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England and Wales High Court (Commercial Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> CNH Financial Services SAS v Krecent Traders Ltd & Anor [2010] EWHC 2429 (Comm) (04 October 2010) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2010/2429.html Cite as: [2010] EWHC 2429 (Comm) |
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QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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CNH FINANCIAL SERVICES SAS |
Claimant |
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- and - |
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KRECENT TRADERS LIMITED |
Defendant |
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- and - |
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CNH U.K. LIMITED |
Third Party |
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MR AIDAN CASEY (instructed by MONROE FISHER WASBROUGH LLP) for the Defendant
Hearing dates: 28 SEPTEMBER 2010
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Crown Copyright ©
MR JUSTICE DAVID STEEL :
a) The RPA clearly made provision for the transfer of all receivables to CNH.
b) The underlying policy was explained to KKT in a letter dated 23 February 2007 whereby it was announced that effective from 27 March (the day following the date of the RPA) payments by KKT under the Dealer Agreement (DA) between CNH UK and KKT dated 31 January 2007, were to be made to CNHF so as to comply with a CNH group initiative to transfer receivables to CNHF.
c) The Master Stocking Agreement (MSA) between CNHF and KKT dated 30 March 2007 offered finance to KKT in regard to sums both due under conditional sale contracts assigned to CNHF or otherwise.
d) Thereafter, KKT recognised CNHF's entitlement to payment in reimbursement of CNH UK's invoices and the parties conducted their dealings on that basis.
In short, I regard the prospects of challenging CNHF's existing title to sue as remote. That said, I propose to consider the merit of the counterclaims on the assumption that they are potentially valid as against both CNHF and CNH UK.
"14. After a lengthy exchange at the said meeting it appeared progress was not being made and the meeting was adjourned. Messrs Twomey and O'Sullivan went into the bar area of the airport to discuss matters, and they were joined by Steven Orr and Kevin Purcell. The commercial issues that were proving to be 'sticking points' were discussed, including (a) some compensation to the defendant for its losses to date caused by (what the defendant contended to be) the 'discriminatory pricing' and (b) how pricing issues could be resolved going forward so that the defendant was not placed at a disadvantage vis-à-vis competitors.
15. After some discussion, Messrs Orr and Purcell on behalf of the claimant and/or CNH offered as follows:
(a) to increase the amount of 'compensation' for past losses to €650,000 (which would be afforded by reduction of the balance allegedly outstanding on the defendant's account with the claimant);
(b) that the defendant would be entitled to be afforded HOD on each machine purchased by it so as to reduce the effective or ultimate price paid or payable by the defendant (after such HOD) to a level equal with the lowest price (after HOD and any other allowances and discounts) charged to any of the defendant's competitors in the UK and the ROI ("the HOD term");
(c) So far as clause 3 of the DOS and the schedule there referred to provided for prices to be charged upon future purchases, Messrs Orr and Purcell agreed (in the course of this discussion) that these would not be the ultimate prices, but rather they were the prices prior to the operation of the HOD term.
16. Messrs Twomey and O'Sullivan agreed to that, and in reliance upon such agreement signed the DOS (which was amended from the draft that had been discussed earlier at the meeting)."
a) It recites that disputes had arisen between the parties in respect of which the agreement was in full and final settlement;
b) It records that the only matter excluded from the settlement were disputes relating to warranties and spare parts;
c) The parties expressly agreed that it constituted the sole agreement in regard to the disputes that had arisen;
a) for KKT to pay an additional sum in respect of part of its existing stock in support of an extended warranty;
b) for the sale by CNH UK of specified new stock at a price of €687,250, shipment to be effected upon receipt of funds;
c) upon receipt of those funds to complete that purchase, for KKT in addition to receive credit against a different part of the existing stock at the original invoice price, provided such stock be returned to at KKT's expense in good condition;
d) for KKT to receive further "retail support" for existing stock so as to match prices under the DOS in the sum of €79,179.01.
a) that CNH inspect the stock at KKT's premises and the right to reject would be lost upon delivery to Zeebrugge or Basildon.
b) that the new stock be delivered before payment (or only on basis of delivery of a banker's draft to the solicitors to be held in escrow).
c) that CNH UK should pay for transport of the new stock "Cork FOB Zeebrugge" (sic).
In the light of that letter it is perhaps not entirely surprising that by an email dated 17 December CNH UK purported to treat the SRA as terminated by way of acceptance of KKT's repudiatory breach.