Davis v Alcoa Australia Retirement Plan Pty Ltd
[2018] VCC 1724
•30 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-17-05437
| CHRISTOPHER WAYNE DAVIS | Plaintiff |
| v | |
| ALCOA AUSTRALIA RETIREMENT PLAN PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2018 | |
DATE OF JUDGMENT: | 30 October 2018 | |
CASE MAY BE CITED AS: | Davis v Alcoa Australia Retirement Plan Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1724 | |
REASONS FOR JUDGMENT
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Catchwords: Civil Procedure Act 2010 – s61 – application by plaintiff for summary judgment – plaintiff seeking payment of lump sum for total and permanent disablement within the meaning of a Trust Deed – contested claim with Defence filed, hearing dates allocated, unsuccessful mediation conducted and the like – plaintiff also had on foot application to same fund for superannuation payout – error made by agent of defendant by way of informing plaintiff that claim for total and permanent disablement has been accepted – plaintiff subsequently informed of error within a period of approximately 7 days – arguments include those relating to election and estoppel – consideration of provisions of Civil Procedure Act 2010 and Order 22 of the Civil Procedure Rules – whether summary judgment should be ordered – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Donald | Maurice Blackburn Lawyers |
| For the Defendant | Ms A Robertson | Hall & Wilcox |
HIS HONOUR:
(a)General background
1 This matter comes before me by way of a Summons seeking judgment pursuant to s61 of the Civil Procedure Act 2010. In other words, it is an application for summary judgment in a proceeding on the ground that the defendant’s defence has no real prospect of success.
2 Mr A Donald of Counsel appeared on behalf of the plaintiff. Ms A Robertson of Counsel appeared on behalf of the defendant. No oral evidence was called. On behalf of the plaintiff, there was put before me an affidavit sworn by him on 27 September 2018 and to which were exhibited a number of documents. The defendant put before me an affidavit of Mr Andrew Lyle, solicitor with the conduct of the matter on behalf of the defendant, this being sworn on 16 October 2018, along with some exhibits. It also placed before me an affidavit of Mr Ralf Bourn, an employee of Mercer (Australia) Pty Ltd, hereinafter referred to as “Mercer”. In effect, Mercer is the scheme administrator for the defendant and Mr Bourn is employed by it as the Client Services Manager for the defendant. This affidavit was also sworn on 16 October 2018. At least for the purposes of the present application, there is no argument concerning the roles played by Mr Bourn, Mercer and the defendant.
3 Each counsel made particularly helpful and detailed written and oral submissions, for which I thank them. The principal argument before me was a slightly unusual one, but counsel were able to refer me to a number of authorities and their submissions generally were of great assistance.
(b)Factual background
4 The principal litigation involved is based upon a Writ and Statement of Claim of 20 November 2017. In that Statement of Claim, the plaintiff is suing the defendant as trustee of the superannuation fund known as “Alcoa Australia Retirement Plan”. That Plan shall hereinafter be referred to as “the Fund”. The plaintiff asserts that he was an employee admitted into membership of the Fund and that, since 1 August 2014, he has been totally and permanently disabled within the meaning of the Trust Deed of the Fund, (which Deed shall hereinafter be referred to as “the Deed”). On 10 October 2014, the plaintiff applied for the payment of the Total and Permanent Disablement Benefit (hereinafter referred to as “the TPDB”) within the meaning of the Deed. By letter dated 24 August 2016, the defendant refused to pay the TPDB. By letter dated 11 January 2017, to the plaintiff, the defendant confirmed the refusal of payment of the TPDB. In his Statement of Claim, the plaintiff alleges that the failure to pay the amount claimed involved a considerable number of breaches of the Deed by the defendant and sets out allegations concerning the plaintiff’s lack of employability.
5 It is asserted in the Statement of Claim that the TPDB is an amount of $580,816.59, of which the insured portion is $158,183.55. In effect, the plaintiff is seeking payment of the TPDB in these alternate sums. However, the amount of the dispute which is on foot essentially isS $158,183.55.
6 The defendant filed a Defence dated 11 January 2018. It admits many of the formalities. That the plaintiff is totally and permanently disabled within the meaning of the Deed is denied, as are allegations that the defendant has breached the Deed, essentially by not making a proper decision in favour of the plaintiff. The defendant also denies that it should have paid to the plaintiff the amounts claimed by him. It denies that he had left his employment by reason of Total and Permanent Disablement. It asserts that he left his employment by reason of the closure of the relevant plant and that he has no entitlement to the TPDB.
