Société des Industries Metallurgiques S.A. v Bronx Engineering Company Ltd (Mulita)
| Jurisdiction | England & Wales |
| Judge | LORD EDMUND-DAVIES,LORD JUSTICE BUCKLEY,LORD JUSTICE ORMROD |
| Judgment Date | 23 January 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0123-3 |
| Docket Number | 1975 S. No.236 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 January 1975 |
[1975] EWCA Civ J0123-3
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from Mr. Justice Boreham in Chambers)
Lord Edmund-Davies
Lord Justice Buckley and
Lord Justice Ormrod
MR. NORMAN TAPP, Q. C. and MR. M. CURWEN (instructed by Messrs. Goodman Derrick & Co.) appeared on behalf of the Appellants.
MR. ANDREW BATESON, Q. C. and MR. G. E. ADEANE (instructed by Messrs. T. J. James Co., Agents for Messrs. Higgs & Sons, Brierley Hill) appeared on behalf of the Respondents.
(as approved)
This is a plaintiff's appeal from the order of Mr. Justice Boreham who on the 15th January refused to continue until the trial of an action for breach of contract an injunction granted ex parte by Mr. Justice Arnold on the 10th January. That injunction restrained the defendants from removing out of the jurisdiction certain machinery and equipment described as "a Bronx combined driver and pull-through slitting machine, a Bronx stop/start cut-to-line, and equipment ancillary thereto". The matter has been presented as one of extreme urgency and, in consequence, it has been interposed into the ordinary court list. Further consequences of the great urgency asserted are that the affidavit evidence on both sides is open to criticism in several respects and that the court is deprived of the opportunity of adequate reflection on several of the points which have arisen. For the plaintiffs indeed are seeking to secure prompt possession of these articles for early shipment to Tunisia. All one can hope to do in the circumstances is to present in a broad manner the nature of the case and such reasons as we have formulated for arriving at the conclusions to which we have respectively come.
The plaintiff company carries on business in Tunis. The defendants are an engineering company whose registered office is at Stourbridge. The case for the plaintiff is that on the 7th September 1973 the defendants contracted to sell certain machinery which they were to manufacture at the " ex-works" figure of £270,400, to which were to be added charges totalling £17,100 for transport to and loading on board ship, the final figure being thus £287,500. The defendants' term for delivery was as follows: "Completion at our works ready for despatch nine months after receipt of order and after settlement of all technical and commercial details". The parties treated June 9th 1974 as the due date of despatch. The terms of payment were an irrevocable letter of credit for: 10 per cent, with order; 35 per cent, half-way through delivery period, inspected by Lloyds; 35 per cent on presentation of shipping documents and certificate of Lloyds that machines were ready; 10 per cent, on completion of commissioning but not later than four months after delivery f. o. b. U. K. port; and finally 10 per cent, six months after the former term.
The parties have treated the contract as one coming within the Sale of Goods Act, 1893, and that seems right. We are therefore charged to consider the plaintiffs' claim to interlocutory relief in the light of the provisions regarding specific performance contained in section 52 of that Act.
That this was no ordinary contract for the sale of goods is manifest from the substantial amount of the agreed price and from the affidavit evidence presented by the defendants themselves that the machinery in question would take 9-12 months to manufacture. It weighs 220 tons and its purpose is two-fold: (A) to uncoil lengths of metal on a drum and cut them into longitudinal strips by means of what is called the "pull-through and slitting machine"; and (3) to cut a roll of steel into pieces of different shapes and sizes by the so-called "Flying Shear". The defendants emphasise that the machinery which was the subject-patter of the contract had nothing to do with the making of pipes or tubes and urged that, on the available evidence, the plaintiffs were already possessed of tube-making equipment and are therefore not justified in stressing the dire difficulties which will arise in relation to contracts entered into by them with customers if such tube-making equipment is withheld from them.
On 23rd January 1974 the plaintiffs paid the defendants the first 10 per cent instalment of £28,750 and on 2nd April the instalment of 35 per cent or £100,625, the payments made thus amounting to £129,375 or some 45 per cent of the total purchase price. The balance of the £287,500 remains unpaid owing to the dispute which thereafter arose between the parties and led to the defendants intimating on the 20th December 1974 that the plaintiffs had repudiated the contract and that they were accepting such repudiation. They also intimated that they had found a Canadian buyer for the machinery at what appears to be a substantially enhanced price and that they were proposing to have it removed out of the jurisdiction to fulfil his contractual requirements. In the light of that information the plaintiffs issued a writ on the 10th January this year, claiming (l) specific performance of the contract, (2) an injunction restraining the defendants from disposing of the machinery otherwise than for the plaintiffs and (3) damages. On the same day they successfully applied ex parte to Hr. Justice Arnold for an injunctionrestraining the defendants from removing the machinery out of the jurisdiction.
The narrative of events between the contract and the alleged repudiation by the plaintiffs is complicated and tortuous, involving as it does the obtaining of a Tunisian import licence, the opening of letters of credit, the nominating of a carrying vessel, the nature of the machinery being sold, whether the plaintiffs could properly be taken to have repudiated the contract, and the consequences for the plaintiffs if the defendants in breach of their contract with the plaintiffs dispose of the subject-matter to their Canadian customer.
What is clear is that the defendants were unable to effect delivery in early June in accordance with the contract and were not in a position to do so until late September. By that time the plaintiffs' import licence from the Tunisian Government had expired and their request for an extension thereof was still being dealt with. Difficulties later arose in relation to the vessel "Mulita" which wan nominated to transport the machinery to Tunis, and further complications arose when the big crane for handling such heavy cargo at Tunis port broke down and diversion to another port became necessary. All this culminated in the defendants intimation on the 11th December that if arrangement were not made to enable them to ship the machinery from a British port before December 25th they would treat the contract as having been repudiated by the plaintiffs.
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Specific Performance and Injunctions
...specifically enforced. 60 57 Cohen , above note 43. See also Société des Industries Metallurgiques SA v Bronx Engineering Co Ltd , [1975] 1 Lloyd’s Rep 465 (CA). 58 See, for example, Cud v Rutter (1719), 1 P Wms 570 at 571, 24 ER 521 (Ch), Parker LC; Re Schwabacher (1908), 98 LT 127 at 128......
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Table of Cases
...265 Société des Industries Métallurgiques S.A. v. Bronx Engineering Co., [1975] 1 Lloyd’s Rep. 465 (C.A.) .......................................................... 392 Société Nationale Industrielle Aerospatiale v. Lee Kui Jak, [1987] A.C. 871, [1987] 3 W.L.R. 59, [1987] 3 All E.R. 510 (P.......
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Table of cases
...378 Société des Industries Métallurgiques SA v Bronx Engineering Co, [1975] 1 Lloyd’s Rep 465 (CA) .....................................................................544 Société Nationale Industrielle Aerospatiale v Lee Kui Jak, [1987] AC 871, [1987] 3 WLR 59, [1987] 3 All ER 510 (PC) .........
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Specific Performance and Injunctions
...goods. See ibid. at 443–44. 47 Above note 33. See also Société Des Industries Metallurgiques S.A . v. Bronx Engineering Co. Ltd ., [1975] 1 Lloyd’s Rep. 465. Specific Performance and Injunctions 923 J. was required to consider whether these three sources of specific relief — specific per......