Cayman Structural Group Ltd v David Moffitt - Judgment

¶ ```html IN THE GRAND COURT OF THE CAYMAN ISLANDS Cause No. G 43 of 2015 BETWEEN CAYMAN STRUCTURAL GROUP LTD Plaintiff AND DAVID MOFFITT Defendant IN OPEN COURT Appearances： Mr. J Kennedy of KSG Attorneys on behalf of the Plaintiff Mr. David Moffitt， Defendant in person Before： The Hon. Justice Ingrid Mangatal Heard： 7 December 2018 Draft Judgment Circulated： 9 January 2019 Judgment Delivered： 16 January 2019 HEADNOTE Breach of Contract - Trespass to Goods - Whether Contracting party Director in person or Company, whether Director liable in any event - Sections 52 and 53 of the Companies Law (2016 Revision) JUDGMENT Introduction The Plainan Structurated Caymanal Gro Cayman Islands， it brings a claim under a written contract for monies due and owing for construction work and materials supplied by the Plaintiff for the Defendant David Moffitt ```
Judgment in 190116 Cayman Structural Group Ltd v David Moffitt The Plaintiff further claims for trespass to goods subsequent to the termination of the contract.

¶ [2] Mr. Moffitt’s case was originally, (as filed in person), that the agreement was cancelled as a result of a split in the legal ownership of the Plaintiff. That he then contracted with the Caymanian shareholder of the Plaintiff to complete the work and that the issue was one of internal management of the Plaintiff.

¶ [3] Mr. Moffitt then changed his case, (as presented by his then lawyers), to plead that: a. He entered the contract as a result of a mistake and that he believed that the scope of the work agreed by the contract was for three floors of the building and not for the second floor alone. b. In the alternative, there was a mutual misunderstanding (as to the scope of the work) rendering the contract void ab initio. c. That the Plaintiff had abandoned the contract and cancelled the agreement.

¶ [4] Mr. Moffitt had also counterclaimed for a declaration that the agreement is void ab initio or that the agreement be rectified to reflect the alleged mistake.

¶ [5] The Attorneys-at-Law on record for Mr. Moffitt obtained an order removing their names from the record as appearing for him, on 30 November 2017. The trial of the matter on the pleaded issues as set out above was listed for 25 April 2018. At the trial Mr. Moffitt attended in person representing himself and informed the Court that he had another new defence. This Court permitted an adjournment to allow him to file his new defence, with costs awarded in favour of the Plaintiff against him. The new defence was: It alleges that the proper defendant is not Mr. Moffitt personally and in any event avers that Mr. Moffitt is personally liable if Turtle Cove Limited was the The document is stamped with the seal of the Grand Court of the Cayman Islands Government, dated 18/17. --- **190116 Cayman Structural Group Ltd v David Moffitt - Judgment** 2 of 23
Cayman Structural Group Ltd v David Moffitt - Judgment #### 3 of 23

¶ [8] Although on 25 April 2018, Mr. Moffitt’s application for an adjournment was granted in order for him to seek legal representation, as well as to allow for the new defence alleged, on the new trial date, 7 December 2018, Mr Moffitt appeared representing himself.

¶ [9] It is to be noted that at the trial, there were, yet again, major changes to Mr. Moffitt’s case. Firstly, he abandoned the case based upon mistake. Secondly, he claims that he paid the contract sum due, to Mr. Sofield’s former Cayman Partner, Mr Forbes, indeed, that he paid Mr. Forbes over $200,000.

¶ [10] At the trial, by consent, the Court struck out the witness statement (“W.S”) of Brent McComb dated 29 February 2016, which had been filed on behalf of Mr. Moffitt. The reason for striking it out was because Mr. McComb was unable to attend on the trial date. #### The Plaintiff’s Evidence

¶ [11] Robert Thomas Sofield III, nickname “Tommy” (“Mr. Sofield”), is the sole witness for the Plaintiff.

¶ [12] Mr. Sofield describes himself in his W.S., dated 29 February 2016, as Construction Project Manager. He gives evidence that he is an American National, who has lived and worked in the Cayman Islands since 2007. He indicates that he has been involved in the construction industry for in excess of nine years, and his family is involved in the construction industry.

¶ [13] The witness indicates that in 2006, before he moved to the Cayman Islands, he formed a Cayman Islands company to begin trading in Cayman and the company was called D & S Holdings. He worked under the company name D & S Holdings until 2009. In 2009, he changed the company name to Cayman Structural Group Limited. Mr. Forbes was a Caymanian and was also involved in the construction business.

