The Nautilus Club Nevis Ltd v St. Kitts Nevis Anguilla National Bank Ltd

• Jurisdiction: Saint Kitts and Nevis
• Judge: Saunders, M
• Judgment Date: 10 November 2025
• Judgment citation (vLex): [2025] ECSC J1110-1
• Docket Number: CLAIM NO. NEVHCV2025/0006
• Court: High Court (Saint Kitts and Nevis)

Between:

The Nautilus Club Nevis Limited

Claimant

and

St. Kitts-Nevis-Anguilla National Bank Limited

Defendant

[2025] ECSC J1110-1

CLAIM NO. NEVHCV2025/0006

IN THE HIGH COURT OF JUSTICE

Appearances:

Ms. Barbara Hardtman for the Claimant

Mr. Michael Hylton KC with him Sundiata Gibbs and Midge Morton instructed by Victor Elliott-Hamilton for the Defendant

Saunders, M

1 The Claimant's (“ Nautilus'”) claim is in breach of a written agreement between it and the Defendant (“ the Bank”) dated 9 April 2021 (“ the Agreement”) regarding the financing of a marina. Nautilus claims that the Bank, without lawful justification, ceased financing the project causing it to stall and inflicting severe financial losses. Nautilus alleges that the Bank's conduct amounts to a fundamental breach of contract, bad faith, professional negligence, and an attempt to unjustly enrich itself at Nautilus' expense. The Bank contends that Nautilus was in breach of conditions precedent to the Agreement which caused it to halt funding the project.

2 Nautilus issued an Application for Summary Judgment on the Claim and Counterclaim on 25 March 2025 (“ the SJ Application”) and the Bank issued an Application to Strike Out, among other things, aspects of the Statement of Claim and the Reply and Defence to Counterclaim on 16 May 2025 (“ the SO Application”). The two applications concern competing arguments that the pleadings of the corresponding party are unsustainable and so I heard them together on 29 September 2025. Having heard and considered the parties' submissions, I have decided to dismiss the SJ Application and have granted most of the relief sought in the SO Application. I have set out below the full reasons for my decision.

The SJ Application

3 This application is premised, in summary, on the grounds that:

• a. The Defence has no real prospect of success as Nautilus' case is proved by:

  • i. Admissions at 9, 11 and 24 of the Defence which confirm the Bank's refusal to fund the project;

  • ii. The Bank's failure to supply evidence of alleged defaults; and

  • iii. The Bank's contradiction of their own correspondence, specifically, a letter dated 18 September 2024 which allegedly offered continued financing.

• b. The counterclaim is frivolous insofar as the Bank:

  • i. Unlawfully accelerated the loan in reliance upon allegedly baseless conditions precedent; and

  • ii. Admits ceasing funding.

4 The Bank admits discontinuing funding on 12 February 2023 (the admissions on which Nautilus relies), however, it alleges that Nautilus was in breach of conditions precedent under the Agreement. The alleged breached conditions include the following:

• a. Draft financial statements were to be provided three (3) months after each fiscal year;

• b. Audited financial statements with an audit report were to be provided two months after the draft statements;

• c. Quarterly in-house financial statements were to be provided within 30 days of each quarter;

• d. The debt-to-equity, current and debt service coverage ratios were to be annually provided;

• e. The security provided was to be perfected and remain valid; and

• f. Nautilus was to procure a lease of the seabed for mortgage to the Bank which it is alleged Nautilus botched, among other ways, by proposing the Nevis Island Administration (“ the NIA”) as the third party lessor;

The Law

5 The Court's role on an application for summary judgment is well known and because there was no dispute regarding that role, it is sufficient to say that granting summary judgment is a discretionary exercise in which the Court considers whether to summarily dispose of cases or issues because they do not require a trial due to the absence of genuine disputes of fact 1.

6 As regards whether a term is a condition precedent, see the decision of the England and Wales Court of Appeal Tata Consultancy Services Ltd v Disclosure and Barring Service [2025] 4 WLR 42 in which it was stressed that, whether a term is a condition precedent depends as much on the other clauses in the agreement as it does on the factual background or context:

“18. Speaking for myself, I did not find these cases very helpful in the present context. The clauses were different; the contracts were different; and their background and context were different too. As Leggatt J (as he then was) said in Tartsinis v Navona Management Co [2015] EWHC 57 (Comm) at para 62 it is:

‘… seldom, if ever, helpful in deciding how to interpret particular contractual provisions to refer to a case in which a court has interpreted different provisions of a differently worded contract made in a different factual context.’”

