Hinds Transport Services Ltd v Jose Y Jose Liquid and Solid Waste Management Inc.
| Jurisdiction | Barbados |
| Judge | Master Deborah Holder |
| Judgment Date | 19 August 2020 |
| Neutral Citation | BB 2020 HC 39 |
| Court | High Court (Barbados) |
| Docket Number | Civil Suit No. 1286 of 2017 |
| Date | 19 August 2020 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Master Deborah Holder, BSS, Master of the High Court
Civil Suit No. 1286 of 2017
Mr. M. Tariq Khan, Attorney-at-law for the Claimant/Applicant
Mr. Marcel El Daher and Mr. Lemar Quimby of Fitzwilliam, Stone and Alcazar, Attorneys-at-law for the Defendant/Respondent
The parties are companies incorporated under the Laws of Barbados. The Claimant/Applicant, “the Applicant”, provides transport services and logistical support to a range of specific projects and the Defendant/Respondent, “the Respondent”, provides waste management services.
In an application filed 7 th February, 2018, the Applicant is seeking summary judgment pursuant to the Supreme Court (Civil Procedure) Rules 2008 ( CPR) Part 15 or alternatively an order striking out the Respondent's Defence and Counterclaim pursuant to Rule 26.3(3) of the CPR.
The grounds are as follows:
“2. The Defence filed by the Defendant to the Claimant's claim discloses that the Defendant has no real prospect of succeeding in its defence because it is comprehensively butted by the Claimant in the Claimant's Reply to Defence. Further, the Defence to the Counterclaim evidences that the Defendant has failed to provide proof or any adequate proof at all for the defences and claims it has raised against the Defendant.
3. Furthermore, the very nature of the Claimant's Reply to Defence and Defence to Counterclaim undermines the credibility of the Defendant's position, exposes the contradictions of the Defendant's Defence and, provides the Claimant with the opportunity to set out its case and claim against the Defendant in extensive detail, the quality of which evidentially proves beyond the balance of probabilities that the Claimant's version of events is comprehensively corroborated by extrinsic evidence and that the counter explanations provided by the Defendant are mired by factual inconsistencies and misrepresentations as to the events which transpired between the parties. For example the Defendant's reliance based on a payment allegedly made to the Claimant by a cheque which was never delivered (per paragraph 4 of the Defence of the Defendant).
4. An examination of the Claim, the Defence and Counterclaim and the Reply to Defence and Defence to Counterclaim will clearly show that the Defendant has no sustainable case to either defend the Claimant's claim or sue the Claimant by way of its counterclaim.
5. The Defendant therefore has no real prospect of succeeding on its Defence or its counterclaim against the Claimant and the Defence of the Defendant and its counterclaim against the Claimant discloses no reasonable grounds for defending the claim or suing the Claimant by way of its counterclaim.
6. All the substantial facts relevant to the Claimant's claim are before the Honourable Court and the Claimant will contend that the Defendant has no reasonable prospect of successfully disputing them or indeed prosecuting its counterclaim against the Claimant. And, there is no real prospect that the reception of oral evidence from the Defendant will affect the Honourable Court's assessment of the facts readily available by way of the Claim, the Defence and Counterclaim and the Reply to Defence and Defence to Counterclaim.
7. Notwithstanding and without prejudice to the foregoing grounds, and in the alternative, no sustainable or reasonable defence to the claim of the Claimant has been disclosed by the Defendant in this action. Neither has any reasonable ground been disclosed by the Defendant for bringing the counterclaim against the Claimant.
In these circumstances the Court is entitled to make a finding based on the individual grounds and the grounds taken in their entirety set out herein to strike out the Defence and the Counterclaim raised by the Defendant which would give effect to the overriding objective of dealing justly with this case saving expense and ensuring that the matter herein is dealt with expeditiously and fairly.
The Claimant wishes to rely on the attached affidavit of Dave Hinds in support which accompanies this application.”
The Statement of Claim was filed on 24 th August, 2017. In it the Applicant stated that at the Respondent's prompting or request it agreed to sell its “skip operation” to the latter. The said skip operation was made up of one skip truck and two x compactor trucks and ninety skip bins. By an oral contract negotiated between the parties the agreed price was $721,200.00, payable on or before 15 th August, 2015. The Respondent breached the agreement and no payments were made since 30 th December, 2016.
