Build to Last Hardware and Roof Manufacturing Ltd v Merlin Lacroix, L's General Supply Store Ltd

JurisdictionTrinidad & Tobago
JudgeMr. Justice R. Rahim
Judgment Date28 June 2022
Neutral CitationTT 2022 HC 147
Docket NumberClaim No. CV2018-04281
CourtHigh Court (Trinidad and Tobago)
BETWEEN
Build To Last Hardware And Roof Manufacturing Ltd
Claimant
and
Merlin Lacroix
1st Defendant
L's General Supply Store Limited
2nd Defendant
Before

the Honourable Mr. Justice R. Rahim

Claim No. CV2018-04281

REPUBLIC OF TRINIDAD AND TOBAGO

Appearances

Claimant: Ms. T. Kalloo instructed by Ms. C. Prowell

Defendant: Ms. L. Hosein

1

The Claimant, a roof manufacturer, is a limited company and supplier of building material. The Second Defendant is also a limited company and a hardware store and the First Defendant a Director thereof. The claim is for money owing on unpaid invoices for building materials supplied to the Defendant beginning on or around July 15, 2013 when the Defendant requested the supply of building materials as set out in invoice 11717 1 and the Claimant delivered the items to the Defendant per credit facilities extended to the Defendant. The materials delivered were listed on an invoice and signed for by the Defendants upon delivery.

2

Each invoice contained a term that if unpaid for thirty (30) days, the invoice would attract a two percent (2%) rate of interest. It is alleged that despite payment on some invoices, there remains outstanding, a balance on the principal in the sum of five hundred and seventy-one thousand, nine hundred and twenty-three dollars and sixty-nine cents ($571,923.69) and interest in the sum of five hundred and eleven thousand, four hundred and forty-eight dollars and seventy-one cents ($511,448.71).

3

The Defence is that some of the invoices are unknown to the Defendant and part of the claim is statute-barred. They say that the relevant period of limitation for invoices (2013 and 2014) 11717 sixty-three thousand, two hundred and fifty dollars ($63,250.00); 12165 thirty-one thousand, seven hundred and fifty dollars ($31,750.00); 12504 one thousand, six hundred and fifteen dollars and seventy-five cents ($1,615.75); 14029 one thousand, two hundred and twenty-one dollars and eighty-eight cents ($1,221.88); 15447 twenty-five thousand, three hundred dollars ($25,300.00); 18541 twenty-five thousand, three hundred dollars ($25,300.00); 15790 four thousand, seven hundred and forty-nine dollars and fifty cents ($4,749.50); 16283 sixty-two thousand, five hundred and sixty dollars ($62,560.00); and 16374 twenty-five thousand, seven hundred and sixty dollars ($25,760.00) have expired before action was brought.

4

Further, twenty-six (26) invoices out of the fifty-two (52) claimed by the Claimant are admitted. Additionally the Defendants say that all invoices for the years 2013 and 2014 have been paid. They say therefore, that the sum of twelve thousand, five hundred and twenty-one dollars ($12,521.00) is admitted as outstanding.

5

The Defendants’ case on interest is that although the invoice carried an interest charge of two percent (2%) per month payable on unpaid bills over thirty (30) days, the parties’ business agreement impliedly made an exception to that term so that the Defendants would pay by cheque for a group of invoices even after the thirty (30) day period elapsed on those invoices without interest being charged.

6

In its written submissions however, the Claimant admitted that five invoices – 17151 eleven thousand, five hundred dollars ($11,500.00); 17167 ten thousand, one hundred and twenty dollars ($10,120.00); 17173 one thousand, six hundred and seventy-four dollars and forty cents ($1,674.40); 17177 one hundred and eighty-four dollars ($184.00) and 17217 nineteen thousand, five hundred and fifty dollars ($19,550.00) were in fact duly paid by the Defendants. The Claimant therefore, claims for only forty-eight (48) invoices as due and owing by the Defendants.

Amended Reply
7

The Claimant avers that most dealings with the Defendants were with Merlin La Croix trading as L's General Hardware Store. As such, invoice number 11717 was signed by agents of the First and Second Defendants.

8

In response to the Claim that claims on some of the invoices are statute-barred, the Claimant set out that five (5) payments made by the Defendants totalling ninety-five thousand dollars ($95,000.00) were applied to the said invoices between February 12 and July 26, 2016. This payment was made towards the Defendants’ total outstanding debt as the cheques were paid “on account” and not specific invoices. Therefore, the Claimant's right of action is deemed to have accrued on or around July 26, 2016, and not before this time. In further response, the other invoices dated 2013 and 2014 are not outside the relevant limitation period.

