Old Mutual International (Guernsey) Ltd v. Gerry Power
Read the full judgment text of DCCJ 6221/2006 on BabelCite. This District Court judgment.
1. By way of this action, the Plaintiff seeks to recover from the Defendant the sum (“the Sum”) of £39,821.03 as an overpayment made to the Defendant under a mistake.
Cited by 11 cases
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DCCJ 6221 / 2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 6221 OF 2006 ------------------------ BETWEEN
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------------------------ JUDGMENT ------------------------ 1.By way of this action, the Plaintiff seeks to recover from the Defendant the sum (“the Sum”) of £39,821.03 as an overpayment made to the Defendant under a mistake. 2.This is the hearing of the Plaintiff’s application for summary judgment. Background 3.Most of the background matters are not in dispute and can be summarized as follows. 4.The Plaintiff is a life insurance and investment company incorporated in Guernesey, Channel Islands. 5.On or about 18 October 1995, the parties entered into a contract of insurance by which the Plaintiff agreed with the Defendant to insure the lives of the Defendant and his wife under Policy No. MG971626 (“the Policy”) in return for the payment of premiums and to invest the premiums on the Defendant and his wife’s behalves. 6.In 2003, the Defendant was undergoing divorce proceedings in Canada with his wife. On or about 23 June 2003, the Defendant made an inquiry with the Plaintiff on how to proceed to surrender the Policy. The Plaintiff in rely informed the Defendant that a written request also signed by his wife (being the other policyholder of the Policy) had to be provided for the purpose of the requested surrender. The Defendant could not provide that written requested as required by the Plaintiff. 7.On about 5 November 2003, the Defendant made another inquiry with Plaintiff and informed the Plaintiff that a Court Order issued in Canada under the divorce proceedings had directed that the Policy be assigned to the Defendant’s sole ownership. In reply, the Plaintiff informed the Defendant that the completion of a Deed of Assignment form was required if the Defendant “wished the Policy to remain in force”. 8.The Defendant provided the Plaintiff the Deed of Assignment and all the other necessary documents required by the Plaintiff in January 2004. 9.Upon receipt of all the documents, the Plaintiff then informed the Defendant that the Policy was validly cancelled in June 2003 at the time when the Defendant first made the inquiry as to how to proceed to surrender it. 10.The Defendant disputed that and insisted that the Policy should only be regarded as cancelled, and any investment proceeds payable thereunder, at the time of January 2004 when he provided all the necessary documents to the Defendant as requested. 11.The Plaintiff insisted otherwise. A dispute as to when the Policy should have been regarded validly cancelled (which would have an impact as to the valuation of the investment units purchased thereunder) then ensued between the parties and there were exchanges of emails and correspondence. 12.However, the long and short of this dispute is that the parties agreed to compromise it in June 2004: The Plaintiff agreed to “reinstate” the Policy and to pay £1,000 to the Defendant by way of settlement. This sum would be invested in the Policy to purchase further investment units. The Defendant signed an acceptance form dated 29 June 2004 confirming the settlement in the following terms:
13.By a Form of Discharge, Surrender or Partial Surrender dated 28 June 2005 and signed by the Defendant, he requested a surrender of the Policy, now under his sole ownership. 14.Pursuant to the surrender of the Policy, on about 12 July 2005, the Plaintiff paid and remitted a sum of £39,821.03 (i.e., the Sum) to the Defendant’s designated account in Hong Kong. This payment was made by reference to the claim reference number 12116. 15.On 14 July 2005, the Defendant however wrote to the Plaintiff’s International Client Helpdesk by email stating that the number of units in his portfolio had a total value of £50,000 and the Sum paid to him was thus much less. He thus requested from the Plaintiff the method of calculation that gave rise to the Sum. 16.On the same date, the Plaintiff replied the Defendant by email that the Sum paid was for the claim reference number 12116, which was a claim made in 2003. The Sum represented the payment out of the unpaid claim put into the Plaintiff’s unclaimed benefit account. The email also stated that the Sum thus represented what the Policy was worth at that time, meaning 2003. It went on to say that the Plaintiff would pay the Defendant the “remaining funds” on the Policy at the price date of 12 July 2005 and that they would aim to release the funds as soon as possible. 