Bing Holdings Inc. and Another v Michael Hue-Williams (Defendant/Part 20 Claimant) John Chandris (Third Party) Christina Chandris (Fourth Party)
| Jurisdiction | England & Wales |
| Judge | Nicholas Vineall |
| Judgment Date | 05 December 2017 |
| Neutral Citation | [2017] EWHC 3149 (QB) |
| Date | 05 December 2017 |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/17/0091 |
[2017] EWHC 3149 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Vineall QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case No: TLQ/17/0091
and
and
Mr James Stuart (instructed by Brown Rudnick) for the Defendant
Mr Jonathan Cohen QC and Mr Ashley Cukier (instructed by Mishcon de Reya) for the Fourth Party
Hearing date: 30 November 2017
Judgment Approved
This is an application to amend the claim made in this action by Mr Michael Hue-Williams (the Defendant) against Mrs Christina Chandris (the Fourth Party). All the other claims have been settled. The remaining live claim is set down for trial for 5 days commencing on Monday 11 December 2017. The application to amend was issued on 23 November 2017 and came before me on 30 November, on the pre-trial review, leaving just 6 clear working days between the application and the start of the trial. Mr Hue-Williams' solicitors had sought consent for the amendments by letter dated 13 September, but Mrs Chandris' solicitors had said on 2 October that they would not consent to it.
Mr Hue-Williams is an art dealer. Mr John Chandris and Mrs Christina Chandris are wealthy individuals with significant interest in the shipping and hotel industries. They separated in or about 2012 and are now divorced.
Mr and/or Mrs Chandris, and/or corporate vehicles controlled by them, had an art collection. I will call it the Chandris collection. There is some dispute, unimportant for present purposes, about who exactly owned the artwork.
According to Mr Hue-Williams, before their separation Mr and Mrs Chandris planned a project which was to involve locating, cataloguing, valuing, and selling, the bulk of the collection, with the proceeds being used to commission a new collection of modern art.
Mr Hue-Williams says that his services were retained for that project, and that it was agreed that he would be remunerated by way of commission of 5% of the total net sale price of the Chandris collection (less any commission paid by the auction houses) and 10% of the total retail price in respect of the purchase of the new collection.
Mr Hue-Williams contends that from November 2010 onward he expended considerable time skill and resources on the project.
Two pieces were sold at Christie's in October 2011. The auction house Christie's paid Mr Hue-Williams commission of 2% in February 2012, and in March 2012 Mr Hue Williams received a payment of £54,000 representing the balance due of 3%. (There is a dispute, irrelevant for present purposes, about who exactly made that payment to him).
Mr Hue-Williams contends that in November 2011 Mr and Mrs Chandris instructed him to commission two pieces of art for a property in Greece, namely "Bench" by Mr Newson and "Stone Path" by Xu Bing. Mr Hue-Williams did so. On 14 November 2012 Mr Hue-Williams issued invoices to Mrs Chandris in the sums of £90,000 and $245,000 for Bench and Stone Path respectively. Mrs Chandris declined to make payment but said that Mr Chandris would do so.
In late 2012 Mrs Chandris informed Mr Hue-Williams that she and Mr Chandris were divorcing.
Mr Hue-Williams says that he and Mr Chandris agreed in February 2013 that Mr Chandris would pay to Mr Hue-Williams the sums of £90,000 and $245,000 and that Mr Hue-Williams would release these two works to Mr Chandris.
On 4 March Mr Chandris sent an email suggesting that it would be sensible to set up a new company to buy these two works of art. Mr Hue-Williams says that he agreed to reissue the invoices to a company called Bing Holdings, and did so.
On or about 8 March 2013 the invoiced sum was paid by "ISIS Holdings IN".
Mr Hue-Williams contends that the project came to a halt in or about 2013 and was never revived.
In February 2016 proceedings were commenced by Bing Holdings Inc against Mr Hue-Williams. Bing Holdings alleged that it had been incorporated on the instruction of Mr John Chandris for the purpose of purchasing the two works of art, that it had made payment for them, but had not received them. Bing claimed that the contract between it and Mr Hue-Williams had been terminated, and sought repayment of the sums paid on the basis that the consideration or basis for the Contract had wholly failed, alternatively for damages in the amount of the artworks.
On 4 April 2016 Mr Hue-Williams filed a Defence which raised Part 20 claims against Mr Chandris as Third Party and Mrs Chandris as Fourth Party.
