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High Court of Fiji |
IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION
ACTION NO. 271 OF 1992
BETWEEN:
STANDARD CONCRETE INDUSTRIES LIMITED
a limited liability company having
its registered office at Suva, Fiji
Plaintiff
AND
J.P. BAJPAI AND COMPANY LIMITED
of Nabua, Suva
First Defendant
AND
ISHWARI PRASAD BAJPAI Director of
J.P. BAJPAI AND COMPANY LIMITED
of Nabua, Suva
Second Defendant
N.S. Arjun for the Plaintiff
A. Seru and Q. Bale for the Defendants
Dates of Hearing: 27th - 29th June, 3rd July 1995
Date of Judgment: 10th July 1995
JUDGMENT
In this action the Plaintiff claims from the Defendants the sum of $15,156.03 plus interest from 1st January 1992 to 30th June 1995 $5,304.00 a total of $20,460.60 allegedly owing by the 1st Defendant to the Plaintiff for concrete sold and delivered to the First Defendant by the Plaintiff from time to time between the months of October and December 1991.
The Second Defendant who died in December 1994, is sued as guarantor of the debt claimed by the Plaintiff by a Letter of Guarantee dated 12th July 1990 which was given to the Plaintiff.
By Clause 8 of the guarantee the personal representatives of the two Defendants are liable to the Plaintiff should this Court find for the Plaintiff.
The Defendants in their Defence admit that the Second Defendant was guarantor of the First Defendant's indebtedness but deny that there is any such indebtedness by the First Defendant to the Plaintiff. Rather they counter-claim that as a result of the failure of the concrete supplied by the Plaintiff at the Defendants' building project in Nabua, the project was delayed for one month in its completion covering the period from the 18th of October to the 18th of November 1991 and, as claimed in evidence before this court, a further three weeks because the civil engineer engaged by the Defendants was not satisfied that it was safe to resume work on the project despite being advised to the contrary by the Plaintiff.
The Defendants claim that as a result of the delay caused by the failure of the concrete supplied by the Plaintiff in breach of its duty of care as supplier of the concrete to the Defendants, the Defendants suffered various special damages amounting all together to $34,957.70. They say this amount should be set off against the sum owing to the Plaintiff and should result in a judgment for the Defendants of $14,497.10 together with interest at the rate of 13.5% under the Law Reform (Miscellaneous Provisions) (Debt and Interest) Act Cap. 27 calculated from the 22nd of May 1992 to the date of full settlement of the claim. The 22nd of May was the date on which the Plaintiff issued its Writ herein.
Before stating the relevant evidence most of which was fairly short it is useful to set out the Minutes of a Pre-Trial Conference held between the parties' solicitors on the 13th of May 1993 when it was decided:
(1) It is not in issue that the Plaintiff sold concrete to the First Defendant in the sum of $15,156,03.
(2) It is not in issue that the Second Defendant is the guarantor of the debt.
It is then stated that the following are in issue:
(1) Was there a concrete failure at the Defendants' building project at Nabua?
(2) If there was a concrete failure whether it caused a one month's delay from 18th October 1991 to 18th November 1991 to the Defendants' building project?
(3) Was there a breach of duty of care by the Plaintiff to the First and Second Defendants?
(4) Whether the Defendants have suffered any damage as a result of any such breach?
Just as the issues are not disputed, so too the relevant facts are not in question except as to the terms and conditions of sale which the Plaintiff says it supplied to the Second Defendant the late Mr. Bajpai on the 11th of July 1990 through the Plaintiff's Credit Controller Gautam Sharma. I shall have more to say about the terms and conditions in the latter part of this judgment.
The facts not in dispute are that on the 17th of October 1991 the Plaintiff supplied to the Defendants 70 cubic metres of 20 MPa concrete between the hours of 10.00 a.m. and 7.00 p.m. at the site of a three storey building including basement car park opposite the Defendants' supermarket in Nabua. The ground floor of this building has been occupied since the construction was completed by Westpac Banking Corporation.
