|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
Civil Action NO. 174 of 2011
BETWEEN:
OARSMAN BAY LODGE LIMITED
is a limited company having its registered office at Neil Underhill & Associates Chartered Accountants Lot 25 Wailada Road, Lami.
APPELLANT/DEFENDANT
AND :
ANZ BANKING GROUP LIMITED
a body corporate licensed as financial institution under the Banking Act Cap.212 and carry on business at 378 Queen's Road, Nadi and elsewhere in Fiji.
RESPONDENT/PLAINTIFF
Counsel : Mr K Qoro for appellant
: Mrs V Patel for respondent
Date of Hearing : 28 September 2015
Date of Judgment: 04 November 2015
JUDGMENT
Introduction
[1] This is an appeal against the decision of the learned Master delivered on 25 September 2012 in which the learned Master entered summary judgment against the appellant in the sum of $55, 477.65.
[2] The respondent filed a Respondent's Notice under Order 59, rule 13 of the High Court Rules 1988, as amended ('the HCR') seeking affirmation of the judgment on three additional grounds as set out in its Notice.
[3] At appeal hearing, both parties orally argued the matter and also tendered their respective written submission.
Brief background
[4] ANZ, the plaintiff in the original action and respondent in these proceedings (hereinafter sometime may be referred to as 'the respondent') issued a writ of summons and statement of claim against Oarsman Bay Lodge Limited, the defendant in the original action and appellant in these proceedings (hereinafter sometime may be referred to as 'the appellant') and claimed restitution of $55,477.65 being monies credited by mistake to the appellant's cheque account with the respondent.
[5] The sum claimed by the respondent being American Express (Amex) credit that was mistakenly credited into the appellant's cheque account between 15th April 2008 and 8th October 2008 instead of depositing into the account of another customer, Turtle Island Resorts Ltd held with the respondent's bank.
[6] The mistake was later discovered. The respondent noticed the appellant and requested to lodge sufficient funds into its account or to enter into a satisfactory arrangement for repayment.
[7] The respondent paid the customer (Turtle Island Resort) that was entitled to these funds.
[8] The appellant did not file its defence within the time permitted. However, it filed one out of time. The appellant pleaded negligence on the part of the respondent as defence.
[9] The respondent made application in pursuance of O.14 of the HCR for summary judgment on the claim for restitution of moneys paid under mistake. The learned Master entered summary judgment against the appellant and ordered that, OBLL (the appellant) restitute the full sum of $55,477.65 to ANZ (the respondent) with simple interest rate fixed at 4% from 8 October 2008 and that the sum shall be repaid by monthly instalments over a period of six months at the rate of $9.246.30. The current appeal is against that judgment.
Grounds of appeal
[10] The grounds relied upon by the appellant are as follows:
Cross-appeal
[11] The respondent filed a cross-appeal under O.59, r.13 of the HCR and notified the court that it will contend on the hearing of the appeal that the judgment of the learned Master should be affirmed on the following additional grounds:
1. That the defendant had failed to satisfy the Court with respect to the claim that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim on the ground that defence of change of position and section 112 of the Property Law Act was not open to the Plaintiff as these defences had not been pleaded by the Defendant in its Defence dated 2nd November 2011 and neither had the Defendant condescended to particulars regarding these defences nor provided any evidence which would found such a defence in the Affidavit of Elia Kae filed on its behalf on the 27th July 2012.
2. The Defendant failed to provide any particulars of negligence in its Defence dated 2nd November 2011 and neither did the Defendant condescend to particulars regarding this defence in the Affidavit of Elia Kase filed on its behalf on the 27th July 2012.
3. The Defendant failed to show cause against the plaintiff's application under Order 14 r 1 by affidavit or otherwise to the satisfaction of the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be trial of that claim.
Summary Judgment: Law and Principle
[12] The appeal is against the summary judgment of the learned Master. Hence it would be appropriate to touch on the law and principles of summary judgment.
[13] The Plaintiff may by reason of HCR O.14 r.1, apply for summary judgment against the Defendant on the ground that the Defendant has no defence to a claim. O.14 r.1 so far as relevant provides that:
"1.-(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the court for judgment against that defendant.
