Burgess v Prince [2000] WSSC 24 (9 August 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

LEE BURGESS of Lalovaea
Businessman
Plaintiff

AND:

GEOFFREY PRINCE
of Taupo, New Zealand, Company Director
Defendant

Counsel: Mr. R.S. Toailoa for the Plaintiff
Mr. S. Reid for the Defendant

Dates of Hearing: 12 April 1999 and 14 May 1999
Date of Decision: 9 August 2000

REASONS FOR JUDGMENT OF WILSON J.

In this action the plaintiff, a supplier of teak timber for export, claims from the defendant the sum of NZ$16,524.00 being for certain amounts and sizes of teak timber supplied and shipped to the defendant at his request (and sold and purchased) in or about November/December 1996. He also claims for money had and received in respect of the sum of US$20,000.00 (NZ$28,372.82). It is alleged that by mutual arrangement with a company (the Blankenship Group Inc.) being a client of the plaintiff in the United States of America, the said amount was remitted to the defendant in New Zealand for the purpose of buying a loader for the plaintiff. It is alleged that the defendant failed to supply a loader and failed to supply confirmation to the plaintiff that a loader had been purchased. It is alleged that the defendant retained the use of the said sum of US$20,000.00 (NZ$28,372.82).

There was an alternative claim which was not pursued at trial.

In his statement of defence the defendant does not admit that the plaintiff is in the business of supplying teak timber for export and denies each and every of the allegations set out in the statement of claim. He thereby denies liability for each and every of the plaintiff’s claims and says that the plaintiff’s claim should be dismissed.

The oral evidence that was received by the Court was the oral testimony of the plaintiff himself, the oral testimony of Mr Roy Burgess, and the oral testimony of the defendant himself.

A relatively large number of exhibits were tendered, comprising a "revised invoice" for NZ$16,524.00 and dated 5 December 1996 and to supersede an earlier invoice (exhibit P1), an advice of credit dated 4 December 1996 referring to a remittance of US$20,000.00 through the Westpac Banking Corporation at Taupo, New Zealand (exhibit P2), a faxed letter dated 5 December 1996 from "GC Prince - Horomatangi Properties (No.43) Ltd" to "Samoan Wood Salvaging Ltd, Apia, Western Samoa" (exhibit P3), a hand-written fax dated 26 August 1996 from the plaintiff to the defendant (exhibit P4), a letter dated 11 July 1996 from Carters of Auckland to the plaintiff (exhibit P5), a memorandum of association of Navigation Seafood Exports Limited dated 12 June 1996 and accompanying papers (exhibit D1), an inventory (exhibit D2), an invoice/statement dated 14 September 1996 from Samoa Wood Salvaging Ltd. to South Pacific Hardwood (exhibit D3), some pages from a ledger (exhibit D4), an invoice to Eldon Box/Horomatangi Properties from Turangi Sawmills dated 20 November 1996 (exhibit D5), a writ of arrest directed to the defendant dated 11 December 1996 (exhibit D6), a fax dated 15 December 1996 from "Geoff Prince - Horomatangi Properties Ltd." to the plaintiff (exhibit D7), and a fax dated 12 April 1997 from Richard’s Law Firm to the defendant enclosing an "agreement" dated 12 April 1997 between the plaintiff, Eldon Box, and the defendant, signed by the plaintiff and Eldon Box but not by the defendant (exhibit D8).

CREDIBILITY

This case turns in no small measure upon questions of credibility. All in all I was impressed by the plaintiff’s witnesses. I was not impressed by the defendant, who showed signs of evasiveness, especially when trying to explain what happened to the US$20,000.00. I thought that he tried to shelter under a purported defence (which was unmeritorious and unsound in law) to the effect that the dealings of the plaintiff were with the company Horomatangi Properties (No.43) Ltd. and not with the defendant personally. A major aspect of the defence case was the attempt (unsuccessful, in my judgment) on the part of the defendant to hide behind what his counsel variously called "the rather complex corporate structure" and "the corporate veil."

It is to be noted that the defendant, who, on his own case, was an executive or employee of the company, Horomatangi Properties (No.43) Ltd., did not seek to join that company as a third party in these proceedings, something which he could have been expected to have done if his denial of personal liability represented the truth.

