Delivery Hero SE v Mastercard Asia/Pacific Pte Ltd

A contractual right may accrue before the date on which payment becomes due. Termination does not generally divest a right which has already been unconditionally acquired.

Whether a payment right is conditional depends on the contract. Express and carefully calibrated clawback provisions weigh strongly against implying a wider condition based on material breach or total failure of consideration. A contractual payment regime cannot ordinarily be circumvented through unjust enrichment.

Where a contract provides a payment period, that period may regulate when an accrued debt is payable without postponing accrual of the debt itself.

Delivery Hero sought summary judgment under CPR 24.2 for a US$40 million sign-on bonus under its Client Business Agreement with Mastercard. The agreement was terminated in 2022, although the parties disputed the termination date and its legal effect.

The central issues were whether Delivery Hero’s right to the bonus had accrued before termination, whether Mastercard could rely on material breach or total failure of consideration, whether a valid Payment Request was required for accrual, and the appropriate rate of interest.

1. Accrual of the bonus. The sign-on bonus was payable at the Commencement Date, subject to receipt of a valid Payment Request. The agreement made the bonus conditional only on the specified contractual requirements and contained a carefully defined clawback regime. It did not impose an additional condition that Delivery Hero remain free from material breach when the request was made or when payment fell due.
2. Termination and accrued rights. Termination discharged unperformed primary obligations but did not affect rights already accrued or unconditionally acquired. The distinction between accrual of a debt and the time when it becomes payable was decisive. The 45-day period regulated payment of the accrued debt; it did not postpone accrual until the period expired.
3. Payment Requests. The agreement did not give Mastercard a general discretion to impose additional requirements for a Payment Request concerning the sign-on bonus. The request had to be made by Delivery Hero, demand the bonus, be timely, and identify the payment account. Those requirements were satisfied. In any event, a valid request had been received on 2 September 2022, before the earliest date on which Mastercard said termination occurred.
4. Restitution and failure of consideration. The bonus was not arguably recoverable for total failure of consideration because the contractual right had accrued and the agreement specified when clawback could occur. Unjust enrichment could not be used to confer a substantially wider right of recovery than the express contractual regime permitted.
5. Interest. Applying the approach stated in Lonestar Communications Corporation LL v Kaye, interest on the US-dollar award was set at US Prime plus 1 per cent. Interest ran from 45 days after the 14 April Payment Request. The agreed pre-judgment interest was US$3,583,013.70.

Summary judgment was therefore granted for Delivery Hero on the sign-on bonus claim, subject to the judgment and interest order.