Derek Achong
A building material supply company has scored a second victory in a legal battle against a former customer over almost $1 million in arrears on goods it supplied over a decade ago.
In a majority decision delivered last week, Appellate Judges Charmaine Pemberton and Maria Wilson dismissed an appeal brought by Merlin Lacroix and L's General Supply Store against Build to Last Hardware and Roof Manufacturing.
Acting Appellate Judge Carol Gobin delivered a dissenting judgment in which she disagreed with her colleagues and found that she would have upheld the appeal.
According to the evidence in the case, the companies had a good business relationship until 2013 when L's payments became delinquent.
Despite the payment issues, Build to Last continued to supply L's with goods until 2016.
Build to Last, whose chief executive officer at the time was current National Flour Mills CEO Terrence Kalloo, was forced to file the case in 2018 after it was unsuccessful in its attempts to recover payments.
In its defence, L's challenged some of the 48 invoices, which the supplier claimed were not paid. It also alleged that the supplier could not pursue a lawsuit over some of the older invoices as they fell outside the statutory limit for bringing such claims.
In June 2022, former High Court Judge and current Appellate Judge Ricky Rahim upheld Build to Last's breach of contract case against L's and ordered it (L's) to pay $968,854.66 in compensation. However, he dismissed the case against Lacroix, who is a director of L's.
Justice Rahim found that there was a running account between the parties which was unaffected by the limitation period. His finding was partially based on L's not specifying which invoice it was servicing when it made a $95,000 payment towards its debt in 2016.
Justice Pemberton, who wrote the majority ruling, agreed with the supplier's lawyers, Rajiv Rickhi and Terita Kalloo, that Justice Rahim's decision could not be faulted.
She found that his finding on the running account was reasonable although a clear intention between the parties was not easily apparent from the evidence.
"Even though the Trial Judge remarked that the records were far from perfect, my own view is that his finding on this was maintainable on the evidence," Justice Pemberton said.
She also found that Justice Rahim was not wrong to have ruled that although the supplier initially waived its claim for two per cent contractual interest on the invoices when it continued its business relationship with L's, it (the supplier) was entitled to retract the waiver after the debt was not cleared.
However, she did find the two weeks the supplier gave L's to pay the interest was unreasonable. She said that the period for satisfying that part of the debt should be six to eight months from when the appeal was decided.
Justice Pemberton found that L's could not seek to rely on equitable estoppel, which prevents a party from asserting their legal rights based on the other party changing its position after being misled.
"I am perturbed though, that a purchaser of goods, supplied by a supplier in good faith, can sell those goods and not turn over the cost price of those goods from the proceeds of sale to the supplier. Why should equity assist someone who has not lived up to his obligations without reasons?" she said.
As part of the judgment, the majority granted a 21-day stay to give L's time to consider a final appeal before the United Kingdom-based Privy Council.
In her judgment, Justice Gobin found that there was insufficient evidence before Justice Rahim to find the existence of a running account and that the limitation period should have applied. She also found that he erred in upholding the interest waiver withdrawal.
