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National Westminster Bank V. Somer International Notes

BCL Law Notes > Restitution of Unjust Enrichment BCL Notes

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NATIONAL WESTMINSTER BANK V. SOMER INTERNATIONAL FACTS Somer, which carried on business exporting computer equipment, was at all material times the customer of NatWest and from time to time received payment in dollars from foreign purchasers by sums paid to the credit of a dollar account maintained at NatWest. In summer 1996 Somer began trading with an African based company called Mentor, supplying computer equipment to Mentor for onsale to African end users. Dealing in round figures by 1997 Mentor owed Somer PS166,000 in relation to such supplies. In April 1997 Mentor remitted PS100,000 to Somer and indicated shortly afterwards that a further payment of between US$70,000 and US$78,000 would be forwarded shortly. Somer were in touch with NatWest about the prospective receipt of such payment. On 28 April 1997 as a result of an error within NatWest a sum of US$76,708.57, received by NatWest from a company called Moffett Engineering Ltd and intended for the account of another NatWest client called Somer Sundstrand Ltd, was credited to Somer's dollar account. On or about the same date NatWest notified Somer that the further dollar moneys which they were expecting had been received into that account. In the belief that, by such payment, Mentor had reduced the balance of its trading account with Somer, on 30 April 1997 Somer despatched goods to Mentor to the value of
PS5,221.99 and on 30 May 1997, in the same belief, made a further shipment of goods to the value of PS7,958.58. On 24 February 1998 the bank notified Somer that the dollar payment made on 28 April 1997 had been made in error and requested repayment. By this date Mentor had ceased to trade from its former premises in Africa and had effectively disappeared as a trading entity. The bank thereafter brought proceedings to recover the dollar payment of US$76,708.57. Somer international relied on estoppel as a defence. HOLDING Representation may be express, or through conduct It is unattractive that, in a case of moneys paid over under a mistake of fact and sought to be recovered on the basis of unjust enrichment, the extent of the recovery should depend on whether or not, at the time of the transfer of the moneys, the transferor represented by words or conduct that the transferee was entitled to such payment. When the mistake occurs, particularly in the context of a banker/customer relationship, whether or not an actual representation as to entitlement was made or can be spelt out is largely fortuitous and ex hypothesi the result of accident rather than deliberate conduct.

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