Pentium (BVI) Ltd Landcleve Corporation v The Bank of Bermuda

• Jurisdiction: British Virgin Islands
• Judge: ALLEYNE, J.A.,Justice of Appeal,Michael Gordon Q.C.,Denys Barrow S.C.
• Judgment Date: 12 January 2005
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: CIVIL APPEAL NO. 14 OF 2003
• Date: 12 January 2005

IN THE COURT OF APPEAL

Before: Hon. Brian Alleyne S.C. Justice of Appeal

Hon. Michael Gordon Q.C. Justice of Appeal

Hon. Denys Barrow S.C. Justice of Appeal (Ag.)

CIVIL APPEAL NO. 14 OF 2003

BETWEEN

Pentium (BVI) Limited Landcleve Corporation

Appellant

and

The Bank of Bermuda

Respondent

Appearances:

Mr. James Goudie Q.C. and Mr. Jeffrey Elkinson for the Appellant

Mr. Stephen Moverley Smith Q.C. for the Respondent.

1 ALLEYNE, J.A..: The Bank of Bermuda Limited has applied for leave to appeal to Her Majesty in Council from the decision of this court delivered on 20^th September 2004 dismissing its appeal, and the respondent's cross appeal against a judgment of the High Court granting an application for summary judgment against the Bank on a claim of Landcleve Limited in the action, and dismissing the application of Pentium, declaring that the only issue for trial is whether Pentium is estopped from denying that the Bank lawfully debited its account on wire instructions purportedly signed by Norman Gibson and Pentium's managing director, thereby limiting the Bank in its defence to its plea of estoppel.

ALLEYNE, J.A.

2 At the outset Mr. Goudie, Q.C. for the applicant indicated his position that the issues to be determined are first, whether or not the order of the High Court was a final judgment, which issue would determine whether the proposed appeal is as of right or discretionary; and secondly, if the order was not a final order, whether the court should exercise its discretion to grant leave to appeal to the Privy Council by reason of the general public importance of the matters raised in the proposed appeal. Mr. Moverley Smith Q.C. for the respondent agreed that those are the issues to be determined. We also agree.

3 Learned Queen's Counsel for the applicant conceded that the decision to limit the Bank's defences to the issue of estoppel is clearly not final, but submitted that the order for summary judgment is a final order. Mr. Goudie submitted that the appropriate test for determining the issue, particularly in the case of an order for summary judgment, is not the application test but the order test. In support of this submission learned counsel urged that there are two lines of authority on the issue, that the decisions of the Privy Council favour the order test, that none of the decisions of this court or other courts in the Caribbean which favour the application test have been considered by the Privy Council, but that this court should be guided by the decisions of the Privy Council in regard to the appropriateness of the order test, more particularly in matters relating to orders for summary judgment.

4 Learned counsel reviewed a number of decided cases in favour of both approaches. He made a critical analysis of the case ofSylvester v. Singh1, and argued that this case was not clearly determinative of the issue. Counsel conceded that the application test is the settled English position, but submitted that this court has not a settled position.

5 Learned Queen's Counsel referred to the case ofRe Lim Kim Guan, ex parte Four Seas Bank Ltd2, a judgment of the High Court of Singapore which applied the order test in bankruptcy proceedings; Haron Bin Mohammed Zaid v. Central Securities (Holdings) BHD [1983] AC 163, a decision of Her Majesty's Privy Council on appeal from the Federal Court of Malaysia, which decided that a question of whether an

order was final or interlocutory was a matter for the Federal Court to decide in accordance with its own practice and procedure, and accordingly affirmed the Federal Court's application of the order test; Allen v. Wright [1960] 2 WIR 1004, a decision of the West Indies Federal...