Ground f
The learned judge misconstrued the law on guarantee
Musson's submissions
[164] Dr Barnett relied on his submissions in respect of grounds d, h and g and further
submitted that the learned judge erred in omitting and failing to consider the ―just and
reasonable‖ aspect of Scarman LJ‘s judgment in Owen v Tate. He argued that the
circumstances of the case required those considerations because Musson had
discharged the respondent's liabilities and has not been reimbursed. Learned counsel
said the respondent acknowledged that he had liabilities which he no longer has and
which he made no payments to discharge. The respondent, he submitted, has therefore
been unjustly enriched and in the circumstances, it would be just and reasonable for
Musson to be reimbursed.
The respondent's submissions
[165] Mr Chen submitted that the law of guarantee was irrelevant to the case at bar as
the facts clearly established that the real transaction was a loan from Citibank to
Musson and the respondent never had a liability to Citibank. He pointed out that it
would be untenable that a guarantee could exist where the loan was disbursed to the
guarantor. Accordingly, he submitted, Musson ought not to be entitled to subrogation
when the original loan was disbursed to it.
Ground g
The learned judge erred in reaching her conclusion on the issue of
subrogation.
Musson's submissions
[166] Learned counsel, Dr Barnett was critical of the learned judge‘s statement on
subrogation. The learned judge expressed the view that:
"Subrogation is a remedy available to prevent unjust
enrichment and is used in certain circumstances such as Bills
of Exchange and guarantees...However, where a surety
guarantees a debt he cannot be subrogated to the creditor
without the debtor having consented to the guarantee and
to the discharge of the debt." (Paragraph 42)
[167] It was his submission that, although the learned judge relied on Scarman LJ‘s
statement in Owen v Tate, she neglected the following quintessential statement of the
learned judge which supported Musson:
"But if he can show that in the particular circumstances of
the case there was some necessity for the obligation to be
assumed, then the law will grant him a right of
reimbursement if in all the circumstances it is just and
reasonable to do so." (Page 412)
[168] Musson, learned counsel contended, was not only liable to satisfy the
respondent‘s debt but it was compelled to do so in light of Scarman LJ‘s above
mentioned ratio. He submitted that in all the circumstances, Musson was entitled to
recover.
[169] Learned counsel further submitted that Musson waived its right to subrogation
only in respect of Citibank. The learned judge erred, he said, by her statement that:
"...The remedy of subrogation may have been available to
Musson to recover its money from [the respondent] but it
had agreed with Citibank not to pursue that remedy..."
(paragraph 48)
He contended that the remedy is still available against the respondent which, in part,
accounts for the claim of unjust enrichment.
[170] He argued that there is an important proviso to paragraph 9 of the guarantee
and indemnity on which the learned judge relied which states:
"The Guarantor waives all rights of subrogation and agrees
not to claim any set-off or counterclaim against the Principal
Debtor...until the Guaranteed Obligations and all obligations
and liabilities...owing or incurred to the Bank from or by the
Principal Debtor have been paid or discharged in full."
The respondent’s submissions
[171] Mr Chen submitted that Musson‘s argument is based on a fundamental error as
the learned judge‘s conclusion was that the respondent was not unjustly enriched
because there was no debt due from him. Further, he submitted that Musson's
argument failed to consider the real terms of the transaction with Citibank which, he
said, is recorded in the letter of 18 August 1998 from Musson to Citibank. The parties
agreed that regardless of any question of validity of the promissory note, Musson would
repurchase the promissory note on the terms set out in the letter. He said it is not an
indemnity or a guarantee.
[172] He refuted Musson‘s argument that the proviso at paragraph 9 of the guarantee
and indemnity is relevant and argued that that submission reveals a misunderstanding
of the transaction. He submitted that the proviso is inapplicable because there is no
liability from the respondent (the principal debtor) to Citibank as the money paid out by
Citibank on each renewal of the notes was credited to Musson. The respondent, he
said, did not receive a single payment. This is a common ground between the parties
and an inescapable conclusion of the learned judge.
Discussion/law
[173] Grounds b, d, f, g and h all relate to the determining issue, whether the
respondent derived any benefit and was thereby unjustly enriched by the payments
made by Musson to Citibank. They will therefore be considered together. Lord
Scarman‘s statement in Owen v Tate, referred to by Dr Barnett, is as follows:
"When one turns to the second general rule, namely, the
rule that where a person is compelled by law to make a
payment for which another is primarily liable he is entitled to
be indemnified, notwithstanding the lack of any
request or consent, one again finds that the law
recognises exceptions. This rule has been subjected to very
careful treatment in
Goff and Jones, The Law of Restitution
(1966), p. 207. The authors say, after stating the rule in
general terms:
'To succeed in his claim, however, the plaintiff
must satisfy certain conditions. He must show
(1) that he has been compelled by law to make
the payment; (2) that he did not officiously
expose himself to the liability to make the
payment; (3) that his payment discharged a
liability of the defendant; and (4) that both he
and the defendant were subject to a common
demand by a third party, for which, as
between the plaintiff and the defendant,
the latter was primarily responsible.'"
