[Norwegian Coat of Arms]
THE SUPREME COURT OF NORWAY
On 5 June 2014, the Supreme Court rendered a court order in
HR-2014-01161-A, (case no. 2013/2303), civil case, appealed court order,
Nordic Trustee ASA
(Advocate Harald Hjort)
vs.
Anders Ivar Olsen
Einar Johan Holst
Brutel AS
(Advocate Anders Brosveet)
Hans Eirik Olav
(Advocate Håkon Juell Hassel – as a qualification test for authorisation to
plead before the Supreme Court)
Peter Andreas Klaveness Gjessing
(Advocate Geir J. Kruge – as a qualification test for authorisation to plead
before the Supreme Court)
Kristin Mortensen
Aage Thoen
(Advocate Per Conradi Andersen)
V O T I N G:
(1)
Justice Indreberg: The case concerns whether the trustee of a bond loan has standing to bring legal action
in relation to a claim for damages brought on behalf of the bondholders against, inter alia, directors and
senior executives of the borrowing company, cf. Section 1-3, Sub-section 2, of the Civil Procedure Act.
(2)
Norsk Tillitsmann ASA, now Nordic Trustee ASA, has, by filing a Writ of Summons on 13 October 2011,
brought legal action against Anders Ivar Olsen, Einar Johan Holst, Brutel AS, Hans Eirik Olav, Peter
Andreas Klaveness Gjessing, Kristin Mortensen and Aage Thoen. The legal action pertains to a claim for
damages in an amount of close to one billion Norwegian kroner, and has its origin in the roles of the
defendants in Thule Drilling AS or their affiliation therewith.
True translation certified.
17 June 2014
Knut Hogne Engedal
Government-authorised translator
English – Norwegian • Norwegian – English
2
(3)
Thule Drilling AS – Thule – was a rig company that obtained three bond loans in the aggregate amount of
USD 179 million in 2006 and 2007 for the partial funding of the construction of three drilling rigs. The
loan agreements were concluded between Thule and Norsk Tillitsmann ASA on behalf of the bondholders.
The latter acceded to the agreement by subscribing for bonds. The loans were secured by, inter alia,
mortgages on the three rigs under construction, as well as on all equipment procured in connection with the
construction process.
(4)
In brief, the plaintiff has presented the background to the claims as follows:
(5)
The loans went into default in early 2008. Following negotiations and the furnishing of additional
collateral, the loans were restructured such as to fall due in their entirety in November 2008. However,
repayment was not made at that time. Instead, Thule requested a further extension, and noted that an
agreement had been concluded with Royal Oyster General Trading LLC – Royal Oyster – for the sale of
the three rigs. The extension negotiations did not succeed, but Thule nonetheless transferred control of the
rigs and the mortgaged equipment to Royal Oyster, thus implying that Norsk Tillitsmann lost control of
mortgaged assets. Thule also contributed to Royal Oyster obtaining an attachment order against the rigs,
thus preventing the realisation of the security interests. Any sales consideration that may have been
received by Thule in respect of the mortgaged assets has not accrued to Norsk Tillitsmann.
(6)
It is also argued in the Writ of Summons that incorrect information was provided in connection with the
extension of the loan agreements in the summer of 2008.
(7)
Thule went into liquidation in 2010. Most of the defendants were directors or senior executives of Thule
during the period when the actions alleged to give rise to a liability for damages took place, and the claims
are based on Section 17-1 of the Private Limited Companies Act, as supplemented by non-statutory liability
provisions. In addition, the General Manager and the Chairman of the Board of Directors of NorInvest Ltd.
are named as defendants, on the grounds that NorInvest assumed guarantee liabilities in respect of the loans
without having the financial capacity to do so. The General Manager of NorInvest is also alleged to have
received, in bad faith, sales consideration that fell within the scope of the security interests of Norsk
Tillitsmann. NorInvest, which also went into liquidation in 2010, was owned by Brutel AS. Brutel is
alleged to have contributed, in its role of consultant to Thule, to the elimination or impairment of the
security interests, as well as to have received, in bad faith, sales consideration belonging to Thule.
