THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No: CV2016-02551 BETWEEN CADMUS HOLDINGS LIMITED Claimant AND TROPICAL MAINTENANCE AND GENERAL CONTRACTING LIMITED Defendant Before the Honourable Mr. Justice R. Rahim Appearances: Mr. K. Mc Quilkin instructed by Ms. L. Hector for the claimant Mr. E. Roopnarine and Mr. S. Seunarine instructed by Ms. S. Khan for the defendant
Judgment 1. This is a claim for damages for breach of contract. The claimant and the defendant entered into a written lease agreement dated the 12 th February, 2014 under which the claimant agreed to lease two trucks to the defendant for a period of one year, from the 10 th February, 2014 to the 15 th February, 2015. However, the lease agreement did not contain a provision which set out the sum at which the trucks were to be leased. According to the claimant, the rate at which the trucks were to be leased was orally agreed upon between the claimant and the defendant. As such, the claimant claims that the written lease agreement was supplemented by oral agreement which formed part of the entire contract to lease. 2. The claimant claims that the lease agreement did not terminate and/or expire on 15 th February, 2015 but continued until June, 2015. During the period of the lease agreement the claimant orally agreed to lease additional trucks to the defendant. The defendant was at the material time a sub-contractor for Construtora OAS ( OAS ). After OAS approved and vetted the amount of hours the claimant s trucks were utilized, the claimant would prepare and submit invoices to the defendant for payment. The defendant would thereafter pay the claimant by cheque. A record of all the defendant s payments were kept by the claimant. 3. By Amended Claim Form filed on the 11 th November, 2016 the claimant claimed that the defendant failed to pay the sum of $301,197.01 for trucks supplied pursuant to the lease agreement. The claimant attached a spread sheet to its Statement of Case to show how it arrived at the outstanding sum of $301,197.901. However, subsequent to the filing of its Claim Form, the claimant undertook a reconciliation or revision of the defendant s account which demonstrated that the defendant was invoiced for the sum of $1,887,118.11 and has paid the sum of $1,726,721.86. As such, according to the revised spreadsheet, the sum that is due and owing to the claimant by the defendant is $160,396.25. Consequently, the claimant is now claiming the sum of $160,396.25 as opposed to $301,197.01. The Claim Form was not re-amended to reflect this new claim but at trial the claimant abandoned the sum originally claimed in favour of the lesser sum. Page 2 of 19
4. The defendant has accepted that it in fact entered into an agreement with the claimant for the leasing of the trucks. By Amended Defence filed on the 1 st December, 2016 the defendant avers that it paid the total sum of $1,341,069.86 to the claimant for the leasing of the trucks. According to the defendant, the sum of $1,341,069.86 was an overpayment of the sums due and owing to the claimant. As such, the defendant claims that it does not owe the claimant any further sums. Issue 5. The main issue for determination in this case is whether the sum of $160,396.25 is due and owing to the claimant by the defendant. The case for the claimant 6. The claimant called two witnesses, Sean Ramnarine and Rishi Surju. 7. Sean Ramnarine ( Ramnarine ) is one of the claimant s Directors and is also the Managing Director. He is responsible for the negotiating of contracts and the rates at which the trucks are leased. The claimant has several trucks, some of which are flatbed trucks equipped with cranes that can lift different tonnages. 8. Rishi Surju ( Surju ) is also one of the claimant s Directors. Ramnarine and Surju discussed and decided that the defendant would be charged the rate of $190.00 per hour for the leasing of the trucks. After the rate was decided, Surju spoke to Dave Singh ( Singh ) who was the contractor of the defendant at the material time. No evidence was lead as to the details of this conversation. However, a reasonable inference would be that Surju contacted Singh to inform him about the rate at which the claimant was willing to lease its trucks. 9. Subsequently, Surju informed Ramnarine that the defendant wanted to lease two Haib trucks from the claimant. Ramanarine contacted Singh to discuss the leasing of the trucks. Page 3 of 19