7 The case has made its way through the court system. A timetable was set down by the Judicial Registrar and the case fixed for trial on 12 November 2018 as a Cause with an estimated duration of three to five days. A mediation was conducted on 14 June last. This was unsuccessful. Accordingly, the matter remains fixed for hearing as a trial on 12 November next.
(c)Subsequent developments leading to the issuing of the summons for final judgment
8 On 24 August 2018, the plaintiff received an email from “Alcoa Super”. I might add that there is no argument but that this correspondence effectively emanated from the defendant or its agent. The email had been forwarded to the plaintiff, care of his solicitor, on 22 August 2018, but had been unable to be opened by him on that occasion and, by request, it was sent again on 24 August. Indeed, an identical email appears to have been sent on 21 August 2018 and at least received by the plaintiff’s solicitor – see paragraph 6(b) of the plaintiff’s affidavit. This email said, in essence, that the plaintiff’s claim for a TPBD had been approved on 11 July 2018. The figures were set out and payment instructions appended. That the TPDB claim was finalised and accepted was also confirmed by the plaintiff in a telephone conversation with a person at the “Helpline” operated by or on behalf of the defendant. In each email, the defendant, via its agent, stated that the insured portion of the benefit, namely $157,672.97, had been credited to the plaintiff’s account effective 11 July 2018. There was also reference to a larger amount, being the TPDB, as opposed to the insured portion of that benefit, this being the sum to which reference has just been made.
9 By an email dated 28 August 2018, the defendant’s solicitor informed the plaintiff’s solicitor that, in essence, there had been an error and that the reference to the TPDB in the letter had been wrongly included in the relevant calculations. A further letter would follow, correcting the error and correctly quantifying entitlements. No payment had yet been made. By letter dated 29 August 2018 to the plaintiff, care of his solicitor, Mercer stated that the previous emails of 22 and 24 August had been sent by mistake, the wrong template having been used. However, by further correspondence of 30 August 2018 and 11 September 2018, the plaintiff’s solicitors asserted that the claim had been admitted, stating that it was unreasonable for the defendant not to pay it and seeking interest in addition to payment of the sum in question ($157,672.97).
10 The plaintiff’s affidavit concludes with the assertion that his claim has been admitted and that the defence of the defendant has no real prospects of success.
11 The affidavit of Mr Bourn on behalf of the defendant points out that there had been earlier correspondence with the plaintiff’s solicitors seeking the release of the plaintiff’s superannuation account balance, such correspondence being on 19 July 2018. This was confirmed on 14 August 2018. The defendant’s solicitors responded on 15 August 2018, stating that, further to the letter of 19 July 2018, they had been instructed that the plaintiff’s application had been accepted and that payment was being processed. Thus, the plaintiff requested an early payout of his superannuation balance and the defendant acceded to that request. Mr Bourn asserts that the claim the subject of this proceeding was not the subject of the request or of the acceptance of the request. The letters exhibited to the plaintiff’s affidavit, and which were also forwarded to his solicitors, erroneously state that the plaintiff’s TPDB as at 11 July 2018 was $606,268.83 and that the insured portion of it amounted to $157,672.97, which had been credited to the plaintiff’s account as at 11 July 2018 and invested as cash. This was an error. In fact, the plaintiff’s superannuation account balance was $448,595.85 and the letter should have made no reference to the insured benefit. The various forms attached to the letter all related to superannuation and not to a TPDB. The error occurred because an employee had, in essence, placed a form on the wrong file. The defendant then dealt with the plaintiff on the erroneous basis that his TPDB claim had been approved. Mr Bourn further swore that, in the telephone conversation referred to by the plaintiff, the plaintiff was only informed that his claim had been accepted. There was no reference to a TPDB. The affidavit of Mr Lyle effectively confirms the correspondence which took place between the defendant’s solicitors and the plaintiff’s solicitors in July and August 2018, as set out in Mr Bourn’s affidavit.
12 It is against this background that the present summons for final judgment has been issued and contested.
(d)The submissions on behalf of the parties
13 I turn now to a summary of the submissions on behalf of the parties.
(i)The submissions on behalf of the plaintiff
14 The submissions of Mr Donald on behalf of the plaintiff could be summarised as follows.
15 The defence of the defendant has no real prospect of success. It elected to exercise its right to admit and pay the claim. It should be held to its election and is no longer free to set up an inconsistent right by way of a refusal to pay the claim. Further, the defendant is estopped by representation from refusing to pay the claim. The test is whether the defendant has a real, as opposed to a fanciful, chance of success. The power to terminate a proceeding summarily should be exercised with caution and only if it is clear that there is no real question to be tried. That is the situation in the present case. Reference is made to the general principles set out in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158.