THE LAW

Besides referring to the provisions of section 3(1) of the Sale of Goods Act 1975, it is only necessary for me in this case, which is predominantly one involving issues of fact, to refer to the passage from Bullen & Leake & Jacobs, Precedents of Pleadings (13^th Edition), at p.654, which was cited by Mr Toailoa:

"There are numerous circumstances in which the law will compel a person who has received moneys which in equity belong to another to pay them over to that other. The doctrine rests on the fiction of a promise implied in law. At one time it looked as through this form of action for ‘money had and received’ might be extended to all cases where the Court thought it equitable that money should be paid over. (See the judgment of Lord Mansfield in Moses -v- Macfelan (1760) 2 Burr 1055). But it has now been authoritatively stated that it must be limited to those cases only where the law can consistently impute to the defendant the fiction of a promise (see Sinclair -v Brougham [1914] UKLawRpAC 8; [1914] A.C. 398 at 415, 453; referred to in Re Simms [1914] Ch.1 at 20,32)."

FINDINGS OF FACT

1. I find that, when the defendant was working for Carter Holt N.Z., the plaintiff had procured some left-over logs. There was then a contract of sale and purchase in Samoa between the plaintiff and the defendant. Particulars of the contract and the moneys owing thereunder are set out in the revised invoice dated 5 December 1996 (exhibit P1). The sale and purchase agreement (oral) related to "approximately 100 logs of teak, 1.5M³ of FEQ teak lumber, and 4 slabs of (various-sized) teak". The sale price is calculated on exhibit P1 and it was NZ$16,524.00. That sum has never been paid by the defendant. The sale and purchase is partly evidenced by the letter dated 11 July 1996 (exhibit P5) addressed to and accepted by the plaintiff. This constituted strong evidence. The absence of further documentation is not, in my view, fatal as far as the plaintiff’s claim is concerned.
   
2. I accept the plaintiff’s testimony to the effect that some time in 1996 he sold to the defendant the specified teak having a total value of NZ$16,524.00. I find that the teak timber that was sold was owned by the plaintiff personally. I find that he had acquired it from Carter Holt in the manner as indicated in exhibit P5. There having been no mention of a company called Horomatangi Properties (No.43) Ltd., the plaintiff was contracting with the defendant personally or as an agent (to whom liability attaches) acting for an undisclosed principal.
   
3. I further find that the plaintiff arranged to have remitted to the defendant in New Zealand the sum of US$20,000.00 (NZ$28,372.82.00) for the purpose of a loader being purchased for the plaintiff. The said sum was remitted, as evidenced by exhibits P2 and P3, but neither a loader was supplied nor was the purchase of a loader confirmed. The said sum of US$20,000.00 (NZ$28,372.82) was wrongfully retained by the defendants; it should have been refunded.
   
4. The documentary evidence (exhibits P2 and P3) confirmed that the defendant had received the US$20,000.00 (NZ$28,237.82), but there was no documentary evidence to confirm the defendant’s oral evidence (which I found myself unable to accept) to the effect that the money was remitted back to the United States by Mrs Box.
   
5. I accept the plaintiff’s testimony on this topic (and find) that in excess of US$40,000.00 had been due to the plaintiff from Mr Box for teak and mahogany which had been sent to Mr Box in the United States, and I further accept (and find) that Mr Box sent to the plaintiff approximately US$20,000.00 and that the other US$20,000.00 was sent to the defendant "for the purchase of the loader" for the plaintiff.
   
6. In the circumstances of this case "the fiction of a promise" should be (and is hereby) imputed to the defendant
   
7. I find that the plaintiff has discharged the onus of proof which rests with him, and that the standard (on the balance of probabilities) has been met.
   

ORDERS TO BE MADE

In my judgment, there should be judgment for the plaintiff against the defendant in the following sum:

Sale and purchase of teak timber = NZ$16,524.00

Money had and received = NZ$28,372.82

NZ$44,896.82

There also should be an order that the defendant pay to the plaintiff his costs of action. I have in mind to fix, in the exercise of my discretion, the quantum of the plaintiff’s costs at ST4,000.00.

I will hear counsel as to the quantum of the costs and as to the currency in which the formal judgment should be entered.

JUSTICE WILSON