9

In response to the fifty-two (52) transactions between the parties, the Claimant says the Defendant supplied building material for fifty-three (53) invoices. The Claimant explained that some of those invoices were produced after receiving purchase orders from the Defendants’ fax number bearing the First Defendant's letterhead. The letterhead and signatures on the purchase orders are similar or identical to the letterhead, and signatures of other purchase orders which invoices were received and acknowledged by the Defendants as genuine. Finally, the Claimant denied having waived its entitlement to interest.

ISSUES
10

The Issues to be determined are as follows:

The Case for the Claimant

Candice Dubra

  • i. Whether the First Defendant is a proper party to these proceedings;

  • ii. Whether the Claim is statute-barred in respect of the whole or part of the debt;

  • iii. Whether the Defendant is indebted to the Claimant in the sum claimed in the forty-eight (48) invoices;

  • iv. Whether interest was part of the agreement between the parties and if it was, whether the Claimant waived its rights to contractual interest.

Evidence
11

Candice Dubra is a Wholesale Clerk employed with the Claimant since 2011. She is responsible for collecting orders, writing invoices and sending the orders to be manufactured in the hardware. Dubra testified that an employee of the Second Defendant, Kelly, would contact her to place an order or the purchase order. Dubra then prepared an invoice and sent the order to the Claimant's factory, which would then deliver the order to the Defendants. Should any problems arise, Kelly would liaise with Dubra, and she received no communication regarding the unpaid invoices.

Cross-examination
12

Dubra testified that the First Defendant never placed an order with her, nor did she liaise with the First Defendant. In addition, no invoice was prepared in his name. She explained that she prepared invoices using an invoice book in numerical order. However, she could not explain how consecutive invoices appeared to be repeating the same price for the same material. 2 Dubra

denied that the invoices were prepared in such a way as to double invoice the Second Defendant for materials
13

The evidence of the other witness in cross-examination on the issue of participation of the First Defendant in the transactions is largely the same so that the court will not repeat it hereafter, suffice it to say that the court has considered all of the said evidence.

Kumarie Harripersad

14

Kumarie Harripersad is a Wholesale Clerk employed with the Claimant. Harripersad also received orders from the Second Defendant and prepared invoices. Harripersad and Dubra shared the task of preparing the invoices and sending the orders to the Claimant's factory. Harripersad testified that the Second Defendant paid towards the invoices by one cheque but would specify the invoices to which payments were being made. Thereafter, Harripersad would enter the information on the Claimant's system to reflect the specific invoices paid.

15

In July 2015, Harripersad and the Claimant's Accountant, Dadbahal-Persad visited the Defendants at its business place in Arouca to query outstanding invoices. They spoke with the wife of the First Defendant, Kelly La Croix, who informed them to leave copies of the unpaid invoices, receipts for paid invoices and a reconciliation document. According to Harripersad, the CEO of the Claimant held weekly receivables meetings to discuss the Defendant's outstanding debt and how it could be resolved.

Cross-examination
16

An invoice book was used to prepare all invoices, which would then be entered electronically on Peachtree, an accounting software that manages the account of the Second Defendant with the Claimant, including the checking of outstanding invoices and the length of time the invoices have been outstanding. In addition, Peachtree does not allow an invoice to be inputted after one year.

17

Harripersad also explained that the Second Defendant made payments on specific invoices so although it would write a cheque for a lump sum, this amount would be applied to specific invoices chosen by it. Thereafter, a receipt would be sent to the Defendant setting out the invoices to which the monies were applied.

18

The period of credit allowed to the Defendant on an invoice was thirty (30) days. However, every week the Claimant's driver delivered the original invoices and a prepared statement of all outstanding invoices. Harripersad admitted that these statements were exhibited in court. She also admitted that the Second Defendant was never billed for interest until the Claimant took action to recover the outstanding debt.

19

The Claimant held meetings with employees on receivables every Monday at which they would examine the debts owed by its customers. She explained that the Second Defendant did not pay its bill in consecutive order but instead chose specific invoices from the weekly statement. Although the Second Defendant was a significant customer, the Claimant continued to supply the Second Defendant with goods despite the existence of the outstanding debt. The statements that were sent to the Second Defendant recorded the amount but not the date of the invoice. Finally, she testified that the Second Defendant paid an invoice every week by cheque.

Cindy Dadbahal-Persad

20

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