Betio Shipyard v Kiribati Ports Authority - Judgment [2007] KIHC 22; Civil Case 33 of 2006 (26 January 2007)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 33 of 2006

Between:

BETIO SHIPYARD
Plaintiff

And:

KIRIBATI PORTS AUTHORITY
Defendant

For the Plaintiff: Ms Botika Maitinnara
For the Defendant: Ms Jane Alver

Date of Hearing: 25 January 2007

JUDGMENT

On 20 June 2006 Shipyard issued this Writ claiming $10,250.35, being the balance owing to it since 6 December 2001, following the supply of "products" to the Kiribati Ports Authority. By the time of hearing yesterday the plaintiff had done a reconciliation and reduced the amount to $6,496.05.

In 2005 the Shipyard had a bad fire. Business records were burnt. By happy chance the night before the fire Mr Kane Tebuariki, accounts receivable clerk, took home the debtors’ ledger to work on it. The only records left of transactions between plaintiff and defendant are the ledger. Mr Tebuariki proved them as business records of the plaintiff. Ms Maitinnara relied on the ledger entries to prove the debt.

Mr Anterea Tawaia is at present acting as General Manager of the Ports Authority. His permanent position is Finance Manager. Mr Tawaia explained that the KPA uses an "open invoice" system of accounting, a modified accrual system. When invoices from suppliers come in they pass through a number of hands before reaching the Finance Manager. They are then put in a folder and paid in due course. When the folder is empty the KPA has no debts to pay. The only records of payment kept are copies of the payment vouchers. Mr Tawaia has searched but can find no copy of a payment voucher which could be relevant to this claim. He acknowledged this may mean either that the Authority did not receive an invoice or an invoice may have been lost after receipt on the way to him as Finance Manager.

Mr Tawaia could not think to what transaction the claim may be related. There was a time when Shipyard was to slip a barge for the Authority but the arrangements did not proceed: perhaps the claim relates to that: or it may relate to some goods bought from Shipyard. Mr Tawaia could not be sure.

Mr Tawaia only ever had one telephone call from Mr Tebuariki reminding him that the Authority had not paid.

Ms Alver complained that her client had not been supplied with any documentation and the plaintiff had taken no action for years to claim payment, making it difficult for her client to meet the claim now. That may be so but the records of the plaintiff were burnt and the proceedings taken within the limitation period.

The plaintiff has the onus of proof on the balance of probabilities. I am sure both gentlemen were telling me honestly to the best of their ability what they believe to be the facts. Yet the evidence on both sides is flimsy. I was surprised that the plaintiff does not follow up invoices by sending statements. Equally the system used by the defendant, as described, looks lax.

To find against the plaintiff I would need to find that the ledger records are inaccurate either through carelessness or fabrication. The photocopy extract of the ledger (Exhibit P1) looks genuine. Ms Alver did not succeed in impugning its genuineness. I cannot make a finding that the ledger records are inaccurate. I find that the plaintiff has proved its case on the balance of probabilities.

There will be judgment for the plaintiff for $6,496.05.

Dated the 26th day of January 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice