Marine Services Ltd v Dalsol Ltd [1999] SBHC 70; HC-CC 335 of 1996 (9 July 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No: 335 of 1996

MARINE SERVICES LIMITED

class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> v

class=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> DALSOL LIMITED

High Court of Solomon Islands

Before: Palmer J.

Civil Case No: 335 of 1996

Hearing: 30^th June 1999

Judgment: 9^th July 1999

A. Rffe for the Plaintiff

G. Suri for the Defendant

PALMER J.: The Defendant ownt owned is barge called Tung Shing IV which was used in its logging operations. It needed a new landing ramp. The Defendant invited quotations for the job from interested companies. The Plaintiff was among three other persons who offered quotations. The other two were R & R Engineering Pty. Ltd, and Cheng. The Plaintiff submitted a quotation of $38,000-00 for the ". . . manufacture and supply one (1) only Landing Ramp as described for the Dalsol Dumb Barge. " (see Exhibit 1). R & R Engineering Pty. Ltd. submitted a quotation of $40,000-00 for the supply of a landing ramp and a further $2,500-00 to have, it fitted (see Exhibit 7). The Plaintiff's quotation of $38,000-00 was accepted.

THE PLAINTIFF'S CLAIM.

The Plaintiff claims the quotation 8,000-00 was for the manufacture and supply of a landing rang ramp only. It did not include the fitting of the landing ramp and associated repair works. Accordingly he has claimed a total of $10,885-31 for the extra work requested by the Defendant.

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> THE DEFENDANT'S CLAIM.

The Defendant on the other hand argues that the fittin associated repairs were inre included in the quotation of $38,000-00. It submits they had been the subject of an oral agreement entered into between the parties prior to the acceptance of the quotation by the Defendant.

THE .

class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The contentious issue between the parties is whether the fitting of the landing ramp formed part of the quotation of $38,000-00 agreed upon by the parties or not.

THE LAW.

There is no compld issue of law for determination. The case is based on a simple contractual rel relationship between the parties which is not disputed; that is, a contract for the supply and manufacture of a landing ramp. The dispute turns essentially on evidence regarding whether the fitting and installation and associated repairs to the barge were also included in the contract for the supply and manufacture of the landing ramp or whether it was a separate job.

ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> UNDISPUTED .

b> It is not disputed that a landing ramp was constructed and supplied by the Plaintiff and duly paid for by the Defendant in the sum of $38,000-00 (see Exhibits 8 and 9). It is also not disputed that work had been done by the Plaintiff in having the landing ramp duly fitted to the barge and repair work done on the barge so that the landing ramp could be securely fitted.

THE SUBMISSION OF THE PLAINTIFF.

The Plaintiff subthe quotation of $38,000-00 made for the manufacture and supply of the landing ramp did not include the installation costs. It submits the request for installation of the landing ramp was made when the work on the new landing ramp was about half-completed. This was an extra job requested to be done by the Defendant and therefore had to be charged separately.

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> THE SUBMISSION OF THE DEFENDANT.

The dant submits on the other hand, that a verbal agreement had been entered into by the the parties which superseded the written quotation for the inclusion of the installation costs of the landing ramp in the amount of $38,000-00 agreed upon.

THE EVIDENCE.

class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Evidence of the Plaintiff: The evidence in e in support of the Plaintiff's claim consists of the evidence of Joshua Thomas. He states no mention was made of the fitting and installation of the landing ramp when the quotation was made and accepted. The additional work of fitting the landing ramp was requested at a later date when the work had already been commenced.

Evidence of the Defendant: The evidence adduced by the Defendant on the other hand consisted of the evidence of Jimmy Xiao. His evidence was in direct contrast to the evidence of Joshua. He stated he spoke to Joshua at his Office about the quotation given whether it included the fitting of the barge door as well or not. On being told verbally it was included, he issued an acceptance of the quotation.

