Pacific CuLtures Ltd v JP Bayly Trust [1998] FJHC 186; Hbc0373j.95s (17 June 1998)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 373 OF 1995

Between:

PACIFIC CULTURES LIMITED
Plaintiff

and

J.P. BAYLY TRUST
Defendant

Mr. V. Maharaj for the Plaintiff
Mr. H. Lateef for the Defendant

JUDGMENT

The background to the case is that by letter of appointment dated 7 February 1994 the Plaintiff and the Defendant entered into an agreement whereby it was agreed that the Defendant would hire and/or obtain the services of a qualified Clerk of Work and Maintenance Supervisor, namely, Ray Paton ("Mr. Paton") of the Plaintiff Company.

One of the essential terms of the agreement was that the "agreed rate of pay payable by the Defendant to the Plaintiff Company for the services as provided was at the rate of $25.00 per hour plus travel expenses at the rate of 55c per kilometre".

Minutes of Pre-trial Conference which contains the following item 3 is the only issue before the Court as agreed to by both counsel before the commencement of the hearing:

"3. WHETHER the Plaintiff and/or his representative Ray Paton had agreed with the Defendant to reduce the actual rate from $25.00 to $15.00 an hour".

The evidence on behalf of the Plaintiff was given by Mr. Raymond David PATON ("Mr. Paton") and for the Defendant by Mr. Mohammed Razak Akbar ("Mr. Akbar") and Mr. Richard Robert Phillips ("Mr. Phillips").

I do not propose to set out in any detail the evidence of the witnesses as it is all in the Court record. I shall touch on the salient features of the case.

Mr. Paton outlined to Court how he came to be engaged by the Defendant. He maintained throughout that there was no variation of the rate except that he made a 'mistake' in putting down in the account which he sent to the Defendant a wrong rate of $15.00 per hour (this was the rate he was engaged on previously on other projects of the Defendant).

He said that after discovering his mistake he communicated with the Defendant and was assured that the error will be adjusted anytime or after completion of the contract. This was said by Mr. Akbar and Mr. Phillips. This was not done and hence this action was instituted.

In cross-examination by Mr. Lateef, Mr. Paton denied that he ever agreed with Mr. Akbar or Mr. Phillips that he would reduce his rate from $25 to $15. He denied that on 21 March 1994 he had a meeting with Mr. Phillips, Mr. Jack Akbar and Mr. Mohammed Akbar when this matter was discussed. He denied what was written in Mr. Jack Akbar's diary in regard to this subject.

Mr. Paton admitted that he did not correct his alleged error in May to $25 an hour. He said that he did not do it because of the assurance given by Mr. Phillips and Mr. Wilkinson. This was not reduced to writing. He agreed that he sent his statements until October at $15 an hour but he denied that he did this because of the agreement between Mr. Akbar and Mr. Phillips.

Mr. Akbar for the Defendant testified that prior to the commencement of the project in which Mr. Paton was engaged, there was a meeting with Mr. Paton at the Bayly House and in the presence of Mr. Phillips he asked Mr. Paton "our contract is $25 an hour" and he said 'Tony is mad' (referring to Mr. Wilkinson). He told Mr. Akbar it will be $15 an hour which Mr. Akbar noted in his diary. Bills were sent at the rate of $15 an hour and these were paid. He said that at no time Mr. Paton ever told him that he should be paid $25 an hour. It was only after the works were completed that the Plaintiff claimed at this rate.

Mr. Akbar in cross-examination said that on 2 March he and Mr. Phillips were asked to go and talk to Mr. Paton about reducing the rate which Mr. Akbar did on 21 March. In answer to a question he said that he did not reduce the variation of contract in writing as he had another Trustee with him. Thereafter Plaintiff kept on sending invoices at $15 per hour. Mr. Paton had previously worked for the Defendant at that rate.

Mr. Phillips who testified on behalf of the Defendant said that he was a trustee of Bayly Trust in February 1994 when the agreement with Mr. Paton was reached but he retired on 1 February 1995. He had a good working relationship with Mr. Paton and he was asked to supervise the work that he was doing and to supervise his payment.

On the question of why the contract rate of $25 was varied to $15 he said that it was at a meeting between Mr. Akbar and himself and Mr. Paton, when $25 was mentioned and Mr. Paton commented to the effect that "Tony, Mr. Wilkinson, being silly. That $15 would be perfectly okay and 50c mileage would be okay".

