IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Suva Magistrate's Court No: 300/2007
Suva Civil Appeal No: HBA 002/2009

BETWEEN:

ANUJ PATEL & VANDHANA PATEL
Appellants/Defendants

AND:

INTERNATIONAL SHOPFITTINGS (FIJI) LTD
Respondent/Plaintiff

Counsel : Ms S Narayan for Appellants/Defendants 
Ms A Sharan for Respondent/Plaintiff

Date of Judgment: 23rd October, 2012

JUDGMENT

1.	This is an appeal by the appellant (hereinafter referred to as the defendants) from a judgment dated 08.04.2009 of the learned Magistrate at Suva.

2.	The respondent (hereinafter referred to as the plaintiff) instituted action by writ of summons dated 18.9.2007 and in its statement of claim stated as follows:

i)	That on or around 3.4.2006 the plaintiff and the defendants entered into an agreement for the provision of supply and installation of joinery works at the defendants' residence.

ii)	That a total sum of $14,000.00 was charged for the said works, which had been agreed to by both parties prior to the commencement of the said works.
iii)	That despite numerous requests, the defendants have chosen not to pay the outstanding amount.

iv)	That the balance sum of $14,000.00 remains outstanding.

3.	As a result of the aforesaid matters the plaintiff claimed damages in the sum of $14,000.00 and costs.

4.	In response to the plaintiff's claim the defendants filed a statement of defence and a counter-claim but on 01.08.2008 the counter claim was withdrawn.

5.	In their statement of defence, it was stated that the defendants did not owe a sum of $14,000.00 to the plaintiff for the following reasons:

a)	The plaintiff quoted the sum of $14,000.00 to complete work on defendants' properly but failed to carry out work within the time stipulated.

b)	The plaintiff had only completed work to the value of $ 2,000.00.

c)	The defendants had to engage another contractor and spend $12,000.00 to complete the work.

d)	The defendant named Anuj Patel had to cancel a business trip abroad in order to get the work completed. 

6.	Therefore, the defendants stated that they did not owe the sum of $14,000.00 rather owed only $2,000.00.

7.	At the trial before the Magistrate, three witnesses for the plaintiff namely, Anil Chandra, Sushil Chand and Ashika Rajesh Kumar testified whereas the 1st and 2nd defendants gave evidence for the defence.
8.	The learned Magistrate after considering the oral evidence and documentary evidence placed before him by both parties pronounced his judgment on 8.4.2009 and made the following orders:

1.	The defendants shall pay the sum of $14,000.00 to the plaintiff.
2.	The plaintiff is entitled to the costs in the sum of $3,000.00.

9.	It is against this judgment of the learned Magistrate that the defendants filed this appeal.

10.	The grounds of appeal on which the defendants rely on are as follows:

I.	The learned Magistrate erred in law and in facts by holding that the joinery work done by the respondent was completely within the time stipulated in the contract.

II.	The learned Magistrate erred in law and in fact by holding that the appellants owed the respondent the sum of $ 14000.00 for all the joinery works done by the respondent at the appellant's residence.

III.	The learned Magistrate erred in law and in fact by holding that the defendants did not give adequate notice to the plaintiff informing about the defective work.

IV.	The learned Magistrate erred in law and in fact by holding that the defendants did not give a reasonable time to the plaintiff to rectify the defects.

V.	The learned Magistrate erred in law and in fact in not considering and/or dismissing the evidence of the appellant's witness 'Interioz (Fiji) Ltd" who testified that the work was never completed by the respondent and instead found that the joinery work was never removed by the respondent at all.
VI.	The learned Magistrate erred in law and in fact in by dismissing the evidence of 'Interiorz (Fiji) Ltd' in that it carried out all the joinery work and only the structure was left behind by the respondent.

VII.	The learned Magistrate erred in law and in fact by not considering that the respondent failed to give a completion certificate for the work done at the appellant's residence when there was evidence that the respondent does give completion certificates on the works it completed.

VIII.	The learned Magistrate erred in law and in fact by finding that the appellants did not give any proper notice of defective work when there was evidence that the respondent failed to complete the joinery work which was completed by 'Interiorz (Fiji)' Ltd.

IX.	The learned Magistrate erred in law by assessing that the plaintiff is entitled to the sum of $ 14000.00 from the defendants when the work was never completed by the respondent.

X.	The learned Magistrate erred in law by assessing that the plaintiff is entitled to the costs of his action in the sum of $ 3000.00

11.	Both parties have filed their legal submissions and informed the court that they do not wish to make any oral submissions.

12.	In the defendant's submissions, five grounds of appeal were dealt with. It was submitted that the learned Magistrate has erred by holding that the work done by the plaintiff was completed by 25.4.2006. It was further submitted that time was of essence in the agreement between the two parties but the learned Magistrate had failed to consider this and erred his assessment that the work had been completed within the time stipulated by the contract despite the clear evidence that it was not completed within the time frame as agreed.