Analysis of the evidence: This case turns on the credibility of evidence of the witnesses of each party. Joshua states the quotation of $38,000-00 given consisted only of the manufacture and supply of the landing ramp. At the time it was given and accepted by Jimmy there was no mention that it might also include its installation on the barge. Exhibit 1 is the quotation provided by Joshua. It is dated 16th February 1996 and reads as follows:

"QUOTE FOR BARGE RAMP

We hereby submit our quotation of $38, 000-00 for Marine Services Ltd to manufacture and supply one (1) only Landing Ramp as described for the Dalsol Dumb Barge.

This quotation is valid for one (1) month period as of the above date.&que."

ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> On 27th Februa96, a reply was received (see Exhibit 2). It reads:

"We agreed your quotation about $38,000-00 and refer your letter date 16th February uary 1996. "

Joshua states, not until some teks or so after commencement of the contract did Jimmy make make enquiries with him whether he would be able to fit the landing ramp onto the barge as well. He states this was one amongst other extra jobs requested by Jimmy to be done. He only agreed to do the job on the basis it was an additional job and to be charged separately.

Jimmy on the othed denies ever requesting any additional work to be done by Joshua. He states the fitting of the landing ramp had already been agreed to verbally by Joshua at his Office prior to his written acceptance of 27th February 1996.

There is evidence before this Court to support the version of eitarty. Ultimately this case case turns on which version this Court accepts as more credible. I have thought carefully on the evidence adduced before me, the demeanours of the witnesses on the witness stand, and the submissions of learned Counsels and come to the following conclusion. I find respectfully that there was an agreement for the manufacture and supply of one landing ramp; the dimensions of which had been clearly set out in the plan marked as Exhibit 10. I find on the evidence before me that there was an offer for the manufacture and supply of one landing ramp for $38,000-00, comprised in the quotation dated 16th February 1996. There was some suggestion by learned Counsel for the Defendant that this should be viewed as a mere invitation to treat and not an offer, citing the case of Harvey v. Facey [1893] A.C. 552 in support. The facts briefly of that case were as follows. A sent a telegram to B as follows:

“Will you sell us Bumper Hall pen? Telegraph lowest cash price, answer &nbbsp;& &nsp; &nsp; &n p; paid.'

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B replied by telegram,

'Lowest price for Bumper l Pen £900.'

A replied,

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'We agree to buy Bumper Hall Pen for £900 asked by you.'

Bumper Hall Pen was a plot of land and A claimed this exchange of telegramegrams constituted a valid offer and acceptance. The Judicial Committee of the Privy Council however found there was no contract as the telegram sent by B in stating the lowest price for the property was not making an offer but merely supplying information. The offer was the telegram sent by A agreeing to buy the property for £900.

That case can be easily distinguished from thse in that the quotation of $38,000-00 was in direct rect response to an invitation by the Defendant for quotations to be made for the manufacture and supply of one landing ramp. The invitation for quotes therefore can be seen as the invitation to treat. Further, it was expressly provided that the quotation was valid for one month. That can only mean it was intended to be an offer capable of acceptance within the one month period and not a mere invitation to treat.

I also find, on the evidence before me, that this quotation is ar (with only two thousand sand dollars difference) to the quotation also provided by R & R Engineering Pty. Ltd for the manufacture and supply of a new landing ramp (see Exhibit 7). The quotation provided by R & R Engineering for the construction of a new landing ramp was $40,000­00. That supports the evidence of Joshua that the quotation of $38,000-00 was more likely to have been intended for the manufacture and supply of a landing ramp than to have the cost of fitting and installation also included. The difference is much greater comparatively when the quotation of R & R Engineering includes the fitting costs of the landing ramp and hence unlikely to be equated with the quotation of $38,000-00 offered by the Plaintiff.

THE VERBAL AGREEMENT CLAIMED BY THE DEFENDANT.

The Dant claims the Plaintiff was asked at its Office whether the fitting and installationation of the landing ramp would be included in its quotation of $38,000-00 and was given an answer in the affirmative. In other words, there was a counter-offer by Jimmy to the effect whether Joshua would accept the work of installing and fitting the landing ramp for $38,000-00 as well. Joshua not only denies accepting such counter-offer, but also denies any such conversation ever taking place. Jimmy contends this conversation and verbal agreement took place sometime before 27th February 1996.

