![BL-2022-000438 - [2025] EWHC 2212 (Ch)](https://backend.juristeca.com/files/emisores/logo_O3rEzCI.png){kind=logo}
The recollection of witnesses generally
The recollection of witnesses generally
As mentioned above, I note that the factual events which underpin this dispute go back as far as 2006, being 19 years before trial. Both parties were keen to emphasise the fallibility of the recollection of witnesses over such a long period and I was directed to passages from Onassis v Vergottis [1968] 2 Lloyds Rep 403, per Lord Pearce p 431, Grace Shipping v Sharp & Co [1987] 1 Lloyd’s Law Reports 207, at p. 215, Armagas Ltd v Mundogas S.A. the Ocean Frost [1985] 1 Lloyd’s Rep 1, Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)) and Kogan v Martin [2019] EWCA Civ 1645. I also note, in this context, the speech by Popplewell LJ – Judging Truth from Memory: The Science dated November 16, 2023 which appears on the Judiciary UK website.
I have taken note of these authorities in considering the oral evidence. I observe that, in this case, the Court has the benefit of a documentary record with a substantial body of emails which provides insight into the relevant events.
- Heading
- I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic Introduction
- The Parties and other relevant persons
- The Land
- The Contractual Arrangements
- General Observations on the Evidence The oral witness evidence
- The recollection of witnesses generally
- The central issues for determination
- The Construction Issues
- The profit sharing arrangements under the JVA
- The payment waterfall under the JVA
- The Guarantee Validity Issues
- Validity Issue 1: Did Mr Kazolides provide a guarantee under the JVA?
- The argument that the joint venture was intended to be a 50/50 arrangement and the guarantee is inconsistent with that arrangement
- The failure to name Mr Kazolides expressly and the Statute of Frauds
- Whether Mr Michael had authority to enter the guarantee
- Validity Issue 2: Should clause 18 be rectified to name Mr Kazolides as the Guarantor?
- The Limitation Issues
- Limitation Issue 1: Is the Limitation Period 6 or 12 years?
- Limitation Issue 2: What is the test for insolvency under clause 5(c)?
- Limitation Issue 3: Was the Company in default more than 6 / 12 years before the issue of the claim?
- The expert evidence on valuation of the Property
- The Liabilities of the Company in March and December 2010
- The solvency of the Company in early March 2010
- Cashflow insolvency
- Legal Principles
- Variation of the contract between creditor and debtor
- Agreement between creditor and debtor to give debtor additional time to pay
- Breach by the creditor
- Grounds for Discharge
- Discharge Ground 1: Material change in the JVA due to the execution of the SJVA
- Discharge Ground 2: Mr Dunn giving an extension of time for payment by the Company
- Discharge Ground 3: Breaches of or a departure from the terms of the JVA in relation to the timing of the sale of the villas and other matters relating to the joint venture
- Discharge Ground 4: An oral agreement between Mr Dunn and Mr Kazolides
- Other matters
- Conclusions