The Plaintiff had previously supplied concrete for the ground floor and basement without any problems. However at about 9.00 a.m. on the 18th of October 1991 it was observed by the building foreman of the Defendants who do their own construction work that the concrete had not set. The Defendants called a Mr. Abhimanyu Krishna who was then the concrete Plant Manager for the Plaintiff and who is now the Branch Manager of Boral Acrow to inspect the concrete.
Mr. Krishna stated that he had been concerned in a similar occurrence some years previously when he had supplied concrete to the Public Works Department for its Maritime School Project.
In that case the concrete had eventually set and the engineers were satisfied. I shall now briefly summarise the evidence. In accordance with my ruling of the 28th of November 1994 the Defendants called evidence first.
Shrinivas Singh gave evidence that he was a Consulting Building, Civil and Structural Engineer of the firm of Shri Singh & Associates who were the Consulting Engineers engaged by the Defendants. He said he had been a Consulting Civil and Construction Engineer since 1973. He inspected the concrete at the building site on the 18th of October 1991 and as a result wrote a letter to the Plaintiffs which, omitting formal parts I now quote in full:
"The Manager Scil
Suva
Fiji
ATTENTION MR KRISHNA
RE READY MIX CONCRETE SUPPLY AT BAJPAI'S NABUA
Dear Sir
We confirm that SCIL supplied approximately 70 cubic metres of 20 mpa concrete on the 17th of October between the hours of 10 am and 7 pm at the above site.
It was noted and also observed by Krishna of SCIL that the concrete had failed to set by 9 am the 18th of October 1991.
Mr. Krishna stated that a similar occurrence took place a few years ago at the School of Maritime Resources however in this case the concrete had eventually set and the engineers were satisfied.
On behalf of our clients we confirm that to ensure that the concrete is satisfactory is now SCL's responsibility. All tests etc. as required by us or as is necessary must be carried by SCIL at their expense urgently to satisfy us, the client and SCC.
Should the above tests fail to convince any or all of the above parties SSCL will fully compensate Bajpai's for the total damage. We at this point of time estimate this to be a minimum of $F200,000.00 (FIJI two hundred thousand dollars).
The above figure was derived by taking the following under consideration:
Considering the above no doubt you will act promptly to resolve the above crisis.
We now await your immediate response.
Yours faithfully
(Sgd)
SHRINIVAS SINGH"
On the 21st of October 1991 the Plaintiff replied to this letter by facsimile stating that they were closely monitoring the situation and were attempting to find the cause of the problem.
On the 29th of October, after the Plaintiff had carried out what are termed "7 day tests on the concrete", Mr. Singh wrote again to the Plaintiff. Once more his letter is worth quoting in full except for formal parts. It reads:
"Today we have been supplied with 7 day test results which are not entirely satisfactory.
At this point of time we are still awaiting directions from SCIL whether to continue with the work.
Please note our client would require SCIL to carry out core tests etc under our supervision to ascertain the actual strength of the concrete in question.
We note as stated earlier that all costs due to delay etc is to be borne by SCIL.
We request your urgent action to minimise delays.
Yours faithfully
SHRI SINGH & ASSOCIATES"
On the same day the Plaintiff sent another facsimile to the Defendants this time from its General Manager Francis Leslie advising the Defendants to continue with work on their project. The Plaintiff stated that it was confident that concrete cylinder tests which it was carrying out on concrete would show that the concrete supplied by the Plaintiff on the 17th of October 1991 was as specified and that there would be no need for further testing.
This did not satisfy Mr. Singh who on the 30th of October wrote another letter to the Plaintiff which so far as relevant reads as follows:
"We confirm official receipt of your fax instructing our clients to proceed with the work.
As mentioned earlier we will require core tests to be carried out after 28 days under our supervision to confirm the results. We note cylinder tests will not be sufficient.
We will advise you of the no. of cores and locations where they are to be taken from. The cores will require to be tested at an independent laboratory.
Please ensure that facilities for taking core samples are available as and when required.
