Hearing: 28-29th September,1995; 23-24th October, 1995
& 7th November, 1995 - Judgment: 1st March 1996
Counsel: A. Radclyffe for the Plaintiff - F. WaleiWaleilia
for the Defendant
The plaintiff's claim is for payment due for services
rendered. In respect of two ships of the Defendant; the
Olifasia
II and the Liofai, at the ship-yard of the
Plaintiff at Tulagi. The Plaintiff claims the balance of
$14,923.22
as due and owing in respect of the Olifasia II, and $72,381.48 as the balance due and owing in
respect of the Liofai.
The Defendant on the other hand denies that he owes
the Plaintiff any money at all. He argues instead that
the Plaintiff
had either charged him for no work or
overcharged him for work done and that all his just dues
have been paid for.
The Plaintiff claims that the Olifasia II had been
taken to the plaintiff's ship-yard for repairs and
maintenance
in December 1989 until its release in March,
1991. The total charged for costs of materials and labour
from the
5th November, 1989 to 11th November, 1991 was
$45,672.05. The Plaintiff acknowledges receiving the
payment of the
sum of $30,639.66 from the Defendant.
Allowing for an adjustment of $109.17, the balance owing
came to $14,923.22.
The particulars of the materials and
labour costs as contained in the invoices sent to the
Defendant are set out
in paragraph 6 of the Statement of
Claim.
First, it is claimed that all of the plaintiff's
invoices had been paid in full, save for invoices numbers
908 and
909 (see paragraph 3(h) of the Statement of
defence fled 9 March 1993). As regarding invoice
numbers 908 and 909 it is alleged that these were queried
by the Defendant by letter of
26th June, 1990 (Exhibit
6). The Defendant further alleged that no response had
been received from the Plaintiff.
Unfortunately, it is
not made clear what the Defendant is claiming in respect
of those two invoices. Is he saying
that because the
Plaintiff did not respond to his queries that thereby he
is not entitled to pay for those invoices?
This will be
dealt with later in detail.
Secondly, the Defendant alleges in his counter-claim
that a number of payments (see list in counterclaim),
had not been credited by the Plaintiff in the Olifasia II
account.
The first witness, David Tiva confirmed that invoices
totalling the amount of $45,672.05 were sent out to the
Defendant.
The amount paid by the Defendant came to only
$30,639.66. An amount of $14 923.22 therefore remained
outstanding.
The second witness, Kipling Alavae, confirmed the
issue of the above invoices. He also recalled dealing
with the
query raised by the Defendant in the letter of
the 26th June 1990 (Exhibit 6). He stated that he
responded to that
complaint and pointed out that the
complaint was only about the invoice, and so requested
that further details
or description of the actual
complaint be provided to enable him to consider it. He
said that he did not receive
any further details of the
complaint from the Defendant. As far as he was concerned
therefore, that was the end
of the complaint of the
Defendant The amount of those invoices accordingly were
correct and should have been paid.
A number of cheques have also been made available to
the court as Exhibit 4 in support of the various payments
that
were alleged to have been made without being
credited. These are listed as follows:
Under cross-examination, the Defendant reiterated that
he was told by Derrick that only $4,000.00 was left. He
believed
therefore that he had paid for all those debts.
After the Defendant had given evidence, Kipling Alavae
was recalled to give evidence on the list of cheques
submitted
by the Defendant. This witness confirmed that
the first cheque dated 15/12/91 for $2,000.00 was
received on the
same date, and a receipt no. 22652 issued
and credited to the account of Olifasia II. The second
cheque dated 28/3/91
for $3,000.00 was received on the
2713191, and a receipt no. 22692 issued for the same
amount and credited to the
account of Olifasia II. The
third cheque for $1,600.00 was paid into a different
account for rental of a house
belonging to the Plaintiff
occupied by the Defendant for two months at $800.00 per
month. As for the fourth cheque
of $1,298.32, this
witness stated that he could not locate this in the
records of account of Olifasia II. He explained
that this
meant that it could not have been paid into that account.
He suggested that it could possibly have been
paid into
the stores account at their warehouse for materials, but
that he was not in a position to confirm this.
There are two items in dispute under this claim.
