New Guarantee Trust Finance Ltd v Birbeck

CourtRoyal Court
Judge(Crill, Deputy Bailiff):
Judgment Date23 May 1980
Date23 May 1980
(Crill, Deputy Bailiff):

A.J. Olsen for the plaintiff;

P.R. Le Cras for the defendant.

Bankruptcydgrvementrefusal to become tenantby Loi (1880) sur la Proprit Foncire, art. 94, creditor's refusal to become tenant aprs dgrvement destroys hypothque judiciaire on which creditor could have claimedunderlying debts not "nuls et comme non avenus" but remain in existence and payment may be enforced by other remedies

Statutesinterpretationordinary meaning to be followedclear words should be given their ordinary meaning, but if result is unreasonable or absurd, other interpretation should be sought

Statutesinterpretationstatute to be considered as a wholemust find intention of legislature by considering overall problem statute designed to deal with, statute as a whole, existing state of law and other legislation in pari materia

CRILL, DEPUTY BAILIFF:On the 23rd January, 1978, the plaintiff company obtained a judgment against the defendant in the Royal Court for 54,799.02 with interest, and subsequently registered it. Later the defendant's real property was subjected to a dgrvement under the Loi (1880) sur la Proprit Foncire. Three properties were involved. In accordance with the provisions of Article 94 of the 1880 Law, the plaintiff company was called upon by the Greffier at the hearing provided for by the Article to accept the properties seriatim as "tenants aprs dgrvement". It refused to do so. The relevant part of Article 94 then came into force. It is: "Ceux qui, tant appels leur tour, feront dfaut, ou qui, tant prsents, refuseront de se porter tenants aux biens en dgrvement, seront vincs de toute rclamation ou hypothque sur lesdits biens: et leurs contrats et autres pices seront absolument nuls et comme non avenus. . ." The plaintiff company now seeks to imprison the defendant relying on the unsatisfied judgment of the 23rd January, 1978, and an affidavit from a Director of the company attesting to the arrears of interest on the judgment. Mr. Le Cras for the defendant submitted that the meaning of the words "nuls et comme non avenus" are clear and unambiguous, and that accordingly, since the plaintiff company renounced its rights before the Greffier to take the properties of the defendant as "tenants", the "pice" in the form of the judgment, (and a fortiori the claim for interest made thereunder) are of no effect and the plaintiff company cannot rely on them. Mr. Olsen, who appeared for the plaintiff company, and Mr. Le Cras accepted that the judgment could be considered a "pice" within the meaning of the Article. I accept that this must be so. However, Mr. Olsen submitted that the plaintiff company has only lost its rights against the properties in dgrvement and that the debt, and the interest that flows from it, has not been extinguished by the relevant words of Article 94. The issue, therefore, is one of interpretation of those words.

I was referred to one Jersey case. It was that of In re Bonn, 1971 J.J. 1771, where the Court said this at page 1787: "By Article 94 (as amplified by Article 2), each creditor is given the opportunity, in turn, to...

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8 cases
  • Le Monnier v Attorney General
    • Jersey
    • Royal Court
    • 26 April 1989
    ...Clyde-Smith for the Crown. Cases cited: (1) Att. Gen. v. Clark, 1987-88 JLR 448, distinguished. (2) New Guar. Trust Fin. Ltd. v. Birbeck, 1980 J.J. 117; further proceedings, 1980 J.J. 183; on appeal, sub nom. Birbeck v. Midland Bank Ltd., 1981 J.J. 121, considered. (3) Nicholson v. Brown, [......
  • AG v Smith
    • Jersey
    • Royal Court
    • 23 September 2004
    ... [1999] JLR 238 Denny v Hodge [1973] JJ 2429 Macready v Amy [1950] JJ 11 Overseas Insurance Brokers Limited [1963] JJ 325 New Guarantee Trust Finance Ltd v Birbeck (1980) JJ 117 Criminal Justice Act 1988, as amended: ss. 72AA & 102(4) R v Chrastny (No2) [1991] 1 WLR 1385 R v Sekhon (2003)......
  • Ostroumoff (Née Martland)
    • Jersey
    • Royal Court
    • 14 September 1999
    ...Maincrop Potato Mktg. Bd. v. de Gruchy, 1971 J.J. 1819. (8) Macready v. Amy, 1950 J.J. 11. (9) New Guar. Trust Fin. Ltd. v. Birbeck, 1980 J.J. 117. (10) Overseas Ins. Brokers Ltd., Re, 1963 J.J. 325; further proceedings, 1963 J.J. 349; further proceedings, 1966 J.J. 547. (11) Parry v. Cleav......
  • The Representation of Thompson, Amy (Née Remon), Whorrall (Née Remon) and Remon
    • Jersey
    • Royal Court
    • 15 May 1989
    ...(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, sub nom. Birbeck v. Midland Bank Ltd., 1981 J.J. 121, applied. (9) Overseas Ins. Brokers Lt......
  • Request a trial to view additional results

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