We would also like to record numerous cracks prevalent on the said slab which has been observed by all parties concerned."
The Plaintiff replied to this letter by letter dated the 7th of November 1991 and stated:
"1. As advised to you via our fax dated 29th October 1991 we are confident that cylinder tests will show that the concrete supplied to the above project is as specified and the need for core testing will not be required.
During all this period and on Mr. Singh's advice all work on the project above and immediately below the first floor was stopped and the project was delayed for two months. Mr. Singh said that this was the first time that concrete supplied by the Plaintiff to this project had not set within the normal 4 - 8 hours and Mr. Singh himself never had any previous similar experience. He said that he advised cessation of work because of the uncertainty he felt as to whether the concrete would set or achieve its required strength of 20 MPa.
As a result the formwork supporting the first floor was kept in place longer than normal. He agreed in cross-examination that after the second series of tests known as the "28th day test" had been performed the concrete had in fact achieved its required strength and that there had been nothing wrong with the first or the 7th day tests carried out by the Plaintiff.
Despite this and that the Plaintiff advised him the project could proceed Mr. Singh still advised the Defendants not to resume work. He said this was because the Plaintiff was not controlling the project and he thought it better for his clients to wait until they had received the 28th day test results which would be conclusive of the strength of the concrete.
He also said that he regarded the 7th day test only as a statistic and that concrete may not achieve the necessary strength even though the result of the 7th day test was satisfactory.
In this his opinion was rejected by the Plaintiff. Two of its witnesses, the Chief Executive Officer, Mr. Cridland and Mr. Krishna gave evidence that the 7th day test was usually an indicator of the final strength of the concrete that in this case the 7th day test showed 10 MPa or half the required strength. The Plaintiff's witnesses said that this was an indication that the final strength would be as ordered and this in fact occurred.
Mr. Singh admitted that after he had received the result of the 28th day test his fears were proved wrong but he said he did not rely on the advice given by the Plaintiff because it was his duty to ensure that his clients did not incur losses. He said the Plaintiff had in its letters stated it would not accept any responsibility except to replace concrete. Therefore Mr. Singh regarded himself as being under a higher duty to ensure that his clients did not suffer any loss.
He said that although he was advised that the work could proceed after the 7th day test he did not accept this because he did not believe it. He said that even after 28 days concrete had been known to fail even though the 7th day test was satisfactory. In this case as the concrete had not been normal he considered it right not to rely on the result of the 7th day test.
In short Mr. Singh said that he rejected the advice given him by the Plaintiff because he was trying to protect his clients as soon as the Plaintiff had made it clear that it was liable only to replace the concrete if liable at all.
The next witness called by the Defendant was Prema Bajpai a Director of the First Defendant who detailed the amounts claimed by the Defendant in their counter-claim. He said that his company had employed about 65 men on the project including casuals of whom there would have been between 15 - 20 at any given time. About 40 of the 65 were skilled and included plasterers, block layers, carpenters and steelworkers.
He said that for three and a half weeks after the Defendants had received the result of the 28th day test all 65 employees did not work. They remained at the site playing draughts and cards and had been kept on by the company because it did not accept the problem which had arisen. This accounted for the $10,520.13 claimed for labour in the Defendants' special damages. This had been done on the advice of Mr. Singh.
Mr. Bajpai said that he believed that he would be able to get the wages record of the Defendants relating to these charges but I observe that the Defendants never produced any. He said that he had never seen the terms and conditions of the Plaintiff governing the supply of the concrete. The only time he had seen them was when it came to pay bills.
In this I find Mr. Bajpai was mistaken because having heard the evidence of the Credit Controller of the Plaintiff I am satisfied that these terms and conditions were supplied to the Defendants at the time the late Mr. Bajpai signed Exhibit P.2, a Credit Account Application to the Plaintiff.
In the end Mr. Bajpai was forced to concede that a similar slow setting of concrete had occurred previously at the Maritime School Project. He said the reason why the Defendants had not paid the Plaintiff was because of their fear that the work would not last.
