LEIGHTON LLC v. MONGOLIA ENERGY CORPORATION LTD

HCCL 15/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 15 OF 2013

---------------------------

---------------------------

----------------------------------------

REASONS FOR DECISION

----------------------------------------

1.  In this action the plaintiff (“Leighton”) claims payment from the defendant (“MECL”) under a written guarantee dated 2 June 2010. It is not disputed that a demand for payment of 12,162,710,117 MNT (Mongolian Tugrik) was sent by Leighton to MECL. This was the plaintiff’s application under Order 14A for my determination by way of construction of the guarantee: the plaintiff contending that it was an on demand bond or guarantee and the defendant contending that it was a true guarantee where the guarantor’s liability was dependent upon the liability of the principal, MoEnCo LLC (“MoEnCo”), a subsidiary of MECL, such that MECL could rely upon all the defences that would be available to MoEnCo under the principal agreement. The parties were agreed that proceeding by way of an application under Order 14A was correct. If I found in favour of the plaintiff, they would be entitled to Order 14 judgment for the amount in question; and if I found in favour of the defendant then, although the action would have to proceed to a full trial, I would have made a final determination of this issue under the Order 14A application.

2.  After hearing the parties, I concluded that the guarantee in question was a traditional type of guarantee under which the liability of the guarantor was dependent on the liability of the principal.  I stated that I would give my reasons in due course.  I also granted the plaintiff leave to withdraw its Order 14 application.

3.  These are my reasons for my decision.  I have not handed down my reasons earlier because on 10 October 2013 and again on 20 December 2013, I made orders by consent staying the proceedings to enable the parties to resolve the matter by mediation.  Thereafter, I heard nothing further from the parties until 12 June 2015 when I received a letter from the solicitors for MECL requesting me to hand down reasons for my decision, which I now do.

4.  The guarantee in question, entitled “Company Guarantee” (“company guarantee”) is set out in full in Appendix I to this judgment.

5.  The authorities relevant to the proper construction of this guarantee are summarised in Appendix II to this judgment.

Leighton’s Submissions

6.  Mr Denis Brock, who appeared for the plaintiff, submitted that on its true and proper construction the company guarantee was a performance bond. He referred me to the relevant authorities on “on demand” guarantees and on the construction of contractual documents, before identifying the factual background giving rise to the company guarantee.

7.  He submitted that there was considerable commercial risk to Leighton under its agreement with MoEnCo (“the mining agreement”) and he highlighted the following factors, all known to the parties at the time of the company guarantee, which were relevant to my consideration:

(1) Under the mining agreement, Leighton was responsible for providing all resources, a significant investment, but was to be paid by MoEnCo on a monthly basis in advance;

(2) MoEnCo was a newly constituted shell company, a special purpose vehicle, constituted for the sole reason that MEC, MoEnCo’s 100% owner, could not by itself own and operate a mine in Mongolia (as it was not a Mongolian company);

(3) The work was to be carried out in a remote part of Mongolia, 1350 km from Ulaan Bataar;

(4) The mining agreement included a provision, in Clause 15, whereby MoEnCo had up to 7 years after the termination or expiration of the mining agreement to require Leighton to repay any overcharged amount on its Progress Claims; and

(5) It was a normal course within the construction industry to use performance bonds to secure contractual obligations.

8.  At §§8 to 11 of his first affidavit, Mr Paul Kimberly, the General Regional Manager of Leighton, explained how the agreement worked:

“The Mining Agreement between Leighton and MoEnCo was      executed on 2 June 2010. The Mining Agreement provides that MoEnCo is the Principal and Leighton is the Contractor for the purposes of the Agreement.  In accordance with the terms of the Mining Agreement the Claimant was obliged to provide resources comprising personnel, plant, vehicles, appliances and other equipment with the objective of performing the mining operations as referred to therein. Further, the Mining Agreement was essentially a cost reimbursable contract from the Claimant’s perspective, with its performance thereunder being measured by reference to what were referred to as “Key Performance Indicators” which were set out in Appendix 3 to the Mining Agreement …

Clause 7 of the Mining Agreement contained the payment procedure under the Contract.

Sub-Clause 7.1 provided that Leighton was required to submit an Estimated Progress Claim on the 20th day of every Monthly Period for the works to be performed in the following Monthly Period.  For example, an Estimated Progress Claim would be submitted on 20th January in relation to work to be carried out in the month of February.

Thereafter, MoEnCo was required to pay all amounts owing under the Estimated Progress Claim (for the next Monthly Period) by the last day of the current Monthly Period.  Continuing with the example that I have set out above, the Estimated Progress Claim issued on 20th January in relation to work to be carried out in the month of February was due to be paid by MEC to Leighton on 31st January.”

9.  MoEnCo was a special purpose vehicle created to comply with the requirement in Mongolian law that natural resources are exploited by Mongolians.

10.  Mr Brock also referred to §14 of the second affidavit of Mr Kimberly, where he stated:

“Pursuant to the terms of the mining agreement, Leighton was responsible for the provision of all equipment and personnel relating to the mining operations, requiring significant investment of resources in a remote location.  Leighton, as a highly experienced mining contractor, would never enter into an arrangement with another party that clearly had insufficient resources to guarantee its payment obligations without “watertight” security (that could be drawn upon immediately) being provided in consideration of Leighton entering into the arrangement …”

At §17, Mr Kimberly explained that:

“MoEnCo is a 100 per cent fully foreign invested company wholly owned and funded by MECL. It was against this background that Leighton demanded a performance bond be provided by MECL, which is listed on the stock exchange with significant assets. The security of a performance bond provided by MECL was critical before Leighton entered the mining agreement.”

11.  Leighton was seeking advance payments from MoEnCo and that mechanism broke down when MoEnCo failed to keep up with that programme and, ultimately, the contract came to an end.  As relatively recently as February 2012, Leighton was indicating to MECL the financial difficulties that Leighton was being put under by MoEnCo’s default.

12.  Mr Brock referred me specifically to §§31-32 of Kimberly’s second affidavit:

“On 2 June 2010 a meeting with the board of directors of MECL was convened at MECL’s offices in Hong Kong at which the draft mining agreement and draft Company Guarantee were tabled for discussion. Minutes of the meeting provided to Leighton.

The main terms of the mining agreement were summarised in the minutes. Specifically in relation to the company guarantee, the following was recorded on page 2 at paragraph 2 of the minutes:

“The company is also required to provide a performance to Leighton on behalf of MoEnCo – LLC.”

13.  Mr Brock submitted that it was self‑evident that the word “bond” has been omitted.  To give the sentence any sense and against the factual background, it should read:

“The company is also required to provide a performance [bond] to Leighton on behalf of MoEnCo.”