16 In relation to the doctrine of election, reference is made to the principles set out in Sargent v ASL Developments Ltd (1974) 131 CLR 634. There must be an element of knowledge on the part of the elector and words or conduct sufficient to amount to the making of an election as between the two inconsistent rights which it possesses. The elector must at least know the facts in question. There has to be full knowledge of the material facts. The words or conduct involved must be consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other. There must be communication to the party affected by words or conduct of the choice made and once an election is made, it cannot be retracted. This approach is adopted in the interests of certainty. Detriment need not be shown before the elector is prevented from seeking to enforce the vanished right. Waiver by election depends upon what the party intends to do and has done.
17 In relation to estoppel by conduct, this arises where the representor induces the representee to adopt and act upon an assumption of fact (common law estoppel) or an assumption as to the future conduct of the representor (equitable estoppel). Estoppel only arises where the representee has acted on the assumption in such a way that he or she will suffer detriment if the representor acts inconsistently with that assumption. The estoppel can be either at common law or in equity. In determining whether an estoppel has arisen, there must be an induced assumption and detrimental reliance upon it. The issue of reasonableness must be considered. In relation to these principles, reference is made to the decision in Waltons Stores (interstate) Ltd v Maher (1988) 164 CLR 387.
18 In the present case, the plaintiff was an employee who was a member of the fund in accordance with the Deed. He applied for payment of the TPDB payable by operation of the Deed on the basis that he was totally and permanently disabled within the meaning of the Deed. By letters of 24 August 2016 and 11 January 2017, the trustee informed the plaintiff of its decision to refuse to pay the TPDB and confirmed such refusal. All these matters are admitted. The relevant letters in August 2018 and the telephone conversation between the plaintiff and the defendant’s representative clearly set out that the TPDB claim was accepted, was finalised and that the money was in the plaintiff’s account. The plaintiff’s solicitors received a similar letter. In summary, the plaintiff had been told that the TPDB claim had now been admitted and that $157,672.97 had been credited to his bank account.
19 In short, the evidence is overwhelming that the TPDB claim was admitted by the defendant on 11 July 2018. It should not now be permitted to approbate and reprobate. The defendant elected to admit the claim and then used words and engaged in conduct which was unequivocal and was consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other. It admitted the TPDB claim and did not refuse to pay it. At the time, the defendant had full knowledge of the legal rights existing in the context of the admission. The defendant had solicitors in full knowledge of the fact that the case was before the Court and a hearing date had been obtained. A clear and unequivocal communication of the choice that had been made then occurred. It was a clear election to pay the claim and, once that election had been made, it cannot be retracted.
20 Further, and in any event, the defendant is estopped by its conduct from asserting that it is not obliged to pay the TPDB claim. The detriment suffered by the plaintiff is that of being kept out of the money to which he is legally entitled. Pursuant to Order 22.05 of the County Court Civil Procedure Rules, the defendant may show cause against an application for summary judgment by affidavit or otherwise to the satisfaction of the Court. It has not done that. It has attempted to characterise its admission of the claim as an error, but these circumstances arose more than a week after approval of the plaintiff’s TPDB claim on 11 July 2018. The Court cannot be satisfied that there was an error. There is no evidence from the persons involved in relation to the alleged error. What has been put before the Court is classic hearsay. The direct evidence of the plaintiff should be preferred. The material provided by the defendant is inadequate. There is no evidence from the relevant witnesses and Mr Bourn’s affidavit does not clearly set out the grounds of his belief. There are no corroborating documents, such as minutes or notes. There is no explanation for the absence of these. Other than assertion, there is no evidence of administrative error, and particularly not on 11 July 2018.
21 Bearing all of the above in mind, there should be judgment for the plaintiff with interest and costs, on the basis that the defendant has no real prospects of success.
