Diamogen (Proprietary) Limited v Florio (CIV/T 317 of 82) [1983] LSCA 66 (30 June 1983)

Diamogen (Proprietary) Limited v Florio (CIV/T 317 of 82) [1983] LSCA 66 (30 June 1983)

The defendant failed to show on a balance of probabilities that the probability of success in the principal case is against the plaintiff. The evidence does not favour the defendant's version over the plaintiff's, and no special circumstances exist to refuse provisional sentence.

Citation
[1983] LSCA 66
Parties
Plaintiff: Diamogen (Proprietary) Limited; Defendant: G. Florio
Court
Court of Appeal
Jurisdiction
Lesotho
Judgment Date
30 June 1983
Case Number
CIV/T 317 of 82
Procedural Posture
Civil / Judgment on Summons for Provisional Sentence
Outcome
Provisional sentence entered in favour of the plaintiff with interest and costs as prayed, subject to security de restituendo.
Legal Topics
Bills of Exchange, Provisional Sentence, Holder in Due Course, Discounting of Promissory Notes
Source Language
English
Commercial Law Negotiable Instruments Bills of Exchange Provisional Sentence Holder in Due Course Discounting of Promissory Notes

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Parties

Diamogen (Proprietary) Limited

Plaintiff

G. Florio

Defendant

Procedural Posture

Civil / Judgment on Summons for Provisional Sentence

Legal Issues

  1. 1 Whether the plaintiff is entitled to provisional sentence on promissory notes endorsed in blank
  2. 2 Whether value was given for the notes and if the plaintiff is a holder in due course
  3. 3 Whether special circumstances exist to refuse provisional sentence

Ratio Decidendi

The defendant failed to show on a balance of probabilities that the probability of success in the principal case is against the plaintiff. The evidence does not favour the defendant's version over the plaintiff's, and no special circumstances exist to refuse provisional sentence.

Court Disposition

Provisional sentence entered in favour of the plaintiff with interest and costs as prayed, subject to security de restituendo.

Orders

  • Provisional sentence for R150,000 in favour of the plaintiff with interest and costs.
  • If the defendant enters into his defence, costs will be costs in the cause.