Based on that conversation, Ramnarine agreed to lease to the defendant the following two trucks at the rate of $190.00 per hour; i. One ten tonne flatbed truck with a ten tonne crane, registration number TDB 3737; and ii. One ten tonne flatbed truck equipped with a seventeen point six (17.6) tonne crane, registration number TCN 9716. 10. It was further agreed that the abovementioned trucks would be rented to the defendant for one year, from the 10 th February, 2014 to the 15 th February, 2015. The lease agreement was prepared by Ramanrine s assistant, Kirfana Toussaint ( Toussaint ). Ramnarine reviewed the lease agreement and made the necessary arrangements for the signing of same. On the 12 th February, 2014 when the lease agreement was being signed by the defendant, Ramnarine was engaged with some other business and so he asked Surju to sign the agreement on behalf of the claimant. 11. According to Ramnarine, during the course of the lease agreement, that is between February, 2014 and February, 2015 the defendant leased additional trucks from the claimant. Those trucks were added to the agreement based on conversations Ramnarine had with Singh. When Singh fell ill, Ramnarine held conversations with Purushottam Singh ( Purushottam ). The following trucks were the three additional trucks that were leased to the defendant; i. One ten tonne flatbed truck with a ten tonne crane, registration number TCZ 3318 at $190.00 per hour; ii. One ten tonne flatbed truck equipped with a twelve tonne crane, registration number TCP 1197 at $190.00 per hour; and iii. One 55 barrel tank septic tanker truck, Registration number TBL 9768 at $180.00 hour. Page 4 of 19
12. As such, the defendant rented five trucks in total from the claimant. In or around April, 2015 based on a conversation Ramnarine had with Purushottam, it was agreed that the rental rate of TCN 9716 would increase from $190.00 per hour to $200.00 per hour. 13. During cross-examination, Ramnarine accepted that the claimant made no mention of the three additional trucks leased to the defendant in 1) its pre-action protocol letter dated the 27 th May, 2016 and 2) its Statement of Case. Ramnarine further accepted that the number of hours worked by the respective trucks were not outlined in the claimant s Statement of case. Moreover, during cross-examination Ramnarine testified that there were records tabulating the days and hours worked by each truck but those documents were not provided to the court. 14. When it came close to the time for the lease agreement to expire in February, 2015, Ramnarine spoke to Purushottam and based on that conversation Ramnarine agreed to continue renting the trucks to the defendant beyond the expiration date of the lease agreement. Ramnarine did not prepare another written agreement since the first agreement was proceeding without incident. 15. According to Ramnarine, during the course of the agreement there was an established procedure for payment to the claimant by the defendant. At the end of each month, OAS would sign off on the hours worked by each truck and the claimant would then send an invoice reflecting the hours worked by each truck to the defendant. During crossexamination, Ramnarine testified that the document which was signed off by OAS confirming the hours each truck worked is called a ticket. These tickets were not provided to the court. These tickets would have confirmed that the hours reflected on the claimant s invoice were accurate. Ramnarine further testified during cross-examination that Toussaint would have taken the tickets, checked the hours each truck worked and do a summary of the hours for him. As such, Ramnarine testified that he could not be certain if the summary of hours worked by each truck was accurate. Page 5 of 19
16. All of the invoices were also prepared by Toussaint but were reviewed and approved by Ramnarine before Toussaint signed and sent the invoices to the defendant. When the defendant received payment from OAS, it would then pay the claimant s invoices by cheque. The claimant never received any cash payments from the defendant. The claimant did not always receive prompt payment from the defendant and sometimes the defendant paid less than the quantum stated in the invoice. During cross-examination, Ramnarine testified that the claimant has documents proving that the defendant did receive all the invoices that were issued by the claimant but those documents were not provided to the court. 17. The claimant kept a record of each invoice and the payments it received from the defendant. Based on Ramnarine s review of the records of the invoices, he noted that sums were outstanding on the following invoices; i. Invoice No. TMGCL/2014/458 dated the 29 th December, 2014; ii. Invoice No. TMGCL/2014/480 dated the 4 th February, 2015; iii. Invoice No. TMGCL/2015/485 dated the 5 th March, 2015; iv. Invoice No. TMGCL/2015/502 dated the 15 th April, 2015; v. Invoice No. TMGCL/2015/510 dated the 11 th May, 2015; and vi. Invoice No. TMGCL/2015/519 dated the 10 th June, 2015. 18. The following revised spreadsheet was prepared by the claimant to reflect the defendant s current account with the claimant; Invoice Inv Number Inv Amount Amount Paid Outstanding Cheque # Date as per Balance Statement from Tropical 06.03.14 TMGCL/2014/259 $38,295.00 $(38,295.00) - RBTT #00044 (dd 08.04.16) 01.0414 TMGCL/2014/268 $110,124.00 $(110,124.00) - RBTT #00048 12.05.14 TMGCL/2014/287 $112,504.50 $(112,504.50) - RBTT #00051 Page 6 of 19
