Anwar et al v. Fairfield Greenwich Limited et al

Filing 1048

DECLARATION of Professor Jonathan Harris in Support re: #775 FIRST MOTION to Certify Class.. Document filed by AXA Private Management, Harel Insurance Company Ltd., Harel Insurance Company, Ltd., Pacific West Health Medical Center Inc. Employees Retirement Trust(On behalf of Itself), Pacific West Health Medical Center Inc. Employees Retirement Trust(on Behalf of All Others Similarly Situated), Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit 1 through 3, #2 Exhibit 4 Part 1, #3 Exhibit 4 Part 2, #4 Exhibit 5, #5 Exhibit 6, #6 Exhibit 7 and 8, #7 Exhibit 9 through 11, #8 Exhibit 12 through 14, #9 Exhibit 15 through 21, #10 Exhibit 22 and 23, #11 Exhibit 24, #12 Exhibit 25 through 27, #13 Exhibit 28 through 32, #14 Exhibit 33, #15 Exhibit 34, #16 Exhibit 35, #17 Exhibit 36, #18 Exhibit 37 through 39, #19 Exhibit 40, #20 Exhibit 41 Part 1, #21 Exhibit 41 Part 2, #22 Exhibit 42 through 51, #23 Exhibit 52 through 65, #24 Exhibit 66 through 70, #25 Exhibit 71 through 74, #26 Exhibit 75 through 77, #27 Exhibit 78 through 81, #28 Exhibit 82, #29 Exhibit 83 Part 1, #30 Exhibit 83 Part 2, #31 Exhibit 84 and 85, #32 Exhibit 86 Part 1, #33 Exhibit 86 Part 2, #34 Exhibit 87 through 90, #35 Exhibit 91 Part 1, #36 Exhibit 91 Part 2, #37 Exhibit 92 through 103, #38 Exhibit 104 through 106, #39 Exhibit 107 and 108, #40 Exhibit 109 through 113)(Barrett, David)

EXHIBIT 5

LAW

REPORTS
Edited

by

J. FERGUSON WALKER, Esq.,
OF LINCOLN'S INN, BARRISTER-AT-LAW.

I
VOL. XLIV-· 1927~1928

LONDON:
PRINTED AND PUBLISHED BY THE TIMES PUBLISHING
COMPANY (LIMITED), PRINTING HOUSE SQUARE, s.c.;

The Times Law Reports, Friday, August 3, 1928.

746

sideration and an important fact. On the other
hand, an equally important
fact is the consideration whether there has been any change in the
position of the mortgagee or anyone claiming under
him, so as to make it neither just nor convenient nor,
indeed, possible to rest&e the parties to the original
position.. Again, the recognized legal exceptions contained in the statute which prevent time from running
must be taken into consideration.
Beyond that
there is the fact, in the present case, that, for some
years during the period in question, a war was going
on, during which. some people did not insist upon
or put forward their rights. In the present case the
sole gnestion, in my view, is whether the delay
of the mortgagors in applying to redeem is such that
it, ought to bar their right. Here there has been no
such change in the position of the parties as to make
it impossible to restore them to their original position. To that position they can be remitted without
difficulty, without inconvenience, and without injustice to themselves or prejudice to third parties.
That there has been delay must be conceded. If
the period is taken, as the learned Judge in the
Court below took it; from the date when the debt was
satisfied, in 1921, it is clear that the subsequent delay
is .not sufficient to bar; but I do not think that the
Court ought to adopt the period of 12 years contended for by the appellants, and even if the delay
has to be reckoned from June, 1908, I see nothing
to compel us, having regard to all the circumstances,
to say that it is so long that it ought to bar the
plaintiffs' claim.
In' my opinion the appeal should be dismissed.
Upon the cross-appeal I wish to say nothing except
that I agree with what has been said by the other
members of the Court.
[Solicitors.-Messrs.
William A. Crump and Son;
Messrs. Gregory, Rowcliffe and Co., for Messrs. Weld
and "Veld, Liverpool.

1
5

K.B.Div.
(Salter, J.)

1928.
July 25.

LITTAUER GLOVE CORPORATION v.
F. W. MILLINGTON (1920), LIMITED.*
Company-Residence--Foreign
diction of State Courts-Test

State-JUl'isof residence.

To constitute residence by a British company
in a foreign State so as to render the company
subject to the jurisdiction
of the Courts of that
State, the company must to some extent carry
on business in that State at a definite and
reasonably

permanent

place.

His LORDSHIP gave judgment for the defendants
in this action, which raised the question whether
under international law, a judgment of the Supreme
Court of the State of New York was enforceable
ill
the English Courts when the defendants were a corporation and were only present in that State by means
of a director doing business there.
The action was brought by the Littauer Glove
Corporation, an American company, of 235, Fourthavenue, New York, who claimed
(int!lr alia) from
Fred W. Millington (1920), Limited, of Industry
House, 57, Dale-street, Manchester, £5,369 16s. 9d.,
being the equivalent of $23,868, alleged to be due
from the defendants under a judgment of the Supreme
" Rellorted by W. E. HUR:!', ESQ Barrister-at-Law.
..

