Trade Supplies Ltd v Prasad [2000] FJHC 100; Hbc0016j.2000s (8 September 2000)

Fiji Islands - Trade Supplies Ltd v Prasad - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Civil Jurisdiction

CIVIL ACTION NO. 0016 OF 2000

Between :

TRADE SUPPLIES LTD.

: 1"> Plaintiff

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> - and -

AMRIT PRASAD

s/o Hari Prasad trading as JANEL ELECTRIC

Defendant

Mr. G. Keil & Mr. N. d for the Plaintiff

.P. Singh for the Defendant

JUDGMENT

On the 16^th February 2000 the plaintiff entered a default judgment against the defendant for failure to serve a defence to a Writ which was personally served on him on the 18^th January 2000. By motion dated 10^th April the defendant seeks leave to defend and a stay of execution.

The plaintiff’s claim is based upon a hand-written Order of the defendant dated ^th July 19999 which reads as follows:

`Fabricate and supply

(1) &nnsp;&&nsp;;&nspp;&nssp;&nsp;

: 1"> (2) &nbbsp; &nbbsp; &nbp; &nbp; 2 No. 3e poltributiibution Board

1"> (3) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; 1 only main switch board as per plans

and specification

provided (complete)

Quoted VIP $61,000 n>

Sixty One Thousand Ds only.’

It is common ground that by a facsimile message dated October 13^th, 1999 the defendant unilaterally cancelled the Order ostensibly because of the inability of the plaintiff to `provide shop drawings which is delaying our works’.

For its part the manager of the plaintiff company deposed that `the main Switchboard was made in accordance with the specifications supplied by the defendant ... (and) any question of non acceptance by the consultant of the design of the switchboard was the result of the consultant insisting upon changes which were not provided for in the original specifications and for which the plaintiff was not responsible’.

Furthermore by facsimile dated 15^th October 1999 the plaintiff company sought the immediithdrawal of the defendant’dant’s `notice of cancellation and (his) approval (of) the design variation so that we can complete our construction drawings’. A similar facsimile had been earlier sent by the plaintiff company to the defendant on 22^nd September 1999 but not reply was received to that either.

As for the `distribution boards’ the managposed that the defendant’s refusal to pay for these items wems which were supplied sometime in mid-August 1999, `is at best a haggling about price’.

In this latter regard, it is noteworthy that neither in the defendant’s correspondence nor in the proposed Statement of Defence is there any denial that the `distribution boards’ were not supplied and accepted by the defendant, has it been suggested that the distribution boards were defective, or had been returned to the plaintiff ny. Indeed even in the defendant’s cancellation notice there is an offer to pay for tfor the distribution boards albeit that they were considered `very expensive’.

Accordingly, in so far as the plaintiff’s claim relates to the four (4) `distribution boards’,e is not the slightest doub doubt in my mind that the defendant has not raised a bona fide arguable defence.

In so far as the `main switch ’ is concerned, it is noteworthy that the plaintiff company’s claim is not one for general damages for breach of contract which it would have been entitled to claim had it not accepted the defendant’s unilateral cancellation, rather, it is a claim based on `quantum meruit’ for work actually done in partial fuent of the defendefendant’s Order.

Furthermore given the plaintompany’s undenied, unanswered requests to the defendant for his approval of the design chan changes (and additional costs) required by the project consultant to be done to the `main switchboard’, the legal effect of the defendant’s unresponsss (even assuminguming an entire and indivisible contract which is the defendant’s apparent position), is succinctly summarised >Cheshire and Fifoot’s Law of Contract (9^th edn.) where the lehe learned authors state at p.526 :

`If a party to an entire contract perforrt of the work that he has undertaken and is then prevented by the fault of the other partyparty from proceeding further, the law does not allow him to be deprived of the fruits of his labour. He is entitled, of course, to recover damages for breach of contract, but alternatively he can recover reasonable remuneration on a quantum meruit for what he has done. The leading auty for obvioobvious rule is Planche v. Colburn (1831)1831) 34 RR 613.’

If however the contract between the parties should be considered a divisone as might be reasonably ably inferred from the nature of the items separately enumerated in the defendant’s Order form and the defendant’s ready acceptance and actual usage of the distribution boards when supplied, and the progressive invoicing by the plaintiff company, then the law is equally clear in that `(the plaintiff’s) right to payment is not conditional on complete performance. Payment keeps with performrformance and is recoverable toties quoties by action on a quantum meruit’ [see : Roberts v. Havelock (1832) 37 RR.452].

Given the above I am not at all satisfied tha defendant has raised an arguable defence against the plaintiff’s `quantum meruit’ claim and accordingly the application is refused with costs summarily assessed at $200.00.

D.V. Fatiaki

JUDGE

At Suva,

8^th Sep> September, 2000.

HBC0016J.00S