Kiribati Port Authority v Mikaere (trading as Shipping Agency of Kiribati) [2020] KIHC 21; Civil Case 7 of 2015 (8 October 2020)

IN THE HIGH COURT OF KIRIBATI 2020

CIVIL CASE NO. 7 OF 2015

[KIRIBATI PORT AUTHORITY PLAINTIFF
[
BETWEEN [AND
[
[TEKAAI MIKAERE T/A SHIPPING AGENCY
[OF KIRIBATI DEFENDANT

Before: The Hon Chief Justice Sir John Muria

11 November 2017
Submissions: 16 November 2017
8 December 2017

Ms Elsie Karakaua for Plaintiff
Mr Aomoro Amten for Defendant

JUDGMENT

Muria, CJ: By its specially Indorsed writ with Statement of Claim the plaintiff claims the sum of $28,670.24 together with general damages, interest and costs. The plaintiff’s claim arose out of four (4) Invoices issued by the plaintiff for services rendered to the defendant. The defendant admits receiving Invoices #0000903a, 00002800 and 00000904a. The defendant denied receiving Invoice #00003100. In respect of Invoice #00002800, the defendant accepts partly liable on that Invoice only in the sum of $6,105.40.

Brief background

2. The plaintiff company provides port services and other services related to, and incidental to port services in Kiribati. Its main office is in Betio, South Tarawa and has its Branch in Kiritimati Island.

3. The plaintiff claims that it had provided port services to the defendant between March 2013 and March 2014. For the services provided, the plaintiff issued invoices to the defendant. The total amount shown by the invoices is $28,670.24 AUD. At the commencement of the proceedings, the plaintiff abandoned its claim based on Invoices 903a and 904a. The plaintiff maintains its claim based on Invoices 2800, 3100 and 3415 totalling in the sum of $28,219.85.

The Invoices

4. The plaintiff relies on the following invoices as the basis for its claim against the defendants.

(a) Invoice 2800 was for various charges including Port charge for
MS Regatta calling Kiritimati port (29 December 2011) and leaving same date, Port dues, harbour control fee, Environment Levy, Passenger charges, off-shore and on-shore passenger charges: $8,612.90.

(b) Invoice 3100 was for Port charges for Silver Spirit which called in at Kiritimati Island on Port dues, harbour control and Environment charges: $7,251.80. Like Invoice 2800, Invoice 3100 has not yet been paid and it is still outstanding.

(c) Invoice 3415 was for Port charges for Fu Rong Quan Voy. 01 calling into Kiritimati Island on 5 March 2014 and left on 23 March 2014; Port dues, pilotage and Environment charge. This Invoice amounts to $12,355.15.

5. The defendant did not dispute receiving Invoice #2800. The defendant, however, disputes the quantum that it should pay under this invoice. I will return to this Invoice later. For now, I am satisfied that this Invoice #2800 properly forms part of the plaintiff’s case. It was pleaded in the plaintiff’s Statement of Claim.

Invoice #3100

6. I deal first with Invoice #3100. There is no dispute that Invoice #3100 forms part of the plaintiff’s claim. It was pleaded in the plaintiff’s Statement of Claim and the defendant pleaded to it in its defence denying receiving the said Invoice #3100. As Counsel for the defendant submitted, “The issue is simple; whether or not the defendant received the said invoice”. We have to resolve that issue now.

7. The plaintiff’s evidence in support of its argument that the defendant received Invoice #3100 is contained in the affidavit of Bita Tekabu who was the Accountant employed by the plaintiff. Mr Tekabu’s affidavit sworn to on
30 October 2017 exhibits a letter dated 25 November 2014 from the plaintiff’s Finance Manager to the defendant demanding payment of the sum of $108,493.62 as outstanding debt owed by the defendant to the plaintiff.
Mr Tekabu’s affidavit also attached (“B1”) copies of the Invoices said to have not been settled by the defendant and were still outstanding. One such Invoice was Invoice #3100.

8. Bita Tekabu’s affidavit also shows that attached to the plaintiff’s Finance Manager’s letter was also exhibit “B2” which is a copy of the page in the plaintiff’s Register Book which shows that on 16 December 2014, the plaintiff delivered the plaintiff’s Finance Manager’s letter on the “Long Outstanding Debt” to the defendant and was received on behalf of the defendant by one Nooa. There was no objection by the defendant at the trial to the admission of letter from the plaintiff’s Finance Manager, “B1” with a copy of the Statement showing the Invoices, as well as copies of the Invoices themselves. There was also no objection at the trial as to the admission of a copy of the page of the Register (“B2”) showing delivery and receipt by one Nooa of “B1”.

