Read the full judgment text of CACV 000171/1989 on BabelCite. This Court of Appeal judgment was delivered on 3 May 1990 before Fuad V-P, Hunter JA, Penlington JA.
Civil procedure – Mareva injunction – continuation of worldwide Mareva – real risk test under Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbh und Co KG [1983] 1 WLR 1412 – whether refusal would involve a real risk that the judgment in favour of the plaintiff would remain unsatisfied – contract for 100,000 metric tonnes of Vietnamese rice at US$258/tonne FOB Ho Chi Minh City for delivery to the Food Corporation of India – sub-contract with plaintiff at US$230/tonne on identical delivery terms – defendant secretly entered a parallel contract with Pilkon International for 50,000 tonnes and split the actual shipments four ships to each party – plaintiff pressed in vain for nominations of the balance of its 50,000 tonnes – defendant subsequently refused further deliveries after the rice market collapsed – defendant justified the diversion by an alleged anticipatory breach founded on a single uncorroborated telephone conversation never subsequently recorded in writing – defendant is a Thai company with all assets in Thailand, no reciprocal enforcement of Hong Kong judgments, and only an indeterminate sum in a Hong Kong bank account solely under its control – trial judge found the defendant had exhibited an unacceptably low standard of commercial morality and "devious conduct", sufficient to establish a real risk of dissipation – whether the trial judge erred in his assessment of evidence – held: appeal dismissed – the judge carefully assessed the whole of the evidence and, if anything, was more benevolent to the defendant than the Court of Appeal would have been – the real risk test was satisfied by the defendant's probity as evidenced by the secret Pilkon contract, the false timetable, the uncommunicated telephone "explanations", and the disingenuous later telexes – Ninemia test applied and met – Mareva injunction continued in the reduced sum of US$1.4 million.
Legal issues: Continuation of Mareva injunction – real risk of non-satisfaction of judgment
Outcome: Appeal dismissed; Mareva injunction continued.
Cited by 1 case