Mauritius-based Helios Oryx Limited has dragged Elisenheim Property Development Company to court and is demanding to be paid N$353 million (US$19.8 million) over a loan deal that went south.
This is a new twist to the case after Elisenheim, which is owned by Trustco, was the first to sue Helios Oryx regarding a partial loan secured as growth capital and development of its real estate portfolio during 2016.
Information gathered by The Brief shows Helios Oryx originally agreed to advance a loan of N$640 million (US$40 million) to Trustco and received security for the full amount. During the course of the agreement, however, only N$240 million (US$15 million) was advanced to Trustco.
Trustco then requested that the security provided be reduced to match the loan amount, so that it may use that security to procure the additional funds required to successfully complete its various projects.
Trustco suffered significant economic damages as a result and had to restructure all its international and local loan facilities in 2019. Trustco instituted a damages claim against Helios Oryx after it refused to relinquish its additional security, and Trustco subsequently refused to repay any further amount until its claim had been settled.
During the litigation process in London, it was discovered that Helios Oryx had elected to receive security for the full amount, even though they were aware they were not going to advance the agreed amount to Trustco and had sold its full interest in the loan to Trilinc, an American fund, as soon as the initial N$240 million was disbursed.
Meanwhile, Helios Oryx claims that in 2019 the parties signed a rescheduling and override agreement in London, in connection with US$361 984 and US$365 684, with Trustco represented by its director Quinton van Rooyen and Abrahams.
“Trustco failed to make payments of interest payments which became due, owing and payable on 15 November 2019 in the amount of US$361 984 and 15 February 2020 in the amount of US$365 684. Trustco committed a default event. In May 2020 Trustco was indebted to the plaintiff in the amount of US$19 854 340,” Hanno Bossau, Helios Oryx lawyer argues.
In the present case, which is being presided over by Judge Hannelie Prinsloo, Trustco has demanded that Helios Oryx presents five documents including the minutes of the meetings and resolutions taken by the credit committee of Helios Oryx Ltd concerning Trustco, minutes of meetings and resolutions taken by the credit committee of Helios Oryx Ltd for purposes of finalising the terms of the Standstill Agreement dated 27 December 2018, minutes of meeting and resolutions taken by the credit committee of Helios Oryx Ltd for purposes of finalising the terms of the Restructuring and Override Agreement dated 2 August 2019 and a signed copy together with annexures of the Sub-Advisory Agreement as referred to in the Master Participation Agreement and Helios Oryx Ltd independent valuation report on Elisenheim Property Development Company in 2016.
However, Helios Oryx says it cannot provide the documents.
“The basis of its application, the description of the documents sought, and the person from whom those documents are sought have metamorphosed. In short, the defendant advanced one case in its founding affidavit and, impermissibly, a different case in its replying affidavit. In its heads of argument, the defendant seeks to advance its new case that it has set out in its reply. We oppose this application because the documents sought do not belong to us, nor are those documents under our control or possession the documents sought, as described, do not exist. Trustco mistook the documents to be ours, and they impermissibly seek documents of a third party and are not relevant,” Helios Oryx said.
