Goldkorn v MPA (Construction Consultants) Ltd & Anor

[2025] EWHC 385 (TCC)

The question for Jonathan Acton Davis KC was whether Goldkorn had title to bring claims against MPA as the assignee of the Second Defendant’s (Kazu 1) rights pursuant to a Deed of Assignment. The claims arose out of a project management contract between MPA and Kazu 1. Kazu 1 was a special purpose vehicle incorporated for the purposes of the development.

Clause 16.2 of the T&Cs provided:

“The benefit of this Appointment may be assigned by the Client by way of an absolute legal assignment to any person providing finance or refinance to the Client in connection with the Project or to any person (A1) acquiring the Client's interest in the Project and by (A1) to another person (A2) acquiring A1’s interest in the Project. No further or other assignment is permitted and, in particular, A2 is not entitled to assign this Appointment.”

Clause 18.2 provided:

“Nothing in this Appointment confers or purports to confer any right to enforce any of its terms on any person who is not a party to it. Only the Client (and the Client's permitted assignees) and the Consultant can take action to enforce the terms of this Appointment.”

Construction began in May 2017. However, by 17 January 2018, Kazu 1 had terminated the Project. On 19 June 2020, Kazu 1 entered into Creditors Voluntary Liquidation. On 22 December 2020, Kazu 1 and Kazu, the parent (acting by their liquidator), entered into a Deed of Assignment in favour of Goldkorn, who had been a director of Kazu 1. Goldkorn, issued proceedings against both MPA and Kazu 1, alleging that MPA acted in breach of its duties owed to Kazu 1 under the PM Appointment.

The only question for the court was whether, on its proper construction, clause 16.2 of the PM Appointment precluded the assignment of the MPA Claim to Goldkorn.

The court held that Goldkorn had not acquired Kazu 1’s “interest in the Project”, as this meant an interest in the actual construction works themselves. The “Project” was defined as “the construction works at the site as identified in the Proposal”. Further, the lease of the Premises had been disclaimed by Kazu 1, which meant that which remained would have reverted to the Landlord.

Goldkorn said that the restriction in clause 16.2 only applied to “the benefit of this Appointment”, which referred to Kazu 1’s right to MPA’s performance of its services but not to Kazu 1’s right to the fruits of performance (including accrued rights of action in respect of MPA’s breaches of its past obligations). Accordingly, the purported assignment fell outside the ambit of the restriction in clause 16.2. Again, the judge disagreed. The use of the phrase “the benefit of this Appointment” was intended to draw an “appropriate contrast” with the burden of the Appointment (which was not assignable). It did no more than that.

Finally, Goldkorn said that claims in tort fell outside the scope of clause 16.2. Again, the judge disagreed. The tortious duties were identical to the contractual duties. They, therefore, formed part of the “benefit of this Appointment” and were barred by clause 16.2.

Goldkorn did not have title to bring any of the claims against MPA.

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