Geomar Consult CC v China Harbour Engineering Company Ltd Namibia and Others (I 2115 of 2015) [2021] NAHCMD 455 (5 August 2021)

Key Facts

Transaction Type

Issues

• The second issue concerned the validity of an alleged oral agreement for post-award engineering services. The court concluded no valid oral contract existed for this stage due to lack of consensus ad idem or reasonable reliance.
• The court determined whether an oral contract existed between the plaintiff and first defendant for pre-tendering services, and whether quantum meruit could be applied when the agreed remuneration amount was unspecified. The court found a valid oral agreement based on reasonable reliance but rejected the quantum meruit claim for post-award services.

Holdings

• The court determined no valid agreement existed for the post award stage, either on the basis of consensus ad idem or reasonable reliance. The plaintiff's claim for this stage was rejected due to insufficient evidence of an enforceable contract.
• The court found that a valid oral agreement existed for the pre-tendering stage based on reasonable reliance. While the plaintiff failed to establish a fixed remuneration amount, an express or implied promise to pay was recognized, leading to a quantum meruit award of N$200,000 plus 20% annual interest from 7 February 2020.

Remedies

• Judgment for plaintiff in the amount of N$200 000, plus interest at the rate of 20 per cent per annum, calculated from 7 February 2020 to date of full and final payment.
• The matter is finalized and removed from the roll.
• There is no order as to costs. The parties have shared the honours equally, so no costs order is awarded to any of the parties.

Contract Value

Monetary Damages

Legal Principles

• Rule 45(7) of the rules of court requires a party relying on an oral contract to state 'when, where and by whom' the contract was concluded. The court emphasized that 'where' must specify a definite location and 'when' a definite date or dates.
• The onus of establishing that a contract exists rests squarely on the party who alleges its existence. This party must prove both the existence of the contract and its terms, generally without the opposing party bearing a burden to disprove it.

Precedent Name

• Ehoro Investment CC v Randall's Meat Close Corporation
• S v Jaar
• IA Bell Equipment Company (Namibia) (Pty) Ltd v Roadstone Quarries CC
• Hydraulic Brakes Truck & Trailer CC v Mutual and Federal Insurance Co of Namibia
• Bosch v The State

Cited Statute

Judge Name

Passage Text

• It is my view, therefore, that as respects the pre-tendering stage, there is an express or implied promise to pay but the agreement is silent on the amount. That being the case a quantum meruit lies... In the circumstances, I think an amount of N$200 000 is a fair and reasonable amount.
• As respects the post award stage, plaintiff did nothing – nothing at all – to be thankful of the reasonable reliance ground; and plaintiff has failed to prove that plaintiff and first defendant were ad idem... Consequently, I conclude that plaintiff has failed to prove its claim in respect of the post award stage (Claim 2).
• I found previously that plaintiff does not plead a specific amount of money it was agreed defendant shall pay plaintiff for performing the services referred to in para 16 above; and plaintiff has not placed before the court sufficient and satisfactory proof of expenses plaintiff reasonably incurred in rendering those services for reimbursement.

Damages / Relief Type

• No order as to costs awarded to either party
• Judgment for plaintiff in N$200,000 plus 20% annual interest from 7 February 2020
• Case finalized and removed from the roll