(8)
The defendants have denied liability, but have principally argued that the case must be dismissed on the
grounds that Norsk Tillitsmann ASA cannot bring legal action in respect of damages for loss incurred by
the bondholders, cf. Section 1-3, Sub-section 2, of the Civil Procedure Act.
(9)
On 30 January 2013, the Oslo District Court rendered a court order with the following conclusion:
(10)
”1.
Case No. 11-164647TVI-OTIR/04 is dismissed.
2.
Norsk Tillitsmann ASA is ordered to pay the legal costs of Hans Eirik Olav in the amount of NOK
535, 950 – five hundred and thirty five thousand nine hundred and fifty, of Peter Andreas
Klaveness Gjessing in the amount of NOK 950,000 – nine hundred and fifty thousand, of Kristin
Mortensen in the amount of NOK 348,905 – three hundred and forty eight thousand nine hundred
and five, and of Aage Thoen in the amount of NOK 200,000 – two hundred thousand; all amounts
with the addition of VAT. Payment shall be made no later than 2 – two – weeks after service of the
present court order.”
Norsk Tillitsmann ASA appealed the ruling to the Borgarting Court of Appeal, which on 7 October 2013
rendered a court order with the following conclusion:
”1.
True translation certified.
17 June 2014
The appeal is rejected.
Knut Hogne Engedal
Government-authorised translator
English – Norwegian • Norwegian – English
3
2.
Norsk Tillitsmann ASA is ordered to pay legal costs before the Court of Appeal in the
amount of 562,000 – five hundred and sixty two thousand – Norwegian kroner to Peter
Andreas Klaveness Gjessing, 517,500 – five hundred and seventeen thousand five
hundred – Norwegian kroner to Hans Eirik Olav, 269,375 – two hundred and sixty
nine thousand three hundred and seventy five – Norwegian kroner to Kristin
Mortensen, 48,400 – forty eight thousand four hundred – Norwegian kroner to Aage
Thoen, with all payments to be made within two weeks of service of the present court
order.”
(11)
Both the District Court and the Court of Appeal take the view that special circumstances are required in
order for an attorney to be able to institute legal proceedings in his or her own name in respect of the
principal’s claim, and that the practical need in the present case is not sufficiently strong to outweigh the
potential negative implications of accepting standing to bring legal actions. Before the Court of Appeal,
Norsk Tillitsmann argued, as alternative grounds of appeal, that the bondholders as a group can be
considered an organisation with the capacity to sue and be sued pursuant to Section 2-1 Sub-section 2, of
the Civil Procedure Act, and that such group acts in the name of the trustee in its relations with third
parties. It did not prevail with this approach either.
(12)
Norsk Tillitsmann ASA has appealed the court order to the Supreme Court. The appeal pertains to the
assessment of evidence and the application of law, but is principally focused on the application of law. On
26 February 2014, the Appeals Selection Committee of the Supreme Court decided that the appeal should
be heard before a division of the Supreme Court, cf. Section 5, Sub-section 1, second sentence, of the
Courts of Justice Act, and that the deliberations should be conducted in compliance with the provisions of
the Civil Procedure Act applicable to appealed judgments, cf. Section 30-9, Sub-section 4, of the Civil
Procedure Act.
(13)
A meeting of bondholders under the largest of the three loan agreements was convened by Norsk
Tillitsmann and took place in December 2013. According to the minutes of the meeting, the amount
outstanding as at the date of the meeting was USD 130 million – which corresponds to the original loan
amount – and the meeting was attended by bondholders representing 53.38 percent of such amount. 97.12
percent of these voted in favour of a resolution in which the meeting confirmed that Norsk Tillitsmann is
authorised to pursue the claims for damages against the defendants in the present case. It also follows from
the resolution that the bondholders have undertaken not to bring legal action themselves in respect of the
same claims, unless the legal action brought by the trustees is dismissed.
(14)
Norsk Tillitsmann ASA has, following a restructuring of the company, changed its name to Nordic Trustee
ASA. The change of name is of no relevance to the case. In addition to its formal name, the present court
order also uses the designations Norsk Tillitsmann, Nordic Trustee and the trustee in referring to the
company.