(Page 407) (Italics as in original and emphasis
supplied)
[174] In a later edition of their work, The Law of Restitution 1998, Fifth Edition, the
learned authors Goff and Jones, at page 15, said this of the principle of restitution:
―In restitution, as in other subjects, recourse must be had to
the decided cases in order to transfer general principle into
concrete rules of law. As Lord Wright once said of Lord
Mansfield‘s famous dictum in
Moses v. Macferlan: 'Like all
large generalisations, it has needed and received
qualifications in practice...The standard of what is against
conscience in this context has become more or less
canalised or defined, but in substance the juristic concept
remains as Lord Mansfield left it.'
As might be expected a close study of the English decisions,
and those of other common law jurisdictions, reveals a
reasonably developed and systematic complex of rules. It
shows that the principle of unjust enrichment is capable of
elaboration and refinement. It presupposes three things.
First, the defendant must have been enriched by the receipt
of a
benefit. Secondly, that benefit must have been gained
at the plaintiff‘s expense. Thirdly, it would be unjust to allow
the defendant to retain that benefit. These three
subordinate principles are closely interrelated, and cannot be
analysed in complete isolation from each other. Examination
of each of them throws much light on the nature of
restitutionary claims and the principle of unjust enrichment.‖
(Italics as in original)
Has the respondent received a benefit?
[175] The learned judge‘s acceptance of the respondent‘s evidence that the promissory
notes were consequent on the August 1998 transaction between Musson and
Highgate/Candyman is eminently reasonable in the light of the evidence given by
Musson. Mr Hoo Fatt having accepted that Highgate/Candyman was indebted to
Musson in a sum of about $7,900,000.00 and Musson‘s witnesses‘ inability to provide
credible and or any cogent evidence that the sum claimed was personally owed by the
respondent.
[176] It is trite law that a director of a company is not personally liable for the debts of
a company. It is immaterial that the respondent was the majority shareholder in both
companies. It is settled law that the respondent has a separate legal personality from
Highgate and Candyman. There is between the respondent and Highgate/Candyman, a
corporate veil which has not been pierced. See Salomon v Salomon and Company
Limited [1897] AC 22.
[177] The respondent‘s evidence, which the learned judge, accepted was that the
promissory note of 18 August 1998 was to prevent financial embarrassment to Musson
consequent on Musson's cash flow problems which resulted from Highgate‘s
indebtedness to it. On the evidence, the respondent derived no personal benefit, indeed
the proceeds from the sale of the promissory note of 18 August 1998, was credited to
Musson‘s account in order to facilitate Musson‘s ability to access a loan so as to alleviate
its cash flow problems occasioned by Highgate‘s indebtedness.
[178] The learned judge‘s acceptance of the respondent's evidence that he signed the
promissory notes at Mr Blades' request in circumstances outlined by him, cannot be
faulted as: (i) Musson's witnesses were not privy to the arrangement between the
respondent and Mr Blades; and (ii) she accepted the respondent‘s evidence that the
debt was Highgate/Candyman‘s in the light of Messrs Walker and Hoo Fatt's admissions.
Was the just and reasonable principle applicable?
[179] At pages 411-412 of Owen v Tate, Lord Scarman LJ enunciated:
"In my judgment, the true principle of the matter can be
stated very shortly, without reference to volunteers or to the
compulsions of the law, and I state it as follows. If without
an antecedent request a person assumes an obligation or
makes a payment for the benefit of another, the law will, as
a general rule, refuse him a right of indemnity. But if he can
show that in the particular circumstances of the case there
was some necessity for the obligation to be assumed, then
the law will grant him a right of reimbursement if in all the
circumstances it is just and reasonable to do so."
[180] It is necessary to examine the circumstances of this case which includes the
reason Musson was compelled to pay Citibank in order to determine whether the just
and reasonable principle ought to have been considered and applied by the learned
judge. Lord Scarman, at page 408 in Owen v Tate, succinctly elucidated its
applicability thus:
―That means clearly that circumstances alter cases...One
may have a general rule..., but that general rule derives
from the principle of what is just and reasonable in all the
circumstances of the case.‖
[181] The incontrovertible evidence is that the respondent was not personally indebted
to Musson. As already noted, Highgate/Candyman was indebted to Musson as a result
of the arrangement of 5 June 1998. Musson, as guarantor, was the recipient of the
loan proceeds from Citibank and not the respondent. The respondent was therefore
under no obligation to indemnify Musson. The circumstances of this case, in light of the
learned judge‘s findings therefore did not require the learned judge to specifically speak
to that issue.
[182] Indeed the circumstances of this case alter the applicability of the general
principles. As Mr Chen pointed out, the circumstances of this case deviated from the
norm. Musson as guarantor received the proceeds of the loan and not the respondent.
The authorities of Glasscock v Balls and Mason v Lack are therefore
distinguishable. Grounds b, d, f, g and h therefore fail.