(ii)The submissions on behalf of the defendant
22 The submissions of Ms Robertson on behalf of the defendant could be summarised as follows.
23 The plaintiff bears the onus of proof. Section 61 of the Civil Procedure Act enables a party to apply to summarily dismiss a proceeding and the circumstances in which this can occur are set out in s63. There is a further discretion to allow a matter to proceed to trial in s64. The test, as set out in LysaghtBuilding Solutions, concerns whether a defendant has a real, as opposed to a fanciful, chance of success, that test being to some degree more liberal than the “hopeless” or “bound to fail” test.
24 In relation to election, for that doctrine to apply there must be a choice made by a party between two alternative inconsistent rights, choosing to enjoy one and to surrender the other – see Sargent. The plaintiff has the onus of establishing that the defendant made an election, being a choice between alternative rights. That can only be determined by a reference to the policy, which is not in evidence in this application. The defendant had no ability to elect to waive any ability it had to refuse to pay the plaintiff’s claim under the policy. That is not in evidence. If there is no liability under the policy, conduct by the defendant consistent only with acceptance of liability does not amount to an election. There is no assertion of a right by the defendant. There is no obligation to indemnify in the first place, and accordingly no case of election can or does arise. Election can only operate in respect of subordinate obligations and cannot alter the nature of an obligation by in effect substituting one agreement for another. It has no choice in relation to the policy. If the terms are met, it has to pay up. What occurred in The Commonwealth v Verwayen [1990] 170 CLR 394 was a choice between rights and not between different ways of discharging an obligation. By referring in general terms in correspondence to the plaintiff’s TPDB claim and its acceptance, the plaintiff made no election.
25 Further, the defendant relies upon the decision of the Queensland Court of Appeal in Freshmark Limited v Mercantile Mutual Insurance (Australia) Limited [1994] 2 Qd R 390. (This is a decision to which I shall return.)
26 At trial, the Court will have to consider whether there was any liability on the part of the defendant to pay the TPDB claim. That is a matter best considered when all relevant evidence is before the Court, including the relevant policy. There is no real prospect that the plaintiff’s application will succeed.
27 If the doctrine of election applies, when the defendant communicated its decision not to pay the TPDB claim and subsequently defended proceedings brought by the plaintiff on that basis, it made a clear election to exercise any right it had to refuse to pay such claim. That of itself constituted an election which cannot be revoked.
28 Even if the conduct of the defendant can amount to an election which can be revoked, there is no intentional act with knowledge by it, as is required for a valid election. There had been an unsuccessful mediation and the defendant had made it clear that it was proceeding to trial. Further, the response contained in the letters, when seen in the context of the case, were capable of being understood as a response to the superannuation claim, even though there was referral to the TPDB claim. There was no manifest intention on the part of the defendant to disregard its refusal to indemnify in respect of the TPDB claim and to make an election. Further, there was no actual knowledge on the part of the defendant that it had made an election and it was not bound by the acts of its agent. There was no knowledge-based election.
Further, the plaintiff has suffered no detriment as a consequence of the defendant now maintaining its refusal to pay the TPDB claim. It had told the plaintiff of its refusal to pay previously. The plaintiff is in no different position now to that which he would have been in had the defendant simply defended the proceeding. The agent made the mistake. When the defendant realised the correct position, it refused the claim. Had moneys been paid, they would have been able to have been recovered, unless it was not unjust to do so. A waiver in the nature of an election in this case, if it can be revoked, should be revocable in circumstances where a representation has been made and shortly thereafter withdrawn with no detriment suffered. The defendant did not intend that the plaintiff would act on the letter and there is no relevant act on his part indicating that he did so act on the letter. Reference is made to Barrett Bros (Taxis) Ltd v Davies [1966] 1 WLR 1334.
29 For estoppel to be established, there are a number of requirements. There must have been a representation of fact by the defendant upon which it intended the plaintiff to act; it must have induced an assumption on the part of the plaintiff that it would pay the TPDB claim; there must have been reliance on that representation; there must be detriment to the plaintiff or benefit to the defendant; and there must be the element of unconscionability. In the present case, the evidence does not establish that the plaintiff understood the effect of the correspondence from the defendant to be that his TPDB claim would be paid. The plaintiff knew that the representation was wrongly founded. He had recently attended a mediation with the defendant which did not settle and the defendant was continuing to defend the proceeding. The plaintiff did not alter his position because of reliance upon the correspondence in question and there is no evidence disclosed by him that he did not know the true facts, so as not to be misled by the representation. The burden is upon him to adduce such evidence. It was not reasonable for the plaintiff to interpret the correspondence as having application in the circumstances. The plaintiff had been clearly told, on many occasions, that his TPDB claim would not be paid. In any event, the correspondence was not relied upon, or acted upon in any way, by the plaintiff to his detriment. No estoppel arises.
