Rosler v Hilbery
| Jurisdiction | England & Wales |
| Date | 1925 |
| Court | Court of Appeal |
Practice - Service out of Jurisdiction - Company established Abroad - Sequestrator appointed - Asset of Company in Hands of Agent in England - Undertaking by Agent not to part with Asset - Action in England by Members of Company against Agent and Sequestrator - Plaintiffs Foreigners and resident Abroad - Forum conveniens - Service of Notice of Writ on Sequestrator out of Jurisdiction - Injunction - “Necessary or proper party” - Order XI., r. 1, sub-rr. (f) and (g).
By Order XI., r. 1: “Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge whenever …. (f) Any injunction is sought as to anything to be done within the jurisdiction …. or (g) Any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction.”
A company established in Belgium was, owing to a preponderance of enemy interest therein, ordered by the Belgian Court to be wound up, and a sequestrator, the defendant C., was appointed to collect the assets, to satisfy the creditors, and if there were any surplus assets to distribute them among the members of the company in accordance with their rights. A company in England, which was being wound up under the Trading with the Enemy Act, was found to owe the Belgian company a sum of 22,500l. Under an order of the Court made in the winding up this sum was, at the request of the defendant C., paid to the defendant H., a solicitor in London, who gave an undertaking not to part with it until further order. An action was then commenced by the three plaintiffs, who were members of the Belgian company, all aliens and resident abroad, against the defendants C. and H., claiming an injunction to restrain the defendant H. from parting with 22,500l., which was described as representing moneys belonging to the persons who formerly constituted the Belgian company, an inquiry as to how much thereof was due and payable to the plaintiffs respectively, and an order on the defendant H. to pay such amounts to the plaintiffs respectively. An order was subsequently obtained by the plaintiffs ex parte giving them liberty to serve a notice of the writ of summons out of the jurisdiction on the defendant C. at Antwerp. On an application by the defendant C. to discharge the order:—
Held (by Russell J. and the Court of Appeal), that the forum conveniens was the Belgian and not the English Court, and that the order for substituted service must therefore be discharged and the service of the notice of the writ on the defendant C. set aside.
Held also by the Court of Appeal (Russell J. expressing no decided opinion on the point):—
1. That having regard to the undertaking given by the defendant H. the injunction was not really part of the relief sought and was wholly unnecessary, and was asked for only to found the jurisdiction of the Court to make an order for substituted service, and accordingly that the substance of the case did not fall within sub-r. (f) of r. 1 of Order XI.
2. That the primary defendant was the defendant C. and not the defendant H., who was only a subordinate and secondary defendant, and that the case therefore did not fall within sub-r. (g) of r. 1 of Order XI.
MOTION.
Before and during the war there was established in Belgium a company called Zeller Villinger & Co. It was a société en commandite, and the members of which it was composed were, as to some of them, under limited liability, and, as to others, under unlimited liability. The company itself was, according to Belgian law, a separate entity. There were ten members of the company, of whom six were of enemy nationality, German or Austrian, one was an American, and the three remaining members were the plaintiffs. At the outbreak of the war the company was, owing to the preponderance of enemy interests therein, ordered by the Belgian Court to be wound up, and the defendant, M. Georges Caroly, was appointed sequestrator to deal with its assets, to pay its liabilities, and to receive the debts due to it. Among the debts owing to it was one of 22,500l., by a company in England called Winter & Co., Ld., which was being wound up under the Trading with the Enemy Acts. That sum accordingly became payable to the defendant Caroly as sequestrator of Zeller Villinger & Co., and on May 2, 1924, an order was made in the winding up of Winter & Co. and another company also carrying on business in England in which the three plaintiffs appeared, one of whom was a Czech, one a Belgian, and one a Swiss, all of whom were resident abroad, that the 22,500l. should, at the request of the defendant Caroly, be paid to the defendant Hilbery, as his solicitor and agent in this country. At the same time an undertaking was given to the Court by the defendant Hilbery that he would not part with the 22,500l. for twenty-one days, and that if within that period proceedings were commenced in this country by the plaintiffs he would not part with it until further order. Within the twenty-one days the plaintiffs commenced the present action against the defendants Hilbery and Caroly, claiming by their writ: (1.) an injunction to restrain the defendant Hilbery from transferring or paying to the defendant Caroly, otherwise than with the consent of the plaintiffs or the order of the Court, the whole or any part of the 22,500l., representing moneys belonging to the persons who formerly constituted the Belgian company of Zeller Villinger & Co., and the persons claiming through or under such persons respectively; (2.) an inquiry as to how much of such sum was due and payable to the plaintiffs respectively; (3.) an order on the defendant Hilbery to pay such amounts to the plaintiffs respectively; and (4.) all further requisite accounts and inquiries. The writ was served on the defendant Hilbery in this country, and on July 1, 1924, an order was obtained ex parte from Tomlin J. for leave to serve notice of the writ out of the jurisdiction on the defendant Caroly at Antwerp. Service of the notice of the writ was duly effected and a conditional appearance was entered by the defendant Caroly.
A motion was now made on behalf of the defendant Caroly to discharge the order of Tomlin J.
Wilfrid Hunt for the motion. The action having been commenced within twenty-one days after the order was made by Tomlin J. there is a continuing undertaking by the defendant Hilbery not to part with the money. There was, therefore no ground for asking for an injunction against him. The question is whether the case comes within Order XI., r. 1 (f) or (g). If there was no reason for asking for an injunction then it does not come within sub-r. (f). Apart from the claim for an injunction there was no reason for making the defendant Hilbery a defendant. The case was therefore not within sub-r. (g), as the defendant Hilbery was not a necessary or proper party to the action. Even if the case did come within Order...
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