(15)
The appellant, Nordic Trustee ASA, has principally argued the following:
(16)
The issue of the standing of the trustee to bring legal actions must be deemed to have been resolved
by the court orders of the Supreme Court in the related cases published on page 402 onwards and on
page 1089 onwards, respectively, of the 2010 volume of the "Norsk Retstidende" case law reporter.
Since the trustee is able to bring legal action against the borrower and the guarantor, it must also be
able to bring legal action against individuals and companies that have contributed to their nonperformance, or to the loss of the security interests of the lenders. It is not of decisive importance that
this is a matter of liability for wrongful acts, and not of contractual liability. The disadvantages for
lenders, borrowers and the judicial system by leaving the pursuance of claims to each individual
bondholder are the same. In particular, concern for the equal treatment of the bondholders, including
the scope for attending to the interests of minor bondholders, suggests that the trustee has the capacity
to bring legal action.
True translation certified.
17 June 2014
Knut Hogne Engedal
Government-authorised translator
English – Norwegian • Norwegian – English
4
(17)
Moreover, the trustee is the formal mortgagee and holder of other security interests. A legal action in
pursuance of claims premised on violation of mortgagee interests needs to be coordinated, which can only
be achieved if the trustee has the capacity to pursue the claims for damages.
(18)
Other case law, legal theory and Danish legislation also suggest that there is such capacity to bring legal
action.
(19)
The provisions of the loan agreement to the effect that the trustee shall attend to interests of the
bondholders as such by, inter alia, bringing legal action, have to be interpreted to also encompass legal
action in pursuance of claims for damages. In addition, there is the fact that this has now been confirmed
by the meeting of bondholders.
(20)
Alternatively, in the event that the Court does not accept the principal grounds invoked, it will be argued
that the bondholders as a group have the capacity to sue and be sued, cf. Section 2-1, Sub-section 2, of the
Civil Procedure Act, and that it must in such case be permissible to amend the designation of the plaintiff,
cf. Section 11-5, cf. Section 16-5, of the Civil Procedure Act. There are no procedural obstacles to invoking
such argument for the first time during the appeal round.
(21)
Nordic Trustee ASA has submitted the following statement of claim:
”1.
The case to be heard by the Oslo District Court.
2.
The appellees to be ordered to pay, jointly and severally, the legal costs incurred by Nordic Trustee
ASA before the District Court, the Court of Appeal and the Supreme Court.”
(22)
The appellees, Anders Ivar Olsen, Einar Johan Holst, Brutel AS, Hans Eirik Olav, Peter Andreas
Klaveness Gjessing, Kristin Mortensen and Aage Thoen, have – presented in unison and in brief – argued
the following:
(23)
The issue of whether Nordic Trustee ASA has standing to bring legal action in the case was not resolved
by the court orders rendered by the Supreme Court in 2010. The fundamental elements of the reasoning
underpinning the granting of standing to bring legal actions to the trustee in respect of claims against the
borrower and guarantors are missing when the defendants are third parties outside the scope of the
agreements existing between the borrower, the trustee and the bondholders. The provisions of the loan
agreement to the effect that the bondholders have waived the right to bring legal action themselves do not
apply to such parties, and third parties have not – like the borrower – accepted that the trustee acts on
behalf of the bondholders. This is not changed by the resolution adopted in the meeting of bondholders.
Separate claims from individual aggrieved parties are neither something "everyone" has sought to
prevent, nor is there a practical need for preventing such claims. There are, on the contrary, sound
reasons for keeping to the main rule that anyone holding a claim needs to pursue such claim him- or
herself. Each person’s claim needs to be assessed individually. The amount of the loss will vary, and the
aggrieved parties are not necessarily the same as the current bondholders. Moreover, the aggrieved party
may have contributed to the loss. That happened in the present case when leading bondholders sought to
thwart Thule’s sale of the rigs. The adversarial principle and the need for disclosure of all facts of
relevance to the case also suggest that each aggrieved party needs to be a party to the case, instead of the
trustee acting on behalf of anonymous claimholders.
(24)
The appellees are of the view that the bondholders as a group cannot be considered an organisation with the
capacity to sue and be sued as defined in Section 2-1 of the Civil Procedure Act. Besides, an argument to
such effect would have had to be invoked prior to the District Court dismissing the case.
