D.E.C. & Sons Construction & Heavy Equipment Ltd v Aldon Tasher

• Jurisdiction: Belize
• Judge: Alexander, J.
• Judgment Date: 30 July 2024
• Docket Number: CLAIM No. CV246 of 2023
• Court: Supreme Court (Belize)

Between:

D.E.C. & Sons Construction & Heavy Equipment Ltd.

Claimant

and

Aldon Tasher

Defendant

CLAIM No. CV246 of 2023

IN THE SENIOR COURTS OF BELIZE

IN THE HIGH COURT OF BELIZE, A.D. 2023

Trial — Debt — Heavy Equipment Rental — Breach of Agreement — Terms of Oral Agreement — Illegality — Unlicensed Logging — Forests Act — Notice to Prove — CPR 28.18.

Appearances:

Ms. Vanessa Retreage for the Claimant

Mr. Rene Montero for the Defendant

Alexander, J.

1 I grant the claimant judgment on their claim. I am satisfied that on the evidence presented, the debt of BZ$29,635 is proved as being owed by the defendant (“Mr. Tasher”) to the claimant (“D.E.C. & Sons”).

2 The debt in issue in the present proceedings arises from a contractual relationship between the parties whereby Mr. Tasher had engaged D.E.C. & Sons in 2021 to provide various goods and services, specifically the use of certain heavy equipment. The existence of the agreement is not in issue before me, as Mr. Tasher in his defence does not deny it. The terms of the agreement are in dispute.

3 Mr. Tasher also denies liability to pay the sum of BZ$29,635 (“the outstanding debt”) by pleading that the full terms of the agreement, as he understood them, were satisfied. Further, Mr. Tasher argued that the agreement was illegal, void and unenforceable. Hiding behind this defence, Mr. Tasher came to court to show that it is D.E.C. & Sons who was at fault and should not recover the outstanding debt. D.E.C. & Sons was engaged in illegal logging so Mr. Tasher should be allowed to avoid liability for the outstanding debt in the matter.

4 I find that Mr. Tasher did request and use the services and equipment of D.E.C. & Sons, incurring the outstanding debt as claimed in this matter. I find also that logging as payment for use of the heavy equipment was not part of the agreement between the parties. There was also no sufficient evidence to show that D.E.C. & Sons cut logs without a permit or at all, and/or in breach of the Forests Act Chapter 213 R.E. 2020. Having entered the agreement with D.E.C. & Sons for use of their heavy equipment on a time-used basis, Mr. Tasher is not allowed to escape his liability to satisfy the debt for that use and service.

5 Mr. Tasher is liable to pay the outstanding debt plus interest and costs.

The Claim

6 This is a claim to recover an outstanding debt pursuant to an agreement for use of heavy equipment over the period of August 2021 to October 2021. It was a verbal agreement entered into by the parties, and its terms are in dispute.

7 D.E.C. & Sons claims that their goods and services were provided on specified terms. The rental of different pieces of equipment was done on a time-used basis, and at fixed hourly rates. The statement of claim filed on 2 ^nd May 2023 sets out in a table form the rental rates for the various pieces of equipment as follows:

EQUIPMENT USED	HOURS USED	HOURLY RATE	TOTAL DUE
D6R Bulldozer	50	$180.00	$9,000.00
D3 Bulldozer	14	$130.17	$1,822.50
Excavator	87	$200.00	$17,400.00
Dump Trucks	31	$122.98	$3,812.50
Grader	4	$150.00	$600.00	$32,635

8 It was pleaded that Mr. Tasher paid a down payment of BZ$3,000 towards the total contractual debt of BZ$32,635, leaving outstanding the sum of BZ$29,635. After the work was completed, he refused to pay the balance and has reneged on fulfilling the terms of the oral agreement.

9 D.E.C. & Sons made several requests for payment of the outstanding sum. On each occasion, Mr. Tasher admitted the debt and apologized for the failure to make the payments. Despite these repeated demands, Mr. Tasher has refused or failed to pay the outstanding sum and has now denied he is responsible for satisfying the outstanding sum.

The Defence

10 Mr. Tasher filed his defence on 9 ^th June 2023. Mr. Tasher disputes the claim on the following grounds:

• 1. The equipment was inoperable for a lengthy period between August 2021 to October 2021.

• 2. He had to procure another heavy-duty operator to complete the works. As a result, D.E.C. & Sons did not perform the work as set out in paragraph 3 of their statement of claim.

• 3. Further, D.E.C. & Sons was paid for the actual work done.

11 In the alternative, the defence pleaded that D.E.C. & Sons cut logs without a permit, rendering any agreement between the parties illegal, void and unenforceable.

