Walek & Company K. G. v Seafield Gentex

• Jurisdiction: Ireland
• Judgment Date: 21 July 1978
• Date: 21 July 1978
• Docket Number: [1976 No. 482]
• Court: Supreme Court

Walek & Co. K.G. v. Seafield Gentex

Gerrit Van Delden and Company Beteiligungs G.m.b.H., Gerrit Van Delden and Company G.m.b.H., Seutter and Company, and Otto Walek, trading as Walek & Co. K.G.

Plaintiffs

and

Seafield Gentex Limited and General Textiles (1970) Limited

Defendants

[1976 No. 482]

Supreme Court

Practice - Judgment - Stay of execution - Action on bill of exchange - Defendant seeking to counterclaim for unliquidated damages - Discretion of Court - Stay refused - Rules of the Superior Courts, 1962 (S.I. No. 72). Or. 42, r. 17; Or. 58, r. 19.

The plaintiffs, a foreign company, supplied yarn to the defendants and were paid by a bill of exchange which was drawn on and accepted by the defendants. The bill was dishonoured by non-payment. The plaintiffs sued the defendants in the High Court on the bill and recovered judgment for the amount of the bill with interest thereon. The defendants wished to counterclaim for unliquidated damages arising from an alleged breach of a fundamental term of the contract for the sale of the yarn, and they applied unsuccessfully to the trial judge for a stay of execution of the judgment against them. On appeal by the defendants it was

Held by the Supreme Court (O'Higgins C.J., Henchy, Griffin, Kenny and Parke JJ.), in disallowing the appeal, that the circumstances did not justify a departure from the practice of the Courts of treating a bill of exchange (which has been duly presented for payment) as equivalent to cash, and of refusing to allow the person properly sued on the bill a stay of execution to enable him to counterclaim for unliquidated damages.

Cebora v. S.I.P. [1976] 1 Lloyd's Rep. 271 and Nova (Jersey) Knit v. Kammgarn Spinnerei[1977] 1 W.L.R. 713 considered.

Cases mentioned in this report:—

¹ Cebora v. S.I.P. [1976] 1 Lloyd's Rep. 271.

² In re Morelli Vella v. Morelli [1968] I.R. 11.

³ Barclay's Bank v. Aschaffenburger Zellstoffwerke A.G. [1967] 1 Lloyd's Rep. 387.

⁴ Newman v. Lever (1887) 4 T.L.R. 91.

⁵ Anglo-Italian Bank v. Wells (1878) 38 L.T. 197.

⁶ James Lamont & Co. Ltd. v. Hyland Ltd. [1950] 1 K.B. 585.

⁷ Brown, Shipley & Co. Ltd. v. Alicia Hosiery Ltd. [1966] 1 Lloyd's Rep. 668.

⁸ Nova (Jersey) Knit v. Kammgarn Spinnerei [1977] 1 W.L.R. 713.

⁹ Irish Dunlop Co. Ltd. v. Ralph (1958) 95 I.L.T.R. 70.

¹⁰ Prendergast v. Biddle— Supreme Court: 31st July, 1957.

¹¹ Warwick v. Nairn (1855) 10 Exch. 762.

¹² Agra and Masterman's Bank v. Leighton (1866) L.R. 2 Exch. 56.

¹³ Morgan v. Richardson (1806) 7 East 482n.

¹⁴ Jackson v. Murphy (1887) 4 T.L.R. 92.

Appeal from the High Court.

The plaintiffs were an Austrian firm, having as its partners three companies incorporated under the laws of Austria and one individual, Herr Otto Walek. The plaintiffs supplied the second defendants with yarn which those defendants wove into cloth. Two bills of exchange, dated respectively the 13th and the 30th June, 1975, and payable to the plaintiffs or to their order, were drawn in Vienna upon the first defendant. Both bills were accepted by the first and the second defendants. The bills became due for payment on the 11th and the 27th September, 1975. Each bill was presented for payment shortly after the date on which it fell due, but was dishonoured by non-payment. The two bills were re-presented for payment together on the 5th December, 1975, and were again dishonoured by non-payment. By summary summons issued on the 25th February, 1976, the plaintiffs claimed (a) the sum of £25,586.56 (the sterling equivalent of 979,948.94 Austrian schillings) due on foot of the bills of exchange, and (b) the sum of £1,660.83 being the total interest due at 15% p.a. from the respective dates on which the bills fell due until the date of the summons, and (c) continuing interest at the same rate until payment or judgment.

The plaintiffs applied to the Master of the High Court on the 1st June, 1976, for liberty to enter final judgment for the amounts claimed. The Master put the summons into the Judge's List. At that stage an affidavit was sworn, on behalf of both defendants, by the secretary of the second defendant. In that affidavit the defendant alleged that, shortly before the month of June, 1975, the plaintiffs had supplied yarn to the defendants as Z twist yarn...