¶ [14] It was Mr. Sofield’s evidence that, in addition to being a shareholder of the Plaintiff, he was also an employee, and held the role of Project Manager from inception to the present. This role involved him overseeing all aspects of the business, including quoting for business, agreeing terms of business with clients, oversight of the work on the ground, and occasionally helping with the actual work there. In addition, Mr. Sofield says that he dealt with internal administrative business of the company, for example, hiring and payroll. He indicates that Mr. Forbes’ role in the company was more hands on, in terms of the construction work itself.

¶ [15] Mr. Sofield gave details of his relationship and previous interaction with Mr. Moffitt prior to the business dealings in issue in this case. He had known Mr. Moffitt from 2007 and had had business dealings with him in the past. In 2009 Mr. Sofield’s family was involved in a project to build condominiums in Frank Sound, Grand Cayman. He claims that Mr. Moffitt was to provide the infrastructure and architectural plans, but never did so, and was ultimately bought out of the deal. The witness says that in 2012, he brought Mr. Moffitt in as a contract negotiator on a demolition job which the Plaintiff had contracted for at the Hyatt Hotel property.

¶ [16] The Plaintiff’s evidence in essence is that it carried out work up to a value of CI$87,404.90 out of a total contract sum of CI$109,561.12 when Mr. Moffitt indicated that he needed two weeks to pay for the work completed up to that date. This was the entire contract sum less the provision for concrete pouring of CI$22,560.00. The Plaintiff ceased to work pending payment and when Mr. Sofield returned at the end of the two weeks, Mr. Moffitt had taken upon himself the remainder of the work and repudiated the contract.

¶ [17] The Plaintiff also claims that at the end of the contract his equipment (or material rented by him) remained on the site and could not be returned to him as Mr. Moffitt had used the equipment to carry out his own construction work. This was in order to commit an intentional trespass to goods.

¶ [18] Not only did Mr. Moffitt not pay the Plaintiff, but he also asked the Plaintiff for a loan of $200,000 in July 2014. 190116 Cayman Structural Group Ltd v David Moffitt - Judgment 4 of 23
The Plaintiff claims that as a result of the termination of the contracts: a. It is entitled to damages for breach of contract, b. It is entitled to damages for trespass to goods. The Plaintiff also claims interest in accordance with the Judicature Law (2013 Revision) and the Judgment Debt (Rates of Interest) Rules as amended, from time to time. In amplification of his W.S, Mr. Sofield was asked what his response was to the amendment to the Defence, to the effect that the Plaintiff was aware that the other contracting party was Turtle Cove Limited, and not Mr. Moffitt. Mr. Sofield indicated that the first he was aware that this was what Mr. Moffitt would be saying was when the matter was in Court in April 2018. The witness indicated that he had never heard of Turtle Cove Limited prior thereto. Mr. Sofield indicated that in his previous dealings regarding Frank Sound and the family development, it was always Mr. Moffitt that he dealt with in his personal capacity. Mr. Sofield was cross-examined by Mr. Moffitt. He was asked whether there was a corporation set up called "Driftwood Development". The witness stated that he did not know about that; he always dealt with Mr. Moffitt, and it was Mr. Moffitt in person that he brought into the project. He indicated that the development was called "Driftwood", but it was Mr. Moffitt who was to provide everything, for example, the plans, and architectural input. Mr. Moffitt suggested to Mr. Sofield that the Agreement in issue was entered into by the Plaintiff and Turtle Cove Limited and was never intended to be with Mr. Moffitt personally, as he acted and signed documents as President of Turtle Cove Limited. In response, Mr. Sofield remarked that every he has owned has been with Mr. Moffitt out. The Agreement mentioned "Turtle Cove", that is the name of the area, in the same way in which if one walks into West Bay, it is West Bay. The Agreement does not mention Turtle Cove Limited. 190116 Cayman Structural Group Ltd v David Moffitt - Judgment 5 of 23

¶ [25] Mr. Sofield agreed with Mr. Moffitt that on the signature page, Mr. Moffitt put in the name "Turtle Cove" and signed as David Moffitt and also that he Mr. Sofield signed and that the name of the Contractor he inserted was Cayman Structural Group.

¶ [26] Mr. Sofield was also cross-examined about the words "TURTLE COVE HAS OPTION TO CANCEL AGREEMENT AFTER SECOND FLOOR", which were inserted into the Agreement by Mr. Moffitt. He agreed that those words were added by Mr. Moffitt when he signed the Agreement however, he Mr. Sofield never initialed that page of the Agreement. The only comment that he wanted to make sure was added were the words "Payment in Full Before Pour concrete slab", which words he did add and were initialed by both men.

