Binns and Others v Burrows

• Jurisdiction: Bermuda
• Judgment Date: 15 December 2011
• Docket Number: Civil Jurisdiction 2010 No. 149
• Date: 15 December 2011
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No. 149

BETWEEN:

Eldon Binns, Tyrone Sampson, Compass Holdings Limited

Plaintiffs

and

Kyril Burrows (also trading as Human Nature)

Defendant

Mr J Garrood for the Plaintiffs

Mr R Horseman for the Defendant

The following cases were referred to in the judgment:

Aggarwal v Dundee Leeds Management Services Ltd et alBDLR [2005] Bda LR 82

Dundee Leeds Management Services Ltd v AggarwalBDLR [2007] Bda LR 47

Abstract:

Termination of employment - Summary dismissal - Oral and written evidence questionable - Misconduct amounting to fraud

JUDGMENT of Kawaley, J

Introductory

1. The Third Defendant ("the Company") was the corporate vehicle established by the First and Second Plaintiff to ease their transition towards full retirement after a career in the Public Service. The Defendant's rights as a director and/or shareholder of the Company are the subject of a separate legal dispute in pending section 111 of the Companies Act 1981 proceedings. For the purposes of the present action, the Defendant was at most material times employed by the Company as its General Manager. His employment commenced on or about August 1, 2008 and ended on or about July 1, 2009. The precipitous and non-consensual termination of that relationship lies at the heart of the controversies which fall to be determined here.

2. In the course of the trial, the issues truly in controversy were significantly narrowed. The Plaintiff's first claim in relation to monies received by the Company in relation to work done at TN Tatem Middle School was agreed, with credit being given for $34,000 taxed costs awarded to the Defendant pursuant to Orders dated January 21, 2010 and March 4, 2010. At the conclusion of the trial, Mr Garrood sensibly abandoned the claim in relation to work done at Tudor Farm which was not supported by the evidence. The Defendant sensibly conceded that the Company had reimbursed him for $4250 in respect of "At Task" software which the Company in fact paid for.

3. This left the following disputes to be resolved by the Court:

i. the Company's claim for the payment of $315,418.68 in respect of work done at the Defendant's Turkey Hill property in St. George's;

ii. the Company's claim for a further $4250 in respect of the "At Task" software on the grounds that the Company received no benefit from the purchase the Defendant caused it to make;

iii. the Company's claim for $28,289.10 in respect of office equipment and supplies from which the Company did not benefit;

iv. the Company's claim for $9,390 in respect of a 'reimbursement' made to the Defendant in respect of a false CAD Concepts invoice;

v. the Defendant's Counterclaim for three months wages in lieu of notice at $10,000 per month (the amount pleaded, although at trial it was conceded that the correct amount was $9500 per month).

Approach to the evidence

4. The animosity between the protagonists, particularly the First Plaintiff and the Defendant, was palpable as they gave their evidence. No independent witnesses whose testimony could comfortably be regarded as entirely credible were called. This is a case, moreover, where the evidence of the protagonists is not only laced with personal animosity; their business relationship, initially forged while all were in Government employment, seemed to the Court to have a slightly murky air about it. Some of the evidence created the distinct sense that straightforward honest work was, on occasion, interspersed with "dodgy dealings". The Court is accordingly bound to treat all of the oral evidence with care and to seek, wherever possible and safe to do so, support from contemporaneous documentation. The authenticity of some of the documentation was even called into question.

Turkey Hill

5. The Plaintiffs' claim in respect of a substantial amount of work allegedly done at Turkey Hill between March and June 2008 in respect of which the Defendant supposedly owes $315,418.68 was not supported by contemporaneous documentation. It was only supported by invoices generated over a year later in the immediate aftermath of the termination of the Defendant's employment.

6. The Defendant's case that he made cash payments for the work done was supported by emails he claims to have sent and received in which the First Plaintiff expressly agreed that the Defendant could join the Company now that "all's paid up" (June 28, 2008) and that "Kyril's Turkey Hill project...