First, the invoice numbers 908 and 909 for $9,798.85. The
evidence
adduced by the Defendant in support of this item
is contained in the letter of 26th June, 1990, which
stated at
paragraphs 2 and 3 as follows:
Apart from the above piece of evidence, no other
evidence has been adduced in support.
The second item as pleaded, related to the payment of
a number of cheques, which it is alleged had not been
credited
by the Plaintiff into the account of Olifasia
II. Those cheques were as follows:
OTHER ITEMS AND MATTERS RAISED IN
THE EVIDENCE
| (i) Cheque numbers |
079622 |
| |
079657
| | 079668 |
| |
079774. (Exhibit 4) |
The claim of the Defendant in respect
of the above cheqyments is also that they haey had not
been credited to the
account of Olifasia II. However,
those cheque payments have been satisfactorily accounted
for in the evidence of
Kipling Alavae. I accept his
evidence that cheque numbers 079622 and 079657 were duly
issued with receipt numbers
22652 and 22692 and credited
to the account of Olifasia II. I also accept his evidence
that Cheque number 079668
for the amount of $1,600.00 had
been correctly verified as a payment in respect of the
rental of a house belonging
to the Plaintiff, by the
Defendant whilst at Tulagi for a period of two months (at
$800 00 per month). The Plaintiff
assisted the Defendant
with accommodation so that he could be close to his boat
whilst it was worked on by the
Plaintiff's workers. This
payment had nothing to do with the account of Olifasia
II, and therefore had rightly
been excluded.
As regarding the fourth cheque, (No. 079774 for
$1,298.32), I also accept the evidence of Kipling
Alavae that his records did not show that any such
payments could have
been received towards the account of
Olifasia II. The Defendant had asserted in evidence that
he paid for those
invoices and that receipts had been
issued in respect of the various payments made. This
meant that the above cheque
payment should also have been
issued with a receipt by the Plaintiff. If what was
asserted by the Defendant were
true, then a copy of that
receipt should have been retained by the Plaintiff in his
receipt book. None have been
found. This can only mean
that no payment had been made towards that account. Mr.
Alavae however did offer as a
possible explanation that
that payment may have been credited towards their Stores
Account in respect of goods
bought at the ware house. On
the balance of probability, I am not satisfied that this
payment should be credited
to the account of Olifasia II.
(ii) OTHER PAYMENTS
The Defendant had claimed in his evidence that a
number of payments had been made to the Plaintiff with
receipts
duly issued. He has not been able however to
substantiate those claims. As already pointed out, if
what the Defendant
said was true then copies of those
receipts should be retained with the Plaintiff. What the
Defendant could have
done would be to provide the
Plaintiff with a list of those cheque payments and ask
them to cross-check their records
for those payments, or
in the case of cash payments, to provide the Plaintiff
with such details as would enable
them to trace those
payments, such as; date of payment, the amount, where
payment was made, and who was cashier.
With respect, the
claims here have been too general and not proven to the
required standard. Accordingly, they
must also be
rejected.
(iii) OTHER ARRANGEMENTS WITH DERRICK (former
Debtors and Creditors Controller)
It was also raised in the evidence of the Defendant
that pursuant to an arrangement with Derrick (the
former Debtors and Creditors Controller) he had been
informed that he only owed the Plaintiff the amount of
$4,000.00. First, this was hearsay evidence
as Derrick
was never called to give evidence. Secondly, there is no
evidence to substantiate this allegation. It
is important
to note that there is no dispute as to the invoices
issued by the Plaintiff. The defence raised by
the
Defendant is that they had all been paid off. However,
the evidence adduced did not show this.
If what the Defendant alleges is true, that he had
paid for all the invoices issued and that he had been
issued
with receipts, then copies of those receipts would
be retained in the possession of the Plaintiff. It has
not been
shown by the Defendant that copies are available
and if so, why they had not been produced before this
court. To
the contrary, the evidence shows that no other
payments have been made in respect of the balance owing
and that
is why no receipts have been issued.
Mr. Waleilia also seeks to argue that the actions of
the Plaintiff in permitting further work to be done for
the
Defendant demonstrated that he had paid all his bills
for the Olifasia II because it was a stated policy of the
Plaintiff that no new work should be done for a client
with outstanding bills until those bills have been paid
up.