9. It is also to be noted that Nooa was never called to counter the evidence from the plaintiff that Nooa received “B1” and signed for it. The documentary evidence, “B2”, admitted without objection by the defence must speak for itself since objection to its admission has not been taken at the trial.

10. The evidence from the plaintiff to show that the defendant was served with copies of the Invoices from the plaintiff was contained in the affidavit of
Bita Tekabu. Attached to Mr Tekabu’s affidavit were annexures “B1” (the plaintiff’s Finance Manager’s letter together with copies of the Invoices) and “B2” a copy of the page of the Register showing delivery and receipt of “B1” by one Nooa. As that evidence had been admitted without objection by the defendant, it must be taken that the parties have agreed to admit all that evidence in the present proceedings, without the need to call the maker of “B1” and “B2” as contended for by Counsel for the defendant, relying on section 26(1) of the Evidence Act 2003.

11. Section 26(1) of the Evidence Act 2003 states that:

“26(1) In any legal proceeding where direct oral evidence of a fact would be admissible, a document containing a statement tending to establish that fact shall be admissible as evidence towards proof of that fact, if the document is, or forms part of a record relating to any business, and made in the course of that business from information supplied, (whether directly or indirectly), by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied, and the person who supplied the information recorded in the statement in question is called as a witness in the proceeding”.

12. However, subsections (4)(d) and (e) of section 26 save the need to call such witnesses where parties consent to forego calling such witnesses. Subsections (4)(d) and (e) provide:

“(4) Notwithstanding anything to the contrary in the foregoing provisions of this section, the condition that the maker of the statement or the person who supplied the information, be called as a witness need not be satisfied where -

(d) no party to the proceeding required the attendance of the witness; or

(e) the parties to the proceedings consent to his not being required to attend”.

13. Neither party in the present case required the attendance of the person who made the entry onto the page of the Register showing delivery of the documents to the defendant on 16 December 2014 nor required the attendance of the person who received the documents “B1” and “B2” on
16 December 2014 to give evidence to confirm or deny receipt of the same. Both parties must be taken to have agreed not to require attendance of such persons or witnesses and consented to accept into evidence “B1” and “B2” annexed to Mr Tekabu’s affidavit.

14. Despite the denial by the defendant of the receipt of Invoice #3100, on the evidence before the Court, I am satisfied that the defendant received the Invoice #3100, if not before, certainly on 16 December 2014. That Invoice was part of the documents in “B1” annexed to the affidavit of Mr Bita Tekabu sworn-to on 30 October 2017. As there is no dispute as to the amount due under the Invoice #3100, I find the defendant liable to pay the sum of $7,251.80 under the said Invoice.

Invoice #3415

15. I turn now to Invoice #3415. The plaintiff’s case is that this Invoice is part of the plaintiff’s claim for port charges, port dues, pilotage and environment charges. The total amount under this Invoice is $12,355.15. The defendant’s argument is that Invoice #3415 could not form part of the plaintiff’s case since it was not pleaded in the plaintiff’s Statement of Claim. The list of Invoices attached to and served with the Writ of Summons on the defendant did not include Invoice #3415. On the evidence before the Court, I feel the defendant is correct to say that Invoice #3415 was not included in the list of Invoices served with the Writ of Summons. The plaintiff never sought to argue otherwise.

16. The defendant filed its Defence on 17 March 2015 and pleaded in its Defence to Invoices 0000903a, 0000904a, 00002800 and 00003100. Invoice #3415 was not mentioned in the defendant’s Defence and not pleaded to. The only rational conclusion is that it was not pleaded in the plaintiff’s Statement of Claim and the defendant could not plead in Defence to something that was not served on it.

17. On the evidence, I find that Invoice #3415 first emerged during discovery and inspection process following Orders on Directions. That was well after the pleadings closed. The said Invoice, as confirmed by the plaintiff, was part of the documents attached to the plaintiff’s Finance Manager disclosed during the discovery and inspection process. Clearly the plaintiff realized that it omitted to include Invoice #3415 in its statement of claim and have now sought to sneak it in along with the other Invoices at the Discovery and Inspection process. The plaintiff cannot simply do that. No application by the plaintiff to amend its Statement of Claim in order to include Invoice #3415 in its claim. I am satisfied that Invoice #3415 was not included with the Invoices pleaded in the plaintiff’s Statement of Claim served on the defendant. The plaintiff is not entitled to rely on it in this present action and it is rejected.

Invoice #2800

18. I return to Invoice #2800. The defendant has not disputed receiving this Invoice. The dispute is on the amount that the defendant is said to have owed the plaintiff. That amount is $8,612.00.

