New Guarantee Trust Finance Ltd v Birbeck

JurisdictionJersey
CourtRoyal Court
Judge(Crill, Deputy Bailiff and Jurats de Faye and Le Breton):
Judgment Date18 August 1977
Date18 August 1977
ROYAL COURT
(Crill, Deputy Bailiff and Jurats de Faye and Le Breton):

F.C. Hamon for the plaintiff;

M.M.G. Voisin for the defendant.

Contractrepudiationacquiescence as baracceptance of interest due on debt not acquiescence in fundamental breach unconnected with interest paymentsrepudiation not barred

Contractwaiver/renonciationreliance by promiseepromise not to insist on promisor's strict legal rights only effective if acted on by promisee

CRILL, DEPUTY BAILIFF:The plaintiff is a company which provides hire-purchase facilities for persons wishing to buy motor vehicles. The defendant is a businessman with interests, inter-alia, in property development, hotels and hire-cars. He is registered in the Register of Business Names as the owner of "Blue Eagle Hire Cars". In January, 1973, he and other members of the Birbeck family promoted a company called "Victor Birbeck Car Hire Limited" which was intended to take over the business of "Blue Eagle Hire Cars", but, apparently, according to the company's Minute Book, did not do so. Nevertheless, there appeared to be some doubt whether the action ought to have been brought against that company, rather than the defendant. However, Mr. Voisin, who appeared for the defendant, accepted that, to all intents and purposes, Mr. Birbeck was the sole person behind "Blue Eagle Hire Cars", and so, in this case, when we refer to Mr. Birbeck we do so in that capacity, unless specially excluded by the context; but in general it will be more convenient to refer to the defendant as "the defendant company".

In 1975, the affairs of the plaintiff company, as regards hire-purchase activities, were in the hands of the Managing Director, Mr. J.F. Haasbeek, and the Manager, Mr. P. Cochrane. In that year Mr. Birbeck, who had been approached informally by Mr. Cochrane in 1974, to see whether he was interested in the plaintiff company financing his fleet of hire-cars, "shopped around", that is to say, examined a number of similar companies offering the same kind of facilities and decided that the plaintiff company was the more attractive, from the point of view of the rates of interest. Accordingly, he agreed with Mr. Cochrane that he would like to take up the suggestion and there was a meeting between Mr. Birbeck, Mr. Haasbeek and Mr. Cochrane, at the offices of the plaintiff company in the early part of 1975.

A contract was entered into for the financing of Mr. Birbeck's fleet for 1975. We will examine the details of that contract later. It is sufficient to say here that at least part of that agreement was repeated in 1976. The principal terms of the agreement were that the plaintiff company would provide a 100% advance to the defendant company to buy the hire-car fleet for the season. Interest was to be paid monthly, as it fell due, and the capital was to be repaid at the end of the season when the defendant sold the vehicles, or not later than the 30th November, 1975. At all times, until such sales, the property in the vehicles was to remain vested in the plaintiff company.

It was argued by Mr. Voisin that the agreement was one which is known in the motor trade as a "stocking agreement". To some extent it was such, but it differed from the usual stocking agreement inasmuch as it did not allow the defendant company to change the stock, which the lender, the plaintiff company, held in its name as security for the advances, without the latter's consent. We think that such a term was implied in the agreement.

Mr. Hamon, for the plaintiff company, submitted that the contract was not contained in the agreement between the defendant, Mr. Haasbeek and Mr. Cochrane, as evidenced in the letter of the 15th February, 1975, to which we were referred, from Mr. Cochrane to the defendant, but that that letter meant no more than that the plaintiff company was prepared to examine any offers to finance particular vehicles, as and when they should be submitted. In other words, the letter and the terms agreed at the meeting were no more than intention of a willingness to treat on the behalf of the plaintiff company.

Mr. Voisin's argument was that the hirepurchase forms, on the other hand, were no more than the taking of security for the loan on each vehicle. If that is so, why was it necessary for Mr. Birbeck to give a separate guarantee on each of the hire-purchase forms if he was already bound by the terms agreed at the meeting and expressed in the letter of the 15th February, 1975, a copy of which he signed to signify his acceptance In any case, Paragraph 3 of the letter qualifies the agreement. In our view, a proper interpretation of the agreement reached between the parties is that each hire-purchase document was to form part of the contract, and, therefore, should be read in conjunction with the letter.

Both parties intended that repayment for the advance should be made, as we have said, when the vehicles were sold at the end of the season. Of course, any short fall on the sale would have to be made good by the defendant company. Clause 4(c) of each hire-purchase document is as follows:

[The hirer shall ] (c) "Not during the hiring take or send the Goods or permit them to be taken or sent from the Island of Jersey without the written consent of the Owners."

Clearly, it was an implied term of the contract that it was not necessary, before effecting a sale, to obtain the written consent, but, equally, it was an implied term that following any such sale the proceeds would be accounted for to the plaintiff company.

In July, 1976, the plaintiff company purported...

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10 cases
  • The Representation of Thompson, Amy (Née Remon), Whorrall (Née Remon) and Remon
    • Jersey
    • Royal Court
    • 15 Mayo 1989
    ...Maincrop Potato Mktg. Bd. v. de Gruchy, 1971 J.J. 1819. (7) Macready v. Amy, 1950 J.J. 11. (8) New Guar. Trust Fin. Ltd. v. Birbeck, 1977 J.J. 71; further proceedings, sub nom. Birbeck, In re, 1979 J.J. 111; further proceedings, 1980 J.J. 117; further proceedings, 1980 J.J. 183; on appeal, ......
  • Maria da Piedade de Sousa v Danny Yau Ltd trading as Princess Garden
    • Jersey
    • Royal Court
    • 2 Septiembre 2019
    ...Code. Comparative Law in Practice (2016). ( Hamon v Webster unreported 19th July, 2002). New Guarantee Trust Finance Limited v Birbeck (1977) JJ 71. Hanby v Moss (1966) JJ 625. Rossborough (Insurance Brokers) Limited v Boon [2001] JLR 416. Grove v Baker [2005] JLR 348. Pothier in his Traité......
  • Grove and Briscoe v Baker
    • Jersey
    • Royal Court
    • 11 Julio 2005
    ...A.C. 239; [1976] 2 All E.R. 39; (1976), 120 Sol. Jo. 267, dicta of Lord Wilberforce applied. (5) New Guar. Trust Fin. Ltd. v. Birbeck, 1977 J.J. 71, applied. (6) Selby v. Romeril, 1996 JLR 210, considered. (7) Sibley (née Pavey) v. Berry (née Du Feu), 1992 JLR N-4, distinguished. Text cited......
  • Oliver v ABN AMRO Bank NV
    • Jersey
    • Royal Court
    • 25 Septiembre 1995
    ......Cttee. , 1995 JLR 65, distinguished. . (10) New Guar. Trust Fin. Ltd. v. Birbeck , 1980 J.J. 117, considered. . (11) ... in an island which justifiably prides itself as an international finance centre. The Act of 1911 was repealed and replaced in the United Kingdom by ......
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