Barbara Gayle, Justice Coordinator
The Court of Appeal has ordered Exclusive Holiday of Elegance Limited in Montego Bay, St. James to pay a Belgian company, ASE Metals NV, US$885,747 to which it was indebted for a quantity of reinforcing steel bars.
ASE had supplied Exclusive Holidays with the steel in 2008, but up to January 2010 no payment was made. ASE filed a suit in the Supreme Court in February 2010 to recover the money.
However, Exclusive Holiday filed a defence to the claim, stating that it received some steel, but alleged that the material was not the grade it ordered. The tourist agency also alleged that it was not a party to the agreement that ASE was relying on and the person who purportedly signed on behalf of Exclusive Holiday did not have the authority to do so.
On June 25, 2010 ASE filed an application to strike out Exclusive Holiday's defence and applied for summary judgment on the ground that Exclusive Holiday had no real prospect of successfully defending the claim.
ASE claimed that since the supply of the steel Exclusive Holiday had acknowledged the indebtedness and had made a commitment in writing to pay.
The Supreme Court threw out ASE's application, but it filed an appeal against the ruling. Exclusive Holiday filed a counter-notice of appeal claiming there were certain procedural defects in the affidavit filed by ASE, which rendered that evidence inadmissible.
The Court of Appeal, comprising Justice Hazel Harris, Justice Hilary Phillips and Justice Patrick Brooks, in examining the pleadings filed in the Supreme Court, said ASE stated that on November 5, 2008 it entered into a settlement agreement with Exclusive Holiday, which undertook to pay monthly instalments.
The purchaser on an invoice ASE presented in support of the claim was named as 'Exclusive Holidays of Elegance Limited'. However, the agreement referred to 'Exclusive Holiday Limited of Montego Bay' and was signed by Kirk Taylor, an executive at the tourist agency, and ASE's representative Matthiew Vinken.
In its defence, Exclusive Holiday said the steel it received was of the incorrect grade and improper bundling and asserted that it had communicated its dissatisfaction with the material.
Exclusive Holiday contended that it was not a party to the agreement and its name was not Exclusive Holidays Limited. In any event, it said, Kirk Taylor did not have the authority to enter into any agreement on its behalf.
ASE, which was represented on appeal by attorneys-at-law Nigel Jones and Kashina Moore, relied on the agreement dated November 5, 2008.
The court said, in considering the affidavit of Robert Andries, managing director of ASE, it may be noted that he had demonstrated through a record of communication between the parties that Kirk Taylor, who signed the agreement, identified himself in e-mail correspondence as "Executive Vice President Exclusive Holidays/Tropical Tours Destination Management Company".
The court said there was no complaint about the quality of bundling of the steel in the correspondence. Taylor, the court added, blamed the failure to pay for the product on "a dramatic downturn in the world economy,” adding that “especially in Jamaica there has been very little construction and most of the steel is still in the yard."
The court further pointed out that in every e-mail Taylor sent to ASE, he indicated that he was waiting on Fred Smith, a director of Exclusive Holiday, to give directions concerning payments.
Fred Smith said in an affidavit that Taylor was not authorised to act on Exclusive Holiday's behalf. However, the court held that against the body of documentary evidence Exclusive Holiday's averment that Taylor did not have the authority to bind it "rings quite hollow".
The court said that subsequent to the date of the agreement, Taylor sent an e-mail to ASE in which he explained the failure to make the first payment and the e-mail was copied to Smith.
"Finally, there is Exclusive Holiday's complaint that it is not its name that appears on the agreement but rather "Exclusive Holidays Ltd", the court noted. "It would be pedantic indeed for any court to hold that this mis-description would allow
Exclusive Holiday to avoid liability under this agreement," the court held.
Exclusive Holidays was represented by attorney-at-law Georgia Gibson-Henlin.
In allowing ASE's appeal for summary judgment, the court said: "It would not ... be consistent with the spirit of dealing with cases justly for this case to be set for trial merely to show that the signature on all the relevant documents are Mr. Taylor's and that the varying spellings of the company's name was due to inattention to detail rather than a reference to a completely different entity. Both those positions, based on the documentary evidence, would be untenable."