granted by Citibank with his concurrence and agreement to issue the promissory notes
and Musson's undertaking to act as guarantor. In relying on the case Mason v Lack
(1929) 45 TLR 363, he posited that, in those circumstances, the ―mutual promises
furnished more than adequate consideration".
[82] He contended that by signing the promissory note and not indicating he was
acting as an agent, the respondent became personally liable. Dr Barnett directed the
court‘s attention to section 26 of the Bills of Exchange Act. He contended further that
as a principal party to the arrangements, when Musson discharged the respondent‘s
liability, he became liable to Musson as it had a lien on the notes.
[83] Learned counsel also argued that the respondent would be liable to Musson (the
holder in due course) on the promissory notes even if he was only an ―accommodation
party‖. According to counsel, the endorsements on the notes evidenced the guarantee
given by Musson to Citibank, if the respondent‘s promises, which were freely given for
value which he acknowledged receiving, were not honoured.
[84] It was also learned counsel‘s firm submission that the respondent‘s indebtedness
was initially to Musson under the promissory note of 17 November 2000. The
promissory note was sold to Citibank for which Musson received value. Musson having
received the proceeds of that note, the respondent‘s indebtedness was transferred from
Musson to Citibank and he became a beneficiary of a loan from Citibank, which Musson
guaranteed.
[85] In the alternative, he submitted that even if the respondent was no longer
indebted to Musson under the initial arrangement, the fact that Musson had to repay
Citibank the sums it had received toward satisfying the debt meant that the debt re-
arose.
The respondent’s submissions
[86] Mr Chen, on the other hand, submitted that Musson continues to disregard all of
the evidence as to the reason Citibank paid money to Musson. That was, he said, a
deliberate attempt to mislead the court by omission. He argued that the evidence has
clearly established that the genesis of the relationship between the respondent and
Musson was the agreement of 5 June 1998.
[87] Learned counsel submitted that, at paragraphs 14, 23 and 32 of her reasons for
judgment, the learned judge pointed to the evidence which supported the fact that the
debt originated in 1998 as a debt of Highgate/Candyman. He argued that the learned
judge highlighted Mr Hoo Fatt‘s evidence regarding the contract of 5 June 1998, which
she referred to as the Highgate/Candyman issue, which resulted in a debt of
$7,900,000.00 being owed to Musson.
[88] Mr Chen drew the court‘s attention to the learned judge‘s examination of the
respondent‘s evidence which spoke to the circumstances which led to the issuance of
the first promissory note of 18 August 1998. The subsequent notes, he submitted,
were based on that first note which was renewed from time to time in accordance with
the requests of Mr Blades. Learned counsel submitted that there was abundant
evidence from Musson's witnesses which supported the learned judge‘s finding.
[89] He pointed out that, at paragraph 23 of her decision, the learned judge dealt
with the evidence of Mr Messado, who, in an affidavit of 17 January 2009, deposed
that Musson had no documents showing that Highgate was ever indebted to Musson
and that the promissory note of 18 August 1998 was evidence of the respondent's
personal indebtedness to Musson.
[90] Mr Chen submitted that the learned judge noted, at paragraph 33 of her
reasons, that there was no evidence from Mr Messado as to how the personal debt
arose. Indeed, the learned judge remarked that Mr Messado's averment in his affidavit
was that there is no record of any personal debt of the respondent to Musson.
[91] It was his further submission that the learned judge recognized that Mr
Messado‘s evidence was contradictory because in a later affidavit, he swore that the
promissory note dated 18 August 1998 confirmed that the debt was first a personal
debt of the respondent. He submitted that the learned judge correctly concluded, at
paragraph 39 of her judgment, that the 1998 liability was not the respondent‘s.
[92] Mr Chen submitted that by the respondent's amended defence and Musson's
amended reply thereto, Musson shifted its position from relying on the note of 17
November 2000 as the beginning of the transaction (creating the loan) to the note of
18 August 1998. He said the learned judge rightly rejected the evidence of the
witnesses for Musson in relation to their attempt to ignore the true history of the
transaction by making it appear that it began with the note of 17 November 2000.
[93] The learned judge, he said, was constrained to look at the full history of the
transaction from which it is apparent that this was not a simple case of a bill of
exchange. The provisions of section 88 of the Bills of Exchange Act did not address the
situation in the instant case, he said, as there was much more to the transaction. In the
circumstances, not only was it necessary for the learned judge to make a determination
as to the real transaction, she was also entitled to do so.
[94] Having carefully reviewed the argument of Musson and the evidence, he
submitted, she properly concluded, at paragraph 48 of her reasons, that:
"...The effect of the transfer of the promissory notes by
Musson to Citibank with the accompanying guarantee was to
allow Musson to utilize that amount which was receivable
by it from Highgate/Candyman and which they had failed to
pay..."
[95] Learned counsel submitted that the documentation presented by Musson could
not be accepted or relied upon without examination of the totality of the facts. The
learned judge examined the totality of the facts which included the documentation,
especially the promissory notes and the guarantee. In so doing, the evidence fell into
context and the true intention of the parties was revealed to her.
[96] In advancing his argument that on the totality of the evidence, the learned judge
considered all the relevant matters and arrived at the correct conclusion, learned
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