PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2012 >> [2012] FJHC 1169

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Fiji Gas Ltd v Satendra Prasad Investment Ltd [2012] FJHC 1169; HBC2.2007 (20 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION


Civil Action No HBC 2 of 2007L


BETWEEN:


FIJI GAS LIMITED
a limited liability company situated at 4 Amra Street, Walu Bay, Suva.
Plaintiff


AND:


SATENDRA PRASAD INVESTMENT LIMITED,
limited liability company having its registered office at 21 Tui Street, Lautoka.
Defendant


AND:


DENARAU INVESTMENT LIMITED
a limited liability company having its registered office at c/- Munro Leys, Solicitor, Level 3, Pacific House, Butt Street, Suva.
Third Party


Appearances:
Marie Chan for the Plaintiff
Mr. S. Maharaj for the 1st Defendant


JUDGMENT


  1. The Plaintiff in its Amended Statement of Claim demanded payment and set out the following particulars of goods and services supplied allegedly to the Defendant by invoice;

Particulars of Demand


Demand Notice dated 3 October 2006


Particulars of Invoices referred to in the Demand


Date
Invoice No's
Amount
Due ($)

19/02/2005
555523
2,087.49
11/04/2005
555534
103.02
11/04/2005
555535
68.00
31/10/2005
578977
596.25
02/12/2005
578998
6,750.00
11/12/2005
577714
34,056.19
30/03/2006
593762
186.92

  1. Based on the said particulars the Plaintiff claimed for the following in the Statement of Claim;

And the Plaintiff Claims:


(i) Judgment from the Defendants in the sum of $44,100.37 (Forty Four Thousand and One Hundred dollars and Thirty Seven cents);


(ii) Bailiff's costs of $35.00;


(iii) Interest at 5% from the date of this action until Judgment;


(iv) Costs of this action on an indemnity basis;


(v) Any further order this Honourable Court deems fit.
  1. The Defendant in its Defence took up the position that the goods and services were supplied to a 3RD Party and served notice on that 3RD Party, and the 3RD Party DENARAU INVESTMENT LIMITED was added.
  2. The Defendant referred to the existence of various other claims against the 3rd Party and claimed only the following from the 3rd Party in its Claim against the 3rd Party;

"Wherefore the Defendant claim against the Third Party;


1. Judgment in the sum of $44,100.37 plus bailiff cost in the sum of $35.00.


2. General damages for breach of the 3 way agreement/arrangement between the Plaintiff, the Defendant and the Third Party.


3. Interest at the rate of 5% from date of this action until the Judgment sum fully paid.


4. Costs of defending the Plaintiff's claim and costs incurred in the Third Party proceedings against the Third Party on Solicitor client indemnity basis.


5. Any further or other order deemed just and necessarily."


  1. The 3rd Party in their Defence against the Claim of the Defendant set out the following among other averments;

THIRD PARTY'S DEFENCE


1.......

(a)....

(b)....

(c)....

(d) ....,


(e) says that during the construction work for stage 1, it became clear that a number of the Defendant's suppliers were not comfortable supplying the Defendant and sought assurances from the Third Party as to payment.


(f) says that consequently, the third Party agreed to pay certain suppliers direct. These suppliers were Metromix Concrete Company Limited, CDK Stone Australian, Carpenters Fiji Limited (trading as Carpenters Hardware), Basic Industries Fiji Limited (trading as Standard Concrete Industries), Basic Industries Limited (trading as Humes), Re Spence & Co (AUSD) and Modern- Aluminium.


(g) says that such agreement were recorded in writing (agreement for payment of suppliers) and provided inter alia that the Third Party would pay the suppliers:


(i) Upon receiving a certificate from Rawlinson Limited or the Third Party's Project Manager, Dino Matsis that the goods had been supplied and incorporated into and formed part of the construction; and

(ii) Subject to certain other conditions as set out in the agreements.

