Benoiton Construction (Pty) Ltd v Muller (CC 04/2017) [2020] SCSC 450 (17 February 2020)

IN THE SUPREME COURT OF SEYCHELLES {31 Reportable [2020] sesc ... ee 04/2017 BENOITON CONSTRUCTION (pTY) LTD (rep by Basil Hoareau) Plaintiff and ARNOUD MULLER (rep. by S. Rajasundaram) Defendant Neutral Citation: Benoiton Construction (Pty) Ltd. v Arnoud Muller ee 04 of20 17 sese f '3 I Before: Summary: Heard: Delivered: 2020 delivered on 0 I March 2019 Vidot J Construction contract; No written contract -Article 1341, breach and damages 10 June 2019 & 15 October 2019 17 February 2020 JUDGMENT VIDOTJ Background [1] The parties entered into a construction contract whereby the Plaintiff agreed to undertake construction works, which was mainly civil construction work for the Defendant. The Plaintiff is a company duly registered under the laws of Seychelles. Construction works were to be carried out on the Defendant's premises at Bel Ombre on parcel ]3276. The agreement was entered into in December 2012. It is alleged that it was a term of the agreement that the Defendant would pay to the Plaintiff, the consideration price based on measurement of the construction works as per current local rate and practice in the construction trade. [2] The Plaintiff avers that the contract was entered into for and on behalf of the Defendant by Alex Rosalie (hereafter "Alex") an architect by profession, who was an agent and proxy of the Defendant and project manager for and on behalf of the Defendant. The Defendant pleaded that in alternative to the above, Alex acted as an agent or proxy for the Defendant with the latter's apparent authority to enter into the contract on behalf of the Defendant. [3] The Plaintiff alleges that it was an express term of the agreement that the contract price would become payable in accordance with the invoices raised and issued by the Plaintiff within one month of the Defendant receiving such receipt. It was also an implied term of the agreement that Value Added Tax ("VAT") shall be payable by the Defendant in respect of construction works effected by the Plaintiff as per invoices and would be recovered by the Plaintiff from the Defendant. [4] The Plaintiff effected works of different nature that included but not limited to construction of stone walls, rock cutting, rock demolition, excavation works, reinforcement work, laying of concrete and block walling work. [5] The Plaintiff alleges that the Defendant breached the contract by failing and / or refusing to pay the Plaintiff for works performed. As a result they claim damage as follows; 1. Part of consideration price still due and payable US$ 87,210.59 to the Plaintiff ii. Value Added Tax recoverable from the Defendant US$40,453.55 The Plaintiff claims a total of US$127 ,664.14 from the Defendant. [6] The Defendant filed a Defence denying the existence of a contract between the parties and raise a preliminary objection in terms with Article 1341 of the Civil Code of Seychelles because the claim was in excess of SR5000.00 and since there was no written contract the Plaintiff should not be allowed to adduce oral evidence to establish contractual obligations between the parties. [7] However, on the date set for hearing of the case, the Defendant though represented by Counsel was absent on allegations of ill health that had prevented him from travelling from overseas. In October 2018 the hearing of the case had been aborted because the Defendant was unwell and he produced a medical certificate to confirm that. However, on the lOth June 2019, the Defendant was again absent on allegations, as above stated, of illness but failed to produce any valid medical certificate. So, the Court acceded to request from Plaintiffs Counsel for an ex-parte hearing. Evidence [8] Alberick Benoiton, a Director and shareholder of the Plaintiff gave evidence which reinforced averments made in the Plaint. He stated that he came to know of the Defendant through Alex who is an architect. This is confirmed by Alex, the other witness who testified on behalf of the Plaintiff. The Plaintiffwas shown the Defendant's property situated at Bel Ombre and that followed discussions about construction to be carried and for which the services of the Plaintiff were retained. [9] Payment for the construction works was based on measurements which is an adopted practice in the construction business. This is because most of the works to be carried out was civil engineering and construction works as identified above. Thereafter, the Defendant will be invoiced through Alex, the appointed agent and proxy of the Defendant. Payment would be made after Alex would have approved the invoices. The issued invoices were in fact approved by Alex. However, after effecting one payment, thereafter, the Defendant failed and refused to pay further sums claimed by the Plaintiff as identified in the Plaint. [10] Alex confirmed the above. He admitted that he was indeed the proxy and agent of the Defendant and that he approved invoices which the Defendant failed and refused to pay, even after he had promised that he would come to Seychelles and pay. Agency / Power of Attorney L_ [11] Article 1985 of the Civil Code of Seychelles ("the Code") provides "A power of attorney may be given by a notarial document or by a document under private signature or even by letter. It may also be given orally; but oral evidence of it is only admissible in accordance with the Title Contracts and Agreements in General. " According to both Alberick Benoiton and Alex the