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Robert Mark Ltd v William [2010] KIHC 70; Civil Case 203 of 2009 (30 June 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 203 of 2009

BETWEEN:

ROBERT MARK LIMITED
Plaintiff

AND:

TEBWEA WILLIAM T/A MELESIA TRADING
Defendant

For the Plaintiff: Ms Botika Maitinnara
For the Defendant: Ms Taoing Taoaba

Date of Hearing: 28 June 2010

JUDGMENT

Action for price of goods sold and delivered by the plaintiff to the defendant.

The plaintiff is a company in Christchurch New Zealand conducting an import/export business. The defendant is a young woman of 23 who in 2008 and 2009 was conducting the business of merchant under the name Melesia Trading, from premises in Eita. Although it was admitted, in paragraph 2 of the Defence, that she is still trading, in evidence she said she no longer is. Her brother is Mr Mackenzie Taratieru (or Tenea or Kiritome). I know from previous actions that several years ago Mr Taratieru left Kiribati for Tuvalu and since has not returned.

Print outs of a number of emails are exhibits before the Court. Tendered by each side without objection from the other. Oral evidence from Mr Bard Shaun O’Shannessey, manager of the plaintiff and from the defendant in her defence.

Through Mr O’Shannessey were tendered documents shewing two transactions, in June 2008 and in July 2008. The tax invoices (Exhibit P1) shew Robert Mark Ltd as consignor and Melesia Trading as consignee. The first dated 30/06/08 is for miscellaneous goods for the total value of NZ$57,984.87, the second dated 15/07/08 is for "bakers flower" (another document described as "flour") with a total value of NZ$28,939.68. There is a third invoice dated 29/08/08 for "Sales-Freight" for $8,100.30. The goods all duly arrived in Kiribati.

The defendant admitted paying customs and wharf charges and taking delivery of all goods. She admitted selling many of the goods but has been waiting for Nelson Mani, the plaintiff’s sales representative, to come to Kiribati to promote the miscellaneous goods which, she said are of low quality. They are still in her possession. As for the goods she sold she said she has paid more than $20,000 for them to her brother, Mackenzie, in Tuvalu. She did not produce any receipts for payment. Yet there is no suggestion in any of the emails, either by the defendant or by her brother, Mackenzie, that she has paid him anything. In an email of 2 November 2009 Mackenzie wrote to Nelson Mani, "I am telling you as a friend, you go and get your money from Melesia Trading". The next day he wrote to the defendant, "Tebwea, you communicate with these people direct and pls don’t involve me in there". Mr O’Shannessey had a conversation with Mr Taratieru to the same effect. The defendant herself, on 11 November 2009, wrote to Bard O’Shannessey, "as for your request I will just pay whatever I already sold from the container which mixed with the $2 line". (Not quite sure what this means except that it is an undertaking to pay something.]

I formed a very poor opinion of the defendant. She was not a truthful witness. I do not accept her evidence. It was simply an attempt, by bringing her brother into it, to obfuscate the issues. Certainly her brother lodged the orders in 2008 but that is as far as he went. The defendant accepted the goods by taking delivery, paid the charges, has sold most of them, still has the rest; has made no attempt to return any unsold. I do not believe there was ever any arrangement with Nelson Mani to sell what she could and he would come to promote the rest. Mr O’Shannessey said an arrangement like that would not be viable and he would never have authorized it. Nor do I believe the defendant paid her brother anything.

The defendant accepted the goods, sold most, still has the rest. She must pay for them.

There will be judgment for the plaintiff for the amount claimed, NZ$95,024.85, converted into Australian dollars.

Dated the 30th day of June 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice