A & A MECHANICAL CONTRACTORS AND COMPANY LIMITED PETROLEUM COMPANY OF TRINIDAD AND TOBAGO

Size: px

Start display at page:

Download "A & A MECHANICAL CONTRACTORS AND COMPANY LIMITED PETROLEUM COMPANY OF TRINIDAD AND TOBAGO"

Doris Parks
5 years ago
Views:

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN A & A MECHANICAL CONTRACTORS AND COMPANY LIMITED CLAIMANT AND PETROLEUM COMPANY OF TRINIDAD AND TOBAGO DEFENDANT BEFORE THE HONOURABLE MR JUSTICE R. BOODOOSINGH APPEARANCES: Mr A Fitzpatrick SC and Mr R Kewalsingh instructed by Mr A Byrne for the Claimant Mr P Deonarine instructed by Ms D Ramnanan Maharaj Dated: 27 February 2012 REASONS 1. This claim arises from an alleged breach of contract. The claimant says they did certain construction works for the defendant. While those works were being done, variations Page 1 of 9

2 were made on the contract. They performed the work relating to those variations. They have not been paid for the work in full. They have therefore brought this claim for moneys due and owing under the contract. 2. The defendant in their defence raised three main arguments. These were: The claim is statute barred having been sued for 4 years after the moneys were allegedly due. The works were not in fact variations. The claimant had failed to serve a notification of certain matters relating to the performance of the contract. 3. The claimant has disputed these defences. They have said the claim is not statute barred. The works were variations and acknowledged by the defendant as such. 4. If there was no notification of relevant matters, the defendant had waived those by in effect seeking to work out the amounts due under the contract. 5. The claimant on 23 August 2011, filed an application for an interim payment based on admissions made by the defendant. The claimant has claimed the sum of $6,966, together with interest. 6. The claimant relies on correspondence passing between the parties and in particular by Page 2 of 9 a letter sent by the defendant under the hand of one of their in house lawyers to the

3 claimant in answer to a pre action protocol letter sent by the claimant. The pre action letter was dated 29 January The answer was dated 5 March It is appropriate to set out the contents of the 5 March 2010 letter in full. Reference is made to your letter dated 2010 January 29 and the claims made therein on behalf of your Client, A&A Mechanical Contractors Company Limited. With respect to the claim of $14,580, being allegedly due and owing by the Petroleum Company of Trinidad and Tobago Limited ( PETROTRIN ) for variation works and material supplied on Tender No. 03/ Strengthening of PL & BL 4, PETROTRIN herein denies that this sum is due and owing. Please find attached hereto ( Attachment I ) PETROTRIN s response to each of the claims made by your Client as set out in the spread sheet attached to your letter of 2010 January 29. You will note and be advised that PETROTRIN s position is that valid claims from your Client amount to only $6,859, Against this sum, PETROTRIN is of the position that it is properly entitled to deduct/set off the sum of $5,166, representing damages for the delay by your Client in completing the contract works and the breach of Clause 1 of the Special Conditions of Contract. Please see Attachment II hereto which outlines this counterclaim. PETROTRIN is prepared therefore to offer your Client the sum of $1,692, in full and final settlement of this matter. With respect to your second claim for the return of 4 lengths of 42.5 inch tubular pipes, please be advised that PETROTRIN is unable from its records to confirm the receipt of same. This notwithstanding, we would be willing to revisit this issue if your Client can provide us with documentation to substantiate this claim. With respect to your third claim for the return of 24 sheets of 1½ x 6 x 3 Galvanize Granting and 15 Sheets of ½ x 3 x 20 banded ends non skid top grating, we wish to advise that the cost for these items has been included in variation No 17 shown in attachment I. PETROTRIN wishes to invite you and your Client to a meeting at your convenience, to discuss the claims herein as we are confident that the issues can be amicably resolved without reference to litigation and its attendant costs and unpleasantness. Page 3 of 9

4 Kindly let us here from you. Yours faithfully PETROLEUM COMPANY OF TRINIDAD AND TOBAGO LIMITED Derrick Redman General Counsel- Refining, Marketing & Corporate 8. The claimant says this letter was in direct response to the pre action letter and so was made in contemplation of litigation occurring. Thus, any admissions made in that letter are admissions upon which they can rely in order to get judgment for the sum set out in the letter. 9. The defendant says that the letter, at its highest, is an admission of owing the sum of $1,692,589. The set off claim would have reduced the figure for the valid claims of the claimant. 10. On the other hand, the claimant countered that the defendant has not filed any counterclaim to their claim. If they intended to claim the sum, it ought to have been raised as a counterclaim. Thus, the issue of a set off does not arise and the claimant is entitled to judgment. 11. The defendant says that all of this was done in the context of a proposed payment of the sum of $1,692,589. in full satisfaction of the claim. Accordingly, this is not an admission as such. The defendant has not conceded any defence they may have. In particular, the limitation point arises. The court ought not to grant relief at this stage Page 4 of 9

