Ramas Investment Ltd v Mechanical Services Ltd [2010] FJHC 24; HBA007.2006L (2 February 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBA 7 of 2006L

BETWEEN:

RAMAS INVESTMENT LIMITED
Appellant/Plaintiff

AND:

MECHANICAL SERVICES LIMITED
Respondent/Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr V Naidu for the Appellant/Plaintiff
Mr K Kumar for the Respondent/Defendant

Solicitors: Vijay Naidu & Associates for the Plaintiff
Neel Shivam Lawyers for the Defendant

Date of Hearing: Judgment on notice
Date of Judgment: 2 February 2010

INTRODUCTION

[1] This is an appeal from a Magistrates Court judgment that was delivered on 10 May 2006. The appeal was heard in this Court on 2 November 2007 but the judgment is yet to be delivered so the parties agreed that I deliver judgment on the papers filed and the trial Judge’s notes which I now do.

THE FACTS AS PLEADED

[2] The Statement of Claim in the Magistrates Court states the Plaintiff purchased from the Defendant a split system wall mounted air conditioning unit which the Defendant installed at the Plaintiffs premises. The air conditioner broke down after 5 months. The Plaintiff alleges that it was not fit for the purpose. The unit was under warranty for 5 years. Despite numerous requests, the Defendant failed to repair the defective unit so the Plaintiff removed it and installed a new one. The Plaintiff sues for the cost of the replacement unit and damages of $5,380.

[3] The Defendant denies that the air conditioner was not fit for the purpose or that it was in breach of contract. It says that the unit failed to function properly because the condenser unit was damaged by someone else’s container-laden truck hitting the unit because of the Plaintiffs own neglect. It admits trying to repair the unit but says that the warranty did not cover the damage which was caused by an accident occasioned by the Plaintiffs own neglect. The Defendant also counter claimed for the repair costs of $380.

MAGISTRATES COURT FINDINGS

The trial Magistrates findings and orders are as follows:

FINDINGS

There was no dispute that the defendant sold and installed an air conditioning unit for the plaintiff in December 2002 and that in September 2003 it malfunctioned. The plaintiffs case is that the defendant should have replaced the damaged air conditioning unit under the warranty. The defendant says that the damage was caused by a truck and this type of damage is not covered by the warranty.

Exhibit P2, the report from Technicool, does not assist the plaintiff in proving its case as there is no dispute that the air conditioning unit needed replacing.

The warranty contained in Exhibit P1 states as follows:

"For best safety and performance, every Daikin Air Conditioner has been tested and performed to international standard. Therefore we can confidentially warrant every Daikin Air Conditioner for 1 year on any electrical parts (not including labour) and full 5 years warranty on the rotary compressor (Compressor – Heart of Air Conditioning Unit) replacement (changing compressor will cost extra including labour) from the first date of purchase. The validity of the warranty will only remain in force provided a proper servicing and the authorized Daikin agent carries out maintenance."

In my view the warranty does not cover damage by external agencies, including trucks. The sole witness for the plaintiff told the Court that he had no expertise with air conditioning units and he knew very little about what had happened with the air conditioning unit at the Zone Night Club. Although Exhibit P2 states that the compressor is "dead shot to earth" it does not explain how this occurred. The witness for the defendant gave detailed evidence about the damage allegedly caused by the truck and as to how and why the unit subsequently failed. It is for the plaintiff to prove its case and on the evidence before me the plaintiff has not established on the balance of probabilities that the compressor in the air conditioning unit failed as a result of any inherent defect, or any defect for which the defendant can be held accountable.

During the defendant’s evidence it emerged that the defendant had advised the plaintiff to install the compressor unit in a different location, where it would be less likely to be damaged and that the plaintiff ignored that advice. The plaintiff tried to suggest in cross-examination that the defendant had owed it a duty of care to site the compressor appropriately or alternatively that the plaintiff had relied on the defendant to site the compressor appropriately. These suggestions which, in view of the defence evidence, lacked any merit, were not pleaded and were not part of the plaintiffs claim.

As the plaintiff has failed to proved its case on the balance of probabilities there will be judgment for the defendant on both the claim and the counter claim.

ORDERS

1. Judgment for the defendant on the claim.

2. Judgment for the defendant on the counter claim in the sum of $380.00.

3. The plaintiff to pay the defendant’s party costs summarily assessed at $500.00.

THE GROUNDS OF APPEAL

[5] The Grounds of Appeal are as follows:

1. That the Learned Trial Magistrate erred in law in admitting the evidence of the defendant, namely that the defendant had advised the plaintiff to install the air-conditioning unit at the side of the building where it would be less likely to be damaged and that the plaintiff ignored that advice when the same had not been specifically pleaded as required under Order XVI Rule 3(f) and (g) of the Magistrates Court Rules. Hence, there has been a substantial miscarriage of justice.

