it was entirely within the learned judge‘s purview to accept, as being more credible, the
respondent‘s evidence, on a balance of probabilities, that there was in fact one debt of
$7,900,000.00 which resulted from the agreement of 5 June 1998 for Musson to take
over the distribution of Kraft and Highgate products.
[129] She was also entitled to arrive at the conclusion she did that both Mr Blades and
the respondent's intention was to bind Highgate/Candyman and not the respondent.
Her conclusion that the respondent merely lent his financially good name at Mr Blades‘
request to facilitate Musson obtaining the loan is supported by the evidence.
[130] In the light of the very reasonable conclusions arrived at by the learned judge,
having carefully assessed the evidence, I cannot agree with Musson's claim that her
findings were inconsistent with the evidence adduced. The learned judge was justified
in her facts and I find no merit in the appellant‘s challenge in respect of these grounds.
Ground b
The learned judge misunderstood the facts before her and the law applicable
thereto.
Musson's submissions
[131] Dr Barnett was critical of the learned judge‘s statements, set out below:
"38. By an agreement dated November 29, 2005, Highgate
acknowledged that it by then owed Musson $28 million. The
parties agreed that Highgate would settle the debt by
November 28, 2011 and in consideration of that agreement
Highgate Holdings Ltd temporarily assigned its trade marks
to Musson. The parties further agreed that if the debt were
[sic] not paid by that date it would be deemed settled and
the trade marks would remain permanently with Musson. Mr.
Hoo Fatt, former director of Musson, was aware of that
agreement.
...
40.
The other liability, of which there is evidence, arises
under the promissory notes. [The respondent] had
promised to pay a specified amount to Musson on some
notes and to Citibank on others. The liability was to either
Musson or Citibank. Musson is arguing that when it paid as
[the respondent's] guarantor on the note which it had sold
to Citibank, it had discharged [the respondent's] liability
under the promissory note. However, there is no evidence
of Musson being compelled or compellable in law to pay that
money and there is no evidence of any request/authorization
or ratification for any payment. There is no evidence of [the
respondent] being aware either of Musson‘s decision to pay
Citibank or of its actual payment."
He submitted that the learned judge's statement, at paragraph 38 of her reasons, in
respect of the 29 November 2005 agreement, demonstrated that she erroneously took
into consideration Highgate‘s debt in a way that would ―suggest that any liability/sums
owed to Musson would be satisfied in any event‖.
[132] In respect of the respondent‘s liability under the promissory notes, learned
counsel submitted that the finding at paragraph 40 is contrary to Mr Clarke's evidence
that:
(i)
the arrangements were that Musson would
guarantee the debt owed to Citibank;
(ii)
he was aware of Citibank‘s demand for payment of
the loan;
(iii)
he made no payment; and
(iv)
he received no further request for payment of the
same.
[133] Learned counsel posited that Musson, having made the payment on behalf of the
respondent without his specific request does not, in law, negate the fact that he was
unjustly enriched by virtue of that payment. Further, he contended that the payment
was made because of Citibank‘s demand and the fact that Musson was the guarantor.
The payment resulted in the discharge of the respondent‘s liability to Citibank which
benefitted him.
[134] It was immaterial, counsel argued, that the respondent did not expressly request
Musson to settle his debt with Citibank as Citibank had demanded a payment from
Musson that it was legally liable to pay. It was his submission that the learned judge
misconstrued the principle that the guarantor has the right to recover sums paid to the
lender on behalf of the debtor.
The respondent’s submissions
[135] Mr Chen however contended that Musson misconstrued the learned judge‘s
reference in paragraph 38 in respect of the 29 November 2005 agreement. He pointed
out that the learned judge ―alluded to the correct position that there was no evidence of
[the respondent] having a liability to [Musson] under the first transaction of 5
th
June
1998‖. The learned judge, he said, ―continued in the same vein‖, by pointing out, that
the parties treated the debt as Highgate's. It was his submission that she correctly
concluded that the liability was in any event, not the respondent‘s.
[136] Learned counsel also submitted that those submissions fall under the rubric,
"The Law of Restitution" in the judgment. The learned judge, he submitted, correctly
stated the law at paragraph 35. Although there was confusion as to whose liability
was to be discharged, because of the ―switch of the payee in the notes" from Musson
to Citibank, he submitted that she correctly, at paragraph 36, applied the ingredients of
the law to the facts which were before her.
[137] Learned counsel contended that the learned judge was well aware that had the
respondent obtained a discharge of his liability by virtue of the payment, he could be
ordered to make restitution. He referred the court to Lord Clarke‘s dicta in the UK
Supreme Court decision of Benedetti v Sawiris and others [2013] UKSC 50 in which
Lord Clarke enunciated the questions to be asked by a court in determining a claim for
unjust enrichment.
[138] He argued that the evidence before the learned judge, was that Musson had
discounted a note issued to it by the respondent, the proceeds of which Musson
received. The real nature of that transaction, he submitted, was a loan to Musson and
the uncontroverted evidence, he contended, was that the respondent was not paid any
money by either Musson or Citibank in that transaction. It was his submission that
Musson has disregarded the true nature of the transaction and sought instead to argue
that it was a guarantor. It is to that argument that the learned judge referred at
paragraph 40 of her judgment, he said.
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