The existence of such a general policy was confirmed
in the evidence of David Tiva, Kipling Alavae and Joses
Wasui.
However, those witnesses clarified that that
policy is not enforced strictly. There is flexibility in
its application.
Sometimes the policy would be relaxed
and further work permitted but on cash pay basis only. On
other times, further
work would be permitted to be done
by arrangement with the Management. Mr. Wasui also
explained under cross-examination
that sometimes they
would look at the quantum of the bill to see whether the
customer would be able to pay off
in one payment or by
instalment. He also pointed out that one of the criterias
considered is the question of affordability
of the
customer. If it can be seen that the customer would be
able to pay up, then they would not consider closing
his
accounts.
In the particular circumstances of this case, Joses
Wasui explained why the stated policy of the company had
not
been applied rigidly against the Defendant. First, he
pointed out that the Defendant was regarded as a good
customer.
Secondly, they were of the opinion that the
amount of $14,000.00 was not beyond his means to pay.
Thirdly, the
payment for the work to be done on the
second vessel, the Liofai, was to be made from monies
loaned by the Defendant
from the Development Bank of
Solomon Islands and therefore to some extent it was
secure.
Taking all the above factors into account I am not
satisfied that it had been shown that the fact that work
was
commenced on the Liofai implied that all the accounts
of the Defendant on the Olifasia II had been paid off.
CONCLUSION
Taking everything into account, I am satisfied on the
balance of probability that the Plaintiff had proven its
claim
for the balance of $14,923.22 and that judgment
accordingly is entered for that amount with interest at
5%.
THE M.V. LIOFAI - The plaintiff's
claim.
The Plaintiff claims the balance outstanding, for
services rendered in respect of the MV Liofai, from
February 1991
to January 1992. The total of the invoices
issued, for labour, material and slipping charges, came
to $152,389.94.
The amount paid by the Defendant however
came to only $80.000.46. The balance due and which forms
the subject of
this case therefore is for $72.381.48.
DEFENCE
The defence of the Defendant consisted of a three
pronged attack. First, the Defendant asserts that it was
agreed
between the parties that the work on the
Defendant's boat would be carried out on the basis of a
written quotation
submitted to the Development Bank of
Solomon Islands (DBSI) as the financiers and agents for
the Defendant for
the sum of only $94,236.64, and
not $193,058.64.
Secondly, the invoices numbered 2730-2732 sent to the
Defendant totalling $71,986.27 for work done and material
supplied were disputed by the Defendant as having been
issued under previous invoices and therefore had already
been paid for by him, or DBSI. He says therefore that he
has been double charged for that amount.
Thirdly, in the alternative to the second ground
above, the Defendant lists a number of grievances as
contained
in paragraph 3(g) of his defence
THE EVIDENCE
(i) THE QUOTATION
Joses Wasui stated on oath that the letter of the 25th
April, 1991 (exhibit 3), containing the details of
the quotation submitted to DBSI for its consideration,
had been prepared by him. He
stated that the original of
that letter contained five pages, and that it was faxed
to the Bank. He also pointed
out that that letter
contained inter alia, a summary of the various costs set
out as follows:
| "Slipping: |
$17,472.00
|
| Labour cost grand
total: |
81,350.00
|
| Material: |
94.236.64
|
| Grand total: |
$193,058.64"
|
What is important to take cognisance of
are the amounts for the material costs and the grand
total. The reason is
because the Defendant initially
sought to argue that the grand total for the quotation
given by the Plaintiff was
only for $94,236.64; which
when compared with the evidence of Joses Wasui, was only
the total cost for the materials
expected to be used.
However, as later transpired under cross-examination, the
Defendant eventually conceded that
he had in fact
obtained a loan from the Bank for a sum of $300,000.00,
and then later applied for an additional
loan of
$189,000.00 to cover the expected costs of the quotation
given by the Plaintiff. The figure of $189,000.00
was an
approximate amount that he says he had earlier obtained
from Mr. Wasui. He conceded that the Bank had approved
his loan only after they had received the quotation from
Mr. Wasui. He also conceded that he was aware that the
estimate was in the vicinity of $189,000.00 and not
$94,000.00, as may have been led to be believed.
