D. Rampersad & Company Ltd v Kall Company Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice R. Rahim |
| Judgment Date | 10 February 2021 |
| Neutral Citation | TT 2021 HC 36 |
| Docket Number | Claim No: CV2016-02606 |
| Court | High Court (Trinidad and Tobago) |
IN THE HIGH COURT OF JUSTICE
the Honourable Mr. Justice R. Rahim
Claim No: CV2016-02606
Claimant: Ms. L. Kisto instructed by Ms. J. Rogers
Defendant: Ms. K. Bharath-Nahous
This claim having gone elsewhere and having been remitted to this court by Their Lordships of the Court of Appeal, it now falls upon the court to determine the long outstanding application of the claimant of July 3, 2017 to strike out the amended defence and counterclaim of the defendant and for the grant of summary judgment filed February 22, 2017.
By Claim Form filed on July 28, 2016 the claimant claimed that in or about July 28, 2015 it received from the defendant a request for quotation (“the RFQ”) for the supply, installation and commission of two ECOPOD Wastewater Treatment Systems (“the systems”) for the Maracas Beach Facility Improvement Works (“the project”). In response to the RFQ, the claimant sent to the defendant its initial budgetary proposal dated August 21, 2015 (“the initial proposal”).
The claimant alleged that during the period of September 16, 2015 and October 6, 2015 by reason of the defendant having made several material changes to the RFQ, the claimant issued a revised tender proposal dated October 6, 2015 (“the revised proposal”) for the systems.
According to the claimant, it subsequently received from the defendant the following;
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i. The defendant's purchased order No. 21125 dated October 13, 2015 (the purchase order”) wherein the price stated in the purchase order mirrored that of the claimant's revised proposal and at the same time;
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ii. A copy of the claimant's revised proposal duly stamped, agreed and approved by the defendant's Chief Operating Officer, Roger Ganesh (“Ganesh”).
The claimant claimed that upon receipt of the aforementioned documents, there was a binding contract for it to supply the defendant with the systems for the price of $4,633,683.76 VAT exclusive. In keeping with the terms of the contract, the claimant awaited the first milestone payment from the defendant which was “30% upon receipt of purchase order, Net cash” before placing an order for the systems as the contract afforded the defendant no credit facilities for the first payment. In order to facilitate the defendant in making the first payment and upon the defendant's request for supplemental terms and conditions to the contract, the respective duly authorized representatives of the claimant and the defendant signed mutually agreed supplemental terms and conditions to the contract on February 22, 2016 (“the supplemental terms”).
According to the claimant, pursuant to the defendant's request, the supplemental terms was dated December 8, 2015 which coincided with the date of the first payment received by the claimant from the defendant by way of cheque. The funds representing the first payment were eventually made available to the claimant's bankers in or about December 18, 2015 and so in or about January 13, 2016 the claimant placed the requisite order for the systems from its third party supplier in compliance with the contract.
Further, in accordance with the contract, the second milestone payment was to be made to the claimant by the defendant in the manner of “40% upon equipment readiness to ship, Net cash”. As with the first payment, the contract afforded the defendant no credit facilities for the second payment.
The claimant claimed that the systems were eventually ready to ship on or about April 27, 2016 which was a delay of about forty days than what was agreed to in the contract and which the defendant agreed and acknowledged as an agreed extended time for same.
By reason of the expected date of the readiness of the systems to be shipped, the claimant invoiced the defendant for the second payment in the amount of $2,085,157.69 VAT inclusive (“the invoice”) so that the defendant could be notified and make the necessary arrangements for the second payment on a timely basis. The invoice was received by the defendant on or about March, 10, 2016.
It was the claim of the claimant that in breach of the contract and/or the supplemental terms, the defendant failed and/or neglected to pay the second payment to the claimant despite the claimant's several and/or repeated demands to the defendant to so do. Consequently, the claimant claimed the following relief;
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i. Specific performance of the contract in accordance with the provisions of the contract and/or the supplemental terms;
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ii. Interest pursuant to section 25 of the Supreme Court of Judicature Act Chap. 4:01 at such rate and for such period as the court shall deem fit;
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iii. Such further and/or other relief as the court may deem fit; and
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iv. Costs.
