Pacific Trade & Services Ltd v Castaway Beach Villas Ltd [2006] CKHC 21; Plaint 35.2004 (17 October 2006)

IN THE HIGH COURT OF THE COOK ISLANDS

HELD AT RAROTONGA
(CIVIL DIVISION)

PLAINT NO. 35/2004
MISC. NO. 65/2004

BETWEEN:

PACIFIC TRADE & SERVICES
LIMITED T/AS PTS
PTS PLUMBING a duly incorpo-
rated company having its
registered office at Rarotonga
Plaintiff

AND:

CASTAWAY BEACH VILLAS
LIMITED a duly incorporated
company having its registered
office at Rarotonga
Defendant

AND:

TAMARIKI DESIGNS
LIMITED a duly incorporated
company having its registered
office at Rarotonga
Third Party

Mr Little for Plaintiff
Mr Robertson in person for Defendant
No appearance for Third Party
Date of hearing: 17 October 2006
Date of decision: 17 October 2006

JUDGMENT OF WESTON J

1. The Plaintiff claims the sum of $40,550 pursuant to an amendment to the Statement of Claim that I allowed this morning. Interest and costs are claimed in addition. The Plaintiff alleges that it supplied goods and services to the Defendant for which it has already been paid $30,000 with the amount of the claim representing the balance due.
   
2. This proceeding was heard immediately following that brought by Rarotonga Glass in Plaint No. 19/2004. Much of the evidence between the two proceedings was common and I directed that the evidence given in 19/04 be admitted in this proceeding. The parties proceeded accordingly and I am grateful to their assistance in facilitating the prompt disposal of this hearing.
   
3. This Judgment is given immediately following Judgment given in 19/2004. I do not repeat such conclusions as I have reached in that Judgment as are common to the two proceedings.
   
4. In my first Judgment I mentioned the considerable goodwill that I observed between Mr Allen on the one hand and Mr Robertson on the other. That degree of goodwill was also evident in the current proceeding. If anything, the relationship was stronger. It was common ground that the Plaintiff had subsequently provided plumbing supplies and services to the Defendant company for which it had been paid. The parties had treated the issues that are the subject of this dispute as being discreet and in the meantime had, in a very mature way, been able to conduct their business relationship in a continuing way. I commend them on that.
   

The Facts

5. The Castaway directors approached the Plaintiff company in relation to the renovations that were to occur in late 2002 but more realistically into 2003. Mr Ibbetson the director of the Plaintiff supplied various brochures to Mr and Mrs Robertson.
   
6. The Robertsons read these brochures and selected various items they wished to have installed in their premises. There was a meeting in which this was discussed, various ticks and other notes were made onto the relevant brochures.
   
7. On the basis of this material Mr Ibbetson prepared a quotation dated the 13th of January 2003. This quotation was for $74,200. It was addressed to Castaway Beach Villas.
   
8. There was a subsequent meeting on site attended by four people: Mr and Mrs Robertson, Mr Ibbetson and Mr Tamariki. There were slightly different accounts as to what occurred at this meeting. Mr Robertson said he accepted the amount of the quotation but did not otherwise accept the quotation. As part of his answer he said there were no terms and conditions attached and that for him was a relevant factor. By contrast Messrs Ibbetson and Tamariki said that Mr Robertson approved the quotation and instructed the Plaintiff PTS to proceed and order the relevant materials.
   
9. I prefer the evidence of Messrs Ibbetson and Tamariki. I believe it is entirely consistent with Mr Ibbetson's subsequent conduct that he believed his quotation had been accepted. He immediately did order materials from Australia.
   
10. Because a substantial amount was involved, Mr Ibbetson said he wished to have a payment made on account. He prepared a invoice which we have not seen. He says it was addressed to Castaway Beach Villas some time between 13 and 16 January 2003.
    
11. Mr Robertson denies that such an invoice was ever given. He says the only invoice was that subsequently given on 16 January 2003 addressed to "Tamariki Design". The box number on this invoice was not completed.
    
12. Mr Ibbetson said that he prepared this invoice in replacement of the one he had sent a day or two earlier that was addressed to Castaway. He said he did so because he was instructed by Mr Robertson to do so. Mr Robertson has denied that that occurred and said he never saw an earlier invoice. He says the only invoice he received or saw was that dated 16 January. I observe that 16 January was the date that Mr Robertson left to travel overseas.
    
13. I accept Mr Ibbetson's evidence that he prepared an earlier invoice. He gave his evidence in an entirely frank and open manner. He impressed me as an entirely honest witness. At no stage did he attempt to advocate his position, even in relation to documents that appeared to be adverse to his position. Overall he gave his evidence in an entirely straightforward way. I have no reason to doubt his evidence that he had sent out an earlier invoice. His evidence is plausible and consistent with the documents that I have seen.
    