Analysis

7 The Bank has argued that a lender's failure to provide the agreed security is a breach of a condition precedent relying on the decision Pinneys Hotel Development Limited v St. Kitts Nevis and Anguilla National Bank Limited SKBHCV2022/0121 (24 July 2024). In that regard, the Bank contends that the SJ Application has no merit as one of its main defences arises from Nautilus' failure to procure a valid lease of the seabed for mortgage by the Bank. While I agree that Pinneys Hotel Development Limited is relevant to whether one of the defences to the claim is a valid one, the SJ Application appears to go further than that as it is also argued that the Bank's allegations of breaches of conditions precedent are not borne out by undisputed facts.

8 Having reviewed the affidavit evidence provided by the parties, however, the SJ Application should fail because deciding the issues of alleged breaches of conditions precedent cannot be done without conducting a mini trial as this Court ought not to do. In other words, the facts which Nautilus suggests are undisputed are hotly in contest and require determination at trial. I rely on the following:

• a. There are several factual disputes regarding whether Nautilus provided audited, draft and quarterly financial statements (“ the Statements”), as the Bank alleges it failed to do and which financial statements it alleges were conditions precedent to the loan. Nautilus' Reply denies that production of the statements were conditions precedent and has asserted that they were in fact provided. This dispute plays out in the pleadings and the affidavit evidence, among other ways, as follows:

  • i. The Bank giving affidavit evidence of a request for the Statements in February 2023;

  • ii. Nautilus saying in the Reply at [18] that the Statements were provided in 2021 (Exhibit KGDH9 of the Affidavit in Support of Statement of Claim); and

  • iii. Gregory Hardtman, Nautilus' representative, swearing in his affidavit of 14 July 2025 (at [10]) that the Statements were provided to the Bank in March 2023. That date, notably, is later than the date that the Bank first refused to make a disbursement (12 February 2023).

  It is relevant that the Agreement does require Nautilus to provide audited, draft and quarterly financial statements. In my view, given the inconsistent evidence between the parties regarding whether the statements were provided, it is not possible to make a summary determination of whether Nautilus complied with the relevant term of the Agreement.

• b. The other core dispute concerns whether Nautilus failed to provide security for the loan. On that basis the Bank contends that Nautilus did not confirm the identity of the correct lessor for the seabed lease and that their failure to do so was in breach of a condition precedent. The Bank raised this issue in its letter of 9 August 2023 (Exhibit NR-5), noting that the Nevis Air and Sea Ports Authority (“ NASPA”) Act suggested NASPA, not the NIA, was the correct lessor. Nautilus' Reply did not, at least to the Bank's satisfaction, provide that clarification (Exhibit NR-6) and the Bank's rejoinder reiterated the request on 31 August 2023 (Exhibit NR-7). Nautilus frames the issue in its pleadings and its Written Submissions differently. It says that the seabed lease from the NIA, as lessor, had been accepted by the Bank as a valid security prior to the execution of the Agreement and therefore the Bank, seeking to reopen the issue in August 2023, was a breach. The Agreement does not resolve the matter as it only notes that a mortgage of the seabed lease would be provided. It is clear that the issue is one for determination at trial.

9 To the extent that Nautilus contends that the terms in the Agreement relating to the production of the Statements were, in any event not conditions precedent, I do not believe such a conclusion can be drawn without a trial of the issue. As discussed in Tata Consultancy Services Ltd, the contractual significance of a term cannot be properly weighed unless the Court is apprised of the full factual context of the dispute. In respect of Nautilus' argument that the provision of security was not a condition precedent, as I have said, I agree with the Bank that my decision in Pinneys Hotel Development Limited is relevant. A valid defence to a claim for breach of a loan agreement may be the failure on the borrower's part to provide the agreed security.

10 Insofar as Nautilus also contends that the Bank's letter of 18 September 2024 is an admission of the whole of the claim, in my view, the letter was written in the course of, or, with a view to the settlement of the dispute. The letter is therefore equivocal as a party may seek a compromise for a host of economic and other reasons which...