Citation: [2020] EWHC 468
On 28 February 2020, Mr Justice Fraser handed down the decision in Yuanda v Multiplex Construction Ltd & Australia and New Zealand Banking Group Ltd [2020] EWHC 468.
The case decided a new point on the wording of an ABI-type performance guarantee – in particular what was meant by “established and ascertained” and the need to take into account “sums due or to become due” to the Sub -Contractor.
Yuanda had sought an injunction against Multiplex and ANZ restraining a call on the guarantee contending that no call on the guarantee could be made until the Final Account and all issues relating to the Final Account had been resolved – including all and any adjudication, arbitration and litigation relating to that Final Account.
Multiplex contended that the guarantee should respond when Mulitplex operated the indemnity provisions under the Contract between it and Yuanda alternatively if, as and when Multiplex obtained an adjudication decision in its favour.
The judge rejected the first argument on the terms of the particular contract as there was no certification procedure under the contract. The Judge therefore appeared to believe that the guarantee might well respond if there were a certification procedure. The judge went on to hold, however, that the guarantee would respond if, as and when Multiplex obtained an Adjudication decision in Multiplex’s favour.
Sean Wilken QC acted for Multiplex.