13.	As can be seen from the learned Magistrate's judgment he had observed that there were three different versions as to when the work was commenced and completed. Having analysed the evidence, the learned Magistrate had come to a conclusion that the plaintiff completed the work under the contract dated 3.4.2006.

14.	Though the defendant argued that the time was of essence in the agreement, the evidence of the 1st defendant Anuj Patel before the Magistrate Court clearly shows that he kept on giving extensions, thus, it is my view that the defendants are now estopped by conduct from relying on the stipulated time frame in the said contract.

15.	The 2nd ground of appeal advanced by the defendant is that the learned Magistrate erred in law and in fact in holding that the appellant owes the respondent the sum of $14,000.00 for all the joinery works done by the respondent at the appellants' residences.

16.	As can be seen from the learned Magistrate's judgment dated 8.4.2009 he concluded that the plaintiffs performed the work under the contract dated 3.4.06.

17.	In coming to the conclusion the learned Magistrate has taken into consideration the facts that if the defendants were unhappy with the plaintiffs work then the defendants were required to give a formal notice to the plaintiff, the notice should have stated the nature of the defective work but the defendants did not give any formal notice to the plaintiff. So on that basis the learned Magistrate had held that the appellant owes the respondent a sum of $14,000.00.

18.	Had the learned Magistrate failed to consider any relevant fact while coming to conclusion that the defendants were liable to pay $14,000.00, certainly this court should interfere with the decision of the learned Magistrate, but in the absence of any such error on the part of the Magistrate, it is my view that the learned Magistrate's findings should not be set aside.

19.	Another ground advanced by the defendant is that the learned Magistrate erred in law and in facts in holding that the appellant did not give adequate notice to the respondent about the defective work. This ground has already been addressed above. The reasons given by the learned Magistrate in deciding that the defendant had not given an adequate notice to the plaintiff in my view is quite satisfactory and therefore, I am not persuaded to find any mistake on the part of the learned Magistrate in that regard. 

20.	The defendants submitted that the learned Magistrate erred in law and in facts in not considering and/or dismissing the evidence of the appellant's witness Interioz (Fiji) Ltd.

21.	It could be observed that the issue relates to the joinery items, was correctly and adequately dealt with by the learned Magistrate in paragraph 12 and 13 of his judgment as follows:

The defendants' version is when Interioz came to re-do the work there was nothing left of the work done by the plaintiff since the plaintiff had taken all the joinery works except the structure. If indeed the carcass was the only thing left behind when Interioz came to do the inspection on 5.9.06 at the defendant's premises then what caused them to say that:

'Without being prejudicial the works to date carried out by ISF Ltd is to say the least below the industry standard with respect to design, quality and workmanship"

In my view Interioz would have only been able to say that if they had inspected the work carried out by the plaintiff. The statement by Interioz about design, quality and workmanship has assisted me in resolving the issue of removal of the joinery work. I am satisfied that the plaintiffs did not remove the joinery work and the joinery work was in place for Interioz to have made that statement.

22.	The above shows that the learned Magistrate had analyzed the defence witnesses' evidence in detail and correctly came to a conclusion that the plaintiffs did not remove the joinery work.

23.	Hence, I do not see any reason to interfere with the learned Magistrate's findings in respect of the above issue.

24.	The appellants further argued that the learned Magistrate erred in law and in fact by not considering that the respondent failed to give a completion certificate for the work done at the appellant's residence. It could be observed that in his evidence the Managing Director of the plaintiff stated that the 2nd defendant had agreed to sign the completion certificate and that there was a copy of it at the plaintiff's office which was not challenged by the defendant nor did they even make a suggestion that it was not produced because it was not signed by the defendants. Therefore, the appellant's argument fails. 

25.	The appellants also argued that the cost ordered by the learned Magistrate is excessive. When the history of the case is considered it appears to this court that the case was called on 15 days including trial days which show that the plaintiffs would have spent a considerable sum in instructing solicitors and coming to courts. Therefore, I am not inclined to revise the cost order made by the learned Magistrate.

26.	It must be noted that when a court of first instance has dealt with and has analysed the evidence of a question of fact, the court which hear the appeal, as a principle does not intervene with the finding of the court of first instance unless it is manifestly irrational and illogical. 

27.	In the present case, the findings of the learned Magistrate when analysed does not show any irrationality nor does it show any illogicality.

28.	Having carefully considered the evidence; the learned magistrate's findings and the submissions of counsel, I am firmly of the view that the trial magistrate's final conclusion was correct and therefore I see no reasons to intervene with the findings of the magistrate.

29.	On the above premise, I dismiss the appeal. 

30.	No order for costs.

Pradeep Hettiarachchi
JUDGE