Rogers T/A John Rogers Engineering v Iaralco Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Neill |
| Judgment Date | 16 March 2007 |
| Neutral Citation | [2007] IEHC 130 |
| Court | High Court |
| Date | 16 March 2007 |
[2007] IEHC 130
THE HIGH COURT
BETWEEN
AND
D & C BUILDERS LTD v REES 1966 2 QB 617
CONTRACT
Terms
Accord and satisfaction - Duress - Agreement to carry out work - Price not agreed - Different views as to price - Compromised figure reached - Whether plaintiff entitled to amount he claimed he was due - Whether pressure of having to pay wages could constitute duress - D & C Builders Ltd v Rees [1965] 2 QB 617 distinguished - Action dismissed and judgment given on counterclaim (2001/247S - Ó Néill J - 13/3/2007) [2007] IEHC 130
Rogers v Iaralco Ltd
The plaintiff claimed that the defendant owed him money on foot of five invoices. The plaintiff claimed inter alia that he was forced to accept a sum under duress. The nature of the duress alleged by the plaintiff was that the defendant knew that he needed money to pay wages.
Held by O'Neill J. in dismissing the plaintiff's claim and giving the defendant judgment on their counterclaim that the evidence established that the defendant did not seek to take advantage of the plaintiff's difficulty with regard to the payment of his wage bill.
Reporter: R.W.
JUDGMENT of Mr. Justice O'Neill delivered the 16th March, 2007
The plaintiff is an engineer and had an engineering business. The defendants are a German owned company registered in Ireland and manufacture parts for motor cars. They have contracts in that regard with Audi, Volvo, VW and Porsche.
In May, 1999 the defendants subcontracted work to the plaintiff. This work involved the sending of certain car body parts.
This arrangement obviously worked well, notwithstanding some complaints by the defendants concerning the plaintiff's adherence to the defendants' payment terms.
In October, 2000 the defendants wished to subcontract additional work. This was the polishing of Magne Bumpers and the cutting of rubber strips. Agreement was reached between the plaintiff and defendants for this work to be taken on by the plaintiff.
Unfortunately this additional work, very quickly turned out to be the undoing of the entire commercial relationship between the two.
On the 27th March, 2001, when that relationship was clearly over the plaintiff sent five invoices to the defendants claiming the sums that are now sought in these proceedings, save for credit being given for the sum of IR £27,104 paid by the defendants to the plaintiff on foot of a settlement of injunction proceedings taken by the defendants against the plaintiff on the 29th March, 2001 and settled on the 30th March, 2001.
I propose to deal with the claims made in these proceedings by reference to those invoices.
Before so doing I should say that where a conflict of evidence exists, I prefer the evidence of Mr. Anderson and Mr. Balfer.
The first of these invoices is invoice number 9311004 which is for the sum of IR£15,000 and is claimed as a balance due for the polishing work on the Magne Bumpers.
It was common case that the plaintiff took up this work in November, 2000. Because the work was more complex than that hitherto undertaken by the plaintiff there was an initial training or trial period of about 3 weeks during which the plaintiff worked on scrap parts. Also because of the uncertainty concerning performance the parties did not agree on a price for the work, at the beginning. I am satisfied that there was an understanding that the plaintiff would be paid a price which covered his costs and a normal profit margin.
The defendants via Mr. Anderson conducted an exercise to ascertain the defendants' costs for doing this work, which had been done in-house by the defendants. Mr. Anderson estimated this at 87p per unit. Having regard to the fact that the defendants were subcontracting this work their expectation was that the plaintiff could do this work for a similar price.
In this regard it is clear that a yawning gulf opened up between the expectations of the parties.
On the 8th December, 2000 the plaintiff presented to the defendants a breakdown of his costs for doing this work. This put the cost per unit at 1.81 each. Buffing and sanding added a further .30 bringing the total cost to 2.11 per unit. If one adds 20% to that you get a figure of 2.53 per unit which is the figure requested by the plaintiff. Comparing this to the 87p which was the defendants expectation, clearly, there was going to be a difficultly in arriving at an agreed price.
The plaintiff attended at the defendants' premises on the last day for business before Christmas 2000. He requested an urgent payment to enable him to meet his wage bill. After some checking and with Mr. Anderson's agreement he was given a cheque for in excess of IR£16,000 which was calculated on the basis of 87p per unit and an arrangement was made to sort out a price after Christmas.
Unfortunately the plaintiff suffered a bout of ill health after Christmas. A meeting did not take place until the 22nd January, 2001. At this meeting the issue of the price to be paid for this polishing work was discussed. The plaintiff demanded a sum of IR£45,000 which he said in evidence was a calculation of the cost of the work to him without any profit. The defendants requested a detailed breakdown of his costs. The plaintiff agreed to supply this and on the 23rd January, 2001 he submitted a document which set out his costs amounting to IR£36,340.75p together with supporting documentation.
A further meeting took place on the 31st January, 2001. At that meeting the plaintiff was offered IR£25,000 which he refused. I am satisfied that the discussion was such as to raise in the minds of the defendants an apprehension that the plaintiff would not continue supply and would withhold materials in his possession the property of the defendants and required for producing the defendants' parts.
A break was requested in the meeting to enable the defendants to discuss the situation amongst themselves.
Following this, the defendants offered the plaintiff IR£30,000 for this work provided he would forthwith furnish an invoice in full and final settlement of this claim.
There was consensus that the plaintiff would not continue doing this work.
I am satisfied that the plaintiff agreed to accept IR£30,000 and to furnish the invoice as requested. The following day the plaintiff did send an invoice in the agreed terms and the defendants paid a cheque for just under IR£14,000 as the balance of the IR£30,000.
In the foregoing invoice furnished to the defendants on the 27th March, 2001, the plaintiff now seeks to recover the balance of IR£15,000, of the IR£45,000 initially claimed by him.
In making that claim in these proceedings he does so on the basis that there was duress which forced him to accept the IR£30,000.00. The nature of the duress alleged by the plaintiff in evidence was that the defendants knew that he needed the money to pay wages and that he was recovering from surgery.
In this regard the plaintiff places reliance on the case of D & C Builders Limited v. Rees [1965] 2 Q.B. at 617 a decision of the English Court of Appeal. This case is authority to the effect that where a creditor accepts a lesser sum than the amount actually and lawfully due, in the absence of accord and satisfaction, or if not restrained by promissory estoppel, he is entitled to sue and recover the full amount of the debt due, and where there has been intimidation, there cannot be a true accord.
In my opinion the plaintiff's case differs markedly from the D & C Builders Limited case. In the first place, the sum...
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Carlo Tassara Assets Management Sa. v Éire Composites Teoranta
...claim for judgment on foot of the guarantee. 201 This conclusion is in line with the decision of O'Neill J. in Rogers v. Iaralco Limited [2007] IEHC 130, where O'Neill J. stated:- '[T]he factors put forward by the plaintiff as constituting duress or intimidation could not amount to that. T......