Fairfax Gerrard Holdings Ltd.& Ors v Capital Bank Plc, Court of Appeal - Commercial Court, October 10, 2006, [2006] EWHC 3439 (Comm)

Reporting Judge: [2006] EWHC 3439 (Comm)

President: Fairfax Gerrard Holdings Ltd.& Ors v Capital Bank Plc

Linked as:

Extract

Fairfax Gerrard Holdings Ltd.& Ors v Capital Bank Plc, Court of Appeal - Commercial Court, October 10, 2006, [2006] EWHC 3439 (Comm)

Draft 12 January 2007 14:23 Page 27

Neutral Citation Number: [2006] EWHC 3439 {QB}

Case No: 2005 Folio 689

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date:Trial 9th and10th October 2006

B e f o r e :

HIS HONOUR JUDGE MACKIE QC

- - - - - - - - - - - - - - - - - - - - -

Mr Simon Mills (instructed by B P Collins for the Claimants)

Mr David Casement (instructed by Wragge & Co for the Defendant)

- - - - - - - - - - - - - - - - - - - - -

JUDGMENT

Judge Mackie QC :

This is a dispute between two lenders about the ownership of an industrial machine following the insolvency of a customer. The dispute involves construction of a Finance Agreement, issues under Section 25 of the Sale of Goods Act 1979 and Section 2(1) of the Factors Act 1889 and a question about the assessment of damages for conversion.

The Background

The First Claimant Fairfax Gerrard Holdings Limited (``FGH'') is in the business of trade finance with its subsidiaries which include Fairfax Gerrard International Limited (``FGI'') and Assetline Limited (``Assetline''). I will refer to this group of companies, of which the managing director was Mr David Ross as ``FG''. FG typically provide finance by purchasing goods for a customer and passing title to him only when repaid. The client pays fees and other charges for the service which is particularly sought by traders who do not have the financial resources or creditworthiness to borrow in other ways. One customer was Dimond Machinery Limited (``Dimond'') which later changed its name to Dimond International Limited. During a brief existence Dimond offered automatic foil stamping die cutting machines for sale under its brand name, purchasing these as and when required, from manufacturers in China. The Managing Director of Dimond was Mr Howard Rudge. He was assisted by an employee Mr Ian Walmsley and by the Company Secretary Mr Anthony Mitchell who spent little time in the business. Dimond had an existing customer Carrprint Limited (``Carrprint'') to whom it ...

See the full content of this document