Amos v Citibank Limited

[1996] HCATrans 356

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B23 of 1996

B e t w e e n -

EDWARD AMOS

Applicant

and

CITIBANK LIMITED

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 2 DECEMBER 1996, AT 12.59 PM

Copyright in the High Court of Australia

MR T.C. SOMERS:   If the Court pleases, I appear for the applicant.  (instructed by Keller Nall & Brown)

MR R.G. BAIN, QC:   If the Court pleases, I appear with my learned friend, MR A.E. WOODCOCK, for the respondent.  (instructed by Clayton Utz)

GAUDRON J:   Yes, thank you.

MR SOMERS:   Your Honours, the special leave question primarily relates to the legal principles to be applied in the well‑known defence of accord and satisfaction, where essentially the situation for that principle is where a debtor tenders a cheque for a lesser sum than that owed in the circumstances - I should say than that owed - in circumstances where there is a dispute as to the amount owed.  Now, where the cheque is tendered on an express condition that it be accepted in full and final settlement, the question is can a creditor accept the cheque without reservation?

GAUDRON J:   Let us start with the facts, shall we, Mr Somers, that you did not send the cheque to the creditor?  You sent it to another company with a similar name.

McHUGH J:   Citicorp Australia Limited.

MR SOMERS:   That is the case, your Honours.

GAUDRON J:   Yes.  Well, now that is an important matter, and it is necessarily to be addressed before you launch into any matter of so‑called principle.  So‑called principle could only arise if, in fact, you had paid the cheque to the creditor, or its authorised agent.

MR SOMERS:   Yes, there has been a finding against my client in relation to that important point.

GAUDRON J:   Yes.

MR SOMERS:   I appreciate that.

KIRBY J:   That is not the only finding against your client.  I think there was a finding against him on credit as well - page 29.

MR SOMERS:   Yes, your Honours, that is the case.  Of course, your Honours, will not have the benefit of the transcript of the trial before the trial judge, but some evidence was adduced that the respondent, Citibank, in fact had no staff in Australia to administer its banking facilities and, in fact, those tasks were performed by Citicorp.  In my submission, it is open in that circumstance to ‑ ‑ ‑

GAUDRON J:   You need to set aside concurrent findings of fact, do you not?  Well, you need to set aside the factual findings of the Court of Appeal before you get to the point of principle that you say arises.

MR SOMERS:   Your Honour, I expect that that is the case.

GAUDRON J:   This Court does not ordinarily grant special leave when there are factual findings to be set aside before any point of principle arises, does it?

MR SOMERS:   No, it does not, your Honour.  I was intending to address you at some length in relation to the accord and satisfaction argument and the - but I appreciate if I have to clear the first hurdle before you will allow me to do that.

GAUDRON J:   Well, you certainly have to clear the first hurdle.

McHUGH J:   You certainly do.

GAUDRON J:   Special leave simply would not be granted unless the first hurdle could be cleared.

MR SOMERS:   Yes, your Honours.  I cannot really take that point much further if, as your Honours say, it is a finding of fact of which I am constrained from appealing.  I was going to take your Honours to something that Mr Justice Pincus said in the case of Ebbage & Madden, which is the last case in the authorities, where he observed that the law on this subject in this country is not quite clear.

KIRBY J:   Well, it may not be.  But this Court would not ordinarily intrude upon it in the hope of clarifying it without a factual base which was appropriate, you see.  The problem you have here is that you have got a findings of fact against you that really destroy the foundation in fact for the applicant.

McHUGH J:   Not only that, you have got a further finding of fact against you that there was no bona fide dispute between the parties at the time.

MR SOMERS:   That is so, your Honour.

KIRBY J:   They are two terrible impediments to using this as the vehicle.  We might merely muddy the waters of accord and satisfaction, or this case would go off into a question of appellate review of factual findings, or appellate review of determinations as to whether there was a bona fide dispute.  It is a very unpromising vehicle for the issue that you want to tender to the Court.

MR SOMERS:   Might I say in response to the bona fide dispute point, your Honours, that on my reading of what Mr Justice Pincus said in Ebbage & Madden, that that was one of the issues about which the law in this country was unclear; that is, whether one applies the objective theory as pronounced in Taylor v Johnson, or whether one can look into the minds of the participants to ascertain whether an accord was struck.  So, really, the bona fide dispute is central to that concept of objectivity or subjectivity.  I did not perceive that the bona fide dispute point was an impediment to my raising the Ebbage & Madden Case.

GAUDRON J:   Well, it is another factual finding that is in your way, is it not?

KIRBY J:   You have got to be an Olympic hurdler here.  You have got to jump over two very large barriers that stand in your way.  You will get a gold meddle, if you get up.

MR SOMERS:   Thank you, your Honour.  Your Honour, there had been some observations throughout the various authorities I had read where courts in the past had apparently been confused, in the circumstances of an accord and satisfaction argument, as to what constituted a matter of law and what constituted a matter of fact, and some observations in that regard ‑ ‑ ‑

KIRBY J:   The point you are seeking to agitate is not without interest; but the time for this Court to get into it is where there is the identity of the parties and there is no dispute, but that there is a bona fide contention between them.  That is the time for this Court to look at the issue, and you have got both of this barriers standing in your way.  It seems hopeless.

