Roofing and Metal Buildings Systems Ltd v Diston [2025] FJHC 551; HBC223.2021 (29 August 2025)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 223 of 2021

BETWEEN:
ROOFING AND METAL BUILDINGS SYSTEMS LIMITED trading as METFRAME a limited liability company having its registered office at 19-23 Nasoki Street, Lautoka.
PLAINTIFF

AND:
STEPHEN JOHN DISTON of Lawaki Toki, Ovalau trading as OVALAU HOLIDAY RESORT
DEFENDANT

Representation:
Plaintiff: Mr. A. Kumar & Mr. M. F. Khalim (Patel Sharma Lawyers).
Defendant: Mr. G. O’Driscoll (O’Driscoll & Co)

Date of Trial: 6^th, & 7^th May 2025

Judgment

[1] The Plaintiff and the Defendant entered into an agreement in which the Plaintiff agreed to sell steel frame houses to the Defendant. The Plaintiff claims breach of agreement by the Defendant. The Plaintiff is claiming $154,958.65 as the sum owing by the Defendant.

[2] The Plaintiff called 5 witnesses. The Defendant had 1 witness.

[3] The Plaintiff in their pleadings were relying a customer contractor agreement dated 25^th November 2016 as an agreement between the Plaintiff and the Defendant. The Defence objected to the Plaintiff tendering a copy. They had never sighted the original of that document. I allowed an adjournment for the Plaintiff to produce the original. The copy they had was not clear. It was evident that it was copied a number of times. The pages were not in order or numbered. Two other pages after the agreement were not part of the schedule.

[4] The trial was adjourned on the first day to allow the Plaintiff to locate the original document and produce it in court. They were not successful. The agreement was marked for identification (MFI-1) for verification by another witness. It was not introduced by another witness. It was neither tendered.

[5] In the absence of a written agreement which I could examine, all I am left with is the oral evidence of the parties on the agreement. The Defendant’s do not dispute that there was an agreement between them for the supply of steel frame houses and the contract was for $281,743.00. The details of the agreement in issue.

[6] The evidence for the Plaintiff was the Defendant engaged them to make 4 villas in Levuka. After the work started 2 payments were made by the Defendant. Mr. Usman Ali (PW-1) Business Manager of the Plaintiff Company gave evidence that he was not involved in the dealing between Plaintiff and Defendant. Mr. Ram Chandar Narayan (PW-2) was sub-contractor of the Plaintiff. They did work at Ovalau Resort. His other evidence was that they finished all building. Their contract was with the Plaintiff. They had no contract with the Defendant.

[7] The evidence of Arvind Kumar (PW- 3) who worked for the Plaintiff as Supervisor was that the building was completed. There was no engineer’s certificate. He had no idea about the contract between the Plaintiff and the Defendant. Ms. Romica Shevlin was the 4^th witness for the Plaintiff. She is the Plaintiff’s Assistant Accountant. She gave evidence that $28,174.30 was the first payment made by the Defendant. They issued a receipt dated 31^st January 2017 (this is PE -3). She also informed me that they issued an invoice (PE-4) after the cheque was received. She further tendered a receipt for $98,610.05 (PE-5) received from the Defendant.

[8] Ms. Shevlin later tendered two invoices (PE-7) for $56,348.60 and (PE-8) for $98,610.05. She gave evidence that no other payments were made after the 2 payments. Ms. Shevlin in cross-examination could not state what the receipt for $98,610.05 (PE-5) related to. She could not state which invoice it related to. For (PE-7) for $56,348.60, she did not have the delivery No. 1028, 1029 and 1030. She had no idea if it was dispatched to the customer. Similarly, she had no idea if (PE-8) for $98,610.05 was sent to the customer. She also agreed that Invoice for (PE-6) for $98,610.05 did not have complete sales order number (it showed 1700010...). It seemed to have been partially erased/cut off. The same appeared with (PE-7) for $56,348.60. These did not assist the Plaintiff in their case.

[9] Sanjesh Vinay Chand was PW-5. He is the production and factory supervisor for the Plaintiff. He did not see the completed villas.

[10] The Defendant called Raiyub Akhtar Hassan. His evidence was that he helped finish of work on the villas. Three were partially done. Walls were not complete. Electrical not done. Plumbing had to be redone. The building was not in state to be used. It was not complete when he started work on it.

[11] The evidence that is before me does not support the Plaintiff’s claim. I do not have evidence of the details of agreement that existed between them and the Defendant. They could not tendered the agreement. They could have called someone representing the company outlining the details of the agreement between the Plaintiff and the Defendant. No witness for the Plaintiff gave evidence of the agreement and the details of the agreement between the Plaintiff and the Defendant. They were talking about timelines and milestones. These details were crucial and payments were related to it. These were not put properly before me. I am not in a position to assess things in the absence of evidence proper information relating to the details of the agreement between the parties. These include the timelines, the scope of work and other details.

{12] The documents tendered for the Plaintiff, especially the invoices for the claim against the Defendant were incomplete. Ms. Shevlin admitted that the details of the order were incomplete. It was cut off. It seemed to have been altered. These do not assist the Plaintiff in their claim.

[13] In the absence of evidence before me on details of the agreement between the parties and the related documents the Plaintiff’s claim fails. The documents that were tendered were altered and cut off. Invoices were issued after receipts were issued. For these reasons the Plaintiff’s claim is dismissed.

Court Orders

(i) The Plaintiff’s Writ of Summons is dismissed and the Claim is struck out.
(ii) Plaintiff to pay the Defendant $5000.00 as costs within 21 days. The costs have been summarily assessed.

...........................................................
Hon. Justice Chaitanya S.C. A. Lakshman
Puisne Judge

29^th August 2025