(2) ...
(3) ... (Emphasis added).
[14] HCR O.14, r.3 explains when the plaintiff may obtain summary judgment against the Defendant on the claim or part as may be just. O.14 r.3 states that:
"3.-(1) Unless on the hearing of an application under rule 1, either the Court dismisses the application or the defendant satisfies the Court with respect to the claim or the part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or there ought for some other reasons to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claim" (Emphasis added).
[15] Fiji Court of Appeal in Carpenters Fiji Ltd v Joes Farm Produce Ltd [2006] FJCA 60; ABU0019U.2006S (10 November 2006) set out the well-established principles relating to the entry of summary judgment under para 21 as follows:
(a) "The purpose of 0.14 is to enable a plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up, a bona fide defence or raise an issue against the claim which ought to be tried.
(b) The defendant may show cause against a plaintiff claim on the merits e.g. that he has a good defence to the claim on the merits or there is a dispute as to the facts which ought to be tried or there is a difficult point of law involved.
(c) It is generally incumbent on a defendant resisting summary judgment, to file an affidavit which deals specifically with the plaintiff's claim and affidavit and states clearly and precisely what the defence is and what facts are relied on to support it.
(d) Set off, which is a monetary cross claim for a debt due from the plaintiff, is a defence. A defendant is entitled to unconditional leave to defend up to the amount of the set off claimed. If there is a set off at all, each claim goes against the other and either extinguishes or reduces it Hanak v Green (1958) 2 QB 9 at page 29 per Sellers LJ.
(e) Likewise where a defendant sets up a bona fide counter claim arising out of the same subject matter of the action, and connected with the grounds of defence, the order should not be for judgment on the claim subject to a stay of execution pending the trial of the counter claim but should be for unconditional leave to defend even if the defendant admits whole or part of the claim. Morgan and Son Ltd –v- Martin Johnson Co (1949) I K 107(CA).
See 1991 The Supreme Practice Vol 1 especially at pages 146, 147, 152 and 322."
[16] The scope of Order 14 is set out in the notes to Order 14 in The Supreme Court Practice 1995 Volume 1 at p 144 thus:
" This Order, ................., provides a speedy procedure for obtaining summary judgment without proceeding to trial in actions in the Queen's Bench Division and in the Chancery Division..............
The scope of O.14 proceedings is determined by the rules and the Court has no wider powers than those conferred by the rules nor any additional statutory power to act outside and beyond the rules or any residual or inherent jurisdiction to grant relief where is just to do so (see per Neil L.J. in C E Health PLc v Ceram Holding Co [1988] 1 WLR 1219, 1228; [1989] 1 ALL ER 203, 210. Parker L.J made clear in Home and Overseas Insurance Coo ltd Mentor Insurance Co (UK) Ltd (InLiquidation) [1990]1 WLR 153, 158, the purpose of O.14 is to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant's only suggested defence is a point of law and the court can see at once that the pint is misconceived (or, if arguable, can be shown shortly to be plainly unsustainable) the plaintiff is entitled to judgment" [Emphasis added]
The principles applicable to 'a difficult point of law" are set out at The Supreme Court Practice '995 Volume 1 at p 155 14/3-4/8. It reads:
"Summary judgment under this Order should not be granted when any serious conflict as to matter of fact or any real difficulty as to matter of law arises (Crawford v Gilmore 30 LR Ir. 238; Electric & General Corporation v Thomas Houston etc., Co (1895) 10 TLR 103); but however difficult the point of law is, once it is understood and the Court is satisfied that it is really unarguable, it will give final judgment (see per Lord Greene MR in Cow v Casey [1949] 1 KB 474, P. 481; and see Verall v Great Yarmouth Borough Council [1981] QB 20; [1980] 1 All ER 839; C.A).... In an appropriate case the Court may give judgment for the Plaintiff upon determining a suitable question of law without a full trial of the action."[Emphasis added]
Issue
[17] The issue for determination in this appeal is that whether or not the learned Master erred in law or in fact when he granted summary judgment in favour of the plaintiff (respondent) when there is a serious question to be tried in this case.
