“The undisputed evidence of this procedure is as follows: i. Measurement—before Woodford trucks were allowed to leave the quarry with pitrun, the trucks were measured at Readymix’s head office. The load capacity for each truck was determined. A list of trucks was identified by their registration numbers and haulage capacity. That information was transmitted to Readymix’s checker. The information was then used to determine and record how much pitrun was leaving the quarry. ii. Prepayment—Readymix was required to prepay for pitrun before it was mined and excavated. An invoice, for the amount of the prepayment, would be sent to Readymix’s personnel at the quarry. Woodford’s trucks were then allowed to enter and remove pitrun and the amounts removed were drawn down from the prepaid totals. iii. Verification—after the truck was loaded with excavated pitrun, the truck driver stops at the entry and exit point where the Readymix and Woodford checkers would be stationed. The Readymix checker would then verify its contents by a physical inspection to ensure that the truck was not overloaded and was carrying the correct amount of pitrun. Once satisfied, a confirmation slip (also referred to as ‘verification slip’, ‘a docket’ or ‘inter plant transfer slips’) in duplicate, is issued. One to Woodford’s driver and Readymix’s checker retained the copy. The Readymix checker would also fill out the drawdown sheet and summary sheet which provides details of haulage, the truck driver, the quarry pitrun is being taken from and the truck’s registration number (which is also recorded on the confirmation slip). The amount of pitrun removed by Woodford’s truck is then subtracted from the original record of the quantity prepaid for by Woodford. This is done until the prepayment is exhausted. Woodford then makes another prepayment and the process is followed.”
“did Woodford remove excavated pitrun from the quarry without first presenting for verification?”; and “did Woodford thief pitrun from the quarry?”
“32. … it was the common understanding between the parties, that if the verification procedure was not complied with and the trucks bypassed the Readymix checker, the load of pitrun being removed by that driver would not be recorded and subsequently deducted from the prepaid amount. Therefore, Readymix would not have received payment for the truckload of unverified, unchecked pitrun. Clearly and without equivocation, that would amount to theft within the meaning of the contract. It was expressly stated that theft would be a ground for termination of the contract. 33.Whether or not Woodford complied with the verification process for the removal of pitrun, is a matter of fact, to be determined by the evidence and any reasonable inference the court can make from the evidence. 34. In circumstances where allegations of theft and fraud are made, the evidential burden shifts to the party responsible for the allegations, in this case Readymix. The standard of proof is on the balance of probabilities and the more outrageous the allegation, the more evidence is required to uphold [it]: Civil Appeal No 276 of 2012 Dr Rohit Dass v Rosemarie Marchand at para 49–50.”
“66. The contract terms requiring ‘Absolutely no material is to be sent from the mining site(s) without the presence of an RML checker’ and that the contract can be terminated for ‘theft’, are naturally related. Leaving the quarry without a checker verifying the load can be a good indication that there is theft. 67. Based on the evidence, the court is satisfied that Readymix did discharge the burden, to the requisite standard, of on a balance of probabilities, proving that Woodford did remove pitrun from the site without presenting for verification and also proving theft of pitrun. Consequently, the court finds that Woodford’s contract with Readymix was not prematurely and wrongfully terminated. The court is satisfied on a balance of probabilities that Readymix had good cause to terminate the contract.”
“There was agreement and co-operation between them which resulted in unaccounted loads of pitrun leaving the quarry”
“34. In circumstances where allegations of theft and fraud are made, the evidential burden shifts to the party responsible for the allegations, in this case Readymix. The standard of proof is on the balance of probabilities and the more outrageous the allegation, the more evidence is required to uphold [it]: Civil Appeal No 276 of 2012 Dr Rohit Dass v Rosemarie Marchand at paras 49–50.”
“156. In our view, there is nothing technical about the term theft. The phenomenon of theft is as old as the hills. It means, in a non-technical way, taking the property of another, without their consent. 157. In the context of the written agreement before us, where there was a system of pre-payment and drawing down on Woodford’s account, the act of removing pitrun without adjusting the account could properly be regarded as theft. 158. If indeed theft was proved on a balance of probabilities, with the requisite uplift in evidence, having regard to the seriousness of the allegation, Readymix would have had good ground for termination. 159. Ultimately, this was a matter of an assessment of evidence. After carefully examining the evidence, the judge preferred the evidence of Mrs Gooljar-Singh, who saw the truck bypass the checker without undergoing the process which would account for the removal of pitrun. 160. In the process of preferring the evidence of Mrs Gooljar-Singh, the judge relied on a contemporaneous document, being the warning letter to Mr Allan Liverpool and contemporaneous e-mails. It is our view that the judge’s assessment of the evidence cannot be faulted.”
“It is not enough just to assert without giving specific reasons that the case is exceptional, or to describe the alleged miscarriage of justice as gross. Nor will it be enough to say, as did Mr Chaisty [counsel for the defendants] in the present case, that by raising as a separate ground of appeal a claim that there were serious departures from fair procedure, that will simply lie outside the reach of the practice, if the object of raising that ground is to sustain an attack on concurrent findings of fact. Of course, such a ground may go towards establishing a sufficiently exceptional basis for disapplying the practice, but not for treating it as simply inapplicable. Finally, it is just as much a challenge to concurrent findings of fact to ask for them to be re-tried as it is to ask for them to be reversed.”
“wrong footed by the respondent’s constant twisting and turning in respect of the grounds for termination. By the time of the trial (in fact, just one day before it) the respondent dropped most of its pleaded case (itself different from its original notice of termination) and proceeded solely on the ground of non-verification (see further, below). This morphed into a new point ‘theft’. The appellant perhaps should have sought a ruling from the judge that the issue of ‘theft’ was not part of the case. However, because of everything else that was going on (including last minute applications for disclosure arising from the respondent’s change in case) the appellant was effectively ‘bounced into’ dealing with the point.”
“Firstly, as my learned friend identified the sole issue on liability is a finding of fact as to whether we complied with procedures and whether we were, to use local parlance, t’iefin’ [stealing] the pitrun. …. That negatives the allegation that we breached procedure and took pitrun out of the quarry without following proper procedure or that we were stealing.”