Extreme Business Solutions v Jinadasa - Judgment [2007] KIHC 29; Civil Case 57 of 2006 (1 March 2007)

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

High Court Civil Case 57 of 2006

Between:

EXTREME BUSINESS SOLUTIONS
Plaintiff

And:

JANENDRA JINADASA
Defendant

For the Plaintiff: Ms Botika Maitinnara
For the Defendant: Ms Berenike Iuta

Date of Hearing: 28 February 2007

JUDGMENT

Claim for balance due on payment for goods sent on consignment by the plaintiff to the defendant: counterclaim by defendant for faulty goods supplied and lack of support services.

The plaintiff, trading under the name "Extreme Business Solutions", a company registered in Fiji and New Zealand, supplied on consignment electronic goods to the defendant, a retailer in Kiribati trading under the name "Kiribati Online". There were perhaps as many as six consignments in 2004 and 2005. Some payments were made in relation to the first and second consignments but nothing since. Trading between the parties has been suspended.

The plaintiff had one witness, Mr Willie Honming Kwansing, consultant to the plaintiff. He made the arrangements with the defendant in the first place and has acted for the plaintiff in its business relationship with the defendant. I have no hesitation in accepting Mr Honming as a truthful and reliable witness. I was impressed by his reasonableness and his expressed willingness to continue discussions with the defendant about what is described in the Kiribati Online Sales Report (Exhibit D1) as "problem stock". Mr Honming proved documents (Exhibits P1 and P2) from the business records of the plaintiff which shew the amount owing by the defendant.

Exhibit P1(a and b), the Kiribati Online Sales Report dated 9/4/2005 prepared by the defendant, shews a balance owing to the plaintiff of $84,323.

Exhibit P2 is what I may call a hybrid document. It is an invoice sent by the plaintiff to the defendant shewing an amount due of $40,560. The defendant has over printed and added to it. The additions are three columns (headed "Status", "Paid" and "TT Date") and comments under the heading "TT Dates" to the right of the original document. The additions shew total payments by the defendant of $17,605 which would leave a balance owing by him on the invoice of $22,955. Mr Honming denied that any of the payments had been made: the total due is as stated on the invoice originally prepared, $40,560.

The amount of the claim on the document is $84,332 plus $40,560 - $124,892. Mr Honming said that he had several times done a stock take and checked the goods on the shelves of Kiribati Online. The defendant has acknowledged to him his indebtedness and has made offers, never kept, of payment.

Ms Iuta appeared for the defendant/plaintiff by counterclaim. She had no client and no firm instructions. She cross examined Mr Honming but had no evidence to call.

The result was inevitable. The plaintiff succeeds on the claim.

As far as the counterclaim for $85,142.58 is concerned, it was of course not proved. Mr Honming, to the contrary, denied the amount but said he would be prepared on behalf of the plaintiff to see the "problem stock" (set out in Exhibit D1) and take back whatever genuinely was faulty. That being so, out of an abundance of fairness to the defendant, rather than dismissing the counterclaim outright, the defendant will be non-suited on it. Perhaps even now the parties may be able to come to an arrangement.

Judgment for the plaintiff on the claim for $124,892. The defendant is non-suited on the counterclaim.

I note that on 6th November 2006 when I granted the defendant’s application to set aside judgment by default I made an order in favour of the plaintiff for $100 costs thrown away.

Dated the 1st day of March 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice