D Chand Brothers Ltd v Industrial & Marine Engineering Ltd [2001] FJHC 201; HBA0022.1999 (21 August 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

ACTION NO. HBA 0022 OF 1999

BETWEEN:

D. CHAND BROTHERS LIMITED
Appellant/Plaintiff

AND:

INDUSTRIAL AND MARINE ENGINEERING LIMITED
Respondent/Defendant

Vijay Maharaj for the Appellant
H. Lateef for the Respondent

Date of Hearing: 20th April 2001
Date of Judgment: 21st August 2001

JUDGMENT

This is an appeal from the Magistrate’s Court at Suva which on the 19th of March 1999 rejected a claim by the Appellant for loss of income arising from the Respondent’s failure to repair a Roller Machine used by the Appellant in its civil engineering work.

The facts which were not in dispute were that on the 11th of May 1995 the Appellant left the machine with the Defendant for the purpose of having certain parts to its gear action repaired. It was agreed by the parties that the cost of the repairs would be $400.00 and that they would be completed within two weeks from the date of the delivery.

At the Defendant’s request the Plaintiff paid the Defendant a deposit of $250.00 with the balance of $150.00 to be paid on satisfactory completion of the repairs. The Respondent, in breach of the agreement failed to repair the machine within the time specified and on the 19th of September 1995 the Appellant issued a Writ in the First Class Magistrate’s Court alleging breach of the agreement and claiming the sum of $18,270.00 for loss of income from the use of the machine caused by the Respondent’s failure to repair it. To bring itself within the jurisdiction of the Magistrate’s Court the Plaintiff reduced its claim to $15,000.00.

Liability was admitted, the only question for the Court being the amount if any which the Plaintiff should recover.

In a Ruling given on the 19th of March 1999 the Magistrate’s Court rejected the claim on the ground that the Plaintiff failed to prove the particulars of loss and damage pleaded. The learned Magistrate disbelieved the evidence of the Plaintiff’s principal witness who had said that the Roller Machine had been used on the job at the Indian College “just prior to giving the part” to the Defendant.

In cross-examination the witness conceded that the gear was dismantled and given to the Defendant two years after the job so that the learned Magistrate was right in my judgment in holding that it was impossible to hold that this period meant just prior to the contract date, 11th May 1995.

She was also not convinced that the Roller was in use or generating any income in the period prior to the contract. In my judgment on the evidence this finding was open to her. She therefore refused to make an award of damages and ordered each party to pay their own costs. She held however that the gear ought to be replaced by the Defendant.

On the evidence there was clearly a total failure of consideration. The Defendant simply did not repair the Roller gear because while in its custody it went missing. The Defendant acknowledged that the replacement part which it eventually supplied to the Plaintiff was returned because it could not fit the machine. The Defendant admitted in evidence that it had not made any attempts to modify the part so as to fit the machine.

There was evidence that the older machine had five holes for spokes to be put in it. The new machine had four spokes which consequently did not fit. Thus in my judgment the learned Magistrate was wrong in not holding that there had been total failure of consideration and that the Plaintiff/Appellant was at least entitled to a refund of its deposit of $250.00. This had actually been suggested to her by counsel for the Defendant in his submission and I consider the learned Magistrate should have accepted that submission.

Accordingly I consider the Appellant is entitled to a refund of the $250.00 whether this be by way of damages or to restore the parties to their original position. It follows that the appeal must succeed to this extent and that the Respondent must pay the costs of the Appellant both in this Court and the Court below which I fix at $1,000.00. There will therefore be an order in these terms.

JOHN E. BYRNE
JUDGE