04.06.14 TMGCL/2014/301 $130,007.50 $(130,007.50) - RBTT#000054 (dd 25.08.14) 04.07.14 TMGCL/2014/320 $117,553.00 $(117,553.00) - RBTT 000055 (dd 25.08.14) 30.07.14 TMGCL/2014/339 $119,519.50 $(199,519.50) - RBTT #000066 (10.11.14) 27.08.14 TMGCL/2014/363 $98,106.50 $(98,106.50) - RBTT #000068 (dd 18.11.14) 01.10.14 TMGCL/2014/410 $128,478.00 $(128,478.00) - RBTT #000074 (dd 13.12.14) 30.10.14 TMGCL/2014/425 $127,385.00 $(127,385.00) - RBTT #000210 (dd 11.02.15) 29.12.14 TMGCL/2014/425 $112,381.11 $(112,381.11) - RBTT #000211 (dd 12.02.15) 29.12.14 TMGCL/2014/458 $117.334.50 $(63,365.00) $53,969.50 RBTT $000090 (dd 21.04.15) 04.05.15 TMGCL/2015/480 $82,811.50 $(73,416.00) $9,395.50 RBTT #000089 (dd 21.04.15) 05.03.15 TMGCL/2015/485 $97,451.00 $(69,373.75) $28,077.25 RBTT #000091 (dd 15.05.15) 15.04.15 TMGCL/2015/502 $146,481.25 $(125,309.75) $21,171.50 RBTT #000092 (dd 15.05.15) 11.05.15 TMGCL/2015/510 $199,157.00 $(82,046.75) $117,110.25 RBTT #000215 (dd 17.06.15) 11.05.15 Payment received $(79,097.00) $(79,097.00) RBTT #000062 and applied to Invoice (dd 08.10.14) 510TMGCL/2015/5 10 10.06.15 TMGCL/2015/519 $149,528.75 $(139,759.50) $9,769.25 RBTT #000235 $1887,118.11 $(1726,721.86) $160,396.25 (dd 020.10.15) Page 7 of 19
19. During cross-examination, Ramnarine testified that his office prepared the above revised spreadsheet and he approved it. Ramnarine also testified during cross-examination that he checked over each invoice and cheque before approving the revised spreadsheet. It is to be noted that all invoices referred to in the above spreadsheet were provided to the court. 20. Moreover, during cross-examination Ramnarine explained that the original spread sheet attached and marked C to the claimant s statement of case was inaccurate as it did not include a payment made by the defendant. He testified that his department prepared the original spreadsheet and he approved it but did not check over each invoice and cheque before approving same as he did with the revised spreadsheet. Ramnarine further explained that the revised spreadsheet corrected this accounting error which in turn reduced the sum being claimed by the claimant to $160,396.25 from $301,197.01. 21. Ramnarine testified that the claimant s revised spreadsheet of the defendant s account showed that the claimant was not overpaid by the defendant. The defendant also provided a spreadsheet evincing payments made by the defendant to the claimant. According to Ramnarine, the claimant s revised spreadsheet showed that the figures in the defendant s spreadsheet were incorrect as the defendant s spreadsheet left out sums which were paid by the defendant to the claimant. Therefore, it was Ramnarine s evidence that the claimant received more payments from the defendant than what the defendant stated it paid to the claimant in its spreadsheet. 22. During cross-examination, Ramnarine testified that the defendant never signed any document agreeing to pay to the claimant 2% interest on any overdue balances. However, on the claimant s invoices it states that Finance charges of 2% per month shall be charged on services or any part thereof on any overdue balances which remain unsettled at the end of the following month after which the services were delivered. 23. Surju s evidence was the same as the evidence given by Ramnarine and as such, there was no need to repeat it. Page 8 of 19
The case for the defendant 24. The defendant had one witness, its Administrative Officer, Purushottam Singh ( Purushottam ). Purushottam admitted that the defendant did rent TDB 3737 and TCN 9716 from the claimant for the period of the 10 th February, 2014 to the 15 th February, 2015. He further admitted during cross-examination that the trucks were rented at the rate of $190.00 per hour. During cross-examination, Purushottam testified that he negotiated the terms of lease agreement with Ramnarine. 25. The defendant commenced making payments for the leasing of the trucks pursuant to an oral agreement it made with the claimant. Purushottam testified that the defendant made a total of thirteen payments to the claimant between the periods of April, 2014 to the 2 nd October, 2015. He further testified that those payments were made in full satisfaction of the rent owing for the trucks. The defendant kept a record of all its payments made to the claimant. According to Purushottam, the defendant paid to the claimant the sum of $1,341,069.86 which was an overpayment of the sum actually owed to the claimant. 