An officer from DBSI, Alfred Ramsay Napearua, had been
called in support of the Defendant's claim that the
quotation
submitted to the Bank by the Plaintiff had been
only for $94,236.64 and not otherwise. Two letters
alleged to have
been received from the Plaintiff were
produced as exhibits as found in the files of the Bank.
Both letters were
dated 25th April, 1991
THE COURT'S FINDINGS:
It appears that the letter relied on by the Defendant
to support his claim in the pleadings that the quotation
given
was only for $94,236.64 had only four pages in it
and did not include the summary referred to earlier of
all the
various costs added together. In reading through
that letter, it will be noticed that nowhere does it say
that
the total cost of the quotation was for $94,236.64.
All that was referred to at the top of page 4 of that
letter
was the "Material Cost Grand Total"
for $94,236.64. That is very different from "the
Grand Total".
Secondly, if the letter is read in its context, it
will be seen very clearly that the reference to the
"material cost grand total" for
$94,236.64 was only one of the costs referred to in that
letter; that is, the total cost for the materials
that would be expected to be used. At page 1 of that same
letter, there is a separate reference to the "slipping
Total Cost" for $27,472.00. At page 2, there is
a separate tally for the "Labour Cost Grand Total"
for $81,350.00. When those two other costs are added
together, then it is crystal clear that the grand total
couldn't have been $94,236.64 as claimed by the
Defendant. To get the grand total, all three costs
(slipping,
labour and material), would have to be added
up.
It is relevant to note that the Bank also had in its
files as produced by Mr. Napearua, a correct copy of the
letter
which had the summary of those separate payments
put together. It is not correct therefore to say or
assume, and
on the evidence I am not satisfied that it
had been shown that the Bank or the Defendant, were not
aware of the
grand total cost of the quotation. There is
basically no evidence to show how that first letter could
have generated
any confusion or uncertainty.
(ii) - THE INVOICES NUMBERED 2730-2732
Copies of the Invoice Statement numbers from 2730-2732
have been produced as Exhibit 1. I will deal with each
item
separately.
(i) "Braze flexible exhaust re M.V. Liofai
jobs: $48.00"
The evidence on this is undisputed. In his
evidence on oath Celestine Ofota'a conceded that it
was justifiably
incurred
(ii) "Wire engine control, starter motor,
alternator and battery"
This is not disputed by the Defendant. He
acknowledged in his evidence on oath that the
plaintiff's workmen
did all this.
(iii) "Install switch board and wiring
entire ships"
The evidence of the Defendant here is that he had
been overcharged on the basis that his boys
constructed
the switchboard which was comprised of a
wooden box. Unfortunately, he failed to address the
difference
or the distinction between construction of
the switchboard from the job done, which was, "installation
of the switch board and wiring of entire ship"
He did not deny that this was done by the plaintiff's
workmen. Accordingly, l am satisfied that this
debt
was properly incurred.
(iv) "Plumbing of bilge system"
The evidence of the Defendant here is that his
boys did some work concerning the lining and bolting
of the
engine. The crucial evidence however of Javen
Salevale, who was the Operations Manager at the time
the
ship was at the Plaintiff's shipyard, and called
by the Defendant as his witness, stated that the job
took
about 10 days with two men working on it. He
however did expressly state that the assistance of
the Defendant's
boys was taken into account. I am not
satisfied therefore on the evidence before me that it
had been shown
on the balance of probability that the
above invoice was not properly incurred.
(v) "Rip and plane timber as required"
No evidence to the contrary has been adduced and
accordingly this item must be accepted.
(vi) "Fit on winch anchor"
The evidence on this by the Defendant is that he
installed it himself. Javen Salevale confirmed in
evidence
that this job was done by the Defendant and
his boys. I am satisfied on the balance of
probability that
this amount should not have been
charged.
(vii) "Make 2 windlas handles as required"
In his evidence in chief, the Defendant denied
that they had installed any windlas handles. Under
cross-examination
however, he conceded that he had
two windlas handles and that they were made by the
Plaintiff's men. I
am satisfied that it had been
proven on the balance of probability that this item
was properly incurred.
