CIVIL APPEAL NO: HBA 0009 OF 2000
B-GB>BETWEEN:
  SUN ENTERPRISES LIMITED
Appellant
AND:
GUARDFORCE FIJI LIMITED/p>
Respondent
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Counsel: Mr K. Muaror for Appellant
:Mr G. Keil with N. h N. Prasad for Respondent
Hearing: 14th July 2000
Judgment: 2uly 2000
JUDGMENT
This is an appeal against the decision of the Suva Magistrates Court of 19th January 2000 dismiss claim by Sun Enterprises Limited
(the Appellant) for the sthe sum of $15,680.00 purportedly owed to it by Guardforce Fiji Limited (the Respondent).
By Statement of Claim, dated 3rd March 1997, the Appellant ed that he had not been provided proper security by the Respondents, that
a burglary had ocad occurred for which insurance cover did not adequately compensate the Appellant, and in respect of which the Appellant
claimed $3050 from the Respondent.
The Respondent filed a defence claiming that the Appellant had not taken reasonable care s own premises, and that the Appellant owed
$1776.06 in unpn unpaid security services.
In July 1997, the Respondents issued a writ of summons (No. 562/97) claiming the sum of $10,323.82 for security services ded from
January 1993 and Dand December 1995.
On 13th October 1998, the Appellant filed an amended statement of claim claiming that the Respondent was negligent in failing to provide
proper security and claiming $3050.00 with interest. Particulars of negligence were that the Respondent left the Appellant’s premises
unguarded for almost two hours on 29th November 1993 and that this allowed a burglary to take place as a result of which shark fin
stock to the value of $15,624.00 was stolen. The Appellant claimed that the parties reached an agreement whereby the Appellant agreed
to set off the Respondent’s liability in the sum of $10,323.82. They then continued to do business. A further burglary then took
place on 13th June 1996 causing loss to the Appellant to the value of $9,550.00. The Insurance Company paid the Appellant $6,500.00
and the Appellant claimed from the Respondent, the balance.
In its defence the Respondent relied on the written contract between the parties. It denied any compromise agreement and said that
the burglary occurred after the hours in which security was provided. The Defendant counter-claimed a total of $12,099.88 for the
periods January 1993 to December 1995, and June to August 1996.
Although there were initially two separate writs, the parties appear to have proceeded on the basis that there was an amalgamation
of the actions. The hearing was held on 29th November 1999.
The Plaintiff’s first witness was Kenneth Seeto, Companompany Director who said that his company tax free company engaged in the
export of sea food productoducts to Asian markets. He said he did not read the terms and conditions of the contract he signed with
the Respondent Company because they were on the reverse side of the document. He said that he thought that when his account with
the Respondent showed a credit of $10,323.00, that the Respondent had accepted responsibility for the burglary.
The Respondent called Tiko Uate Operation Manager, Guardforo said that Mr Seeto had read the conditions at the back of the contract
before he signed ined it. DW2 was Timoci Raubadra, Security Officer who said that on 12th June 1996, he had left the building safe
and secure at 7 a.m. which was the end of the contractual shift. Fenton Barrack, the third Defence witness said that the reason $10,323.00
was shown as a credit entry in the accounts of 1996, was because there was a dispute with the Appellant about this amount and “we
journalled it to non-current debtor’s account.” This was to help the debtor’s clerk when he was collecting to reconcile amounts not
to be collected. If the $10,323.00 had been a credit entry, the Appellant would have been issued a credit note. This was not done.
In her decision the learned trial Magistrate believed the Defence witnesses. She believed that Mr Seeto had readexclusion clauses
of the cohe contract before signing it. She said she believed Mr Barrack on the issue of the $10,323.00. She said she was satisfied
on hearing the evidence of Mr Raubadra that he had not been negligent in guarding the Appellant’s premises. She dismissed the Appellant’s
claim and entered judgment for the Respondent in the sum of $10,323.82 plus interest.
The grounds of appeal in this case are:
“(1) &nbbsp; oue Cerrt erred in d in law and in fact in not considethe amended Statement of Clof Claim dated 8th April 1999 by the
Plaintiff (Appellant) and the amended Statement of Defence and Counteim da4th A1999 by99 by the the DefenDefendant (Respondent).