Determination
[18] This is an appeal from a summary judgment delivered by learned Master having obtained leave to appeal out of time. Justice Nawana having satisfied that the grounds of appeal are not wholly unmeritorious or wholly unlikely to succeed and having held that the matters raised in the summons to appeal out of time bear merit; and they outweigh the delay with no prejudice to the respondent granted leave to appeal out of time in respect of grounds of appeal contained therein.
[19] An appeal from the Master is to be dealt with as an actual rehearing of the application which led to the order under appeal [Rf Note 58/1/2 of the Supreme Court Practice 1995 at p 906].
[20] The appellant relies on five grounds to attack the learned Master's judgment. I will deal with each of one of them in turn.
GROUND 1: "That the Master erred in law and in fact in entering summary judgment against the Appellant in the sum of $55,477.65 when the common law defence of change of position and statutory defence under section 112 of the Property Law Act raised by the Defendant involves a triable issue or a difficult point of law."
Defence of Change of Position
[21] Whether the common defence of change of position is available to the appellant. Learned Master found that:
"ANZ having paid OBLL by mistake the sum of $55,477.65 is prima facie entitled to restitution from OBLL. It was open to OBLL to nullify that by showing evidence that it had changed its position since receiving the payments or that the defence its raises involves a triable issue or a difficult point of law. After considering all, I am not convinced that OBLL has discharged that burden." [Refer to [39] at page 13 of Ruling dated 25.9.12].
[22] The respondent in its statement of claim alleged that it had mistakenly credited $55,477.65 to the appellant's ANZ account No. 05821137 between 15 April 2008 and 8 October 2008. At para 8, the respondent averred that:
'8. That defendant was aware that it did not own the said sum of $55,477.65 mistakenly credited to its said cheque account and wrongfully converted the same to its own account.'
[23] At paras 5, 9, 11 and 13 of the statement of defence, the appellant pleaded that:
5. THAT in response to paragraph 4, the Defendant say[s] that, the Plaintiff, by its own admission, has committed a mistake, a negligent act and it took inexcusably almost one (1) year for it (the Defendant) [sic] to establish that mistake and to take action towards rectification;
9. THAT the Defendant deny paragraph 8 of the Plaintiff's statement of claim and state that at all material time during the period concerned, the Defendant was in a business arrangement with Mr Richard Evanson of Turtle Island Resort and admit that all monies credit to its account was deemed to be a legitimate financial arrangement and any anomalies should have been immediately detected and rectified by the Plaintiff.
11. THAT the Plaintiff has not disclosed the complete facts surrounding this case for fear that if does, it will reveal to the Honourable Court the Plaintiff's own Cross Negligence and delays, business malpractices which infringes the Plaintiff's legal obligations and responsibilities under the Banking Act Cap 212 and other banking regulations applicable in this jurisdiction and;
13. THAT the duration of time it took the Plaintiff to discover its negligence is unjustified.Good and accountable business practice dictates that the Plaintiff ought to have been vigilant in supervision of financial transactions must act swiftly to avoid similar type of circumstances as it now currently claiming against the Defendants.
[24] It is to be noted that it was not in dispute that the respondent by mistake periodically credited the sum of $55,477.65 to the appellant account.
[25] The appellant position is that the appellant did not know about the mistake when the respondent credited those funds in its account. It received in good faith and used those funds for its business operation. The appellant also says they became aware of such mistake when the respondent advised them by letter dated 15 May 2009. This was after 12 months when first payment made on 15 April 2008 and 7 months after last payment made on 8 October 2008.
[26] Counsel for the appellant heavily relying on the case authority of FOAI v Air New Zealand [2012] NZEmpC 57 WRC 36/10 argues that the Learned Master erred in finding that the defendant (appellant) has not established a general change of position.