19. On Invoice #2800, the defendant disputed the amounts representing charges for Passengers in the sum of $2,277.50 ($937.50 offshore passengers and $1,340.00 onshore passengers), charge for use of Buoys in the sum of $150.00; and the charge for Boat Hire in the sum of $80.00. The total sum disputed by the defendant is $2,507.50. The plaintiff will therefore only have to prove its claim on the disputed items on this Invoice.

20. I deal first with the dispute between the parties over the receipt or
non-receipt of the defendant’s letter of 20 February 2012 to the plaintiff’s OIC at Kiritimati Island. In that letter, the defendant disputed the plaintiff’s claims on charges for offshore and onshore passengers, charge for use of Buoys and charge for Boat Hire. The first question to be determined is whether the plaintiff received the defendant’s letter or not.

21. The defendant’s evidence is that upon receipt of Invoice # 2800 from the plaintiff, the defendant wrote to the plaintiff on 20 February 2012 disputing the claims for offshore and onshore passengers, for deployment of buoys and boat hire. The defendant’s letter states as follows:

“20 February 2012

OIC

KPA

Kiritimati Branch

London

Dear Sir,

Re. Inv # 00002800 dated 05/01/12

Thank you for your above invoice which we received today.

However, we returned herewith your above invoice being rejected on the following grounds.

1. Need sign documents from by vessel confirming number of passengers went ashore and number of passengers did stay on board
   
2. Deployment of bouys is not stated on the Port tariff and the boat hire charge of $80.00 was not match with the Tug hire rates stated on the tariff.
   

Please adjust the said invoice and resubmit for settlement.

Thank you.

Yours faithfully,

(Sgd) Tekaai Mikaere

Manager”

22. The plaintiff denied receiving the defendant’s letter. That denial is based on the evidence of Bita Tekabu who was the plaintiff’s Accountant. The defendant’s letter of 20 February 2012 was addressed to OIC of the plaintiff in Kiritimati Island. The witness, Bita Tekabu, might or might not have seen the letter and the plaintiff would do well to call its Kiritimati Island Branch OIC to testify in relation to the receipt of the defendant’s letter. The witness,
Bita Tekabu, himself stated that he might not have seen the letter because it was addressed to the OIC. At the disclosure stage, the defendant’s letter of
20 February 2012 to the OIC of its Kiritimati Island Branch was made known to the plaintiff. Only the OIC could shed light to that letter. The plaintiff had chosen not to call the OIC to do that. The onus is on the plaintiff to prove its claim, especially on those parts of the claim disputed by the defendant.

23. On the evidence before the Court, the plaintiff has failed to establish the suggestion that it did not receive the defendant’s letter addressed to its OIC in Kiritimati Island. I accept the defendant’s evidence, on balance, that he wrote to the OIC on 20 February 2012 and that the OIC received the said letter.

24. I now turn to the disputed items under Invoice #2800. The first item is the plaintiff’s claim on charges for offshore and onshore passengers in the sum of $2,277.50 ($937.50 for offshore passengers and $1,340.00 for onshore passengers). The only evidence produced by the plaintiff to support this claim came from Bita Tekabu who simply told the Court that there was no list of onshore passengers nor was there one for the offshore passengers either. He said in Court, and in his affidavit evidence, that the charge on the passengers was based on the recommendation from the plaintiff’s onshore officers at its Kiritimati Island Branch. That recommendation was said to have been based on the data recorded by one of the plaintiff’s staff at Kiritimati Island. In the court’s view, without the evidence of that staff who was said to have recorded the list of passengers, the evidence given by Bita Tekabu on this item is pure conjecture and hearsay. That evidence is rejected.

25. On the charge for the use of Buoys in the sum of $150.00, the defendant disputed the charge on the basis that it was not authorised under the plaintiff’s Port Tariffs. The Court agrees with the defendant’s contention that the deployment of Buoys is not a chargeable item under the plaintiff’s Port Tariffs and as such the plaintiff was not entitled to charge for it. However, the absence of the item from the Tariff List did not necessarily preclude the parties from entering into an arrangement between them for the use of the buoys for a charge. The general principle of English law of contract is that the parties are free to contract as they see fit: Suisse Atlantique –v- NV Rotterdamsche [1967] 1 AC 361; and when they entered into such contract freely and voluntarily, their contract will be enforced by the Court: Printing and Numerical Registering Co. –v- Sampson [1875] UKLawRpEq 48; 19 Eq. 462 (1875).

26. Accepting that deployment of buoys was not part of the plaintiff’s Tariffs charges, however, was there an agreement between the parties for the use of the buoys in this case? The existence of that agreement must be demonstrated on the evidence before the Court and the onus is on the plaintiff to do so.

