Petroleum Company of Trinidad and Tobago Ltd v A & A Mechanical Contractors and Company Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | A. Mendonça J.A. |
| Judgment Date | 06 May 2020 |
| Neutral Citation | TT 2020 CA 16 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Docket Number | Civil Appeal No. S168 of 2014 |
| Date | 06 May 2020 |
IN THE COURT OF APPEAL
A. Mendonça J.A.
G. Smith J.A.
J. Jones J.A.
Civil Appeal No. S168 of 2014
Claim No. CV 2010-01244
Mr. P. Deonarine and Mr. V. Deonarine instructed by Ms. K. Kawal for the Appellant
Mr. A. Ramlogan SC, Ms. J. Lutchmedial, Mr. D. Bayley and Mr. A. Pariagsingh for the Respondent.
Delivered by A. Mendonça J.A.
We have for our determination the appropriate order as to the costs of these proceedings.
The parties entered into a contract for the performance of certain works. The works were completed and the Respondent was paid the contract price. However, during the course of the works, the Appellant requested the Respondent to execute additional and modified works (the variations). The Respondent brought these proceedings to recover the value of the variations allegedly completed by it. The Respondent also claimed costs associated with increased wages and delay/lost time, damages for breach of contract and interest pursuant to Section 25 of the Supreme Court of Judicature Act.
The Trial Judge awarded the total sum of $9,972,262.74 in respect of the variations. This sum included sums in respect of the increased price of steel and delay/lost time. The Trial Judge held that the Respondent failed to prove its claim for increased wages and made no order as to interest on the sum awarded to the Respondent.
The Appellant appealed contending that the Trial Judge (1) wrongly relied on without prejudice correspondence in arriving at the value of the variations; (2) erred in law when he rejected the Appellant's contention that the Respondent's claim was statute-barred; (3) erred in relying on the evidence of the Respondent on the basis that he Appellant had lead no countervailing evidence.
The Respondent filed a counter notice of appeal by which it challenged the Trial Judge's refusal to award any sum for increased wages and his failure to award interest.
This court by a majority held that in coming to his decision as to the value of the variations, the Trial Judge wrongly relied on without prejudice correspondence and was wrong to pay any regard to it. This court also held unanimously that the Trial Judge erred in concluding that there was no countervailing evidence and failing to consider relevant evidence in arriving at his findings. The court, however, held that there was no merit in the limitation argument and the Trial Judge was correct to reject it. The court set aside the Trial Judge's order and remitted the matter for a rehearing without reference to the without prejudice letters.
As to the counter notice of appeal, the Respondent did not pursue the issue in relation to wages and that was abandoned at the hearing of the appeal. As to the issue relating to interest on the sums the Appellant was ordered to pay, that fell by the way side as a consequence of the setting aside of the Trial Judge's order. The counter notice of appeal was accordingly dismissed.
The Appellant submitted that the Respondent should pay its costs in the court below as well the costs of the appeal and counter notice. The quantum of costs, it was submitted, should be determined on the prescribed costs scale. The Appellant submitted that applying the prescribed costs scale the court should award the following sums:
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(a) in the court below, $283,722.63. This sum is calculated on the amount that the Appellant was ordered by the Trial Judge to pay to the Respondent. The Appellant submitted that if the amount is calculated on the amount that was claimed by the Respondent, as it ought to be, the costs would be greater. The Appellant, however indicated, that it was prepared to accept the lesser amount in the sum of $283,722.63;
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(b) costs of the appeal in the sum of $189,148.42 being two-thirds (2/3) of the sum of $283,722.63;
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(c) costs of the counter notice of appeal in the sum of $209,090.37. This was calculated on the relief that the Respondent had claimed by way of its counter notice namely interest in the amount of $13,737,124.50 and wages in the amount of $921,130.06. Applying the prescribed costs scale to these amounts, the Appellant submitted, would arrive at a figure of $313,365.56. The court should award two-thirds (2/3) of that amount as costs of the counter notice of appeal.
The Respondent submitted that the costs in the court below should be reserved for the Trial Judge to address at the end of the trial. The Appellant, the Respondent argued, was however entitled to the costs of the appeal but only those costs. There should be no order as to costs on the counter notice of appeal. The costs incurred in dealing with the issues on the counter notice would be small as a relatively short amount of time was spent on the cross-appeal. By awarding full costs on the appeal the Appellant would be properly compensated taking into account that it was not successful on all the issues raised on the appeal. To award the Appellant full costs on the appeal and cross-appeal, it was argued, would be unfair, unreasonable and disproportionate in the circumstances.
What therefore is the appropriate order as to costs. We will first consider which of the...
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