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Taubmans Paints (Fiji) Ltd v Faletau [1999] TOCA 14; CA 15 1999 (23 July 1999)

IN THE COURT OF APPEAL OF TONGA
AN APPEAL FROM THE SUPREME COURT OF TONGA,
NUKU'ALOFA REGISTRY.

CA 15/99
BETWEEN

TAUBMANS PAINTS (FIJI) LTD.

Appellant
-V-

SIONE FALETAU

First Respondent

TRIDENT HEAVY ENGINEERING LTD

Second Respondent.

Coram
Burchett J Tompkins J Beaumont J

Counsel
Mr Lateef for Appellant
Mr Niu for Respondents.

Date of Hearing: 21 July 1999
Date of Judgment: 23 July 1999

JUDGMENT OF THE COURT

INTRODUCTION

This is an appeal by Taubmans Paints (Fiji) Limited ("Taubmans"), from a reserved judgment of a Judge of the Supreme Court, given on 15 January 1999 on a counterclaim by the respondents Sione Faletau and Trident Heavy Engineering Ltd. ("Trident") by which Taubmans was ordered to pay Trident the sum of $160,260 for damages for breach of contract. The counterclaim had been referred back to the Supreme Court by order of the Court of Appeal made on 20 June 1997 in an appeal in this and a related matter [CA.No.15 & 16/96] The history of the litigation to that stage appears in the reasons of the Court of Appeal published on 20 June 1997.

Although Taubmans was the defendant to the counterclaim, and was given notice of the hearing before the primary Judge on 8 December 1998, it did not appear then. Trident proceeded, in Taubmans's absence, to prove its case by calling witnesses and tendering documents. At the conclusion of Trident's case, his Honour said that he would treat the matter as one "of formal proof only", but would deliver a reserved, written judgment.

THE DECISION AT FIRST INSTANCE.

On 15 January 1999, his Honour published his reasons and made orders. He considered the issues arising on the counterclaim as pleaded, and Trident's evidence. The learned Judge said:

"There is no measure by which I can test (Trident's) evidence other than its apparent reasonableness and inherent credibility. If it appears on the balance of probability to be true, then I must accept it, I have no other course open to me. It appeared to me throughout the hearing to be inherently credible, and (Trident's) witness' main assertions all seemed reasonably founded upon other facts that were proved. In particular, his assertion of the existence of the contract itself was supported by other evidence that he produced, and his assertions of the likely market share and likely profit appear to rest comfortably on the evidence of likely sales and likely costs.