Strand, London, WC2A 2LL
B e f o r e :
| (1) DOMINION CORPORATE TRUSTEES LIMITED
(2) DOMINION TRUST LIMITED
|- and -
|CAPMARK BANK EUROPE PLC
(formerly GMAC Commercial Mortgage Bank Europe Plc)(now known as Capmark Management plc)
Miss Raquel Agnello QC (instructed by Lawrence Graham LLP) for the Defendant
Hearing dates: 20, 21 April 2010
Crown Copyright ©
Mr Justice David Richards:
"The Trust Fund shall be constituted out of the proceeds of issues of Units in accordance with this Trust Instrument. All cash and other property for the time being held by the Trustees pursuant to this Trust Instrument (other than Income and any amounts standing to the credit of the Distribution Account) shall be held as a single common fund (the "Trust Fund") upon trust for the Holders in proportion to the number of Units held by them from time to time according to and subject to the provisions of this Trust Fund. The Trust Fund shall be applied and otherwise dealt with by the Trustees in accordance with the provisions of this Trust Instrument. …"
This defines the Trust Fund for the purposes of the Trust Instrument. Clause 2.6 provides that no provision of the Trust Instrument shall impose any liability on a unit-holder to make any further payments in respect of units after payment of the unit price, save for the recovery of revenue expenses under cls.16 or 17.
"For the purpose of securing any actual or contingent liabilities of the Trust or of a Holder in connection with its holding of Units, the Trustees shall be entitled to guarantee payments under such actual or contingent liabilities and to charge, encumber, mortgage and pledge or allow to subsist any lien in any manner over, all or any part of the Trust Fund. The Trustees shall promptly inform the Holders of any exercise by them of this power. .."
"25.8 Subject to clauses 25.6 and 25.7 but without prejudice to the right of indemnity by law given to trustees, the Trustees and their respective permitted servants, agents, delegates and sub delegates (including the Property Asset Manager and the Investment Adviser) shall be entitled to be indemnified out of the Trust Fund:
25.8.1 in respect of all liabilities and expenses properly incurred in the execution or purported execution of the trusts hereof or of any powers, authorities or discretions vested in them or any of them pursuant to this Trust Instrument; and
25.8.2 against all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in any way relating to this Trust Instrument and including any claim or demand made of the Trustees by their respective delegates in relation to any action, proceeding, costs, claims, demand or expense incurred relating to this Trust Instrument.
25.9 The Trustees may retain and pay out of any monies comprising part of the Trust Fund all sums necessary to effect such indemnity and the Trustees shall have a lien on the Trust Fund for all monies payable to them or any of them under this clause or otherwise howsoever."
The saving for cls.25.6 and 25.7, dealing with breach of duty, is not relevant.
"The Trustees shall distribute among the Holders, in proportion to the number of Units held by them respectively, the net proceeds of the realisation of the Trust Fund, after payment of or the deduction of a retention, of such amount as the Trustees (after consulting with the Auditors) deem appropriate, in respect of all costs, charges, expenses and other liabilities of any nature connected with the Trust or its termination and which are payable out of the Trust Fund, whether actual, contingent or expected by the Trustees to arise in the future, (the "Trust Liabilities", which expression includes any such costs, charges, expenses and other liabilities incurred or expected to arise after the retention pursuant to this clause shall have been made)."
"the assets and undertaking of the Chargor from time to time mortgaged, charged or assigned (or intended to be mortgaged, charged or assigned) by way of fixed and/or floating security as security for the payment or discharge of all or any part of the Secured Liabilities, and "Charged Asset" shall be construed accordingly;"
"Secured Liabilities" means:
"all present and future obligations and liabilities, whether actual or contingent and whether owed jointly or severally and whether as principal or as surety or in any other capacity whatsoever, of the Borrower and/or each Chargor and/or each other Security Provider to the Finance Parties (or any of them) under or in connection with the Finance Documents (including this Deed) .."
"Security" was defined as in the Facility Agreement, namely:
"a mortgage, charge, security assignment, pledge, lien or other encumbrance security interest securing any obligation of any person or any other agreement or arrangement having a similar effect .."
"Trust Fund" had the meaning given by cl.2.1 of the Trust Instrument.
"Each Chargor, as continuing security for the payment, performance and discharge of the Secured Liabilities and in the manner specified in Clause 2.3:
2.1.1 charges in favour of the Security Agent (as agent and trustee for itself and each of the other Finance Parties) by way of first legal mortgage all the property now belonging to it and specified in Schedule 1 and all other estates and interests in any freehold, commonhold or leasehold property now or in the future belonging to it .."
"all other assets comprised in the Trust Fund not otherwise mortgaged or charged pursuant to the foregoing provisions of this Clause 2.1 or assigned (whether at law or in equity) pursuant to Clause 2.2."
"11.1 Any monies received by the Security Agent, any Receiver or any administrator after this Deed has become enforceable shall be applied in the following order of priority (but without prejudice to the right of the Finance Parties to recover any shortfall from the Chargors):
11.1.1 in satisfaction of or provision for all costs and expenses incurred by the Security Agent, any Receiver or any administrator and of all remuneration due to any Receiver or administrator;
11.1.2 in or towards payment (in the order specified in Clause 28.5 (Partial Payments) of the Facility Agreement) of the Secured Liabilities or such part of them as is then due and payable; and
11.1.3 in payment of the surplus (if any) to the Chargors or other person entitled to it."
"Notwithstanding any other provisions of this Deed:
17.6.1 each Chargor has executed this deed solely in its capacity as trustee of and with the intention of binding the assets of the Unit Trust held by the Chargors from time to time (the "Trust Assets");
17.6.2 the aggregate of all liabilities of each Chargor under this Deed shall at all times and for all purposes extend only to the Trust Assets;
17.6.3 in no circumstances shall any liability attach to or be enforced or enforceable against the assets of the Chargors (held in their capacity as trustees of any other trust or in their personal capacity or in any other capacity whatsoever) other than the assets which comprise the Trust Assets; and
17.6.4 all representations, warranties, undertaking, obligations and covenants in this Deed are made, given, owed or agreed by or in relation to the Trust Assets and in the Chargors' capacities as trustees of the Unit Trust and, for the avoidance of doubt, shall not be construed to be made, given, owed or agreed by or in relation to the Chargors in their capacities as trustees of any other trust or in their personal capacity or in any other capacity whatsoever (other than in their capacities as trustees of the Unit Trust)."
"An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract; it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them."
"The question of implication arises when the instrument does not expressly provide for what is to happen when some event occurs. The most usual inference in such a case is that nothing is to happen. If the parties had intended something to happen, the instrument would have said so. Otherwise, the express provisions of the instrument are to continue to operate undisturbed. If the event has caused loss to one or other of the parties, the loss lies where it falls."