[27] In FOAI's case (supra) the Employment Court of Wellington, New Zealand at para [78] stated that:
'[78] In Philip Collins Ltd v Davis and another [2000] 3 All ER 808 (EWHC), the plaintiff company sought restitution of excess royalties paid to the defendants under an alleged mistake of fact by periodic payments over an extended period. In reference to the change of position issue, the court stated:
"On the basis of the defendants' oral evidence, coupled with such documentary evidence as they were able to produce, I am unable to find any particular item of expenditure was directly referable to the overpayments of royalties. Their evidence was simply too vague and unspecific to justify such findings. On the other hand, in particular circumstances of the instant case the absence of such a finding is not, in my judgment, fatal to the defence of position.Given that the approach of the defendants to their respective financial affairs was, essentially, to gear their outgoings to their income from timeto time (usually, it would seem spending somewhat more than they received), and bearing in mind that the instant case involves not a single overpayment but a series of overpayments at periodic intervals over some six years, it is my judgment open to court to find and I do find, that overpayments cause a general change of position by the defendants in that they increased their level outgoing by reference to the sums so paid. In particular, the fact that in the instant case the overpayments took the form of a series of periodic payments over an extended period seems to me to be significant in the context of a defence of change of position, in that it places the defendants in a stronger position to establish a general change of position such as I have described, consequent upon such overpayments. [Emphasis provided].
[28] The above case (FOAI's case) has no application to the present case. That case can be easily distinguished. In that case periodic overpayment was made to Mr Foai (an employee) by the company (his employer). Mr Foai's employment with the company was subsequently terminated in July 2009. He (Mr Foai) maintained that he received his wages in good faith and he altered his position in reliance on the validity of the wages he was paid. He, therefore, sought to rely upon the equitable defence of change of position and the statutory defence under s. 94 B of the Judicature Act 1908 (similar to s. 112 of our Land Transfer Act) of his contention that the defendant is not entitled to recover the overpayment of wages. In the matter at hand there was not employer-employee relationship and the relationship here was customer-banker relationship, there was no periodic overpayment of wages and Mr Foai altered his position in reliance on the validity of the wages he was paid. None of these happened in the present matter. Therefore, the appellant cannot rely on the FOAI's case, and as a result the appellant is not entitled to plead change of position as a defence.
[29] Learned Master referred to Mason & Cater-Restitution Law in Australia (1995) Butterworth's to emphasis defence is not available to the defendant who simply spent the money received on ordinary living
expenses. At para 28 of the ruling he states that:
'[28]. A payment is received by the payee in good faith it the payee had no notice of the payer's mistake or did not contribute towards
payers mistake. Mason & Carter (supra) at paragraph 2418) say as follows:
The defence is only available to those who act in good faith, in the sense of an actual belief in the security of the receipt. At the very lease – in cases cannot rely on the necessary belief of security in the receipt from the plaintiff if the defendant knowingly contributed to the mistake or other factor giving rise to the restitutionary claim. The same is true if the defendant knew or discovered the mistake or factor before partying with befits received.'
[30] The onus was on the defendant to establish the defence of change of position which the appellant has failed to discharge. Learned Master found that, I am not convinced that OBLL has discharged that burden.At paras 34 & 35 of the ruling learned Master states:
"[34] Applying the above principles, I ask: "what is ordinary for OBLL and is there evidence that it acted differently upon receiving the payments?" it is normal for any business operation to set aside and use part of the income from its business for operation costs. It is also normal for any business to reinvest profit from its operations back into the business to either sustain it and/or expand it. While it is not clear to me which of these applies to OBLL, neither can hardly be said to be evidence of having "acted differently" on the part of OBLL.
[35] Also, from the affidavit of Elia Kase, each payment received by OBLL was small and similar in amount to other payments that it regularly received. OBLL in fact believed all along that each payment was part of its normal business income. It had no reason to suspect irregularity – or that there was windfall in its income – let alone any significant windfall such as to motivate it to act differently.
[31] The learned Master considered the relevant authorities relating to change of position. He then correctly applied the principles to the case and found, the use to which OBLL (appellant) put the payments by ANZ were no more than a mere expenditure or ordinary business expenses and according to the above authorities, do not amount to change of position.