Finally when asked two questions about the conditions of sale the witness said that he noticed them for the first time well after the problem arose. Usually he saw conditions before a contract was signed. In this case they were pointed out to him at one of the site meetings held with Mr. Krishna, Mr. Singh and the foreman Rajendra Prasad. It was on this occasion namely the 7th of November 1991 that he first knew of the conditions.
The last witness called for the Defendants was Rajendra Prasad the Defendants' general foreman. He said he was aged 42 and had been working for the Defendants since 1987. Before that he had worked for Toorak Builders as a foreman. He had been engaged on several building projects for the Defendants - their supermarket at Nabua, arcade, shopping mall and service station at Naulu and projects in Nadi and Lautoka. The Plaintiff had provided the concrete for these projects. He had mixed it for the service station, the supermarket and the shopping mall.
He described how he found the concrete wet on the morning of 18th October and said that on the 19th of October Mr. Krishna had told him to pour water on the concrete so that it might dry. He noticed it setting slightly although after 14 days most of it was still damp. He mentioned cracks in the concrete and said first that these could not result from poor work. Later however in cross-examination he agreed that if formwork is not done properly cracks will occur. He said he had never seen concrete take so long to set in all his experience. He then said first that after concrete is poured one cannot start work on the area until after 7 days regardless of the mix. He then said that if one wanted to start work earlier than 28 days after the concrete had been poured one would have to get a different mix from 20 MPa.
In cross-examination he said that nobody can predict what is in a mix when it is delivered to a site - you only know this when it is poured out.
The Plaintiff then went into evidence and its first witness was Patrick William Cridland the Chief Executive of the Plaintiff. Mr. Cridland said he had worked in the concrete industry for 34 years and was a civil engineer by profession and a member of the Australian Institute. He said he had been working for the last 3 years for the Plaintiff although this was not his first working period in Fiji. He had been General Manager of the Plaintiff from 1973 to 1978 and had been employed by Pioneer Concrete who in 1973 had acquired a major shareholding in the Plaintiff. At this time Mr. Cridland had been sent here as General Manager. He first described how a credit account is opened with the Plaintiff. He said that when a person requested an account he was given a credit application form and asked whether he wanted any limit for example $5,000 or $10,000 or some other amount and was told that the Plaintiff's products are sold on the basis of the company's standard conditions of sale which are shown on the back of their delivery dockets. He tendered one such docket as an example. There were actually 15 copy dockets in the possession of the Plaintiff but I was informed that they were in poor condition, soiled and hardly legible. These were copies of the dockets delivered to the Defendants' foreman or clerk at the site on each delivery.
Condition D.4 on which the Plaintiff relies in this case reads as follows:
"In the event of any concrete supplied by the Company in pursuant here of being rejected for any reason, the Company shall be liable only for the replacement of such concrete and in particular the Company shall not be liable for any consequential loss or damage."
He then tendered the credit application signed by Mr. Bajpai Senior on the 11th of July 1990, one paragraph of which reads:
"I/We acknowledge that the company's terms are strict nett 30 days and agree to abide by those terms. I/We agree that interest may be charged on overdue accounts."
Mr. Cridland also tendered two other documents, the first a letter from Westpac Banking Corporation dated 20th July 1990 addressed to the Credit Controller of the Plaintiff two paragraphs of which are important for this case. The bank advised:
"A longstanding, valued connection. Directorate is capable, reliable and experienced businessmen and unlikely to enter company into commitments beyond its resources.
We consider company quite safe for normal business engagements including the amount of your enquiry i.e. for a limit of $5000."
The last document tendered by Mr. Cridland regarding the Defendants' application for credit facilities was the Letter of Guarantee signed by the late Mr. Bajpai.
Mr. Cridland had not been employed by the Plaintiff in October 1991. However he said that it was not normal for concrete to take 4 days to set. Because it took so long to set the quality of the concrete had not been affected by the additional mixture which it was thought had probably caused the long setting. This however would not affect its strength. He then produced the test results of the concrete taken after 7 and 28 days. These showed that the mix was normal and according to specification.
