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Team Construction and Management Co. Ltd v Metals Works & Joinery Ltd [2012] FJMC 81; Civil Case 6.2010 (20 April 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil Case No 6/2010

BETWEEN

TEAM CONSTRUCTION & MANAGEMENT CO. LIMITED
Plaintiff

AND

METALWORKS & JOINERY LTD
Defendant

JUDGEMENT

1. The Plaintiff instituted this action on the 22nd January 2010 seeking the following reliefs in the writs of summons;
   
   1. judgement in the sum of $ 22,306.83
   2. Post judgement interest
   100. Costs of this action
   4. Such further/or other relief as this honourable court may deem just
   5. That the judgement interest and costs to be limited to the monetary jurisdiction of this honourable court.
      
2. The Defendant filed the statement of defence with a counter claim seeking the following reliefs;
   
   1. Plaintiff's Statement of Claim be struck out with cost on a solicitor client indemnity basis
   2. Judgement in the sum of $ 11,200.00
   100. General damages
   4. Cost of the action on indemnity basis.
      
3. The case was taken up for trial on the 16th February 2011. A director of the Plaintiff Company gave evidence for the Plaintiff and a project Manger of the Defendant Company gave evidence for the Defendant. During the trial the following facts were agreed by both parties;
   
   1. The existence of the two written agreements.
   2. The project three which came about through e mails for $ 6800.
   100. The variations stated in paragraph 12 of the Statement of Claim for the following sums;
        
        1. $ 11,250
        2. $ 225
        3. $ 5062.50
           
4. Bissun Prasad, Director of the Plaintiff Company gave evidence that the Plaintiff entered into a contract with the defendant company to carry out management of internal aluminium partition fit outs for a sum of $ 20, 000 exclusive of VAT. Plaintiff's exhibit 1 was tendered to confirm the contract. However it should be noted that according to the said document the value of the contract is stated as $ 10,000. The witness referred to this contract as the first contract.
   
5. It should also be noted that the first paragraph of the document tendered by the Plaintiff as exhibit 1 is not legible, as a portion of the text is missing. When a document is tendered by a party, due diligence must be shown even by tendering legible and clear documents since they could have a bearing on the crux of a case.
   
6. Be that as it may, The Plaintiff's witness stated that he was supposed to carry out fit outs in building 2 level 1-5 and building 3 level 3-5. He said it was not the agreement signed by the parties. Yet it was not described as to why he said it's not the agreement signed by the parties. However on the perusal of the exhibit 1, it appears that the agreement had been to carry out management work for internal aluminium partitioning framing trade to building 2 and 3, all levels.
   
7. The Plaintiff has stated in the Statement of claim that the amount of the first project is $ 22,500 Vat inclusive. As it was earlier mentioned the amount of the first project as per the contract marked as Exhibit 1 is $ 10,000 VAT exclusive. It was not explained as to how the figure 10,000 turned out to be $ 20,000. The witness said that "on the very first day the defendant called me and said he will give a labour contract for a sum of $ 20,000 exclusive of VAT." Exhibit 1 is the document he produced as "this is the contract". But it only refers to $ 10,000. Further there is an additional condition of the contract which says that it should not exceed $ 20, 000 VIP including bonus. It should be noted that it is the duty of the Plaintiff to put forward his claim without ambiguity.
   
8. However the Defendant did not dispute the value claimed by the Plaintiff for the first contract. Further it appeared that the Plaintiff has admitted the value of the first contract as $ 22,500 as per the Exhibit 10. Thus I accept the value of the first contract as $ 22,500 inclusive of VAT.
   
9. The witness, Bissun Prasad gave evidence that the second agreement was signed for internal painting work for building 2 levels 1-5 and building 3 levels 3-5 for a sum of $ 20,000. The written contract was tendered in evidence as Plaintiff's Exhibit 2. It was referred to as the second contract. The document states that the value of the contract is $ 20,000 VAT exclusive. According to the Statement of Claim the value of the second contract is $ 22,500 inclusive of VAT.
   