[32] Mr Qoro, counsel for the appellant advances argument that, the payments made to the defendant were periodical payments over a period of 6 months. Although the defendant did not provide sufficient evidence to link the overpayments to particular items of expenditure that is not fatal as stated in the Philip Collins case (above).
[33] In Philip Collins Ltd's case, the court was unable to find any particular item of expenditure was directly referable to the overpayments of royalties. Their evidence was simply too vague and unspecified to justify such findings. In particular circumstances of that case, the court opined that the absence of such a finding is not fatal to the defence of change of position. In the instant case there was no evidence at all to link the overpayment to particular item of expenditure. In the instant case the appellant without any particular item of expenditure directly referable to the overpayment merely states that such payments were received by the defendant in good faith and drawn cash against it to pay for its business operation. In the particular circumstances of the instant case, failure to provide sufficient evidence to link the overpayment to particular item of expenditure, in my opinion, is fatal to the defence of change of position.
[34] The mistaken credits to the appellant's cheque account were made by the respondent bank over a period of six months. The appellant would have received monthly bank statement in respect of its cheque account. There was ample opportunity for the appellant to enquire with the respondent if it had noticed any anomaly.
Availability of statutory defence under s.112 of the Property Law Act ('the PLA')
[35] The statutory defence under s112 was not taken in the defence filed by the appellant. The appellant did not make any application to amend its defence to include this defence in their statement of defence. Section 112 defence was argued by the appellant's counsel at the hearing of the summons for summary judgment for the first time.
[36] The learned Master has considered the appellant's argument based on s.112 defence. He has carefully analysed each element relevant to the defence under section 112 and found that that defence was not available to the appellant.
[37] Section 112 of the PLA makes provision for the availability of the defence of change of position in the following terms:
'Payments made under mistake of law or fact not always recoverable
112.-(1) Relief, whether under section 111 or in equity or otherwise, in respect of any payment made under mistake, whether of law or fact, shall be denied wholly or in part if the person from whom relief is sought received the payment in good faith and has so altered his position in reliance on the validity of the payment that in the onion of the court, having regard to all possible implications in respect of the parties (other than the plaintiff or claimant) to the payment and of other persons acquiring rights or interest through them, if is inequitable to grant relief, or to grant relief in full.
[2] Where the court makes an order the repayment of any money paid under a mistake, the court may in that order direct that the repayment shall be by periodic payments or by instalments, and may fix the amount or rate thereof, and may from time to time vary, suspend or discharge the order for cause shown, as the court thinks fit.' [Emphasis added].
[38] Counsel for the appellant strenuously argued that, there is no doubt that the appellant received the payments but it did not know the mistake. It received such payment in good faith and used it. When it received such notice of mistake, it had already spent the money. He referred to me the case authority of David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLC 353 (7 October 1992) to substantiate his argument.
[39] The High Court of Australia in David Securities Pty Ltd (supra) stated at 35 that:
"In Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation this Court recognised that prima facie liability to restore money paid under a mistake may be displaced, but only in circumstances (e.g. that the payment was made for good consideration such as discharge for an existing debt or arguably that there has been some adverse change of position by the recipient in good faith and in reliance of payment which the law recognised would make an order for restitution unjust" (166) 1988 164 CLR at p 673). No doubt the Court regarded the money paid voluntarily as money not paid under a mistake and hence as to giving rise to any prima facie liability to repay (cf GoffJ's category 2(a)). The sons of proving the circumstances which displace prima facie liability must, of course, lie upon the recipient. The tentative acceptance of change of position as a defence to a claim for restitution may now I think be stated more positively in the light of the decision of the House of Lords in Lipkin Gorman v Karnale Ltd (167) [1988] UKHL 12; (1991) 2 ac 548). As Lord Goff of Chievely observed in that base, it is basic to the concept of unjust enrichment that ((168) ibid, at p 579):
"where an innocent defendant's position is so changed that he will suffer an injustice if called upon to repay or to repay in full in full, the injustice of requiring him so to pay outweighs the injustice of denying the plaintiff restitution". (Emphasis provided)
[40] According to section 112 payments made under mistake of law or fact are not always recoverable. The court may deny relief in respect of such payment wholly or in part if the person from whom relief is sought (in this instance the appellant) received the payment in good faith and has so altered his position in reliance on the validity of the payment.
