Sierra Safety and Protection Services v DTL Property Developers Company Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice R. Rahim |
| Judgment Date | 26 March 2020 |
| Neutral Citation | TT 2020 HC 94 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | CV2018-03231 |
| Date | 26 March 2020 |
IN THE HIGH COURT OF JUSTICE
the Honourable Mr. Justice R. Rahim
CV2018-03231
Claimant: Mr. F. Hove Masaisai instructed by Mr. I. Jones and Ms. A. Pierre.
Defendant: Mr. F. Scoon instructed by Scoons Attorneys and Counsellors at Law.
This is a claim for a breach of contract. At the hearing of the trial the parties agreed that the main issue to be determined is quantum as the defendant has accepted liability in that it accepts that services were provided to it but it challenges the value of the services provided.
The claimant is a provider of safety and security services. The defendant engaged in the services of the claimant by a written contract dated November 25, 2016 (“the principal contract”) to commence on November 27, 2016 for a period of six months. Pursuant to the contract the claimant provided security services at La Forteresse, a housing and townhouse development project being built under contract by the defendant.
The November contract is reproduced in part, verbatim since it is crucial to this action. The relevant clauses read:
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2. The Contractor shall provide one (1) baton guard between 6:00 a.m. and 6:00 p.m. and two (2) baton guards from 6:00 p.m. to 6:00 a.m. daily.
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5. In consideration for its services the Company shall pay the Contractor at the rate of Twenty-Five Dollars and Sixty Cents ($25.60) plus VAT per hour, per security guard.
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………………………
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8. Clocking cards shall be used as the basis for payment. Accordingly, security personnel shall indicate their presence on the site by clocking in and out on entry and exit respectively.
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9. The Company shall make every effort to facilitate payment for one month by the fifteenth day of the following month PROVIDED always that an invoice, along with supporting documents are provided by the Contractor and in good order by the seventh day of the following month to the Company.
By January 2017 and thereafter, the claimant encountered problems receiving payment from the defendant and several items of correspondence were delivered calling upon the defendant to satisfy the outstanding debt.
The contract ended in May 2017 and the parties entered into a supplemental agreement for a period of three months by letter dated June 5, 2017. By this time, the defendant had only made partial payments of the sum outstanding to the claimant.
However, to date, the amount due to the claimant for the period January to September 2017 remains unpaid in the sum of $190,378.19 as is evidenced by invoice sent to the defendant.
The claimant contends that as a consequence of extending their services to the defendant it lost two security service contracts following the defendant's non-payment of the outstanding sum. The loss incurred for twelve months were:
| Tropical Marine— | $251,640.00 |
| Exim Bank— | $273,000.00. |
As such the claimant claims:
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i. Damages for breach of contract in the sum of $190,378.19;
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ii. Special damages in the sum of $678,840.00;
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iii. Consequential damages and General damages for breach of contract;
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iv. Interest;
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v. Costs.
The defendant denied that it owes the sum of $190,378.19 and averred that the clocking cards and the submission of invoices were a precondition for payment. Consequently, in the defendant's calculation it owes for November 27, 2016 to the beginning of August 2017 in the amount of $127,619.02, it having received no clocking cards for the months of August and September 2017.
The defendant denied that it was responsible for any consequential losses incurred by the claimant and maintained that the claimant agreed to a moratorium on payments until September 1, 2017 even after the defendant's delay in settling the outstanding sums.
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i. Whether the claimant has proven that it is entitled to the outstanding sum of $190,378.19;
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ii. What, if any, is the quantum of special damages to be awarded to the claimant following said breach of contract;
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iii. Whether the claimant was entitled to damages for consequential loss, and, if so what is the quantum of that loss; and
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iv. Whether the remedy of exemplary damages is available to the claimant.
The claimant called two witnesses, Frank Dyer and Ricardo Dyer. A witness statement was also filed by the claimant for one Marilyn Abraham-Gidarree and two witness summaries in the names of Shawn Phillip and Chris Allen. However, they were not called at trial and therefore not cross-examined. No explanation was given for their absence.