(25)
Anders Ivar Olsen, Einar Johan Holst, Brutel AS, Hans Eirik Olav, Peter Andreas Klaveness Gjessing,
Kristin Mortensen and Aage Thoen have submitted the following statement of claim:
True translation certified.
17 June 2014
Knut Hogne Engedal
Government-authorised translator
English – Norwegian • Norwegian – English
5
"1.
The appeal to be rejected.
2.
Nordic Trustee ASA to pay the legal costs of Hans Eirik Olav, Peter Andreas Klaveness
Gjessing, Kristin Mortensen, Aage Thoen and the government before the Supreme Court."
(26)
I have concluded that the appeal shall be upheld.
(27)
I note, by way of introduction, that the Supreme Court has full jurisdiction over the matter, cf. Section
30-6, litra a, of the Civil Procedure Act.
(28)
The issue raised by the case is whether the trustee, Nordic Trustee ASA, can, in its own name, bring
legal action on behalf of the bondholders with a claim for damages. The ruling published on page
402 onwards of the 2010 volume of the "Norsk Retstidende" case law reporter for the Supreme
Court concludes that the trustee has the capacity to bring legal action in respect of claims addressed
to the borrower or the guarantor, which ruling pertains to the same bond loans. However, the
current situation is that the borrower has defaulted on the loans and entered into liquidation. The
estate in liquidation has abandoned the mortgaged assets. The legal action targets key persons of,
and affiliated with, the borrower. It is argued, inter alia, that the blameworthy conduct of the
defendants is the reason why the security interests have been lost.
(29)
Whether Nordic Trustee has independent standing to bring legal action needs to be determined on the basis
of Section 1-3, Sub-section 2, of the Civil Procedure Act, which is worded as follows:
"The person bringing the action must demonstrate a real need for having the claim resolved as against the
defendant. This shall be determined on the basis of an overall assessment of the current relevance of the
claim and the affiliation of the parties therewith.”
(30)
It follows from the legislative history that the provision is largely intended to maintain the state of the law
that prevailed under the former Civil Procedure Act, although there is some scope for lowering the
threshold for bringing legal action. The Ministry emphasises that the provision codifies a legal standard
that may be developed and nuanced via case law, cf. Proposition No. 51 (2004-2005) to the Odelsting, page
142.
(31)
The said legislative history observes, with regard to private law matters, that anyone claiming to have
substantive rights or obligations vis-à-vis the defendant will have sufficient affiliation with the legal
action, whilst a more indirect interest in a legal action will as a main rule not suffice; see pages 365-366
of the Proposition. In line with this, and under reference to case law, it was noted in Paragraph 21 of the
ruling published on page 402 onwards of the 2010 volume of the "Norsk Retstidende" case law reporter
for the Supreme Court that an attorney will normally not have standing to bring legal action in its own
name with regard to the claim of its principal. However, circumstances may be sufficiently special as to
make it appropriate to grant standing to bring legal action in respect of third party claims. It is stated [in
the said ruling] that this must be subjected to an independent assessment, where the real need for such
standing to bring legal action will be a key factor. In that specific case it was, as mentioned, concluded
that there is standing to bring legal action. The said court order was followed up in the ruling published on
page 646 onwards of the 2010 volume of "Norsk Retstidende", and that case concerned a non-contractual
claim. The Supreme Court observed, in Paragraph 24 thereof, that although the main rule is that the
plaintiff must purport to himself or herself have a claim against the defendant, recent case law has
concluded that a party which independently handles claims on behalf of others may also have standing to
bring legal actions.
(32)
Before specifically examining whether the trustee has standing to bring legal action, I deem it appropriate
to quote from the description of the loan and trustee arrangement in Paragraphs 23 to 28 of the ruling
published on page 402 onwards of the 2010 volume of "Norsk Retstidende":
True translation certified.
17 June 2014
Knut Hogne Engedal
Government-authorised translator
English – Norwegian • Norwegian – English
6
”(23) Until Norsk Tillitsmann ASA was established in 1993, it was primarily the banks that acted as trustee.
The market has been consolidated following the establishment of the said company, which is currently
owned by a number of banks and financial institutions, and the company’s Portfolio is said to represent
approximately 90% of the loans registered in the Norwegian Central Securities Depository. At present,
Norsk Tillitsmann ASA acts as trustee in respect of approximately 1,700 bond loans and 100 note issuance
facilities, with an aggregate outstanding volume of about NOK 750 billion. [...]
(24) Bond loans have traditionally carried low risk, but there has in recent years evolved a market for highyield bond loans in Norway. As far as such loans are concerned, the trustee will typically play a more active
role in both follow-up and the handling of any default situation.
(25) The bond loans are otherwise characterised by a generally very large number of creditors, and by the
facilitation of trading in the bonds, thus implying that the group of creditors may change on a continuous
basis. There is a clear need for coordination of the similar interests of the bondholders, and it may seem
unrealistically burdensome for a borrower to have to deal with each individual bondholder. The bond loans
may, as illustrated by the bond loan under consideration, be secured through miscellaneous financial
arrangements that involve a number of jurisdictions, and such complexity strengthens the need for
coordination.
(26) In the early 1990s, the Norwegian Bankers’ Association prepared, in cooperation with the Oslo Stock
Exchange, a template agreement that governs the relationship between the borrower, the trustee and the
bondholders. This contractual framework is still being used when arranging the vast majority of such loans.
The agreements, which are concluded between the bond-issuing company and the trustee on its own behalf
and on behalf of the bondholders, are characterised by the trustee being entrusted with the active follow-up
of the rights of the bondholders as against the issuer, with acting as holder of the furnished collateral on
behalf of the bondholders, as well as with any necessary collection effort and legal steps with regard to the
loan.
(27) The contractual framework thereby facilitates the equal treatment of the bondholders and a
proportionate allocation of the overall costs associated with attending to the interests of the bondholders.
(28) The contractual framework implies that each individual bondholder waives the right to personally
engage in collection efforts or taking legal steps against the borrower, with the latter accepting, on its part,
that the trustee may take such steps on behalf of the bondholders. The trustee is not necessarily obliged to
declare default upon every single breach of the loan agreement, as it may attend to the interests of the
bondholders in a less intrusive manner if deemed appropriate. An unconditional obligation for the trustee to
declare default will only arise upon a resolution in the meeting of bondholders, or upon a request that
default be declared being made in writing by bondholders representing no less than 20 percent of the
outstanding loan. Although the bondholders may thus instruct the trustee, and although it must be assumed
that the trustee will engage in an extensive dialogue with leading bondholders when problems arise with
regard to a loan arrangement, it is my view that there can be no doubt that the contractual framework
attends, to a considerable extent, to the interests of the borrowers in a well-organised process when such
circumstances arise.”
(33)
The Supreme Court concluded, in Paragraph 31, that there would seem to be a strong practical need for the
trustee to have standing to take legal steps aimed at attending to the interests of the bondholders in respect
of the relevant loan. Is the situation any different in the present case?
(34)
Nordic Trustee argues that standing to bring legal action for the trustee ensures the equal treatment of
claims with equal status, with coordinated settlement and proportional allocation of any damages and legal
costs awarded. The defendants have objected that the claims of each aggrieved party will need to be
examined individually, and that it cannot be assumed that the losses will correspond to the nominal value
of the bonds.
True translation certified.
17 June 2014
Knut Hogne Engedal
Government-authorised translator
English – Norwegian • Norwegian – English
7
(35)
I am of the view that the loss associated with each bond will, generally speaking, be the same – i.e. the
difference between what earnings it has generated for its holder and what earnings it would have generated
for its holder if the potentially wrongful acts had not been committed. This also applies when the bonds
have been traded in the secondary market. This does not rule out the possibility that some element of
differentiation between the bondholders may be required when ruling on the claim of each [bondholder]. If
there are grounds for reducing any liability for damages on the basis of contributory conduct from the
aggrieved party, it is not necessarily the case that such reduction shall be apportioned equally between the
bondholders. And where a bond has been traded, it is conceivable that questions may be raised, as a matter
of exception, as to whether any claim for damages remains intact on the part of the seller of such bond.