(viii) "Construct rudder tiller and repair
all leakage"
This has not been disputed by the defendant.
(ix) "Fit rigging and blocks"
The amount charged for this is $192.00. In his
evidence the Defendant did admit that the rigging and
the
blocks were made by the Plaintiff. I am satisfied
this had been properly charged.
(x)"Machine 2 new bearings"
This is not disputed.
(xi) "Rip and plane timber"
This is not disputed. In his evidence Joses Wasui
explained that this job was done as and when
required.
(xii) "Make and sew canvas cover
for monkey island"
The Defendant stated in his evidence that this job
was done by the Plaintiff. I am not satisfied that it
had not been properly incurred.
(xiii) "Machine aerial fees through
insulator"
This is not disputed.
(xiv) "Build 2 control box cover"
In his evidence Javen Salevale confirmed that some
work was done by the Plaintiff. I am satisfied the
sum
of $96.00 was properly incurred.
(xv) "Cut round steel plate for bilge pump
pully 60mm thick 225mm diameter"
This is not disputed.
(xvi) "Fibre glass tank as required"
The evidence as adduced from the Defendant is that
the job was done privately by a worker of the
Plaintiff
using materials of the Plaintiff only. The
Defendant stated that he wanted the job done quickly
and so
got someone to do it on extra overtime basis.
He said that he paid that man $300.00. It is not
clear on
the evidence if the work done by that man
was also charged by the Plaintiff. The defence
witness, Javen
Salevale was not cross-examined on
this point. He did confirm though that one man was
made available to
do it in his spare time. I am
satisfied that that amount should also be deducted.
(xvii) "Work on main engine exhaust piping"
This is not disputed.
(xviii) "Construct exhaust funnel brackets"
This is not disputed.
(xix) "Plumbing exhaust"
This is not disputed.
(xx) "Weld stancheon
pipe bridge deck-bend all the stancheon pipes"The
Defendant says that he provided the materials and his
boys bent the pipes. The Plaintiff does
not dispute
that he provided the materials. However, in the
evidence of Javen Salevale he stated that the
Plaintiff did most of the work. It has not been shown
by the Defendant what proportion of the materials
he
had provided and by how much of that he had been
overcharged. He had also not shown by how much the
labour charge of the Plaintiff had been overcharged,
and what proportion of the total labour charge had
been contributed by his boys as against that done by
the plaintiff's workers. On the balance of
probability I am not satisfied that any deductions
should be granted in favour of the defendant.
(xxi) "Plumbing sea water system"
In his estimate of the work to be done, Joses
stated that two men could take them about 10 days to
do the
job. The Defendant on the hand denies any
knowledge about this. Perhaps if he had taken the
time to make
enquiries earlier he would have been
told. I am not satisfied that it had been shown that
this amount was
not properly incurred.
(xxii) "Plumbing fuel system"
Joses Wasui gave evidence that a man would take
about 5 days to do this job. The Defendant however
gave
very little evidence on this. I am satisfied
that this amount was properly incurred.
Invoice 2732
(xxiii) "Plumbing of toilet"
This job if done by two men could take about five
days, according to the evidence of Joses Wasui. The
evidence
of the Defendant on the other hand is that
his boys did assist with the work. However, it has
not been
shown that the amount of $1,248.00 charge
for that work was excessive or an overcharge, and if
so, by how
much. I am satisfied on the balance of
probabilities that this amount was properly incurred.
(xxiv) "Machine skin fitting"No
challenge has been raised in respect of this charge
(xxv) "Machine bildge pump pully"
The evidence given by Joses Wasui is that one
person working on this job may take 3 days. No
challenge however
has been raised by the defence.
(xxvi) "Machine 2 fittings as required"
Also no evidence has been raised in challenge by
the defence here.
(xxvii) "Materials supplied"
There was insufficient evidence produced to
satisfy me that the materials supplied and charged
under invoice
2732 were not properly due. The only
evidence adduced were general references to direct
purchases of materials
done by the Defendant of some
things, which has not been disputed in general. It
was conceded generally
by the Plaintiff that some
materials had been provided by the Defendant. The
Plaintiff's stance however,
is that they had not
charged the Defendant for anything else than those
things which were needed and not
provided by the
Defendant. The Defendant on the other hand has failed
to show that those specific items
in invoice 2732 had
been provided by the Defendant and paid for by him. I
am satisfied on the balance of
probabilities that
this amount was properly charged.
