Vunimoli Sawmills Ltd v Jainil Timber & Hardware Ltd [2001] FJLawRp 11; [2001] 1 FLR 102 (3 February 2001)

VUNIMOLI SAWMILLS LTD. v JAINIL TIMBER & HARDWARE LTD., ANIL PRATAP, JAI PRAKASH & SUSHILA DEVI

High Court Civil Jurisdiction

14 February, 2 March, 2001

HBC 345/98S

Debt recovery – supply of treated and untreated timber – defence of below standard and unwanted supply of goods – Plaintiff invited to take timber away but $13,000 worth of timber disappeared from the First Defendant's yard - evidence - credibility of witness

The Plaintiff claimed it supplied D1 with both treated and untreated timber as ordered but was not paid for it. It also claigainst the reme remaining Defendants as guarantors. The Court found difficulty quantifying the claim as D1 placed its orders orally with the Plaintiff and did noduce any documents to show precisely what amounts or what what kind of timber it had sold, nor precise calculations of the amounts owed or claimed. Nevertheless, the Court held that the Plaintiff had supplied a quantity of timber which bore the appearance of treated timber but was in fact untreated and therefore was not only worth less than it would have been had it been treated but also was not what D1 required. The Plaintiff was given the opportunity and indeed invited to take it away, thus the Defendants could not be held accountable for its disappearance. The Courbelieved the evideevidence of the Plaintiff, preferring the evidence of a forestry and timber preservation officer who gave evidence that a random sample of timber tested had 100% failure rateh in H2 preservation penetrenetration and H2 preservation loading. As the Court was unable to quantify the loss, the Court gave liberty to the parties one month to apply for further directions if recalculations are required.

Held – where there is considerable doubt as to the exact values, amounts and quantities of timber supplied, and the Plaintifflied timber which gave appearance of being treated but was in fact untreated and unwanted ated and not of the quality ordered and that the Plaintiff was given the opportunity and indeed invited to take it away, but did not, the Plaintiff's claim is dismissed.

Liberty to parties to apply for directions if recalculations are required. Plaintiff's claim is unsubstantiated. Judgment for the Defendants on their counterclaim. The Plaintiflaim is dismisssmissed.

No cases referred to in Judgment

Hemendra K. Nagin for the Plaintiff
Devanesh Sharma for the Defendants

[The Plainsought to appeal this mattematter in ABU 0028/01S but settled with the Respondent. This matter was removed from the appeal list on 13 May 2003.]

2 March, 2001

JUDGMENT

Scott, J

The Plaintiff is a sawmilling company. It sus sawn timber in vari various lengths and sizes to timber and hardware companies such as the First Defendant. Various local hars are supe supplied as well as pine. The timber may bplied either treated with pith preservative or untreated.

The Plai's claim againsgainst the First Defendant is that it sed it both treated andd and untreated timber as ordered during the period March 1996 to Februaryruary 1998 but that the First Defendant owe Plaintiff $37,833 in resp respect of timber supplied but not paid for. The claim against the ningining Defendants is as guarantors.

The Defence of thst Deft Defendant is that instead of supplying the timber that was ordered and required thentiff, especially during the months of December 1997 and Jand January and February 1998 supplied a quantity of timber which bore the appearance of treated timber but was in fact untreated and therefore was not only worth less than it would have been had it been treated but also was not what the First Defendant required.

Both Counsel produced bundles of agreed documents PD 1-87 and DD 1-33 which were referred to by consent.

When the was issued thed the Plaintiff claimed $49,000 but after the es accountants re-examined the records the Plaintiff's clai claim was reduced to $37,833 (see PD 86 and PD 87). The First Defenalso ced a ed a reconciliatiliation of accounts as at 3 March 1998 (see DD 30) which resulted in a counterclaim of $7,644.47. Ietterd 1 May 1998 the Fire First Defendant advised the Plaintiff that it had $13,242.05 wor5 worth of untreated timber which had been to it and paid for as treated timber and which it did not require and which the Plaintiff tiff was free to take back. By deducfrom this amount tunt the amount admittedly owed by the First Defendant to the Plaintiff ($5,597.58) the figure of $7,644.47 washed.

It became clear durhe ethe examination of the witnesses that there was coas considerable doubt as to the exact values, amounts and quantities of timber supplied. In view of the fhat the Fihe First Defendant placed its orders orally with the Plaintiff and did not produce any documents to show precisely what amounts of what kind of timber it had on sold precise calculatof the amounts owed or clai claimed could not be made. In these circumstances I advised Counsel, who accepted the position, that the best that could be done would be to resolve the central question which was whether or not the Plaintiff had supplied substantial quantities of timber described as treated and charged at no less than $400 per cubic meter which timber in fact, on examination, proved not to be treated at all except with some form of dye which gave it the appearance of being the genuine article.