[Vol. xliv.

Court of the State of New York, dated May 9, 1922.
Interest was claimed from that date.
The defendants denied that the American Court
in question had any jurisdiction over them.
Mr. C. T. Le Quesne, K.C., and Mr. Frank Gahan
appeared for the plaintiffs; Mr. Singleton, K.C., and
Mr. E. Stewart-Brown for the defendants.
Mr. SINGLETON
said that the defendants' contention
was that, if the plaintiffs ever began an action
against them in the State of New York, and if the
Court there adjudged that the plaintiffs should recover the amount sued for-neither
of which matters
was admitted-that
Court had no jurisdiction over
the subject matter of the action. They (the defendants) were not subjects of, or resident, or present,
or domiciled in, and owed no allegiance to, the State
of New York, and were not subject to the jurisdiction
of the Court. They did not appear in the action
and were never served with any process.
To succeed, the plaintiffs must prove that the
defendants had a fixed place of business in the State
of New York, so as to make them resident and liable
to the jurisdiction of the Court there. He cited
Emanuel v. Symon (24 The Times L.R., 85 ; [1908]
1 K.B., 302);
Turnbull v. Walker
(9 The Times
L.R., 99); Schibsby v. Westerholz
(L.R., 6 Q.B.,
155) ; Carrick v. Hancock (12 The Times L.R., 59) ;
Dunlop Pneumatic Tyre Company,
Ltd, v. ActienGesellschaji tur Moto'r und Motorfahrzeugbau vorrn.
Cudell and Company
(18 The Times L.R., 229;
[1902] 1 K.B., (42) ; La Bourgogne (15 The Times
L.R., 28 ; [1899] P. 1 ; affirmed 15 The Times L.R.,
424;
[1899] A.C., 431);
Haggin v. Comptoir
d'Eecompie de Paris (5 The Times L.R., 606; 23
Q.B.D., 519) ; Actieseelekobet
pampskib "Hercules"
v. Grand Trunk Pacific Railway Company
(28 The
Times L.R., 28; [1912] 1 K.B., 222);
Saccharin
Corporation, Limited
v. Chemische Fabrik von
Heyden AktiengeseZZschaft
([1911] 2 K.B., 516);
Allison v. Independent Press Cable Association of
Australasia, Limited
(28 The Times L.R., 128);
Okura and Oo., Limited v. Eorebacka Jerruoerks
Aktiebolag (30 The Times L.R., 242 ; [1914] 1 K.B.,
715) ; Egyptian Delta Land and Investment
Company, Limited v. Todd (44 The Times L.R., 747).
Mr. Richard H. Millington, managing director of
the defendant company, said that he went to the
United States in 1922. He was in New York four
or five nights, and stayed at an hotel. He did
business for his company in New York and various
other places which he visited. He was served personally with the writ in the American action in the
office of the Union Mills, New York, to which address
some of his letters had been sent. His company
owned no property of any kind in the United States.
They took no part in the proceedings against them,
and entered niiappearahce.
Incross-examination
1:>Y Mr. LE QUESNE,the witness said that at one time it was his and his brother's
custom to be in New York in the early part of the
year. They went to buy, not to sell, goods.
That concluded the case for the defendants.
Mr. W. H. WILSON, called on behalf of the plaintiffs, said that on March 30, 1922, he served Mr.
R. H. Millington with the writ in the New York
action.
Mr. LE QUESNEsaid that the question was whether
the defendant company were resident in the State of
New York so as to come within the jurisdiction of the
Court there. He submitted that it was not necessary
for' him to show that the defendants were carrying
on their business at a fixed place. It was not disputed that it was not necessary to show that the

Vol. xliv.l

j

;/

The· Times Law Reports, Friday, August 17, 1928.

