Toprise Fashions Ltd v Nik Nak Clothing Co Ltd & Ors

Toprise Fashions Ltd v Nik Nak Clothing Co Ltd & Ors

The contemporaneous documents and evidence show no real prospect of the defendants establishing an agency relationship or breach of implied terms regarding the Ya Ya and sample invoices. The defence of trade custom for non-payment of samples is unsupported by evidence. The claim for summary judgment succeeds for these invoices but not for the Wiener invoices, where factual disputes remain.

Parties
Claimant: Toprise Fashions Ltd; First Defendant: Nik Nak Clothing Co Ltd; Second Defendant: Nik Nak (1) Ltd; Third Defendant: Anjum Ahmed
Jurisdiction
England and Wales
Judgment Date
17 June 2009
Procedural Posture
Commercial Claim (summary Judgment Application) / Ruling on Application for Summary Judgment
Outcome
Summary judgment granted in part, refused in part
Legal Topics
Summary Judgment, Agency, Implied Terms, Sale of Goods, Trade Custom, Set Off, Counterclaim
Commercial Law Contract Law Summary Judgment Agency Implied Terms Sale of Goods Trade Custom Set Off +1 more

Case Brief

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Parties

Toprise Fashions Ltd

Claimant

Nik Nak Clothing Co Ltd

First Defendant

Nik Nak (1) Ltd

Second Defendant

Anjum Ahmed

Third Defendant

Procedural Posture

Commercial Claim (summary Judgment Application) / Ruling on Application for Summary Judgment

Legal Issues

  1. 1 Whether the defendants have a realistic prospect of defending the claim for unpaid invoices
  2. 2 Whether an agency relationship existed between Nik Nak and Ya Ya Clothing
  3. 3 Whether there was a breach of implied terms regarding delivery of 'mixed orders'

Ratio Decidendi

The contemporaneous documents and evidence show no real prospect of the defendants establishing an agency relationship or breach of implied terms regarding the Ya Ya and sample invoices. The defence of trade custom for non-payment of samples is unsupported by evidence. The claim for summary judgment succeeds for these invoices but not for the Wiener invoices, where factual disputes remain.

Court Disposition

Summary judgment granted in part, refused in part

Orders

  • Summary judgment entered for the claimant in respect of the Ya Ya invoices (US$427,363) and sample invoices (US$4,791)
  • Application for summary judgment refused in respect of the Wiener invoices