Taladro Holdings Venezuela v BOI Bank Corporation
| Jurisdiction | Antigua and Barbuda |
| Judge | Michel, M. |
| Judgment Date | 30 August 2023 |
| Judgment citation (vLex) | [2023] ECSC J0830-1 |
| Docket Number | CLAIM NO. ANUHCV2020/0107 |
| Court | High Court (Antigua) |
CLAIM NO. ANUHCV2020/0107
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Dr. David Dorsett, Counsel for the Claimant
Ms. Talia DaCosta, Counsel for the Defendant
The Claimant is a company doing business in Venezuela and has two bank accounts with the Defendant, an international bank doing business in Antigua and Barbuda (“the Bank”). By re-amended claim form and statement of claim filed on 22 nd January, 2023 the Claimant seeks a declaration that the contractual relationship between the Parties is terminated by notice with effect from 27 th April, 2022 and an order for the repayment of sums held in the accounts of the Claimant with the Bank.
The Bank in its amended defence avers that the Claimant has not complied with the requirements for the return of money held in a current account in accordance with its General Terms and Conditions and has not made a proper demand for money held on a certificate of deposit. The Bank further avers that due to international sanction and the effect on its correspondent banking relationships, it is entitled to rely on a force majeure clause in its General Terms and Conditions agreed to by the Parties, or alternatively, that the contract between the Parties is frustrated.
The Claimant has now applied for summary judgment pursuant to rule 15.2 of the Civil Procedure Rules 2000 (“CPR”) on the issues of: (1) the engagement of clause 30 of the General Terms and Conditions between the Parties; and (2) the sufficiency and validity of the Claimant's demand for the return of its money. The Claimant has applied for summary judgment to be given in the following terms:
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“A. It is declared that the Claimant by an action claiming funds held in its account with the Defendant has given notice of its desire to terminate its relationship with the Defendant thus satisfying the requirements for the engagement of clause 30 of the General Terms and Conditions between the parties and entitling the Claimant to the return of its funds held on account as soon as possible.
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B. It is declared by the initiation of the instant proceedings that the Claimant has issued a sufficient and valid demand for the return of its money held by the Defendant.
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C. An order that all funds held in the account of TALADRO HOLDINGS VENEZUELA in the amount of US$ be paid to TALADRO HOLDINGS VENEZUELA by the Defendant.”
The Claimant's application for summary judgment is supported by the affidavit of Annie Bowen, Senior Legal Clerk. The affidavit of Louise Edwards, Senior Bank Officer of the Defendant Bank was filed in response.
The Claimant has stated the following as the grounds for its application:
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1. “The relationship between the Parties is governed by General Terms and Conditions.
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2. Clause 30 of the General Terms and Conditions provides as follows:
30. Both the Customer and the Bank are at all times entitled to give notice of termination of the relationship; the position shall then be settled as quickly as possible. Time limits shall then be observed, if and insofar as the nature of a transaction entails such. During the settlement, the General Terms and Conditions will remain in full force.
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3. The Claimant is entitled to demand the return of monies held in its account with the Defendant.
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4. The Claimant has brought a claim seeking the return of monies held in the Claimant's account with the Defendant.
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5. The return of the said monies has the effect of rendering the Claimant no longer a customer of the Defendant as financial dealings between the Parties would have ended and there is no basis, commercial or otherwise, for a continuation of any relationship between the Parties.
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6. The issue arising with respect to the engagement of clause 30 is a dispute about a short point of law where the legal issue between the Parties is straightforward.”
