Payet v Vinta Trading Company (MA 330/2015 (arising in CS 108/202012)) [2017] SCSC 377 (30 May 2016);

IN THE SUPREME COURT OF SEYCHELLES

Civil Side: MA
330/2015
(arising in  108/202012)

       [2016] SCSC 377


In the Matter of Gregoire Payet, Applicant, versus Vinta Trading Company, Respondent
And in the Matter of:

An Application pursuant to section 147 and 148 of the Seychelles Code of Civil Procedure to correct the currency stated in the Judgment by Consent in CS108/12 from United States dollars to Singapore dollars

GREGOIRE PAYET
Of La Passe, La Digue

versus

VINTA TRADING COMPANY
(Herein represented by its director Mr. K.K. Chua
Of Block 132 Jalan Bukit Merah 01-1332
Singapore 160132

 

Heard:            3 May 2016

Counsel:Mr Frank Elizabeth for applicant
           
            Miss Karen Domingue  for respondent
           
Delivered:        30 May 2016

JUDGMENT

McKee J

[1] In Case No. 108/2012 the Respondent, a company incorporated and registered in Singapore, by Plaint sought payment of the sum of US$ 201,342.81 for the sale and delivery of goods to the Applicant. The case was first called in court on 8th October 2012. Liability was admitted but only for the lesser amount of US Dollars 108,710.75. It is to be especially noted that the sum sued for was in the currency of US Dollars and in the Defence dated 17th October 2012 there was a partial admission by the use of the words “The Defendant owes the Plaintiff the sum of US$ 108,710.75”. On 29th October 2012 Judgment was entered for the lesser amount of US$108,710.75. The matter was adjourned to enable agreement as to the mode of installment payment. On  4th March 2012 a Judgment by Consent  was applied for and granted by the Court  in terms of a “Judgment by Consent” dated 5th February 2013 which set out the specific terms and mode  of repayment. Again the principal sum and the monthly installment payment are shown in the currency of US Dollars. It also specified details of the bank account to which repayments were to be made. This Judgment by Consent prepared by the parties was signed by the now Applicant and Respondent and their respective two Attorneys.
[2]  The payment of the monthly installments fell into arrears. The Notes of Proceedings of 9th October 2013 record that Counsel  for the Applicant on that day had received funds to pay a further installment of US Dollars20,000 to the Respondent .
[3] By Application to show Cause lodged in the Supreme Court on 19th November 2014 the Respondent sought an Order from the Court for payment of the balance due of USD28,710.75 as a result of the failure of the Applicant to meet further installment payments. In this Application it was narrated that US Dollars 80,000 had been paid to account towards the total debt of USD 108,710.75 and hence the balance due was US Dollars 28, 710.75. This hearing was delayed due to the medical condition of the Applicant.
[4] There is now to be considered by this Court a further Application by the Applicant pursuant to sections 147 and 148 of the Seychelles Code of Civil Procedure dated 17th September 2014 but not lodged with the Supreme Court until 23rd November 2015.The thrust of this present Application is that  there has been a clerical error or an error arising from an accidental slip or omission in the judgment by consent. It is averred that the sum due therein was recorded in the currency of US Dollars when the correct currency should have been Singapore Dollars. In the present matter, the Applicant seeks an Order from this Court to make an amendment in the judgment by consent to reflect this error in the currency stated.
[5] The Respondent resisted this Application and lodged written Answers with documents attached.
[6] The matter in issue remains the same. Was the true intention of parties to the original action and the subsequent judgment by consent that the sum due and owing was to be recorded in the currency of US Dollars or Singapore Dollars?
[7] FINDINGS.
[8] This is a civil matter and accordingly the burden of proof is on the balance of probabilities rather than the criminal standard of beyond reasonable doubt.
[9] I look to all the documents before me.
[10] Since the original contract was with a supplier in Singapore it may well be that the original contract costing could have been recorded in Singapore Dollars. However in my view, this does not necessarily assist the Applicant. At exhibit R9 of the documents attached to the Answers lodged by the Respondent all the entries in the Statement of Accounts in name of the Applicant are recorded in the currency US Dollars. I find that it is more probable than not that payments were made in US Dollar currency between Seychelles and Singapore. The US Dollar currency is recorded in the Plaint and the Defence, including the express admission therein that the sum of US$108,710.75 is owed to the Respondent. The US Dollar is the currency recorded in the Judgment by Consent, which would have been read through by the four signatories before they appended their signatures. The two principals are experienced businessmen used to signing commercial documents after careful perusal of the contents.
[11] The first inkling that the appropriate currency may have been the Singapore Dollar was not until the Applicant made this application under sections 147 and 148 of the Seychelles Code of Civil Procedure dated 17th September 2014and lodged with the Supreme Court on 23rd November 2015.
[12] I find it unlikely that two experienced businessmen and their attorneys would each sign the judgment by consent, knowing the importance of the document, when it contained such a fundamental error relating to the currency of repayment. I also find it unlikely that the Plaint and Defence lodged, which contained the admission that US$108710.75, would refer to the wrong currency. I find it unlikely that such an error would be repeated in these documents and over an extended period of time.
[13] I find that it is more probable than not that the currency of US Dollar, quoted in the Judgment by Consent and, for that matter, also in the original Plaint and Defence, reflected the true agreement between the parties.
[14] Consequently I DISMISS the Application to amend or correct the Judgment by Consent, and with Costs.


Signed, dated and delivered at Ile du Port on 30 May 2016

 

C McKee
Judge of the Supreme Court