Finzi (Winston) and Anor v JMMB Merchant Bank Ltd

[56] In my view, save in the case of fraud, the broad generality of these statements
do not admit of any distinction on the grounds propounded by Dr Malcolm in his
submissions. In particular, nothing at all turns, it seems to me, on the fact that there is,
as Dr Malcolm would have it, a competing sale: Sykes J found expressly that neither
JMMB nor ASL had notice of the James agreement before the agreement for sale of 21
April 2015 was entered into. At the time of the hearing before Sykes J, no question of
fraud had even been mentioned, either in Mr Finzi/Mahoe Bay’s pleadings or in the
affidavit evidence. It therefore seems to me that the learned judge was entirely correct
to regard the decision in Sheckleford v Mount Atlas Estate Limited as dispositive
of the question of whether an injunction should be granted to restrain JMMB from
completing the sale to ASL. It may well be in recognition of the force of this
consideration that, despite Dr Malcolm’s attempts to distinguish the decision, there is no
contention in the grounds of appeal that Sykes J was wrong in this view of the effect of
the case.
[57] Turning now to the actual grounds of appeal, the first ground complains of the
fact that the learned judge queried Mr Finzi’s assertion that there was no impediment to
his entering into the James agreement. This ground was not vigorously pursued either
in the skeleton arguments or by Dr Malcolm in his oral submissions. It suffices to say, I
think, that Sykes J did not decide the matter before him on the basis of what was
plainly no more than a comment. But in any event, as JMMB pointed out in its written