17.The payment of the Sum was also followed by a letter from the Plaintiff to the Defendant dated 15 July 2005 confirming that the payment was made under claim reference number 12116. It was stated that the payment was made in respect of “the full and final settlement” of the Defendant’s claim. The letter also set out in a table form the respective values of the various investment units held under the Policy. 18.Thereafter, on 19 July 2005, the Plaintiff paid and remitted a sum (“the 2nd Sum”) of £50,441.92 to the Defendant under the claim reference number 20131. The Plaintiff also notified the Defendant of this payment by email of the same date. 19.By an email dated 21 July 2005, the Plaintiff wrote to the Defendant by email stating that the Sum, which represented what the Policy was worth in 2003, paid to the Defendant was made due to a technical error, which should not have been sent to him. It further stated that the Policy was worth the 2nd Sum that was sent to the Defendant on 19 July 2005. The Plaintiff then requested the Defendant to return the Sum to them as soon as possible. The Defendant did not reply to this email. 20.At the same time, by a letter dated 22 July 2005 sent to the Defendant, the Plaintiff formally informed the Defendant of the payment of the 2nd Sum which represented “the full and final settlement” of his claim. In the letter, the respective valuation of the various units held under the Policy was set out. 21.The Plaintiff wrote to the Defendant officially on 25 July 2005 confirming that the payment of the Sum was an overpayment made a result of an administrative error. The Plaintiff again requested the Defendant to return the Sum to them. Again, the Defendant did not reply to the letter. 22.Subsequently, the Plaintiff have written repeatedly to the Defendant asking him to repay the Sum, which was remitted to him under a mistake. The Defendant has similarly not replied to any of these requests. 23.On 19 December 2006, the Plaintiff brought the present action against the Defendant to recover the Sum paid under a mistake. The Plaintiff’s claim 24.The Plaintiff’s claim is simple: The Defendant surrendered and could only surrender the Policy once and there could only be one valuation of the surrender value. Given that the Sum was paid based on the 2003 valuation while the 2nd Sum was paid based on the full 2005 valuation, the 2nd Sum cannot be a payment of the balance of the sums between the 2003 valuation and the 2005 valuation but a sum representing the entire and full valuation of the Policy investments in 2005 when it was surrendered. In the circumstances, the Sum was paid wrongfully under a mistake to the Defendant. The Defendant is liable to repay it to the Plaintiff as money had and received. The Defence and Counterclaim 25.Other than denying that he had been allegedly overpaid, the Defendant through his Defence (and Counterclaim) and opposing affidavit raises the defence that given that the Plaintiff had by their letter dated 22 July 2005 confirmed that the payment of the 2nd Sum represented a full and final settlement of the claim, there is nothing to show that the payment of the 1st Sum was a made under a mistake. In other words, the Defendant says it is the Plaintiff who had at that time taken a conscious decision (under what is known as a Non Standard Decision) to “settle” the Defendant’s claim by paying him the 2nd Sum, in addition to the Sum, whatever the value of the Policy was. In the circumstances, there was simply no mistaken payment and he was entitled to keep the Sum. 26.Although the Defendant puts in a “Counterclaim” in his pleading, he is not in fact counterclaiming any relief against the Plaintiff but simply re-stating his defence. Applicable principles 27.The principles applicable to a summary judgment application are well known. The burden is on the Defendant to show a triable defence which is not practically moonshine and is worthy of belief. The Defendant should also condescend to particulars in support of the defences raised. See: Hong Kong Civil Procedure 2007, paras 14/4/3, 14/4/4, 14/4/9. Discussions 28.Given the undisputed matters set out above, I find that the Defence is without any merits for the following reasons. 