Supreme Court
Action No. 75 of 1994
19th April, 2000
Shanks, J.

Mr. Andrew Marshalleck for the Plaintiff
Mr. Fred Lumor for the Defendant

Contract - Claim on outstanding invoice balance - Defendant liable to pay outstanding invoice balance.

J U D G M E N T

1. This is a claim for $21,172, being the balance outstanding on an invoice number 682 dated 6 October, 1993 for radio equipment and installation expenses arising from the provision to the Defendant by the Plaintiff of a complete repeater radio network linking the Defendant's various sites in Belize, Stann Creek District and Punta Gorda. A repeater network works by each of the radios sending signals to a repeater and the repeater sending the signal back to the radio being spoken to. It allows radios to speak to each other over much larger distances than a conventional two-way radio system. The plaintiff has various facilities at Mountain Pine Ridge where a repeater can be installed. By the time of the trial the only items in issue between the parties were as follows:

2. The chronology based on uncontested facts of documentary evidence was as follows:

Mr. Tench and Mr. Irving gave evidence supplementing this chronology. Although Mr. Irving was a colourful and amusing witness, I generally preferred the evidence of Mr. Tench, who was more measured and careful, when it came to disagreements between them as to what had happened.

3. As I have mentioned, an important meeting took place between Mr. Tench and Mr. Irving on 21 October, 1993 after the installation had been made and the bill rendered and certain complaints raised. Mr. Tench told me that on this occasion it was expressly agreed that he would halve the transportation, subsistence and labour costs in the invoice and that Mr. Irving would arrange for payment of the revised sum to be made on 22 October, 1992. Mr. Irving told me that Mr. Tench said all he would compromise on was that he would halve the transport, subsistence and labour costs and that he (Irving) told him to put in a revised invoice and he (Irving) would talk to Mr. Zabaneh about the matter. As indicated above, I preferred the evidence of Mr. Tench on what happened at this meeting and find that the agreement described by Mr. Tench was in fact made. In a sense that finding resolves the case in the Plaintiff's favour but I shall nevertheless consider the evidence in relation to the various items on which complaints were made.

4. Item (1) and (2) Repeater & Aerial: Mr. Tench was adamant that the repeater worked perfectly well. He told me that the complaint in the fax of 18 October 1993 of the "repeater not working properly" arose from an isolated complaint from Mr. Zabaneh himself which Mr. Irving told him about at the meeting of 21 October. Apparently Mr. Zabaneh had attempted to use the repeater to speak to his office in Dangriga while sitting directly outside it in his car and there had been interference. Mr. Tench explained that he should use direct channel for very close communications and that it was always possible for there to be interference. After that no complaint was received until the system had already been turned off at the end of November, although the repeater was in use in the meantime as demonstrated by the monitoring of the repeater carried out by Mr. Tench in the normal course. On the basis of this evidence, the Defendant has not shown that there was in fact anything wrong with the repeater and aerial and he must pay for these items.

5. Item (3) and (4) 2 Kenwood radios and chargers. Mr. Irving complained that these radios would not work over a sufficient distance, which Mr. Tench had said would be 6-8 miles and that Mr. Tench had agreed to replace them with Motorola radios at the meeting of 21 October, 1993. These points were not put to Mr. Tench in cross-examination and I accept his evidence that there was no specific complaint about these radios until an earlier trial of this matter in 1998, and that on that occasion Mr. Irving came to court with a somewhat battered looking radio which he said he wished to return at that stage (nearly 5 years after the original supply). On this occasion he again came to court with one Kenwood radio saying he could not find the other. The radio did not look particularly new or particularly used but the aerial Mr. Irving produced with it was manufactured by another company, something which he was unable to explain. On the basis of this evidence, I therefore reject the complaint in relation to the two hand held Kenwood radios.

6. Item (5) Modification of four existing radios. Mr. Irving stated in evidence that only two radios were modified and that they did not function properly. This was not put in cross-examination to Mr. Tench whose position was that any malfunctioning of the radios resulted from mistreatment by the defendant's personnel. I find that the Plaintiff did modify four radios and that he is entitled to charge $360.00 for the modification.

7. Item (6), (7), (8) Transportation, subsistence, labour. The evidence as to what was agreed about this at the outset and whether additional costs were incurred as a result of the teething problems for which the Plaintiff was responsible and as to what costs precisely were incurred was not at all clear or conclusive. However, in the light of the agreement I have already found to have been made on 21 October, 1993, the Defendant is liable to pay half the amount shown in the invoice, or $1,918 for these items.

I therefore find the Defendant Liable to pay the full amount claimed, $21,172.00 less $1,918.00 plus an agreed figure of $1,800.00 for some solar panels which were supplied, which leaves $21,054.00. There shall be interest on this sum at 12% for 6 years and five months making a total of $36,844.00. There shall be judgment for this sum. It follows from my findings that the counterclaim is dismissed.