The claimant claimed the following relief in the alternative;
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i. Damages in lieu of specific performance or at common law;
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ii. Damages arising from any consequential loss suffered by the claimant;
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iii. Interest pursuant to section 25 of the Supreme Court of Judicature Act Chap. 4:01 on any sum found due at such rate and for such period as the court shall deem fit;
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iv. Such further and/or other relief as the court may deem fit; and
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v. Costs.
By Amended Defence and Counterclaim filed on February 22, 2017 the defendant claimed that the contract governing the parties' respective obligations was only executed on February 22, 2016 and dated December 8, 2015. This is the document referred to by the claimant as the supplemental terms. According to the defendant, the first payment made to the claimant was by cheque payment dated December 11, 2015 and was made pursuant to the claimant's invoice of October 19, 2015 for the sum of $1,598,620.90.
The defendant put the claimant to strict proof that the systems were ready for shipment on or about April 27, 2016. The defendant denied that it agreed and/or acknowledged as an agreed extension of the time for same. According to the defendant, the claimant was in breach of the agreement between the parties for failure to meet the time schedules as set out by the agreement and its continued delays in the execution of its obligations under the agreement.
The defendant admitted that it received an invoice from the claimant for the sum of $2,085,157.69 Vat inclusive. However, the defendant averred that the invoice which the claimant claims to have been sent by reason of the expected date of readiness of the systems to be shipped was issued in breach of the agreement between the parties which expressly provided for the second milestone payment of “40% upon equipment readiness to ship”.
As such, it was the case of the defendant that by reason of the breaches of the terms of the contract, it was entitled to rescind the contract and reject the goods or in the alternative it was entitled to treat the contract as having been repudiated by the claimant.
The defendant further admitted that it did not make any payment to the claimant for invoice dated March 8, 2016. According to the defendant, the main reason it did not make any payment to the claimant under that invoice was because the ancillary defendant, Community Improvement Services Limited (“CISL”) terminated the substantive contract for the Maracas Beach Facilities Improvement Works (“the project”) part of which was the water waste treatment plant which was the subject of the contract between the defendant and the claimant.
According to the defendant, the claimant was well aware of the termination of the substantive contract between CISL and the defendant and so the claimant was under a duty to mitigate its losses. The defendant therefore averred that by reason of the aforesaid the performance of the contract became impossible and it was discharged from further performance of the contract in circumstances where the contract was frustrated.
Further and/or in the alternative, the defendant claimed that as CISL wrongfully terminated the substantive contract, it is entitled to be indemnified by CISL in respect of any liability of it to the claimant. This limb of the defence has since been crystalized in an Ancillary claim brought by the defendant against CISL.
The defendant counterclaimed for the following relief;
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i. Damages for breach of contract and/or loss of profit in the value of 15%-20% of the Water Waste Treatment component of the project in the sum of $695,052.56–$926,736.75 plus VAT;
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ii. Further and/or in the alternative damages arising from any consequential loss suffered by the defendant;
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iii. Interest pursuant to Section 25A of the Supreme of Judicature Act Chapter 4:01;
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iv. Such further relief as the Honourable Court may deem fit;
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v. Costs.
Part 26 CPR reads;
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26.2 (1) The court may strike out a statement of case or part of a statement of case if it appears to the court—
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(c) that the statement of case or the part to be struck out discloses no grounds for bringing or defending a claim;
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In relation to the striking out of a defence, in M.I.5 Investigations Limited v Centurion Protective Agency Limited 1 Mendonça J.A. noted at paragraph 7 that:
Where there is a denial it cannot be a bare denial but it must be accompanied by the defendant's reasons for the denial. If the defendant wishes to prove a different version of events … he must state his own version.
Part 10.5 (3) and (4) of the CPR sets out the information which the defendant must include in its Defence. It reads:
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10.5 (3) In his defence the defendant must say—
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(a) Which (if any) allegations in the claim form or Statement of Case he admits;
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