The Court's summary judgment procedure is meant to deal with cases which are not fit for trial. 1 It should not be used unless it is apparent that a defendant has no real prospect of successfully defending a claim. The word “real” should be considered on its plain and ordinary meaning, being a realistic as opposed to a fanciful prosect of success. 2
In Myett's Enterprises Limited v Kimberley Cooke Leigh et al 3 Pereira CJ explained that in determining whether a claimant has a real prospect of success, the Court must critically examine the pleadings and any evidence that has been adduced by the Parties but should not conduct a mini-trial and make factual findings on important issues. Pereira CJ explained the Court's task as follows:
“At the outset, the judge or master should identify from the pleadings the real issues in the claim and thereafter determine whether, on the pleadings and the evidence provided, these issues can properly be disposed of summarily. It is only those issues which disclose no real prospect of success that ought to be disposed of using the summary procedure under Part 15 of the CPR…the court should not permit a matter to proceed to trial where the defendant has produced nothing to persuade the court that there is a real prospect that he or she will succeed in defeating the claim brought by the claimant.”
Finally, as it relates to factual findings on a summary judgment application, in Sagicor Bank Jamaica Limited v Taylor-Right, 4 the Judicial Committee of the Privy Council stated that:
“There will in almost all cases be disputes about the underlying facts, some of which may only be capable of resolution at trial, by the forensic processes of the examination and cross-examination of witnesses, and oral argument thereon. But a trial of those issues is only necessary if their outcome affects the claimant's entitlement to the relief sought. If it does not, then a trial of those issues will generally be nothing more than an unnecessary waste of time and expense.”
It is apparent from the authorities on the Court's summary judgment procedure that the Court must identify what are the real issues on a claim and decide whether based on the pleadings and the evidence available to the Court that a claim or defence advanced has a real prospect of success at trial; however, in doing so, the Court should not be making important factual findings on the issues. Thus, the Court is tasked with assessing the prospects of success of the relevant party and not conducting a fact-finding exercise; but where it is evident that a claim justifies the relief sought and that the resolution of a
I will now consider the Parties pleaded case and the evidence available to the Court.
In its re-amended statement of claim, the Claimant stated that it has money deposited in two accounts with the Bank: a current account with €2,995,249.96 standing to the credit of the Claimant as of 31 st December, 2019 and a certificate of deposit account with the principal sum of US$2,000,000.00 standing to the credit of the Claimant as of 31 st December, 2019. The Claimant further alleged that notwithstanding various requests, the Bank has failed to pay to the Claimant the sums held in its accounts with the Bank and that the failure of the Bank to honour the demands of the Claimant constitutes a breach of contract.
The Claimant further alleged that on 20 th April, 2022 it issued a notice to the Bank terminating its banking relationship with the Bank with immediate effect as provided by clause 30 of the General Terms and Conditions agreement between the Parties and demanded that there be settlement within three (3) business days, that is, by 26 th April, 2022. The Claimant further alleged that on 27 th April, 2022 it wrote to the Bank informing it that it took its non-response as repudiation of the contract and demanded the return of funds held by the Bank and that a further letter to the same effect was sent to the Bank on 20 th June, 2022. The Claimant alleged that to date, the Bank has not settled with the Claimant, and there being no settlement, it has pursued a court action to enforce payment of all sums due and owing by the Bank to the Claimant.
The Bank in its amended defence first denied that the sums standing to the Claimant's credit on the certificate of deposit are payable on demand. The Bank averred that such sums will only be available to the Claimant upon the date of maturity thereof, provided that the Claimant cancels its automatic renewal in accordance with the Bank's Terms and Conditions governing certificates of deposits, to which the Claimant has agreed.
As it relates to the sums standing to the Claimant's current account, the Bank admitted that such sums are payable upon demand, but that the sums must be demanded in the form prescribed by the Bank as agreed by the Parties. The Bank alleged that Claimant has produced what it suspects to be fraudulent invoices to support the legitimacy of its deposits and despite demands of the Claimant, the Claimant has failed to produce any contract in support of its services. The Bank alleged that the Claimant has failed to produce certain documents to comply with the requirements of the Office of National Drug and Money Laundering Control Policy (ONDCP). The Bank further averred that the Claimant, having issued proceedings against it, has attempted to circumvent the requirement to issue a demand in the prescribed form...
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