COUNTER CLAIM: OVER PAYMENT OF
$16,000.00
The evidence of the Defendant was that he paid
$16,000.00 on the day he left the Plaintiff's shipyard
with his boat
as the final payment of all charges due.
This was on the 15th of December, 1991, to a person
called Derrick at
Base 1, Tulagi. Under cross-examination
he stated that he was given a receipt. He has not
produced that receipt
however. Kipling Alavae has also
confirmed that no copy of that receipt can be located
anywhere in the files and
records of the Plaintiff.
Further, in cross-examination, it was ascertained that
the payment was made without any
evidence of an invoice
from the Plaintiff to that effect. Even surprisingly,
that amount was paid out or obtained
from DBSI, without
any invoice or evidence of such produced to the Bank. The
Defendant confirmed this, in his evidence.
This payment
therefore appears to have been made irregularly; contrary
to the normal practice of the Bank. No satisfactory
explanation, has been produced to show why that irregular
payment was made. The person to whom that payment was
alleged to have been made had left the employment of the
company and therefore was not available to confirm that
payment. The Defendant however should have produced that
witness to clarify and confirm his evidence. If what the
Defendant says is true, that the sum of $16,000.00 had
been paid, then there would have been copies of the
receipt issued for it available at the Plaintiff's office
to verify it. Kipling Alavae says that there are no
records at the Plaintiff's office of such payments. I
accept his evidence. It is not clear whether the
Defendant
did raise the matter with the Plaintiff
earlier, but in my respectful view, it should have been
done, and a physical
check carried out on the receipt
books of the Plaintiff for that date or period on which
the payment was alleged
to have been made. If a receipt
of the Plaintiff had been issued, then copies would be
available. If not, as has
been confirmed here, then it is
more probable than not that no payment was ever made. If
the Defendant insists
that a payment to that individual
was made, then it is possible that that individual may
have lost the money or
may even have used it himself.
Unfortunately, it has not even been shown to my
satisfaction, on the balance of
probabilities, that such
a payment was made to such an individual in the first
place, and that that individual
receipted that payment
for and on behalf of the Plaintiff. The crucial witness
to this alleged payment had not
been called and in his
absence and the absence of any crucial documentary
evidence, I am not satisfied, even applying
the civil
standard of proof, that such a payment was made and
received by the plaintiff and that thereby it should
have
been credited in favour of the Defendant's Liofai
account. This counter-claim accordingly must be
dismissed.
SLIPPING CHARGES
The evidence of the Defendant here is that he made a
deal with Joses Wasui, (the Genera/ Manager) for slipping
charges,
for 31 days at $10,000.00. His ship however was
slipped for only 14 days, which was roughly one half of
31 days.
He therefore suggested to the General Manager
that he pay only $5,000.00. The General Manager however
insisted
that he must pay $10,000.00. The Defendant says
that he wasn't satisfied and so presented his case to the
Accountants
and Operations Manager, who then agreed to
the charge of $5,000.00. Accordingly he only paid that
amount.
In the evidence of Joses Wasui, he denied that such an
agreement was ever struck with the Defendant. The
slipping
charges were based on the rates given in the
quotation and had never been changed. According to his
records the
ship was slipped for 16 days, and so at the
rate of $546.00, the total cost came to $8,736. Mr. Wasui
pointed out
that this was much less than the original
estimate for 31 days which would have cost some
$16,926.00.
The evidence of the Defendant has been supported in
same way by Salevale's evidence, in which he stated that
the
Finance Controller and himself did contact the
General Manager about that arrangement on the phone and
that the
General Manager did agree to that rate of
$10,000.00 for 31 days. The Finance Controller however,
when cross-examined
on this matter could not recall it.
On the balance of probability it does appear that such a
variation to the original
quotation had been made.
However, it is important to bear in mind that the
variation related to the charge of $10,000
for 31 days.