26. During cross-examination, Purushottam testified that the invoices submitted by the claimant were incorrect. That the invoices that were submitted to the defendant during the course of the lease agreement were in a different format to the invoices now submitted to the court. Purushottam further testified during cross-examination that the defendant made payments to the claimant when OAS approved the hours worked by each truck. That payments were not made pursuant to the invoices that were submitted by the claimant to the defendant. Moreover, Purushottam testified that he did not receive invoice numbers TMGCL/2015/510 and TMGCL/2015/519. 27. The defendant s spreadsheet of its payments to the claimant provides as follows; Page 9 of 19
Date Cheque # Particulars Payment 09-Apr-14 44 CADMUS HOLDINGS LIMITED 38,295.00 16-May-14 48 CADMUS HOLDINGS LIMITED 110,124.00 01-Jul-14 51 CADMUS HOLDINGS LIMITED 112,504.50 25-Aug-14 99 CADMUS HOLDINGS LIMITED 130,007.50 08-Oct-14 62 CADMUS HOLDINGS LIMITED 79,097.00 11-Nov-14 66 CADMUS HOLDINGS LIMITED 119,519.50 19-Nov-14 68 CADMUS HOLDINGS LIMITED 98,106.50 16-Dec-14 74 CADMUS HOLDINGS LIMITED 128,478.00 12-Feb-15 210 CADMUS HOLDINGS LIMITED 127,385.50 12-Feb-15 211 CADMUS HOLDINGS LIMITED 112,381.11 22-Apr-15 90 CADMUS HOLDINGS LIMITED 63,365.00 17-Jun-15 215 CADMUS HOLDINGS LIMITED 82,046.75 02-Oct-15 235 CADMUS HOLDINGS LIMITED 139,759.50 TOTALS 1341,069.86 28. During cross-examination, Purushottam was shown invoice no. TMGCL/2014/259 dated the 6 th March, 2014 which showed that the total rent for TCZ 3318 and TDB 3737 was $38,295.00. Purushottam was then asked to look at the defendant s above mentioned spreadsheet to note that the very first figure was the sum of $38,295.00 which was paid on the 9 th April, 2014, approximately a month after the date of the invoice. 29. Purushottam was then shown invoice no. TMGCL/2014/363 dated the 27 th August, 2014 which showed that the total rent for TCZ 3318, TDB 3737 and TCN 9716 was $98,106.50. On the defendant s spreadsheet that sum was paid on the 19 th November, 2014. Purushottam agreed that based on this invoice, more than two trucks were listed as being leased by the defendant. He admitted that on occasions during the period of the lease agreement, additional trucks were rented from the defendant and one of those trucks was TBL 9768. 30. Moreover, Purushottam during cross-examination admitted that the claimant s revised spreadsheet showed that the defendant paid more than the sum that is recorded in the defendant s spreadsheet. Purushottam was shown cheque number 000055 on the claimant s revised spreadsheet. He testified that the defendant s spreadsheet did not have this cheque recorded as being paid to the claimant. Purushottam further testified that cheque numbers Page 10 of 19
000089 and 000091 were also not recorded in the defendant s spreadsheet as being paid to the claimant. 31. Purushottam was then shown cheque numbers 000215 and 000235 which according to the defendant s spreadsheet was dated the 17 th June, 2015 and 2 nd October, 2015 respectively. Purushottam during cross-examination admitted that the lease agreement between the claimant and the defendant continued after February, 2015. The invoices The submissions of the claimant 32. During cross-examination, Purushottam testified that the claimant s invoices were inaccurate. The claimant submitted that when the payments that were accepted as being paid by the defendant were compared with the claimant s invoices, the invoice sum and the cheque payment were in correlation with one another, save and except for the invoices the claimant stated were outstanding. 33. The claimant further submitted that the defendant has not produced any other invoice or statement showing that the number of hours claimed by the claimant were incorrect. As such, it was the submission of the claimant that the defendant has not produced any evidence to support its statement that the invoices were inaccurate. The claimant understood that it must prove its case but submitted that if the defendant proffered a version of event, it must produce evidence to support its version. The submissions of the defendant 34. Toussaint was the maker of the claimant s invoices. The claimant filed a hearsay notice on the 7 th June, 2017 to have invoice numbers 458, 480, 485, 502, 510 and 519 admitted into evidence without calling Toussaint, the author of the invoices to give evidence. Despite Page 11 of 19
