Alpamys Tatishev v Zimmerz Management LP
| Jurisdiction | England & Wales |
| Judge | Mullen |
| Judgment Date | 29 September 2021 |
| Neutral Citation | [2021] EWHC 2611 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BR-2020-000483 |
[2021] EWHC 2611 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)
Royal Courts of Justice
Rolls Building
Fetter Lane
London EC4A 1NL
ICC JUDGE Mullen
Case No: BR-2020-000483
Mr Ted Loveday (instructed by Macfarlanes LLP) for the Applicant
Mr Sparsh Garg (instructed by Signature Litigation LLP) for the Respondent
Hearing date: 17 th June 2021
Approved Judgment
ICC JUDGE Mullen
Introduction
By his application sealed on 25 th September 2020, Mr Alpamys Tatishev seeks to set aside a statutory demand, dated 14 th August 2020, which demand claims that the sum of $849,759.34 is due to the respondent, Zimmerz Management LP (“Zimmerz”), pursuant to a settlement agreement dated 28 th June 2019 (“the Settlement Agreement”), under which Mr Tatishev agreed to pay the Debt in settlement of liabilities under a guarantee apparently executed by him on 26 th September 2017 (“the Guarantee”).
The Guarantee, on its face, provides that Mr Tatishev is jointly and severally liable for the payment of a loan made to Mr Aman Sarsengaliuly Kozhabayev, under a loan agreement, also dated 26 th September 2017, (“the Loan Agreement”) together with interest, penalties for delay and losses incurred by Zimmerz caused by “improper performance” of Mr Kozhabayev's obligations under the Loan Agreement. The loan was due to be repaid on 31 st December 2018 and was not repaid, though there is a dispute as to whether two small payments were made towards it.
The statutory demand alleges that that Mr Tatishev acknowledged his liability under the Guarantee by entry into the Settlement Agreement, which set out a schedule of payments to discharge the principal debt of $570,428.91, $177,223.66 by way of interest for the period 7 th October 2017 to 28 th June 2019 and, finally, $102,106.77 by way of penalties for failure to comply with various loan repayment deadlines. In breach of the Settlement Agreement he failed to make payment. In fact, $150,000 was paid by Mr Tatishev in three instalments following the Settlement Agreement, with the last payment being made on 28 th October 2019.
The application was accompanied by a short witness statement from Mr Tatishev, dated 24 th September 2020. He says that he became aware of the statutory demand on 7 th September 2020 when he received a copy of it by an email that stated that the demand had been served on his residential address in London. Mr Tatishev states that he is involved in a number of businesses but his interest is financial only and he relies upon advisors to arrange and manage his participation in them. He accepts that he was involved in a construction project that required funding in 2017 and he agreed to stand as guarantor for the $590,000 loan to a construction company. He knew that a personal guarantee was prepared for his signature but he did not think that the company had proceeded with the loan.
He contends, however, that he did not sign the Guarantee, which he now knows to have been signed by the finance director of the construction company, Mr Kozhabayev himself. He exhibits a very short, undated, letter from Mr Kozhabayev, written in Russian, together with a certified translation, that states that, unbeknownst to Mr Tatishev, he signed the Guarantee. No witness statement has been obtained from Mr Kozhabayev.
As to the Settlement Agreement, Mr Tatishev says that he was pursued by Zimmerz in 2019 and received a letter of claim from it dated 3 rd April 2019 (“the First Letter of Claim”). As a result of the passage of time and the number of business projects and guarantee obligations in which he was involved, he believed he had signed the Guarantee and so entered into the Settlement Agreement to avoid the consequences of non-payment. He realised later, although he does not say in what circumstances this came to light, that he had not signed the Guarantee and was not liable under it. He therefore stopped making payments under the Settlement Agreement. He also complains that the statutory demand does not take into account of the payments of $150,000 that he made under the Settlement Agreement. He therefore sought to set aside the statutory demand on the basis that Settlement Agreement was entered into under a mistake and that the Debt is overstated.
Mr Anton Knyazev, the ultimate beneficial owner of Zimmerz, made a witness statement in answer, dated 23 rd November 2020. He highlighted that Mr Tatishev does not dispute agreeing to act as guarantor of a loan. He exhibits an email dated 27 th February 2017 from Mr Tatishev to Mr Aleksei Smolianov, a representative of Zimmerz, which, he says evidences Mr Tatishev's involvement in the negotiation of the loan. He also exhibits a series of WhatsApp messages between Mr Tatishev and Mr Smolianov between 7 th September 2017 and 19 th September 2017, in which Mr Tatishev agrees on 12 th September 2017 to act as guarantor for Mr Kozhabayev. These documents are also in Russian. Although the translations are not certified, they are accepted to be accurate.
