Trelane Ltd v Edward Karl Furtak

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judge: Subair Williams, J.
• Judgment Date: 27 January 2026
• Docket Number: 2025 No. 89

Trelane Ltd

and

Edward Karl Furtak

BM 2026 SC 9

Subair Williams, J.

2025 No. 89

Supreme Court

Appearances:

Plaintiff: Mr. Kyle Masters and Ms. Siobhan Boys ( Carey Olsen Bermuda Limited)

Defendant: In Person

RULING

INTRODUCTION

Subair Williams, J.

1 This Court is concerned with the Plaintiff's application, brought by way of a summons filed on 15 July 2025 and dated 29 July 2025, to strike out the Defendant's Defence dated 3 July 2025 and later filed on 7 July 2025. Conjunctively or alternatively, the Plaintiff seeks summary judgment. On both applications, judgment is sought in substantially the same terms as prayed in the Specially Endorsed Writ of Summons (the “Writ”):

• (i) The principal sum of US$382,751.19 (Outstanding Principal Sum);

• (ii) Interest in the amount of US$91,860.32, being interest calculated at the agreed rate of 1.5% per calendar month on the Outstanding Principal Sum (Agreed Rate) from 1 March 2024 to 30 June 2025.

• (iii) Further interest at the Agreed Rate from 1 July 2025 to the date of payment;

• (iv) Liquidated damages in the amount of $50,000;

• (v) Costs

2 The Plaintiff's summons is supported by the Third Affidavit of Mr. David Kessaram, of law firm Cox Hallet Wilkinson Limited (“CHW”). That affidavit was sworn and filed on 15 July 2025. Mr. Kessaram's Second Affidavit, sworn on 18 June 2025 and filed on 21 June 2025, was made in support of the Plaintiff's earlier application to set aside the Defendant's Memorandum of Appearance. The first affidavit filed by Mr. Kessaram in these proceedings was sworn and filed on 6 May 2025. That affidavit was filed in support of the Plaintiff's application for an Order for substituted service.

3 Having received the oral and written submissions of both Mr. Masters for the Plaintiff and Mr. Furtak who appeared as a litigant in person, I reserved my Ruling which I now provide together with the reasons set out below.

THE PLEADED FACTS:

4 A Specially Endorsed Writ of Summons (the “Writ”) was filed on 11 April 2025. On the facts pleaded in the Statement of Claim, the Plaintiff is a corporate entity organized under the laws of the British Virgin Islands. It carries on business as an investment holding company. The Defendant is said to be a business man.

5 The Plaintiff loaned monies to the Defendant. By a promissory note (the “promissory note”) dated 15 January 2024, the Defendant agreed to repay the Plaintiff a principal sum of $497,487.86 in instalments as follows:

• A. US$114,428.94 on 31 January 2024;

• B. US$283,263.33 on 29 February 2024;

• C. US$99,487.86 on 31 March 2024

6 The promissory note further provides that in the event of default on any of the amounts specified above, the entire principal sum or the outstanding balance thereof, together with liquidated damages in the sum of US$50,000.00, shall become immediately payable. The promissory note also expressly states that it shall be governed by Bermuda law and that any outstanding sums shall be recoverable by proceedings issued under the exclusive jurisdiction of a Bermuda Court.

7 It is stated in the Statement of Claim that on 20 March 2024 the sum of US$382,751.19 was still owing under the agreement and promissory note and that on that same date the parties entered into a written forbearance agreement (the “first forbearance agreement”). A copy of the first forbearance agreement was exhibited to Mr. Kessaram's 6 May 2025 affidavit.

8 In the first forbearance agreement the Defendant agreed to pay the Plaintiff the outstanding principal sum of US $382,751.19 in two installments with interest at the rate of 1.5% per calendar month calculated from 29 February 2024 and the further sum of US$5,000 in liquidated damages on the new dates specified in the first forbearance agreement. In exchange, the Defendant would be released from his obligation to pay the sum of US$50,000 in liquidated damages. At paragraph [1] of the first forbearance agreement, it provides, in its relevant parts:

“Trelane will forbear enforcing the payment obligations of EKF … PROVIDED THAT each of the payments below are made in whole and on time:

• a. ..

• b. …

• c. The principal amount due under the promissory note dated 15 January 2024 (US$382,751.19) in to equal instalments of US$191,375.60 each on 31 May 2024 and 30 June 2024 with interest on each instalment at the rate of 1.5% per calendar month calculated from 29 February 2024 to the date of payment, namely, the sum of US$8,611.89 on 31 May 2024 and the sum of US$11,482.52 on 30 June 2024; plus the amount of US$5,000 in liquidated damages on 30 June 2024.”

