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FC Nichols (Proprietary) Ltd v Bloomfield [2005] TongaLawRp 1; [2006] Tonga LR 28 (4 January 2005)

IN THE SUPREME COURT OF TONGA

FC Nichols (Proprietary) Ltd

v

Bloomfield

Supreme Court, Nuku'alofa
Webster CJ
CV 514/2003

12, 13, 16, and 17 August 2004; 4 January 2005

Contract law – money allegedly owing for goods – not proved to be owing personally – claim dismissed

Practice and procedure – issue raised – should not be excluded because of technicality of pleadings

The claim arose out of a business relationship between the plaintiff, a meat importer, and the defendant, a senior officer in Customs. The plaintiff claimed $14,120.14 alleged to be owing for meat sold to the defendant in January and February 2003 and shipped to Vava'u. The meat was for a store operated by the defendant's parents. The plaintiff had also claimed $2000 in respect of money it had allegedly spent on repairs and upkeep of a motor vehicle belonging to the defendant's wife. The defendant disputed the quantity of meat purchased and counterclaimed for hire charges in respect of the vehicle at the rate of $60 per day for three months, $10,000 for services he allegedly gave to the plaintiff and $2000 for damages to his reputation. The plaintiff denied the counterclaims. The plaintiff accepted that the defendant had been acting as agent for an undisclosed principal, namely his mother, but submitted that the agency arrangement had never been pleaded.

Held:

1. If, despite inadequate pleadings, an issue was clearly raised and was understood by the opposing party to be raised and then dealt with, it should not be excluded because of technicality of pleadings -- Prasad v Morris Hedstrom (Tonga) Ltd (No 2) [1993] Tonga LR 69 (CA) at 73. The court could not make any order or a decree against the defendants disclosed principals as they were not parties to the case but as it had not been established that the amount claimed in respect of the meat supplied was owing by the defendant personally, that part of the claim was dismissed.

2. In relation to the claim for money spent on the motor vehicle, it was held that the wrong defendant had been sued and it should have been the owner of the car, i.e. the defendant's wife. That claim was dismissed.

3. In relation to the counterclaim for alleged damage to the defendant's reputation, the court held that a long established form of liability in tort was damage to reputation but judicial proceedings were absolutely privileged. Therefore, as the alleged damage to reputation counterclaim related only to the allegations made in the plaintiff's claim, it could not succeed and it, along with the other counterclaims, was accordingly dismissed.