Maharaj (t/a A. Maharaj Tyre Service) v Roopnarine and Roopnarine (Both t/a Refinery Industrial Fabricators Ltd)
| Jurisdiction | Trinidad & Tobago |
| Judge | Rajkumar, J. |
| Judgment Date | 19 April 2012 |
| Neutral Citation | TT 2012 HC 133 |
| Docket Number | CV 4524 of 2012 |
| Court | High Court (Trinidad and Tobago) |
| Date | 19 April 2012 |
High Court
Rajkumar, J.
CV 4524 of 2012
Ms. Tammy Cato for the claimant.
Mr. Kingsley Walesby for the 1st, 2nd and 3rd named defendants.
Civil practice and procedure - Pleadings — Whether Statement of Claim disclosed cause of action — Whether parts of the claim were statute — barred.
The claimant's claim is against Rudy Roopnarine and Paula Kim Roopnarine trading as REFINERY INDUSTRIAL FABRICATORS LIMITED, for the recovery of $641,474.04, and “bailiff fees” of 20% of the sum of $641,474.04, in addition to interest.
The total claim is therefore for $769,768.85 in addition to interest.
The claimant claims this amount allegedly on the basis of work done by him on vehicles in respect of which invoices were issued, which remained unpaid 30 days after their issue date. The invoices span a period from March 3rd 2008 to December 15th 2008.
The first and second named defendants apply to strike out the claim on grounds that amount in effect to alleging that it discloses no grounds for a claim against them personally. In view of the documents filed by the claimant the court also invited submissions on the issues of limitation and the requirements for pleading interest.
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(i) Whether the claims under the invoices, or any of them, are barred by the Limitation of Certain Actions Act.
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(ii) Whether the statement of case discloses any cause of action against the first and second named defendants.
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(iii) Whether the claim, or any part thereof, can be struck out against the defendants or any of them.
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(i) The court can strike out those parts of the claim that are clearly statute barred.
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(ii) The majority of the claim is based on alleged debts evidenced by invoices, recovery upon which, even if proved, is statute barred. As repeatedly emphasized by the claimant in the statement of case, payment was due within 30 days of each invoice date. Save for five of the invoices, (#3927, #3928, #3934, #3904 and #4378), all are dated more than 4 years and 30 days before the filing of the claim form herein.
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(iii) Those invoices remaining, upon which recovery is not obviously statute barred, (#3927, #3928, #3934, #3904 and #4378) total $4899.00.
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(iv) Accordingly the claim is struck out against all the defendants in so far as it is based on any invoices apart from those numbered #3927, #3928, #3934, #3904 and #4378. (Although the defendant disclosed invoice #3915 for $1,150.00 dated November 25th 2008 as one in respect of which it claims, the claimant does not include this in its bundle of documents).
The claim for bailiff's fee of 20% of the claim is similarly struck out as against all the defendants as, (even if permitted by statute,) no basis is pleaded in the statement of case for attributing any such fee, to the defendants or either of them (even if agreed between the claimant and a bailiff). In any event the initial figure claimed of $641,474.04, upon which 20% was claimed as “bailiff fees” has been disallowed, save as to $4899.00.
The basis for any alleged interest component of 5% per month accruing on each invoice has not been pleaded in any form, as required by the Civil Procedure Rules, 1998 (the CPR), so as to permit its inclusion.
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i. The claim consists largely of unpleaded and unparticularised interest at the rate of 5%
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• per month. This only became apparent when the clamant filed its bundle of documents pursuant to this court's order;
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ii. Apart from that interest itself not being pleaded or particularized as required by the Civil Procedure Rules, 1998 (the CPR), there is no pleading as to how such a term for that rate of interest, even if permitted by statute, came to be incorporated into any contract between the claimant and the defendant.
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iii. Any such claim for interest in those circumstances must be, and is, disallowed, and, as against all the defendants, any portion of the claim based on interest is accordingly struck out.
There is no basis pleaded to justify piercing/ lifting the corporate veil, and/or ascribing personal liability to the first and second named defendants. For this reason the claim against the first and second named defendants is struck out in its entirety.
As against the third named defendant, the claimant's claim is struck out in its entirety, save for the non statute barred portion of the claim. This would be in respect of invoices, #3927 for $2,231.00, #3928 for $379.50, #3934 for $833.75 and #4378 for $477.25 and #3904 for $977.50 The claim can proceed against the third named defendant only in respect of their total of $4,899.00.
