Joachim Engineering Ltd Plaintiff v Argyle Construction Ltd Defendant [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Mitchell, J |
| Judgment Date | 24 February 2000 |
| Judgment citation (vLex) | [2000] ECSC J0224-2 |
| Court | High Court (Saint Vincent) |
| Date | 24 February 2000 |
| Docket Number | CIVIL SUIT NO. 107 OF 1998 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 107 OF 1998
This is aSale of Goods Act case. The Plaintiff company is one of the leading building contractors in St Vincent. It employs about 400 people. It has its main concrete plant at Calliaqua, some 4 miles out of Kingstown. The Defendant is an importer of used trucks and construction equipment for sale. In the year 1996, the Plaintiff won the tender to build the new General Market in Kingstown for the government of St Vincent. This is a huge project. The building is three stories high, and is constructed almost entirely out of reinforced concrete. It covers a block of the city. About 6,000 cubic meters of concrete was to be involved in the construction. The contract was worth some $14,500,000.00. The government made available to the Plaintiff near to the proposed construction site a spot of reclaimed land for storage of materials, and for the Plaintiff to set up the concrete batching plant that would be used to make the concrete for the project. This spot was 200 yards from the construction site. The Plaintiff's main concrete batching site at Calliaqua was separated from the construction site by some 4 miles of road including steep hills. It would not be economic for the Plaintiff to produce concrete at Calliaqua and to truck it to the construction site. Producing high quality concrete near to the site would reduce the turnaround time, and make the concrete cheaper by $15.00 to $17.00 per cubic meter. The Plaintiff's managing director decided to purchase a second-hand concrete batching plant for the project, and to locate it on the spot that government had made available. He learned that the Defendant had just imported a second-hand batching plant and a truck to use with it. On about 10 June 1996, he agreed with Alonso Deane, the manager of the Defendant company, that the Plaintiff would pay the Defendant $120,000.00 for the batching plant and $90,000.00 for the used truck. A new plant would have cost about $300,000.00. Payment depended on whether the equipment was operational. The Plaintiff was, as usual with second-hand equipment, to send persons to examine the plant to ensure it was satisfactory.
At this point the two stories of the parties diverge. The facts as I find them are that the Defendant deals in second-hand equipment. It does not normally give purchasers any warranty when it sells a piece of second-hand equipment. The purchaser is expected to inspect the equipment and satisfy himself that it meets his requirements and that the price is satisfactory for the state of the equipment. The Plaintiff's witnesses claimed in evidence that Alonso Dean had stated to them that the equipment had been "reconditioned." But, Alonso Dean denied that, and the Plaintiff produced no evidence of any kind other than a recollection. I was not satisfied that Alonso Deane gave an assurance that the second-hand plant had been "reconditioned."
Gregory Joachim and Brian Browne were charged by the Plaintiff company with examining the equipment to ensure it was working and able to do the job for which it was intended before it would be paid for. Gregory Joachim gave evidence. Brian Browne no longer worked for the Plaintiff, and did not live in St Vincent anylonger, so that his evidence was not available. The Plaintiff got the bill for the concrete batching plant in June 1996. It was around this time that Gregory Joachim and Brian Browne went to examine the batching plant. They found that while the engine started nicely, and the conveyor belt was working, the display for the scale did not work. This was very serious. Concrete for such a large building as the one for which it was intended must be mixed to meet the strength specified in the engineering plans for the building. This requires that the correct weights of aggregate, sand, cement, and water must be put together in the hopper. There is a scale that is electronically operated that tells the person using the plant how much of each is put into the hopper. When the plant was inspected on this first occasion, as the light did not go on on the display for the scale, it was completely useless as far as the Plaintiff was concerned. When this defect was pointed out to him, the Defendant's manager Alonso Deane promised to have the plant checked out. It took several weeks to get the display board to work. Alonso Deane stated in evidence that he got a technician named Dawnley John to make it work. But, as Dawnley John was not called as a witness, we do not know what exactly he found wrong, or what he did to make the display board work. Alonso Deane said in evidence that nothing had been wrong with the display board. The UK shippers had merely disconnected the wiring to the display board. No other wiring on the plant was apparently disconnected, only the wiring to do with the scale. The engine started fine, and the conveyor belt worked when the machine was turned on. I find that there was some more serious problem than a mere disconnection for shipping. It took two months, between the date of the agreement to purchase the equipment, as seen on the invoice from the Defendant dated 10 June, and the payment of the cheque on 7 August 1996, as seen on the receipt put in evidence, to get the display board to work.