(h) says that all payments to the suppliers were deducted from the contract price as agreed. The agreements did not constitute and guarantee the obligations of the Defendant to its supplier by the Third Party. All suppliers with whom the Third Party reached such an agreement have been paid.
  1. Though a typed document titled "MINUTES OF PRE-TRIAL CONFERENCE" exists on the file, as it is not signed by the parties and does not bear a date or month but only the year 2009, and does not bear the seal of the Court and as such does not appear to have been filed as well this Court as such shall ignore the document so titled and proceed on the pleadings.
  2. On the 3rd Party failing to comply with an unless order the 3rd Party Statement of Defence was struck out and dismissed on the 9th November 2010. Thereafter Plaintiff and Defendant was directed to fie their evidence in chief in affidavit form and the matter was fixed for trial for the 26th and 27th of April 2011.
  3. At the trial the Plaintiff led the evidence of PW1 (Roger H Probert) marking his affidavit as evidence in chief as P17, and the evidence of PW2 (Rattan Chand) and closed the Plaintiffs case marking P1 –P18. The Defendant led the evidence of Satendra Prasad (DW1) marking his affidavit of evidence in chief as D11, and closed the defence marking D1-D11.
  4. At the beginning of the trial the Defendants Counsel moved that judgment be entered against the 3rd Party to indemnify as the 3rd Party Defence has been struck out and apparently the 3rd Party has not taken any appeal against that order nor moved to re-instate its Defence for over 5 months. The Plaintiffs Counsel objected on the basis that it is not a question of indemnity and that the Defendant itself is liable to pay the Plaintiff. As such that application was differed to be decided by the Court at the end of the trial.
  5. Though much evidence was led and submissions made this action revolves on the invoice by which a substantial part of the Plaintiffs Claim is constituted. The said invoice bears no.577714 and is for a sum of $34,056/19. The total amount on the invoices is $43,847/87 and not $44,100/37 as set out in the Statement of Claim.
  6. The 3rd Party had sub-contracted to the Defendant construction works for the Hilton Villas Project on Denarau Island Nadi said to be on a contract dated 23 September 2004. The 3rd Party states in its 3rd Party Defence from paragraph 1(a) – (d) the variations to that contract.
  7. Paragraph 1.(e) and (f) of the 3rd Party Defence as set out above clearly admits the fact that the 3rd Party has given assurances and agreed to pay 7 suppliers to the Defendant set out in paragraph 1(f). Further at paragraph 1(h) the 3rd Party states that all such payments to suppliers were deducted from the contract, that is, out of monies due to the Defendant under the sub-contract between the 3rd Party and the Defendant.
  8. Further at paragraph 1(h) the 3rd Party states that all such suppliers the 3rd Party had reached such an agreement with had been paid. Though the 3rd Party states that it had a written agreement with such suppliers, the 3rd Party had not contested to prove that as a fact or submitted any such written agreements with the suppliers identified in paragraph 1(f). However there are two payments that the 3rd Party has made to the Plaintiff and proof of such payments were tendered with the Agreed Bundle of Documents at page 48 and 52. At page 9 of the proceedings (typed) PW1 admitted under cross examination that the Plaintiff had received payments from the 3rd Party on at least 3 occasions. At page 10, PW1 admitted that after the Defendant was locked out of the site by the 3rd Party the Plaintiff had dealt with the 3rd Party. At page 15, PW1 admitted that there was a relationship in dealings between Plaintiff and the 3rd Party. Therefore on a balance of probabilities and even on the 3rd Party Defence being struck out, this Court is compelled to hold that the Plaintiff is one such party with whom the 3rd Party had an agreement as set out in paragraph 1(f) of the 3rd Party Defence, and the 3rd Party had, as between the Defendant and the 3rd Party at least, taken upon the obligation to pay the Plaintiff for the goods and services supplied to the said project on being ordered by the Defendant and that Plaintiff was one such supplier though not so stated in paragraph 1(f) of the 3rd Party Defence.
  9. Though the Defendant is seeking indemnity, there is no written agreement referred to or led in evidence to that effect as required by section 56 of the Indemnity, Guarantee and Bailment; Act [Cap 232], which states as follows;

59. No action shall be brought-

(a) whereby to charge any execut administrator upon any special promise to answer damages oges out of his own estate; or

(b) whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; or

(c) to charge any person upon any agreement made upon consideration of marriage; or

(d) upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them; or

(e) upon any agreement that is not to be performed within the space of one year from the making thereof,
unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged there or some other person thereunto by him lawfully authorised.