10. Further Bissun Prasad said that he entered into another contract with the Defendant company to carry out aluminium partitioning fit outs in building 1 level 2 as a variation of the agreement. This was referred to as the third contract and he further said that the agreement was made via e mail. He said "It was confirmed later through e mail. The price was informed through e mail. He disputed the price and later he agreed to a middle figure like $ 6000". The copy of the email was marked as Plaintiff's Exhibit 3. According to the Statement of claim the value of the third contract is stated as $ 6,800 inclusive of VAT. However the Defendant did not dispute the existence of a third contract and it is an admitted fact that the project three came about through e mails for the sum of $ 6,800.
    
11. The main issue in this case is the variations to the contracts. However three variations are already admitted by the Defendant for the amounts of $ 11,250, $ 225 and $ $ 5062.50. The witness for the Plaintiff Company said that another three variations were done with regard to building 3 levels 4 & 5. The amount of those variations and the details of the work can be summarized as follows according to the evidence of the witness;
    

12. The witness did not specifically mention, the contract to which the alleged variations were done. However it can be assumed that the alleged variations claimed by the Plaintiff is with regard to the first contract as it relates to building 3 and aluminium partitioning is mainly involved with the first contract. Further the Statement of Claim refers to these variations as variations to project one.
    
13. The witness said that the variations he claims were done by verbal agreement. No written evidence was submitted to support these claims. Further there was no other evidence put forward by the Plaintiff to prove that such variations were done apart from the oral testimony of the witness.
    
14. At this juncture it would be pertinent to consider the terms and conditions applicable to variations to the contract set out in the agreement marked as Plaintiff's Exhibit 1, relating to the first project. Upon perusal of the agreement relating to the first project I have observed that paragraph 5.1 of the terms and conditions reads as follows;
    

"All variation and architects instruction to be confirmed in writing to Team Construction & Management."

15. Thus it is clearly discernible that the parties have agreed to do any variation in writing. This was admitted by the witness for the Plaintiff Company during the cross examination as follows;
    

Q: You are familiar with the terms of the contract?

A: Yes

Q: You are familiar that under the contract any variation to be in writing?

A: Yes

Q: You signed the contract and understood the terms?

A: Yes

Q: You claim for variations, were they in writing?

A: No

16. Further the witness, Bissun Prasad produced three worksheets marked as Exhibits 4, 5 and 6 to explain the above mentioned three variations claimed by him. However during the cross examination the witness admitted that those costing worksheets were never brought to the attention of the Plaintiff before. Further it appears that the variations claimed by the Plaintiff were not properly communicated to the Defendant according to the evidence of the Plaintiff itself.
    

Q: When were the works of each of the variations carried out?

A: I cannot exactly tell the date

Q: Have you ever brought the three costing worksheets to the attention of the Defendants?

A: No

Q: Isn't it true that to day is the first date you bring in these 3 worksheets?

A: Correct

Q: At any time did you bring these claims to the attention of the Defendant?

A: Yes I did

Q: How did you do that?

A: We informed verbally about extra charges. But it was not calculated then.

17. The cross examination by the Counsel for the defendant clearly demonstrated that the Plaintiff had double standards with regard to the variations claimed. It was high lighted through the documents of the Plaintiff itself. Plaintiff's Exhibit 8 is an email sent by the Plaintiff to the Defendant Company. It reads as follows;
    

"Sailesh,

Find attached progress claim for the sum of $ 10,294.33 vip. Further to conversation on site today we have not charged you for the variation which was listed on my e mail yesterday and for the making defects we will leave boys down on site only upon receiving defects list. As you know we gone over our limit to complete this project.

Your assistance will be highly appreciated.

Kind regards

Bissun Prasad"

18. It appears that according to the attachment of the said e mail, dated 26th June 2009 the total amount balance is stated as $ 10, 294.33. It does not show any charges for the variations claimed by the Plaintiff. However on the contrary another document with the same date, i.e. 26.06.09 was produced by the Plaintiff marked as Exhibit 7 with a total amount balance of $ 22,306.83. Further it includes the three variations claimed by the Plaintiff.
    
19. The Counsel for the Defendant tendered a document marked as Defendant's Exhibit 1. The Plaintiff's witness admitted that it is an invoice sent by his office to the Defendants for a sum of $ 65,073.57. The date on the invoice is 30th June 2009 and it has been sent with a memo signed by Bissun Prasad dated 14th September 2009. However during the cross examination Bissun Prasad said that it was an error done by a clerk and it was sent by mistake.
    