Ground i
Generally, the findings by the learned judge on the issues are, at times,
inconsistent, erroneous and unsupportable.
Musson's submissions
[163] Dr Barnett relied on his previous submissions in respect of the other grounds
which he contended reveal that the learned judge's findings were at times inconsistent
with the facts/evidence and therefore unsupportable. He cited the learned judge‘s
following findings as examples:
―22. It would therefore be useful to consider here, the
evidence as to who was/were indebted to Musson. Musson
has provided evidence of accounts it maintained for monies
owed to it by [the respondent], Highgate and Candyman.
The only evidence of indebtedness of [the respondent] or
the companies to Musson is the indebtedness which resulted
from the agreement created on August 15, 1998 [sic] that
Musson would take over the distribution of Highgate
products.
...
26.
...on a balance of probabilities that the agreement
was between Musson, Candyman and Highgate and that that
was the intention of the parties. Both the late Mr. Blades
and [the respondent] held critical positions in their
respective businesses which they represented in the
Highgate/Candyman transaction. I find that each would be
aware of the difference between the entities Highgate,
Candyman and the person [the respondent] and that they
put the words in the agreement reflecting their intention to
bind Highgate, Candyman and Musson only, not [the
respondent] in his personal capacity.
...
29.
...the promissory notes were eventually written with
Citibank, not Musson, as the lender. The promissory notes
drawn by [the respondent] from August 18, 1998 to
November 16, 2001 showed Musson as the lender but from
February 20, 2002 to December 2003 they showed Citibank
as the lender. Musson's witnesses provide no explanation as
to why this change occurred. [The respondent's]
unchallenged evidence is that on each occasion Musson's
representatives handed him the promissory note to sign and
he signed, not noticing that there had been a change in the
payee. [The respondent] was a stranger to the details of the
arrangement between Citibank and Musson."
[164] I am however of the view, in light of the foregoing, that the learned judge‘s
findings are unassailable. So too are her findings and opinions expressed below.
―14. Mr Hoo Fatt, a former director of Musson confirmed
that as of that date [15 August 1998] Highgate/Candyman
owed Musson about $7.9 million and were unable to pay.
[The respondent's] testimony is that he agreed to co-
operate with the late Mr. Blades, chairman and managing
director of Musson, to prevent Mr. Blades‘ expressed
embarrassment at Highgate‘s failure to pay which was
resulting in a cash flow problem for Musson. At Mr. Blades‘
request he therefore signed a promissory note dated August
18, 1998 which would allow Citibank to pay Musson the
amount of the note, $9,937,524.21 and he thereafter
continued to renew the note in accordance with the requests
from Mr. Blades.
...
23.
The Financial Controller of Musson, Mr. Geoffrey
Messado, swears in his affidavit that Musson has no
documents showing that Highgate was ever indebted to
Musson. His evidence is that the debt being claimed is a
personal debt of [the respondent] which Mr. Messado says is
confirmed by the promissory note of August 18, 1998. He
gave no evidence as to how that personal debt arose.
...
Is [the respondent] bound?
32.
However, [the respondent] voluntarily signed the
promissory notes. Is he bound by them? The last note
exhibited which [the respondent] signed is dated December
19, 2003. In it he promised to pay to Citibank the amount of
$5.5 million with the Citibank having full recourse to Musson.
The Bills of Exchange Act states:
'The maker of a promissory note by making it — (a) engages
that he will pay it according to its tenor; (b) is precluded
from denying to a holder in due course the existence of the
payee and his then capacity to endorse.'
It is [the respondent's] case that he signed the note with no
intention to make a binding note for which he would be
responsible but rather, he did so to assist the late Mr.
Blades/Musson. He personally was gaining no benefit."
(Emphasis and italics as in original)
[165] I am however am in agreement with Mr Chen‘s submission that the findings of
the learned judge are consistent with the evidence presented to her. There was no
evidence before the learned judge that the respondent nor Highgate/Candyman derived
any benefit from the arrangement and or from signing the promissory note. The
evidence was that:
b)
Highgate/Candyman remained liable for their
outstanding debt until 28 November 2011;
b) the appellant had taken Highgate Holdings Limited's
trade marks for the debt;
c)
the admission by Musson‘s witnesses that the money
was paid to Musson; and
d)
the contemporaneous records which clearly admitted
that the money was paid to the Musson.
Disposal
[167] In the light of the foregoing, it is unnecessary for me to make any determination
on the counter-notice of appeal filed by the respondent. I would therefore dismiss the
appeal with costs to the respondent to be taxed if not agreed.
P WILLIAMS JA (AG)
[168] I have read in draft the judgments of my brother Brooks JA and my sister
Sinclair-Haynes JA and agree that this appeal should be dismissed.
BROOKS JA
ORDER
1.
Appeal dismissed.
2.
No order made in respect of counter-notice of appeal.
3.
Costs to the respondent on the appeal to be taxed if not agreed.
4.
No order made in respect of costs in respect of the counter-notice of appeal.
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