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BP Southwest Pacific Ltd v Shindora [2000] FJHC 79; HBC0167J.1996S (27 June 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 167 OF 1996

BETWEEN:

BP SOUTHWEST PACIFIC LTD.
Plaintiff

AND:

SHINDORA f/n YANKANNA
T/A SHINDORA TRANSPORT
Defendant

Counsel: Mr R. Smith with Mr Hanif for Plaintiff
: No appearance for Defendant

Hearing: 22nd June 2000
Judgment: 27th June 2000

JUDGMENT

By writ of summons issued on 17th April 2000 the Plaintiff, a company involved in the sale of petroleum products, claimed as follows:

“2. On or about 1st October 1992 to 31st December 1992 certain petroleum products, tyres and tubes were supplied on account and delivered by the Plaintiff to Shindora f/n Yankanna, proprietor of Shindora Transport and having its principal place of business at Wailailai, Ba.

3 That the Defendant is presently and as at 31st December 1992, indebted to the Plaintiff in the sum of $27,942.56 .... with interest accruing thereon at the rate of 1.5% per month as from 1st January 1993 until settlement.”

By Statement of Defence, the Defendant said that the Plaintiff had no authority to supply fuel to any other person and charge it to the Defendant. He said that the arrangement was that the Plaintiff should personally sign the invoices or dockets for goods purchased by the Defendant.

The Defendant also said that the claim was unenforceable under the Sale of Goods Act, that there was no agreement to pay interest, and that the claim does not comply with the Indemnity Guarantee and Bailment Act.

This action appears to have taken a fairly languid course over the years. The Defendant was represented until counsel withdrew on 25th April 1996 when the matter was set for hearing. The trial was thereafter shifted to 22nd June 2000. However the Defendant made no appearance. An affidavit filed by his former solicitors and sworn by his son Krishna Prakash, states that the Defendant left Fiji two years ago and has not communicated with his family in recent months. His family does not know of his present address.

The trial proceeded in the Defendant’s absence, pursuant to Order 35 Rule (2) of the High Court Rules 1988.

The Plaintiff called one witness, Mr Kalidas, Financial Accountant at the Plaintiff Company. He gave evidence that the Defendant had made an application for credit facilities for the supply of petroleum products. The application was signed by the Defendant on the 3rd of July 1992, and was for a total amount of $8,000 each month for seven trucks and one private car owned by the Defendant. The Defendant’s declared business on this application was “Cartage Contractor.” By Clause 4, the application states “the Company reserves the right to charge interest on accounts not paid by the due dates. The rate of interest charged will be 1.5 percent per month.”

The other terms and conditions say that the credit card or charge card is to be used for the purchase of BP products only, that card holders must pay for products purchased by the card within 21 days immediately following the end of the calender month during which products were purchased, that cards are issued against individual vehicles and that a copy of the completed Sales Voucher must be signed by the authorised driver and a copy given to the driver at the time of the sale.

This document was signed by the Defendant under a declaration that he agreed to all the terms and conditions set out therein, and by a representative of the Plaintiff Company, on the same day.

Mr Kalidas gave evidence of the way in which petroleum products were supplied and paid for under the charge card system. He said that the authorised drivers presented their charge cards at the BP’s Service Station attendant who then signed a charge card voucher in triplicate. The customer also signed. All vouchers in respect of this claim were tendered as Exhibit 2. Each voucher has the signature of the station attendant who sold the products and of the driver who accepted them. Each voucher is in respect of an authorised vehicle specified in the credit application form.

A copy of the voucher is then sent to the Plaintiff Company, which then prepares a monthly statement for payment. Mr Kalidas tendered all statements in respect of this claim except for that of December 1992, which is missing. In place of the December statement he prepared a separate list of products supplied (Exhibit 4) which totalled $3842.13 for December.

Mr Kalidas said that after the first statement was presented to the Defendant in August 1992, he paid by way of a cheque that was initially dishonoured. However the cheque was eventually honoured by the Bank on 13th October 1992. That was the only payment made by the Defendant.

Thereafter, no payment was made until the cards were cancelled by the Plaintiff in December 1992. The total due at 31st December 1992 was $26,562.91. Interest at 1.5% per month for 21st January 1993 to 21st June 2000 on $26,562.91 is $35,422.00. The total claimed is $61,984.91.

It is apparent from Mr Kalidas’ evidence, which I accept, and from the exhibits he tendered, that the Defendant and the Plaintiff had agreed in July 1992 that the Defendant could purchase petroleum products at any service station selling the Plaintiff’s products, on the basis of the charge card. It is apparent that from August to December 1992 the Defendant used the charge card system to purchase products for all his authorised drivers. Furthermore, he used the system with no complaint and paid for the first month’s purchases by cheque. This speaks volumes about the Defendant’s intentions to be bound by the contract signed in July 1992.

The Defendant, by his Statement of Defence says that he had not agreed to the purchases being made through a third party. However it is clear from the nature of the credit application, the vouchers signed by his employees and the evidence of Mr Kalidas, that he applied for this mode of purchasing fuel products, and co-operated with it for six months before the facilities were cancelled by the Plaintiff.

Having used the products (and it is not suggested that the fuel was used fraudulently by any other person), signed the vouchers, and paid for one month’s consumption, the Defendant cannot now say that the system used was not authorised by him. Indeed the evidence is that he authorised the system from the 3rd of July 1992.

The reference to the Indemnity Guarantee and Bailment Act escapes me. Counsel for the Plaintiff was unable to assist. The contract between the Plaintiff and the Defendant appears to be a straight-forward application for the supply of BP’s products at any one of BP’s agents throughout the country. This is neither a contract of indemnity, nor a contract of guarantee.

The reference in the Statement of Defence to the Sale of Goods Act, similarly escapes me. If it is in respect of the involvement of the third party (the service station), I note that each charge card voucher is signed by the pump attendant at each service station. This is an acknowledgment on the part of the station, that it is selling products on behalf of the Plaintiff. If the reference is to section 6 of the Act Cap 230, that all sale of goods on credit shall be made in writing, in duplicate the details of the sale, and the price, I find as a matter of fact, that each voucher complied with section 6 of the Act.

I find therefore, having heard the evidence of Mr Kalidas, and having considered the exhibits tendered, that there was an enforceable contract between the Plaintiff and the Defendant to supply petroleum products on credit for his eight vehicles. I find that the products he did not pay for totalled $26,562.91 at 31st December 1992. I accept that the Plaintiff is entitled to interest under the contract at 1.5% per month for 89 months totalling $35,422.00.

I therefore find for the Plaintiff in the total sum of $61,984.91. The Defendant must also pay the Plaintiff’s costs of this act which I set at $600.00.

Nazhat Shameem
JUDGE

At Suva
27th June 2000