Woman ordered to pay Lm7,200 back to HSBC

Mr Justice Tonio Mallia in the First Hall of the Civil Court yesterday upheld a writ of summons filed by HSBC Bank Malta plc against Josephine Farrugia and ordered defendant to refund Lm7,200 to the bank.

The court heard the writ originally filed by Mid-Med Bank Ltd in 1990 against Farrugia. The name of the bank was changed to HSBC in December, 1999.

In its writ the bank claimed that on July 31, 1990, Farrugia had gone to the savings branch in Republic Street, Valletta, in order to withdraw the sum of Lm800 from her account.

The cashier had in error, paid out Lm8,000 to Farrugia, who had accepted the money.

However, when the error was discovered, Farrugia had already left the bank, and when she was eventually traced, she denied having received more than Lm800.

The bank requested the court to order Farrugia to refund the sum of Lm7,200 together with interest with effect from August 1, 1990.

Mr Justice Mallia heard evidence to the effect that Farrugia had a savings account with HSBC (formerly Mid-Med Bank) and that she had requested to withdraw Lm800 from her account.

In 1990, any client of the bank wishing to effect a withdrawal had first to complete a voucher indicating the amount of the withdrawal, and then, after the voucher was verified, to proceed to the cashier to collect the money.

In this particular case, Farrugia had abided by these procedures, and the voucher showed that she had applied to withdraw Lm800 from her savings account.

The cashier, Helen Azzopardi had, in error, paid Farrugia Lm8,000 instead of Lm800.

In her testimony Azzopardi told the court that on the day in question there had been many clients at the bank.

At some stage in the morning, another client had deposited Lm13,000 in cash with her, and then a woman had tried to cash a cheque made out to her daughter.

When Azzopardi had told her that this was not possible as the cheque was qualified with the word "only", the woman had become so angry that the bank's security staff had to be sent for. Azzopardi had been disturbed by this incident, but had remained at her desk, and the next client she had served was Farrugia.

In her testimony, Azzopardi reiterated that she had paid Farrugia Lm8,000 in error, and that she had handed over to Farrugia eight packets each containing Lm1,000 in cash.

It was only when Farrugia left the bank that Azzopardi noted her error.

Azzopardi had followed Farrugia out into the street, but did not find her.

Farrugia testified that she had received Lm800 from Azzopardi, and that Azzopardi had counted the money out to her.

When Farrugia was eventually traced by the bank's security staff she had showed them that in her handbag she had only Lm800 in cash.

In his judgment Mr Justice Mallia declared that this was a case which had to be decided upon an appreciation of the evidence produced, and that he had not heard either of the witnesses testify viva voce.

Not only had the two principal witnesses been heard by two different judges, but the decision in the writ was to be delivered by a judge who had not heard either of their testimonies.

It resulted as a fact that the cashier in this case had a shortfall of Lm7,200 in her desk, and that Farrugia was the last client to be handled by Azzopardi on that day.

As soon as Azzopardi noted her error she had locked her desk and had tried to find Farrugia.

Azzopardi's desk had been unlocked by the bank official who was trying to reconcile the amounts.

The court added that this sum of Lm7,200 had either been taken by Farrugia or by Azzopardi, for no one else had access to Azzopardi's desk.

This was not a criminal case, said the court, and consequently, the court had not to decide upon responsibility proven beyond reasonable doubt.

Although the Court of Criminal Appeal had acquitted Farrugia of all criminal responsibility, this did not mean that the First Hall of the Civil Court could not, on a balance of probability, find Farrugia responsible for the shortfall in the cash.

Mr Justice Mallia noted evidence given by two other cashiers produced as witnesses, and concluded that their testimony corroborated that given by Azzopardi.

The court therefore concluded that Azzopardi's version was more credible, and it upheld the bank's writ.

Farrugia was ordered to refund to the bank the sum of Lm7,200 together with interest due from August 10, 1990.