12 Mr. Tasher made several admissions in his defence that spoke to the existence of the agreement between the parties. Mr. Tasher admits in his defence that a payment of BZ$3,000 was made to D.E.C. & Sons for works done. He admitted that D.E.C. & Sons did not perform all the works as claimed and this caused him to secure the services of another heavy-duty operator to complete the unfinished works. Another admission in the defence was that D.E.C. & Sons did demand repayment of the outstanding debt, but this was done by way of one letter from their counsel and Mr. Tasher responded via his own counsel. In all material respects, D.E.C. & Sons was put to strict proof.

Reply to Defence

13 In reply, D.E.C. & Sons denied that the heavy equipment was inoperable for any period during the contractual period. It was stated that charges for rentals are billed as they are incurred so if any equipment was inoperable, Mr. Tasher would not have been billed for its usage.

14 In reply to the alternative plea in the defence about illegal logging activities on Mr. Tasher's property or on their behalf, D.E.C. & Sons strongly denied that this occurred or that it formed part of the agreement between the parties. D.E.C. & Sons stated that the agreement was confined to the rental of heavy equipment and for that purpose, Mr. Tasher had sole control and authority over the equipment and their operators.

Issues

15 I identify the central issue for the court's determination as whether Mr. Tasher is indebted to D.E.C. & Sons? In the process, I will discuss the question of illegality as it is a defence raised so its applicability and appropriateness will be addressed. Other questions will be addressed in disposing of the primary issue in this claim.

Discussion

16 The debt that forms the subject matter of these proceedings is relatively small but involved heavily contested litigation to recover. Counsel for the parties took opposing stances on the facts and evidence so the court, guided by the law, was circumspect in combing through the evidence to dispose fairly of the matter.

17 Ms. Retreage, counsel for D.E.C. & Sons, argues that the evidence supported their case that Mr. Tasher is indebted in the amount claimed, and that illegality, as raised by the Mr. Tasher, is inapplicable on the facts. On the opposing side, Mr. Montero advances that Mr. Tasher has paid for the work done, owes no outstanding sum and that D.E.C. & Sons cut logs without a permit and, therefore, any agreement between the parties was illegal, void and unenforceable. In his evidence and via the submissions of his counsel, Mr. Tasher also raised the issue of not having any contractual relationship with D.E.C. & Sons but only with its head, Mr. Castillo. The defence, however, was silent on this and it is raised first in the evidence at trial.

18 At the trial, each party called the evidence of two witnesses:

For D.E.C. & Sons:

• 1. Mr. Curtis Castillo, and

• 2. Mr. Elvis Young.

For Mr. Tasher:

• 3. Mr. Aldon Tasher, and

• 4. Mr. Carlos Torres.

Issue: Whether Mr. Tasher is Indebted to D.E.C. & Sons?

19 The primary issue of outstanding indebtedness gives rise to an examination of several pertinent and related facts and the evidence before any conclusion can be made on that question. The first is the agreement itself.

The Agreement

1. Parties to the Agreement

20 It is an oral agreement that is in issue in these proceedings. Its existence is not in dispute. The terms, however, are uncertain, given that the agreement was not settled in written form.

21 Ms. Retreage advances that in these circumstances, the court is not called upon to interpret or ascertain the meaning of a written agreement but must glean the intention of the parties by objective means. She submitted that the terms of the verbal agreement are a question of fact to be objectively ascertained from the conduct of parties and their oral exchanges. 1 Essentially, the court's function is to ascertain from the evidence before it the terms agreed to by the parties. The law is as advanced by Ms. Retreage, and Mr. Montero did not disagree.

22 Deciphering the intentions of parties to the agreement through an impartial assessment of their conduct and exchanges posed some challenges, as parties have asserted and maintained differing accounts. The first question that I addressed was, who are the parties to the agreement?

23 Mr. Tasher claims that the parties to the agreement were Mr. Castillo and himself and that it was for the construction of a road. Mr. Castillo's evidence was that the agreement was between D.E.C. & Sons and Mr. Tasher to rent equipment on a time-

used basis, which remained under the control of Mr. Tasher during the hours of use. It was never for the construction of a road

24 In the submissions, Mr. Montero stated that Mr. Tasher had a verbal agreement with Mr. Castillo, and not with D.E.C. & Sons, whose existence he was unaware of until the claim was served on him. This claim as to different contractual parties was made first in the witness statement of Mr. Tasher who stated at his paragraph 4 and 5 that:

[4] I along with “other farmers sought the assistance of Curtis Castillo to construct a road to our farms located in the Old Mullins Road Area of Pomona Valley, Stann Creek District. This road that was to be constructed was not on any of our, the farmers' land, it was a road to get to our farm land. As such, at all times, the road was a public and not a private road.

[5] We sought the...