Bonvilston Vale Limited v Amser Building Limited & Ors

Summary judgment is inappropriate where material factual disputes require disclosure and cross-examination, including disputes about whether a payment was made by mistake, whether consideration existed, and whether the recipient changed its position in good faith.

A mistaken payment may be affected by an underlying contractual debt and any related right of set-off. The existence and amount of that debt may require determination of the value of work, the validity and effect of termination, and the parties’ account.

A dishonest assistance claim must plead proper particulars of dishonesty and the facts supporting any inference. Where the pleaded basis is removed and no supporting material exists, the claim may be struck out.

The claimant sought judgment in default or summary judgment against a building company and its two directors concerning a payment of £202,060.91 allegedly made by mistake. It also claimed that the payment was held on trust, had been dissipated, and that the directors had dishonestly assisted a breach of trust.

The defendants disputed the mistake, contended that the payment discharged contractual liabilities, relied on change of position and set-off, and challenged the pleading of dishonesty. The court considered whether the claimant’s case had a realistic prospect of success and whether the claims against the directors disclosed reasonable grounds.

1. Applications refused and claim partly struck out. Summary judgment was refused against Amser because the defendants had a realistic prospect of establishing issues concerning mistake, consideration, change of position and set-off. There was no other compelling reason for trial to be avoided.
2. The court could not determine summarily whether the payment was made by mistake. The absence of evidence from the person said to have made the mistake, the lack of relevant internal documents and evidence concerning the replacement contractor, and inconsistencies in the evidence meant that disclosure and cross-examination were required.
3. It was also impossible at the summary stage to determine whether a contractual debt existed, whether the payment provided good consideration, or whether trust obligations arose. Those issues depended on the proper value of Amser’s work, the validity and effect of the purported termination, and the state of account between the parties.
4. The asserted bar on set-off was not established. Guinness v Saunders concerned a fiduciary whose breach caused the wrongful payment and was distinguishable. The payment appeared sufficiently connected with the contractual transaction that set-off might be available.
5. The dishonest assistance claim against Mr Hill and Ms Hitchen had no reasonable prospects of success. Once the incorrect allegation concerning the Partridge Road charge was removed, no proper particulars or credible supporting material established dishonesty or facts from which dishonesty could properly be inferred. The claim against both directors was therefore struck out.
6. Amser was permitted to amend its defence under CPR r.17.1(2)(b), subject to consequential modifications required by the striking out of the claims against the directors.