Raghwan Construction Co. Ltd v Wormald Security Serviced Ltd [1988] FijiLawRp 5; [1988] 34 FLR 124 (3 March 1988)

[1988] 34 FLR 124

COURT OF APPEAL OF FIJI

Civil Jurisdiction

RAGHWAN CONSTRUCTION CO. LTD

v

WORMALD SECURITY SERVICES LTD

Tuivaga, P., Tikaram, J.A., Palmer, J.

Hearing: 21 November, 1988.
Judgment: 3 March, 1988

(Contract - supply of material and installation judgment very brief - no finding of specific facts-extent of trial judge's duty to make detailed findings of fact - result here decided on credibility-different if case not one of credibility - trial Judge on the evidence entitled to reach stated conclusion - failure to find specific facts did not vitiate judgment or hamper the appeal court).

V. Parmanandam for the Appellant
R. C. Patel for the Respondent.

Appeal by Raghwan Construction Co. Ltd. (defendant) against a verdict for $2,697.30 plus interest given on 21 September 1987 by the Supreme Court (as it then was) in favour of Wormald Security Services Ltd (plaintiff) for the balance of the contract price for supplying materials and labour to instal a 'Visiphone' Security System at a block of apartments owned by the defendant. The total price had been $10,500 leaving the balance claimed. Defendant had contended-

"The system installed differed from that ordered was unsatisfactory, a camera, part of the system had not been supplied."

Grounds of appeal were-

(1) That the learned Trial Judge erred in law and fact when he held that the defendant had proved its claim having failed to analyse the evidence as to the installation of the equipment and as to its adequacy or fault:

(2) The learned Trial Judge erred in failing to make a finding as to whether the security system was in fact secured, it being a requirement of the contract.

The principal complaint of the defendant which sought a retrial was that in his very brief judgment the trial Judge failed to analyse the evidence and make specific findings on the various issues: and that he reversed the onus of proof.

The judgment read-

"I am satisfied on the evidence before me that the plaintiff company has proved its claim. I do not accept the evidence of, Mr Raghwan, I found it specious and not in accord with the obvious facts of proper business management or arrangements. In short I do not think he was telling the whole truth. I find for the plaintiff in the sum of $2,697.30."

There was no dispute that-

(i) The plaintiff gave a written quote on 20 June 1984 to provide one 20 button type outdoor unit TD 20S and associated equipment for $15,000 odd and that two days later.

(ii) The defendant placed a written order to (2) "provide complete work to provide all visiphone T.D. system quoted $13000."

Issues at the trial were that-

1. Plaintiff claimed the contract was for 1 (20) button system; the defendant said the quote was changed to (2) 10 button systems instead.

2. Defendant contended the installation of a camera was part of the installation to be provided; the plaintiff denied this.

3. The defendant claimed that the system was not working satisfactorily and required the installation of a camera;

4. The defendant claimed that his company did some work, namely chipping for the laying of cables, at the plaintiff's request and at an expense to it of $1,150.00.

Held: Though the judgment did not record specific findings as to each of these issues; where there was a conflict, the learned Judge preferred the plaintiff's evidence to that of the defendant he decided the matter on credibility.

There was nothing in writing to support the claimed change of systems; nor any request to have the camera repaired when it failed, or returned when it was removed. As to issue 3 there had been no plea that it was a term express, implied or statutory that it would perform satisfactorily. Further, the plaintiff's evidence was that the defendant did not complain of any failure of the equipment to work satisfactorily.

There was no set-off counterclaim that the defendant did the work referred to in 4 or at the expense of the plaintiff.

The extent of a trial Judge's duty to give reasons is referred to in Petitt v. Dunkley (1971) l NSW Law Reports 376. The principle that he should do so was reaffirmed. However, in Petitt no reasons at all were given. Here the brevity of the Reasons had not prevented-

"A proper understanding at the basis upon which the verdict entered has been reached." (per Asprey, J.A.)

Reference was made to the proposition stated by Viscount Simonds (p. 327) in Benmax v. Austin Motor Co. Ltd., (1955) All ER 326 (HL)-

"A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the interference of fact whether or not the defendant had been negligent."

But in Benmax the question was not, as in the instant case, credibility (ibid p. 327). There the House of Lords warned against differing from the trial Judge on a matter of credibility. See per, Lord Reid at p. 328. Still, a Court of Appeal may well differ from a trial Judge on the inference to be drawn from facts he has found.

The trial Judge had seen and heard the witnesses and gave his reasons for his verdict by reference to credibility. It could not be said he was not entitled to come to the view he did know that his failure to make findings on individual issues vitiated his judgment or hampered the Court in dealing with the appeal. It is "dangerous", as the defendant argued to leave so brief a judgment without more detailed findings as a precedent for the future. This however may have been referrable to current "exigent circumstances" which may have exerted time pressures on the trial Judge. Having regarded to the evidence, to which reference was made, the finding as to interest should not be disturbed.

Appeal dismissed.

Defendant to pay costs.

Cases referred to:

Petitt v. Dunkley (1971) 1 NSW Law Reports 376
Benmax v. Austin Motor Co., Ltd., (1955) All ER 326 (HL).

Judgment of the Court

This is an Appeal against a judgment given on the 21st September 1987 by the Supreme Court of Fiji (now renamed the High Court) in which there was a verdict for the Plaintiff for the sum of $2,697.30 plus interest at the rate of 10% from the 19th June 1985 to judgment and costs to be taxed.