20. The Counsel for the Defendant tendered a notice of Demand and notice of intention to wind up marked as Defendant's Exhibit 2. According to that document it appears that on the 23rd September 2009 the Plaintiff has instructed Neel Shivam lawyers to send the said documents demanding $ 57,843.17 from the Defendant Company. However the witness said that it was a mistake done by his Solicitor.
    
21. Finally the writ of summons is filed for a sum of $ 22,306.83. It appears that the Plaintiff has been very uncertain about the amount he wanted to claim from the Defendant Company. Although the Director of the Plaintiff Company said that both his Solicitors who acted for him before and his own staff did mistakes with regard to the amount they claimed, I am not convinced about that explanation in the absence of other independent evidence. If the alleged variations were informed verbally as the Plaintiff claims it is not clear as to how the Plaintiff himself was uncertain about the figures.
    
22. I will now consider whether the Plaintiff was able to prove the existence of the alleged variations claimed by him. It would be pertinent to reproduce the following paragraph of the judgement of Dilrukshi Dias J in McGowan V Chand [2011] FJHC 230; HBC 206.2007L (21 April 2011)
    

"Variations in a project could either be alterations, additions or omissions. Works, which are not included expressly or impliedly in a contract, are therefore performed as variations. Variations constantly affect the 'contract price' where the owner would either be required to pay an additional sum for the alterations or additions. Else, the contractor would be required to refund monies to the owner if the variations amount to omissions. Variations also influence the 'contractual period'. While some variations may require additional time extensions, others may not require so. The architect/engineer or the project manager is, therefore, required to consider time extensions and cost of such time extensions. When professional services are provided in building contracts, such professionals are personally liable for their respective professional inputs in such buildings i.e. architects, engineers, etc. therefore, even if an owner requires alterations such alternatives may necessitate the input and the approval of the relevant professional experts to ensure that the variations would be safe and would not have any adverse effect on the construction. There requirements are more crucial in the present era than in the past in view of concomitant legal liabilities attached to professional's work. Furthermore, full knowledge of the variations enable the employer to consider consequences thereby either refuting or authorizing additional payments with precision. It therefore requires the parties to have a full understanding before commencing the works on variations. Aforesaid reasons have now prompted most modern contracts to contain explicit provisions requiring variations to be in writing.

In the absence of written approval for variation, it must evidence that, the owner had knowledge of and acquiesced the proposed variation for an owner to be liable for payment. If not, the owner, and in this case the plaintiff will not be liable for payment for variations."

23. The Director of the Plaintiff Company clearly admitted that according to the agreement any variation should be in writing. Further he admitted that the variations he claimed are not in writing. How ever he said that he verbally informed the Defendant Company about the variations. Further he added that by that time these amounts were not calculated. But there were no independent witnesses or evidence to corroborate that the Defendant Company was made aware of the said variations. Further there was no evidence produced by the Plaintiff that the Defendant consented or accepted the said variations.
    
24. In the circumstances I am not satisfied that the Plaintiff could prove that the Defendant had knowledge of or acquiesced to the variations claimed by the Plaintiff. Further the Plaintiff failed to prove on a balance of probability that he Defendant had agreed to the payments of these alleged variations claimed by the Plaintiff.
    
25. The Director of the Plaintiff Company further said that a cheque given by the Defendant Company was dishonoured and that is also included in this claim. The letter from the bank and the copy of the dishonoured cheque was tendered as Plaintiff's Exhibit 9. Later during the cross examination the witness admitted that even about the dishonoured cheque, his Solicitor made a blunder by demanding $ 6000 instead of $ 3000 from the Defendant Company. In any event it should be noted that there is no claim with regard to a dishonoured cheque in the Statement of Claim filed by the Plaintiff. The claim of the Plaintiff in this action is for the unpaid monies in relation to the variations claimed and there is no separate claim for a dishonoured cheque. It should be noted that the Plaintiff has put forward his case in a vague and confusing manner.
    
26. In any event I will now consider about the monies due by the Defendant. It was admitted by the Plaintiff that the Defendant had paid $ 57, 843.17. The total amount of the three contracts and the admitted variations are as follows;
    

27. The Plaintiff admitted that the Defendant has paid $ 57, 843.17. Thus the amount due from the Defendant stands as $ 10,494.33.
    