There is no evidence which showed or says that if the
ship was slipped for only 14 days that the amount
should
also be halved. The argument for halving was raised only
after the ship had been slipped for 14 days. There
is no
evidence to show that the variation included such an
arrangement that if the ship was slipped for less than
31
days that it should be calculated on a pro-rata basis.
Normally, that may have been accepted, however, the
variation obtained here was not in the normal course of
the arrangements between the parties. The normal rates
for slipping had already been stated in the quotation
letter of 25th April 1991 at $546.00 per day. The
variation obtained therefore was unusual. There is no
evidence of any agreement, verbal or written that for 14
days the slipping charges should be $5,000.00 (i.e.
halving the rate agreed to at $10,000 for 31 days).
If there were then it would have been referred to. None
was referred to in the evidence of the Defendant. The
question of halving was only raised by the Defendant
after. In the absence of any other agreement for a
variation in respect of the 14 days slipping charges, the
normal rate originally agreed to must be reverted to for
the correct calculation of the slipping charges. That is
what has been done here. I am satisfied that the slipping
charges of the Plaintiff had been correctly calculated
and invoiced. I reject the submission of the defence.
Another matter which had been raised related to the
time the boat was on the slipway. The Defendant says that
the
boat was only on the slipway for 14 days and not 16
days as alleged. I think the discrepancy here is very
minor.
The Plaintiff relied on its records, but
acknowledges that those records are no longer available.
It appears more
to be a case where one party may be
mistaken. I am prepared to allow only 1 days extra charge
in this particular
instance in favour of the Defendant to
be deducted from the total amount of the slipping
charges; that is, $546.00.
OTHER MATTERS ARISING
One of the arguments raised by defence Counsel is that
not all of the work or items quoted in the Plaintiff's
letter
of 25th April 1991 was undertaken, or supplied by
the Plaintiff. With respect, the evidence adduced before
this
court showed quite clearly, and I am satisfied as to
its accuracy, that the Defendant had only been billed or
charged,
for work actually done, and materials supplied
by the Plaintiff. I do not think it is disputed that some
of the
work done and charged for in the invoices may not
have been included in the quotation letter of 25 April,
1991.
However, it has not been shown by the Defendant
that the work performed on the boat by the plaintiff's
workers
was not needed, or that it had been objected to
by the Defendant and that therefore it should not have
been charged.
Rather, the opposite seems to have been
more true, that the work done was necessary and the
charges therefore justified.
Also no evidence has been
adduced to show that some of the job descriptions
contained in the invoices disputed,
had never been done,
or were duplicated, so that there was double charging.
Also what was made clear in the evidence
by Mr. Alavae
and Wasui was that the materials charged were those
needed and actually used in the work on the boat.
No
evidence or little evidence has been adduced to the
contrary. The evidence adduced showed that materials
provided by the Defendant at his own cost had never been
charged. It is one thing to make a general allegation,
and another to provide sufficient details that would
satisfy me on the balance of probabilities that, yes
there had been overcharging or double-charging on
materials provided by the Plaintiff and or its labour
charges.
I think it is important to note that a quotation is an
estimate of the total cost to be incurred, on the work
expected
to be done. If the Defendant had felt that
certain jobs should never have been done because they
were not included
in the quotation, then he should have
raised the matter there and then with the Plaintiff. He
was present most
of the time when the work was being done
on the boat. He has not pointed however to any specific
job which he says
should never have been done. I am
satisfied on the evidence before me that the Plaintiff
had done its job and at
the end of the day sought payment
for those services. On the other hand, it has not been
shown that any of those
matters listed in the invoices
challenged, were either overcharged or improperly
charged.
