Read the full judgment text of CACV 000064/1995 on BabelCite. This Court of Appeal judgment was delivered on 28 July 1995 before Nazareth VP, Mortimer JA, Liu JA.
Civil procedure – Order 14 summary judgment – triable issue – margin trading account in Japanese securities – defendant claimed oral instruction to former broker to sell – defendant also claimed contract illegal under Japanese law restricting ownership of NTT shares to Japanese nationals. Margin trading – Sanyo Securities (Asia) Ltd – margin account agreement – close-out of account leaving deficit of about Yen 32 million – plaintiff's claim as assignee of the debt. Foreign law – Japanese law – Article 4 of the Nippon Telegraph and Telephone Corporation Law – whether official government interpretation permitted beneficial ownership by non-Japanese persons without registration – held that unregistered shareholders were not 'owners' within the meaning of the law, so trading in beneficial interest was not illegal. Whether the defendant raised a triable issue on the factual defence of oral instruction to sell – held no; the defendant's evidence was inherently incredible and contradicted by contemporaneous documents and his own conduct, including his denial of receiving over 30 monthly statements and a margin call letter sent to his home address. Whether the defendant raised a triable issue on the illegality defence under Japanese law – held no; the defence of illegality was not arguable because performance of the contract did not necessarily involve doing an act unlawful in the place of performance, applying Libyan Arab Bank v. Bankers Trust Co. Whether the Court of Appeal should interfere with the judge's grant of leave to defend – held that the Court will interfere where it is satisfied the defendant's case is incredible or a sham, even though normally slow to disturb a judge's exercise of discretion. Appeal allowed – order of Findlay J set aside – Master Jennings' summary judgment order for Yen 33,947,374.00 with interest reinstated.
Legal issues: Whether defendant raised a triable issue on the factual defence of oral instruction to sell · Whether the illegality defence under Japanese law was arguable · Whether Court of Appeal should interfere with the judge's grant of leave to defend
Outcome: Appeal allowed; the order of Findlay J was set aside and Master Jennings' order for summary judgment was reinstated.