¶ [27] In response to the suggestion that Turtle Cove Limited should be the Defendant and not David Moffitt, Mr. Sofield said that Mr. Moffitt is trying to get the Plaintiff to go after a company that no longer exists, that Mr. Moffitt has closed down and which has no assets. Mr. Sofield said that the men employed by the Plaintiff have been paid by it, but that the Plaintiff has received no payment, "not even a dollar".

¶ [28] As regards the issue of the effect of the split in the partners of the Plaintiff and the scope of work, Mr. Sofield indicated as follows in paragraphs 47-52 of his W.S.:

¶ [47] We were almost complete the work when the split occurred and the split did not stop us working. The split resulted in Mr. Forbes walking away from the business as a shareholder but we continued to trade and I continued to work and manage the company. He transferred his share in the business to me on 9 January 2014 ...

¶ [48] If Mr. Forbes accepted any payment on behalf of the plaintiff he was being done so no of the plaintiff as director or a member of the company not having any.

¶ [49] Whilst the Defendant stated that Mr. Forbes completed the contracted work I don't believe that to be the case, Mr. Forbes continued to work for the plaintiff company as a salaried employee 190116 Cayman Structural Group Ltd v David Moffitt - Judgment 6 of 23
```html until August 2014 so he could not have worked at Turtle Cove until after August 2014. 50. At no time did I ever discuss the change of the shareholders of the company with the defendant and he had no reason to be involved in the business of the company. The company was always ready and able to complete the pouring of the concrete and all that was lacking was payment from the defendant. 51. In late July 2015 the defendant obtained an Attorney to represent him and in October 2015 he filed an amended defence and I understand he claims that we had agreed that the Construction Agreement as signed was for installation of 3 slabs， i.e. the 2nd and 3rd floor and the roof all for the price of CI$109，561.12. 52. The defendant at no time between filing his amended defence and the carrying out of the work ever stated to me that this was his understanding. I must have spoken with him on 30 occasions about the overdue money between January 2013 [sic] and July 2015 and not once did he say this to me. The only conversation he ever had with me was to say that he didn't have the money to pay me and he would pay it when he could alongside actually seeking a loan from me." 29. In relation to the scaffolding issue， Mr. Sofield said that the cost of hiring the scaffolding was CI$5，175 from Massive Equipment and CI$12，453.80 from Pro Builders Ltd. The Plaintiff was able to produce the Pro Builders Invoices， but not those from Massive at this time. Both. Mr. Sofie at at no tir use Mr. Mo corporate bu Moffitt haent to keep use it ancabl h were paidld indicatesuary 2014 the site， ve his cons the sc back becaffitt had in th did Mr. ding or tl which he Mr. Sofield had no access. ilding con ```
```markdown ## Mr. Moffitt's Evidence ### Paragraph 31 In his W.S., signed 26 February 2016, Mr. Moffitt says that he has worked with the Plaintiff Company Cayman Structural Group Limited and its sister company Rhino Rebar, on several occasions prior to the present dispute and in particular, at the old Hyatt hotel demolition. While on the Hyatt project he worked mainly with Mr. Forbes on a daily basis. Up to the date of the W.S., he says he has known Mr. Forbes professionally for 4 years and Mr. Sofield professionally for 8 years. ### Paragraph 32 Mr. Moffitt indicates that by the start of December 2013, he had already begun the construction of Building B at the project and the ground floor was in place as well as first floor walls. In order to complete Building B at the Project, three further slabs for the second floor, the third floor and the roof had to be poured and it was on this basis that he commenced negotiations with the Plaintiff, Mr. Moffitt originally said. ### Paragraph 33 Mr. Moffitt said that in accordance with his understanding that the Agreement referred to three slabs, he made a written addition to the Agreement at clause 2, stating that “Turtle Cove has option to cancel agreement after second floor”, the second floor being the first of the elevated slabs to be poured for Building B at the Project. He says that this note was made under the assumption that the $109,561.12 was for all three slabs and he claims he asked Mr. Sofield to change the wording to reflect this, but he told him to just write in the note to save him having to make more changes. ### Paragraph 34 At trial, Mr. Moffitt's evidence referred to paragraph 33 above. He acknowledged that the argument and evidence about 3 floors, (which originally constituted significant portions of his W.S.), was withdrawn. ```
