Read the full judgment text of CACV 000012/1991 on BabelCite. This Court of Appeal judgment was delivered on 1 May 1991 before Sir Derek Cons, V.P., Kempster JA, Clough JA.
Civil procedure – enforcement of judgment – examination of judgment debtor – Order 49B rule 1B of the Rules of the Supreme Court – judgment for approximately US$10.8 million against Mr. Bhagwandas Kewalram Murjani and others in Action 1404 of 1989 – judgment creditor (Bank of India) recovered less than US$20,000 – examination before Master O'Donnell spanning five days from August to December 1990 – debtor claimed to have divested all assets and income to family trusts in 1970 – master refused to make any order holding the criminal standard of proof beyond reasonable doubt was not met – whether the court must be satisfied beyond reasonable doubt before making an instalment or other payment order under subrule (2)(a) given that imprisonment may follow non-compliance under subrule (3)(a) – held, yes; the words 'is able to satisfy the judgment' in subrules (1) and (2)(a) are identical and bear the same meaning, and the common factor of possible imprisonment attracts the criminal standard – In re Bramblevale Ltd [1970] 1 Ch 128 followed and the formulation of Winn L.J. preferred – Dean v. Dean [1987] 1 FLR 521 applied – whether 'readily identifiable assets' is a precondition to a payment order – held, no – the master's view on this point disapproved – whether judgment creditor should bear the costs of the final day of submissions – held, yes; costs follow the event – appeal dismissed – cross-appeal allowed – order varied so that the judgment creditor bears the costs of the final day of submissions.
Legal issues: Standard of proof for orders under Order 49B rule 1B(2)(a) of the Rules of the Supreme Court · Whether readily identifiable assets in the debtor's name is a precondition to a payment order · Costs of the final day of the examination following dismissal of the application
Outcome: Appeal dismissed; cross-appeal allowed; order below varied.
Cited by 7 cases