27. The plaintiff’s evidence on the deployment of the Buoys came from
Bita Tekabu’s affidavit sworn to on 15 March 2016, paragraph 9 which states:

“9. The rate of deploying buoys although not indicated in the tariff was such rate agreed by the agent for the Defendant in order to cater for overtime costs and wet allowance for the Plaintiff’s staff. Such agreement was made with Tania Murdoch who was agent for the Defendant in Kiribati”.

28. Apart from what was stated in paragraph 9 of Tekabu’s affidavit, there are no other particulars of the agreement given by Tekabu. The date of the alleged agreement was not stated nor was the rate of the charge for using the buoys mentioned. It is therefore not surprising that the defendant refused to pay the charge for deploying the buoys as he (the defendant) stated in paragraph 2(c) of his affidavit sworn to on 17 March 2015 that:

“the charge relating to the deployment of buoys were not stated or allowed under the Port Tariff”.

29. The plaintiff contended that the agreement was made with one Tania Murdoch who was said to be the defendant’s agent at Kiritimati Island. No attempt has been made to have Tania Murdoch testify as to the purported agreement.

30. In the Court’s view, the burden is on the plaintiff to establish the existence of that agreement. It is not for the defendant to help the plaintiff established the existence of the purported agreement. If the plaintiff had established the existence of the agreement, then the burden would shift to the defendant to rebut it. No evidence has been adduced to establish the existence of the agreement in this case. That, together with the admitted fact that deployment of buoys was not a chargeable item in the defendant’s Port Tariffs, must be accepted that the charge for deployment of buoys in the sum of $150.00 cannot succeed. The defendant is entitled to refuse to pay the charge of $150.00 for deployment of buoys. The charge of $150.00 for deployment of buoys is rejected.

31. The charge on Boat Hire stands on a different footing than that of deployment of buoys. The boat hire charge is part of the chargeable items under the Port Tariff. The plaintiff was entitled to charge for hiring of boats when providing services to the defendant. The only question to be resolved is the amount of the charge since the plaintiff charged the defendant a rate higher than that stated in the Port Tariff. This the plaintiff accepted, but said that it charged a different rate because it had to hire a different boat because its own boat was not operational. The question is therefore what should be the proper amount for the defendant to pay?

32. In the Court’s view the proper rate to apply ought to be the same rate as that stated in the Port Tariff, unless prior arrangement between the boat owner, the defendant and the plaintiff had been agreed to as to a different rate, other than that set out in the Port Tariff. If the private boat owner insisted on the higher rate for the hiring of his boat, the difference between the Tariff rate and the boat owner’s rate, would be the responsibility of the plaintiff to settle and could not be passed on to the defendant, unless otherwise agreed to by the parties.

33. There is no evidence that any agreement has been reached between the plaintiff and defendant as to how the charge for the private boat hire should be paid. The defendant is therefore only liable to pay the Boat Hire charge as stipulated in the Port Tariff rate which in this case should be either $20.00 or $40.00. The defendant accepts either rate as set out in the Tariff. I therefore find that the defendant is only liable to pay for the boat hire in accordance with the Port Tariff rate. That amount is $40.00.

Conclusion

34. On the evidence before the Court and in the light of what I have stated in this judgment, I find that the plaintiff has only partly succeeded on its claim against the defendant on the disputed Invoices, namely Invoices Nos 2800, 3100 and 3415. On Invoice #2800, the defendant has succeeded in establishing that he is not liable to pay $2,507.50 and from the $8,612.90 leaving the balance payable in the sum of $6,105.40. However, to that sum, the amount of $40.00 representing the plaintiff’s Tariff rate on boat hire must be added. The defendant is therefore only liable to pay the sum of $6,145.40 to the plaintiff on Invoice #2800.

35. On Invoice #3100, there is no dispute as to the amount due to the plaintiff. The only dispute is as to the receipt of the Invoice. I find that the defendant had received the Invoice #3100 on 16 December 2014, if not before. The defendant is liable to pay the sum of $7,251.80 due under Invoice #3100 to the plaintiff.

36. On Invoice #3415, the plaintiff failed to plead this Invoice in its Statement of Claim served on the defendant. The plaintiff’s claim of $12,355.15 under Invoice #3415 is rejected.

37. Accordingly there will be judgment for the plaintiff in the sum of $13,397.20 out of its claim of $28,219.85.

38. The plaintiff seeks interest on damages in its Statement of Claim. The plaintiff is entitled to interest on judgment in the usual rate of 5% per annum until judgment is paid in full.

39. As the plaintiff only partly succeeds, the Court exercises its discretion not to order costs in this case. Each party to bear its own costs.

40. ORDER: 1. Judgment for the plaintiff in the sum of $13,397.20

2. Interest on judgment at 5% per annum until paid in full.

3. No order on costs.

Dated the 8^th day of October 2020

SIR JOHN MURIA
Chief Justice