But even if, as was contended by MECL, the word omitted was not “bond”, but “guarantee” that did not take it any further because a performance bond or a performance guarantee were of the same nature.

14.  The mining agreement provision which spoke of the provision of the company guarantee stated:

“On or before the date of this agreement the principal will deliver to the contractor a company guarantee for the benefit of the contractor in the form set out in Appendix 4 from the guarantor to the guarantee to guarantee the performance of the principal and its obligations under this agreement.”

Appendix 4 was the draft of the company guarantee.

15.  Under the company guarantee, MECL:

“… guarantees to Leighton as a primary obligation the due payment and performance by the principal of all MoEnCo’s obligations and liabilities under and arising out of the mining agreement, including the principal’s compliance with all its terms and conditions according to their true intent and meaning.”

This was the important express statement that the obligation of MECL was a primary obligation and a contractual obligation to make payment on demand.

16.  The maximum aggregate liability clause stated that:

“The maximum aggregate liability of the guarantor under this guarantee shall not exceed the maximum aggregate liability that the principal would have under the mining agreement if each and every provision of the mining agreement were valid, binding and enforceable in accordance with its terms (whether or not this is the case).”

This clause indicated that this was a performance bond because it asserted the presumption that MoEnCo’s obligations exist as if each and every provision of the mining agreement were valid and binding, whether or not this is the case. This was a powerful indication that this was designed to be an independent instrument, independent of the underlying contractual arrangements.

17.  Mr Brock referred to Law of Guarantees, (6^th ed), by Andrews and Millett it was stated at §6-002:

“The most important aspect of the nature of a guarantor’s liability as a secondary liability is that it is coextensive with the liability of the principal. This means that as a general rule, the surety’s liability is no greater and no less than that of the principal, in terms of amount, time for payment and conditions under which the principal is liable.”

If this instrument were a mere guarantee, the co-extensiveness principle would be implicit within it. The fact that there was an insertion of the clause that specifically told one to ignore the underlying obligations suggests that it was not a guarantee.

18.  Another provision of the guarantee stated:

“This guarantee is in addition to any other security which the contractor may at any time hold and may be enforced without first having recourse to any such security or taking any steps or proceedings against the principal.”

In short, there is no contractual requirement for Leighton to first sue MoEnCo, before it could proceed directly against MECL because the latter’s liability was primary and not a secondary liability.

MECL’s Submissions

19.  Mr Ian Pennicott appeared together with Ms Catrina Lam on behalf of MECL. He emphasized that the court must look at the whole of the document and not just isolated parts of it and that, if there was any ambiguity then those ambiguities were invariably resolved in favour of the surety.

Factual Background

20.  He accepted that the court in interpreting a document could look at the factual matrix but he submitted that there were two strands to this. The first strand was the general relationship and the position of the parties at the time that they entered into the contract: the underlying commercial transaction involved the extraction of coal in the minefields of Mongolia. There was no dispute that Leighton would want some form of security in those circumstances, because Leighton was putting in plant and equipment and, from a commercial angle, would want some form of security. However, such a need was equally consistent with the provision of a parent company guarantee as it was with a performance bond.

21.  The other factual background was the mining agreement itself.  Clause 6 of the mining agreement provided:

“On or before the date of this Agreement, the Principal [i.e. MoEnCo] will:

(a) deposit an agreed amount of security for the procurement of the Plant, as required under this Agreement. Alternatively, the Principal may elect to provide an irrevocable and unconditional Bank Guarantee from a financial institution and in a form acceptable to the Contractor (“Capex Security”); and

(b) deliver an irrevocable bank guarantee to the Contractor or deposit a cash deposit in the amount of USD1,000,000 (One Million United States Dollars) to secure the payment of the Contractor’s Monthly Progress Payments (the “Progress Payment Security”),

(together the Capex Security and the Progress Payment Security are the “Security”)

in the amounts and in accordance with details set out in Appendix 4; and

(c) deliver to [Leighton], a company guarantee, for the benefit of the Contractor, in the form set out in Appendix 4, from the Guarantor [i.e. MECL], to guarantee the performance of Principal of its obligations under this Agreement.”    

22.  Pursuant to clause 6(a) and (b) Leighton had obtained two lots of security: the CAPEC Security in the sum of US$3 million and they also obtained Progress Payments security in the sum of another US$1 million.  Pursuant to clause 6 (c) they were entitled to a company guarantee from MECL. The requirement was not to deliver an unconditional company guarantee, or an irrevocable company guarantee, but a “company guarantee” for the benefit of Leighton.  This was the genesis of the guarantee in question.

Banking and Non-banking Cases

23.  Mr Pennicott referred to his summary of relevant authorities appearing in Appendix II.  From the 14 listed cases there, he pointed out 4 cases which did not involve a banking context, that is, they did not involve banking or insurance or financial institutions.  Those four cases were 2 cases of the Court of Appeal in England and Wales, Marubeni and IIG Capital decided in 2005 and 2008 respectively.  Then there were 2 First Instance decisions, Vossloh decided in 2010, and Carey Value decided in 2011.  He submitted that the principle to be derived from those 4 cases was that where one did not have a banking context, which was the situation here in our case, there was a strong presumption against an instrument being anything other than a true guarantee.  It was a presumption which was rebuttal and, indeed, was indeed rebutted in the IIG case.

24.  In Vossloh, Sir William Blackburne expressly cautioned against adopting the principles in banking cases in a non-banking context.  Obviously each case had to depend upon the true construction of the actual words that were used in the instruments that were under consideration. In those cases, where on demand performance bonds had been held to exist, the wording was very strong. Indeed, the instruments in Vossloh, Marubeni, and Carey Value were much more strongly worded than the company guarantee.

25.  In IIG Capital, the Court of Appeal in England and Wales determined that, although this was a non-banking instrument, nonetheless it was an on demand guarantee.  The crucial points were the express terms that the guarantor “as principal obligor and not merely as surety” unconditionally and irrevocably guarantees to the lender; and more importantly, “Guaranteed Monies” were defined as:

“… all moneys and liabilities which are now or may at any time hereafter be due, owing or payable or expressed to be due owing or payable …”

Secondly, clause 4.2 in the IIG Capital provided:

“A certificate in writing signed by a duly authorised officer or officers of the lender stating the amount … due and payable to the Guarantor under this guarantee shall, save for manifest error, be conclusive and binding on the guarantor.”

By reason of the aforesaid, the strong presumption that was accepted to exist was rebutted.

26.  In Marubeni, the sale and purchase agreement provided for a document described as a guarantee to be issued; and a letter signed by the Mongolian Finance Minister was provided which stated:

“The undersigned Ministry of Finance of Mongolia unconditionally pledges to pay you upon your simple demand all amounts payable under the agreement if not paid when the same becomes due.”

Despite the reference to “unconditional pledge” and “simple demand”, the Court of Appeal in England and Wales had no difficulty concluding that this was not an on demand bond but a guarantee.  In his judgment, with which the other members of the Court of Appeal agreed, Carnwath LJ stated:

“30. Turning to the MMOF letter, the starting-point in my view is that it is not a banking instrument, and it is not described, either on its face or in the supporting legal opinion letter, in terms appropriate to a demand bond or something having similar legal effect. The legal opinion describes it as a guarantee. The terminology is not of course conclusive. However, I agree with Cresswell J that, if MHK had wanted the additional security of a demand bond, one would have expected them to have insisted on appropriate language to describe it, in both the instrument itself, and in the legal opinion. The absence of such language, in a transaction outside the banking context, creates in my view a strong presumption against MHK’s interpretation. …

31. The question then becomes whether there are sufficient indications in the wording of the instrument to displace that presumption. Mr Howard relied on the words “unconditionally pledges” and “simple demand”. However, they are qualified by the following words, which indicate that the obligation only arises if the “amounts payable under the agreement (are) not paid when the same becomes due”. As Cresswell J said, this is wording appropriate to a secondary obligation, that is one conditional upon default by the buyer. It is true that in Esal [1985] 2 Lloyd’s Rep 546 similar wording was held insufficient to displace the ordinary effect of what was admittedly a performance bond. However, here the starting-point is different, and there is no reason for reading the words in other than their ordinary meaning.

32. That sense is reinforced by the following pledge of “the full and timely performance and observance by the buyer of all the terms and conditions of the agreement”. It was not suggested, as I understand it, that this indicates anything other than a secondary obligation. It is true that the letter also contains a primary obligation, in the form of an indemnity against cost or damage resulting from the buyer’s default. However, this does not assist MHK in this case, and there is no reason to treat this as qualifying the ordinary meaning of the earlier part of the letter.”

27.  In Vossloh, a parent company issued a guarantee in respect of a subsidiary’s obligations under a master purchase agreement whereby:

“ … the Guarantor hereby unconditionally and irrevocably as a continuing obligation and as principal debtor and not merely as surety, as a separate, continuing and primary obligation:

(c) undertakes with each Beneficiary that whenever a Guaranteed Party does not pay any of the Secured Obligations as and when the same shall be expressed to be due, the Guarantor shall forthwith on demand pay such Secured Obligations which have not been paid at the time such demand is made,

…”

Notwithstanding such strong language, the learned Judge found that this was not an on demand bond. In §36 of his judgment, Sir William Blackburne said:

“As VAG is not a bank or in any way equivalent to a bank and the 2009 Guarantee was not given in a banking or like context, the jurisprudence discussed above raises a strong presumption that the payment obligations undertaken by VAG do not constitute a demand bond. What grounds are there in the context and wording of the document for rebutting that presumption?”

He held, viewing the instrument as whole, that the presumption had not been rebutted.  This case was an example of the application of the Marubeni strong presumption principle.

28.  In Wuhan Guoyu Logistics Group Co Ltd v Emporiki Bank of Greece SA [2012] EWCA Civ 1629; [2013] BLR 74 (CA) the defendant bank provided “payment guarantee” for the buyer’s payment under a shipbuilding contract with the following wording: “…hereby IRREVOCABLY, ABSOLUTELY and UNCONDITIONALLY guarantee, as the primary obligor and not merely as the surety, the due and punctual payment by the BUYER of the 2nd instalment of the Contract Price amounting to a total sum of United States Dollars 10,312,500.00 …”.  The Court of Appeal held that this was an on demand bond.  Although this case was decided after Marubeni, IIG Capital, Vossloh and Carey Value, none of those cases were referred to, probably because this was a banking case and those cases were not. The decision in Wuhan Guoyu underscored the big divergence in England and Wales between cases involving a banking context and those that do not.  Longmore LJ in his judgment in Wuhan Guoyu stated:

“25. … The only assistance which the courts can give in practice is to say that, while everything must in the end depend on the words actually used by the parties, there is nevertheless a presumption that, if certain elements are present in the document, the document will be construed in one way or the other.

26. It is exactly this kind of assistance that the editors of Paget’s Law of Banking have endeavoured to provide. In the 11th Edition of that work these words appeared under the heading of “Contract of Suretyship v demand guarantee”:

“Where an instrument (i) relates to an under-lying transaction between the parties in different jurisdictions, (ii) is issued by a bank, (iii) contains an undertaking to pay ‘on demand’ (with or without the words ‘first’ and/or ‘written’) and (iv) does not contain clauses excluding or limiting the defences available to a guarantor, it will almost always be construed as a demand guarantee.

… ”

27. The words “will almost always be” amount to a presumption which was by then fully justified by the Court of Appeal authorities, … 

28. Paget’s presumption was in due course approved by this court in Gold Coast Ltd v Caja de Ahorros del Mediterraneo [2002] 1 Lloyd’s Rep 617 paragraph 16 …

29. The fact is that guarantees of the kind before the court in this case are almost worthless if the Bank can resist payment on the basis that the foreign buyer is disputing whether a payment is due. …”

On Demand – Trigger of Liability

29.  The words “on demand” were not definitive or conclusive as they appeared in many cases where the instrument was construed to be a traditional guarantee.

30.  The Court of Appeal in Dragages et Travaux Publics (HK) Ltd v Citystate Insurance Ltd [2001] 1 HKC 196 (CA) had to consider a performance bond issued by an insurance company to guarantee due performance by subcontractor of its obligations under a subcontract in an airport project. The terms of the bond included the following:

“The Surety hereby irrevocably and unconditionally guarantees to the Main Contractor the due performance by the Sub-Contractor of its obligations under the Sub-Contract … In the event of default by the Sub-contractor of any of its obligations under the Sub-Contract and upon demand in writing made by the Main Contractor upon the Surety, the Surety shall satisfy and discharge any claims, actions, damages, losses, charges, costs or expenses whether directly or indirectly sustained thereby by the Main Contractor up to an aggregate of the Bonded Sum.”

It was held that the wording of the bond was not clear and unambiguous enough to establish an “on demand” bond.  Reading the bond as a whole, it was clear that the amount payable had to be determined and the words “payable on demand in writing” did not take the matter further. At page 199G of the judgment, Mayo VP stated:

“The correct approach to adopt in determining whether a bond is an ‘on-demand bond’ is to ascertain whether the commitment engaged is conditioned upon the presentation of documents or upon the actual existence of facts which are referred to in the documents.”

