"22. It would therefore be useful to consider here, the
evidence as to who was/were indebted to Musson. Musson
has provided evidence of accounts it maintained for monies
owed to it by[the respondent] , Highgate and Candyman.
The only evidence of
indebtedness of [the respondent]
or the companies to Musson is the indebtedness which
resulted from the agreement created on August 15, 1998
[sic] that Musson would take over the distribution of
Highgate products.
...
26.
I find on a balance of probabilities that the agreement
was between Musson, Candyman and Highgate and that that
was the intention of the parties. Both the late Mr. Blades
and [the respondent] held critical positions in their
respective business which they represented in the
Highgate/Candyman transaction. I find that each would be
aware of the difference between the entities Highgate,
Candyman and the person [the respondent] and that they
put the words in the agreement reflecting their intention to
bind Highgate, Candyman and Musson only, not [the
respondent] in his personal capacity.
...
29.
I am fortified in my view by the fact that the
promissory notes were eventually written with Citibank, not
Musson, as the lender. The promissory notes drawn by [the
respondent] from August 18, 1998 to November 16, 2001
showed Musson as the lender but from February 20, 2002 to
December 2003 they showed Citibank as the lender.
Musson's witnesses provide no explanation as to why this
change occurred...‖
[63] On behalf of the Musson, Dr Lloyd Barnett submitted that the learned judge‘s
conclusion was against the evidence and effect of the several promissory notes which
began with the promissory note of 17 November 2000 in which the respondent
promised to pay the sum of $7,937,524.21 to Citibank ―for value received‖ and on
which there are the endorsements "with full recourse to [Musson]‖. Dr Barnett
contended that none of the promissory notes made any reference to
Highgate/Candyman, nor did the respondent allege that neither Highgate nor
Candyman did not have the legal capacity necessary to issue the promissory notes in its
own capacity.
[64] It was also his submission that the learned judge erred in stating, at paragraph
29 of the judgment, that:
―...[The respondent's] unchallenged evidence is that on each
occasion Musson‘s representatives handed him the
promissory note to sign and he signed, not noticing that
there had been a change in the payee. [The respondent]
was a stranger to the details of the arrangement between
Citibank and Musson.‖
[65] Learned counsel argued that it was difficult to accept that the respondent, "a
literate businessman", failed to realize that he signed at least five promissory notes in
his personal capacity. Dr Barnett however said that, on the respondent‘s evidence, he
was aware of the importance of the arrangements from the discussions and the
agreement he had with Mr Blades.
[66] Learned counsel was also critical of the learned judge‘s examination of the
creation of the debt whilst, according to him, failing to appreciate that the signed and
stamped promissory notes (which were never in issue), were in fact, evidence of the
liability. He further criticized the learned judge‘s finding which is stated hereunder, on
the basis that it was an irrelevant consideration:
―...[O]n a balance of probabilities that the agreement was
between Musson, Candyman and Highgate and that that was
the intention of the parties...I find that each would be
aware of the difference between the entities of Highgate,
Candyman and the person [the respondent]..." (Paragraph
26)
[67] He contended that Musson did not allege that the respondent owed Highgate‘s
debt, but rather, that he unjustly enriched himself because he was relieved of his
liability to Citibank which came about by a debt based on the promissory notes which
he issued to Citibank and which Musson was called upon as guarantor to repay and did
repay.
[68] Learned counsel posited that the learned judge‘s findings conflicted with the
respondent‘s evidence, at paragraphs 6 and 7 of his witness statement filed on 26 April
2010, that:
"6.
Some days later Mr. Desmond Blades approached
[the respondent] and suggested a solution to the
problem. The solution was that he (Mr. Blades) had
arranged with Peter Moses at Citibank for Citibank to
pay [Musson] the amount owed by HIGHGATE in
exchange for a Promissory Note signed by [the
respondent] and guaranteed by [Musson].
7.
Mr. Desmond Blades further asserted that Citibank
was the only bank from which he could secure the
loan and that it would only be prepared to do so on
the basis of a Promissory Note in [the respondent's]
name and not that of HIGHGATE as the financial
problems of the company were already known in
the banking community. However [the respondent's]
name was still very good and could command the
confidence of the bank."
[69] Dr Barnett argued that the reasonable conclusion was that the respondent was
aware that Musson had paid the sums he owed Citibank to discharge his liability