30 Summary judgment can only be given if there are no real prospects of success on the part of the defendant. In the present case, there are real issues to be determined, including matters of expert evidence and issues of law. The plaintiff has to establish that he is entitled to summary judgment and that has not been established.
(iii)The reply on behalf of the plaintiff
31 Mr Donald replied briefly on behalf of the plaintiff. This reply could be summarised as follows.
32 The insurance arrangements of the defendant are irrelevant. As is apparent, this case involves a claim against the trustee. What is admitted in paragraphs 4 and 5 of the Defence covers the insurance situation. There has been a failure to produce any minutes or the like surrounding the initial acceptance of liability on 11 July 2017 or in relation to the subsequent discovery of the “error”. It is clear that the defendant as trustee considered the matter and approved of the payment. The evidence of the plaintiff concerning the conversation which he had and the assertion that the money had been paid into his account are to be borne in mind. Relevant minutes have not been produced and the plaintiff refers to and relies upon the decision in Jones v Dunkel [1959] ALR 367. When the plaintiff’s evidence concerning the letters and the telephone conversation is taken into account, it is apparent that there is no real issue to be tried. Emphasis is placed upon the decision of 11 July 2018. The plaintiff is entitled to summary judgment.
Ruling
33 I am not persuaded that an order for summary judgment in favour of the plaintiff should be made. To put it at its simplest, what occurred was a mistake made by an agent of the defendant. It occurred in the context of a claim for a TPDB which had been rejected and concerning which litigation was on foot. I accept that this was a simple error and did not reflect some temporary reversal of position by the defendant. There is no evidence that the plaintiff acted to his detriment or suffered any loss by reason of what occurred. He and his advisers must surely have been a little surprised by this sudden surrender, occurring in the context of fully contested litigation and a recent unsuccessful mediation. It might also have been a little surprising that this communication came not from the solicitors on the record for the defendant, but directly from an agent of their client. Further, the reference to the sum in question was contained in correspondence referring to it as part of a much greater sum and as having been credited to the plaintiff’s account, effective some six weeks previously. There seems to be no dispute but that, at least as far as the relevant amount of $157,672.97 is concerned, no such crediting had taken place (and has not taken place).
34 In addition, less than one week later, the defendant’s solicitors informed the plaintiff’s solicitors, in writing, that an error had been made by the administrator of the trust and a reference to the TPDB had been included in the calculation of the overall amount to be paid. In other words, notification of the correct situation occurred comparatively promptly.
35 Before I turn to the legal arguments, I would say that, apart from an unfortunate error being made, the merits of the situation are almost entirely with the defendant. A mistaken and apparently total capitulation occurred in the midst of contested litigation, following an unsuccessful mediation and less than three months before the trial date. It came effectively direct from the defendant and not from its solicitors on the record, but directly from an agent of their client, the defendant itself. Despite what was asserted in the correspondence, no money had in fact been paid over. The error was quickly corrected. There is no suggestion that the plaintiff, relying upon the information erroneously provided, acted upon it to his detriment.
36 I turn now to the relevant legislation, which is of particular assistance. Section 63(1) of the Civil Procedure Act contains the test of “no real prospect of success”. However, s64 takes matters further. Despite anything to the contrary, any relevant part of the legislation or any rules of court, a court has a considerable discretion. It may order that a civil proceeding proceed to trial if it is satisfied that, despite there being no real prospect of success, such civil proceedings should not be disposed of summarily because it is not in the interests of justice to do so or the dispute in question is of such a nature that only a full hearing on the merits is appropriate. This appears to me to be a discretion that stands over and above other discretions and the like, which otherwise exist. Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case – see, for example, the discussion in Deputy Commissioner of Taxation and Anor v Bourke and Anor [2018] VSC 380 and Khouri v Khoury [2018] VSC 305. The provisions of Order 22 of the County Court Civil Procedure Rules have to be examined and applied in a manner which takes into account the over-arching statutory provisions.
37 Apart from any other argument, I am satisfied that it would not be in the interests of justice to dispose of this matter summarily. I am also of the view that the dispute is of such a nature that only a full hearing on the merits is appropriate. Essentially, I am of the view that a mistake, which was comparatively quickly remedied and which caused no tangible detriment, lies at the heart of the present application. Accordingly, it seems to me to be not in the interests of justice to dispose of the matter summarily and that a full hearing on the merits is appropriate.
