Judgment
The principal judgment was delivered by Pill LJ.
He held that the effect of the word "avoided" in section 64 of the Bills of Exchange Act 1882 was that, subject to the qualifications therein, a cheque or banker's draft which had been materially altered by the fraud of a third party was no longer a cheque or draft representing a chose in action but a worthless piece of paper, and no action for damages in conversion for its face value could therefore be brought by a party, such as the claimants, who, but for the material alteration, would have had contractual rights based upon it. Moreover, in the first action, by presenting the materially altered and therefore invalid cheque under normal banking arrangements, the collecting bank was not asserting its validity and accordingly the consequence of invalidity could not be avoided by alleging an estoppel.
The core propositions were summarised by Alan L. Tyree as follows:
- "the word "avoided" in section 64 meant that a materially altered cheque is, subject to the qualifications in section 64, a worthless piece of paper;
- "as such, the damages in an action for conversion are nominal;
- "the collecting bank is not estopped from asserting that the cheque was worthless;
- "the drawer of the cheque is effectively "protected" since the paying bank cannot debit the account for the amount paid; and
- "the fact that the holder may have had a right to a replacement was not relevant to the value of the paper." [2]
Dishonoured cheques are cheques that a bank on which is drawn declines to pay (“honour”). There are a number of reasons why a bank would refuse to honour a cheque, with non-sufficient funds (NSF) being the most common one, indicating that there are insufficient cleared funds in the account on which the cheque was drawn. An NSF check may be referred to as a bad check, dishonored check, bounced check, cold check, rubber check, returned item, or hot check. Lost or bounced checks result in late payments and affect the relationship with customers. In England and Wales and Australia, such cheques are typically returned endorsed "Refer to drawer", an instruction to contact the person issuing the cheque for an explanation as to why it was not paid. If there are funds in an account, but insufficient cleared funds, the cheque is normally endorsed “Present again”, by which time the funds should have cleared.
Cheque clearing or bank clearance is the process of moving cash from the bank on which a cheque is drawn to the bank in which it was deposited, usually accompanied by the movement of the cheque to the paying bank, either in the traditional physical paper form or digitally under a cheque truncation system. This process is called the clearing cycle and normally results in a credit to the account at the bank of deposit, and an equivalent debit to the account at the bank on which it was drawn, with a corresponding adjustment of accounts of the banks themselves. If there are not enough funds in the account when the cheque arrived at the issuing bank, the cheque would be returned as a dishonoured cheque marked as non-sufficient funds.
Bank fraud is the use of potentially illegal means to obtain money, assets, or other property owned or held by a financial institution, or to obtain money from depositors by fraudulently posing as a bank or other financial institution. In many instances, bank fraud is a criminal offence. While the specific elements of particular banking fraud laws vary depending on jurisdictions, the term bank fraud applies to actions that employ a scheme or artifice, as opposed to bank robbery or theft. For this reason, bank fraud is sometimes considered a white-collar crime.
Cheque fraud, or check fraud, refers to a category of criminal acts that involve making the unlawful use of cheques in order to illegally acquire or borrow funds that do not exist within the account balance or account-holder's legal ownership. Most methods involve taking advantage of the float to draw out these funds. Specific kinds of cheque fraud include cheque kiting, where funds are deposited before the end of the float period to cover the fraud, and paper hanging, where the float offers the opportunity to write fraudulent cheques but the account is never replenished.
A traveller's cheque is a medium of exchange that can be used in place of hard currency. They can be denominated in one of a number of major world currencies and are preprinted, fixed-amount cheques designed to allow the person signing it to make an unconditional payment to someone else as a result of having paid the issuer for that privilege.
A negotiable instrument is a document guaranteeing the payment of a specific amount of money, either on demand, or at a set time, whose payer is usually named on the document. More specifically, it is a document contemplated by or consisting of a contract, which promises the payment of money without condition, which may be paid either on demand or at a future date. The term has different meanings depending on the use of the term as it is used in the application of different laws, and depending in which country and context it is used.
