Mikis Construction Pte Ltd v MY Group Ltd (trading as Metromix Concrete (Fiji)) [2024] FJHC 146; HBC292.2019 (8 March 2024)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 292 of 2019

BETWEEN

MIKIS CONSTRUCTION PTE LIMITED a limited liability company
having its registered office at Lot 8, Wairabetia, Lautoka, Fiji.

PLAINTIFF
AND

MY GROUP LIMITED t/a METROMIX CONCRETE (FIJI) a limited liability
company having its registered office at Lot 1, Latui Road,
Wailada Industrial Subdivision, Lami, Suva.
DEFENDANT

Counsel : Ms. Degei A. for the Plaintiff
Ms. Dutt S. for the defendant

Date(s) of Hearing : 25^th & 26^th January 2024

Date of Judgment : 08^th March 2024

JUDGMENT

[1] The plaintiff instituted this action claiming against the defendant;

(a) Judgment in a sum of $219,862.00;
(b) Damages for breach of contract;
(c) Interest thereon from the date of the writ to the date of the judgment at the rate of 10% per annum;
(d) Interest under the Law Reforms (Miscellaneous Provisions)(Death and Interest) Act;
(e) Costs on solicitor client indemnity basis; and
(f) Such further reliefs as this court deems just.

[2] The cost of constructing the pavement as averred in the statement of claim is $63,550.00 and the cost for reconstruction of the concrete pavement is $156,262.00. The plaintiff alleges that these damages were caused due to the low quality concrete mixture provided by the defendant.

[3] The defendant while denying the allegations of the plaintiff claims from the plaintiff a sum of $65,912.00 being the balance sum due from the plaintiff for the concrete mixture supplied to the plaintiff.

[4] At the pre-trial conference parties admitted the following facts:

1. The plaintiff’s company is a limited liability company having its registered office at Lot 8, Wairabetia, Lautoka, Fiji.
2. The defendant’s company is a limited liability company having its registered office at Lot 1, Latui Road, Wailada Industrial Subdivision, Lami, Suva.
3. The plaintiff’s company ordered the concrete mix of 15MPA strength cement from the defendant’s company.
4. The plaintiff’s company paid for the supply of concrete mix to the defendant’s company in the sum of $151,618.40.
5. The plaintiff’s company withheld payment to the defendant in the sum of $65,912.00 for the supply of concrete mix.
6. The plaintiff’s company informed the General Manager of the defendant’s company about the cracks who visited the site.
7. The defendant issued through its solicitors a statutory winding up notice to the plaintiff.

[5] The plaintiff’s claim is bases on the fact that the defendant supplied low quality concrete mixture to its construction site.

[6] The plaintiff’s witness Mohammed Faiaz Khan testified that they expected good quality concrete but the concrete provided by the defendant did not provide good quality concrete. The witness testified further that a structural engineer inspected the construction work. However, this engineer did not testify at the trial.

[7] The plaintiff did not adduce any evidence to prove that the concrete mixture supplied by the defendant was of low quality. The only evidence is that after laying the concrete there were cracks. The defendant’s position is that it was due to the heat. The burden was on the plaintiff to establish that the concrete mixture was of low quality but no such evidence was adduced by the plaintiff.

[8] The defendant’s wittiness testified that the defendant company uses a machine to measure the quality of the concrete mixture and the concrete mixture supplied to the plaintiff was also tested for its quality before it was transported to the plaintiff’s construction site and it was Mega Pascal 15 which was ordered by the plaintiff. Mega Pascal measures the compressive strength of the concrete.

[9] The defendant’s wittiness testified that the defendant company uses a machine to measure the quality of the concrete mixture and the concrete mixture supplied to the plaintiff was also tested for its quality before it was transported to the plaintiff’s construction site.

[10] The evidence of the plaintiff’s witness is that the cracks appeared immediately after the laying of the concrete which was denied by the witness Faiz Hussein, the witness for defendant. His evidence is that it takes about five to six hours to dry the concrete after laying it. There is no any expert evidence on this issue. However, one does not have to have any expert evidence since when the concrete mixture is wet and soft there cannot be cracks and even if there were it would not have been difficult to add more concrete and repair the cracks.

[11] The General Manager of the defendant company by an email wrote to the plaintiff stated;

1. Will arrange a guy to brush cement on a small portion concrete cracked floor on Monday to see if then covers the cracks.
2. Metromix will compensate in the next project upon full settlement of your account with Metromix.

[12] In reply to the said email the plaintiff company sent an email stating;

Thanks for the update, pls can you arrange this to be written on your letter head and sign by your Director Mr. Ayuib, so that we have a proper record for next project. Monday you can do a sample area so that this concrete can last for few years.

[13] The evidence of the defendant’s witness is that the Director at that time was in New Zealand and therefore, they could not perform the repair work.

[14] The defendant’s witness also testified that at that time The Pacific Cement was closed and they had to buy cement from Tengy Cement. However there is no evidence that the cement they used was of low quality.

[15] The plaintiff’s counsel cited various authorities relating to contracts but for the court to apply the principles enunciated in those decisions to the facts of the matter the plaintiff must first discharge its burden of proof by adducing sufficient evidence to establish negligence of the defendant but the plaintiff has failed to prove that the cracks complained of were due to the negligence of the defendant.

ORDERS

1. The action of the plaintiff is dismissed.
2. The plaintiff is ordered to pay $3,000.00 as costs to the defendant within 30 days.
   

Lyone Seneviratne
JUDGE
08^th March 2024.