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i. The claim against the first and second named defendants is struck out in its entirety.
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ii. Pursuant to Part 67.5(2)(b)(i) of the Civil Proceedings Rules, 1998 the claimant is ordered to pay the First and Second defendants their costs of these proceedings at the prescribed level (70%) in the sum of $64,213.00 based upon the total value of the claim-$769,768.85.
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iii. The claimant's claim is struck out save for the non statute barred portion of the claim against the third named defendant which can proceed against the third named defendant only in respect of the amount of $4899.00 (on invoices, #3927 for $2,231.00, #3928 for $379.50, #3934 for $833.75 and #4378 for $477.25 and #3904 for $977.50). Any interest claim on these invoices is struck out and /or disallowed.
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iv. The claimant and the defendant are to file and exchange witness statements on or before April 29th 2013 in default of which the claimant's claim do stand dismissed.
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v. The judgment herein is to be forwarded to the Registrar of the Supreme Court, (who has supervisory jurisdiction under the Bailiffs Act with respect to Bailiffs), and authority to make referrals under the Legal Profession Act), to take such action as may be necessitated in respect of the bailiff and the attorneys at law, whose conduct has been the subject of comment in this case.
By letter from Beckles and Associates dated September 5th 2011 the sum of $216,327.31 was claimed as due and owing. It asserted “if this sum together with legal cost of $1,050.00 is not paid within 7 days of receipt of this letter legal action would be vigorously pursued against you in the High Court of Justice or alternatively the services of a bailiff would be employed to recover same.”
By Claim form and Statement of Case filed on October 31st 2012 the sum of $641,474.04 was claimed in addition to “Bailiff Fees at 20% of the total ($641,474.04) value to date”
The pleadings in the statement of case are set out as they are relevant to the application to strike it out.
The statement of case (emphasis added)
- The claimant was at all material times the owner of A. MAHARAJ TYRE SERVICE of No.4 Southern Main Road, Claxton Bay and a service provider of the defendants. 2. That the defendant was at all material times the customer of the claimant. 3. The relationship between the claimant and the defendants is one of a business nature, which existed for the past twelve (12) years. 4. The claimant was always in the practice of conducting repair works to the vehicles of the defendants and being paid within 30 days of the Invoice date. 5. It was always mutual verbal understand (sic) of the both parties that the claimant's Company would conduct repairs to the defendants vehicles at any given time, on the basis of the mutual and verbal agreement, that the defendant would pay all expenses associated with the repairs within 30 days of the Invoice date to the claimant. 6. The mutual verbal agreement was enjoyed by both the claimant and the defendant with little to no interruptions or dispute for the past twelve (12) years. 7. The defendants, both in person and through their employees took vehicles to the claimant's company seeking various types of services from the claimant. The claimant made the necessary repair works, to the defendants' vehicles and released the said vehicles to the defendants (as was the norm for the past twelve (12) years) together with the Invoice, which was to be paid within 30 days of the Invoice date. 8. The claimant conducted work on the defendants' vehicles amounting to the sum of Six Hundred and Forty One Thousand Four Hundred And Seventy Four Dollars And Four Cents ($641,474.04). 9. The claimant continued caring (sic) out repair work on the defendants vehicle (sic) despite the outstanding sum owed, as the claimant was assured by the defendants via telephone and in person conversations that the outstanding balance would be paid. Given the twelve (12) year history of the claimant and the defendants' business relationship the claimant allowed the defendants the time needed to pay the outstanding sum. 10. The said sum is a debt due and owing by the defendants to the claimant's (sic) for work conducted by the claimant's company, whilst the defendants and the claimant were functioning under the mutual verbal agreement which existed and was upheld by both the claimant and defendant, for some twelve (12) years prior to this action. 11. Under the said mutual verbal agreement, the said sum was payable at the end of every month which always honoured (sic) by the defendants up until 2008. Several requests were made to the defendants to have the outstanding sum pay, by to no avail (sic). 12. By letter to the defendant dated the 16th December, 2010, 28th day of April, 2011, 5th September, 2011, and the 12th October, 2012, the defendants have failed and/or refused to settle the outstanding debt. 13. On or around January, 2011, the claimant employed the services of AARS investigation Agency of No. 17 Lord Street, San Fernando, a License (sic) Bailiff, to assist in...
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