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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Trafigura Beheer BV v BCL Trading Ges  EWCA Civ 251 (11 February 2002)
Cite as:  EWCA Civ 251
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IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO AMEND
AND PERMISSION TO RELY ON FURTHER EVIDENCE
ON APPEAL FROM ORDER OF MR JUSTICE STEEL
Monday, 11th February 2002
B e f o r e :
SIR ANTHONY EVANS
|TRAFIGURA BEHEER BV||Appellant|
|- v -|
|BCL TRADING Ges||Respondent|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
MR N SWAINSTON (Instructed by Ince & Co of London) appeared on behalf of the Respondent
Crown Copyright ©
"Please find enclosed the letter of credit opened today from our bankers."
"Documents presented later than 21 days after shipment date are acceptable provided they are presented within the validity of the [letter of credit]."
"We refer to your letter on 16/3/00 and hereby inform you that delivery was duly made. We accept the discrepancies."
"On this aspect of the case, as I have already indicated, I have come to the conclusion that it would not be appropriate to give summary judgment. But, on the other hand, it would be right to make a conditional order requiring the defendants to pay into court a sum, subject to any further argument, in respect of the purchase price by virtue of the fact of my conclusion that the defendant's defence on this matter is, as I have described it, improbable."
"This makes it unnecessary to consider the other defences relied upon by the defendant since they were all conditional on being wrong on the primary issue. But I will very briefly touch on them.
(1) Settlement This issue will turn on oral evidence, but it has to be said that the correspondence following the main meeting, which I will not solemnly read out, is very difficult to reconcile with any such agreement. The point may be arguable but it is likewise improbable.
(2) The price is not due The suggestion that the price was not due because property in the goods was not passed because the goods have been rejected and/or because a right of disposal had been maintained is a somewhat startling proposition, at least on the basis of the facts that I have sought to summarise earlier in this judgment. But I am not disposed to shut the defendants out from arguing the point."
"I suspect the judge's decision of conditional leave is right. I have however granted permission because it seems to me the statement supporting a stay raises the question whether the imposing of the condition is not equivalent to giving judgment (a point not taken before the judge) and because arguing at an oral hearing whether there are reasonable prospects of success will almost involve hearing the appeal in a case of this sort."
"I have advised the defendant's solicitors, Middleton Potts, by fax dated 24/7/2001 that in the event that the court is minded to give the defendant permission to defend, the claimant would be asking the court to do so on terms, ie, that the outstanding purchase price be paid into court, alternatively,that the defendant provide acceptable security for the purchase price. In that eventuality, the court will no doubt wish to consider the financial strength of the defendant."
"The latest available accounts for BCL are for the year 1998. They show a profit triple that of 1997, of Austrian Shillings 21,591,598.07."
"MR EGGARS: My Lord, may I take a moment to take instructions? (After a pause) My clients have no objection to the amount which your Lordship suggests to be put up ..... They do ask though if, instead of payment into court, they could have the option of posting a bank guarantee."
"Where, under a contract of sale, the property in the goods has passed to the buyer and he wrongfully neglects or refuses to pay for the goods according to the terms of the contract the seller may maintain an action against him for the price of the goods."