He said it was not usual but also not uncommon for concrete to take longer to set than usually. He disagreed with the suggestion which I thought had been made somewhat tentatively by the Defendants that a lot of cracks had appeared in the floor on which the concrete had been poured because it had taken so long to set. He tendered without objection some technical opinion about cracks in concrete produced by Ready Mix and said that all concrete cracks, the various causes of which are stated in the document. Some of these are lack of adequate reinforcement at corners, lack of expansion and contraction joints and relatively small movements of formwork in the early stages of hardening. Also Mr. Cridland said if concrete has not compacted correctly it will and can crack. Also it should not be segregated so as to ensure homogeneity.
Mr. Cridland said he was certain the cracks were not the result of the late set. The normal practice when concrete is poured is not to work it for a minimum of 7 days and formwork should not be removed before the 7 day tests are taken.
He said that the normal practice in Fiji is to leave concrete for 28 days but this does not mean that the owner can not work on top or underneath it. In this case the 28 day test showed that the concrete had achieved 20 MPa. By the Defendants waiting another three weeks after it had been given the results of the 28 day test this meant that the concrete had continued to gain strength. Therefore there was absolutely no reason for the project to be delayed at all, even after the 7 and 28 day tests. He said the Defendants could have done some work around the sides of the floor after 7 days. He also said that the Plaintiff had supplied concrete to the Defendants before it had opened its account in 1990. As to Prema Bajpai's statement that the delivery docket did not contain the terms and conditions of sale Mr. Cridland said that it did. Also he did not accept Mr. Bajpai's evidence that the only time he signed the terms and conditions was when he paid money on an account. Mr. Cridland said Mr. Bajpai was mistaken because the Plaintiff's invoices do not have terms and conditions of sale on them. He said it was normal to inform a new client that the terms and conditions were on the back of each delivery docket and said that similar delivery dockets would have been delivered to the Defendants when the Plaintiff supplied concrete to their big supermarket.
He said the reason for condition D.4 was to protect the Plaintiff and explained that while the Plaintiff can control the quality of the concrete as long as it is in its possession, it lost that control on delivery. He said the nature of concrete is such that it can be interfered with, placed on weak formwork, or watered down and this is why it was necessary to restrict the Plaintiff's liability to replace concrete if it were found faulty. He said that the Plaintiff's answer to the Defendants' counter-claim is that the Plaintiff did not admit it committed any breach of its supply to the Defendants. The Plaintiff's only obligation was to supply and deliver concrete with a compression strength of 20 MPa which it had done. He then said that had the Defendants adhered to the Plaintiff's advice after the 7 day test they might not have suffered any loss.
In cross-examination he repeated that he thought the only cause of cracking was that the Defendants' workmen had not compacted the concrete properly. He also said that concrete after the 7 day test gives an indication of the final strength and this is fairly consistent and not simply statistical as claimed by the Defendants consulting engineers.
He said that he could see no reason why the Defendants should not have been able to resume work after the 28 days; and the staff who had done the test were experienced and the tests had been carried out in the way they should have been. This was borne out by the actual results.
The second witness called for the Plaintiff was Abhimanyu Krishna some of whose evidence I have already mentioned. Mr. Krishna recalled telling the Defendants of his experience on the Maritime School Project in which although the concrete was slow setting as in the present case, after the 28 days test it gave a very high result. Based on his experience he told the Defendants' foreman not to panic. He agreed with Mr. Cridland that delay in the setting of the concrete should not cause cracks and that when in this case the final tests had been completed they proved conclusively that there was absolutely nothing wrong with the concrete supplied. He presumed that chemical reactions must have been the cause of the slow setting in this case. He said that there were no tests available to ascertain the cause of the delay in concrete setting. Here the Defendants' concern was only the delay in the setting of the concrete which made them uncertain and refuse to do any work after the 7 days.
