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Kim Yong Chang v Nair (trading as Elliegran Dewsair) [2025] FJMC 59; Civil Action 02 of 2023 (13 June 2025)

IN THE MAGISTRATE’S COURT AT SIGATOKA
CIVIL JURISDICTION

Civil Case No. 02 of 2023

BETWEEN:
KIM YONG CHANG of Lot 29 Aurora Avenue, Makoi, 8 Miles, Nasinu.
PLAINTIFF

AND:
SEGRAN NAIR t/a ELLIEGRAN DEWSAIR of Qereqere Settlement, Sigatoka in the Republic of Fiji.
DEFENDANT

For the Plaintiff: Mr. V. Faktaufon
For the Defendant: In person

RULING

1. This is a Ruling on a civil claim for breach of agreement filed by the Plaintiff against the Defendant.

The Claim

2. The Plaintiff filed a Writ and Statement of Claim dated 10^th March 2023.
   
3. The Plaintiff states that the parties entered into an agreement on 22^nd August 2021. The nature of the agreement was that the Defendant was to supply quality rain tree slabs and other timber slabs and in return the Plaintiff to pay the Defendant 50% upfront for every order and the balance to be paid once product is being loaded into the container.
   
4. Prior to the agreement, on 11^th August 2021, the Plaintiff paid $16,500 in good faith for the supply of the said rain tree slabs but the Defendant did not and has not delivered the same to date.
5. The Plaintiff claims inter alia for judgment in the sum of $16,500.00, general damages, interests and indemnity costs.

The Defence

6. The Defendant filed his Statement of Defence and Counter Claim on 2^nd June 2023 and 6^th October 2023 stating that he did not want to enter into an agreement with the Plaintiff as his operational costs increased, in particular the increase in price for ripping, and also because the recommended sawmill was not available for ripping. He also seeks for judgment in the sum of $29,200 and damages for slander.
   
7. The Plaintiff filed its Reply to Statement of Defence and Response to Counter Claim on 12^th January 2024.
   
8. The matter proceeded to Hearing on 14^th March 2025.

The Plaintiff’s Case

9. Plaintiff Witness 1 (PW1) is Kim Yong Chang, 80 years old, Self-Employed of Makoi. He is a furniture maker and exporter since 2002. In business, he requires timber for supplies from Fiji Hardware, Vinod Patel, etc. A friend then introduced him to the Defendant whom he then contacted. They then agreed to the sum of $33,000 for 30 unit raintree slabs as he wanted to export them to Korea. The Defendant then asked for 50% deposit, which was $16,500 to be paid first which the Plaintiff did on 11^th August 2021. This 50% balance of the total sum of $33,000 was to be paid after the delivery of the raintree slabs. The Defendant did not supply the said goods and so the Plaintiff contacted him and said that if he (the Defendant) could not supply then he must refund the $16,500. The Defendant asked where should he get the timber from but the Plaintiff told him that that was his business. He later discovered that the Defendant’s business was not registered at the time they entered this agreement.
   
10. The Plaintiff tendered the following exhibits:
    1. Plaintiff Exhibit 1 (PE1) – Deposit Slip.
    2. Plaintiff Exhibit 2 (PE2) – Quotation.
    100. Plaintiff Exhibit 3 (PE3) – Notice of Cessation.
    4. Plaintiff Exhibit 4 (PE4) – Complaint Letter.
    5. Plaintiff Exhibit 5 (PE5) – Complaint Letter 2.
       
11. That was the Plaintiff’s case.
    

The Defendant’s Case

12. The Defendant Witness 1 (DW1) is Segran Nair, 51 years Logging Contractor of Sigatoka. He states that he got a call from the Plaintiff and so they discussed costing and came to an agreement. He informed the Plaintiff that there was no sawmill available and so the Plaintiff informed him that he could provide this service at $200 output rate. The rate then changed as it increased and he had to look for another sawmill and this costed him. To date, the Defendant has not supplied the timber slabs to the Plaintiff.
    
13. That was the Defendant’s case.

Analysis

14. After the hearing, both parties filed helpful written submissions to assist the Court. The Court has considered the content of all submissions and moves to analyse and determine the salient features of the matter.
    
15. In any civil proceedings the standard of proof is always one which is established on a balance of probabilities which has been aptly described in Miller v. Minister of Pensions 1947 2 All E.R. 372 where Lord Denning stated that the standard of proof regarding balance of probabilities as:
    

"That degree is well settled. It must carry a reasonable degree of probability, not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not."

16. Before delving into the claim, the Court identified a counter claim in the Defendant’s statement of defense. The basis of the counter claim is that the Defendant expanded $29,200 on operation costs and that he was a victim of slander. However, there was no evidence at all led in the course of the Hearing regarding this and so, I find that the counter claim fails.
    
17. Now the Plaintiff’s claim is that there was a contract and the Defendant breached it. When looking at elements of a contract, I adopt the age old authority as submitted by Counsel for Plaintiff in the case of Carlill v Carbolic Smoke Ball Company [1893] 2 QB 256. These elements have been well adopted in Fiji in many binding authorities, which also include the case of Goundar v iTaukei Land Trust Board [2019] FJHC 351. The elements are offer, acceptance, consideration, intention to create legal relations and capacity to contract. I find there is sufficient evidence from PW1, PE1 and PE2 to show that these elements are proven. There was an agreement between the parties for the Defendant to supply raintree slabs for the sum of $33,000.
    
18. While the Defendant pleads in his statement of defence that he was forced to agree to this arrangement, this was not evident in his evidence nor his questioning of the Plaintiff. This strongly implied that he agreed that there was an agreement between them. Apart from this, there are no other adverse reasons why this Court should not accept that this was a contract between the Plaintiff and Defendant.
    
19. There is also no contention by the Defendant to the fact that 50% of the said sum, that is, $16,500 was paid to the Defendant as deposit. This is corroborated by PE1. There was a capacity to contract on the Plaintiff’s part.
    
20. There is also no issue to the now accepted fact that the timber slabs were never supplied by the Defendant to the Plaintiff. The Defendant admits this. In turn, the Defendant did not have the capacity to contract by keeping his end of the agreement. This constituted a breach of their contract.
    
21. As for general damages, in Carslogie Steamship Co. Ltd v Royal Norwegian Government, 1952 A.C. (H.L)292 at 300, the Court stated that

“I think it is well to bear in mind the elementary principle that it is for the plaintiff in an action of damages to prove his case to the satisfaction of the Court. He has to show affirmatively that damages under any particular head have resulted from the wrongful act of the defendant, before he can recover those damages.”^[1]

22. From the Plaintiff’s evidence, it is accepted that the Plaintiff suffered loss when first, the Defendant did not supply the rain tree slabs and second, that the Plaintiff lost $16,500 in cash. However, the result of these losses such as the effect it had on the Plaintiff or his business and so on is not adequately clear.^[2]
    

Determination

23. It is determined that the Plaintiff has proved its Claim against the Defendant.
    
24. It is also determined that the Defendant has not proved its Counter Claim against the Plaintiff.
    
25. I hereby award Judgment in the sum of $16,500 in favour of the Plaintiff.
    
26. Post Judgment interest of 5%.
    
27. Costs summary assessed at $750 to be paid to the Plaintiff in 28 days.
    
28. 30 days to appeal.
    

------------------------
J. Daurewa
Resident Magistrate
13^th June, 2025

^[1] The authority was adopted in Fiji by the High Court in Mursad Begum v Energy Fiji Limited Civil Action No. HBC 121 of 2019
^[2] As required by authority submitted by Plaintiff in CR Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 2 All ER 784.