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Please eaves-drop on this dialog with my attorney, and criticise my
views expressed here:-
I'm very disappoined that you still don't understand
why the summons should be LOCKED to the demand letter.
* vague and embarrasing - defendant must know exactly what the
charge is.
* the law provided facilities to ammend [eg. the summons], which
must be made know to the other party. If it was not ammended
formally, it was not ammended 'conceptually'.
Consider the following situations of a zero interest fixed debt:
The true ammount owing is $10.
In April the demand letter is for $12 [take a chance].
In May the demand letter is for $11 [ammended].
In June the summons is for $10. This will and should succeed.
Modify the above scenario to one where a $1 per month interest
correctly becomes due on the debt.
In April the demand letter is for $12 [take a chance].
In May the demand letter is for $12 [consistency as expected.]
In June the summons is for $12. This should fail/be-voided, since by the
principles of legitimate expectation and estoppel, the debtor MUST
assume that the 'correspondence' for the 3 months was referring to
the same matter.
If the creditor informed the debtor in May "my demand during
March was wrong, but now, with the 2 months interest you do
owe $12" - i.e this is a NEW/different claim, then the debtor
would know that the creditor had acknowledged his mistake,
and would accordingly pay.
If on the other hand, the accounts continued to reflect the fault eg:
April account total owing = $12
May account total owing = $13
June account total owing = $14
you can't say the claim which was invalid in April BECAME valid by
June !! And the sleight of hand which De Heus used, saying that
the 'claim includes the amount owed in June' is based on the fact
that the creditor may allocate either to the oldest or the newest
debts, as he wishes.
There is a fundamental difference between actively and transparently
correcting an error [eg. by ammendment] and waiting/hoping that
an allegation BECOMES valid at some later time.
And this concept is acknowledged by the magistarte in 1984 who
interestingly in SEEDAT v ARAI 201 D, observed:
"In my view a mistake, to qualify as such for the purposes of s 36(b),
must relate to and be based on something relevant to the question to
be decided by the court at the time, or to someting in the procedure
adopted. It can never be founded on material which was irrelevant
at the time of the grant of the judgment sought to be set aside. "
I.e. one cannot justify a decision on knowledge which may become
available AFTER the decision. By contrast, the legal-boys of today:
justify a default judgment based on knowledge which was discovered
4 months after the judgment.
== Chris Glur.
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