Geotechvision Enterprises Ltd v E-Learning Jamaica Company Ltd

• Jurisdiction: Jamaica
• Judge: Palmer Hamilton, J.
• Judgment Date: 08 June 2023
• Docket Number: CLAIM NO. SU2020CD00069
• Court: Supreme Court (Jamaica)

Between

Geotechvision Enterprises Limited

Claimant

and

E-Learning Jamaica Company Limited

Defendant

[2023] JMCC COMM 25

Palmer Hamilton, J.

CLAIM NO. SU2020CD00069

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE COMMERCIAL DIVISION

Civil Practice & Procedure — Breach of Contract — Wrongful Termination of Contract — Repudiatory Breach of Contract — Interpreting Terms of a Contract — Implied Terms — Counterclaim for Breach of Contract — Damages — Interest — Costs

IN OPEN COURT

Mrs. Denise Kitson K.C., Mr. Kevin Williams and Mr. Gordon McFarlane instructed by Grant, Stewart, Phillips & Co for and on behalf of the Claimant Company

Mr. Linton Gordon and Mr. Obika Gordon instructed by Frater, Ennis & Gordon for and on behalf of the Defendant Company

Palmer Hamilton, J.

INTRODUCTION

1 The Claimant Company by way of a Claim Form and Particulars of Claim filed on the 18 ^th day of February, 2020 is seeking damages and loss arising from a breach of contract, failure to perform the contract as agreed and/or damages on a quantum meruit basis against the Defendant Company. The Claimant Company is claiming that they entered into a contract with the Defendant Company on or about the 23 ^rd day of November 2018 for the provision of “Tablets, Syncing and Services for the E-Learning Project in Schools” (hereafter referred to as “the Project”). The Defendant Company in breach of the said contract failed to perform the contract as agreed. The Claimant Company is also claiming that the Defendant Company wrongfully terminated the said contract on or about the 14 ^th day of October, 2019 without adhering to the terms of the contract and/or in circumstances where they were in clear default of their obligations for performance.

2 The Claimant Company is seeking the following reliefs:

• (a) Damages in the sum of Five Hundred Thousand Jamaican Dollars (JMD $500,000.00) and One Hundred and Four Million Six Hundred and Fourteen Thousand and Sixty-Two United States of America Dollars and Ten Cents (USD $104,614,062.10)

• (b) In addition, and/or in the alternative damages for breach of contract and/or on a quantum meruit basis

• (c) Interest at the Bank of Jamaica commercial average, or Compounded annually or monthly at the rate of ten percent (10%)

• (d) Costs and Attorneys' costs

• (e) Such further and/or other relief as this Court shall think fit in the circumstances of this case.

3 The Defendant Company denied that they breached the contract and counterclaimed against the Claimant Company damages for breach of Contract. The Defendant Company is claiming that the Claimant Company failed and/or refused to perform and/or meet its obligations under the said contract.

BACKGROUND

4 For the sake of facilitating an ease of understanding, I will set out what I consider to be the background of this matter.

5 The Claimant Company was awarded a contract for the supply and delivery of tablets, syncing carts, software and services under the “Tablets in Schools Project Rollout.” The parties entered into a written contract on or about the 23 ^rd of November, 2018 (hereinafter referred to as the “the Contract”). The total value of the Contract was Sixteen Million Three Hundred and Fifty-Nine Thousand Seven Hundred and Thirty-Five United States Dollars (USD $16,359,735.00), excluding taxes. At the time when the Contract was signed, Mr. Izett McCalla III was the then Acting Chief Executive Officer of the Defendant Company. The Contract required Purchase Orders to be issued by the Defendant Company to the Claimant Company whenever drawdowns of quantities of tablets and other items under the Contract were required with pre-determined schedules.

6 The Contract required that the Claimant Company shall within twenty-eight (28) days of the notification of the award of the Contract provide a performance security for the performance of the Contract in the amount of ten percent (10%) of each Purchase Order. There was also a requirement under the Contract for the Defendant Company to pay to the Claimant Company a mobilization advance of ten percent (10%) of prorated contract sum based on each Purchase Order within ten (10) working days after placing said order.

