Metallgesellschaft Hong Kong Ltd v Omni Metals Trading
| Jurisdiction | Cayman Islands |
| Judge | (Malone, C.J.) |
| Judgment Date | 30 January 1992 |
| Court | Grand Court (Cayman Islands) |
| Date | 30 January 1992 |
(Malone, C.J.)
A. Jones for the plaintiff;
A. Turner for the defendant.
(1) Brown, Shipley & Co. Ltd. v. Alicia Hosiery Ltd., [1966] 1 Lloyd”s Rep. 668; (1966), 116 New L.J. 1144, dicta of Lord Denning, M.R. applied.
(2) Lloyd”s Bank PLC v. Ellis-Fewster, [1983] 1 W.L.R. 559; [1983] 2 All E.R. 424.
(3) Nova (Jersey) Knit Ltd. v. Kammgarn Spinnerei GmbH, [1977] 1 W.L.R. 713; [1977] 2 All E.R. 463, dicta of Lord Wilberforce applied.
(4) Saga of Bond Street Ltd. v. Avalon Promotions Ltd., [1972] 2 Q.B. 325; [1972] 2 All E.R. 545, dicta of Salmon, L.J. considered.
Grand Court (Civil Procedure) Rules, r.23(5):
‘If the suit is founded upon dishonour of a negotiable instrument, leave to defend will only be granted upon the defendant”s affidavit averring total lack of consideration for the said instrument.’
Civil Procedure-judgments and orders-summary judgment-application for summary judgment for sums due under dishonoured negotiable instrument-defendant not averring total lack of consideration precluded by Grand Court (Civil Procedure) Rules, r.23(5) from obtaining leave to defend-court unable to grant leave partly to honour debt and give unconditional leave to defend on balance in dispute
Bills of exchange-action on bill of exchange-counterclaim-no counterclaim seeking unliquidated damages for breach of underlying or related contract permissible in action on bill of exchange-to be pursued in separate action
The plaintiff applied for summary judgment in an action on dishonoured promissory notes.
The plaintiff brought the present proceedings to recover from the defendant sums of more than US$5m. due on dishonoured promissory notes. The defendant conceded that under the Grand Court (Civil Procedure) Rules, r.23(5), it could not have leave to defend the action since it had not averred a total lack of consideration but opposed the application for summary judgment on the ground that it owed the plaintiff a lesser amount on the promissory notes and sought an order to that effect. It also alleged that it had been agreed orally between the two parties that payment on one of the notes would be deferred. On this basis it counterclaimed for a declaration that the plaintiff was in breach of that agreement and sought to set off against the claim on the notes any damages due to it from the plaintiff.
The plaintiff denied that there was an agreement and submitted that even if there were it could not give rise to a set-off against a claim based on the dishonour of promissory notes.
Held, giving judgment for the plaintiff:
(1) Since the defendant had not averred a total lack of consideration and as a result was denied leave to defend by the Grand Court (Civil Procedure) Rules, r.23(5), there was no triable issue. Consequently, no order could be made for it to pay the plaintiff the admitted amount with unconditional leave to defend with respect to the balance in dispute (page...
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Between Stephenson Tomlinson Plaintiff v Shyam Michael Mashumbi Ebanks Defendants
...– [810] 2 At page 731 of the Judgment, per Lord Hodge DPSC 3 See paragraph 4 of 2 nd affidavit of plaintiff. 4 [1971] 1 All ER 541 5 [ 1992–93 CILR 48] 6 Paragraphs 7 Since there is no agreement regarding costs of the default judgment application those costs of CI$1,130.00 are also to be i......
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Between Stephenson Tomlinson Plaintiff v Shyam Michael Mashumbi Ebanks Defendants
...– [810] 2 At page 731 of the Judgment, per Lord Hodge DPSC 3 See paragraph 4 of 2 nd affidavit of plaintiff. 4 [1971] 1 All ER 541 5 [ 1992–93 CILR 48] 6 Paragraphs 7 Since there is no agreement regarding costs of the default judgment application those costs of CI$1,130.00 are also to be i......