31.  Carey Value concerned a “deed of guarantee and indemnity” issued by parent company to guarantee its subsidiaries’ obligations under a loan agreement with following wording:

“[the defendant] irrevocably and unconditionally: undertakes … to be responsible as primary obligor for any failure by an Obligor to perform, discharge, or fulfil for whatever reason any of the Guaranteed Obligations when due and promptly on demand by [the claimant]: (i) fully, punctually and specifically perform or procure to be performed the relevant Guaranteed Obligations as if it were itself a direct and primary Obligor to the [claimant] in respect of such Guaranteed Obligations and be liable as if the Transaction Documents had been entered into directly between the Guarantor and the [claimant]; (ii) pay the amount of any Guaranteed Obligation which has not been paid by the relevant Obligor and without any deduction or withholding …” (clause 2.1(c)).

Clause 20.6 provided that the claimant’s certificate as to any “amount under [the] deed” was conclusive of the matters to which it related.

The court held that the deed of guarantee and indemnity was not an on demand bond.  Any ambiguity in clause 20.6 should be resolved in favour of the defendant, with the result that the word “amount” referred to the amount advanced, not the amount due and payable.  Accordingly, the certificate under clause 20.6 was not conclusive evidence as to liability.

Primary Obligation

32.  The words “primary obligation” or “primary obligor” were not conclusive because the courts had reached the conclusion, in many cases with such words, that the document in question was not an on demand bond.  The court had to construe the instrument as a whole as the Court of Appeal did in Marubeni.  If other clauses were inconsistent with a primary obligation, then the court would conclude that the document is simply not clear enough, such that it could not construe it as an on demand bond.  JCG Finance Co Ltd v Group Life Investment Ltd & Anor, HCA 2417/2001 (27 March 2002, unreported, Deputy High Court Judge To) concerned a private company that entered into a “Security Assignment of Shares” as part of the consideration for a debt restructuring arrangement containing the following terms:

“2.1. The Assignors covenant with the Lender that they will on demand pay to the Lender … The principal sum of $80 million plus interest …;

2.2 The Assignors agree with the Lender as a primary obligation, to indemnity and keep indemnified the Lender on demand by the Lender from and against all and any losses, damages, costs and expenses incurred by the Lender arising from any failure by the Assignors to carry out, perform or meet any of the Assignors’ obligation as particularised in clause 2.1 above.”

On an Order 14 application, the court held, looking at other relevant clauses, that it was arguable that the instrument was not an on demand bond notwithstanding the reference to “primary obligation in clause 2.2.

The Guarantee in Question

33.  Under Clause 1:

“The guarantor guarantees to the contractor as a primary obligation the due payment and performance.”

Those words had to be read conjunctively: due payment and due performance by the principal.  The question was what is due.  “Due” meant something that was required to be done or required to be paid and, therefore, was much more akin to the words that one found in a guarantee.  An on demand bond did not have such phraseology.

34.  Clause 2 provided:

“If the principal fails to pay or perform its obligations and liabilities which are due and fails to comply with the mining agreement the guarantor shall on demand …”

This clause also raised the question of what is due.

35.  The third clause was the maximum aggregate liability clause:

“The maximum aggregate liability of the Guarantor under this Guarantee shall not exceed the maximum aggregate liability that the Principal would have under the Mining Agreement …”

This clause clearly reflected the coextensive principle as the clause equated the liability of MECL and MoEnCo and was indicative, therefore, of a contract of guarantee.  If the plaintiff made a demand which was in excess of the maximum aggregate liability, both the guarantor and the subsidiary could run a defence that the demand that has been made was in excess of the maximum aggregate liability, and the ability to do so was a contrary indication to the company guarantee being an on demand performance guarantee.  The clause militated against the company guarantee being an on demand bond because it would be necessary to look at the underlying transactions before MoEnCo’s liability could be determined.

36.  The fourth clause was the discharge clause:

“This Guarantee shall come into full force and effect when the Mining Agreement comes into full force and effect. This Guarantee shall continue in full force and effect until all the Principal’s obligations and liabilities under the Mining Agreement have been discharged, when this Guarantee shall expire and shall be returned to us, and the Guarantor’s liability hereunder shall be discharged absolutely.”

This was indicative of a guarantee as one needed to ascertain whether MoEnCo’s obligations and liabilities have been discharged in order to determine whether the company guarantee has been discharged.

37.  The fifth clause stated:

“This guarantee is in addition to any other security which the contractor may at any time hold and may be enforced without first having recourse to any such security or taking any steps or proceeding against the Principal.”

This clause is not a clear indication that the company guarantee created a primary obligation and was an on demand bond. The clause was commonly found in guarantees and was neutral, and did not deprive, in any way, the guarantor from any defences which would have been open to the principal.

38.  Clause 6 dealt with variations and amendments. This clause was commonly inserted in guarantees to negate the rule in Holme v. Brunskill that a material variation in the terms of the guarantee would discharge the surety.

Leighton’s Reply Submissions

39.  In his reply, Mr Brock made the following submissions.

40.  The security that had been provided under clause 6(1)(a) and 6(1)(b) were modest amounts and it was established in the evidence that they had been exhausted. 

41.  He could see that there was the presumption in Marubeni against a performance bond in the non‑banking scenario but he emphasised the reasoning of the court in IIG Capital, where in a non-banking scenario an instrument was construed to be a performance bond, as further analysed by Blair J in Carey Value at §24:

“It has also been held that the absence of language appropriate to a demand bond in a transaction outside the banking context creates a strong presumption against the interpretation of the instrument as a demand bond (see the Marubeni Hong Kong and South China case [2005] 2 All ER (Comm) 289 at [30] and the IIG Capital case [2008] 2 All ER (Comm) 1173 at [8]-[9]). Plainly, the use of words such as ‘on demand’ do not in themselves have the effect of creating a demand bond (see the IIG Capital case [2008] 1 All ER (Comm) 435 at [25]). On the other hand, the avowed purpose of the instrument (Hyundai Shipbuilding and Heavy Industries Co Ltd v Pournaras [1978] 2 Lloyd’s Rep 502 at 508) and the overall context of the contractual arrangements (the BOC Group case [1999] 1 All ER (Comm) 53 at 66) may be relevant in determining whether on-demand type liability has been created. Outside the banking context, IIG Capital is an example of a case in which, on the language in question, the presumption referred to in the Marubeni Hong Kong and South China case was rebutted.”

42.  The presumption arising from the maximum aggregate liability in that clause was that each and every underlying obligation was in full force and effect.  There was no need to prove them. There was a disconnect between the underlying obligations and the performance bond. The reference to “due payment” was no more than saying that a matter was due and owing and did not require any ascertainment or adjudication.