A cheque, or check, is a document that orders a bank to pay a specific amount of money from a person's account to the person in whose name the cheque has been issued. The person writing the cheque, known as the drawer, has a transaction banking account where the money is held. The drawer writes various details including the monetary amount, date, and a payee on the cheque, and signs it, ordering their bank, known as the drawee, to pay the amount of money stated to the payee.
A direct debit or direct withdrawal is a financial transaction in which one organisation withdraws funds from a payer's bank account. Formally, the organisation that calls for the funds instructs their bank to collect an amount directly from another's bank account designated by the payer and pay those funds into a bank account designated by the payee. Before the payer's banker will allow the transaction to take place, the payer must have advised the bank that they have authorized the payee to directly draw the funds. It is also called pre-authorized debit (PAD) or pre-authorized payment (PAP). After the authorities are set up, the direct debit transactions are usually processed electronically.
A banker's draft is a cheque provided to a customer of a bank or acquired from a bank for remittance purposes, that is drawn by the bank, and drawn on another bank or payable through or at a bank.
In banking, a post-dated cheque is a cheque written by the drawer (payer) for a date in the future.
A banker's acceptance is a commitment by a bank to make a requested future payment. The request will typically specify the payee, the amount, and the date on which it is eligible for payment. After acceptance, the request becomes an unconditional liability of the bank. Banker's acceptances are distinguished from ordinary time drafts in that ownership is transferable prior to maturity, allowing them to be traded in the secondary market.
A crossed cheque is a cheque that has been marked specifying an instruction on the way it is to be redeemed. A common instruction is for the cheque to be deposited directly to an account with a bank and not to be immediately cashed by the holder over the bank counter. The format and wording varies between countries, but generally, two parallel lines may be placed either vertically across the cheque or on the top left hand corner of the cheque. By using crossed cheques, cheque writers can effectively protect the instrument from being stolen or cashed by unauthorized persons.
A bank is a financial institution that accepts deposits from the public and creates a demand deposit while simultaneously making loans. Lending activities can be directly performed by the bank or indirectly through capital markets.
Lipkin Gorman v Karpnale Ltd[1988] UKHL 12 is a foundational English unjust enrichment case. The House of Lords unanimously established that the basis of an action for money had and received is the principle of unjust enrichment, and that an award of restitution is subject to a defence of change of position. This secured unjust enrichment as the third pillar in English law of the law of obligations, along with contract and tort. It has been called a landmark decision.
Canada Trustco Mortgage Co v Canada, is a significant case of the Supreme Court of Canada on the intersection of the Income Tax Act and the Bills of Exchange Act and the ability to seize funds that have been deposited by a debtor into an account held at a financial institution in Canada.
BMP Global Distribution Inc v Bank of Nova Scotia, [2009] 1 S.C.R. 504, 2009 SCC 15, is a significant case of the Supreme Court of Canada on the law of restitution and tracing, in this case dealing with a bank's right to recover funds paid by mistake on the deposit of a fraudulent cheque.
Banque Belge pour L’Etranger v Hambrouck [1921] 1 KB 321 is an English trusts law case concerning the common law remedies for receipt of trust property.
Barclays Bank Ltd v W J Simms, Son and Cooke (Southern) Ltd [1980] 1 QB 677, [1979] 3 All ER 522 was a decision of the High Court of Justice relating to the recovery of a payment mistakenly made by a bank after the customer had countermanded the cheque.
United Dominions Trust Ltd v Kirkwood [1966] 2 QB 431 was a decision of the Court of Appeal relating to what constitutes "banking business" as a matter of English law.
Joachimson v Swiss Bank Corporation [1921] 3 KB 110 is a judicial decision of the Court of Appeal of England and Wales in relation to the fundamental nature of the legal relationship between banker and customer. Together with Foley v Hill (1848) 2 HLC 28 it forms part of the foundational cases relating to English banking law and the nature of a bank's relationship with its customer in relation to the account.