The Applicant alleged that the sum of $158,930.00 was owed to it by the Respondent who was in breach of the said oral contract made around April 2015 as well as a further sum of $7,755.00 owed to it for a lift and transport job. This resulted from an oral contract made between the parties and implied from an invoice, dated 3 rd December, 2016. The total amount being sought is $166,685.00, together with interest and costs. It was also alleged that “by an account stated orally” between the parties, the Respondent agreed that it owed $158,930.00.
The Applicant relied on a number of exhibits, such as cheques, invoices, emails, part payment of the account by way of $22,270.00 worth of cement, a letter of “irrevocable instruction” and a transcript of a WhatsApp conversation.
In a very detailed Defence filed on 23 rd October, 2017 the Respondent disputed the allegations and denied that there was an agreement to buy the Applicant's “skip operation” for $721,200.00. The Respondent agreed that there was an oral contract but it was for the purchase of a skip truck and two x compactor trucks for the sum of $490,000.00 VAT inclusive. This sum was paid. The sum of $7,755.00 for the “lift and transport job” was also paid. A cheque no. 2327 dated 3 rd February, 2017 is being relied upon.
The Respondent alleged that the Applicant was in the process of selling the skip bins to other parties when they both agreed that they would negotiate the purchase of 90 of the skip bins by the Respondent. The bins were required for rental to customers therefore a condition of any purchase was that they would be fit for purpose. This condition was expressly made known to the Applicant when the latter made an initial proposal.
The Respondent asserted that it was false to state that it agreed that $158,930.00 was owed to the Applicant. The Respondent stated that while certain figures were discussed there was no final agreement. The Applicant made an initial proposal of $3,400.00 per skip but there was no agreement.
Shortly after the initial proposal was made the Respondent became aware that the Applicant had sold skip bins to others at a much lower price and that a new skip bin from the manufacturer could be bought for $3,800.00 per skip bin. The proposal was considered unreasonable and exorbitant.
On 1 st September, 2015 the Applicant wrote the Respondent indicating that it would be handing over 67 skip bins at a cost of $4,000.00 per skip bin. This was an increase of $600.00 per skip. The Respondent did not agree to this.
As soon as the Respondent was able to examine the bins it was discovered that approximately 33 of the skip bins were damaged and completely unusable and not fit for purpose. The Respondent stated that they were of no use to its business and decided not to purchase them. As a result the Applicant proposed that it would give the Respondent 20 of the skip bins free of charge.
The Respondent denied that there was part payment of the account, but stated that because of the business relationship it allowed Arawak Cement Plant, who was indebted to it at the time, to provide the Applicant who was constructing a house, with $22,270.00 worth of cement. The latter provided a credit memo to the Respondent.
The Respondent stated that the letter of “irrevocable instruction” for payment of $208,928.00, which was addressed to its Attorneys, was unsolicited. It did not sign or send the letter to its Attorney-at-law.
The Respondent averred that there was no contract to purchase the 90 bins but even if there was a contract, which was not admitted, it related only to the 14 bins which were fit for purpose. These bins were fully paid for around December 2016.
The Respondent denied indebtedness to the Applicant and put the latter to strict proof. It counterclaimed for $11,731.72 from the Applicant for services rendered for handling, rental and removal of skip bins on 29 thSeptember, 2015 and 31 st May, 2015 and stated that it would seek to set off this sum in extinction or diminution of the claim.
The Respondent also relied on a number of documents including cheques, invoices and letters and denied receiving certain invoices referred to by the Applicant.
In an equally detailed Reply to Defence and Defence to Counterclaim the Applicant joined issued with the allegations set out by the Respondent and required that the said allegations be proved. The Applicant denied and rejected much of the Respondent's responses and labelled some allegations as falsehood and distortion of the truth.
The Applicant maintained that the price for the “skip operation” was settled as a result of a period of negotiations. The stages of negotiation and what transpired were set out. The agreed figure was $745,000.00 and collateral to the agreement the Respondent had taken possession of the additional 20 skip bins free of charge.
It was claimed that the Respondent paid the $40,000.00 towards the outstanding balance of $231,200.00 “to...
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