Yim Toy Leong Ltd v Ledia [2013] SBHC 63; HCSI-CC 157 of 2012 (10 June 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J).

Civil Case No.157 of 2012.

BETWEEN:

YIM TOY LEONG LIMITED
Claimant

AND:

MR. SHEDRICK LEDIA
First Defendant

AND:

WESTPAC BANKING CORPORATION
Second Defendant

Dates of Hearing: 23/4/2013 and 31/5/2013
Date of Judgement: 10/6/2013

Mr. S. Tabo for the Claimant.
Mr. A. Radcliffe for the Second Defendant.

JUDGMENT.

Faukona J: The Claimant is a Merchandize Company duly incorporated under the laws of Solomon Islands with a registered company no. 20111543, of P. O. Box 41, Honiara. And was at the material time and still is a customer of the Second Defendant.

2. The First Defendant was a former employee of the Second Defendant, and engaged at its international department as trade documentation officer, and TT transaction is not his assigned job description.

3. The second Defendant is a body corporate and licensed as a commercial bank in Solomon Islands and elsewhere which carries out business through accepting deposits of money, bullion or other valuable security from public or other financial institutions on terms and conditions that permit the withdraw or transfer of such deposits on demand.

4. On 12th April 2010, the First Defendant resigned from his employment. On 4th November 2012, a default judgment was obtained by the claimant for default by the First defendant to file response and defence within 28 days as required by the Rules. The orders were perfected on 4th December 2012.

5. The facts that give rise to this case can be narrated as follows. On 18th February, 2010, a prior arrangement through phone was made by Mrs Yim Toy Leong with the First Defendant who will be waiting at the bank to telegraphic transfer $30,103.00 to a family friend Andy Atakasuna who lived in Indonesia. At the bank, Miss Tellin Moli a shop assistant did present the amount to the First Defendant and a copy of receipt for the TT transaction was issued. On the next three occasions, the same amount was sent via TT to various persons. On 25th March 2010, the money was sent to Huang Jiamin at Guangdag, China. On 18th March 2010, the same amount was sent to Andy Atakasuna again. And on 8th April 2010, the money was sent to Zhou Xiu Hua.

6. On each occasion, a TT receipt was issued. Quite strange the receipt issued for money sent on 15th March 2010, was not a TT receipt but a bank draft receipt.

7. On each occasion, the Managing Director of the Claimant Company Mr. Sing Gin Wong authorized the Claimant to send money to their children and relatives who lived overseas.

8. Fascinating as it appeared, that the amount sent or 18th February 2010, was not received by the recipient. According to Sing Gin Wong it was 2-3 weeks after they learned the money sent on 18th February was not received. On paragraph 7 of Mr Wong's sworn statement it clearly depicted that they knew that the first TT was missing but from encouraging remarks from the First Defendant and Mr Giquo that he authorized the second TT be sent on 15th March 2010.

The Claimants case:

9. The Claimant's money, a total amount of $120,412.00 to various persons overseas, tantamount to undiligent act, as an employee, and which he converted to his own use. As an employee unlawful conversion was committed in the course of employment, thus, the tort committed by the First Defendant.

The Second Defendant's case:

10. The Second Defendant's case is three fold. Firstly, there is no evidence to proof that the money belongs to the Claimant which is an incorporated body. As such, an incorporated body has no children and relatives. Secondly, the Second Defendant denies being vicarious liable for the dishonesty of any employee. The culpable employee must be one to whom the duty of dealing with money was deputed by the Second Defendant. Thirdly that the Claimants has contributed to its loss as a result of it's our negligence. That the Claimant shortly after knowing the first payment was lost could have alerted the bank's senior management instantly rather that waited until after the fourth payment. And that the Claimant failed to comply with the bank's procedures.

Is $120,412.00 belong to the Claimant.

11. Mr Radcliff submits that there is a fatal defect in the claimant's case. No evidence given by the Claimant's witnesses, written or oral, that the above amount belongs to the Claimant company.

12. This issue is technical and ought to be considered separately. If the Court is satisfied that there is no evidence to prove ownership of the money, then that reason alone the claim must fail.

13. As to the source of the money the sworn statement of Tellin Moli paragraphs 3-6 in which she deposed that she was given cash by Mrs Yim Toy Leong but she did not say the money belong to the Claimant.

14. The sworn statement for Yin Toy Leong deposed in paragraph 3 that the Claimant would send money to its children and relatives overseas. At paragraph 9, 10, 11, 13 and 15 the monies totalled up to $120, 412-00 were TT to the children and relatives overseas. Again, the sworn statement of Sing Gin Wong who deposed in paragraph 4 that he authorised monies for TT overseas to Claimant's children and relatives.

15. It has to be noted; in law a limited Company cannot have children and relatives. It is an incorporated body which has its own property and possession in its own name. Its existence is not an integral part of humanity and does not intertwine with human relationship.

16. Exhibits YTL1, 3, 4 and 5 attached to Yin Toy Leong's sworn statement are the Bank's requisition forms. On the face of those documents, none of them indicate the source of the cash given to the First Dependant was from the Claimant. If it is true it was the Claimant who sent those monies overseas it is expected its name to appear on the forms. Instead, those forms bear the names of human individuals. As such, the Claimant was not the Bank's customer and therefore the Bank owned no duty of care to the Claimant.

17. I am satisfied that there is no evidence to prove the money belongs to the Claimant and therefore has not suffered any loss. It may be argued that the Claimant Company is owned by Mrs Leong and Mr Wong and they have the ultimate authority to use its money. It does not change any circumstance. A limited Company exist of its own as a separate body. It could have been better if the claimant be in the personal names of Mrs Leong or Mr Wong.

18. With the given reasons, I must therefore dismiss the claim.

Orders:

1. Claim dismissed.

2. Cost against the Claimant.

The Court.