Njord Partners SMA-Seal LP & Ors v Astir Maritime Ltd & Ors
| Judge | Mr Richard |
| Neutral Citation | [2024] EWHC 1682 (Comm) |
| Year | 2024 |
| Court | Queen's Bench Division (Commercial Court) |
| Counsel | Mr Simon Salzedo Kc,Ms Laura Newton,Ms Laura John Kc,Ms Rachael Earle,Second Defendant |
| Date | 03 July 2024 |
MR RICHARD SALTER KC
Approved Judgment
Njord Partners SMA-SEAL LP and ors v.
Astir Maritime Ltd and ors
Neutral Citation Number: [2024] EWHC 1682 (Comm)
IN THE HIGH COURT OF JUSTICECase No: CL-2020-000211
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London EC4A 1NL
Date: Wednesday 3 July 2024
Before :
MR RICHARD SALTER KC
Sitting as a Deputy Judge of the High Court
- - - - - - - - - - - - - - - - - - - - -
Between :
(1) NJORD PARTNERS SMA-SEAL LP
(2) NPSSF DEBT CO. S.A. R.L.
(3) AIE III INVESTMENTS, L.P
(4) NORDIC TRUSTEE A/S
Claimants
- and -
(1) ASTIR MARITIME LTD
(2) MUHAMMAD TAHIR LAKHANI
(3) MUHAMMAD ALI LAKHANI
Defendants
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Mr Simon Salzedo KC and Ms Laura Newton (instructed by Milbank LLP)
appeared for the Claimants
The Second Defendant appeared in person
Ms Laura John KC and Ms Rachael Earle (instructed by Peters & Peters Solicitors LLP)
appeared for the Third Defendant
Hearing dates: 4, 5, 6 and 7 March 2024
Draft judgment provided to the parties on 28 June 2024
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Approved Judgment
This judgment was handed down remotely at 10.30am on 3 July 2024 by circulation to the
parties or their representatives by e-mail and by release to the National Archives.
Paragraph 216 corrected under CPR 40.12 on 15 July 2024
.............................
1
MR RICHARD SALTER KC
Approved Judgment
Njord Partners SMA-SEAL LP and ors v.
Astir Maritime Ltd and ors
MR SALTER KC
(A) Introduction
(A.1)The background
1.The matters which remain for determination in this action are claims in the torts of
deceit and conspiracy.
2.The first to third claimants are the successors in title to the lenders under a written
agreement dated 28 March 2017 as amended and restated on 14 September 2017 and
on 20 December 2017 (“the Facility Agreement”). For simplicity, I will refer in this
Judgment to the first to third claimants and their predecessors in title, without
differentiation, as “the Lenders”. Under the Facility Agreement, the Lenders
ultimately made a facility of approximately USD 45m available to Astir Maritime Ltd
(“Astir”), the first defendant.
3.Astir was incorporated in the Marshall Islands specifically for the purposes of acting
as borrower for this transaction.Astir was a wholly-owned subsidiary of North Star
Maritime Holdings Limited (“North Star”), a St Kitts & Nevis limited company set
upin2015bytheseconddefendant,MuhammadTahirLakhani. His two sons,
Muhammad Hasan Lakhani and the third defendant, Muhammad Ali Lakhani, were
the shareholders. Each of the sons owned 50% and the third defendant was a director.
4.Becauseofthesimilarity between the full names ofthese three members of the
Lakhani family, I shall refer to them in this judgment (without intending any
disrespect) simply as “Tahir” (the second defendant), “Ali” (the third defendant), and
“Hasan”. For consistency (and, again, without intending any disrespect) I shall adopt
the same “first name only” style of referring to the other persons who feature in the
history of this matter.
5.The lending under the Facility Agreement was secured by a parent company guarantee
given by North Star, by guarantees given by various subsidiary companies, and by a
personal guarantee given by Tahir (“the Tahir Guarantee”). These guarantees were
given in favour of Nordic Trustee A/S, the fourth claimant, as security agent for the
Lenders.
6.During the negotiations which led up to the Facility Agreement, Tahir provided to the
Lenders a Statement of Net Worth (“the Statement of Net Worth”). The Statement
of Net Worth purported to show that Tahir’s personal assets were worth more than
USD 46 million. As I shall explain in more detail later in this judgment, it is now
common ground that this was an overstatement, because Tahir himself did not own
several of the assets referred to and the realistic value of certain of those assets was
materially lower than that stated.
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MR RICHARD SALTER KC
Approved Judgment
Njord Partners SMA-SEAL LP and ors v.
Astir Maritime Ltd and ors
7.The business of North Star and of Astir and its subsidiaries was ship recycling. Clause
3.1 of the Facility Agreement required Astir to “apply all amounts borrowed by it
under the Facility only for the purpose of financing the Debt Funded Amount of a
Permitted Transaction”. “Permitted Transactions”wereof two kinds: “As Is
Transactions” under which Astir would buy the vessel from its owner and, as owner,
would then transport the vessel to the scrapyard for recycling; and “Delivery
Transactions”, under which Astir would act as broker to arrange for the purchase and
on sale of a vessel to be scrapped, but would not take ownership prior to delivery.
8.Under clause 4.3 of the Facility Agreement, amounts drawn down under the facility
were to be paid in the first instance into a Funding Account from which they could
only be withdrawn upon compliance with the conditions precedent set out in clause
4.4.
9.By clause 4.4(g) and Schedule 2 Part III, those conditions precedent included the
delivery of “an original of the Approved Borrower Statementduly executed by [the]
chief financial officer of [Astir]”. The Approved Borrower Statement was required to
be in the form setout in Schedule 11, which included a confirmation that“all
transactions are Permitted Transactions” and that “no Default is continuing”.
10.The facility provided under the Facility Agreement was a revolving one, which
allowed Astir (upon compliance with the conditions precedent in clause 4.4) to make
withdrawals from the funding account from time to time for the purpose of financing
Permitted Transactions. Condition 6.2(a) nevertheless requiredAstir to repay the
amount withdrawn in respect of any particular transaction (“the Funding Amount”)
five Business Days after the receipt of the sale proceeds of the vessel. Failure to do so
was expressly made a Default by clause 26.2.
11.Between about 4 March 2019 and about 5 February 2020, Tahir gave a variety of
excuses to the Lenders as to why there had been delays in the completion of various
transactions, and therefore as to why the Funding Amount in relation to those
transactions had not yet been repaid. In paragraph 29 of the Amended Defence, Tahir
and Ali admit that these excuses were false and that the relevant vessels had already
been beached and/or broken up. In paragraph 34(a) of the Amended Defence, Tahir
and Ali also admit that there was a continuing Default from 30 November 2018, five
BusinessDays after the vessel “Equator Peace”hadbeenbrokenup and its sale
proceeds had been received.
12.Between 26 November 2018 and 3 July 2019, Astir delivered Approved Borrower
Statements to the Lenders to support drawdown requests in respect of transactions
involving 16 vessels. These purported to be signed by Ali as CFO of Astir. It is
common ground that, in consequence of the matters which I have just described, the
confirmations in those Approved Borrower Statements that the relevant transactions
were Permitted Transactions and that no Default was continuing were both untrue.
3
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