LM-2023-000035 - [2025] EWHC 1989 (Comm)

Chronology Part V: Termination of the Mandate and subsequent events

On 26 August 2022, a notice terminating the Mandate (dated 29 July 2022) was sent by “Dominik Leszczyński, DL Invest Group…” by email to Xtellus. It was signed by Dominik Leszczyński above the words “DL Invest Group.” Mr Zak responded on 28 September 2022, by letter addressed to Dominik Leszczyński at DL Invest Group, he wrote: “We take this opportunity to remind you that the termination notice does not relieve the DL Invest Group of any of the obligations that have arisen under the [Mandate] prior to the effective date of termination. This includes the obligation of DL Invest Group to pay compensation due to Xtellus under… the [Mandate]. We expect that you will immediately notify us if DL Investment (sic.) Group signs any contractual arrangements for Financings as that term is defined in the [Mandate].”

On 22 September 2022 Psary Invest II sp. z o.o. identified as “the company acting for and on behalf of the Borrowers” expressed a wish to draw down on the agreed facility and to have €121,266,674 paid out to 10 beneficiaries. The largest single beneficiary was to be the Defendant which was to receive €32,280,476.43. On 23 September 2022, Blazej Stodulkiewicz confirmed that “all transfers made to DL Invest Group entities have been collected”.

On 29 September 2022 MacCap issued a press statement with the headline: “Macquarie Capital provides DL Invest Group €123.4 million financing to support further growth of leading Polish logistics portfolio”. The body of the statement referred to Macquarie Capital Principal Finance. The financing subsequently increased to €143,379,834.75.

Mr Fehmi sent an email to Dominik Leszczyński and Blazej Stodulkiewicz on 3 October 2022 congratulating them on the successful closing of the transaction and enclosing an invoice in the sum of $1,511,650 calculated at the US Dollar equivalent of 1.25% of €123.4 million.

On 11 October 2022 Mr Fehmi spoke to Dominik Leszczyński and Blazej Stodulkiewicz and kept a note of what was discussed. This was an important discussion because it presented an opportunity for the Defendant to explain why it was under no obligation to pay Xtellus. A number of justifications for non-payment of the invoice were rehearsed. The note makes no mention of CCI. The first reference to CCI (albeit oblique) appears in a letter dated 13 October 2022 sent by Dominik Leszczyński (of DL Invest Group) to Xtellus. In that letter Dominik Leszczyński wrote: “Xtellus admittedly concluded with Dominik Leszczyński DL Invest Group (hereinafter DL Invest Group) a letter of engagement…” At the time the letter was written there was no incorporated business with the name “Dominik Leszczyński DL Invest Group.”