received credit from Citibank. The payment was a settlement of Musson‘s debt to
Citibank. The debt by Highgate/Candyman to Musson remained intact. The fact that
Musson has incurred an expense is not sufficient. The learned trial judge held that
Musson‘s claim faltered on the question of benefit. She was correct.
[31]
The learned trial judge‘s decision has not done Musson an injustice. Musson has
secured its compensation for the Highgate/Candyman debt. The 2005 agreement,
which had not yet matured when the judgment in this claim was delivered, provided
compensation which Musson regarded as satisfactory. As of 28 November 2011, it
would have either been paid in full in settlement of the Highgate/Candyman debt or it
would have become the unconditional holder by assignment of Highgate Holdings
Limited‘s trademarks. Either situation would be its negotiated settlement of the
Highgate/Candyman debt.
[32]
It is for those reasons that I agree that the appeal should be dismissed with
costs to Mr Clarke.
The counter-notice of appeal
[33]
Although Mr Clarke filed a counter-notice of appeal, it is unnecessary, in light of
the above finding, to examine the grounds advanced by him. I would make no order as
to costs in respect of the counter-notice.
SINCLAIR-HAYNES JA
[34] This is an appeal from the order of Lawrence-Beswick J refusing Musson
(Jamaica) Limited‘s (Musson) claim against Mr Claude Clarke (respondent) for unjust
enrichment in the of amount $12,136,200.07 or in the alternative, the payment of the
amount of $12,935,152.80 which Musson claimed it was obliged to pay Citibank NA
(Jamaica Branch) (Citibank) to discharge the respondent‘s indebtedness to Citibank.
The facts of this case are however, euphemistically atypical.
Background
[35] The respondent was, at all material times, the managing director and principal
shareholder of Highgate Food Products Limited (Highgate) and the principal shareholder
of Candyman Jamaica Limited (Candyman). Highgate was a manufacturer of chocolate
products and confectioneries. Candyman was appointed its exclusive distributor on 1
June 1993. Candyman was also a non-exclusive distributor for Kraft Foods
International (Kraft) products in Jamaica.
[36] On 5 June 1998, by a deed of assignment, Candyman assigned its rights as the
exclusive distributor of Highgate products to Musson. It was a condition precedent of
the deed of assignment that Candyman assigned its rights as the distributor of Kraft
products to Musson. Musson assumed the business of distribution of Highgate and
Kraft products. By virtue of clauses 1.1, 2.4 and 2.5 of the deed of assignment, it was
agreed that as at 15 August 1998, Candyman would be responsible for the ―bad stock
and uncollectible receivables‖.
[37] On 18 August 1998, three days after the computation of the sum of
$7,900,000.00 for uncollectible receivables and bad stock, the respondent issued a
promissory note for the sum of $9,937,524.21 to be paid to the order of Musson.
Subsequently, promissory notes were issued by the respondent who agreed to pay to
the order of Musson on:
(i)
18 November 1999 the sum of $7,937,524.21;
(ii)
17 November 2000 the sum of $7,937,524.21; and
(iii)
16 November 2001 the sum of $6,437,524.21.
Each note was intended to replace its predecessor.
[38] In subsequent years, the respondent also issued promissory notes in which he
promised to pay to the order of Citibank on:
(i)
20 February 2002 the sum of $6,437,524.21;
(ii)
19 November 2002 the sum of 5,500,000.00; and
(iii)
19 December 2003 the sun of $5,500,000.00.
Again, each note was intended to replace its predecessor. On 18 November 2002,
Musson agreed to guarantee and indemnify Citibank against a loan facility it granted to
the respondent, who was named the principal debtor therein.
[39] By way of letter dated 15 November 2004, Musson informed Citibank of its
intention not to renew or extend the guarantee on the promissory note dated 19
December 2003, which matured on 17 December 2004. On Musson‘s instructions,
Citibank sought to recover the debt from the respondent. Its attempts however failed.
Consequently, it called upon Musson, as guarantor, to repay the debt. Musson paid
Citibank but claimed that it has not been reimbursed by the respondent. The conflict
between the parties is essentially whether the respondent is personally responsible for
the loan and has thus enriched himself.
[40] It was Musson‘s claim that it stood as guarantor in respect of a loan facility
granted to the respondent from Citibank in the sum of $7,937,524.21 (being principal
and interest) and that loan facility was extended and renewed through a series of
promissory notes (dated 17 November 2000, 20 February 2002, 19 November 2002 and
19 December 2003). The respondent, on the other hand, contended that the loan
facility was for the benefit of Musson to reduce Highgate‘s indebtedness to it and the
indebtedness was the responsibility of either Musson or Highgate and not his.
Musson’s evidence at the trial
[41] Mr Noel Hoo Fatt and Mr Peter Walker testified on behalf of Musson. Mr Hoo Fatt
was a former director of Musson and Mr Walker, its chief accountant. Mr Geoffrey
Messado, Musson's financial controller, deponed to two affidavits in support of Musson‘s
claim.
Mr Hoo Fatt’s evidence
[42] Mr Hoo Fatt‘s evidence essentially was that the respondent was not asked to
sign, as a borrower, to facilitate Musson obtaining funds from Citibank. It was his
evidence that on or about 17 November 2000, the respondent issued a promissory note
to Musson in the sum of $7,937,524.21 in respect of debts owed to Musson. The
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