38 Particularly in his reply, Mr Donald placed considerable emphasis upon the decision of 11 July 2018, which is referred to in the letters of 21 and 22 August 2018. I am not of the view that this advances the plaintiff’s position to any significant degree. As is clear from the affidavit of Mr Bourn and which I accept, the decision of 11 July 2018 is part of, if not the genesis of, the error or mistake that was made. I would refer to paragraph 9 of that affidavit. I am not convinced that reliance upon the decision of 11 July 2018 advances the plaintiff’s case any appreciable distance.
39 Even leaving to one side the operation of s63 and s64 of the Civil Procedure Act, in my view the arguments advanced on behalf of the defendant are to be preferred. I am not persuaded that the doctrine of election operates to the plaintiff’s advantage. Apart from anything else, I am of the view that what occurred in the present case involves argument concerning the discharging of an obligation, as opposed to a choice between rights. Further, as earlier indicated, Ms Robertson referred me to the decision of the Queensland Court of Appeal in Freshmark. Whilst this court is not bound by such a decision, obviously it should be followed unless there are convincing reasons as to why it is not correct. Although the factual basis is not identical to that in the present case, there are some similarities. A trailer owned by Freshmark was damaged in circumstances not covered by the policy of the respondent insurer. In response to a claim under the relevant policy, the respondent authorised that repairs be made. Subsequently, it stopped the repair work and denied liability. The majority determined that the insurer was not confronted with a choice between alternative and inconsistent rights, namely a right to accept liability under the policy and a right to reject it, because there never was any such liability. By authorising repairs, the insurer made no irrevocable election, but merely chose a method of discharging an obligation which it mistakenly believed it had under the policy. As was said by McPherson JA at p396:
“Once estoppel is eliminated from the scene, the defendant’s position did not differ from what it would have been if it had done nothing but to say it would repair the vehicle and had then refused to go on with those repairs on finding that the policy did not apply”.
Dowsett J stated the following at p403:
“Obviously, a contracting party always has the right to insist or not insist upon his rights and conversely, to accept or not accept alleged liability. Such a choice is not accurately described as an election in the sense intended in Verwayen. There, the Commonwealth chose not to rely on available defences, but that was not, relevantly, an election”.
The decision in Freshmark seems to me to support the arguments advanced by the defendant.
40 Further, I agree with the submissions made by Ms Robertson to the effect that, if it is a situation of election, then the defendant, when it originally communicated its decision not to pay the TPDB claim, and indeed opted to defend proceedings brought in relation to such claim, made a clear election to refuse to pay such claim. The defendant had made it apparent that the matter was proceeding to trial and an attempt at mediation was unsuccessful.
41 In addition, I agree with the submission that the plaintiff is now in no different position from that which he would have been in if the defendant had simply defended the proceeding from the outset. I also accept the submission that no relevant act was performed by the plaintiff as a result of the receipt of the letter. This is another argument of the defendant which I believe to have merit. I am also of the view that principles relating to estoppel do not assist the plaintiff. The plaintiff and his advisers should have been well aware that this was a contested matter in which there had been a failed mediation and in which there was an upcoming trial. There is no evidence to suggest that the plaintiff relied upon the contents of the letters or the telephone conversation and, as a result, acted to his detriment. The behaviour of the defendant cannot be described as unconscionable. It was a comparatively simple mistake which occurred in the context of defended litigation and which apparently occurred without the knowledge of the solicitors on the record for the defendant. I agree that the position of the plaintiff did not alter as a result of the correspondence from the defendant and any telephone conversation with it or its agent. There is no evidence that the plaintiff acted to his detriment as a result of relying upon the mistake. Indeed, it is a situation where, had the defendant mistakenly actually paid the amount in question to the plaintiff, it could well have a strong argument that such an amount should be repaid. However, as we know, the situation never reached the stage of actual payment.
Conclusion
42 In summary, whether the matter be viewed from the perspective of statutory interpretation, election, estoppel or, indeed, what could be described as general fairness combined with a “common sense” approach, it seems to me that the plaintiff should not be able to rely upon a mistake made in the context of contested litigation, which mistake was corrected promptly once the solicitors on the record became aware of it, and where there is no evidence of the party relying upon the mistake having acted to his detriment.
43 The application for summary judgment is dismissed and I shall hear the parties as to any further orders that are required.
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