A day in court

In my career as an attorney, the sort of excuses people concoct when they want to avoid paying debts never seizes to amazes me.

A client bought koi from me to the value of R8 100.00 at the Koi Online/SAKKS open day on auction at the beginning of October 2009. At least 16 koi-keepers, the majority of them are members of this forum, also bought koi from me at this auction. This client was also the auctioneer on this day.

When this individual had to pay, he indicated that he will do so via EFT to my bank account.

Then the excuses started to roll in.

EXCUSE NO 1
First, he indicated that he does not want to take any of the fish any more because one of the other buyers accidentally took the Tancho Showa. We then phoned up the guy who took the Tancho and he said he was convinced he bought it as he had the highest bid. However, he was willing to let go of the Tancho, only because the auctioneer indicated that he bought it himself. We organised that the auctioneer can pick up the fish on his way home. Excuse No 1 not viable anymore.

EXCUSE NO 2
The next excuse after he left: "Paul, I bought only five fish and not six." Fortunately I have sent two people to his vehicle before he left to double check that all the fish were loaded. Excuse No 2 failed.

EXCUSE NO 3
The next excuse, inability to pay. I quote from his e-mail:

"Ek is in 'n situasie soos ek aan jou verduidelik het, sodra dit reggestel is sal ek jou betaal."

(I am in a fix, as I explained to you. As soon as it is sorted out, I will pay you.)

I do have sympathy for people who really cannot pay, but why buy fish at an auction, payable immediately, if you cannot afford to do so, and why not even make an attempt to pay in installments?
Despite this, I waited four months and still no payment, so I had to issue a summons.


EXCUSE NO 4
The next excuse I received at the beginning of February 2010. Under an oath during an application for summary judgement, he swore he did not receive a KHV-free certificate after purchase and therefore he is not liable to pay. My question: Since when is it a prerequisite to provide a KHV free certificate when you sell koi? These certificates were available on the day and all the koi-keepers, including this client, who bought fish from us on said day, received three separate KHV-free certificates via e-mail. Tests were conducted in Japan and the Netherlands, and by MDS in Durban, South Africa - all stating that the koi are disease-free. Those who received the electronic copies of these certificates will find a bsure-address on the CC-line - being the address of this individual.

EXCUSE NO 5
Next excuse, under an oath as part of the court proceedings, two of the fish bought that day died afterwards and therefore possibly have KHV, and therefore he is not liable.

This allegation despite the fact that:
1 only two of the fish died according to his affidavit filed at court
2 these fish were formally tested negative on three occasions and proof was and is available;
3 we never ever had KHV or notable health problems on our farm,
4 none of the other buyer from that day and subsequently had any health problems with their koi purchased,
5 I have not had a single health-related death on the farm since the auction took place in October 2009;
6 The fish have been with me for more than 12 months and went through almost an entire summer without any indication of KHV, but his fish "possibly have KHV".
7 He already acknowledged in writing his liability and undertaking to pay.

If these fish "possibly have KHV", is he not obligated to test his koi? And if tested positive, must he not kill all his fish? Should he/his wife not refrain from offering his fish for sale to an unsuspected hobbyist (again also to members of this forum) as he/his wife did? Was he not supposed to quarantine these fish first? What about the possibility that his fish had KHV and infected the ones he bought from me?


EXCUSE NO 6
According to the same affidavit lodged at court, he states under oath that he wishes to lodge a counter claim against me for R16 000.00 because some of the fish he bought from me in the past had died.

With situations similar to what I have explained above, we will need more lawyers. I think I will have to put more emphasis on my legal career. It is becoming risky to be a koi-dealer and quite profitable to litigate LOL

Fortunately for me, it is a well-known fact that he had major health problems in the past due to fish bought from another dealer in the Cape. Now he puts the blame on me for fish that died in the past. A thought that comes to mind: Why would he still buy koi to the value of R8 100.00 at said auction from me, if he really believes he bought infected fish from me in the past?

To anybody who heard rumours that we have a possible KHV problem, I can assure you that the possibility is ZERO. We import all our fish, except for a few that I purchased in August 2009 at the koi show from Christie van Zyl (forum member) who is a reputable dealer in the Cape. As stated above, all the batches we import are thoroughly tested thrice and the koi are subjected to an eight-week quarantine period during which we follow all prescribed procedures to force a KHV outbreak if the virus is present. We have an extremely strict policy towards KHV, and that is why we guarantee all our fish to be KHV-free. (To this individual I have to mention that this guarantee relates to the purchase date and not after they were introduced to your collection of koi without any quarantine, and not weeks or months thereafter, LOL.)

We also invite the public to come and see for themselves how well the koi that were on auction that day, but were not purchased, are currently doing. Also, if you have bought koi from us on said day and you have experienced health-related problems with those fish, please voice your concerns here. For that matter, if you have had any health-related problems with any of the koi you have ever bought from us, we shall be pleased to hear from you.

It is going to be an interesting day in court. Tickets are on auction, to be paid in full on conclusion of each bid, and a deposit payable upfront. LOL

Will keep you posted ...

Do not underestimate the inventiveness and creativity of people in trouble

Ja jong, baie creative...

Ek myself koop partykeer 'n koi wat ek nie nou kan klaar betaal in een slag nie maar ek sit darem gewoonlik 'n deposit neer en maak reeling om dit aftebetaal voordat ek die vis neem.