28. I will now consider whether the Defendant proved his counter claim against the Plaintiff. The Defendant has claimed in the Statement of Defence that;
    

"the Plaintiff carried out the subject works so negligently, carelessly and without regard to the terms of engagement that the same were deemed to be defective and the Defendant had to carry out rectification work at its own cost in the sum of $ 11,200. Inclusive in that was cost of completing certain work not done by the Plaintiff at all.

Particulars

1. Aluminium partitions not aligned properly
2. Poor painting work
3. Boarding not properly finished
4. Fastening works missing in most partitions
5. Meltika boards"
   

29. The witness for the Defendant gave evidence that the work done by the Plaintiff was Defective. He tendered two documents as defects lists. The Defendant's Exhibit 1 is a copy of a fax sent by FIRCA on the 27th August 2009. It contains a list of defects. The other document tendered as Defendant's Exhibit 2 is another defects list by FIRCA dated 23rd September 2009. It contains defects highlighted by pictures. However it appears that the Plaintiff is not liable for all the defects in the list marked as Defendant's Exhibit 2. When these two documents were shown, the witness, Mohammed Kalim Khan said that;
    

" I can recognize the documents. These documents came from FIRCA. It was served on Team Construction on the same date. These documents were sent from FIRCA because there were defects in the work done by Team Construction."

30. Further it was brought to the attention of the Court that the Plaintiff has admitted the work to be Defective by the Plaintiff's Exhibit 8 which is an e mail sent by Buissun Prasad by saying "for the making defects we will leave the boys down on site only upon receiving defects list." However it appears that the said e mail is sent on the 08th July 2009 and the defects lists marked as Defendant's Exhibit 1 and 2 are dated 27th August 2009 and 23rd September 2009 respectively.
    
31. On the perusal of the said defects lists, it is clearly evident that the Plaintiff is not responsible for all the defects. However the Defendant did not specifically mention the defects for which the Plaintiff is responsible.
    
32. In any event The Defendant has to prove that the amount he claimed was resulted by the rectification work necessitated by the careless and negligent manner of the Plaintiff's work. However the witness for the Defendant did not give any evidence on this point. The witness only said that when the FIRCA did not give the payments to the Defendant Company, they had to complete the job. He said "it cost more than 11,000 dollars for Metal Works to complete the job". It was not clear whether the said $ 11,000 was to rectify the defects of the Plaintiff Company or whether it was for the rectification of all the defects in the list. Only during the re examination he merely said that it cost about $ 11,000 to fix the defects of the Team Construction. Hence there was no proper opportunity for the Plaintiff to dispute this fact. There was no other evidence produced by the Defendant as to how they came up with the figure of $ 11,000.
    
33. In Khan v Vinod Patel Company Ltd [2008] FJHC 102; HBC 121 of 2006(30th April 2006) it was stated by Singh J that;
    

"Plaintiffs who bring actions for substantial damages must prove their damage. They cannot simply write down figures and assert that this is their loss and expect the court to grant those damages or loss. They have to prove their loss. The court looks at the circumstances and the nature of the case and if greater detailed are warranted, the court will insist on that: Bonham Carter v. Hyde Park Hotel – (1938) 6 TLR 177; Radcliffe v. Evans – (1986) 2 QB 524 at 532. There are situations where assessment of damages is largely speculative but the court does its best to arrive at a figure if it is satisfied that real damage has being suffered."

34. It should be noted that the Defendant in this case did not prove his claim with clear, precise and admissible evidence for the Court to determine the loss suffered by him. Although the Defendant has stated in the Statement of Defence he suffered loss of reputation and damage in business due to the Plaintiff's conduct he did not submit any evidence to prove that as well.
    
35. In the circumstances I am not satisfied that the Defendant could prove his counter claim on a balance of probability.
    
36. Accordingly I make the following orders;
    
    1. I enter a judgement in the sum of $ 10,494.33 in favour of the Plaintiff.
    2. Post judgement interest at the rate of 5% per annum from the date of the judgement until the full settlement.
    100. The Defendant's counter claim is dismissed.
    4. No order for costs.
       

Rangajeeva Wimalasena
Resident Magistrate
Lautoka
20th April 2012