29.The Defendant only surrendered (and can only so surrender) the Policy once. He is only entitled to receive a payment representing the total valuation of the portfolio of investments under the Policy when it was surrendered. 30.It is the Plaintiff’s case and evidence that the 2nd Sum represents the entire and complete valuation of the investment portfolio under the Policy in July 2005 when the surrender claim was settled. 31.On the other hand, the Defendant has not provided any evidence to suggest that this valuation does not so represent the complete value of the portfolio. The Defendant also has not provided any evidence to suggest that 2nd Sum in fact represents the difference between the respective valuations of the portfolio in 2005 and 2003, and therefore it is the Sum together with the 2nd Sum which should represent the entire value of the portfolio. 32.In the premises, the Defendant has failed to show any triable issues on whether the 2nd Sum represents in fact the entire and complete value of the Policy’s investment portfolio when it was surrendered in July 2007. I have no hesitation in holding that the 2nd Sum does so represent. 33.By reason of the above, it is clear that the Sum was an overpayment initially made to the Defendant purportedly as the unclaimed payment in relation to the Defendant’s attempt to surrender the Policy in 2003. This is particularly so given that the Defendant has not challenged or provided any evidence to rebut the Plaintiff’s case (as set out in the email dated 14 July 2005) that the Sum was paid under the belief that the attempted surrender claim made by the Defendant in 2003 (i.e, claim reference number 12116) was still subsisting. As I said above, the Defendant could not have been entitled to 2 separate payments in relation to 2 “surrenders” of the same policy. 34.The Defendant however appears to contend that it does not matter whether the 2nd Sum in fact represents the entire and complete valuation of the investment portfolio under the Policy because the Plaintiff had made a conscious decision to make the payment on top of the Sum for the purpose of having a “full and final settlement” of his claim as set out in the Plaintiff’s letter dated 22 July 2005. The Plaintiff is thys now bound by their decision, the Defendant submits 35.However, as pointed by Mr Evans acting for the Defendant, the Plaintiff’s letter dated 22 July 2005 is only a standard letter which is of identical wording (save as the numerical figures and references to the relevant claim numbers) as that of the letter dated 19 July 2005 (issued in relation to the payment of the Sum). The phrase “full and final settlement” used therein is only a standard phrase and does not support the Defendant’s contention. He asks rhetorically, if the phrase represents a binding final settlement between the parties, why is it then the Defendant and the Plaintiff are not bound by the first letter in relation to the payment of the Sum being also stated to be a “full and final settlement”. 36.I agree with Mr Evans. I also do not think the Plaintiff’s letter dated 22 July 2005 stating that the 2nd Sum represented a full and final settlement of the Defendant’s adds anything to the defence. What was there to settle or compromise other than to pay out the sums valued under the Policy when it was surrendered? In which case, the Defendant was only entitled to one payment and one payment alone – i.e., the sum which represented the full and complete valuation of the Policy’s portfolio at the time of surrender. There is simply no reason (and the Defendant has not provided any) why the Plaintiff would agree to provide any further sum additional to the 2nd Sum so as to allegedly secure a settlement with the Defendant. 37.I therefore come to the conclusion that the Defendant has failed to show any triable defence to the present claim. Conclusion 38.For the above reasons, I grant summary judgment against the Defendant in the sum of £39,821.03. The Defendant should also pay the Plaintiff interest at 1% above the prime rate on the sum of £39,821.03 from 19 December 2006 to the date of the judgment and thereafter at judgment rate until payment. 39.I further order that the Defendant do forthwith pay the Plaintiff the sum of HK$40,000 as the costs of the action and this application, the quantum of costs having been agreed between the parties.
Mr. Antony Evans of Messrs Robin Bridge & John Liu, for the Plaintiff Mr. Gerry Power, in person, for the Defendant, present. |
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