In re-examination Mr. Krishna said that the 7 day test here had reached more than 10 MPa which was satisfactory and an indication of the likely result of the 28 day test. He said that therefore after seeing the result of the 7 day test he was in no doubt what the result of the 28 day test would be and so advised the Defendants. Mr. Krishna said he had spent most of his working life in the concrete industry unlike structural engineers.
The last witness called for the Plaintiff was Gautam Sharma the Credit Controller who said he had worked for the Plaintiff for 23 years. He recalled Mr. Bajpai opening a credit account for the company. Mr. Sharma had given Mr. Bajpai the application forms plus a Letter of Guarantee and the conditions of sale. He said that when he saw Mr. Bajpai he made copies of the three conditions of the sale as was done with all the Plaintiff's consumers. He said that when he gave the conditions to Mr. Bajpai, Mr. Bajpai did not read them but said he would go away and return the application form and the Letter of Guarantee.
At the conclusion of evidence I then heard submissions from counsel. I found those of Mr. Bale for the Defendants somewhat difficult to understand. Although he said that the Defendants did not dispute that the concrete the Plaintiff supplied had not only achieved its minimum strength after the 7th day test and that after the 28th day test the concrete was of the strength required by the Defendants this was not the real issue as far as the Defendants were concerned.
He said that the Defendants say the failure of the concrete as far as they are concerned was the inability of the concrete to set in time, certainly to the expectations of all the parties.
This failure created a doubt as to the quality of the concrete in the minds of the Defendants' engineers which doubt, the Defendants claim, their engineers were justified in holding. Further the failure of the concrete could be translated into the doubt that the Defendants' engineers held about the quality of the concrete right up to the 28th day because of the failure of the concrete to set in time.
Mr.Bale continued that if the concrete had set as expected by all the parties within a day the Defendants would have no cause for doubting the indications given by the 7th day test.
Mr. Bale said that the crux of the Defendants case was the failure of the concrete to set within the time expected which caused a lot of concern and doubts in the minds of the Defendants and their engineer so that they were then not prepared to accept even the normal indications produced as to the likely final strength of the concrete after 28 days.
The reason why the Defendants did nothing after 28 days was because of the doubt they held about the failure of the product.
The reason why I find this submission strange with all respect to Mr. Bale is at first the reluctance of the Defendants' engineer to accept the advice of the Plaintiff to continue with some work after the result of the 7 day test was known and then what I regard as complete unreasonableness by the same engineer to advise his clients to commence work when the result of the 28th day test was known. This test showed conclusively that the Plaintiff had done all it was required to do for the Defendants yet still Mr. Singh advised the Defendants not to do any work at all for another three weeks.
In my judgment the Defendants should have been satisfied at least after they had received the result of the 28th day test and in any event, as all the expert witnesses agreed, including the Defendants' own engineer and its foreman, it takes at least twenty-eight days for concrete to gain its required strength. I fail to see how in the light of these two tests but particularly the 28th day one it was possible for the Defendants to entertain any reasonable doubts as to the quality of the product supplied by the Plaintiff.
I accept the evidence from the Plaintiff that the late set did not in any way affect either the quality or the strength of the concrete. The Plaintiff's engineer Mr. Krishna said that concrete which took longer to set was much better than the concrete which set quickly. The fact is I believe that the Defendants' engineer panicked. He was so concerned not to make any mistake in the advice he gave the Defendants that in my judgment he failed to act as a reasonable civil and construction engineer would in similar circumstances.
The Defendants' engineer Mr. Singh acted as he thought in the best interest of his client but in this in my judgment he showed far too much caution. I cannot see why the Plaintiff should have to pay for such excessive caution. Likewise I fail to see why the Plaintiff should pay for the luxury of the Defendants continuing to employ 65 men who, according to Mr. Prema Bajpai played cards and draughts for the whole 7 weeks in which no work was done on the advice of Mr. Singh.
