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Chand v Joyce [2013] FJMC 151; Civil Case 53.2009 (9 April 2013)

IN THE RESIDENT MAGISTRATE'S COURT
WESTERN DIVISON AT NADI
CIVIL JURISDICTION

Nadi Civil Case No. 53 Of 2009

BETWEEN:

UMESH CHAND
PLAINTIFF

AND:

TIM JOYCE
DEFENDANAT

JUDGMENT

[1] On 8 April 2009 Plaintiff filed a claim seeking payment of the sum of $16,000.00 with costs and interest from the Defendant for aluminium and joinery works done for the Defendant at his premises located at Lot 28, Sovereign Quays, Denarau, Nadi.

[2] The Defendant denied the claim of the Plaintiff and filed a Statement of Defence and Counter Claim on 20 May 2009. The Defendant stated that the Plaintiff failed to remedy defects in the sum of $8,000.00 and reinstall some of the doors in the sum of $3,150.00. Further the Defendant claimed penalty sum for damages in the sum of $24, 833.59.

[3] According to the Plaintiff, On or about 15 February 2008, at the request of the Defendant the Plaintiff agreed to supply to the Defendant and install at his premises at Lot 28, Sovereign Quays, Denarau, Nadi aluminium bi-fold doors and louvre windows ("the chattels") to the total of $62, 083.45. The chattels were listed on various documents prepared by the Plaintiff which contained certain terms and conditions and which documents were forwarded for the supplies. The chattels were supplied by the Plaintiff to the Defendant on these terms and conditions which were accepted by the Defendant. It was a term of the agreement that the Defendant was to pay the Plaintiff the agreed contract sum on a pro-rata basis upon installation of the aluminium bi-fold doors and louvre windows. The Plaintiff states that in breach of the agreement, the Defendant has failed to pay to him the final balance sum of $16,000.00 for the aluminium bi-fold doors and louvre windows supplied and installed at the Defendant's request.

[4] According to the Defendant, there was no agreement made on 15 February 2008 and was only a quotation provided by the Plaintiff. As such there are no terms and conditions in the alleged document. There was no agreement as to the payment of the contract sum. The Plaintiff breached the agreement by failing to provide good workmanship and failing to provide the work in accordance with the plan and specification. The Defendant also stated that the quotation dated 15 February 2008 was accepted by the Plaintiff on 26th February 2008 less 5%. The Plaintiff agreed that the chattel supplied and fitted is the final measurement as per agreement made on 10 February 2008. The jobs by the Plaintiff were never completed on the agreed date. Some of the works were done not in accordance with good workmanship manner and /or improperly installed. Despite frequent request the Plaintiff failed to remedy the default and repair the damage. The Defendant at his own expense spent $8,000.00 to remedy the work done by the Plaintiff and hired Quadrant Development Ltd to reinstall all doors at a cost of $3,150.00. The Plaintiff took more than 7 months (28 weeks) after the agreed date of completion of the work contracted to and he is yet to complete. The Defendant calculated the penalty sum for such delay in the sum of $86,917.04 which the Plaintiff has to pay to him and or deduct from the contracted sum leaving a balance of $24,833.59 due and owing to the Defendant. The Defendant further stated that he suffered loss, mental distress, constant pressure and humiliation by the action of the Plaintiff.

[5] The Defendant, as counter claim, claims special damages in the sum of $35,983.59, general damages and cost.

[6] The issue to be decided by the court is that whether the Plaintiff is entitled to claim the sum of $16,000.00 from the Defendant for the aluminium bi-fold doors and louver windows or that whether the Defendant is entitled to recover from the Plaintiff the sum of $24, 833.59 and general damage as formulated in the Statement of Defence and Claim of the Defendant.

[7] At trial, the Plaintiff gave evidence for himself and called Jitesh Jit Singh (PW1) to give evidence on his behalf.

[8] In evidence the Plaintiff stated that he was engaged by the Defendant to do aluminium works at his house. He gave a tender for the sum of $65,351.00 on 15 February 2008 (P/Exhibit No.1). This tender was agreed after negotiation at the sum of $62,083.45 in writing by the Defendant (P/Exhibit No. 4). He also stated that he completed the work he had contracted to do but he paid only two payments of $24,833.00 and 20,000.00 as per invoices (P/Exhibit No.5). He further stated that there was a balance of $16,633.00 for which he rendered an invoice on 03 November 2008 (P/Exhibit No.7) and which invoice has not been paid to date. He said that the defendant signed the invoice and wrote on the invoice that "installed except for minor defects".

[9] Under cross examination the Plaintiff admitted removing chattel from the Defendant house on 19 December 2008 but stated he could take the removed items when the police intervened.

[10] PW1 stated in evidence that he was the foreman for the Plaintiff at the Defendant's residence. He said he worked on the Defendant's property and did installation works. Mr. Ross was present and inspected all works on behalf of the Defendant. He denied the works were done of poor quality and the works were done properly.

[11] The Defendant gave evidence on his behalf and called Mr. James McArthur (DW2) to give evidence for him.

[12] In evidence the Defendant stated that he agreed subject to certain conditions he contracted with the Plaintiff for aluminium and joinery works for the sum of $62,083.45. He said the conditions were that the Defendant was to provide a cyclone proof certificate for the work he has done and he would pay penalty damages at the rate of 5% per day. He also told that he had problems of delays from the Plaintiff right from the beginning and had clearly said that the Plaintiff was to pay damages in the event of delay. He further told that 0n 19 December 2008 when he was not present at his house the Plaintiff came with his men and removed some of the doors. He then had to call the police to restrain the Plaintiff from removing the doors. He spent the sum of $3,543.75 in order to have the doors refitted.

