RMK Maritime (Europe) Ltd & Anor v CMB.TECH NV

A restitutionary claim for services provided under a contract depends first on the proper construction of that contract. Where the contract provides a written mechanism for changing the scope of services, and allocates the consequences of doing so, a claimant cannot ordinarily circumvent that regime by pleading unjust enrichment.

Failure of basis requires a shared, objectively ascertainable understanding that the benefit was conditional. A claimant’s unilateral expectation of further payment is insufficient. A claim based on free acceptance must likewise respect the contractual allocation of risk. Work performed under the contract, even if extensive or more onerous than expected, does not itself create an entitlement to additional remuneration.

RMK Maritime (Europe) Ltd and RMK Maritime Capital LLC claimed US$11,677,600 from CMB.TECH NV, formerly Euronav NV, in restitution and quantum meruit. RMK alleged that its M&A advisory work concerning Euronav’s 2018 merger with Gener8 Maritime Inc exceeded the services covered by an Advisory Agreement dated July 2016.

The claimants relied on failure of basis and, alternatively, free acceptance. Euronav contended that the Advisory Agreement covered the work and that its written variation and entire-agreement provisions excluded any restitutionary claim. The issues were the proper scope of the Agreement, whether any work fell outside it, and whether RMK had established a legal basis for additional remuneration.

1. Claim dismissed. RMK’s work fell within the Advisory Agreement. Alternatively, the restitutionary claim failed as a matter of law.
2. The “Project” meant the proposed acquisition of Gener8, not merely an internal study of whether an acquisition was possible. The Agreement’s wording, its termination provisions, and its staged remuneration through completion all indicated a continuing role throughout the transaction.
3. The obligations to develop and update the acquisition model, explain it to third parties, attend meetings and perform other advisory-related work were broad. They covered the Board Book, Pitch Book, deal-structuring work, valuation-related work, discussions with UBS, due diligence assistance, transaction modelling, debt-rollover modelling, fair-value material and assistance with the Form F-4 filing.
4. The Agreement’s provisions that the services list was subject to written change, that the scope could be revised by written mutual consent, and that amendments required writing were significant. They showed that additional services and remuneration were to be dealt with in writing. They displaced a restitutionary claim for allegedly extra-contractual services and allocated to RMK the risk of performing work without a written variation.
5. RMK failed to establish failure of basis. The alleged conversations and assurances were consistent with Euronav contemplating a discretionary bonus for work performed well or taking longer than expected. They did not establish a shared understanding that RMK was working outside the Agreement or was entitled to additional payment.
6. Free acceptance could not assist RMK. The parties were already performing a subsisting contract, and the contractual provisions showed that payment for additional services depended on written agreement. RMK chose to continue without obtaining one and therefore assumed the risk of non-payment, save for any discretionary bonus.
7. It was unnecessary to assess quantum. The claim was dismissed.