WAI KEE MARINE SUPPLIES LTD v. GULFEAST SHIPMANAGEMENT LTD

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JUDGMENT

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Kempster, JA:

1. This is an appeal from the judgment and order of Nazareth J, as he then was, given and made on 2 September of this year granting the defendants, Gulfeast Shipmanagement Ltd, unconditional leave to defend the proceedings brought against them by Wai Kee Marine Supplies Ltd, the plaintiffs, for the price of goods sold and delivered. On 13 August Master Woolley had given the plaintiffs summary judgment for the sum claimed but execution was stayed pending the appeal to the judge.

2. On 11 February 1991 the defendants had filed a Defence, refiled as amended on 3 May, contending that the goods in question had been sold by the plaintiffs not to them but, as we now know, to, probably, foreign owners of certain named vessels. Their role, it was contended, was merely of agents for the shipowners. It was common ground that the goods had been delivered by the plaintiffs directly to the vessels in question on credit, that the plaintiffs had sent invoices to the defendants, albeit usually addressed to the shipowners or masters, and that in the normal course of such transactions payment was made to suppliers by shipowners' agents.

3. In the light of evidence which may be forthcoming at any trial, relating particularly to custom, the principles explained by Roskill J, as he then was, in Maritime Stores Ltd v H.P. Marshall & Co Ltd [1963] 1 Lloyd's Rep 602 may well be relevant but the evidence presently before this Court, as it was before Nazareth J, makes it strongly arguable that at all material times the plaintiffs knew that the defendants were acting as agents and without personal liability. For example, in a transaction in March 1988 which, it would seem, was mirrored in the material transactions, the defendants, acting expressly "as managers only", invited the plaintiffs to tender for the requirements of a particular vessel.

4. In the circumstances I am satisfied that there are indeed issues arising in these proceedings warranting trial and that Nazareth J was right so  to find and to grant unconditional leave to defend.

5. I would dismiss this appeal.

Sir Derek Cons, V-P:

6. I agree with my Lord. As I understand as a whole the affidavit filed on their behalf the defendants have raised a defence based on trade custom which has, as yet, not been displaced. I, too, would allow the appeal and uphold the unconditional leave to defend given by the judge below.

Clough, JA:

7. I agree that the appeal should be dismissed for the reasons given by my Lords. I would only add that I commend Mr Andrew Chung for his able argument.