Kwong (trading as Taotin Trading) v Attorney General iro Ministry of Public Works and Utilities [2023] KIHC 26; Civil Case 4 of 2015 (13 October 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 4 of 2015

BETWEEN:
GEORGE TIARITE KWONG T/A TAOTIN TRADING
Plaintiff

AND:
ATTORNEY GENERAL IRO MINISTRY OF PUBLIC WORKS AND UTILITIES
Defendant

Date of Hearing: 6 September 2023,15&18 Sept Written submissions
Date of Judgment: 13 October 2023

Appearances: Ms. Botika Maitinnara for the Plaintiff
Mr. Monoo Mweretaka for the Defendant

JUDGMENT

1. Brief Facts

1.1. The plaintiff claims for payment of unpaid invoices raised against the defendant. The total amount initially claimed on the statement of claim is $216,531.20. After reconciliation conducted in 2015, the defendant had paid $121,984.94, leaving an amount of $82,643.26 as outstanding.

1.2. At the trial of this suit, the outstanding amount claimed by the plaintiff is $82,643.26.

2. Proceedings done in respect of the case
   

2.1. One of the issues raised by the defendant is the long delay in handling this case, which contributed to the loss of their invoices or records. The defendant submits that they could not find copies of some of their invoices; the amount claimed could have been less had they managed to find all the invoices, as some might have been paid off.

2.2. It is, therefore, essential to state the background information regarding the proceedings conducted for this case, from filing to hearing. The court’s file notes show the following events;

• - The Writ of Summons with Statement of Claim was filed on 14 January 2015
• - Memorandum of Appearance filed on 3 March 2015
• - Defence filed on 20 March 2015
• - On 23 April 2015, parties were given until 22 May 2015 to do their reconciliation.
• - On 9 June or July (month not very clear) 2015, parties were given more time to complete their reconciliation.
• - On 2 September 2015, only the plaintiff appeared, and the case was heard.
• - On 11 November 2015, only the defendant appeared, and the case was adjourned to 24 November 2015. (The record does not state whether the case was listed for mention or judgment.)
• - On 24 November 2015, only the defendant appeared, and the case was adjourned to 30 November 2015. The defendant was tasked to inform the plaintiff of the mention date. (The record also does not state whether the case was listed for mention or other purposes.)
• - On 30 November 2015, the plaintiff and defendant did not appear; no reason was given to the court. The plaintiff was tasked to explain why they failed to appear and whether or not the defendant was informed of the mention date. This was conveyed by a letter dated 1 January 2016. A response from the defendant’s Counsel dated 10 February 2016 stated that a different date was given to them. Nothing happened after that.
  

2.3 I started presiding over this case at the end of October 2022; the case was listed for mention before me on 1 December 2022. On that date, the parties were tasked to confirm the status of the case. On 29 December 2022, the parties stated that the case was still in the reconciliation process; they could not complete it, so they requested more time. The case was called six times after that, mainly for the defendant to try to find their supporting documents/invoices. On 18 April, the plaintiff made a reasonable statement that the defendant probably could not find the documents now since they also could not find them in 2015. On 1 August, Counsel for the defendant confirmed that they found no record, so the hearing could be fixed. The court fixed the hearing for 15 August. On 25 August this year, the defendant made an offer for $49,910.50, but the plaintiff refused to accept it. On 30 August, the case was listed for hearing, but only the plaintiff came, so the matter was fixed for hearing on 6 September, and it was finally heard on that day.

3. Evidence Analysis
   

3.1 As stated above, the outstanding amount initially claimed of $216,531.20 was reduced to $82,643.26.

3.2 The defendant did not agree with this amount. The defendant submits that the plaintiff kept changing their amount so they had failed to make out their claim to the standard of proof, and there is a possibility that the amount would be less if more reconciliations were carried out. The defendant also submits that the delay in handling this case resulted in the defendant having difficulty finding some of their invoices.

3.3 I must say that I disagree with the defendant. From the records shown in paragraphs 2.2 and 2.3 above, the parties were given more than enough time to do their reconciliation. This started in 2015 and continued in 2022, when the case was called again. I agree with the plaintiff that when the defendant could not find some of their supporting documents in 2015, they probably could not find them now. They were allowed several times to continue looking for these documents this year but could not locate them. It is just not fair to prolong the case anymore when it is clear that they could not find these documents.

3.4 So we have two figures, $82,643.26 by the plaintiff and $49,910.51 by the defendant. From the defendant’s evidence, when their witness gave evidence and cross-examined, I can confirm that in the last reconciliation done in 2015, the amount paid by the defendant was $121,981.94, and the outstanding amount was $94,549.26. This was stated in the defendant’s letter to the plaintiff dated 27 March 2015. (marked AT-1). Through cross-examination, this witness agreed that the defendant made no payment to the plaintiff after the date of that letter.

3.5 Therefore, from this amount, $94,549.26, Invoice No. 00013309, in the sum of $6,956.00 is to be deducted as a double entry. Also, Invoice No. 196507 in the sum of $4950.00 must be deducted as it was not meant for the defendant. Thus, after deduction, this leaves an outstanding balance of $82,643.26.

3.6 The defendant submits that Invoice No. 01425 for $3,160 should also be deducted as it was not meant for them. Their witness testified that this invoice has a big cross (X) marked on it, which means it was not intended for them. The plaintiff’s witness confirmed that the original copy of this invoice was addressed to the defendant. In cross-examination, it was confirmed that the invoice was kept by the defendant all along, so the plaintiff could not be the one who marked it with a big X. I believe the evidence by the plaintiff regarding this invoice. Therefore, this invoice should not be deducted.

3.7 Invoice No. 0009549 for $69,045.50, the defendant agreed that they have only paid 50%, which is $34522.75. However, they insisted that the other 50% should not be included in this claim as the plaintiff must raise another invoice before they can pay. The plaintiff’s evidence is that they cannot raise another invoice as they only work on one invoice that they had raised. This is a business standard protocol. Whether this is true or not, I will allow this amount to be included in this claim as there is no evidence by the defendant to show that they had informed the plaintiff of the need to raise another invoice for the other 50%. This amount has already been added to the total amount claimed of $82,643.26.

4. Conclusion
   

4.1 For the above reasons, I find the defendant liable for the outstanding $82,643.26 invoices.

4.2 Cost to the plaintiff to be taxed if not agreed.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice