American Express Europe LTD v Mervyn Leroy Fishback, [1 PDF

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AMERICAN EXPRESS EUROPE LTD v MERVYN LEROY FISHBACK [1993] MLJU 335 Malayan Law Journal Unreported · 5 pages HIGH COURT (KUALA LUMPUR) WAN ADNAN J CIVIL APPEAL NO R–8–12–109 OF 1990 12 April 1993 R Suresh (Lovelace & Hastings) for the appellant. Balwant Singh Sidhu (Balwant Singh Sidhu & Co) for the respondent.

GROUNDS OF JUDGMENT This is an appeal against the decision of the learned Sessions Court Judge dismissing the Plaintiff's application for summary judgment under Order 26A of the Subordinate Court Rules. The Defendant is and was at all material times a credit card holder of the Plaintiff under Account No. 3742-82608272003. The Plaintiff's claim is for the sum of £19,928.97 being the balance of the charges incurred by the Defendant on various dates on various facilities afforded by the Plaintiff up till 31st. day of July 1987. The statement of account is at page 31 of the Appeal Record (the said Statement of Account). [*2] The Defendant had agreed to all the terms of the Plaintiff's Cardmember Agreement. The provisions thereof relevant to this appeal are as follows:"6. PAYMENT (d) We may charge you liquidated damages (called late payment charges) on the overdue balance monthly in arrears at the following rates: (i) at 45 days from the first day of billing, 1.5% of all outstanding sums which are at least 30 days overdue. (ii) at 60 days from the first day of billing, and thereafter monthly 2.6% of all outstanding sums which are at least 60 days overdue.

7. QUERIES (a) If you have any queries about your monthly statement you must tell us immediately."

The Defendant in his affidavit in reply disputed the amount claimed. He said in paragraph 3 "To the best of my recollection, the sum outstanding on my account with the Plaintiff is far less. I believe the Plaintiff has added certain sums as interest, to which the Plaintiff is not entitled."

Page 2 of 3 AMERICAN EXPRESS EUROPE LTD v MERVYN LEROY FISHBACK Notice of demand to the Defendant was issued by the Plaintiff's solicitors on 5th. August 1987. The amount [*3] demanded was £24,428.97. On or about 11th. August 1987 the Defendant telephoned the office of the solicitors and spoke to a legal assistant, one Miss C.S. Khoo. He offered to pay the outstanding sum by monthly instalments of £1,000.00. The solicitors then wrote to the Plaintiff for instructions. Upon receipt of instructions the solicitors on 7th. September 1987 wrote to the Defendant informing the Defendant that the Plaintiff had agreed to accept settlement of the outstanding sum from the Defendant by instalments of £1,000.00 per month for three months only after which the instalments were to be increased. At no time during his telephone conversation with Miss C.S. Khoo or after receipt of the letter dated 7th. September 1987 did the Defendant ever complain that he was not indebted to the Plaintiff in the sum of £24,428.97. On 15th. September 1987 £1,000.00 was received from the Defendant. Four further payments were received from the Defendant through the letters dated 28th. October 1987, 5th. January 1988, 1st. March 1988 and 21st. March 1988 totalling £3,500.00. Under clause 7(a) of the Cardmember Agreement if the Defendant had any query about any monthly statement he was obliged to notify the Plaintiff immediately. He never queried. He did not query the said statement of account. In his affidavit in reply he said he had asked for a detailed account. This, according to counsel for the Plaintiff (which was not challenged by counsel for the Defendant) he did only after the application for summary judgment had been filed. The counsel for the Defendant [*4] submitted that it was incumbent upon the Plaintiff to produce all the charge slips which had been signed by the Defendant so that the actual amount due from him could be ascertained and as there was uncertainty as to the actual amount due the issue should go for trial. In my view it is not necessary to produce the charge slips. Monthly statements had been rendered to the Defendant and he never raised any query. When he was served with a legal notice of demand he still did not dispute the amount. In all the letters forwarding the five monthly payments to the Plaintiff's solicitors the amount alleged to be owing was never disputed. In fact every one of the said letters said "Enclosed herewith is our Bank Draft...........being........ payment towards the above outstanding sum" (the sum being £24,428.97). It is too late for him to dispute now. His counsel said that Clause 7(a) of the Cardmember Agreement did not fix the time within which the query must be made. He said the Defendant could make the query at any time. I cannot agree with him. The clause says 'immediately'. In my view 'immediately' here must mean as soon as reasonably possible and in any event before the issue of the following month's monthly statement. In Syarikat Tan Thian Siong Sdn. Bhd. v. Syarikat Siaw Teck Hwa Realty & Development Sdn. Bhd.1 it was a term of the contract that the Defendant was to make payment to the Plaintiff on a monthly basis and within 7 days of the receipt of a statement of account and invoices in [*5] respect of the amounts due and payable at that stage. Half monthly statements of accounts were rendered based on bills sent. On the statement of account there was an endorsement "if you do not agree with the above balance please inform us within 2 weeks." The learned judge in his judgment said "I think there is a short answer to this dispute. In effect the terms of the contract between the parties called for there to be an account-stated between the parties every month, the account-stated to come about by the plaintiff delivering a statement of account, the defendant having 2 weeks within which to query the accounts.The law is that in the event of non-query an account-stated came into existence which creates an estoppel against the defendant from querying the accounts thereafter."

I agree with the proposition. The Defendant cannot now be heard to dispute the amount alleged to be owing by him. The other issue raised by the Defendant is that the Plaintiff is not entitled to charge the interest. Clause 6(d) of the Cardmember Agreement clearly states that the Plaintiff is entitled to charge "liquidated damages (called late payment charges)". These charges are clearly shown in the said statement of account. [*6] I find there are no triable issues. It is clear that the Defendant was indebted to the Plaintiff in the sum of £24,428.97 as at 31st. July 1987. He made payments totalling $4,500.00 leaving a balance of £19,928.97 as claimed by the Plaintiff. I therefore allowed this appeal with costs and ordered that judgment be entered for the Plaintiff as prayed. 1 (1983)

1 CLJ 256.

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