the defendant filing a counter notice to the claimant s hearsay notice, Toussaint was not called as witness. On the first day of trial, the claimant indicated its intention to have the witness called to give evidence. On the second day however, the claimant indicated that the witness could not be located. As such, the defendant submitted that the information that Ramnarine sought to adduce into evidence was second hand information at the very best and therefore little or no weight should be placed on the invoices. 35. The defendant further submitted that Ramnarine was a mere rubber stamp on the invoices as he testified during cross-examination that he did not specifically check the actual hours worked with the corresponding log book for the trucks. 36. Moreover, the defendant submitted that it is trite law that the burden of proof is on the claimant to prove its case. In so submitting, the defendant relied on Halsbury s Laws of England, Volume 12, 2015 paragraphs 703 & 704 which provides as follows; 703. Incidence of the legal burden. The legal burden (or the burden of persuasion) of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom the substantiation of that particular allegation is an essential of his case 704. Incidence of the evidential burden. The evidential burden (or the burden of adducing evidence) will rest initially upon the party bearing the legal burden. However, rather than referring to a shifting burden, it may be more accurate to say that it is the need to respond to the other party's case that changes as the trial progresses according to the balance of evidence given by each party at any particular stage. If the party bearing the legal burden fails to adduce evidence, he has failed to discharge his burden and there will be no need for the other party to respond; however, if the party bearing the legal burden brings evidence tending to prove his claim, the other party may in response wish to raise an issue and must then bear the burden of adducing evidence in respect of all material facts. Page 12 of 19
Findings 37. As the court understands, the defendant s two main arguments against the claimant s invoices were that 1) the maker of the invoices was not called as a witness and therefore little or no weight should be attached to same and 2) the invoices were inaccurate. Hearsay evidence is evidence given by a witness in court of a statement made by some other person out of court: See Halsbury s Laws of England Volume 11 (2015), paragraph 697. The defendant filed a counter notice to the claimant s hearsay notice in order to have the maker of the invoices, Toussaint called as a witness. The defendant argued that it was prejudiced by not being able to cross-examine Toussaint on how she formulated the invoices. 38. Even though those invoices were prepared and signed by Toussaint, it is the evidence of Ramnarine, a director of the claimant that he approved those invoices. However, it is also his evidence that he could not testify as to the accuracy of the invoices as he was not the person who prepared them. It was therefore most important as a matter of evidence and the burden placed on the claimant to have the witness Toussaint present to testify and be cross examined on the issue of the composition of the invoices. This is the gravamen of the claim. The claimant is alleging that a certain number of trucks were leased and that there are approved tickets from OAS which demonstrate the accuracy of the billing, But this evidence is absent. The court therefore agrees with the submission of the defendant and will accord very little weight to the invoices. 39. Further, the court agrees that the defendant having paid sums which correlate to the claimant s invoices which set out the hours worked by each truck in the past demonstrates that the defendant would have accepted that the hours on those invoices were correct. However, the invoices which are the subject of this claim have been challenged and Page 13 of 19
therefore the burden lies upon the claimant to prove the accuracy of the invoices. This the claimant has failed to do. But the matter does not end there. 40. The court accepts the claimant s submissions that when the defendant s spreadsheet (which detailed its payments to the claimant) is compared with the claimant s invoices, the invoice sums were in correlation with one another, save and except for the invoices the claimant stated were outstanding. The course of dealings on the spreadsheet therefore demonstrates that the defendant in fact accepted the particular invoices without challenge and proceeded to make part payments on six of them. In respect of one however, no sums whatsoever was paid. It therefore cannot be that the defendant having accepted the accuracy of the six invoices and proceeded to make part payments thereon without a challenge to the balance owning, it is now allowed