43.  Finally, in respect of the variation provision, Mr Brock referred me to §25 of the judgment of Tuckey LJ in Gold Coast that the presence of such a clause was not definitive of the question whether the instrument was an on demand bond or a true guarantee.  It could have been included to avoid any argument that a variation of the underlying contract would imperil recovery under the instrument in question or it could have been inserted to ensure that the rule applicable to true guarantees did not apply to this instrument.

Decision

44.  I have concluded, on my construction of the instrument in question, that the company guarantee is a traditional type of guarantee under which the liability of the guarantor is dependent on the liability of the principal.

Strong presumption in non-banking context

45.  There can be little dispute that in England and Wales, and in Hong Kong, there exists a strong presumption, where an instrument relates to an underlying transaction between parties in different jurisdictions which is issued by a bank, contains an undertaking to pay on demand, and does not contain clauses excluding or limiting the defences available to a guarantor, that such an instrument is an on demand performance guarantee.  Such a guarantee would be almost useless if the bank could resist payment on the ground that the foreign buyer was disputing whether or not a payment was due. 

46.  I also accept that there exists in Hong Kong, as there exists in England and Wales, a strong presumption that, in a non-banking context, the payment obligation undertaken by a guarantor does not constitute an on demand performance guarantee in the absence of clear and unequivocal language describing the instrument as an on demand performance bond, or an on demand performance guarantee, or some other term having similar legal effect.  It is accepted that MECL is not a bank, or an insurance or financial institution, but the parent company of MoEnCo.

Factual Background

47.  My review of the factual background does not lead me to conclude that the strong presumption that exists in this case has been rebutted.  It was not in dispute that Leighton would need some form of security before it would commit its resources to performing the mining agreement in Mongolia.  Such need was equally consistent with the provision of a guarantee from the parent company of MoEnCo, which is an substantial concern publicly listed in Hong Kong, as it was with the provision of an on demand performance guarantee. 

48.  Notwithstanding that the amounts provided as security under clause 6(1)(a) and 6(1)(b) of the mining agreement were modest when compared with the liability of MECL under the company guarantee, the security that was required to be provided under sub-clauses (a) and (b) was described to be “an irrevocable and unconditional bank guarantee” and “an irrevocable bank guarantee … or a cash deposit”.  Sub-clause (c), however, only spoke of the provision of “a company guarantee” in the form set out in Appendix 4 of the mining agreement which was subsequently executed as the company guarantee.

49.  Mr Brock made a strong point that the minutes of the meeting of 2 June 2010 stipulated that MECL was also required to provide a performance bond or a performance guarantee to Leighton on behalf of MoEnCo.  However, those words do not appear on the company guarantee and, whatever might have been the intention of the parties, absent such language in the company guarantee, the minutes of meeting is insufficient, by itself, to rebut the strong presumption that arises in this case, particularly given the contrary indication that is to be found from a comparison of clauses 6(1)(a) and (b) with 6(1)(c) of the Mining Agreement.   

Primary Obligation

50.  If the obligation is expressed in an instrument to be a primary obligation, then such a provision may go some way to rebutting the strong presumption, which exists in a non-banking context, that the instrument is a guarantee and not an on demand performance guarantee.  This is because in a contract of guarantee, the surety assumes a secondary liability to answer for the debtor who remains primarily liable; whereas in a contract of indemnity the surety assumes a primary liability, either alone or jointly with the principle debtor:  Chitty on Contracts (31^st ed) Volume 2, p.1639, at §44-008.  On demand performance bonds or performance guarantees are, in essence, exceptionally stringent contracts of indemnity: Chitty on Contracts (31^st ed) Volume 2, p.1694, at §44-009.  

51.  Mr Pennicott made a strong submission that the words in clause 2 of the company guarantee “if the Principal fails to so pay or perform its obligations and liabilities which are due and fails to comply with the Mining Agreement, the Guarantor shall on demand …”, supports the construction that proof of breach by the principal was required, notwithstanding that the obligation of MECL was described as “primary obligation”.

52.  Similar wording appeared in Esal (Commodities) Ltd v Oriental Credit Ltd [1985] 2 Lloyd’s Rep. 546 where the instrument, issued by a bank and described as a “performance bond” contained a clause stating that “we undertake to pay the said amount on your written demand in the event that the supplier fails to execute the contract in perfect performance”.  The court did not accept the literal meaning of this clause, as to do so would be inconsistent with the commercial purpose of the performance bond issued by the bank to enable the beneficiary to obtain prompt and certain payment, in a context in which the bank was “not concerned in the least” with the relations between the supplier and the customer: per Ackner LJ at p.549.   

53.  In Marubeni, the Court of Appeal held, distinguishing Esal (Commodities) Ltd v Oriental Credit Ltd, that, in a non-banking context, the words “amounts payable under the agreement (are) not paid when the same becomes due” in the instrument in question, was appropriate to a secondary obligation that was conditional upon default by the buyer, notwithstanding that the instrument contained the words “unconditionally pledges to pay to you upon your simple demand”.

54.  As has been pointed out by the editors of Paget’s Law of Banking (11^th Ed), as quoted by Longmore LJ in Wuhan Guoyu at p.79, §26:

“In construing guarantees it must be remembered that a demand guarantee can hardly avoid making reference to the obligation for whose performance the guarantee is security. A bare promise to pay on demand without any reference to the principal’s obligation would leave the principal even more exposed in the event of a fraudulent demand because there would be room for argument as to which obligations were being secured.”

55.  In the present non-banking context, the words “primary obligation” are not, on my construction of this instrument, sufficient to displace the strong presumption that applies in the present case. Notwithstanding that an on demand performance guarantee is an exceptionally stringent contract of indemnity under which the guarantor undertakes a primary obligation, I accept and adopt the observations of Blair J in Carey Value,at p.148, §22, that, in a non-banking context: “… the difference between secondary liability and primary liability is not in itself decisive… In any case, the language of primary and secondary liability is routinely found in the same contracts, and is not in itself a guide to the content of the liability.”

On Demand - Trigger of Liability

56.  The words “on demand” appear very often in traditional contract of guarantee and do not assist Leighton to rebut the strong presumption that arises in this case.  In my judgment, if the trigger of liability is connected to the breach of the underlying contractual obligations of the principal, then the instrument is likely to be construed to be a traditional guarantee.  However, if the trigger of liability is simply the demand and some other easily ascertainable objective fact which does not require investigation or adjudication by the court, then the instrument is more likely to be construed to be an on demand performance guarantee. 

