DHL International GmbH Applicant/Claimant v Marcel Hanley D/BA Superior Services 1st Respondent/1st Defendant Superior Services L & A 2nd Respondents/2nd Defendant [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: Redhead J. (Ag.)
• Judgment Date: 28 March 2012
• Judgment citation (vLex): [2012] ECSC J0328-2
• Court: High Court (Saint Kitts and Nevis)
• Date: 28 March 2012
• Docket Number: Civil Claim NO. NEVHCV2010/0165

[2012] ECSC J0328-2

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Civil Claim NO. NEVHCV2010/0165

Between

DHL International GmbH

Applicant/Claimant

and

Marcel Hanley D/BA Superior Services

1st Respondent/1st Defendant

Superior Services L & A

2nd Respondents/2nd Defendant

RULING

1 Redhead J. (Ag.) This is an application by the Applicant pursuant to Rule 42.2(1) filed on 17^th October 2011 for an Order that —

Redhead J. (Ag.)

• (1) The first Respondent/Defendant make and file an account of all credits given, sales conducted, debts outstanding and monies received by the first Respondent/Defendant from the Applicant/Claimant's customers within the Federation of St. Kitts and Nevis for a period January 2008 to November 2010 in his capacity as Agent of the Applicant pursuant to two Agency Agreements filed 4^th January 2006.

• (2) The second Respondent/Defendant make and file an account of all credits given, sales conducted, debts outstanding and monies had and receivedby the Second Respondent/Defendant from the Applicant/Claimant's customers within the Federation of St. Kitts and Nevis for the period of January 2008 to November 2010 in its capacity as interposed party carrying out of the First Respondent/Defendant Agency Agreement with the Applicant/Claimant.

• (3) An Order for all necessary and proper inquiries and directions for the taking of such accounts.

• (4) An order for payment by the Respondents/Defendants to Applicant/Claimant of the amount certified to be due to the Applicant/Claimant on the taking of such an account.

• (5) Any order that the court deems just

• (6) Costs of the Application.

2 The Grounds of the Application are:-

(1) By an amended fixed date claim and Amended Statement of claim filed on 18^th November 2010, the Applicant/Claimant made a claim against the Respondents/Defendants, inter alia, for the taking of an account and for payment to the Applicant/Claimant of the amount found to be due and owing to the Applicant/Claimant upon the taking of such an account.

(2) Both Respondents/Defendants are accounting parties. The First Respondent/Defendant was the local agent of the Applicant/Claimant by Virtue of two Agency Agreements dated 4^th January 2006. The First Respondent/Defendant was also responsible inter alia, to sell the Applicant/Claimant's freight and other related services to the Applicant/Claimant's customers in St. Kitts and Nevis. The First Respondent/Defendant was responsible for the collection of all sums of and/or payments due and owing from the Applicant/Claimant's customers. After collecting the said Sums the First Respondent/Defendant was to pay all said sums collected to the Applicant/Claimant less the Agreed Commission.

(3) From about 9^th January 2008, the Second Respondent/Defendant a company duly incorporated by the First Respondent/Defendant and to which the First Respondent/Defendant was Sole Director has been carrying out the Agency Agreement as an interposed party or alter ego of the First Respondent/Defendant. Further, the Second Respondent/Defendant received payments on behalf of the Applicant/Claimant and has remitted, some payments to the Applicant/Claimant. The Applicant/Claimant claims that both the Respondents/Defendants have failed to pay over the sums collected by them and that the sum of US $401,859.24 is due and owing to it. The Respondents/Defendants dispute that this amount is due and owing to the Applicant/Claimant.

(4) The Respondents/Defendants are under a duty in equity to render written and true accounts to the Applicant/Claimant of any sales made, credits given, debts outstanding sales, and monies received by them on behalf of the Applicant/Claimant in the circumstances where both Respondents/Defendants collected monies from Claimant's customers.

(5) The First Respondent/Defendant contracted with Applicant/Claimant by virtue of Clause 9 of the Agency Agreement to keep records of all sales conducted and to maintain accurate books and accounts available to the Applicant/Claimant for inspection at any reasonable time.

(6) Rule 41.2 (1)1 states that if a Claim is made for an account or requires the taking of such an account or requires the taking of such an account, an Application for directions must be made at the Case Management Conference or first hearing. This application is made pursuant to this issue.

3 This application is...