RWE-Industrie-Loesungen GmbH v Thyssen Schachtbau GmbH, Court of Appeal - Technology and Construction Court, July 28, 2006, [2006] EWHC 2111 (TCC)

Reporting Judge: [2006] EWHC 2111 (TCC)

President: RWE-Industrie-Loesungen GmbH v Thyssen Schachtbau GmbH

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RWE-Industrie-Loesungen GmbH v Thyssen Schachtbau GmbH, Court of Appeal - Technology and Construction Court, July 28, 2006, [2006] EWHC 2111 (TCC)

Case No: HT 05 335

Neutral Citation Number: [2006] EWHC 2111 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Court 7

St. Dunstan's House

Fetter Lane, London EC4

Date: Friday, 28th July, 2006

B e f o r e :

THE HONOURABLE MR. JUSTICE JACKSON

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MR. TOM LEECH (instructed by Pettman Smith, London, SW1X 7RB) appeared for the Claimant

MISS CHANTAL-AIMEE DOERRIES (instructed by Eversheds, London, EC4V 4JL) appeared for the Defendant

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Approved Judgment

Tape Transcription by Marten Walsh Cherer Ltd.,

Midway House, 27/29 Cursitor Street, London EC4A 1LT.

Telephone No: 020 7405 5010. Fax No: 020 7405 5026

Mr. Justice Jackson:

This judgment is in eight parts, namely Part 1, Introduction; Part 2, The Facts; Part 3, The Present Proceedings; Part 4, The Effect of Addendum No. 1; Part 5, The Termination Issue; Part 6, RWE's Claim for Over-Payment; Part 7, RWE's Claim for the Costs of Completion; Part 8, Conclusion.

Part 1. Introduction

This is an application for summary judgment and/or interim payment made by a main contractor against the guarantor of an insolvent sub-contractor. The main contractor, which is Claimant in the present action, is a company incorporated in Germany called RWE-Industrie-Loesungen GMBH. I shall refer to this company as ``RWE''. In some of the documents it is referred to as ``RWE-IN''. The guarantor, which is Defendant in the present action, is a company incorporated in Germany called Thyssen Schachtbau GMBH. I shall refer to this company as ``Thyssen''.

In April 2003 Thyssen had a subsidiary company incorporated in England and Wales called Thyssen (Great Britain) Ltd. Thyssen (Great Britain) Ltd. owned all the shares of a construction company called Thyssen Construction Ltd. Thyssen Construction Ltd. changes its name to Butterley Construction Ltd. on 20th November 2003. For simplicity I shall refer to this company at all stages (both before and after the name change) as ``Butterley''. In September 2003 Thyssen sold its interest in Thyssen (Great Britain) Ltd. to the Meade Corporation, to whom I shall refer as ``Meade''. Thus, from September 2003 onwards Meade was the ultimate parent company of Butterley. Butterley is the sub-contractor whose insolvency has given rise to the present litigation. Butterley fell into financial difficulties in late 2004. Butterley went into administratio...

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