Arbuthnot Export Services Ltd v. Kays Impex Corporation (Hong Kong) Ltd and Another
Read the full judgment text of HCA 3354/1973 on BabelCite. This High Court CFI judgment.
1. Mr. Jackson-Lipkin for the appellant (1st defendant) takes the point that the respondent (plaintiff) is not the right person to sue for the return of the money. It is contended that on this ground the 1st defendant should be given unconditional leave to defend the action. He refers to para.5 of the statement of claim which alleges that the plaintiff issued the 2 L/C's. But the 2 L/C's exhibited to the affidavit of Peter Hamlin Davies as PHD-1 and PHD-7 disclose that it was Arbuthnot Latham &
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HCA003354/1973 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 3354 OF 1973 -----------------
----------------- Coram: LI, J. Date of Judgment: ----------------- JUDGMENT ----------------- 1. Mr. Jackson-Lipkin for the appellant (1st defendant) takes the point that the respondent (plaintiff) is not the right person to sue for the return of the money. It is contended that on this ground the 1st defendant should be given unconditional leave to defend the action. He refers to para.5 of the statement of claim which alleges that the plaintiff issued the 2 L/C's. But the 2 L/C's exhibited to the affidavit of Peter Hamlin Davies as PHD-1 and PHD-7 disclose that it was Arbuthnot Latham & Co. Ltd. which issued the L/C's in favour of the 1st defendant. The plaintiff is not the company which issued the L/C's and the pleadings as such do not disclose that the plaintiff has lost any money. 2. In my opinion such a point is more appropriate for an application to strike out the proceedings. This is not an appeal against an order refusing an application to strike out the proceedings. If I understand the argument correctly it amounts to saying that the pleadings disclose no cause of action on the part of the plaintiff. In that case unconditional leave to defend is a cumbersome procedure and inappropriate. However this is not the essential reason for dismissing the appeal. 3. Mr. Ching for the plaintiff directs my attention to the fact that the plaintiff was formerly known as John K. Gilliat & Co. Ltd. which was the applicant for the issue of both L/C's in favour of the 1st defendant. The plaintiff's case is that the 1st defendant had been paid twice the purchase price of the goods delivered. On affidavit the 1st defendant has admitted that that was so although at this stage the 1st defendant takes up the point that the money paid over to the defendant is not the plaintiff's money. 4. The plaintiff's case is one to recover money for failure of consideration or money had and received or damages for negligence on the part of the 1st defendant. There is evidence that the L/C's were issued in favour of the 1st defendant on application of the plaintiff. There is evidence that only one half of the goods contracted for were delivered to Nigeria and that the Nigerian Bank would only paid for the goods actually delivered. It is common commercial practice that the applicant for L/C would have to reimburse the issuing bank if the amounts in the L/C were not repaid in full. In short, Arbuthnot Latham & Co. Ltd. would eventually have recourse against John K. Gilliat & Co. Ltd. i.e. the plaintiff. 5. As regards the alleged defect in para.5 of the statement of claim which alleges that the plaintiff issued the L/C I am of opinion that, such defect, even if essential, can be cured by amendment of the pleadings. For the aforesaid reasons I find the point taken by the 1st defendant must fail. 6. After a short adjournment Mr. Jackson-Lipkin informs me that the 1st defendant is prepared to stand or fall on this point and this point alone and that the 1st defendant intends to appeal to the Full Court on this point. In view of the circumstances this appeal is dismissed with costs with certificate for counsel. Representation: |