```html 35. Mr. Moffitt places emphasis on the fact that Mr. Forbes and Mr. Sofield had a dispute. At paragraph 29 of his W.S., Mr. Moffitt states as follows: 29. I do not think that the timing of the Plaintiffs internal dispute and the inability of the Plaintiff Company to commence the work on time or to maintain an appropriate work force at the Project site was a coincidence. I believe that the former had a direct impact on the latter and that this is the reason why the Plaintiff Company was unable to progress the works on time and subsequently abandoned the Project site." 36. Mr. Moffitt indicated that his concerns were underscored by the terms of a Settlement and Release Agreement (“the CSG Settlement Agreement”) for the Plaintiff Company which was shown to him at the end of January 2014, which he says was the same time as the Plaintiff Company withdrew its final two workers from the Project site. 37. He noted that the CSG Settlement Agreement made no reference to the Turtle Cove Project, whereas other jobs that the Plaintiff had on-going were specifically dealt with. 38. The witness indicates that after the Plaintiff abandoned the Project site, he took what he considered to be prudent steps to complete Building B at the Project. In the W.S. he claims that he paid Mr. Forbes for the scaffolding which he said was his, and not that of the Plaintiff, and then Mr. Moffitt engaged his own work crew to complete the formwork for the second floor slab and to provide labour for the concrete work and purchased the associated materials himself, including plywood for the formwork from Cox Lumber. 39. Mr. Moffitt claims that he paid Rhino Rebar for the rebar that had already been delivered to the Project site and purchased additional rebar from Cox Lumber for the second floor slab. He th Collier Co 40. Mr. Moff In the Cor his Witne aphs 501， aphs 501， 1 and 54ft 1 and 54ft en engaged en engaged instruction instruction states as follows: states as follows: ```
```html 50. I believe that Mr. Sofield was well aware of this confusion, but nevertheless went ahead and signed the Agreement in an attempt to secure a ridiculously high price for the reduced scope of work, which he had included in the Agreement and which I was not aware of. 51. If Mr. Sofield genuinely believed that we both intended to contract for the installation of just one slab, then I can only say that we were very much at cross-purposes.... 54. After the Plaintiff Company abandoned the Project site, I did what was necessary to complete the work. In so doing, I believe I paid all monies owed." 41. In cross-examination, Mr. Moffitt conceded that CI$10,957 was to be paid upon signing of the Agreement, but that he did not pay it. He agrees that Mr. Sofield kept asking him to pay. As regards his email requesting that Mr. Sofield loan him $200,000, he agrees that he sent it, and that they had a number of pieces of correspondence between them over the years. The email was sent from email address demoffitt@yahoo.com；he couldn't recall whether this was a company request or personal, but that this was the email address he used for all his business. 42. Mr. Moffitt also admitted that although for years he has maintained that the CI$109,561.12 was to cover three floors of work, he has now abandoned that claim. When Mr. Kennedy suggested to him that this was a demonstration of sleight of hand, Mr. Moffitt claimed that it was as a result instead, of a mix-up between him and his lawyers. 43. cross-exam Moffit e Mr. Forb Further in uation， Mi ad made to uid that he pa when he signed the Agreement, and Mr. Forbes came as separate partner and finished the work and he paid him over $200,000 in all. At the suggestion that this was untrue, and ```
```html that he had no receipt to show this， Mr. Moffitt conceded that he had no receipt to evidence this alleged payment. 44. He indicated in response to Mr. Kennedy's question that he does not know if Mr. Forbes is still on the Island， but he assumed that he is. 45. Mr. Moffitt accepted that until the Re-Amended Defence was filed by him there was nothing whatsoever in the Agreement， any pleading or other document that mentioned “Turtle Cove Limited”. The Issues The issues involved in this case are as follows： The contracting party issues： (a) Who is the party contracting with the Plaintiff? (b) If that contracting party is Turtle Cove Limited， is Mr. Moffitt still liable as a result of the failure of Total Cove Limited to comply with section 52 of the Companies Law (2016 Revision) (“the Companies Law”) by failing to have its name in legible characters on an order for goods purporting to be signed on behalf of the company? The damages issues (a) Is the Plaintiff entitled to payment for work done under the contract? (b) Is the Plaintiff entitled to damages for trespass to property? The contra tv issues As Mr. Kennedy conceded， the terms of the Construction Agreement signed in December 2013 are “a bit messy”. However， he maintains that nowhere in the Agreement or any other documents is there reference to Turtle Cove Limited， by either party. He asserts that ```
```markdown there is no evidence to show that Mr. Sofield had knowledge of Turtle Cove Limited. Indeed, Mr. Sofield’s evidence is that the course of dealings between himself and Mr. Moffitt that took place in the past, at no time involved Turtle Cove Limited.

¶ [48] Mr. Moffitt maintains that the Agreement was with Turtle Cove Limited and that that company should be the Defendant named so that it could have its own lawyers. He argues that the reason why people have corporations is so that liabilities and work can be done separately and that if the Court were to rule in favour of the Plaintiff against him personally, this Court would be ruling that every company in the Cayman Islands would be subject to individuals being held liable for the Company’s actions.