It is also pertinent to note that the grand total cost
for the quotation was in the vicinity of $193,058.64. The
actual cost of the work done, plus materials supplied and
slipping charges however, came to only $152,389.94. The
Plaintiff has only paid $80,008.46. A substantial amount
therefore remained outstanding. Now bearing in mind that
the Defendant together with DBSI were aware of the amount
of that quotation, then it only stands to reason that
there should be sufficient funds available, or retained
to cover the charges of the Plaintiff. What seems to have
happened though, is that the funds set aside at DBSI,
earmarked for payment to the Plaintiff in respect of its
charges as contained in the quotation, had somehow been
exhausted. Although I do accept and note that it is none
of this court's business to enquire further as to why or
how that might have occurred, it is clear that the total
amount of $152,389.94 was well within the range of the
quotation of $193,058.64, and that accordingly there
should have been more than sufficient funds available
from that project fund at DBSI to cater for the total
cost of the Plaintiff's work. As can be seen, only the
amount of $80,008.46 has been accounted for, towards the
Plaintiff's costs. There has been no evidence, or
insufficient evidence adduced, to show, that the
materials
provided by the Defendant, plus the cost of his
own labour, together accounted for the discrepancy of
$72,381.48
(that is, S152,389.94 less $80,008.46). I note
that it has not even been suggested that the discrepancy
of $72,381.48
was justifiable in terms of the savings
done by the Defendant in providing his own materials and
labour. Rather,
the saving of about $40,668.70
(3193,058.64 less 5152,389.94) is more consistent in my
respectful view with what
would have been the savings of
the Defendant in providing his own materials and labour
towards the construction
and fitting of the boat, amongst
other things. Taking all the relevant evidence into
account, l am satisfied, on
the balance of probabilities,
that the invoices charged, apart from those which I have
excluded in this judgment,
had been carefully checked and
scrutinized by the relevant persons in the Plaintiff
company.
I accept the evidence of both the Finance and
Administration Manager, and the General Manager, giving
room for certain
discounts, that the balance which
remained outstanding for work done, including material
and slipping charges,
came to $72,381.48. One of the
suggestions raised in the submissions of the Defendant
was that he had been unfairly
charged and taken advantage
of by the Plaintiff. Unfortunately, the evidence adduced
does not support any such
suggestions. The evidence
adduced rather, showed consistency, honesty and
integrity, on the part of the Plaintiff
in performing its
part of the bargain, according to the terms of its
quotation letter, but also in providing assistance
to the
Defendant to cut down his costs where possible.
The evidence of the Defendant on the other hand had
been based on generalities and unsubstantiated claims.
There
have been general allegations that the invoices
issued contained irregularities, such as overcharging or
charging
for work never undertaken. However, apart from
the few items found in favour of the Defendant, he can
only make
general references to the various jobs
performed by the Plaintiff's workers. He could not state
with clarity or
specifically for instance, by how much
such work may have been overcharged or what particular
part of the job description
had not been done by the
Plaintiff's workers, or had been done by his workers and
how much less the invoice should
have been charged. Where
there have been specific references to certain jobs in
the invoices, the Defendant had
not shown, which matters
had not been taken into account by the Plaintiff in
calculating the final charges, or
by how much should be
deducted. As has been pointed out, I am satisfied with
the evidence of the Plaintiff's witnesses
that the
Defendant had only been charged for work actually done
and materials used by its employees. I am satisfied
that
the invoices did not contain the cost of materials paid
for by the Defendant, or work done by his boys.
An important point also brought out in the evidence of
the Plaintiff's witnesses which is relevant to 'this
proceedings
relates to the necessity for supervision of
the work done by the Defendant's boys. The importance of
this was to
ensure that the work was being done properly
and that it reached the seaworthiness and safety
standards required
for such boats.
I also note that the evidence of defence witness,
Salevale, who was then the Operations Manager, with the
Plaintiff,
during that period, did not contradict
in any significant manner, the invoices of the Plaintiff,
as containing gross errors of overcharging
or whatever,
to the tune of $70,000.00.
I am satisfied on the balance of probabilities that
the claim of the Plaintiff as to the balance outstanding
in
the total invoices billed to the Defendant apart from
the items excluded in this judgment have been proven on
the
evidence before me and judgment accordingly must be
given in favour of the Plaintiff.
ORDERS OF THE COURT
(A) THE OLIFASIA II CLAIM:
(1) Enter judgment in favour of the Plaintiff for
$14,8923.22.
(2) Order that the counter-claim of $5,600.00 be
dismissed.
(3) Interest at 5% awarded in favour of the
Plaintiff from the period 31/3/92 (date of last
adjustment of
invoice G.J.108.4) to date case opened
at High Court (30/11/92) - a period of 8 months, plus
interest calculated
from date of judgment.
(B) THE LIOFAI CLAIM:
(1) Enter judgment in favour of the Plaintiff for
