because he admitted receiving demand letters from Citibank and had heard nothing
further from Citibank although he did not pay any money in respect of the demand.
According to learned counsel, the learned judge erred in finding, in the face of that
evidence and the promissory notes which the respondent executed in favour of
Citibank, that he was not unjustly enriched when his liability was discharged by Musson.
The respondent’s submissions
[70] Mr Vincent Chen, on behalf of the respondent, however submitted that Musson
has disregarded the evidence concerning the real transaction and has ignored the
genesis of the dealings which gave rise to the debt. He submitted that on 15 August
1998, the sum of $7,900,000.00 became due to Musson from Candyman, consequent
on the 5 June 1998 assignment agreement. The respondent did not guarantee the loan
nor did he guarantee the agreement of 29 November 2005.
[71] The learned judge, he said, correctly identified the issue, reviewed the conflicts
in Messrs Hoo Fatt and Walker‘s evidence and arrived at the only reasonable conclusion
to be drawn, which was that there was only one debt which arose from the 5 June 1998
agreement for Musson to take over, from Candyman, the distribution of Kraft and
Highgate products.
[72] He submitted that there was no history of the accounts. Although Musson's
witnesses endeavoured to convey the impression that the account began in November
2001, the witnesses were unable to support the assertion. Mr Hoo Fatt's evidence, he
said, was that he was not the accountant at the material time while Mr Walker was
ignorant as to matters concerning the transaction which occurred before November
2001. Learned counsel pointed out that the evidence before the court was supportive
of the learned judge‘s finding.
[73] Learned counsel pointed out that the only debt that was due to Musson in 1998
was the sum of $7,900,000.00 from Highgate/Candyman, which debt became due on
15 August 1998. Mr Walker's evidence was that account numbered 12005 belonged to
the respondent. He however admitted that there were entries in that account which
related to Highgate's transactions.
[74] Learned counsel posited that Mr Hoo Fatt, in his evidence, although ignorant as
to the details of the agreement between Mr Blades and the respondent, was aware that
Musson maintained separate accounts for the respondent and Highgate. He pointed out
that the evidence was also that some entries on the respondent‘s account concerned
Highgate‘s transactions.
[75] According to learned counsel, an inspection of the computer reconciliation of
account receivables from Musson between January 2001 and October 2008 in respect
of account numbered 12005 (exhibit 1B), reveals that the entry of $7,937,524.21 on 13
November 2001 was only one part of the entry made which was to give effect to the
renewal or the rollover of the 17 November 2000 promissory note and makes it
manifest that there was a degree of deception. Similar set of entries was made on 14
January 2003 which was also giving effect to a renewal or rollover.
[76] Mr Chen also contended that before the learned judge was Mr Walker‘s evidence
that he treated Highgate/Candyman and the respondent as one and the same. His
evidence was that there was only one account maintained for them. He pointed out
that the accounts were not separate. Exhibit 1B, he said, also represented the
Highgate transactions. He pointed out that, on Mr Walker‘s evidence, the payments to
Musson for Citibank which were represented on the extract and on exhibit 1B, were
amounts which were paid by way of set off by Musson against amounts which were due
to Highgate on invoices for goods supplied by Highgate.
[77] Mr Chen noted that Mr Messado, in his affidavit, emphasized that there were
separate accounts for Highgate and the respondent. Learned counsel submitted that Mr
Messado‘s averment in his affidavit deliberately sought to convey the false impression
that the respondent‘s account (account numbered 12005) commenced in 2001 with an
entry of $7,937,524.21 in respect of a promissory note.
[78] He pointed out that Mr Walker admitted that journal voucher numbered 3042
(exhibit C), which represented the respondent‘s account, was actually created by
extracting the information from exhibit 1B. Mr Chen posited that although Musson
failed to produce the accounts before the opening balance on exhibit 1B, the
promissory notes and correspondence with Citibank establish that there were
transactions before November 2001. Mr Walker, he pointed out, admitted that there
were earlier entries in respect of the renewal of notes. The written documents and the
promissory notes corroborated the respondent‘s case that the first note was signed in
August 1998 and was renewed from time to time.
[79] Learned counsel submitted that the learned judge correctly accepted the
respondent‘s evidence as to the creation and existence of the debt, which was clear,
consistent and devoid of ambiguities. He submitted that the learned judge rightly
rejected Musson‘s witnesses because of the conflicts among them.
Ground c
The learned judge erred in law in her interpretation of section 88 of the Bills
of Exchange Act.
Musson's submissions
[80] Dr Barnett‘s submission was essentially that the respondent cannot deny having
received value, because the series of promissory notes is evidence that he promised to
pay either Musson or Citibank various sums for value he had received. He pointed out
that the notes were duly signed by the respondent and stamped.
[80] Learned counsel criticized the learned judge‘s statement, at paragraph 32 of her
reasons for judgment, that there was no documentary evidence which obliged
Highgate/Candyman or the respondent to pay Citibank. He posited that all the
promissory notes which the respondent signed were formal assumption by him of
liability to Citibank. The respondent, he said, is therefore precluded from asserting that
he signed at Mr Blades‘ request. In support of that proposition, he relied on sections 3,
27, 88 and 89 of the Bills of Exchange Act and the case Glasscock v Balls (1889) 24
QBD 13.
[81] Dr Barnett also submitted that on the respondent's own evidence, he agreed that
Musson would provide accommodation for Highgate/Candyman via credit facilities
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