¶ [49] Mr. Kennedy’s counter was direct; he argued that this Claim does not invalidly lift the corporate veil. What the case does do, he submits, is to hold people to account where they sign personally, and without being or making it clear that they wish to contract through a limited company. Mr. Kennedy relied upon a number of authorities.

¶ [50] It was further submitted, that even if the Court found as a fact that Turtle Cove Limited was the contracting party, because the Agreement does not state “Turtle Cove Limited” as the name of company or as the contracting party, Mr. Moffitt is in any event responsible as a director who signed the Agreement.

¶ [51] Reliance was placed upon sections 52 and 53 of the Companies Law, and the decisions in authorities, including Scottish and Newcastle Breweries Limited v Blair and Others 1967 S.L.T. 72, and Blum v OCP Reparation SA [1988] BCLC 170. The Agreement The clauses of the Agreement in this case are as follows: This Agreement is made between Davis Moffitt (‘Client’), with a principal place of business at Turtle Cove, and Cayman Structural ```
```markdown Group ___("Contractor"), with a principal place of business at 199 Seymour drive

¶ [1] **Services to be performed** Contractor shall furnish all labor and materials to construct and complete the second floor slab shown on the contract documents contained or specified in Exhibit A, which is attached to and made part of this Agreement. **Scope of work**

¶ [1] Supply and install required false work to support wet concrete.

¶ [2] Supply and install required reinforcement bars

¶ [3] Supply and place required concrete for slabs as shown on affixed construction drawings

¶ [2] **Payment (TURTLE COVE HAS OPTION TO CANCEL AGREEMENT AFTER SECOND FLOOR)- (Written and added in Mr. Moffitt’s handwriting but not initialed by any party)** Owner shall pay Contractor for all labor and materials the sum of $CI $109,561.12 for carrying out and completing the contract works as detailed in appendix A and in accordance with the Contract Terms.

¶ [3] **Terms of Payment** Contractor shall be paid $10,957 upon signing this Agreement and the remaining amount shall be paid before the rebar and concrete to upper floor is installed.

¶ [4] **Time of Completion** The work to be performed under this Agreement shall commence on Dec 22, 2013 and shall be substantially completed on or before March 1, 2014. The completion of the work shall be considered upon approval by the Owner; however, the Owner’s approval shall not be unreasonably withheld. ```
11. Applicable Law This Agreement will be governed by the laws of the Cayman Islands. ## Signatures ### Contractor: Cayman Structural Group By: __________ Signature Typed or Printed Name: Turtle Cove Title: PRES Date: 17/12/13 ### Owner: David Morritt By: __________ Signature Typed or Printed Name: Tommy Sofield Title: owner Date: Dec 19, 2013 (Payment in Full Before Pour Concrete Slab) (Initialed by both Tommy Sofield and David Moffitt) ## The Law

¶ [53] Sections 52 and 53 fall within Part IV of the Companies Law, "Management and Administration of Companies and Associations", and provide as follows: Every chester limited company, whose name is not painted on the outside of its office or by its name on the affix, and is not affixed on business premises of every kind, shall be placed in a conspicuous position, in letters easily legible, and shall have its name in legible characters on any company is carried on, or in any corridor, passage or hallway adjacent or proximate thereto. 190116 Cayman Structural Group Ltd v David Moffitt - Judgment 14 of 23
```html seal it uses， and shall have its name set out in legible characters in all notices， advertisements and other official publications of such company， and in all bills of exchange， promissory notes， endorsements， cheques and orders for money or goods purporting to be signed by or on behalf of such company， and in all bills of parcels， invoices， receipts and letters of credit of the company and its name may be followed with or preceded by， at the discretion of the company， its dual foreign name or its translated name， if any， or both. Penalties on non-publication of name 53.Any company which does not paint or affix， and keep painted or affixed， its name in manner directed by this Law is liable to a penalty of ten dollars for not so painting or affixing its name， and for every day during which such name is not so painted or affixed， and every director and manager of the company who knowingly and wilfully authorizes or permits such default shall be liable to the like penalty； and any director， manager or officer of such company， or any person on its behalf， who uses or authorizes the use of any seal purporting to be a seal of the company， whereon its name is not so engraved as aforesaid， or issues or authorizes the issue of any notice， advertisement or other official publication of such company， or signs or authorizes to be signed on behalf of such company any bills of exchange， promissory note， endorsement， cheque or order for money or goods， or issues or authorizes to be issued any bill of parcels， invoice， receipt， or letter of credit of the company， wherein its name is not set out in the manner aforesaid， is liable to a penalty of one hundred dollars， and further shall be personally liable to the holder of any such bill of exchange， promissory note， cheque， or order for money or goods for the amount thereof， unless the same is duly paid by the company." (emphasis mine) ```