Frank Dyer is the Chief Executive Officer (“CEO”) of the claimant. The claimant began to experience problems with remuneration from the defendant by the fourth month of the November contract by receiving partial payments. 1 Oral requests were made to the defendant to settle all outstanding sums but to no avail, thereafter letters were written to the General Manager of the defendant, Mr. Lucien Delpesh from February to September 2017.
By letter dated February 16, 2016 Frank Dyer wrote to Mr. Delpesh requesting payment for the months of December 2016 in the sum of
$34,214.40, January 2017 in the sum of $33,177.60 inclusive of VAT and an additional sum of $15,000.00 plus VATMr. Delpesh responded to the said letter on February 17, 2017 stating that the defendant regretted their delay in settling the invoice referred to and payment would be brought forward.
On March 29, 2017 Frank sent a letter by email to Mr. Delpesh calling upon the defendant to settle the invoice of January 2017 and also set out that the delay in settling the previous invoices was causing the claimant financial difficulties. Mr. Delpesh replied to the said email on May 5, 2017, referring to an earlier conversation and sought an extension to make payment.
Frank Dyer again emailed Mr. Delpesh and one Junior Best on July 3, 2017 stating the claimant can no longer provide their services until payment is made. By email dated August 30, 2017, Frank sent an attached invoice up to that period and a credit note.
Mr. Delpesh made an oral request to defer payment until September 14, 2017 and sent an email to Frank on September 29, 2017 regarding resumption of security services by the claimant and the defendant's intention to pay the outstanding sums due.
The defendant wrote to Frank by letter dated June, 5, 2017 agreeing to extend the security services provided by the claimant for the period of three months with effect from June 1, 2017 with the same terms and conditions in the November 28, 2016 agreement.
The November contract was extended for three months with effect from June 1, 2017.
The additional terms were:
The contractor has agreed to a moratorium on payments for its services at La Forteresse from the Company unit 1 st September, 2017. Notwithstanding the moratorium, the Company will endeavour during this period to make small payments on the outstanding balance to the Contractor, should it be in a position to do so.
The Company shall pay the Contractor on 1.9.17 fifty percent (50%) of the outstanding balance due on 31.8.17 and bring the account up to date by 30.11.17.
In consideration for its services the Company shall pay the contractor Twenty-Five Thousand Dollars ($25,000.00) per month, effective 1 st June, 2017.
To sustain the company and pay wages, Dyer used his personal resources. The claimant was also threatened with legal action by other suppliers. Throughout the contract period, the claimant communicated with the defendant's CEO Mr. Daniel Lambert who promised to pay the outstanding sum.
Frank testified that the claimant had four administrative staff members, excluding himself. There were six security officers assigned to the defendant. He accepted that clocking cards were the measure used to ascertain the hours during which the security guards worked at La Forteresse. At the end of every two week period he would collect the clocking cards from the defendant, examine them and prepare an invoice. He explained that the July invoice is reflective of the month of June and the invoice dated August 2, and September included overtime and services provided on public holidays.
Frank also accepted that the clocking cards are not in evidence. He admitted that although the defendant continually failed to settle the outstanding sum, he agreed to engage in a supplemental contract with them with the expectation that the outstanding sums would be paid.
He was referred to the letter of February 16, 2017 and accepted that there were no details of what the claimant considered to be additional costs set out therein. He also accepted that despite the correspondence from the defendant, it was unable to settle the outstanding sum, but the claimant continued to provide their services.
Attorney for the defendant spent some time seeking to establish when the claimant foresaw that it would lose its contracts with Exim Bank and Tropical. Frank testified that by May 2017 and the non-payment by the defendant, he was worried about the claimant's financial status. At that time the claimant did not lose their contract with Exim Bank but lost the contract with Tropical Marine. He also testified that by December 2016, the claimant did not foresee that he would lose contracts with other clients.
The agreement between the parties ended on September 15, 2017. Frank admitted that by email dated September 27, 2017, he wrote to Mr. Delpesh, in good faith, asking that the defendant confirm the resumption of services by the claimant. However, the defendant having realized that it could not service the contract wrote to the claimant saying that it could not enter into a new agreement.
He also testified...
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