Strategic Financial and Project Services Pty Limited v Bank of China [2011] FCA 325

Strategic Financial and Project Services Pty Limited v Bank of China [2011] FCA 325

The language of the instrument was ambiguous and left a real, rational argument that the payee included a bearer and that the instrument was expressed to be payable to bearer. Because Strategic's Bills of Exchange Act claim was not fanciful and could not be said to have no reasonable prospect of success, it should not be summarily dismissed. Given that conclusion and the unresolved evidentiary and pleading issues concerning Chinese law, the alternative Chinese law claim also should not be summarily dismissed on the motion.

Jurisdiction
Australia
Judgment Date
02 March 2011
Procedural Posture
Application for Summary Dismissal of Certain Claims / Amended Notice of Motion by Bank of China Under S 31 A(2) of the Federal Court of Australia Act 1976 (cth) or Alternatively Order 20 Rule 5 of the Federal Court Rules
Outcome
The amended notice of motion was dismissed and Bank of China was ordered to pay Strategic's costs of the motion.
Legal Topics
['summary Dismissal' 'promissory Note' 'bearer Instrument' 'holder of Negotiable Instrument' 'chinese Negotiable Instruments Law']
['civil Procedure' 'bills of Exchange' 'negotiable Instruments' 'private International Law'] ['summary Dismissal' 'promissory Note' 'bearer Instrument' 'holder of Negotiable Instrument' 'chinese Negotiable Instruments Law']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Summary Dismissal of Certain Claims / Amended Notice of Motion by Bank of China Under S 31 A(2) of the Federal Court of Australia Act 1976 (cth) or Alternatively Order 20 Rule 5 of the Federal Court Rules

Legal Issues

  1. 1 ["Whether Strategic's claims based on the Bills of Exchange Act 1909 (Cth) had no reasonable prospect of success because the instrument was payable to order and had not been endorsed to Strategic." 'Whether the wording of the instrument made it arguable that the promissory note was payable to bearer within s 13(3) of the Bills of Exchange Act 1909 (Cth).' "Whether Strategic's alternative claim under the laws of the People's Republic of China should be summarily dismissed."]

Ratio Decidendi

The language of the instrument was ambiguous and left a real, rational argument that the payee included a bearer and that the instrument was expressed to be payable to bearer. Because Strategic's Bills of Exchange Act claim was not fanciful and could not be said to have no reasonable prospect of success, it should not be summarily dismissed. Given that conclusion and the unresolved evidentiary and pleading issues concerning Chinese law, the alternative Chinese law claim also should not be summarily dismissed on the motion.

Court Disposition

The amended notice of motion was dismissed and Bank of China was ordered to pay Strategic's costs of the motion.

Orders

  • ['The amended notice of motion filed on 1 December 2010 be dismissed.' "Bank of China pay Strategic Financial and Projects Services' costs of the motion." 'The applicants in the proceeding serve no later than 8 April 2011 any proposed further amended statement of claim and any further evidence on which they intend...