```html 18/17 “The pursuers are a company incorporated under the Companies Acts. The first and second-named defenders were, at the date of acceptance of the bill of exchange mentioned on record, directors of Anderson & Blair (Property Development) Limited (hereinafter referred to for convenience as “the Company”), having its registered office at 114 Cadzow Street, Hamilton, and a place of business at Windmill Hotel, Arbroath. The third-named defenders comprise the partnership of Messrs Hay, Cassels & Frame, solicitors, who carry on business at 114 Cadzow Street, Hamilton, and were at the said date secretaries of the Company. The Company is now in liquidation and the fourth-named defender is official liquidator thereof. ... On or about 19th October 1965, the pursuers drew a bill of exchange, No. 8 of process. The said bill was admittedly signed by the first and second-named defenders, as directors, and by the third-named defenders, as secretaries, and, having regard to the form of the written pleadings and to the nature of the argument presented by counsel for the competing defenders, it must, in my opinion, be taken as admitted that the said bill, which was for payment on demand to the order of the drawers of the sum of £7,500 with interest thereon at the rate of 6 per cent per annum from the date thereof till paid, was drawn upon the Company, that the Company was therein described as “Messrs. Anderson & Blair, Windmill Hotel, Arbroath”, and that the said bill was signed on behalf of the Company as acceptors by the first and second-named defenders, as directors of the Company, and by the third-named defenders, as secretaries thereof. The pursuers contend that, since the name of the Company is not mentioned in the said bill, the defenders, as signatories on behalf of the Company, are personally liable jointly and severally or severally for payment of the same in terms of s.108(4) of the Companies Act 1948, and that the pursuers are accordingly entitled to decree de plano against the third named-defenders in terms of the conclusion of the summons. The competing defenders maintain that on a proper interpretation of the statutory provisions they are not so liable...” Having set out the relevant portions of section 108, and in the course of discussion, Lord Hunter coillows on th pages of the judgment. continued as the third to fit: “...Ton, which is ms, wasplain no compli ed with in the present case. Nowhere in the said bill, No. 8 of process, did the Company have its name so mentioned, and indeed nowhere in the bill was the name of the Company so mentioned. In that event in my opinion the provisions of subs. (4)(b) of the said section, 190116 Cayman Structural Group Ltd v David Moffitt - Judgment 16 of 23 ```
```html which has been quoted above and also on record， and which are mandatory， were brought into effect... It was submitted by counsel for the compearing defenders that it was necessary to the operation of the statutory provisions in the present case that the pursuers should have been deceived or misled by the failure to mention the correct name of the Company in the said bill， and that， in the absence of any averment to that effect， the pursuers' case was irrelevant. I can find nothing in the language of the statutory provisions which lends any support to such an argument， and the only shadow of support for it to be found in the authorities cited to me is one sentence in the judgment of Crompton， J.， in Penrose v Matryr (supra) at p. 503. I am far from clear that the sentence to which I have referred necessarily supports counsel's submission， and in any event no trace of such a view is to be found in either of the judgments in that case. The ratio of the decision in Penrose v Martyr appears to me to be that the defendant signed a bill on behalf of the Company without their name being mentioned on it. (See per L. Campbell， C.J.， at p. 503). I notice that the author of Gower on the Principles of Modern Company Law， 2nd edition， at p. 187， expresses the following opinion：-“It seems clear that it makes no difference that the third party concerned has not been misled by the misdescription.” With that opinion， having regard to the terms of the statutory provisions and to the authorities cited to me， I agree. In Atkins & Co. v. Wardle， the plaintiff was himself a shareholder of the company， and there was nothing to show that he was not well aware of its correct name when he drew the bill. I refer on this matter to the passage from the judgment of Denman， J.， at the top of the right hand column at p. 378 and at the bottom of the right hand column at p. 379， as well as to the later passages at pp. 380-381. It is no doubt true that in the present case the pursuers did not name the Company correctly in the address， but it was for those who undertook the responsibility of accepting the bill to see that the name of the Company was mentioned in it in legible characters as required by the statute. To do so presented no difficulty， but， unfortunately for the defenders， the acceptance in the present case， to borrow the language of Mathew， J.， in Na Press v. Tye the misdesc fic ult to aoe ubmission is of part an it all the maed that in siption in th drche accepton ion interies which make me com ssau Steamler， adoptee address. I diff cent the rest affected， es behalf ope ar the y be observuch a sitd tit swers and uars， may i wi made of th other th gore defenders to which I have referred. Thus， although one may have some sympathy with the compearing defenders in their misfortune， the terms and the clear meaning of the ```