Defendant appointed Alex as his agent locally. It appears that the Defendant lives overseas for most of the year. Alex too represented himself as such. He wrote various emails such as exhibits P4, P6 and P7 which confirms that he was the agent for the Defendant in Seychelles. There is also evidence that at least one of the invoices approved by Alex, certain payment was made by the Defendant but then he defaulted on subsequent invoices. [12] The Court further takes notice that there was no objection (particularly because the case was heard ex-parte) to oral evidence being led to establish the power of attorney granted to Alex by the Defendant in accordance with Article 1341 of the Civil Code and therefore since such evidence was uncontroverted, the Court finds established the existence of a power of attorney. I find that established to the required standard of proof of the balance of probabilities. Burden of Proof [13] In order to establish its case, the Plaintiff needed to prove on the balance of probabilities these matters; (i) That a contract existed between the parties; (ii) That there was a breach of that contract by the Defendant, and (iii) That as a result of such breach, the Defendant suffered damages as particularised the Plaint. I have already found established to the required standard that Alex was duly appointed as the agent for the Defendant and as agent he had full authority subject to law, to deal with matters permitted with this construction project. Existence of Contract [14] As above mentioned, the Defendant raised a plea in limine litis that the contract was oral and that therefore in terms with Article 1341 of the Civil Code of Seychelles, since the amount being claimed was in excess of SR50001- (Seychelles Rupees five thousand) then oral evidence is not admissible to establish the contract. Even if this case was heard ex parte, this plea remains relevant. ] nonetheless remain aware that the Plaintiffs evidence was not challenged and therefore remains uncontroverted. [15] The Plaintiff tried to establish existence of a contract through oral testimony and documentary evidence. Alex had testified that the reason no contract was signed by the time the work started was because the Defendant wanted to have it translated into his native tongue. He gave oral testimony that at least one invoice out of the 3 was settled. The Defendant paid US$100,000.00. ] am of the view that such oral evidence would not be sufficient to establish a contract. However, based on the various email correspondence produced as exhibits between the Plaintiff and Alex the representative of the Defendant and equally the Plaintiff and Katrina Morel, particularly Exhibit P3, the existence of a contract is established. Exhibit P3 actually shows a transfer of money from Mr. Muller's account with Bentalen & Sparen Robobank to the Defendant. [16] I am satisfied that through these email correspondence the Plaintiff has satisfied this Court on the balance of probabilities the existence of a contract between the parties. Breach of Contract [17] Through the testimony of Mr. Benoiton and Alex the Plaintiff sought to establish a breach of contract. Again I note that their evidence remained uncontroverted. There was no a definitive sum as being the contract price. The price was fixed based on measurement of construction work, a practice common to the construction industry. Once invoices were raised, they were issued to Alex and payment was due within a month of the date of such invoices. That is evidence corroborated by Alex. [18] There is no dispute that the works were done. Alex, the agent for the Defendant confirmed that. Therefore there is no reason to believe that work was not carried out as per contract. Alex approved the invoices submitted, attesting that the work was done. Pictures of work done was admitted as exhibits. Exhibit P2 is an invoice for works done. The emails also shows that the Plaintiff was constantly claiming for works done and requesting that payment be effected. Exhibit P5 is pertinent too. An email dated 24th July 2015 from Alex to the Plaintiff, clearly demonstrates that the Defendant was failing or refusing to make payment for works done. Parties are bound to carry out a contract no only according to its express terms but also according to the consequences implied by fairness, practice of law or in good faith; see Vijay v Ailee Recreations [1983]SLR 91. The Defendant in the present case was not exercising good faith. Work was done and approved but payment was not made. The Defendant relied on various exhibit to establish a breach of contract in that payment was not made. [19] On the basis of the above I find that the Defendant breached the contract entered with the Plaintiff. Damages [20] I have ruled that there was a breach of contract by the Defendant. Mr. Benoiton explained the damages suffered by the Plaintiff as a result of that breach. He relied on Exhibit P2 to explain the claim damages. His evidence is supported by Mr. Alex. The amount is a quoted above. [21] Thus based on the uncontroverted evidence of the Plaintiff this Court finds the claim proven on the balance of probabilities. [22] I therefore enter judgment in favour of the Plaintiff against the Defendant in the sum of US$127,664.14 representing the price due and payable to the Plaintiff for works done in the sum of US$87,210.59 and value added tax in the sum of US$40,453.55, with interest and cost .. I Signed, dated and delivered at lie du Port 17 February 2020 ~\ Vidot J 7