He says that further draft versions of the loan agreement and Guarantee were sent to Ms Aelita Tolegenova, whom he believed to be assistant to both Mr Kozhabayev and Mr Tatishev, by email on 26 th September 2017. Default having been made in payment, the First Letter of Claim was sent to both Mr Tatishev and Mr Kozhabayev.
In response to the First Letter of Claim Mr Tatishev instructed lawyers in Moscow, Yakovlev & Partners Law Group, to propose settlement terms. The Settlement Agreement was entered into and three payments of $50,000 were made. A further letter of claim was sent, dated 20 th March 2020, (“the Second Letter of Claim”) and, in a WhatsApp message dated 10 th April 2020 sent in response to an enquiry from Zimmerz' lawyer, Mr Tatishev stated that he planned to fulfil his obligations. No reply was received to subsequent messages sent to him and so the statutory demand was served. He accepts that the statutory demand overstates the debt, having not taken into account the $150,000 already paid. He recalculates the debt at a rather higher figure than set out in the statutory demand on the basis of the accrual of penalty interest.
That was the state of the evidence when the application came before ICC Judge Barber for its first hearing on 24 th November 2020. She gave directions for evidence in reply and rejoinder. She listed the application to be heard with a time estimate of one day.
Mr Tatishev's second witness statement, dated 18 th January 2021, expands on his business dealings with Mr Kozhabayev and Mr Smolianov. He explains that, in May 2017, Mr Smolianov had provided “financial support” to Mr Kozhabayev in the sum of $143,000. This was not documented at the time. Mr Kozhabayev required a further loan of $490,000 later in the same year. As part of the proposals for this, it was agreed that the earlier financial support would also be documented in the form of a loan agreement. Mr Tatishev says that he agreed in principle to act as guarantor of these loans. He did not recall ever agreeing to stand as guarantor for the larger sum of $590,000. He contends that the draft loan agreement referred to in the email dated 27 thFebruary 2017 exhibited to Mr Knyazev's first witness statement is unrelated to the loan agreement entered into by Mr Kozhabayev, it being for a sum of 230,000 Kazakhstani Tenge, equivalent to around $736,000, expressed to be made to a firm called Stroy.com Progress LLP and its structure and terms are entirely different to the Loan Agreement. In relation to the WhatsApp messages expressing a willingness to act as guarantor, he explains that, although he cannot be sure given the passage of time to what loans he was referring, he thought that it was probably the proposed loan of $143,000 and the loan of $490,000.
He denies that Ms Tolegenova was acting for him and says that she was acting on behalf of Mr Kozhabayev alone in the emails sent in September 2017 and points out that the emails to her refer to two separate loans in the sums of $143,000 and $490,000. They do not relate to the Loan Agreement or the Guarantee. He also states that payments of some $26,622 had in fact been paid by Mr Kozhabayev on 5 th December 2018 to Zimmerz' bank account with ABLV Bank AS and he exhibits a document from Halyk Bank, which is not translated, but seems to show an order for the payment of $26,622. Certain parts of the document have been completed in English. however, and one part of the document bears the words
“PARTIAL LOAN REPAYMENT LOAN AGREEME NT DD 26092017 REPAYMENT AMOUNT 266 22 US DOLLARS.”
The figures after the letters “DD” appear to represent the date of the Loan Agreement. Mr Tatishev says this payment has not been taken into account by Zimmerz. He says that the failure to take account of these payments in the First Letter of Claim and the Settlement Agreement amounts to misrepresentation and forms a separate ground for setting the Settlement Agreement aside. He reiterates that he had signed a “very large number” of commercial agreements over the previous five years and had a diverse range of business interests so that he relied heavily on his advisors and partners to manage his participation. He says that he misremembered what took place and he placed faith in Mr Smolianov, who is his business partner in another venture, and was simply too trusting when he was told he had signed the Guarantee.
I can deal with Mr Knyazev's statement in rejoinder, dated 19 th February 2021, shortly. It deals with the alleged payment of $26,622. He exhibits a translation of the Halyk Bank document,...
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