McHUGH J:   And you start with Foakes v Beer against you.  I mean, it has been the law now for 112 years, that you cannot discharge an indebtedness by the payment of, or a promise to pay a lesser amount, even when it is accepted.  Sir George Jessell once said you could promise to give a tomtit or something else - that that would discharge it -but not a lesser sum of money.

MR SOMERS:   Your Honour, could I refer you to what Mr Justice Pincus found in the Ebbage & Madden Case at, I think, it is page 16.  He certainly did not perceive that it was as simple as it once may have been in the case you just cited.  He made a finding that the law in respect of this subject was quite unclear.  It is at page 16.  And he goes on at page 17 of the third paragraph of that case, he says:

It is odd that the law relating to this rather common debtor’s stratagem is not yet quite clear.

And he goes on, at the end of that paragraph, referring to the inconsistency in the outcomes which are to be found in the reported cases.  He goes on again, at page 18, to say virtually the same thing, but in a slightly different manner.  Your Honours, it is almost as if ‑ ‑ ‑

KIRBY J:   Nobody disputes that there are inconsistencies in the cases, that there are interesting questions to be litigated here; the question is, is this the vehicle?  You have got these two barriers in your way.  It seems a really hopeless application, if I can say so, with respect.

MR SOMERS:   Do I understand your Honours to say that the major impediment in my proceeding further is the finding of fact as to the recipient of the cheque not being the respondent in these proceedings?

KIRBY J:   That is one of them.

GAUDRON J:   Not being its authorised agent.

MR SOMERS:   I see.  I cannot really take the matter any further than I have, your Honours, unless I can assist you further.

GAUDRON J:   Thank you, Mr Somers.  Yes, we need not trouble you, Mr Bain. 

The question which the applicant wishes to agitate does not arise unless factual findings which are adverse to him are set aside.  Moreover, the matter turns very much on its own facts.  It is not a suitable vehicle for the elucidation of any point of general principle.  Special leave is refused.

MR BAIN:   May it please the Court, I seek the costs of and incidental to the application, and upon a solicitor and own client basis.  As to the latter, the reasons are set out in part 4A of the outline.

GAUDRON J:   Yes, thank you.  What do you say to that, Mr Somers?

MR SOMERS:   Regretfully, your Honours, I will have to refer to the appeal record to see which passage of the Court of Appeal my friend relies on.

GAUDRON J:   You have had plenty of time to do that before today.

MR SOMERS:   Yes, it relates to clause 12 of the bill of sale.  I cannot respond meaningfully to that, your Honours.

GAUDRON J:   You are required to, Mr Somers.  If you have got anything to put in answer to it, or if you have got anything at all, it must be put now.

MR SOMERS:   Yes, your Honour.  Well, in my submission, the entitlement that the respondent relies on in clause 12 of the bill of sale, whereby they recover costs on a solicitor/client basis would not include costs of this nature.  I cannot take the matter any further than that.  Perhaps one basis; in our outline it is said that we did not receive the documentation until a year after they were signed, and that is at paragraph ‑ ‑ ‑

KIRBY J:   I think that was found in the court below.  I think I remember seeing that.

MR SOMERS:   Yes.

KIRBY J:   That is not a disputed fact.  But the fact remains that when produced it contained this provision. 

MR SOMERS:   Well, in my submission, it was something that was not brought to the attention ‑ ‑ ‑

KIRBY J:   You say you should not be bound by such a provision that you only received belatedly?  Is that what you are saying?

MR SOMERS:   Yes, that it would be harsh and unconscionable to do so.

GAUDRON J:   Mr Bain, this Court could simply not make orders as to the costs of the proceedings below.  It is quite impossible.  The most you can apply for is costs in this Court.

MR BAIN:   Perhaps I was not clear, and for that I apologise, your Honours.  I am dealing only with the costs of and incidental to this application.  The costs below have, on each occasion, been dealt with on the basis we are advancing.

KIRBY J:   Were they ordered on a solicitor and own client basis, or ordinary costs?

MR BAIN:   Yes, they were, your Honour, and for the reasons that appear at page 38 of the appeal book.  We had not thought, in the absence of resistance to this below, it necessary to put the plaint in but, if it is necessary, we shall do that.  Your Honours may take it that the plaint sought in terms to enforce the bill of sale because, apart from claiming the debt due as a covenant under the bill of sale, it also sought recovery of a secured property.

GAUDRON J:   Yes, thank you.  There will be an order for costs, and on a solicitor and client basis. 

MR BAIN:   I beg your Honours’ pardon, the application was for solicitor and own client, if that was the ‑ ‑ ‑

GAUDRON J:   Yes, solicitor and own client basis, yes.

MR BAIN:   Thank you, your Honours.

GAUDRON J:   The Court will now adjourn.

AT 1.14 PM THE MATTER WAS CONCLUDED