GBI Investments Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WARREN,Mr Justice Warren |
| Judgment Date | 15 January 2010 |
| Neutral Citation | [2010] EWHC 37 (Ch) |
| Docket Number | Case: No 6678 of 2008 |
| Court | Chancery Division |
| Date | 15 January 2010 |
[2010] EWHC 37 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
IN THE MATTER OF THE INSOLVENCY ACT 1986
Before: Mr Justice Warren
In the Matter of Gbi Investments Ltd.
Case: No 6678 of 2008
Mr Lloyd Tamlyn (instructed by Messrs Nabarro) for the Petitioner
Mr David Alexander QC and Mr William Willson (instructed by Messrs White & Case) for the Respondent
Hearing dates: 20th and 23rd November 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Warren:
Introduction
This is a petition for the winding-up of GBI Investments Limited (“ the Company”). The petition was presented by Lacontha Foundation (“ Lacontha”) on 8 August 2008. Lacontha was established in Liechtenstein on 2 April 2003.
The individual ultimately interested in Lacontha is a Mr David Beran (“ Mr Beran”). It was on his instructions that Lacontha was established. Mr Beran is a citizen of the Czech Republic. He is a businessman and industrialist in the Czech Republic and other Eastern European countries.
The Company was incorporated in England and Wales on 13 December 1995 as Atlas Corporate Secretaries Ltd. It was dormant until about 24 September 2001, when it changed its name to GBI Investments Ltd. Between that date and about the autumn of 2007, the ultimate beneficial owners of the Company were two employees of Mr Beran, or of companies ultimately controlled by him, Petr Novotny and Radim Simara.
There are a number of other companies which I should identify:
i) RWE Transgas, a.s and CPP Transgas, s.p. (together or separately “ Transgas”): this is the state-owned gas undertaking of the Czech Republic.
ii) GBI Investments CZ a.s. (“ GBI CZ”): this is a company incorporated in the Czech Republic on 27 May 1994 under name of DB Invest, a.s. Prior to 2001, the share capital of GBI CZ was CZK 150 million entirely owned by Mr Beran. Messrs Novotny and Simara managed GBI CZ. Mr Novotny was director and Chairman between 1999 and 8 October 2007 (save for a short period), and Mr Simara was a director between June 2001 and December 2006.
iii) Alincon Ltd (“ Alincon”): this is a Jersey company in the ultimate beneficial ownership of Mr Beran,
iv) Navigata Holding BV (“ Navigata”): this is a Dutch company, wholly owned by Alincon.
v) Crown Continental Ltd (“ CCL”): this is a company incorporated in England on 11 July 2000.
The Transgas Agreements
During the course of 1997, Transgas and GBI CZ entered into a number of agreements concerning the construction, financing, maintenance and operation of an underground gas storage facility at Uhrice. The first of these (“ the Framework Agreement”) was dated 24 October 1997. It is headed “Agreement Relating to Cooperation and Future Contracts”.
The Framework Agreement provided under Part A as follows:
i) Transgas and GBI CZ undertake to conclude the following agreements before the following dates:
“- Agreement relating to construction and financing of construction of underground gas storage at Uhrice (hereinafter referred to as the “Financing Agreement”) on or before 15 December 1997;
- Separate agreement to conclude a future lease contract relating to lease of storage (hereinafter referred to as the “Lease Contract”) provided that the relevant agreement is to be entered into as of the date of certificate of completion on or before 15 December 1997….” This related to certain works under an earlier agreement. The Lease Contract would not appear to be the separate agreement itself but rather the lease which is to be granted pursuant to that separate agreement.
“- Agreement relating to security rights over shares in MND on or before 1997 [not relevant for present purposes]”
ii) Article I: GBI CZ undertakes to procure construction and financing of construction of the underground gas facility as specified (and called “the Storage”). In that context, Transgas undertakes to give professional co-operation “for the Storage to comply with all required parameters”.
iii) Transgas undertakes to assign and transfer to GBI CZ all rights and duties arising out of the contracts that have already been concluded in connection with the construction of the storage and GBI CZ undertakes to accept all such rights provided that the relevant third party consented.