2. That the Learned Magistrate erred in law in deciding the matter on the issue of the warranty when it was never raised or argued by the plaintiff during the trial.

3. That the Learned trial Magistrate erred in law in holding that the defendant did not owe a duty of care in the installation of the air-conditioning when the same was pleaded in the paragraph 3(a) of the plaintiffs Reply to Defence and Defence to Counter-claim.

4. That the Learned Magistrate erred in law in allowing the defendant’s evidence that a Mr. Dennis Singh was the person who told the defendant where to put the air conditioning unit where it was in breach of Order XVI rule 3(k) of the Magistrates Court Rules in that it raised a new issue that took the plaintiff by surprise and therefore the plaintiff was denied the opportunity to rebut.

CONSIDERATION OF THE GROUNDS OF APPEAL

[6] The Appellant is not disputing the facts. However, Counsel submitted that an error of law had been made in that evidence was accepted by the Magistrate in breach of Order XVI rule 3(f), 3(g) and 3(k) of the Magistrates Court Rules.

Those rules provide as follows:

3. Whenever any pleading, statement or answer is ordered to be filed, the provisions of the following rules shall be observed:-

.

.

Allegations shall not be met generally, but specifically

(f) It shall not be sufficient to deny generally the facts alleged by the statement of claim but the defendant must deal specifically therewith, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) staling that he does not know whether such allegation or allegations is or are true or otherwise.

Denial of fact must answer point of substance

(g) When a party denies an allegation of fact, he must not do so evasively, but answer the point of substance. And when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given.

.

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Evidence in denial of allegation or in support of defence not set up in pleading

(k) The answer of a defendant shall not debar him, at the hearing, from disproving any allegation of the plaintiff not admitted by the answer, or from giving evidence in support of a defence not expressly set up by the answer, except where the defence is such as, in the opinion of the court, ought to have been expressly set up by the answer, or is inconsistent with the statements thereof, or is, in the opinion of the court, likely to take the plaintiff by surprise and to raise new issues not fairly arising out of the pleadings as they stand and such as the plaintiff ought not to be then called upon to meet.

[8] Counsel treated Grounds 1 and 4 together. His submission is simply that the Magistrate should not have accepted evidence that the Defendant advised the Plaintiff that the unit should not have been installed in the position that it was installed. It was not open to her on the pleadings.

[9] Without coming to any finding as to whether it was open or not to the trial Magistrate to accept that evidence, I think it would not have made any difference to the outcome. Her Worship’s reasons seem to me to suggest that she believed the witnesses for the Defendant. The Plaintiff just simply did not prove its case that the unit was defective. On the contrary, she found that it was damaged by someone else and that the damage was not covered by the warranty. There is no merit on these Grounds. I also think there is no merit for the reason that I give below.

[10] In relation to Ground 3, Counsel argued that the Magistrate erred in law in holding that it was not pleaded that it was the Defendant’s responsibility to ensure that the unit was located in a safe position. He pointed to paragraph 3(a) of the Reply to Defence which states:

The air conditioner was installed by the Defendant, it was the Defendants responsibility to ensure that the outside unit is not interfered (with) in anyway whatsoever.

[11] This argument therefore contradicts his argument in respect of Grounds 1 and 4. It is clearly open to the Magistrate under that paragraph of the Plaintiffs own pleading to accept evidence that the Defendant advised the Plaintiff not to locate the unit in a particular position. The Defendant’s evidence which the Magistrate accepted was that the Defendant did in fact tell the Plaintiff not to locate the unit in that position because it was susceptible to damage. The evidence was in direct answer to the Plaintiffs own pleading that "it was the Defendant’s responsibility to ensure that the outside unit is not interfered (with) in anyway whatsoever".

[12] Ground 2 has no merit. The issue of warranty was clearly pleaded by the Plaintiff itself in its Statement of Claim.

COSTS

[13] I think this is a misconceived appeal. It had no real prospects of success. Costs should be on the high end of the scale which I summarily set at $2,500.

ORDERS

[14] The Orders are therefore as follows:

1. Appeal is dismissed.

2. Appellant is to pay the Respondent’s costs of $2,500 within 28 days.

Sosefo Inoke
Judge