company were carrying on the whole of their business
where the debt was incurred, and he contended that
the defendants were carrying on business wherever
they were buying goods.
His LORDSHIP.-Do you say that a company
resides wherever its commercial travellers put up?
Mr. LE QUEsNE.-Yes ; I submit that the company
is resident by its travellers, and would be subject to
process of the country in which they happened to
be. For income-tax purposes it has been held that a
company can be resident in several.places at once.
Counsel cited, in addition to cases referred to by
Mr. SINGLETON,
Logan v. Bank of Scotland
(20 The
Times L.R., 640; [1904] 2 K.B., 495); and
New
York Life Insurance Co. v. Public Trustee
(40 The
Times L.R., 430 ; [1924] 2Ch., 101, at p. 120).
His LORDSHIP,in giving judgment, said that the
action was partly brought on a judgment of the
Supreme Court of the State of New York in respect
of goods sold and delivered.
The plaintiffs were manufacturers in the state
of
New York ; the defendants were an English limited
liability company. The defendants' registered office
and principal place of business were in Manchester,
and they had branches in London and elsewhere.
They were clothiers' merchants, buying from manufacturers in various parts of the world and selling
to wholesalers.
The chairman of the defendant company was Mr.
Fred Millington; and the managing director was his
brother, Mr. Richard
Millington,
who had given
evidence.
.
It had been the practice for one of them to visit
the United States on purely business visits, the object
being that they Should see samples and make purchases.
tn 1922 Mr. Millington arrived in New York on
March 17, and left on that day for St. Johnsville,
about eight hours distant. The principal suppliers of
the defendant company in the United States were the
Union Mllls' Corporation at St. Johnsville. That corporation had a sales office in New York at 377, Broadway. Mr. Millington stayed at St. Johnsville two
days. After that he returned to New York, and then
visited Tennessee, Georgia, and Philadelphia, and in
each of these States he placed orders.
On March 2S he returned to New York and stayed
at an hotel. While in New York he made some use
of the office of the Union Mills Corporation. He
said that he transacted no business there except what
he did with that ·corporation, seeing samples and
buying goods. .
.On March 30 he was served at that office with
some process of the Supreme Court of the State of
New York, and on March 31 he went to St. Johnsville for the week-end.
On April 1 the plaintiffs took out a summons
against 'the defendants. On April 3 Mr. Millington
returned to New York, and on that day, while he
was in the office of the Union Mills, he was served
with process in the present matter.
He entered no
appearance, took no step in the proceedings, and did
not submitto the jurisdiction of the American Court.
On April 4 he sailed for England. The plaihtiffs
proceeded with their action and obtained judgment
in default ·of appearance.
He (his Lordship) had to decide whether at the
tiine of the beginning of the action-namely,
April
1, 1922-thedefendant
company were resident in the
State of New York so as to have the behefltand be
under the protection of the laws of that State.
What was meant by saying that a business corporation was resident in a foreign [urisdiction
'for
VOL.

XLIV.-No.

32.

747

that purpose? That depended on whether, on the day
in question, it was carrying on business in the foreign
State so that it could fairly and properly be said
to be then resident in that State. If the defendant
company were resident in the State of New York on
April I, 1922, where in that State were they resident?
Mr. Le Quesne said that they were resident in Broadway, New York, but there must be some place of
residence on which one could put a finger. There
was no suggestion that the name of the defendant
company was ·in any way displayed at the address
in Broadway, or that any letter-paper of the company was used there, or that any business was done
there except what the company did with firms in
other parts of the United States. If the defendant
company were resident in Broadway, it would follow
that they were resident wherever Mr. Millington did
business. He was; however, nothing more than a
commercial traveller on that tour.
. If the company had 40 or 50 travellers ranging all
over the world, was it to be said that the company
were resident wherever the travellers put up at an
hotel and took orders?
He (his Lordship) did not
rely on the expression "fixed place," but on what
was the fair meaning of "residence." The inference
. which he drew from the cases cited was that there
must be some carrying on of business at a definite
and, to some reasonable extent, permanent. place.
There was no residence within the jurisdiction. on the
part of the defendant company, and the action
on
that point must fail.
There would be judgment for the defendant company, with costs, so far as this was an action on a
foreign judgment, and the rest of the case would go
to the Official Referee.
[Solicitors-Messrs. Morris, Ward-Jones, Kennett
and Co.; Messrs. Gregory, Rowcliffe, and
00., for
Messrs. Hill, Dickinson, and Co., Liverpool.]

House of Lords.
(Viscount Sumner, Lord Atkinson,
Lord Buckmaster, and Lord
. Warrington of Clyffe.)

}

1928.
July 23.

19.f<·)KB
9

EGYPTIAN DELTA LAND AND INVESTMENT
COMPANY, LIMITED v. TODD.*

Revenue-Income
- tax-Company-Residence
-Real business abroad~Whether
resident in
this country-Income
Tax Act, 1918 (8 and 9
Geo. V., c. 40),Sched. D, Cases IV. and V.
A company which is registered in this country
but carries on its real business abroad does not
necessarily reside in this country, so as to be
liable to income-tax, because it is obliged by
law to perform in this country certain duties
which cannot be performed abroad, such as
having it registered offic~andkeeping a register
of shareholders. For income-tax purposes a company resides where its real business is carried on.
Decision of the Court of Appeal (43 The Times
L.R., 275 j [1928] 1 K.B., 152) reversed.
This was an appeal from an order of the Court of
Appeal (43 The Times L.R., 275; [1928]1 K.B .•
[52), affirming an order of Mr. Justice Rowlatt (43
The Times L.R., 70), on a case stated by the Commi~sioners for the .General Purposes of the Income
Tax Acts for the City of London.
• Reported by H; B.

HEMMING,

Esq.• Barrister·at-Law.

74

1

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