The electronic scale attached to the bin or hopper worked by having the bin rest on cells or electronic sensors. Anything put in the bin caused the bin to press down on the cells, and the resistance in the circuitry in the cells altered. There was then a read-out on the display board of the weight that had been put into thebin. Mr Deane may well not have known at the time that the Plaintiff's employees examined the plant that in addition to the display board not lighting up, the sensors were not working, but I am satisfied that they were not working.
When Dawnley John got the display board to light up, Alonso Deane informed the Plaintiff company that the defect had been repaired. Gregory Joachim and Brian Browne returned to inspect the plant. They now found the light on on the display board. They were not experts in electronics, and could not be expected to know if the scale was working properly. Alonso Deane stated in evidence that he had given the Plaintiff no assurance that the scale was now working. He claimed that it was required to inspect the plant and to satisfy itself. According to Alonso Deane, when the mechanics from the Plaintiff company returned to the site after the display board had been made to light up, they tested the display board by placing the scoop of a front-end loader on the top of the hopper, and pressing the scoop down, to make sure that the scale was working. But, no such story had been put to any of the witnesses for the Plaintiff. It was not a story that had been tested by cross-examination of the Plaintiff's witnesses. The story sounded too pat when Alonso Deane came up with it in giving his evidence, after the case for the Plaintiff had been closed. I am satisfied that Alonso Deane got an electrician to get the display board to light up, but that the scale was not functioning properly even after the light lit up. Alonso Deane assured Brian Browne and Gregory Joachim that it was now working properly. Seeing the display light up, they believed him and reported back that the plant was satisfactory. They would not have recommended the Plaintiff purchasing the plant unless Alonso Deane had assured them that the defect they had discovered had been corrected.
The Plaintiff company, relying on the report from its office manager and mechanic that the display board was now lit up and working, paid the Defendant for the plant and the truck. The Plaintiff removed the plant and the truck to the site at Kingstown. Alonso Deane complained in evidence that the Plaintiff had altered the plant and that its workmen had probably, in the process, damaged the sensors onthe scale. He gave evidence that the hopper had had pieces of steel welded to it to increase its capacity from 3 cubic meters, which was the maximum capacity stenciled onto the outside of the plant. Richard Joachim, the managing director of the company had said that the plant produced up to 6 cubic meters of concrete. Richard Joachim did not operate the plant. He sat in the head office of the company and did what managing directors do. His son Gregory Joachim was the office manager who examined the equipment and gave evidence. He gave evidence that a sidepiece of steel had at some point after they had taken possession been welded onto the side that the load was put into the hopper. This was done to stop the materials being loaded into the hopper from falling out of the hopper. It was not suggested to him that this welding had been done to increase the capacity of the hopper above the manufacturer's recommended limit. He denied that they had altered the machine in any way, except to put this safeguard onto it. Alfred Joachim the brother of Richard and uncle of Gregory was the manager of the concrete mixing plant at the time in question, and up to the present time, and gave evidence. It was not suggested to him that the hopper had been altered to increase the capacity to an unacceptable level or at all. He also denied that the plant had been altered in any way. I do not accept that the hopper had been altered to increase its capacity. In any event, this is a red herring. The problem that arose with the sensors had nothing to do with the use of the plant to make concrete either in batches of 3 cubic meters or 6 cubic meters, or in any other quantity. It was not suggested in evidence that the sensors stopped working after the Plaintiff had commenced mixing cement as a result of abuse of the capacity of the plant. The evidence is that the sensors were not working...
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