However, I am unable to see that such differences in themselves constitute any argument against a joint
hearing of the case, with the trustee as plaintiff.
(36)
I agree with the appellant that that the principle of equal treatment of the bondholders is a weighty
consideration in favour of a joint hearing, and in favour of permitting the trustee to act on behalf of the
bondholders. A situation in which each bondholder is left to pursue his or her claim may favour those
bondholders with the most resources and expertise, and lead to a race to be the first to establish a basis for
execution and an execution lien.
(37)
Moreover, it would not be particularly rational for the judicial system, for plaintiffs or for defendants if the
claims of the bondholders had to be heard in several parallel or successive legal actions instead of being
coordinated. It would necessarily entail higher and unevenly distributed procedural costs, potential
procedural complications and a risk of unequal treatment.
(38)
These disadvantages can be avoided if the bondholders bring a class action, cf. Chapter 35 of the Civil
Procedure Act, or consolidate their claims, cf. Section 15-2 of the Civil Procedure Act. However, it cannot
be taken for granted that all bondholders will be interested in doing so, and the duty of confidentiality of the
Norwegian Central Securities Depository as to the identity of bondholders, cf. Section 8-1 of the Securities
Depository Act, may represent an obstacle. The fact that the bonds are traded in a market, cf. Paragraph 25
of the ruling published on page 402 onwards of the 2010 volume of the "Norsk Retstidende" case law
reporter for the Supreme Court, also means that class action and consolidation are unlikely to be realistic
alternative approaches to achieving coordinated deliberations.
(39)
Consequently, there is evidently a strong practical need for the trustee to be able to bring legal action.
Hence, the question is whether there are other or weightier counterarguments in this scenario than in the
scenario where the defendant is the actual borrower or guarantor.
(40)
The defendants have argued that individual legal actions will better serve the need for shedding light on
the facts of the case, because it would mean that the aggrieved party is a party to the case, with a duty to
ensure the disclosure of such facts, cf. Section 21-4 of the Civil Procedure Act. The identity of the
aggrieved party will also be known, which will not necessarily be the case when the trustee assumes the
role of plaintiff. I am of the view that these arguments carry limited weight. The duty to testify and to
grant access to evidence is not restricted to the parties only, cf. Section 21-5 of the Civil Procedure Act.
This also implies that a court of justice may, if requested by the defendants, order the Norwegian Central
Securities Depository to disclose the identity of the bondholders. The duty of confidentiality provision in
Section 8-1 of the Securities Depository Act only applies to the extent not otherwise implied by statute,
and the scope of the evidence prohibition provisions in Chapter 22 of the Civil Procedure Act does not
extend to information subject to a duty of confidentiality under the Securities Depository Act. Besides, it
is difficult to envisage how the identity of a bondholder in possession of information of relevance to the
case would be unknown to the defendants. Another important consideration is that it will normally be the
trustee that is best placed to shed light on the facts of the case from the plaintiff side.
True translation certified.
17 June 2014
Knut Hogne Engedal
Government-authorised translator
English – Norwegian • Norwegian – English
8
(41)
Res judicata issues may arise, but are unlikely to be pushed to their extreme under this contractual
relationship. It is reasonable to interpret the provision in Clause 15.2 of the loan agreement, to the effect
that the trustee may, in the event of default, take any steps he deems necessary "to recover the Loan" and
any other amounts outstanding under the loan agreement, to also encompass any steps in relation to others
than the borrower, if such steps may result in coverage [of the claims] of the bondholders. It is certainly the
case that a decision as to whether or not to bring legal action in pursuance of claims for damages against
executives and officers of the borrowing company will normally have to be based on a more complex
factual and legal assessment than a decision to enforce a loan against a company that is liable on
contractual grounds. Consequently, the procedural risk, and thus the risk of exposure to liability for legal
costs, will often be higher. I nonetheless conclude that it is a weightier consideration that one of the
purposes of the trusteeship system is, indeed, to attend to the interests of the bondholders when a loan
arrangement runs into difficulties. It would, from this perspective, not be appropriate for the bondholders to
be left to attend to their interests themselves if the trustee is of the view that there are grounds for holding
persons affiliated with the borrowing company liable for non-performance.