57.  Mr Brock urged me to apply the reasoning of the court in IIG Capital as further analysed in Carey Value. However, in IIG Capital,the instrument, in addition to containing a provision making the guarantor a primary obligor who unconditionally and irrevocably guaranteed due and punctual payment of the guaranteed money and agreed immediately upon demand unconditionally to pay the lender the guaranteed money, also contained a conclusive evidence clause in that the “guaranteed money” was defined as including money and liability due owing payable or “expressed to be due, owing or payable” and, under clause 4.2, a certificate in writing signed by a duly authorized officer, stating the amount due and payable “shall, save for manifest error, be conclusive and binding on the Guarantor”. The Court of Appeal rightly concluded that this conclusive evidence clause put the matter beyond doubt.  A similar reliance on a conclusive evidence clause in Carey Value did not succeed because the court there held that the clause in question contained an ambiguity and was not a conclusive evidence clause as to liability.  Accordingly, the strong presumption that applied in the non-banking context of that case was not rebutted.  No conclusive evidence clause appears in the company guarantee, the subject of this action.

The Clauses of the Company Guarantee

58.  My review of the other clauses referred to does not make me conclude that the strong presumption that exists in this case has been rebutted.  The maximum aggregate liability clause does not assist me one way or the other.  Whilst the equation of the liability of MECL with the liability of MoEnCo conformed to the co-extensive principle, the words in parenthesis at the end of the clause, that MECL was liable under the company guarantee, as if each and every provision of the mining argument was valid binding and enforceable, whether or not such was the case, did not conform with the coextensive principle. 

59.  The fourth clause supported the presumption that applied in this case, because it stipulated that the MECL would be discharged from liability and the guarantee when MoEnCo’s obligations and liabilities under the mining agreement had been discharged.

60.  The fifth clause, that the guarantee was additional to any other security and may be enforced without first having recourse to such other security, was neutral to the construction of the instrument as either an on demand performance guarantee or a traditional guarantee.

61.  Finally, I accept the submissions of Mr Brock that the variations and amendments clause contained in clause 6 of the company guarantee was not definitive of the question for the reason, as explained by Tuckey LJ in Gold Coast, that it could have been included to avoid any argument, whether or not the document in question was an on demand performance guarantee or a traditional guarantee.

Costs

62.  After finding in favour of MECL on the Order 14A application, I had indicated that I was minded to make an order that the costs of the application be costs in the cause.  However, after hearing further argument, I decided to reserve costs and I directed the parties to exchange short written submissions on costs. 

63.  My decision to reserve costs was in respect to all applications before me, not simply the Order 14 application which I had granted leave to Leighton to withdraw.  Unfortunately, my order, which was subsequently in engrossed and sealed on 16 July 2013, contained an error in that it stated that the plaintiff had leave to withdraw its summons filed on 15 April 2013 with costs to be in the cause.  I hereby correct the error that is contained in my sealed order pursuant to the slip rule and under the inherent jurisdiction of the court by replacing §§2 and 3 of my order with the following 3 paragraphs:

“2. Leave be granted to the plaintiff to withdraw its summons filed on 15 April 2013.

3. Costs of the applications under Order 14, 14A and 29 be reserved.

4. Parties to exchange short written submissions on costs of no more than 2 pages, with a short chronology.”

Written Submissions on Costs

64.  Instead of short and concise submissions on costs not exceeding 2 pages I received an 11-page submission from MECL, a 10-page submission from Leighton and a 7-page reply submission from MECL.  I am tempted to impose sanctions for breach of my order, but, given the matters raised in these written submissions, I decline to do so.

65.  Although it is now increasingly common for the court to adopt an issue-based approach in considering costs of the action after trial, I decline to accede to the submission of MECL that the fair and appropriate order for costs is for Leighton to pay MECL’s costs of and incidental to the Order 14A application in any event, such costs to be taxed if not agreed.  I order that the costs of the Order 14A application be in the cause.  I decline to award a certificate for 2 counsel on the Order 14A application.

66.  However, I am persuaded that the original Order 14 application and application for interim payment under Order 29, should never have been brought, given the substantive defences raised.  Leighton knew or ought to have known that its claims were seriously disputed.  11 of the 13 hearing bundles before me related to the Order 14/Order 29 application. It was only when Leighton’s written submission was served, 5 days before the hearing, that the parties and the court became aware that the only application being pursued was the application under Order 14A.  In these circumstances, it is only right that Leighton pays the costs of the Order 14 and Order 29 application to MECL. 

67.  I am asked to make an order that those costs be paid forthwith, to be taxed on an indemnity basis, with a certificate for 2 counsel.  I decline to do so for the reason that I am not familiar with the matters raised on the Order 14 and Order 29 applications, and I am unable to assess the merits of the parties’ respective cases on the matters in dispute.  I am not saying that MECL ought not to be granted an order for costs to be taxed on an indemnity basis, with a certificate for 2 counsel.  I would wish to reserve that decision to the trial judge who would be in a better position to gauge whether or not Leighton’s conduct in bringing the Order 14 and Order 29 applications was so unreasonable that it ought to be ordered to pay costs on an indemnity basis.  Further, the trial judge would be better able to assess whether the complexity of the matters raised justify a certificate for 2 counsel.  For these reasons, I make an order that Leighton pays the costs of the Order 14 and the Order 29 applications to MECL in any event; and I reserve to the trial judge the decision of whether or not such costs ought to be taxed on a party and party basis or on an indemnity basis, and whether or not a certificate for 2 counsel ought to be awarded.

Appendix I

COMPANY GUARANTEE

THIS GUARANTEE (the “Guarantee”) is entered into on the 2nd of June 2010.

By:     

Mongolia Energy Corporation Limited, a company incorporated in and in accordance with the laws of Bermuda of Clarendon House, Church Street, Hamilton HM 11, Bermuda with company number 15584 (the “Guarantor”);

IN FAVOUR OF:

Leighton LLC, a company incorporated in and in accordance with the laws of Mongolia, having its registered office at Monnis Tower, 9th Floor, 1st Khoroo, Chinggis Avenue, Sukhbaatar District, Ulaanbaatar, Mongolia, (the “Contractor”)

WHEREAS

(A) The Guarantor indirectly holds the entire ownership of MoEnCo LLC, a company incorporated and duly registered under the laws of Mongolia having its office at Central Tower, 11th Floor, 2 Sukhbaatar Square, Sukhbaatar District - 8 Ulaanbaatar 210620 Mongolia, (the “Principal”).

(B) By a contract dated June 2, 2010 (the “Mining Agreement”) made with the Principal and the Contractor, the Principal has agreed to procure the provision of a guarantee in the terms hereof.

(C) At the request of the Contractor, the Guarantor has agreed to guarantee the performance of the Mining Agreement by the Principal as set out herein.