The only witness called by the Plaintiff, apart from the Company's accountant, was Bashir Khan, the Plaintiff's managing director. Mr. Khan's case was the Fihe First Defendant had been supplied with all the timber it had ordered, that it was all of the quality ordered, that none supplied as treated was in fact untreated and that the whole issue of untreated timber being sold as treated timber was a wholly false concoction put together by the First Defendant who had simply got into financial difficulties and was unable to pay his bills. He denied that the First defendant had ever complained about the quality of timber supplied. After receiving the letter of 1 May he visited the First Defendant's premises but none of his timber was there. out the same the ThirdThirdThird Defendant promised to pay him what he was owed. They agreed to meet at tbi Habib Bank but the Thirdndant never arrived.

Mr. Khanshown DD4, a 4 a 4 page document prepared by they the Ministry of Agriculture, Fisheries arests. This document shows that ten samples of Fiji Pine dene described as originating from the Plaintiff were tested on 4 May 1998. All the samples were stained blue (unlike untreated pine which is white) but upon being tested they all produced 100% failure rates both in H2 preservation penetration and H2 preservation loading. Mr. Khan told me that thedThird Defendant had never complained to him about the quality of the timber supplied and that he had never been told that the timber was being sent for testing0; Although the analysis showed that the timber came from trom the Plaintiff Mr. Khan told me that it might well have come from somewhere else. He pointed out that the packet numbers column on page 4 of the Document DD4 was not filled in.

I have tothat I was nots not much impressed with Mr. Khan's evidence but when the Defence called Mr. Hemant Kumar, a Forestry and Timber rvation Officer with 27 years of experience with the Forestry Department my unfavourable imle impression of Mr. Khan was transformed into simple disbelief. Witirable lucidity and pald palpable sincerity Mr. Kumar carefully explained how samples of timber are selected at random for testing, how the testing is done and what the results show. While thket numbers had inad indeed inadvertently omitted from DD4 page 4 his own contemporaneous diary notes, to which he referred without objection, showed the packeters of the sample timbers to have been 772, 862, 875, 868, 868, and 776 which numbers coincide precisely with packets of timber delivered by the Plaintiff to the First Defendant in February 1998 (see PD 65, 66 & 67). Fumore, he told me that alat all timber has to be branded or otherwise indelibly marked when leaving its sawmill and that the timber which was examined was marked3H2 which happens to be the Plaintiff's brand. Mr. Nar. Nagin'sestion than that the brand might somehow have been falsified by someone with a grudge against the Plaintiff was explained in detail to be too far fetched to be seriously worth considering.
;
The Third Defendant whnt who is the First Defendant's Director was the last witness. He exed that the First Deft Defendant was a family business now in its 7th year. In 1997 and 1998 it purchaurchased timber from the Plaintiff. In late 19d early 19 beganbegan to receive complaints from customers mers about the quality of the so-called treated timber which he had been sg.&#1e complained to M to Mr. Khan. ked Mr. Khan to take $13,0$13,000 worth of timber away away but Mr. Khan never collected it. Heed with Mr. Nagin that shat some of the cheques which he had given Mr. Khan had been returned by the bank but he denied that thet Defendant was ever in anything but short term cash flow difficulties. Partly, he tohe told mes whis was because the Plaintiff began to dump such large quantities of timber on him that he was unable to sell it in time to pay for it. But, he explainven iheque eque did "bounce" he made good the debt in due cdue course, either by paying cash or by issuing another cheque which was hed.

The Third Defendant me d me that his case was simply that he wanted to be o be credited for the timber which he had bought as treated timber at a rate of at least $400 per cubic mwhen in fain fact he had been supplied with untreated timber which was worth $100 per cubic meter less.

Given the exceptly favo favourable impression made by Mr. Kumar the 3rd Deft's evidence really did no d no more than confirm the view which I had provisionally reached which was that there was not the slighteubt that the Plaintiff had had supplied the First Defendant with a substantial amount of timber which was passed off as treated when in fact it was not. Altho would imagine that that there are few tricks of the trade of which the Third Defendant is ignorant I found his evidence to be generally frank and straightforward and in some ways refreshingly modest. Although Mr. Nagin plaonsiconsiderable emphasis on the apparent disappearance of $13,000 worth of timber from outside the First Defendant's Timber Yar I accept that the Third Defendant's evidence was somewhat fragile on this point I nevertheertheless find that the timber was in fact untreated and unwanted and not of the quality ordered and that the Plaintiff was given the opportunity and indeed invited to take it away. I do not belie. Khan's evis evidence that he visited the yard and found the timber gone. In the circumstances not snot see how the Defendants can be held accountable for the timbers disappearance.

ready explained the acse acs as placed before me were somewhat unsatisfactory and I am not able to verify them. 160; Accordinglwill give tive the parties onth to apply for further directions in the event that reca recalculations are required. Meanwhile I for the Defendefendants onclaim and the counterclaim. The Plai's claim is m is d is dismissed.

Plaintiff's claim dismissed. Judgment for Defendants on counterclaim.

Marie Chan