```html relative statutory provisions have， in my opinion， been too much for them. As Denman， J.， pointed out in the passage from his judgment in Atkins &Co. v. Wardle， at pp.380 to 381 to which I have already referred：-“Theintention of the Act was to insure extreme strictness in all the transactionson behalf of limited companies as regards the use of the registered nameof the company， not only in enforcing the use of the word‘limited’， but inall other respects. ... Whatever， however， may be the justification for thestatutory provisions， their terms are in my opinion plain and unambiguousand clearly cover the circumstances of the present case， to the effect ofmaking the compearing defenders personally liable to the pursuers asholders of the said bill” 57.In the Blum case， a decision of the Civil Division of the English Court of Appeal， theHeadnote accurately relates the following：“B was the director of Bomore Medical Supplies Ltd (the company). Thecompany ordered pharmaceutical supplies from a French company(OCP). The company paid OCP by cheques which were personalized inthe name of Bomore Medical Supplies and which were signed on behalf ofthe company by B. The company went into liquidation and OCP broughtan action against B alleging that B was liable under s 108 of theCompanies Act 1948 in that the name of the company did not appearproperly on the cheque as the word Ltd had been omitted. B appealedagainst the decision of the judge dismissing an appeal against the order ofthe master giving OCP leave to enter judgment against B.Held- Appeal dismissed. There was no basis for rectifying the cheques soas to insert the word limited on the grounds that they had been drawn onthe basis of a common mistake shared by the parties that the cheques wereto be cheques of a limited company. B had no standing to obtainrectification of the cheques as he was never a party to them as theyinvolved the company and OCP. As there was no dispute between theparties to the arrangement that the cheques were to be paid out of anacmited comp no issue l the ed for recet ween theno is was necty n additioth the true of 18 Act a count of a lany there parties and pas to escan live effe in 8 of the nd tion refo no nification wal was not a ground on which the court would order rectification of a writteninstrument. As there was no other basis making it inequitable to impose ```
```html liability on B under s. 108， or for granting a stay of execution， the appeal would be dismissed and the order of the master enforced. 58.At page 175 of the judgment， May L.J. discusses the relevant statutory provisions and a further argument of counsel for the appellant (which was rejected) and who submitted that: ....it is clear that the purpose of s.108 was intended to protect persons dealing with limited companies from the consequences of deceit of officers of those limited companies. There was no deceit here. Everybody was aware of what the situation was and that consequently rectification should be allowed， in the manner I have indicated， to relieve the appellant against the consequences of the statutory provision. ... In my view， to do so would clearly drive a coach and horses through the statutory provision. It is a conclusion which I do not think is justified in any way by the wording of the section which has been applied in many cases over the last hundred years. The section in the same or similar terms appeared in earlier relevant legislation. ... An example of the application of the statutory provisions is contained in another authority to which we were referred， Atkins & Co. v Wardle (1889) 5 TLR 734. It is unnecessary to refer to the facts or quote from the judgment. In it Lindley LJ said that the relevant sections (the predecessors of the modern ones) ‘were two of the most important sections in the Act， and the Court must take care not to relax them.’ ... In all those circumstances and on those authorities I for my part see no reason to think that in the circumstances of the present case one should not follow the same approach. One may have sympathy for the appellant in the predicament in which he finds himself， but the statutory provision is clear. The facts in this case are not in dispute and as a matter of law， for the reasons I have indicated， I do not think that the claim to rectification can afford him any defence. I respectfully agree with the submission which was made on behalf of the respondent that the true fallacy which lies ... bebellant's cod upon rect ... hav premise that ification is i ... hind the app tentions bthat they are ... sed on the it the res see ... provision to the signature of the appiant in person ... (My emphasis) ... Resolution of the Issues 190116 Cayman Structural Group Ltd v David Moffitt - Judgment ... ```
The contracting party issues: (a) Who is the party contracting with the Plaintiff?