IT IS HEREBY AGREED as follows:

In consideration of the Contractor entering into the Mining Agreement with the Principal, and accepting this Guarantee pursuant to the Mining Agreement, the Guarantor guarantees to the Contractor, as a primary obligation, the due payment and performance by the Principal of all the Principal’s obligations and liabilities under and arising out of the Mining Agreement, including the Principal’s compliance with all its terms and conditions according to their true intent and meaning.

If the Principal fails to so pay or perform its obligations and liabilities which are due and fails to comply with the Mining Agreement, the Guarantor shall on demand of the Contractor pay and/or procure performance of the obligation which arise from any such failure for which the Principal is liable to the Contractor under the Mining Agreement.

The maximum aggregate liability of the Guarantor under this Guarantee shall not exceed the maximum aggregate liability that the Principal would have under the Mining Agreement if each and every provision of the Mining Agreement were valid, binding and enforceable in accordance with its terms (whether or not such is the case). 

This Guarantee shall come into full force and effect when the Mining Agreement comes into full force and effect.  This Guarantee shall continue in full force and effect until all the Principal’s obligations and liabilities under the Mining Agreement have been discharged, when this Guarantee shall expire and shall be returned to us, and the Guarantor’s liability hereunder shall be discharged absolutely.

This Guarantee is in addition to any other security which the Contractor may at any time hold and may be enforced without first having recourse to any such security or taking any steps or proceedings against the Principal.

This Guarantee shall apply and be supplemental to the Mining Agreement as amended or varied by the Principal and the Contractor from time to time.  We hereby authorize the Principal and the Contractor to agree any such amendment or variation, the due performance of which and compliance with which by the Principal are likewise guaranteed hereunder.  The Guarantor’s obligations and liabilities under this Guarantee shall remain in full force and effect and will not be discharged by any allowance of time or other indulgence whatsoever by the Contractor to the Principal, or by any variation or suspension of the works and services to be executed or provided under the Mining Agreement, or by any amendments to the Mining Agreement or to the constitution of the Principal or the Contractor, or by any other matters, including but not limited to, any breach of the Mining Agreement by the Principal or any termination of the Mining Agreement, whether with or without the Guarantor’s knowledge or consent.

Appendix II

Cases involving instruments found to be On Demand Performance Bonds

1. Edward Owen Engineering Ltd v Barclays Bank International Ltd [1978] QB 159 at 166G (string of performance guarantees for 10% of contract price to build greenhouses in Libya – English suppliers guaranteed Barclays Bank, Barclays Bank guaranteed Umma Bank in Libya and Umma Bank guaranteed Libyan buyers): “Please confirm that you will pay total or part of the said guarantee on first of our demand without any conditions or proof … ”;  “We confirm our guarantee … payable on demand without proof or conditions [emphasis added]”

2. IE Contractors Ltd v. Lloyds Bank Plc and Rafidain Bank [1990] 51 BLR 1 (cited in Dragages at 204F : “ … we undertake to pay you, unconditionally, the said amount on demand, being your claim for damages … [emphasis added]”

3. Cargill International SA v Bangladesh Sugar & Food Industries Corp [1998] 1 WLR 461 (CA) (performance bond provided by a bank on behalf of the seller covering 10% of total c&f value as part of a contract for the sale and delivery of sugar):

“… we unconditionally and absolutely bind ourselves: I) To make payment of USD526,273.15 … to the corporation [the defendants] or as directed by [the defendants] in writing without any question whatsoever … The Guarantee is unconditional and it is expressly understood that the sole judge for deciding whether the suppliers have performed the contract and fulfilled the terms and conditions of the contract will be the [defendant] ...”

4. Airport Authority Hong Kong v American Home Assurance Company, HCA 17807/1999 (2 February 2000, unreported) (10% performance bond issued by Home Assurance to guarantee due performance by a subcontractor of its subcontract works at Chek Lap Kok Airport):

“If the Sub-Contractor shall be in default in respect of any of his obligations under the Sub-Contract the Bondsman shall upon demand by the Employer in writing and without proof of the said default or conditions satisfy and discharge the amount identified in the demand of any damages, losses, charges, costs or expenses sustained by the Employer by reason of the default up to the amount of the Bonded Sum [emphasis added].”

5. Gold Coast Ltd v Caja de Ahorros del Mediterraneo & Ors [2001] EWCA Civ 1806 (CA) (refund guarantee issued by defendant banks to ship buyer):

“… we do hereby irrevocably and unconditionally undertake (except as provided below) that we will pay to you within five (5) days of your first written demand US$ … … … together with interest thereon at the rate of two per cent (2%), per annum over LIBOR from the date of your payment of the instalment to the date of our payment to you of amounts due to you under this Guarantee if and when the instalment becomes refundable from the Builder under and pursuant to the terms and conditions of the Shipbuilding Contract.”;  “This Guarantee is subject to the following conditions … We shall pay any amount payable under this Guarantee upon receipt of a certificate issued by LLOYDS BANK PLC stating the amount of the Instalment paid to the Builder under the Agreements, the date of such payment that you have become entitled to a refund pursuant to the Agreements and that the Builder has not made such refund  [emphasis added].”

6. IIG Capital LLC v Van Der Merwe [2008] 2 All ER (Comm) 1173 (CA) at §8- §10 (documents described as “deeds of guarantee” issued by directors in favour of company):

“ … the Guarantor as principal obligor and not merely as surety unconditionally and irrevocably guarantees to the Lender the due and punctual payment of the Guaranteed Moneys and agrees that, if at any time or from time to time any of the Guaranteed Moneys are not paid in full on their due date … it will immediately upon demand unconditionally pay to the Lender the Guaranteed Moneys which have not been so paid [emphasis added].” (CI 2.1)

“As an original and independent obligation under this Deed, the Guarantor shall … indemnify the Lender and keep the Lender indemnified against any loss … incurred by the Lender as a result of a failure by the Borrower to make due and punctual payment of any of the Guaranteed Monies… ” (CI 2.2.1)

“Guaranteed Monies” were defined as: “(i) all moneys and liabilities … which are now or may at any time hereafter be due, owing, payable, or expressed to be due, owing or payable, to the Lender from or by the Borrower…  [emphasis added]”

CI 4.2:  “A certificate in writing signed by a duly authorised officer or officers of the Lender stating the amount … due and payable by the Guarantor under this Guarantee shall, save for manifest error, be conclusive and binding on the Guarantor for the purposes hereof  [emphasis added].”