9 The Plaintiff's case is that on 3 May 2024 it entered into a second written forbearance agreement (the “second forbearance agreement”) with the Defendant. A copy of the second forbearance agreement was also exhibited to Mr. Kessaram's 6 May 2025 affidavit. By the second forbearance agreement, the Defendant agreed to pay the principal sum outstanding (US$382,751.19) with accrued interest at the agreed rate of 1.5% (per calendar month) on the dates set out in the first forbearance agreement “without prejudice to the Plaintiff's rights under the 15th January 2024 promissory note and the 20th March 2024 forbearance agreement” (para [6] of the Writ).

10 The Plaintiff's case is that the Defendant failed to meet his obligations under the 3 May 2024 agreement. Instead, the Defendant sought the further indulgence of the Plaintiff for the repayment of the outstanding sums. The Plaintiff obliged the Defendant to the extent set out in email correspondence between the parties between 16 July 2024 and 16 April 2025.

11 The Defendant admits his indebtedness but relies on the doctrines of estoppel, waiver and variation to support his defence. At paras. [1.2]–[3.4] of his Defence, Mr. Furtak states:

“…

1.2 The Defendants [Defendant] aver[s] that the Plaintiff is not entitled to the relief claimed, whether by way of default judgment or otherwise, due to the subsequent conduct of the parties and the representations made by the Plaintiff following the execution of the Forbearance Agreement dated March 2024 (the “FBA”).

…

• 2.1. The Defendants [Defendant] admit[s] the execution of the FBA and the indebtedness described therein as of that date.

• 2.2. The FBA provided that the Plaintiff would forbear from enforcing repayment obligations provided certain scheduled payments were made, and set out the consequences of default in clause 2.

…

• 3.1 Since execution of the FBS, the Plaintiff and the Defendants [Defendant] engaged in frequent telephone and email communications, during which the Plaintiff represented that it would not take enforcement action pending the refinancing efforts of the Defendants [Defendant].

• 3.2. In reliance on these ongoing assurances, the Defendants [Defendant] continued their [his] efforts to refinance and restructure their repayment proposals to accommodate the Plaintiff's demand for additional default interest as consideration for delayed enforcement.

• 3.3 The Plaintiff repeatedly indicated that immediate enforcement would not be pursued, and that repayment extensions were acceptable, conditional only on the continued accrual of interest.

• 3.4. The Defendants [Defendant] reasonably relied on these representations and refrained from seeking alternative debt restructuring options or emergency legal protection.”

12 Based on these pleaded facts, the Defendant asserts an entitlement under the equitable doctrines of estoppel and waiver. Alternatively, he asserts a variation of contract. His pleaded case is that the Plaintiff waived the right to strict compliance with repayment dates set out in the first forbearance agreement, and that it varied the terms of the said agreement. Without any reference to the second forbearance agreement, the Defendant's case is that the Plaintiff is accordingly estopped from asserting a right to immediate enforcement.

13 At paragraph [4.3] of the Defence, Mr. Furtak states that the Plaintiff's commencement of legal proceedings is sudden and that it contradicts the Plaintiff's prior representations, thereby constituting an abuse of process. (Notwithstanding, the Defendant did not seek to strike out the Plaintiff's claim. It is apparent that the Defence was pleaded in response not only to the Writ but also to the Plaintiff's earlier application for the setting aside of the Memorandum of Appearance for judgment in default.)

THE LAW ON STRIKE-OUT

14 The Plaintiff says the Defence should be struck out pursuant to the Court's inherent jurisdiction or pursuant to the Court's statutory powers under RSC Order 18/9(1)(d) which provides:

18/19 Striking out pleading and indorsements

• 19 (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that—

  • (a) it discloses no reasonable cause of action or defence, as the case may be; or

  • (b) it is scandalous, frivolous or vexatious; or

  • (c) it may prejudice, embarrass or delay the fair trial of the action; or

  • (d) it is otherwise an abuse of the process of the court;

    and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

• (2) No evidence shall be admissible on an application under paragraph (1)(a).

15 The Plaintiff argues that the Defence does not disclose a reasonable defence as indebtedness is admitted without material qualification. Mr. Masters submitted at paragraph [13] of his written submissions; “The Court should exercise its case management powers to save the time and costs of what is bound to be a hopeless endeavour on the part of the Defendant to avoid payment in the circumstances.”

16 Citing my earlier ruling in David Lee Tucker v. Hamilton Properties Ltd. [2017] Bda L.R. 136 Mr. Masters submitted that the Court's determination of a strike out...