(2) &nnsp;&&nsp;;&nspp;&nssp;&nsp; The Courtd inelaw alaw and in fact in interpretation and/or application of the provisions of the agreement between the Plaintiff and
tfendated 3y 1991 (herein called “the said agreeagreement”).
(3): 1">
(4) &nbssp; &nsp; &nbbp;&nnbbsp; The CourtCourt erre erred in law and in fact in finding that the Plaintiff was fully aware of the General Conditions artted a backhe
said agnt anewiserpreting such such genergeneral coal conditinditions tons to foro form part of the said agreement.
(5) &nnsp;&&nsp;;&&spsp;&bbsp;&bsp; Tpan>The Courtd in d in law and in fact totally disregarding the relevance and application of the doctrine toppespan>p claoNormyle="n-top:
1; margin-boin-bottom:ttom: 1"> 1">
Ground 1: &nbbsp; The ed Statement ofnt of Claim
A-GB>Although no specific mention was made of the amended statement of claithe judgment, I note that the amount claimed by counter-claim
is some $2000 more than the othe original amount claimed in the first Defence. The Respondent concedes that the learned Magistrate
erred in this regard, but pointed out that the error was to the Appellant’s advantage.
I agree. I note that the Respondent is willing to forgo 2000 difference, and that the issues in dispute are substantially the same
after the amendmmendment. There being no prejudice to the Appellant, this ground is therefore dismissed.
Ground 2: ;&nbssp; > The exclusion sion clause
Clause 3 of the General Conditions of the contract between the parties reads:
“The company shall not be liable to the customer for any damage which arises from or is caused or is contribto by any act or omission
oion of the company or any of its servants or agents. Without prejudice to the generality of the foregoing, the company shall not
be liable to the customer for any damage which the customer may sustain arising out of or incidental to the performance, the wrongful
performance, or the non-performance of the services detailed on the front hereof or for any loss or damage which occurs by reason
of the negligence of the company or its servants or agents.”
The Appellant argues that this clause was not binding because Mr Seeto did not read it before he signed it.n>
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The learned Magistrate however did not believe Mr Seeto. It is trite law that aellate court will not normally interfere with findings
of c of credibility made by a court which had the opportunity to hear the evidence of witnesses. I see no reason to depart from this
general principle.
Having accepted therefore that the parties read the agreement, including the exclusion clause, it was clear that the parties had ed
at consensus about the ethe exclusion of liability in the event of negligence. Counsel does not argue that the contract, despite
such consensus, is nevertheless invalid. Indeed he is right not to do so. In the House of Lords decision of Photo Production Ltd. -v- Securicor Ltd. (1981) 1 ALL ER 556 it was held that parties to a contract were free to agree to any exclusion or modification clauses they chose, and that the question
of fundamental breaches turned on a construction of the whole contract including exemption clauses.
Grounds 2, 3 and 4 are therefore dismissed.
Ground 5: &nbbsp; Estoppel
The Appellant lant submisubmits thts that haat having ving credited the Appellants with the dispamount of $10,323.00, the Respondents
were estopped from claiming this amount.
The Appellant may have had compelling arguments in this regard, if it were not for the fact that the Respondents denied cred the Appellant
with this amis amount, and that the Respondent’s claim that this was merely a journal entry showing a disputed amount, which assisted
in streamlining debt collection.
In accepting the Respondent’s version of the entry, which the learned Magistrate was entitled to do, there remained no factual basis
for the doctrine of promissory estoppel to be argued. That doctrine is that one party, having by conduct or words made representations
to another party which the other party relies on to his/her detriment, may not later resile upon the promise.
In this case, where the promise was held to be non-existent, there was no factual basis for the doctrine to be a.
This ground also fails.
For the reasons given, this appeal is dismissed. The Appellant must pay the Respondent’s costs which I set at $250.
Nazhat Shameem
: 1"> JUDGE
At Suva
21st July 2span>
Hba0009j.00s
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