[115] It was Mr Hoo Fatt‘s evidence that Musson maintained two accounts for Highgate
and one for the respondent. The debt Musson sought to recover pursuant to the
promissory notes, the subject of the claim, concerned the respondent‘s account, he
said. According to Mr Hoo Fatt, the promissory notes issued on 18 August 1998 and 18
November 1999 to Musson by the respondent were not a part of the claim.
[116] Under cross-examination, he however said the promissory note issued on 18
August 1998 arose from a debt due from the respondent. It was also his evidence that
the promissory note arose from discussions between the respondent and Mr Blades.
The proceeds from the note, he said, have been rolled over since the transaction in
1998.
[117] Mr Hoo Fatt‘s evidence under cross-examination was that he was informed by Mr
Blades that Musson and Highgate/Candyman had entered into a profit sharing
arrangement pursuant to an assignment but that he never had sight of the document.
It was however his evidence that he was given certain instructions by Mr Blades.
[118] His following admissions, at pages 4 and 5 of the notes of evidence (the record -
volume 2 at pages 19-20), supported the respondent‘s evidence in respect of the
agreement between Musson and Highgate:
―...There is agreement that as of August 15, 1998 goods to
be deemed obsolete.
There were a lot of unsold goods at August 15, 1998.
...Quite a few accounts receivable were deemed
uncollectable [sic].
Between value of goods unsold and collectible [sic] debts
was over $7.9 million.
Under terms of Agreement, Highgate and/or Candyman
must pay Musson. They did not pay. Agree they did not
because they were unable to pay.‖
[119] He was unable to say whether the respondent was responsible for paying any
part of the sum of $7,900,000.00 . He acknowledged that the respondent was not a
party to the agreement nor was there any provision in the agreement for him to pay.
[120] Mr Hoo Fatt‘s evidence was that he was unable to assist the court as to the
details of $9,937,524.21 because he was not the accountant. He was however insistent
that ―[i]t was a debt due from [the respondent]‖. He evidently conflated the
respondent and Highgate thus undermining his credibility as to whom the debt
belonged.
[121] It is enlightening to quote aspects of his evidence under cross-examination:
―Ques.
Does [the respondent] have any
business with Musson personally?
Ans.
Everything Musson had to do with Highgate
was[the respondent] . When you say Highgate
like you say [the respondent] .
Ques.
So when you say [the respondent] you mean
Highgate?
Ans. Yes." (Page 25 of the record - volume 2)
[122] Having accepted that the sum of $2,000,000.00 was paid on the account, he was
unable to say whether the said sum was paid by Highgate. He however did not dispute
nor contradict counsel‘s assertion that the said sum was paid by Highgate. In respect of
the circumstances surrounding the issuance of the note, he was unable to assist the
court.
[123] Instructively Mr Hoo Fatt testified that he took the promissory notes to the
respondent for his signature. On his evidence, he was merely a creature of instructions.
He said Mr Blades ―just calls me and says do this‖. He was not privy to what transpired
at the meetings. He had no conversation with the respondent except ―to please sign
and give back".
He was unable to explain why the payee was changed from Musson to
Citibank. It was his evidence that he made no payment to the respondent nor did know
of any demand made by Musson on the respondent.
[124] Like Mr Hoo Fatt, Mr Walker also held the view that there was ―no difference
between Highgate Foods and [the respondent]". He gave evidence that "[i]n [his] mind
he would be entitled because [the respondent]/Candyman/Highgate were one and [the]
same‖. He acknowledged under cross-examination, that there was not only a
distribution agreement, but also an instrument of deed of assignment of distribution
(dated 5 June 1998), between Candyman, Musson and Highgate, which made provision
for profit sharing.
[125] Mr Hoo Fatt also acknowledged an agreement of 29 November 2005, between
Highgate (debtor), Highgate Holdings Limited (proprietor) and Musson (assignee), in
which Highgate acknowledged owing Musson the sum of $28,000,000.00 and that
Highgate‘s failure to honour its debt would result in Musson acquiring the right to
Highgate Holdings Limited‘s trademarks.
[126] The respondent, Mr Walker opined, was the managing director/chairman of
Highgate and Candyman and so would be entitled to proceeds from the profit sharing
arrangement. However unlike Mr Hoo Fatt, Mr Walker was unable to recall the value of
the uncollectible receivables and unsold goods that Highgate, Candyman and the
respondent owed to Musson.
[127] Mr Walker‘s evidence under cross-examination was generally unreliable. His
evidence in examination-in-chief conflicted with his cross-examination on salient issues
in respect of account number 12005 for example, the balances at important periods,
when it was opened. He however accepted that the promissory note which the
respondent signed ―related to inventory and receivables that Musson took over from
Highgate‖. He was unable to assist the court in respect of the promissory note for the
sum of $9,937,524.00.
[128] On the evidence before the learned judge, that is,
inter alia:
(i)
Mr Walker‘s admission that account numbered 12005
also concerned entries related to Highgate's
transactions and that he treated Highgate, Candyman
and the respondent as one and the same; and
(ii)
Mr Hoo Fatt‘s declaration of his ignorance as to the
details of the arrangements between the respondent
and Mr Blades and his acceptance that respondent's
account concerned Highgate transactions,
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