The written acceptance of 27th February 1996 is cruto this case. As conceded by the Defendant, this came came after the purported conversation and agreement had been entered into for the fitting and installation costs to be included in the quotation of $38,000-00. The significance of that written acceptance which I consider to be the determining piece of evidence in this case can be summarised as follows. That whatever the view or claim of the Defendant might have been, and irrespective of the fact that there might have been a verbal acceptance of that verbal agreement, the written acceptance superseded that verbal agreement in any event. To put it in another way, even if there might have been a counter-offer as claimed by Jimmy in his evidence, it was revoked by the written acceptance of 27th February 1996. The evidence before this Court in my respectful view is more consistent with the evidence of Joshua; that there was no such conversation and no such verbal agreement entered into prior to 27th February 1996. But even if there might have been such a conversation and an agreement in place, it is my respectful view that agreement was superseded by the written acceptance of 27th February 1996.

That written acceptance can be viewed as an unequivocal counter-offer by the Defenfor the payment of $3 $38,000-00, for the manufacture and supply of a new landing ramp, and acceptance demonstrated by the Plaintiff in the actual performance of the work.

I find the terms of the written acceptance dated February 1996 to be clear and unequivocal. There was no mention whatsoever of anything to do with the fitting of the landing ramp in that letter. I find the explanation offered for not mentioning the costs of fitting with respect to be unconvincing. It doesn't take much to add a simple phrase to the effect that the quotation of $38,000-00 was to include fitting of the landing ramp. In my respectful view, the Defendant was bound by the terms of the written acceptance issued by him on 27th February 1996 which can only be linked to the manufacture and supply of a new landing ramp.

Having so found, it necessarily follows the Plaintiff is entitled to be paid for the work done in having the barge door fitted as well. I find the evidence of Joshua with respect to be consistent with this. The Defendant does not deny that work had been carried out by the Plaintiff in having the barge door fitted and that it was not necessary or required.

There has been submission by learned Counsel for the Defendant that the amount quoted by Joshua might have been unreasonable when compared with the rates quoted for the same job by R & R Engineering. Unfortunately, there has been virtually unchallenged evidence provided in detail by Joshua as to the nature of the work done and how the amount of $10,885.31 was arrived at. It should be pointed out the quotation offered by R & R Engineering was on a cash basis only. It would have been fairer to get someone with similar expertise as Joshua on the witness box and be subjected to cross-examination about the figure raised for the work done, or to get the person who made the quotation from R & R Engineering onto the witness box and be subjected to cross-examination as well. I note though the reasonableness of the amount charged for the fitting of the barge door had not been pleaded and hence not open to the Defendant to raise in defence at this stage.

INVOICE NO. 150/96 [EXHIBIT 3].

The Plaintiff states a similar to Exhibit 3, after it had been corrected, was sent to the Defendant. ant. The Defendant denies receipt of this invoice. Mr. Suri submits this invoice may have been merely invented. Unfortunately the evidence before this court does not support his submissions. The invoice for $28,000-00 was dated 12th April, 1996. Joshua believed a copy was sent to the Defendant although he concedes he was not directly involved in the office work. The evidence showed that payment was made three days later on 15th February 1996. That with respect is consistent with the view that such invoice must have been sent and received on or around that date for payment to be effected. But even if it might not have been received, it does not alter the fact that work had been done which was not part of the quotation of $38,000-00 and therefore ought to be paid.

INVOICE NO. 159/96.

This invoice pertained to the extra work done in providing extra horizontal bg to the landing ramp door which was also not included in the original quotation. Whilst this is conceded by the Defendant it also goes to support the version of the Plaintiff that there were other extra jobs done as requested by the Defendant.

CONCLUSION.

I find that there was an agreement for the manufacture andly of one landing ramp. Tha. That this did not include fitting costs and the repair work needed to be done on the barge to secure the ramp. Accordingly the Plaintiff is entitled to be paid his reasonable costs for the work done.

1. &nbbsp; ENTER JUDGEMENT FOR THE PLAINTIFF IN THE SUM OF $10,885-31.

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THE COURT.