[13] In cross examination he stated that some of the goods belonged to the Plaintiff, he never had the dispute about the payment and never had any intention not to pay but had some issues still left to sort out.

[14] DW2 in evidence stated that the joinery works not consistent with the drawings. He confirmed that he inspected the Defendant's residence on or about September 2009 and submitted a report to him. He said the installation of the joinery was poor, there was no sills, no sealant, no drain holes, stuffs to light and no cyclone rated.

[15] The Plaintiff is claiming from the Defendant the sum of $16,000.00 being the balance sum for the works done less the sum of $672.94 for installation of a door stopper which was to be done after granite works on the floor had been complete.

[16] The following matters are not in dispute between the parties:

1. On 15 February 2008 the Defendant agreed the quotation provided to him for the aluminium and joinery works to be done at his residence at Denarau at the sum of $62,083.45.
2. The Defendant paid the sum of $44, 833.00 from the contract price.
3. The Defendant acknowledged that the works were complete on 3 November 2008 and he signed off on the invoice number 2216 for the sum of $16,672.94. The Defendant also wrote the words "installed except for minor defects" on the invoice immediately after his signature.
4. On 19 December 2008 the Plaintiff with his men went to the Defendant's residence and removed 9 doors and loaded but prevented from taking them as police intervened.
   

[17] During cross examination the Defendant admitted that some of the goods belonged to the plaintiff that he wanted to pay but there were few things to sort out before making payment.

[18] The Defendant's complaints were that the Plaintiff did not provide cyclone rating for the glass he supplied. The works were not done properly or works were poor or substandard that he incurred further costs to repair the defects. There was delay in completion of the work and there was agreement for the Plaintiff to pay penalty at the rate of 5% of the contract sum for any delay.

[19] The Defendant admitted during cross examination that he did not settle the final invoice for $16,000.00 although he acknowledge by signing on it. He stated that he did not make the payment as there were some matters to be sorted out by the Plaintiff. It is to be noted that the Defendant had acknowledged the said invoice under protest. This is clear from the words he wrote under his signature that "installed except for minor defects". The Defendant was not satisfied with the works done by the Plaintiff. The Plaintiff had completed the works through his workmen. After noticing some defects in the works in that rain water coming in and screws were coming off. The Defendant wanted the Plaintiff to come and see the defects. The Plaintiff never came to see the defects personally. He avoided having a meeting with Defendant. Instead, the Plaintiff sent his workmen to rectify the defects but still rectification was not done properly. Here I should say that under the contract the Plaintiff was under an implied condition that goods to be supplied must be merchantable goods.

[20] Since the final invoice was not settled the Plaintiff with his men came to the Defendant's house when he was away and removed the doors and loaded but prevented by the police from taking the removed doors out of the Defendant's premises. The Plaintiff claims that he had right to do so under Romalpa clause that where the goods are sold on credit with the intention that the property in the goods remain with the seller until full payment has been made. The Romalpa clause has no application is this case for two reasons. Firstly this is not a sale on credit. Secondly the fittings here meant to be permanent. Further this clause in this case created by the Plaintiff on the invoice on his own.

[21] The Plaintiff has to be blamed for removing the doors from the Defendant's house. The Plaintiff had no legal right to do so. In this case the Plaintiff has acted unreasonably and caused additional expenses to the Defendant on refitting the removed doors in the sum of $3,150.00.

[22] Pursuant to Confirmation of Work to Progress agreement reached on 15 May 2008 between the parties (D/Exhibit No.5), it was agreed that door 8 was varied to 3 panel bi-fold doors. The time frame for installation of louvre frame windows was one week after shipment arrived from New Zealand. The entire job was to be completed by 11 April 2008 but completed by 4 November 2008. There has been considerable delay on the part of the Plaintiff to complete the job. For which the Plaintiff must be penalized. The 5% penalty clause has been invented by the Defendant through email correspondence. In cross examination the Defendant stated that he was not sure whether this condition was in writing or not. Therefore I cannot accept this clause as a condition of the contract. However, I deduct $5,000.00 from the claim for the delay in completing the job and for removing the doors instead of rectifying the defects in fitting the chattel. As a result the Plaintiff is entitled to recover the sum of $7,850.00.

[23] There was no express agreement between the parties to recover interest on the delayed payment. Therefore the Plaintiff is not entitled to claim interest on the delayed payment. The interest clause was created in his email sent to the Defendant hence he is not entitled to claim interest on the delayed payment.

[24] Now I turn to the Counter Claim. The Defendant in his Counter Claim claiming the following:

1. $8,000.00 for remedial works;
2. $3,150.00 for installation works by Quadrant Development Ltd; and
3. $24,833.59 for penalties.
   

[25] I cannot allow $24,833.59 for penalties for the reasons stated in paragraph 22 of this judgment. The Defendant also claims $8,000.00 for remedial works. There is no evidence in court that the Defendant actually spent $8,000.00 for remedial works. The Defendant did not provide any invoice for these expenses. I must allow the Defendant's claim for $3,150.00 for installation works, because the Plaintiff removed 9 doors from the Defendant's residence. This has been deducted from the Plaintiff's claim. He should have necessarily incurred expenses in refitting them. Subject to this I disallow other counter claims made by the Defendant.

[26] For the foregoing reasons I find that:

1. The Plaintiff is entitled to judgment in the sum of $7,850.00;
2. The Plaintiff is not entitled to interest for delayed payment;
3. Counter claim of the Defendant is dismissed (subject to allowance of $3,150.00 which has been offset against the Plaintiff's claim); and
4. Each party to bear their own costs.
   

[27] Orders accordingly.

Dated at Nadi this 9th day of April 2013

.............................................
M H Mohamed Ajmeer
Resident Magistrate

Mr.Amit Singh for the Plaintiff
Mr Maopa E for the Defendant