Cometor Sa v Ghobrial
| Jurisdiction | England & Wales |
| Judge | THE VICE-CHANCELLOR,LORD JUSTICE HIRST |
| Judgment Date | 24 February 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0224-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No FC/93/6045E |
| Date | 24 February 1994 |
[1994] EWCA Civ J0224-2
THE SUPREME COURT OF JUSTICE
THE COURT OF APPEAL (CIVIL DIVISION)
Application of the defendant from the order of Mr Justice Henry dated 30th April, 1992
Before: The Vice-Chancellor Lord Justice Hirst and Lord Justice Waite
No FC/93/6045E
The Applicant appeared in person.
MR PLATT (Instructed by Armstrong & Co, Forest Hill, London) appeared on behalf of the Respondent.
(As Approved)
Thursday, 24th February, 1994
( After hearing discussion, the following took place:
We will make an order in the circumstances I indicated discharging the Mareva order granted by Henry J on 30th April. Was it on 30th April?
30th April, affirmed on 30th May 1992. There is one further matter which is the conduct of action in the future. The point to be raised in future argument is the capacity of Mr Ghobrial to continue with action. Your Lordship will be familiar with the fact that there is an outstanding judgment given by Hamilton J by way of summary judgment proceedings, against which appeal has been lodged. There is also a counter-claim for which Mr Ghobrial, as bankrupt, has no capacity to continue given it is vested in his trustee. It is my submission that that counter-claim ought to be stayed. It was also the submission of the Plaintiffs that all appeals in this matter ought to be stayed as well as the trustee being a party to any appeal brought by Mr Ghobrial.
THE VICE CHANCELLOR: Is this a matter before the court?
It is not. It was one of the reasons why, I think, my solicitor swore an affidavit. It is something that could conveniently be dealt with given that, certainly as regards the facts of the bankruptcy, there is no dispute. It is simply what consequences flow from that. In my submission, there is no capacity, certainly so far as the counter-claim—— -
THE VICE CHANCELLOR: What is the counter-claim?
I think it is for about £800; it is in the matter, a defence and counter-claim, sworn by Mr Ghobrial. In essence, he had money undertaken only on a calculation as to how the indebtedness was worked out.
THE VICE CHANCELLOR: Whereabouts is that?
I have not the benefit of one of these folders which your Lordship has. I have simply taken it from the documentation supplied by those instructing me. I do make the submission so far as the appeal generally is concerned in respect of O.14. I have to confess that there are some difficulties here given who the trustee is in the sense that a trustee would have to consent to the appeal against his own client.
THE VICE CHANCELLOR: What is the position? Is this the point raised by Mr Ghobrial?
In what sense?
THE VICE CHANCELLOR: As I understand it, what he was saying was that the trustee in bankruptcy was actively involved before the bankruptcy was made and was acting for the Plaintiff. Is that right?
Yes. They are a Swiss company and he was appointed as their agent and he swore the affidavits and brought the Mareva injuntion. The Plaintiffs are the only substantial creditors in this matter. They appointed Mr Smith, who is a licensed insolvency practitioner, to be trustee in bankruptcy on 2nd February 1993, obviously it being the case that he has more knowledge of this matter than anyone else. It was thought that
he was in the best position to try and recover what assets there were from Mr Ghobrial's estate. I cannot say anymore than that; that is what we know.
THE VICE CHANCELLOR: What did strike me as somewhat unusual about this was —is this right? —that the Plaintiff was bringing an action and at the same time bringing separate bankruptcy proceedings in relation to the same debt.
What, in fact, occurred is that there was a statutory demand issued which Mr Ghobrial made an attempt to set aside, but it was not successful; and that led to the bankruptcy order being made. Mr Ghobrial's appeal was dismissed.
THE VICE CHANCELLOR: The fact is that the statutory demand was served at the same time as an application for summary judgment was outstanding.
Yes. It may be that it was thought that the statutory demand might have been set aside and the belt-and-braces approach was the appropriate one to take. Certainly, the Mareva relief was better founded on the writ issued. I think the great desire was to stop Mr Ghobrial dissipating what assets the Plaintiffs believed he did have, given that he managed to get a great deal of credit.
THE VICE CHANCELLOR: I am not absolutely clear as to precisely what is outstanding.
In terms of—— -
THE VICE CHANCELLOR:—— - the...
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