iv) Article II: Transgas undertakes to make use of and operate the Storage for a minimum period of 25 years from the date of certificate of completion. GBI CZ was to lease the Storage to Transgas for that period. At the end of the period, Transgas is to have the right to purchase the Storage at the price set out. The annual rent is specified at CZK 210,000,000 (subject to review).
v) Article IV: Transgas agrees that, after the signing of the Mandate Agreement and the Lease Contract GBI CZ can “request from Transgas the issuance of a guarantor's declaration, promissory notes, guarantees or any other guarantor's obligations as required by the financing institution up to the amount of unpaid receivables arising out of the Lease contract”. Transgas is obliged to issue the same within 10 days of a request. In other words, Transgas was to issue promissory notes to GBI CZ in respect of the 25 years' rent.
So far as concerns Part B of the Framework Agreement, the only material provision for present purposes is Article III which provides that the Agreement may only be terminated by written agreement of both parties.
The second agreement I need to refer to (“the Mandate Agreement”) is dated 23 December 1997. Transgas is referred to as “the Mandatory” and GBI CZ is referred to as “the Mandator”. The Mandate Agreement provides as follows:
i) Article IV: GBI CZ agrees that subject to the provisions of the agreement
“to carry out and arrange for [GBI CZ] on its account and on its behalf construction of the overground part of the underground gas storage…and the access piping”.
ii) It is further provided in Article I that acquisition of the ownership or other rights to plots of land necessary for the construction of the storage should be made by Transgas in its own name and on its own account; such rights are to “be assigned to [GBI CZ] to such an extent and for such period (lease) that is necessary for grant of [various permissions and certificates]”.
iii) Article II: Transgas undertakes to perform the Mandate Agreement to enable relevant certificates to be issued on or before 30 December 1999.
iv) Article IV: GBI CZ undertakes to pay a contribution towards the works specified in Article I of CZK35 million divided into three tranches for work leading (i) to planning permission (ii) to building permits and (iii) to a certificate of completion.
v) Article V: GBI CZ undertakes to grant a written power of attorney to Transgas to carry out all activities pursuant to Article I. GBI CZ undertakes to obtain funds necessary for the construction of the Storage subject to compliance by Transgas with its obligations under paragraph 3.
vi) That paragraph 3 provides for Transgas, at GBI CZ's request, and within 30 days after the date of the written application to issue:
“a guarantor's declaration, promissory notes, guarantees or any other guarantor's obligation as requested by the financing institution and up to the amount of the unpaid receivables arising out of the Agreement Relating to Future Lease Contract with Subsequent Purchase of the Leased Asset….”
This is a reference to the document headed “Agreement on a Future Lease Agreement with Subsequent Purchase of the Leased Item” also dated 23 December 1997 (which I shall refer to as “ the Agreement for Future Leasing”). It is the separate agreement envisaged in the Framework Agreement. It was entered into according to the preamble “in relation to [the Mandate Agreement]”. This agreement obliges the parties to enter into the form of agreement set out in Section II (“the Lease Agreement”) (which is the same as the Lease Contract referred to in the Framework Agreement) within 14 days following “the legal force of an occupancy permit or decision on the temporary use of the upper part” of the storage facility. The subject matter of the intended lease is the above-ground part of the storage. This property is to be leased by GBI CZ to Transgas for the period 25 years from a handover date ascertained in accordance with something called the Handover Protocol. Material provisions of the Lease Agreement are as follows:
i) Transgas is given an option to purchase the property at the date of termination of the lease for a consideration equal to 1% of the actual acquisition cost of the property.
ii) A party may withdraw from the Lease Agreement only by a written agreement between the parties.
iii) If either party rescinds the Lease Agreement, the other party is to provide lump sum compensation for damage incurred, including loss of profits.
iv) It is stated that the rent under the lease has been determined depending on the amount of the actual acquisition cost of the property. As to that
“The amount of the annual payment of the rent without VAT in the case of the actual acquisition cost of [the property] in the amount CZK 1,400,000,000 without VAT as of January 1, 1998 (i.e. without a valorization as of the date of commencement of the lease) has been determined in the amount of CZK 210,000,000….”
v) Transgas undertakes to issue, among other things, promissory notes within 30 days of GBI CZ's written request up to the amount of the unpaid receivables under the Lease Agreement. This obligation, of course, arises under the Lease Agreement, but the Lease Agreement itself does...
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