14. On the 22nd of January Mr Ibbetson sent Mr Tamariki some details in relation to the invoice already supplied. Mr Ibbetson said he did so because Mr Tamariki was by now acting as agent for the Defendant. I accept that evidence in terms of my overall understanding of the facts of this case. That makes sense to me.
    
15. By a bank cheque dated 13th February 2003 the Plaintiff company PTS was paid $25,000. It is common ground that this cheque, while issued by Westpac, was drawn on the Defendant's account.
    
16. In the previous judgment I have already dealt with the payment of these deposits on 13th February. The cheque of $25,000 was one of three payments made on that day by way of bank cheque in respect of which I have found that the Defendant gave specific authorization to the Westpac Bank.
    
17. On 25th May 2003, the Plaintiff issued an invoice made out to:
    

"Tamariki Designs – Castaway

PO Box 2189

Arorangi

Rarotonga."

18. It will be noted that this was the first time that the invoice had been addressed in this way. The previous reference to Tamariki Designs on the invoice dated 16 January was simply to Tamariki Designs at an unstated box number.
    
19. Mr Ibbetson's evidence was that he was dealing with Tamariki Designs as agent for the Defendant. I have already accepted that evidence and I accept that was why this invoice was issued in this way.
    
20. As it happens, Tamariki Designs Limited (by Fiona Hogg) issued a cheque in the sum of $5,000 which was dated 30 May 2003. Mr Tamariki in evidence said this was a mistake. Mr Robertson was quite understandably critical of that and said it was clear evidence that Tamariki Designs Limited accepted it had financial responsibility to the Plaintiff company.
    
21. While I have some reservations about exactly what occurred at this time, I find on balance that that payment was made by way of a mistake. I do not draw any adverse inference against the Plaintiff for accepting a cheque drawn on the account of Tamariki Designs Limited.
    
22. Variations were agreed directly between the Plaintiff and the Defendant over the May/June period 2003. I find that was consistent with there being a contract directly between those parties.
    
23. A total of $10,000 was paid by the Defendant to the Plaintiff in late July 2003 on account of their variations. There was some discussion at this time between Mr Ibbetson of the Plaintiff and Mr Robertson of the Defendant. Mr Robertson wanted credit for the solar water systems to be shown against the variations. Mr Ibbetson resisted this saying he wanted to keep both the original contract and the variations separate in order to keep control of the process.
    
24. During the course of this discussion, Mr Ibbetson said words to the effect that he would not allow an offset in the variations by reference to the solar water systems because he was concerned he may not get paid by Tamariki Designs Limited in relation to what was called the main contract.
    
25. This statement has caused me some concern because it suggests that Mr Ibbetson regarded the Plaintiff as being in a contract with Tamariki Designs Limited contrary to what my Judgment in the first matter and this Judgment thus far would suggest. I have given that very careful thought. On balance, I do not believe it amounts to an admission. I accept that it is potentially inconsistent with what is being said up to this point of my Judgment, but equally it would be inconsistent with all of Mr Ibbetson's actions also to this point. Mr Ibbetson explained that his real concern was to keep the two accounts separate so he could keep track of them.
    
26. I also note, and I think this is important, that at the July period there were no overdue invoices owed to the Plaintiff in relation to the main contract. There was an invoice that had been issued on 17th July 2003 for $25,000 but it was not at that point overdue. Mr Robertson said that discussions at this time did not refer to this but I do not, on balance, believe that to be material because that amount was not then overdue.
    

The Submissions

27. The submissions by the parties were succinct and helpful. During the course of these I put it to Mr Robertson that I could not understand how he was arguing that the Plaintiff became a sub-contractor to a contract not entered into for several months after the discussions in January about the quotation and Mr Ibbetson then ordering materials. I have to record that I did not receive a satisfactory response to that question. I also put it to Mr Robertson that he plainly knew that the various contractors would be ordering materials immediately and that he intended them to have done so. To be fair to Mr Robertson, he accepted this. He was not inclined to see that as being inconsistent with his argument that following the entry into the contract in March 2003 the Plaintiff thereby became a sub-contractor.
    

Decision

28. For the reasons set out above and in my earlier Judgment, I find that the Plaintiff did have a contract with the Defendant and that there is a shortfall owing of $40,550. There will accordingly be judgment for the Plaintiff against the Defendant in that sum together with interest and costs. Memoranda are to be supplied consistently with the timetable that I set out in my first Judgment.
    

Judge

Editorial Note: Derived from the Court's electronic records and believed to be correct and final.