  1. The Defendant when placing an order with a supplier has noted in its order form that the order number should be referred to and noted in the invoice. The provision is available in a separate box in the invoice to set out the order number establishing that such is the practice of the trade as well. The two invoices no. 577714 and no. 578998 do not carry an order number thereby indicating clearly that no such order has been placed by the Defendant. Nevertheless at paragraph 7 of the Defendants Statement of Claim against the 3rd Party the Defendant states; " ...3rd Party held Defendants Purchase order books with serial no: 2601- 2700", and that " as agreed between parties the 3rd Party also issued purchase orders from the said book to the Plaintiff to supply materials at the project". Therefore the Defendants submissions that invoice no. 577714 and no. 578998 had not been pursuant to orders issued by the Defendant and the Defendant is therefore not liable, fails, as the Defendant has agreed that the 3rd Party too may issue orders under its name as per paragraph 7 of its Statement of Claim against the 3rd Party. The 3rd Party does not deny the receipt of the goods and services and has no doubt benefited by them. At paragraph 8 of the Defendants Statement of Claim against the 3rd Party the Defendant states; " ...and all materials supplied at the site were used and or fitted in the said project".
  2. Invoice no. 577714 is for a sum of $34,056/19 and invoice no.578998 is for a sum of $6,750/-. At page 13 PW1 admitted that unlike in other invoices no one from Defendant has signed as having received the goods. They are respectively the highest and the 2nd highest of the invoices in dispute. It is unusual for invoices of much lesser sums to have been signed as received and the invoices for much higher sums not have been signed as received. PW2 as well could not throw much light on the matter except to say he did not do the documentation. Nevertheless the Defendant admits in its pleadings as above that all material supplied had been used and or fitted. Therefore it is apparent that all goods as per the invoices had been delivered.
  3. It is not the case as if the goods supplied by the two invoices are still lying at the site. It appears from the evidence that the said supplies had been used as per the evidence of PW2, and the 3rd Party has had the benefit of it. However as the Defendant was the subcontractor for construction work such incorporation of the supplies could not have taken place without the knowledge of the Defendant even on PW2 admitting that some supplies were installed by the Plaintiff. The said two invoices are dated 14 December 2005 and 2nd December 2005. The Defendant was shut out of the site by the 3rd Party on the 11th April 2006. Therefore the goods had been supplied during the time the Defendant was in the site.
  4. The Defendant admits that the other invoices are from orders made by the Defendant. It is apparent that all invoices had been supplied as PW2 recollected even installing some of the items in the two invoices disputed by the Defendant. Nevertheless the 3rd Party appears to have benefited by all the supplies. The Defendant too cannot complain as it had also gone along with the arrangement of the 3rd Party. The liability of both the Defendant and the 3rd Party appears to be joint and several to the Plaintiff. This is a claim that the 3rd Party or the Defendant ought to have paid without disputing between themselves as who is to pay thereby causing unnecessary delay in payment to the Plaintiff, and as such this Court is inclined to grant interest at 5% per annum as sought by the Plaintiff as per section 3 of the Law Reforms (Miscellaneous Provisions)(Death and Interest) Act (Cap 27) from date of institution of the action (8/1/2007) till judgment (being 5 years 5 months and 12 days) on the total invoiced sum of $43,847/87, making a sum of $11,946/18 as interest making the total sum of the judgment $55,794/05.
  5. Therefore judgment is entered in favour of the Plaintiff against the Defendant and the 3rd Party jointly and severally in the total sum of $55,794/05.
  6. Bailiff charges are not proved and as such not allowed.
  7. Plaintiff entitled to costs on the standard basis to be assessed by the Master against the Defendant and the 3rd Party jointly and severally.

Hon. Justice Yohan Fernando.
JUDGE.


High Court of Fiji
At Lautoka
20th June 2012

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2012/1169.html