Kinair Ltd v W & W Electronics Company Ltd

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Byron, J.
• Judgment Date: 28 March 1983
• Neutral Citation: MS 1983 HC 7
• Docket Number: No. 68 of 1981
• Date: 28 March 1983

High Court

Byron, J.

No. 68 of 1981

Kinair Ltd.

and

W & W Electronics Co. Ltd.

Appearances:

Mr. John Kelsick for the plaintiff.

Mr. John S. Weekes for the defendant.

Practice and procedure - Writ of summons — Striking out

Facts: The defendant sought to strike out the writ of summons of the plaintiff with all subsequent proceedings on the ground that it disclosed no reasonable cause of action or constituted an abuse of the process of the court or was otherwise defective. The plaintiff had issued a writ claiming a sum of money for air freight due and owing for goods carried by the plaintiff for and at the request of the defendant.

Held: There was no merit in the submission of the defendant. A cause of action was disclosed and the plaintiff gave full particulars of the claim. The only relief which the defendant could pursue would be by way of appeal. Application dismissed.

Byron, J.

1 On 14 ^th March 1983 the defendant issued a summons to strike out the Writ of Summons issued on 26 ^th June 1981 with all subsequent proceedings on the ground that it disclosed no reasonable cause of action and or constitutes an abuse of the process of the court and or is otherwise defective.

2 On 26 ^th June 1981 the plaintiff issued a specially endorsed writ claiming $18,154.08 for air freight due and owing for goods carried by the plaintiff for and at the request of the defendant during the months of August, September, October and November, 1980 as per the statement of account dated 26 ^th March, 1981 rendered to the defendant. “Copy of which statement is attached and form part hereof”. “Copy of which statement is attached and form part hereof.” A copy of the statement of account was attached to the writ.

3 On 31 ^st June 1981 the defendant entered an unconditional appearance and on 30 ^th September 1981 served and filed a defence in which it admitted owing US $4,025.69, and alleged that in respect of the disputed part of the bill the plaintiff never presented any airway bills or other documents despite repeated request. The plaintiff filed its summons for directions and this come on for hearing on 25 ^th October 1982. The defendant was represented by counsel. One of the directions sought was judgment for the sum admitted. The defendant consented. It was accordingly ordered as follows:–

1

“By consent that the plaintiff enter judgment for US $4,025.69 or its equivalent in ECC. Being the part of claim admitted by defendant. 2. By consent that each party delivered to other a list of all relevant document in possession within 14 days verified by Affidavit and that there be inspection within 7 days 3. That matter should be set down for trial in the court.”

4 On 12 ^th January 1983 a Writ of Execution was issued.

5 On 10 February 1983 the plaintiff filed its lists of documents. In the affidavit opposing the application the plaintiff that a director of the defendant offered to settle the judgment by instalments of $500.00 per month and paid the first instalment on 11 ^th February 1983.

6 The defendant changed its solicitor on 26 ^th January 1983.

7 In...