¶ [59] In my judgment, the correct contracting party that entered into the Agreement with the Plaintiff was David Moffitt. It is true that the wording of the Agreement could have been clearer, but in my view it was David Moffitt who was party to the contract. Emails and other documents in addition to the first page of the Contract suggest that this was the case. The fact that Turtle Cove is mentioned is completely distinguishable from having the name of the limited liability company Turtle Cove Limited inserted or mentioned in the Agreement. Nowhere is “Turtle Cove Limited” stated or mentioned. In my judgment, describing himself as “Pres” after the name “Turtle Cove” is not enough to take Mr. Moffitt’s case in the direction in which he has attempted to channel it at this eleventh hour. (b) If that contracting party is Turtle Cove Limited is Mr. Moffitt still liable as a result of the failure of Total Cove Limited to comply with section 52 of the Companies Law by failing to have its name in legible characters on an order for goods purporting to be signed on behalf of the company?

¶ [60] However, even if I am wrong and the contracting party is Turtle Cove Limited, on the authority of sections 52 and 53 of the Companies Law, and the decision in Scottish and Newcastle the intent was to ensure the use of the company name in all its transactions of limited companies, not only as regards the use thereof in all its transactions, but also in enforcing the company’s name on behalf of the company. Once the company has not paid the sums outstanding to the Plaintiff, (which in this case it plainly has not), then Mr. Moffitt as signing director is personally liable. As reasoned in
The Blum decision, the Plaintiff's rights arise from the application of the statutory provision to the signature of Mr. Moffitt in person. ### The damages issues #### (a) Is P entitled to payment for work done under the contract?

¶ [61] Mr. Kennedy argues on behalf of the Plaintiff, that it is remarkable that many years after this law suit was filed in 2015, and at previous times when Mr. Moffitt had attorneys-at-law appearing for him, it is only on the day of trial, that Mr. Moffitt claims for the first time that he has paid the money claimed, indeed, he says that he has paid over $200,000.00 to the Cayman Partner, Mr. Upton Forbes.

¶ [62] However, that is not strictly so in the sense that the Defence which was filed by Mr. Moffitt in person on 8 April 2015, stated that Mr. Moffitt intended to defend the Claim based on the following statements:

¶ [1] There was an agreement with CSG that was cancelled.

¶ [2] During the construction period, CSG had a split with partners.

¶ [3] The Cayman partner that owned 60% of CSG was retained to complete work and was paid.

¶ [4] This is a matter between CSG partners and not David Moffitt." (my emphasis)

¶ [63] However, in the Amended Defence and Counterclaim filed 23 October 2015 by Attorneys-at-law retained by Mr. Moffitt at the time, and indeed, in the Re-Amended Defence and Counterclaim filed by Mr. Moffitt in person on 9 May 2018, it is stated that the origin should be cility, struck its entire worth that through in Defence, onsidered a red and rep. It is note in neither nulace in importantly, Mr. Moffitt has not produced, or made any attempt to produce to the Court, a receipt evidencing such payment. 190116 Cayman Structural Group Ltd v David Moffitt - Judgment 21 of 23
```html 64. In my judgment, it is plain that the Plaintiff has been owed the sum claimed on thecontract for a long time. I found Mr. Sofield to be a very straight-forward and convincingwitness. Mr. Moffitt on the other hand, did not enhance his credibility at all, what with allthe shifts in his case, from saying the contract was for 3 floors and that the Plaintiff hadabandoned the work, to disavowing that position, then claiming he had paid Mr. Forbes,without a shred of evidence in support of that stance. All of this Mr. Moffitt claims, whileadmitting he was at a later point seeking a loan from the Plaintiff to complete otheraspects of the Project. That would be a strange thing to do if one had contracted with aparty that had failed to do the work which it had been agreed be performed. Further,ultimately Mr. Moffitt was relying upon the Defence as to the correct contracting partybeing Turtle Cove Limited and not himself, which as I have said, has failed. (b) Is the Plaintiff entitled to damages for trespass to property? 65. It is plain that as the hirer of the scaffolding the Plaintiff had the right to control andpossession of this equipment. I accept that Mr. Moffitt deliberately used the scaffoldingfor his own purposes and deprived the Plaintiff of its right to it, thereby causing it lossand damage. 66. I am satisfied of the amounts claimed regarding the Invoices from Pro Builders Limitedin the sum of $12,453.80. However, regarding the amounts paid to Massive, the figuresclaimed in the Statement of Claim (at paragraph 16) and in Mr. Sofield's W.S. (atparagraph 56), differ slightly from the figure claimed in the letter from Mr. Kennedy toMr. Moffitt dated 13 February 2015 ($5,175 as opposed to $5,715 - possibly atypographical error - and no receipt or invoice produced). However, as the figures seemreasonable in the circumstances, I am prepared to allow the lower amount of $5,175. There will be judgment in favour of the Plaintiff against Mr. Moffitt and in the sum of CI$404.90; 67. therefore b for the Plaintiff follows:(a) Damages of contrac inti (b) Damages for breach of contract in the sum of CI$17,628.80; ```
(c) Interest on damages totaling CI$105,033.70, at the rate of 2 3/8 % per annum, as claimed in the Statement of Claim, from the date of demand for payment, 1st February 2014 to the date of judgment. (d) Costs. (e) The Counterclaim is dismissed. THE HON. JUSTICE INGRID MANGATAL JUDGE OF THE GRAND COURT 190116 Cayman Structural Group Ltd v David Moffitt - Judgment 23 of 23