In cross-examination Mr. Phillips said that the "suggestion of cutting it down from $25 to $15 came from the Paton not us .... I am sorry, the arrangement that came from him not from me or Mr. Akbar". He was further asked 'whose idea was it to reduce the rate from $25 to $15?" He replied: "In our discussion between Mr. Akbar and Mr. Paton and myself, it was Mr. Paton's suggestion that $15 was sufficient". He refuted the suggestion that he with Mr. Akbar promised that when the contract ends in November 1994 the differences in the account worked out on the basis of $15 an hour can be sorted out. When asked: 'why would he then claim now?' Mr. Phillips replied: "That I do not know, Sir, you have to ask him that. It is kind of a great surprise and a great disappointment to me when Mr. Paton started this proceedings a long time ago".

Consideration of the issue

The issue before me is a very simple one. It can only be determined by analysing the evidence adduced. I have before me the evidence of the Plaintiff on the one hand and the evidence of the defendant on the other. There are three active players in the dispute that has arisen with one other person's name thrown in may be as a 'red herring' but he has not given evidence. These gentlemen are Mr. Paton, Mr. Akbar and Mr. Phillips.

At the outset I must say that all these three gentlemen, on the evidence before me, are people of some standing in the community and they have rendered valuable public service. The defendant itself popularly known as "J.P. Bayly Trust" as everyone knows is a charitable organisation and these gentlemen in the performance of their duty in whatever position they hold use their best endeavours to save money for this organization so that there is more money for distribution to the poor in our community. It has been acknowledged by Mr. Akbar the Chairman of the Trust and by Mr. Phillips a Trustee that Mr. Paton has saved Bayly Trust a lot of money by rendering the service which he has rendered in the past even though he was paid at the agreed rate per hour. I should also mention that although the Plaintiff is a company, it as I understood it was founded to accommodate Mr. Paton as he was not a Fiji citizen and he therefore was not allowed to work.

With the above background and looking at the credentials of the personalities involved my task in the decision-making is not an easy one, but now that all the evidence is before me, and the Court can only act on evidence, I will decide on the basis of the standard required to prove a civil claim.

The fact that there was a written agreement to pay at the rate of $25 per hour is not in dispute. The question is whether the rate was varied to $15.00. Upon my reading of all the exhibits tendered in the case particularly the accounts forwarded by Mr. Paton and stating the rate at $15 from the beginning to end of project on a balance of probabilities shows that there was a variation. Why would he on an important and crucial item such as this make a mistake if it was one; but then this alleged mistake continued for some months. Not only that, on the evidence before me which I accept and which is not disputed but is admitted that Mr. Paton was regularly paid whatever statement of account he rendered which was at the rate of $15 per hour.

By accepting payments as he did amounts to an acquiescence that he has been paid at the rate agreed upon. That is why Mr. Akbar and Mr. Phillips have both without mincing words said that there definitely was a variation of the agreement and that is how the account was prepared by Mr. Paton and he was paid accordingly. I do not doubt the testimony of these witnesses in this regard. No reason has been put forward as to why they should be telling lies. They have nothing to gain personally thereby and despite the allegation made by Mr. Paton they still hold Mr. Paton in high regard. How the relationship between Mr. Paton and Mr. Wilkinson (a Trustee of the Organization) plays a part in this dispute is beyond my comprehension except that it is evident that these two were good friends and perhaps Wilkinson was instrumental in getting the contract for Mr. Paton but subsequently there was a "falling out". But it was admitted by Mr. Phillips that it was the Board's decision to give Mr. Paton the contract.

On hind-sight the proper thing would have been for Mr. Paton particularly to have got the alleged variation or arrangement regarding the alleged mistake reduced to writing as soon as or shortly after he discovered the alleged mistake just as he had a written agreement.

For these reasons, I accept the evidence of Mr. Akbar and Mr. Phillips in regard to the issue before me. I therefore find, on a balance of probability that there was a variation of the written agreement from $25.00 an hour to $15.00 per hour.

The Plaintiff's claim therefore fails and it is dismissed. It is ordered that each party bear his own costs in the circumstances of this case.

D. Pathik
Judge

At Suva
17 June 1998

HBC0373J.95S