[41] In the instant case it was open to doubt whether the appellant acted in good faith, for there was ample opportunity for the appellant to find out the overpayment through monthly bank statement.
[42] Moreover, there was no evidence before the Master to show there was change of position since mistaken credits in the appellant's cheque account by the respondent. The mere assertion that the monies were used for its business operations, in my opinion, would not be sufficient to succeed in the defence of change of position or section 112 statutory defence.
[43] It is pertinent to note that prima facie liability to restore money paid under a mistake may be displaced, but only in circumstances where there has been some adverse change of position by the recipient in good faith and in reliance of the validity of payment.
[44] The appellant's affidavit does not refer to any negligence by the respondent. It only states that the payments were received by the Defendant (appellant) in good faith and drawn cash against it to pay for its business operation. When the Bank advised the appellant about the mistake on or about 15th may 2009, the funds were already used. [Refer to para.11 of Elia Kase's affidavit sworn on 27 July 2012].
[45] It is seen that the appellant's evidence (Elia Kase's affidavit) fails to establish that there has been some adverse change of position by the appellant in good faith and in reliance of the validity of the credit entries made under mistake in the appellant's cheque account by the respondent bank. In the circumstance, the appellant had failed to displace the prima facie liability to restore money paid under a mistake.
GROUND 3 is that the Master erred in law and in fact in ordering the Appellant to restitute the sum of $55,477.65 without considering the relative fault of the parties.
[46] This ground was not strenuously canvassed in the appeal hearing. However, the common law concept of relative fault is not relevant to this case.
[47] In the statement of defence the appellant alleges that the respondent was negligent in crediting the amount over a period of six months. But no particulars of the alleged negligence were given by the appellant. Even the appellant's evidence file in the summary judgment proceedings fails to provide any particulars in respect of the alleged negligence. So, the appellant is not entitled to rely on the concept of relative fault. Perhaps, the court might consider the relative fault of the parties and order restoration in part of the money paid under mistake. That situation would not arise here as the learned Master ordered full restoration. Hence the learned Master was entitled to enter judgment in favour of the respondent.
GROUND 4: THAT the Master erred in law and in fact in ordering the Appellant to repay the sum of $55,477.65 without considering that it would be unconscionable to grant such relief in the light of the reasonable expectation of the parties.
GROUND 5: THAT the Master erred in law and in fact in allowing the Respondent to recover the sum of $55,477.65 without considering that the respondent had voluntary (sic) paid the sum of the Turtle Island Resort Fiji Limited as settlement of the claim.
[48] Fourth ground of appeal was also not vigorously argued in the appeal hearing. It was not inequitable or unconscionable to grant relief and order the appellant to pay the sum deposited under mistake of fact into their cheque account. These monies belonged to Turtle Island Resort (Fiji) Ltd and the respondent (ANZ) paid the monies to the correct payee. This arrangement between the respondent and Turtle Island Resort could not form a valid defence for appellant. Therefore ground 5 is misconceived and carries no merit in it.
Conclusion
[49] In my judgment, there is no merit in any of the grounds of appeal. The appellant's affidavit evidence fails to state clearly and concisely what the defence is, and what facts are relied upon to support it. The affidavit evidence also fails to provide sufficient facts and particulars to show that there is a triable issue. The learned Master correctly applied the principles governing summary judgment to the facts of the case and came to correct conclusion and correctly entered summary judgment against the appellant. I would therefore dismiss the appeal with summarily assessed costs of $1,500.00 payable by the appellant to the respondent in 28 days of the date of this judgment. I affirm the judgment of the learned Master accordingly.
The result
[50] The results of this appeal are as follows:
........................................
M H Mohamed Ajmeer
JUDGE
At Lautoka
4 November 2015
Solicitors:
For appellant: Messrs Qoro Legal, Barristers & Solicitors
For respondent: Ms Vasantika Patel, Barristers & Solicitors
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2015/862.html