to repudiate it acceptance and agreement to pay the said sum. 41. The court also noted that the defendant did not provide any evidence to the court to substantiate its evidence that the claimant s invoices are inaccurate. The defendant has not provided the court with the invoices which it claims is different to the claimant s invoices. The failure to produce such evidence to the court results in the drawing of an inference that there were no such invoices. The claimant s revised spreadsheet The submissions of the defendant 42. The defendant submitted that the claimant s revised spreadsheet only surfaced approximately a month before the trial of this matter which denied the defendant any opportunity to respond to same. According to the defendant, it was incumbent upon the claimant to amend its case to properly reflect what it is now seeking against the defendant in order for the defendant to properly answer the case against it. Page 14 of 19
43. The defendant further submitted that little or no weight should be attached to the claimant s revised spreadsheet as the maker of the document, Toussaint was not called as a witness. The court notes that Ramnarine testified that his department prepared the revised spreadsheet and he approved it. He did not testify that Toussaint prepared the revised spreadsheet. 44. According to the defendant, Ramnarine during cross-examination sought to explain that the claimant s accounting records contained in the original spreadsheet missed a payment by the defendant, hence the drastic change in the sum being claimed. The defendant submitted that Ramnarine sought to convince the court that the revised spreadsheet attached to his witness statement is correct as opposed to the original spreadsheet attached to the claimant s amended statement of case but failed to address a discrepancy within the revised spreadsheet. The defendant submitted that the discrepancy Ramnarine failed to address was that in the revised spreadsheet, invoice number 480 dated the 4 th February, 2015 stated that the defendant paid $73,416.00 whereas in the original spreadsheet that invoice stated that the defendant paid $72,416.00. 45. Moreover, the defendant submitted that the claimant s explanation that a missed payment from the defendant in the sum of $79,097.00 caused its claim to be reduced from $301,197.01 to $160,396.25 is preposterous. As such, the defendant submitted that the revised spreadsheet in its entirety should be disregarded as same is unreliable, incorrect and straddled with numerous errors. Findings 46. The court finds that the defendant was not denied the opportunity to respond to the claimant s revised spreadsheet. The claimant disclosed its revised spreadsheet by Supplemental List filed on the 7 th June, 2017. This was approximately a little over a month before the trial date of this case. Therefore, it was incumbent upon the defendant to seek permission to file a supplemental witness statement in answer to the revised spreadsheet if Page 15 of 19
it found it was necessary to so do. Having failed to seek permission to do so, the defendant cannot at this late stage submit that it was denied such an opportunity. 47. Upon an analysis and comparison of the defendant s spreadsheet with the claimant s revised spread, the court will prefer the claimant s spreadsheet since it is clear that the defendant s spreadsheet has left out figures which the defendant has paid to the claimant. Therefore, the court finds that the total sum which the defendant claims it paid to the claimant pursuant to its spreadsheet is inaccurate. 48. The court further finds that the defendant has failed to prove that the revised spreadsheet is unreliable and/or inaccurate. The court notes that the sum of $160,396.25 will not be arrived at if the figure of $79,097.00 is subtracted from $301,197.01. However, the claimant very candidly indicated that it erred in its original spreadsheet and sought to correct those errors in its revised spreadsheet. The court finds that the claimant did address the discrepancy in invoice 480 as Ramnarine, during cross-examination, when asked which figure was accurate testified that the figure in the revised spreadsheet was correct. Therefore, it is reasonable to infer that in undertaking the revised spreadsheet, the claimant would have attempted to correct all errors in its original spreadsheet which would not have been limited to the missed payment of $79,097.00. Consequently, the court finds that the revised spreadsheet is accurate. Whether the sum of $160,396.25 is due and owing to the claimant by the defendant The submissions of the claimant 49. The claimant submitted that the defendant s version of events is less credible than that of the claimant s. According to the claimant, Purushottam in his witness statement testified that only two trucks were leased from the claimant from the 10 th February, 2014 to the 15 th February, 2015. The claimant submitted that Purushottam contradicted his evidence during cross-examination when he accepted that the defendant leased more than two trucks from the defendant and continued to lease the trucks beyond the 15 th February, 2015. Page 16 of 19