(42)
This interpretation of the contractual relationship implies that a ruling will be binding on the bondholders
under the rules on indirect res judicata, cf. Section 19-15, Sub-section 1, second sentence, of the Civil
Procedure Act. However, I add that I do not consider indirect res judicata to constitute an absolute
prerequisite for permitting the trustee to bring legal action on behalf of the bondholders. This is in
conformity with my understanding of Paragraph 39 of the ruling published on page 402 onwards of the
2010 volume of the "Norsk Retstidende" case law reporter for the Supreme Court. Nor can the ruling
published on page 646 onwards of the 2010 volume of "Norsk Retstidende" be read to mean that the
judgment in the case having indirect res judicata effect in relation to the holders of the rights is an
absolute prerequisite for the claims handler to be granted standing to bring legal action, although such
was the case in that particular action.
(43)
Clause 15.5 of the loan agreement stipulates that individual bondholders cannot on their own "demand the
repayment or enforcement of its bond(s) directly from the Borrower". The said provision can hardly be
interpreted as a duty to refrain from legal action against third parties. However, the fact that the
bondholders have standing to bring legal action on their own cannot prevent them from leaving it to Nordic
Trustee to pursue the claims for damages.
(44)
I am, based on the above, unable to conclude that there are weighty considerations against granting the
trustee standing to bring legal action in pursuance of claims for damages against third parties. The
conclusion is that Nordic Trustee has the power, in its capacity of independent claims handler, to pursue
the bondholders’ claims for damages in its own name.
(45)
This conclusion implies that it is not necessary to address the alternative grounds invoked by Nordic
Trustee.
(46)
The appeal filed by Nordic Trustee ASA has been upheld in full, and Nordic Trustee ASA shall, under the
main rule in Section 20-2, Sub-section 1, cf. Section 20-8, Sub-section 2, of the Civil Procedure Act be
awarded legal costs before all courts. I do not find the exemption provision in Section 20-2, Sub-section 3,
to be applicable. Legal costs are held, in conformity with the submitted cost specification, to be NOK
225,000 before the District Court, NOK 345,000 before the Court of Appeal and NOK 512,600 before the
Supreme Court. Appeal court fees in the amount of NOK 5,160 before the Court of Appeal, and again
before the Supreme Court, are additional thereto. The total amount of the claim is NOK 1,092,920.
(47)
I vote for the following
COURT ORDER:
True translation certified.
17 June 2014
Knut Hogne Engedal
Government-authorised translator
English – Norwegian • Norwegian – English
9
1.
The case shall be heard by the Oslo District Court.
2.
Anders Ivar Olsen, Einar Johan Holst, Brutel AS, Hans Eirik Olav, Peter Andreas Klaveness
Gjessing, Kristin Mortensen and Aage Thoen shall, jointly and severally, pay the legal costs of
Nordic Trustee ASA before the District Court, the Court of Appeal and the Supreme Court in the
amount of 1,092,920 – one million ninety two thousand nine hundred and twenty – Norwegian
kroner within 2 – two – weeks of service of the present court order.
(48)
Justice Normann:
I agree with the main aspects of the reasoning of the first Justice to deliver
her opinion, as well as with her conclusions.
(49)
Justice Kaasen: Likewise.
(50)
Justice Bull: Likewise.
(51)
Justice Skoghøy: Likewise.
(52)
After voting had been completed, the Supreme Court rendered the following
C O U R T O R D E R:
1.
The case shall be heard by the Oslo District Court.
2.
Anders Ivar Olsen, Einar Johan Holst, Brutel AS, Hans Eirik Olav, Peter Andreas Klaveness
Gjessing, Kristin Mortensen and Aage Thoen shall, jointly and severally, pay the legal costs of
Nordic Trustee ASA before the District Court, the Court of Appeal and the Supreme Court in the
amount of 1,092,920 – one million ninety two thousand nine hundred and twenty – Norwegian
kroner within 2 – two – weeks of service of the present court order.
Correct transcript certified:
[Stamped: “OFFICE OF THE SUPREME COURT – OSLO”]
[Signature]
True translation certified.
17 June 2014
Knut Hogne Engedal
Government-authorised translator
English – Norwegian • Norwegian – English