Smith v Barbosa

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judgment Date: 07 November 2003
• Docket Number: Appellate Jurisdiction 2003 No. 40
• Date: 07 November 2003

BETWEEN:

Terrence Smith

Appellant

and

Steven Barbosa

Respondent

Kawaley, J

Appellate Jurisdiction 2003 No. 40

In The Supreme Court of Bermuda

Recovery of rent — Credibility of witnesses — Whether claim for services or for rent — Double-billing for work done on house

The following cases were referred to in the judgment:

Lathan v LathanBDLR [2003] Bda LR 59

Kwong Kin Hung v R [1996] UKPC 39

Civil Appeals Act 1971, s. 14

Mr. J. Pachai for the Appellant

Mr. P. Woolgar for the Respondent

JUDGMENT of Kawaley, Puisne Judge

Background

By a judgment dated April 9, 2003, the Magistrates Court (Wor. Edward I. King) entered judgment in favour of the Plaintiff/Respondent in the amount of $22,500.

The sum was awarded as damages for a claim to recovery arrears of rent at the rate of $1500 for the period September 15, 2001-June 15, 2002, a nine month period.

Against this decision, the Appellant/Defendant appeals by Notice of Appeal dated June 3, 2003, on the ground that ‘the Learned Magistrate's decision was so clearly against the weight of the evidence as to be perverse’.

Particulars of Ground of Appeal

The Appellant's particulars in support of his grounds of appeal may be summarized as follows:

• 1. the only debt due and payable to the Plaintiff as at April 2002 was unpaid rent in the amount of $22,500;

• 2. the Plaintiff admitted in evidence that no sums were owing in respect of work done at the Defendant's Tee Street residence;

• 3. the Plaintiff admitted he was liable to repay the $21,900 double-billed to the Bermuda Housing Corporation (‘BHC’);

• 4. the evidence given by the Plaintiff as to the purpose for which the invoice #33 was prepared was not credible because the invoice showed a nil balance;

• 5. the Plaintiff gave no credible or reasonable explanation as to why the Defendant would have paid him $22,300 in April 2002 otherwise than to pay the arrears of rent.

The Magistrate's Decision

The Learned Magistrate heard evidence from the Plaintiff, the Defendant and the Defendant's wife. Both Counsel (Mr. Paul Harshaw appeared for the Plaintiff below) submitted written submissions, while the Plaintiff's original summonses were supplemented by Amended Particulars of Claim. The Defendant filed a Defence. In addition, various documents were produced in evidence, principally the invoices relied upon by the Plaintiff and pre-trial correspondence between the parties and their respective agents.

Paragraphs 4 and 5 of the Defendant's written submissions stated as follows:

‘4. The issue for the Court to decide is whether the payment of $22,300 which was made by the Defendant to the Plaintiff by cheque dated 22^nd April 2002 was for rent or for some other matter.

5. It is submitted that this issue can only be determined by reference to the credibility of the evidence given by both parties.’

The Defendant's Counsel went on to detail why his client's evidence was to be preferred to the Plaintiff's. One point made in this regard was that even if the Plaintiff's evidence was accepted, he gave no consideration for the money received from the Defendant, and in any event the sum paid must be credited against the outstanding rent to extinguish that debt (paragraph 15).

The Plaintiff's Counsel in written submissions detailed why his version of the events was credible and the opposing version was not. In concluding, he stated at paragraph 14 as follows: ‘The crux of this case is credibility. Should the Court prefer the evidence of the Plaintiff, a man who has readily admitted to making mistakes and has made up for those mistakes, or should the Court prefer the evidence of the Defendant?’

The Judgment given by the Learned Magistrate runs to six pages, quite ample for a matter tried summarily. At the bottom of page 1 of his Judgment, the Learned Magistrate defines the scope of his decision as follows:

‘As both Counsel have submitted, the issue for decision by me is whether the cheque for $22,300.00, paid by Smith to Barbosa, was in respect of rent or for some other matter. That decision can be made but only after the evidence is scrutinized.

However, I state here and now that this case stands separately and distinct from any work or dispute related to the contract between Smith and Barbosa, in respect of Smith's Tee Street residence.’

The next 1 ³/₄ pages of the Judgment review the Plaintiff's evidence. Approximately 2 ³/₄ pages are devoted to a review of the testimony given by the Defendant and his wife. Before setting out his findings, the learned Magistrate makes the following observations on the submissions of Counsel:

‘Both counsel agreed that the issue in this case can only be determined by reference to the credibility of the parties. I agree with them, and having scrutinized the written submissions, I shall make comments on those which stand out.’

Mr. Pachai for the Appellant has not suggested that the judgment incorrectly summarizes the evidence. His complaint is that the decision to accept the evidence of the Plaintiff as credible is perverse. I will accordingly highlight the main aspects of the evidence as summarized in the Judgment of the Court below.

The Plaintiff's claim was for nine months rent at $2500 per month, totalling $22,500. He testified that a cheque drawn on Capital G Bank dated April 22, 2002 in the amount of $22,300 was given to him by the Defendant ‘to repay BHC the sum resulting from double-billing, NOT for rent.’ Smith approached Barbosa at home, told him that his (Smith's) job was on the line, and the double-billed amounts had to be repaid...