7 By way of letter dated the 7 ^th day of December, 2018 addressed to the Claimant Company, Mr. McCalla III notified them that their bid was accepted and that they will be required to provide a performance bond for the appropriate amount to cover the specific period detailed in the Contract. Mr. McCalla III advised them of the initial quantities required for the first order and it was not to exceed Six Million One Hundred and Fifty-Eight Thousand Three Hundred and Eighty-Eight United States Dollars and Sixty Cents (USD $6,158,358.60) plus applicable General Consumption Tax (hereafter referred to as “GCT”). The quantities required were as follows:

• (a) 3,000 Tablets for teachers (with Cases, Apps and Classroom Mgt. Software and Services)

• (b) 15,000 Tablets for Students (with Cases, Apps and Classroom Mgt. Software and services)

• (c) 460 Charging and Syncing Carts (with Syncing Software and Services)

8 Shortly after this letter, the Chief Executive Officer of the Defendant Company was changed to Mr. Keith Smith who assumed office on the 3 ^rd day of January, 2019. He met with Ms. Valerie Grant, the Managing Director of the Claimant Company, on the 11 ^th day of January, 2019 where they had discussions regarding the Contract. The Performance Security dated the 13 ^th day of February, 2019 was provided. The Claimant Company communicated to the Defendant Company that they were on track for the first delivery of teacher tablets by mid-March and student tablets by early April 2019.

9 Mr. Smith wrote to Ms. Grant by way of a letter dated the 22 ^nd day of February, 2019 and revised the initial Purchase Order without changing the dollar value so that the teacher tablets and the charging and syncing charts would be removed and replaced with student tablets. The revised order was for 19,305 student tablets with rubber cases, screen protectors, Classroom Management Software, loaded apps and delivery service. Mr. Smith also advised Ms. Grant that the Defendant Company will require five (5) student tablets for pre-testing. Ms. Grant wrote back advising that the order for the goods and services was already placed however, the Claimant Company would be able to accommodate some of the changes. The Claimant Company was able to remove the request for the provision of charging carts. However, the 3,000 teacher tablets had already been manufactured and would therefore be delivered but the remaining tablets could be supplied as student tablets. The Claimant Company also recommended that the Classroom Management Software should not be removed as the commitment has already been finalized and software licences have already been procured. Ms. Grant also gave a projected delivery timeline as on or before the 30 ^th day of April, 2019 for the five (5) tablets for testing.

10 The parties had a Project Meeting on or about the 11 ^th day of March, 2019 and the Defendant Company provided updates on the plans for the first phase of the Project. They discussed timelines and it was agreed that the five (5) sample tablets would be delivered on or before the 30 ^th day of April, 2019. It was also discussed and agreed that the tablets and associated accessories will be in Jamaica no later than the 30 ^th day of May, 2019 and warehouse inspection can be conducted by the Defendant Company at this point. On the Claimant Company's evidence, the Defendant Company proposed a shift in delivery to schools to September 2019. However, the Defendant Company on their evidence stated that at this meeting they indicated to the Claimant Company that the distribution of the tablets to schools was to take place in early September 2019 for the start of the school year.

11 The Defendant Company did not receive the five (5) sample tablets on the 30 ^th day of April, 2019 nor did it receive the tablets and associated accessories on the 30 ^th day of May, 2019. The Claimant Company stated that they faced difficulties with shipping them to Jamaica and the Defendant Company was advised of this via email on the 1 ^st day of May, 2019. The Defendant Company granted the Claimant Company an extension of ten (10) days to supply them with the five (5) sample tablets and reminded them that there was a deadline for implementing the Project. The Claimant Company met the extended deadline for delivery of the five (5) sample tablets on the 10 ^th day of May, 2019. The Defendant Company however stated that these tablets were “basically non-functional.”

12 The Defendant Company was notified by way of a letter dated the 14 ^th day of May, 2019 from the Claimant Company that the five (5) sample tablets represent the initial test tablets and since delivery they had optimised the product and will deliver “gold standard” tablets by the 30 ^th day of May, 2019. The Claimant Company also stated that delivery of the 19,305 tablets was impacted by thirty (30) days as they were awaiting certification from Google and that the tablets and associated accessories will now be in Jamaica by the 30 ^th day of June, 2019 and ready for warehouse inspection at that point. The Claimant Company also stated that this will not affect the critical timelines outlined by the Defendant Company, namely conducting teacher training in July 2019 and delivery to schools by September 2019.

13 The parties had another Project Meeting on or about the 30 ^th day of May, 2019. The Defendant Company by way of letter dated the 3 ^rd day of June, 2019 outlined the agreed delivery dates from the said Project Meeting. It was agreed that five (5) “gold standard” tablets were to be delivered by the 3 ^rd day of June, 2019, sample cases for student tablets were to be delivered by the 1 ^st day of July, 2019 and one thousand (1000) tablets were...