 . Based on these factors the Plaintiff maintains that the Defendant continues to owe it £611,579.49 and proceedings were instituted by summary summons in December, 2021 (some fifteen months after the July, 2020 meeting) but remitted to plenary hearing following an extensive exchange of affidavit evidence in which the Defendant disputed the Plaintiff's claim and relied specifically on the terms of the agreement between the parties as reduced to writing and the Purported Settlement Agreement entered into in July, 2020. The Order (Holland J.) transferring the proceedings to plenary hearing was made on the 18 ^th of July, 2022.

13 . On the 3 ^rd of October, 2022, the Defendant requested the Plaintiff to provide security for costs on the grounds that it was not aware that the Plaintiff, whose registered office is in the UK, had any assets within the jurisdiction or within the European Union which would be sufficient to satisfy an order for costs. On the 8 ^th of November, 2022, the Plaintiff refused the request for security for costs. A Notice of Motion seeking an Order requiring the Plaintiff to provide security for costs issued in March, 2023.

NATURE OF THE CLAIM

14 . In a Statement of Claim delivered in September, 2022, following the transfer of the summary proceedings for plenary hearing, the Plaintiff pleads that in or around late May 2020, the parties entered into an agreement wherein it was agreed that the Defendant would provide the Plaintiff with a short-term trade finance facility (the “Finance Agreement”). It is pleaded (para. 6 of the Statement of Claim) that it was an express and/or implied term of the Finance Agreement, inter alia, that:

• (i) The Defendant would provide the Plaintiff with a trade finance facility of £11,200,000.00;

• (ii) The Defendant would charge the Plaintiff the following fees:

  • a) A fee of 3% of the trade finance facility of £11,200,000.00, in the sum of £336,000.00;

  • b) An arrangement fee of €96,000.00;

  • c) A membership fee of €2,000.00 per month.

• (iii) The Defendant would transfer funds directly to the Supplier;

• (iv) As the Defendant is based in Ireland, the monies sent to the Supplier would be converted from Euro into Sterling;

• (v) Any fluctuations in the exchange rate between Euro and Sterling might lead to a positive or negative balance being applied to the account of the Plaintiff;

• (vi) The Defendant would receive the payments from the Department due to the Plaintiff under the Supply Agreement;

• (vii) After deducting its fees and applying any exchange balance to the account of the Plaintiff, the Defendant will transfer the balance of the payments received from the Department to the Plaintiff.

15 . It is further pleaded (at para. 7 of the Statement of Claim) that on or about the 20 ^th of July, 2020, the Defendant falsely claimed that an additional fee of £528,000GBP (the “Additional Fee”) for a finance facility, known as an ‘ invoice finance facility’ and/or ‘customer invoice facility’, was due and owing by the Plaintiff to the Defendant pursuant to the Finance Agreement on top of the fees set out above.

16 . The Additional Fee was 3% of the money received by the Defendant from...