7. Wuhan Guoyu Logistics Group Co Ltd v Emporiki Bank of Greece SA [2012] EWCA Civ 1629; [2013] BLR 74 (CA) (defendant bank provided “payment guarantee” for buyer’s payment under shipbuilding contract): “…hereby IRREVOCABLY, ABSOLUTELY and UNCONDITIONALLY guarantee, as the primary obligor and not merely as the surety, the due and punctual payment by the BUYER of the 2nd instalment of the Contract Price amounting to a total sum of United States Dollars 10,312,500.00 …”

Cases involving instruments found to be Contracts of Guarantee

8. Tins’ Industrial Co Ltd v Kono Insurance Ltd [1988] 2 HKLR 36 (CA) (performance bond issued jointly by contractor and insurance co as surety for building contract – Held: a double or conditional bond requiring proof of breach by contractor and damages):

“Now the condition of the above written bond is such that if the contractor shall duly perform and observe all the terms, provisions, conditions and stipulations of the said contract on the contractor’s part to be performed and observed according to the true purport, intent and a meaning thereof, or if on default by the contractor the surety shall satisfy and discharge the damages sustained by the employer thereby up to the amount to the above written bond, then this obligation should be null and void, but otherwise shall be and remain in full force and effect.”

9. Trafalgar House Ltd v General Surety Co [1996] 1 AC 199 (joint bond given by subcontractor and surety company):

“ … if the Subcontractor shall duly perform and observe all the terms provisions conditions and stipulations of the said Subcontract on the Subcontractor’s part to be performed and observed according to the true purport intent and meaning thereof or if on default by the Subcontractor the Surety shall satisfy and discharge the damages sustained by the Main Contractor thereby up to the amount of the above written Bond then this obligation shall be null and void but otherwise shall be and remain in full force and effect …”

10. Dragages et Travaux Publics (HK) Ltd v Citystate Insurance Ltd [2001] 1 HKC 196 (CA) at 199A-B (performance bond issued by insurance co to guarantee due performance by subcontractor of its obligations under a subcontract in an airport project):

“The Surety hereby irrevocably and unconditionally guarantees to the Main Contractor the due performance by the Sub-Contractor of its obligations under the Sub-Contract … In the event of default by the Sub-contractor of any of its obligations under the Sub-Contract and upon demand in writing made by the Main Contractor upon the Surety, the Surety shall satisfy and discharge any claims, actions, damages, losses, charges, costs or expenses whether directly or indirectly sustained thereby by the Main Contractor up to an aggregate of the Bonded Sum.”

Held: Wording of the bond was not clear and unambiguous enough to establish an “on demand” bond.  Reading the bond as a whole, it was clear that the amount payable had to be determined and the words “payable on demand in writing” did not take the matters further.

11. JCG Finance Co Ltd v Group Life Investment Ltd & Anor, HCA 2417/2001 (27 March 2002, unreported, Deputy High Court Judge To) at §15 (private company entered into a “Security Assignment of Shares” as part of the consideration for a debt restructuring arrangement):

“2.1. The Assignors covenant with the Lender that they will on demand pay to the Lender … The principal sum of $80 million plus interest …”;  “2.2 The Assignors agree with the Lender as a primary obligation, to indemnity and keep indemnified the Lender on demand by the Lender from and against all and any losses, damages, costs and expenses incurred by the Lender arising from any failure by the Assignors to carry out, perform or meet any of the Assignors’ obligation as particularised in clause 2.1 above … [emphasis added]”

12. Marubeni Hong Kong Ltd v Mongolian Government [2005] 1 WLR 2497 (sale and purchase agreement provided for document described as a “guarantee” to be issued; letter signed by Mongolian finance minister was provided): “ … the undersigned Ministry of Finance of Mongolia unconditionally pledges to pay to you upon your simple demand all amounts payable under the Agreement if not paid when the same becomes due (whether at stated maturity, by acceleration or otherwise) and further pledges the full and timely performance and observance by the Buyer of all the terms and conditions of the Agreement … [emphasis added]”

13. Vessloh Aktiengesellschaft v Alpha Trains (UK) Ltd [2010] EWHC 2443 (Ch) at §35 (parent company issued a guarantee in respect of subsidiary’s obligations under a master purchase agreement):

“ … the Guarantor hereby unconditionally and irrevocably as a continuing obligation and as principal debtor and not merely as surety, as a separate, continuing and primary obligation :

(c) undertakes with each Beneficiary that whenever a Guaranteed Party does not pay any of the Secured Obligations as and when the same shall be expressed to be due, the Guarantor shall forthwith on demand pay such Secured Obligations which have not been paid at the time such demand is made,

(d) as a separate and independent stipulation, agrees that if any purported obligation or liability of the Guaranteed Party which would have been the subject of this Guarantee had it been valid and enforceable is not or ceases to be valid or enforceable against a Guaranteed Party on any ground whatsoever whether or not known to any Beneficiary, the Guarantor shall nevertheless be liable to the relevant Beneficiary in respect of that purported obligation or liability as if the same were fully valid and enforceable and the Guarantor was the principal debtor in respect thereof and shall be paid or caused to be paid by the Guarantor under this Guarantee upon demand; and

(e) as principal obligor and as a separate and independent obligation and liability, indemnifies each Beneficiary against any losses suffered by it from time to time in connection with or as a direct or indirect result of the failure of a Guaranteed Party to duly and punctually perform its terms, representations and warranties, conditions, covenants and obligations contained in the Relevant Documents to which it is a party or failure to duly and punctually pay the Secured Obligations or as a result of the whole or any part of the Relevant Documents being or becoming void, voidable, unenforceable or ineffective as against that Beneficiary for any reason whatsoever, irrespective of whether such reason or any related fact or circumstance was known or ought to have been known to that Beneficiary …”           

14. Carey Value Added SL v Grupo Urvasco SA [2011] 2 All ER (Comm) 140 (“deed of guarantee and indemnity” issued by parent company to guarantee its subsidiaries’ obligations under a loan agreement):

“[thedefendant] irrevocably and unconditionally: undertakes … to be responsible as primary obligor for any failure by an Obligor to perform, discharge, or fulfil for whatever reason any of the Guaranteed Obligations when due and promptly on demand by [the claimant]: (i) fully, punctually and specifically perform or procure to be performed the relevant Guaranteed Obligations as if it were itself a direct and primary Obligor to the [claimant] in respect of such Guaranteed Obligations and be liable as if the Transaction Documents had been entered into directly between the Guarantor and the [claimant]; (ii) pay the amount of any Guaranteed Obligation which has not been paid by the relevant Obligor and without any deduction or withholding …” (cl 2.1(c)).

NB Cl 20.6 provided that the claimant’s certificate as to any “amount under [the] deed” was conclusive of the matters to which it related.

Held: The deed of guarantee and indemnity was not a demand bond.  Any ambiguity in cl 20.6 should be resolved in favour of the defendant, with the result that the word “amount” referred to the amount advanced, not the amount due and payable.  A certificate under cl 20.6 was not conclusive evidence as to liability.