On 15 September 2016 an Amended Claim Form was issued adding Mr Chandris as second Claimant. It alleged that if the contract with Mr Hue-Williams was not made by Bing, then it was made between Mr Chandris and Mr Hue-Williams.
There have been various other amendments which are not relevant for present purposes.
As I noted above, on or about 31 July 2017 a settlement was reached between Mr Hue-Williams, Mr Chandris, and Bing Holdings.
Accordingly the only remaining claim is the claim by Mr Hue-Williams, now in effect the Claimant, against Mrs Chandris, who is the Fourth Party on the pleadings and now the only Defendant to Mr Hue-Williams' claim.
Mr Hue-Williams' claim against Mrs Chandris, and her defence to it
On the pleadings as they stand, Mr Hue-Williams alleges a contract between him and Mr and Mrs Chandris, with (so far as relevant for the present application) the following terms:
i) Mr Hue-Williams would provide his services, to include (inter alia) cataloguing and arranging for the sale of the Chandris collection, and considering and selecting artists apt for inclusion in the new collection.
ii) In consideration for the provision of those services, Mr and Mrs Chandris would pay him, for every item sold from the old collection, either 5% of the net sale price, less any commission received from the auction house; and a 10% commission on the retail price of any piece purchased for the New Collection
iii) Mr and Mrs Chandris would carry out the project to completion and/or would not prevent or inhibit the completion of the project.
This last term is said to be an express, alternatively implied term.
Finally, Mr Hue-Williams says that if there was no such term as set out at (iii) above, it was an implied term that Mr Hue-Williams would at least be paid a reasonable sum for all the work that he did in fact perform at the request of Mr and Mrs Chandris.
The claim against Mrs Chandris is pleaded in various ways in the Re-Amended Defence. First it is said that the breach in not completing the project caused loss calculated by reference to the remuneration Mr Hue-Williams would have received had the project been completed.
In the alternative there is a claim under the contract for a reasonable sum for the services in fact performed by Mr Hue-Williams, before the project was abandoned. He contends that he performed 120 days' worth of work, and that a reasonable rate for that work is $10,000 a day, so he claims that the sums he has already received by way of remuneration fall well short of the sums to which he is entitled on this limb of his case
At paragraph 43 the existing pleading says this:
Claim in restitution to a quantum meruit
43. In the alternative, Mr and Mrs Chandris did, jointly and severally, knowingly receive the benefit of the Services provided by Mr Hue-Williams. The Services were at all times (i) performed pursuant to the requests of Mrs and/or Mrs Chandris; and (ii) freely accepted by them in the knowledge that Mr Hue-Williams expected to be paid.
44. Further or alternatively, Mr Hue-Williams has been prevented form completing his performance of his obligations pursuant to the Agreement, and thereby prevented from earning his commission.
45. Further or alternatively, there has been a failure of basis in that the Project has been terminated without having been completed,
46. By reason of each and any of the matters pleaded at paragraphs 43 to 45 above, Mr Hue-Williams is entitled [to] a reasonable sum in respect of the work that he performed.
47. A reasonable sum for the services provided would be £1,837,500 by reason of the matters pleaded at paragraph 41 above, that sum being a proper guide as to the value the parties placed in Mr Hue-Williams' services.
In the existing pleading there is no mention of "unjust enrichment" of Mr and Mrs Chandris, nor any suggestion that the quantum of any award might be linked to the value of any benefit conferred on them, as opposed to being based on the value of the work done by Mr Hue-Williams.
Mrs Chandris' defence to the claim against her admits that there was a contract between Mr Hue-Williams and Mr and Mrs Chandris. It contends (at paragraphs 10.2 and 11.6) that the terms of that contract were "that it was understood that" if Mr Hue-Williams facilitated a sale or purchase a commission would be paid to him at a level which was reflective of his involvement with that particular sale. Mrs Chandris expressly denies any express or implied term to the effect that the Project would take place.
The parties therefore agree that they were in a contractual relationship, and they agree that if the project proceeded to completion remuneration would be provided through commission payments, though they disagree about the details of those payments. But the central dispute seems to boil down to who took the risk that the project would not proceed to completion, and how (if at all) remuneration for work done ought to be dealt with in that scenario.
Permission has been given for expert evidence by the Order of Master Kay QC dated 16 January 2017. That order provides that
"The...
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