50. According to the claimant, the defendant failed to produce any other evidence except for Purushottam s witness statement and its spreadsheet to prove that it over paid the claimant. The claimant submitted that the defendant could have simply disclosed the cheques to demonstrate that the claimant s cheque numbers were inaccurate but the defendant failed to do so. 51. The claimant submitted that it has provided to the court all of its invoices, the date of the payments made, the defendant s cheque numbers and the sums outstanding in support of its case that the sum of $160,369.25 is due and owing by the defendant. The claimant further submitted that the defendant has failed to provide any evidence that it paid the outstanding invoices. The submissions of the defendant 52. The defendant submitted that the case put forward in the claimant s pleadings was essentially different to that as placed in its witness statement. The defendant further submitted that it was prejudiced by not having the opportunity to respond to the claimant s case as put forward in its witness statement. 53. According to the defendant, the claimant s case by its pre-action protocol letter and pleadings was that the defendant leased two trucks from it and the sum of $301,197.01 was due and owing. The defendant submitted that it was only in Ramnarine s witness statement that he mentioned the three additional trucks, the hours worked by the each truck and the revised spreadsheet which reduced the claimant s claim to $160, 396.25. As such, it was the submission of the defendant that Purushottam did not contradict his witness statement evidence by stating during cross-examination that additional trucks were leased since Purushottam was initially only answering the claimant s claim as it pertained to the two trucks. Page 17 of 19
54. Notwithstanding the above, the defendant submitted that invoices and the revised spreadsheet which was used by the claimant to prove its case should be wholly disregarded as Ramnarine admitted that he did not check the actual hours worked by the trucks and cross-referenced same with the log books for the trucks but merely rubber stamped the invoices and the revised spreadsheet. As such, the defendant submitted that the claimant has failed to discharge the legal and evidential burden of proof to prove that on a balance of probabilities the defendant owed to the claimant any monies whatsoever. Therefore, the defendant submitted that the claimant s claim should be dismissed with prescribed costs to the defendant based on the claim of $301,197.01. Findings 55. The court finds that the claimant s case as put forward in its witness statements was not essentially different from its pleaded case. The crux of the claimant s case is that the defendant failed to pay certain outstanding sums pursuant to the lease agreement. The burden lay with the claimant to prove its case. In defending the claim, the defendant pleaded that it did not owe to the claimant the sum of $301,197.01. It is axiomatic that the greater sum would have included the lesser sum of $160,396.25 (post adjustment). As such, the court finds that the defendant was not denied any opportunity to defend the claim of the claimant by the change of the figures as it was the defendant s defence that it paid to the claimant all outstanding sums and therefore did not owe the claimant any money be it the $301,197.01 or $160,396.25 as the case may be. 56. Having found that the claimant s revised spreadsheet is accurate, the court therefore finds that the claimant has proven that there are outstanding sums which the defendant has not paid. The court agrees with the submissions of the claimant that the defendant has failed to provide any evidence that it paid the outstanding invoices. However, the court finds that the claimant has failed to prove that interest at 2% per month on any overdue balances was a contractual term. 57. There will therefore be judgment on the claim as follows; Page 18 of 19
i. The defendant shall pay to the claimant the sum of $160,396.25 together with interest at the rate of 2.5% per annum from the 26 th July 2016 to the date of judgment; and ii. The defendant shall pay to the claimant the prescribed costs of the claim in the sum of $33,059.44; Dated the 29 th November, 2017 Ricky Rahim Judge Page 19 of 19