5 since the limitation point can only be decided after disclosure and inspection and exchange of documents and the filing of witness statements. 12. The issue of the limitation point is clearly of importance. I therefore thought it appropriate to consider the point in the context of the pleadings and the evidence filed in support of this application. 13. It is common ground that the appropriate limitation of a claim such as this is 4 years. The claimant says it runs from the date the moneys became due. The defendant says that it runs 4 years from the actual completion of the works. The moneys were due then. Any breach would have run from then. 14. The claimant s position is that based on the contract, time would run from the date payments would have been due. They say that the contract provided that payment was due only after the signing of the completion certificate of the contract since it is only when that had happened that there could be accurate quantification of what moneys were due. The actual works done would have to be looked at to determine how much money was due. Thus time could only run from when payments were due. The scope of works document at Part IV Clause 7 provided: Signing off of the Completion Certificate by the Client shall be the basis for the final payment for the works. This according to the contract documents were a certain number of days after the completion certificate. 15. The claimant says the completion certificate was given on 4 April Moneys were due sometime after this date. The claim was filed on 1 April Thus it was filed within the limitation period. Page 5 of 9

6 16. The defendant says the moneys were due from the actual completion date which was in Whether this is looked at as money due and owing or as a breach of contract does not affect the position on the limitation period. The breach of contract the claimant relies on would be the failure of the defendant to pay moneys due. The breach could only arise when payment was due. A claim under money due and owing similarly arises only from the date the money becomes due and owing. 17. I accept the claimant s contention that the time would have run from a date on or after 4 April This is because this is the earliest date when the moneys could have been due. If the document produced by the claimant (AN1) is considered a completion certificate or if the completion certificate came after, the claimant was still within time. 18. There would also have been an obligation by the defendant to raise any limitation defence in their answer to the pre-action letter. They did not do so. They disputed the claim for $14,000,000. plus, but accepted that the valid claim was $6,859, of which only $1,692, was owing due to the set off. 19. I also think it is significant that no counter claim was filed by the defendant. The defendant s attorney stated that this was due to the claim being statute barred. Their claim was based on delay in the performance of the contract. Such delay would have occurred more than 4 years before this claim began. It is quite conceivable that the defendant s claim would be statute barred. But that does not mean that the claimant is in the same position. In the defendant s case, the claimant s breach would have been the delay. From the claimant s case, the breach would have been the failure to pay after the money became due and owing. Page 6 of 9

7 20. I therefore find that the limitation period did not bar this claim. 21. I accept the defendant s letter to be in the terms of an admission under Part 17 of the CPR. 22. The claimant is therefore entitled to judgment for the sum of $6,859, as set out in the letter of 5 March Given my findings I did not find it necessary to go to the letters passing before this date during the course of negotiations between the parties. 24. The claimant has said that the other two defences are shadowy and therefore not likely to succeed. On the notification point, the claimant relies on the fact that the parties were negotiating the sum to be paid as signalling a clear waiver. Further, the claimant on the variation point says these were accepted as variations by the defendant. Even if the defendant can take these points at a trial, they do not change the position about whether an admission was made after a pre-action protocol letter was sent. 25. Mr Deonarine, on the other hand, suggests that parties in attempting to compromise a claim are entitled to take positions which may amount to a concession but if the matters are not settled they are entitled to take any legal points arising. Thus the defences have to be seen in that context and the defendant is quite entitled to have those matters ventilated. He noted that this was not a summary judgment application. If the claimant wanted to have those matters determined they ought to have applied for summary judgment. In effect, they are seeking to get summary judgment by the route of an Page 7 of 9

8 admission and the letter of 5 March 2010 cannot be seen as that, but rather as an attempt to compromise the claim. 26. The claimant relies on the case of British Holdings Plc v Quandax Inc [1989] 1QB 842 to suggest that these defences are in the nature of a lawyer s defence which is not likely to succeed. See the case at pages The question arises, however, if this letter was being sent in response to a pre-action letter, why was it not sent in terms of; we do not think you are entitled to anything because the limitation period has expired; you did not notify us of relevant matters; these matters were not variations; and we have a counterclaim for 5 million plus, but in an attempt to compromise the claim and prevent litigation, we are prepared to offer you one million plus in satisfaction of your claim. That way, it would have been clear that this was not intended to be seen as an admission. Instead, the claim of $6,859, was expressed to be a valid claim. A valid claim, in this context, could only be taken to mean an acknowledgement that this sum was due having contemplated any defences applicable. There was no reservation expressed in this letter. Had there been any reservation then, it would no doubt have been included given that this was a legal letter sent by an attorney in response to a pre-action letter. In fact, the sum due in relation to delay was expressly mentioned, but the defendant has chosen not to pursue a claim for that sum. In this context, it may be that the other two defences raised are in the nature of a lawyer s defence within the meaning of the case cited. 28. I have considered that this is not a summary judgment application. It may well be that the grant of this application will have the effect of disposing of a significant part of this claim. The grant of the payment based on the admission does not, however, have the effect of deciding the defendant is not likely to succeed on the two additional defences. Page 8 of 9

9 It does, however, mean that I have come to a conclusion on the limitation point on which there were substantial submissions. 29. I will order payment by the defendant of the sum of $6,859, with interest at the rate of 6% per annum from 4 July 2006 to the present date. This date is 3 months after the Completion Certificate and what I consider to be a reasonable time after the Certificate for payment to have been effected. It would run at 12 % after today. I will hear the parties on costs. Ronnie Boodoosingh Judge Page 9 of 9

JUDGMENT REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN D. C. DEVELOPERS LIMITED. Claimant AND

JUDGMENT REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN D. C. DEVELOPERS LIMITED. Claimant AND REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV2006-02313 BETWEEN D. C. DEVELOPERS LIMITED AND Claimant MANAGEMENT AND CONSTRUCTION CONSULTANTS LIMITED Defendant Before The Honourable Mr.