I have found it difficult to understand the basis on which the Defendants' counter-claim is made. It alleges failure of the concrete but it is not clear from the way this is pleaded as to the basis of the counter-claim, whether it is in contract or tort. If it is in contract then the facts are that the Plaintiff was asked to supply concrete with 20 MPa strength and it did so.
There is no evidence to suggest that the Defendants did not get what they ordered because there is no evidence about failure of the concrete.
The Defendants gave evidence of cracks on the floor but could not link the cause of this to the concrete supplied. I am therefore not satisfied that the Plaintiff committed any breach of the contract and that therefore its counter-claim should fail in contract.
If it is alleged that the Plaintiff breached a duty of care to the Defendants then I simply ask, what duty? If it is to supply concrete of 20 MPa strength then clearly as is admitted this was supplied. I am also concerned that the Defendants have not offered one scrap of documentary evidence to support their claim for special damages. No charge books or other records were produced to support the assertion of labour costs of $10,520.13 nor were any receipts produced for the hire of scaffolding. Likewise no evidence was produced of the actual charges for professional services by the Defendants' consulting engineers.
The fact that as all engineers agreed that no work on the floor could have been done for 7 days after the pouring of the concrete, after 28 days in my judgment the Defendants should have begun work but for reasons which I find baseless still refused to do any work for a further 3 weeks. I consider it would be most unfair to saddle the Plaintiff with such inordinate and unreasonable delay. I therefore dismiss the Defendants' counter-claim whether it be based in contract or tort.
That would be sufficient to conclude the matter but because I have received submissions on the Plaintiff's conditions of contract, in case the Defendants may be minded to take this matter further, I shall state my findings on these conditions. As I have said I am satisfied that the Defendant was given a copy of the relevant conditions on which the Plaintiff relied on the 11th of July 1990 when these were handed to the late Mr. Bajpai.
The Plaintiff and the Defendants had done business with each other before so that it is reasonable to assume that the Defendants were well aware of the Plaintiff's conditions of contract. The Defendant is a well-known business organisation. Here the letter from Westpac Banking Corporation of the 20th of July 1990 is relevant. The bank described the directorate of the Defendant as "capable, reliable and experienced businessmen". In my judgment therefore it is most unlikely that such businessmen would fail to enquire of the Plaintiff as to its terms and conditions of supply. If they did so, which I do not accept, they did so at their peril.
Mr. Bale in his submission attempted to persuade me that the conditions were unreasonable in the manner of their conveyance to the customer and he said that on that ground alone the Defendants should not be bound by them as a matter of fact. He also submitted the exclusion clauses in the conditions were not binding on the Defendants as a matter of law but I do not agree.
The only case which Mr. Bale cited to me to support his submission was Thornton v. Shoe Lane Parking Ltd. [1970] EWCA Civ 2; (1971) 2 WLR 585, the facts of which are clearly distinguishable from the facts of the instant case. However I derive support from this case because the Court of Appeal in affirming the judgment of Mocatta J. referred to the multitudinous ticket cases from Parker v. South Eastern Railway Co. [1877] UKLawRpCP 28; (1877) 2 C.P.D. 416 onward. In the Parker case Mellish L.J. said (p.423) that if the person receiving the ticket
"knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions; that if he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions."
In my judgment in this case I am satisfied that the Defendants knew there was writing and knew or believed that the writing contained conditions namely those on the back of the delivery dockets and as such must be considered bound by those conditions.
Accordingly I dismiss the Defendants' counter-claim. There will be judgment for the Plaintiff in the sum of $15,156.03 together with interest at the rate of 10% from the 1st of January 1992 to the 30th of June 1995 of $5,304.00, a total of $20,460.60. The Defendants must also pay the Plaintiff's costs to be taxed if not agreed.
JOHN E. BYRNE
J U D G E
Authorities referred to in judgment:
Parker v. South Eastern Railway Co. [1877] UKLawRpCP 28; (1877) 2 C.P.D. 416 onward.
No other authorities were referred to in argument.
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URL: http://www.paclii.org/fj/cases/FJHC/1995/114.html