Ek het 'n vis by 'n ander handlelaar in Maart verlede jaar gekoop op HP vir 'n redelike bedragie en die vis is dood in Oktober 2009. Ek skuld nog 'n klein bietjie op die dooie vis maar kla nie daar oor, dit is mos nie die handlaar se probleem nie. LOL

Hi Paul
I am also a debt collector. Man I think we can make money selling the bullshit stories we get. I also have it all the time. Unfortunately a sympathetic magistrate can find something small that maybe in his favour and rule against you and you can loose it. The criminal in todays life wins. wait till he starts threatening you with the NCR.
My advice just go for the jagular vein and nail him. Hope you win handsomeley and then name him so everyone knows to stay clear. We dont need that type in our industry.

Hi Paul

I agree with Neville I will not sell any thing to this person either. Please let us know who it is, if a dealer is suspected of having KHV then every koi keepers whants him or her named. So I feel all dealers must know the keepers that dont pay as well.

Paul

Dit is jammer om te hoor van die gesukkel met geld vir die Koi en dit ten spyte van die feit dat jy die 1 is wat in water moes staan om vis te vang terwyl klient rustig toe kyk met groot glimlag

Sterkte

The Koi Online/ SAKKS open day 04 October 2009

I need to confirm that to the best of my knowledge all good practice Koi keeping procedures were followed on the day and I personally bought Koi from the auction pond with no health problems. Also no other keeper reported any problems to date. All the Grow and Show Hi Utsuri on this forum was in the same auction pond, mine was in QT for nearly 3 months.

This sounds like the old race card when we as people have a difference of opinion, in Koi it now looks to be the KHV card.

Thanks for all the replies and support.

I just came out of court now after the hearing of the matter this morning, and justice was served.

The court rejected his defence of failure to provide a KHV-free certificate (which was provided in any case) and rejected the defense and counterclaim of R 16 000.00, saying that there were no proof that the fish delivered were not healthy, and a dealer can not be held liable in circumstances like this.

There is justice in this world.

Paul did you reprensent yourself or did you have your own lawyer?

Glad it work out well.

Welgedaan Paul. Daar te veel skelms daar buite wat kanse vat en ander vir die gek hou.

wayneb wrote:

Paul did you reprensent yourself

No ways I would employ another attorney, they are too expensive

Although they say "the attorney who represents himself has got a fool for a client"

This client still has to pay my normal fees as if I employed an attorney and together with his own attorneys fees, it is going to be very very expensive fish.

Good is to see ‘KHV’ have a positive side as well.

Paul.
Well done, at the end of the day it is all about fairness, and if you are fair you should always win. Vice versa if you are unfair you should loose.
Well done

well done Paul now please let me know who this person is so that I can avoied selling any thing to him.

Hi Collin, the guy is Chris Van Tonder and he feels that he still has to fight.

He has started appeal proceedings to the High Court, and the price of the fish are still going up.

If it goes on like this, it is going to be the most expensive koi in the country.

Will keep you posted...

Net om R8 100.00 nie tebetaal nie?

Ek ken nou nie die koste van howe en regs advies nie maar is dit nie iets soos R 3000 per uur vir 'n advokaat nie?

Watse bewyse het hy dat sy vis siek geraak het a.g.v iets wat hulle by jou gekry het? As die visse ge QT was en hulle het gevrek en hy het toetse laat doen so hy 'n beter kans gehad het...maar sekerlik net vir R 8 100 en die toetse se onkoste en nie vir verder onkuste van R16 000 nie.

Klink vir my die saak is meer persoonlik en is nie gebaseer op feite nie en hy try jou "out spent" met die regs onkoste.

wayneb wrote:

Watse bewyse het hy dat sy vis siek geraak het a.g.v iets wat hulle by jou gekry het?

Die visse was blykbaar nie gekwarentyn nie en direk in sy dam gegooi. Hy het na bewering reeds op daardie stadium gesondheidsprobleme gehad. Daar bestaan geen getuienis hoegenaamd dat daar iets fout was met my visse nie.

Hy het nou 'n vonnis teen sy naam wat sy kredietwaardigheid beinvloed en miskien is dit waaroor dit gaan? Of hy speel bloot vir tyd want ek kan nie nou 'n lasbrief uitreik totdat die appel afgehandel is nie. Ek kan maar net spekuleer. Ek dink nie hy besef wat die regskostes gaan wees nie. Miskien word hy swak geadviseer?

Mens gaan in ons regstelsel nie Hoerhof toe vir R 8100.00 + teeneis van R 16 000.00 nie, selfs al het jy 'n uitstekende saak. Al wen jy die saak, verloor jy steeds weens hoe regskostes.

My besigheid het so 3 jaar gelede 'n R 600 000 eis gehad teen 'n telekom maatskappy vir skulde wat hulle nie wou betaal nie. En ons het 'n kontrak gehad.

Ons eie advokaat het ons aangeraai om liewer teprobeer onderhandel en paar briewe testuur want volgens hom sou die saak kon draai en op die ou end sou ons nie veel van die R 600 000 uitkry na al die onkoste nie.

Op die ou end het die maatskappy besluit om ons tenvolle uit tebetaal en hulle is tot nou toe een van ons kliente.

So as mens nie hof toe wil gaan vir R 600 000 nie wat dan van R 8000.

Wow only in SA will Koi make it to the High Court, I am shuddering to think what the legal fees will be.......

A few years back a koi keeper took a dealer to court in the UK and won substantial damages after purchasing a koi which died ...

It was in 2002. The fish was bought for 80,000 pounds (if I recall correctly) and the legal expenses totalled around 200,000 pounds.

"KHV VERDICT" RATTLE THE TEA CUPS

The British Koi Trade was rocked to their roots when the Judge ruled in favour of the Claimant in the recent court case in which a UK Koi hobbyist sued a supplier for damages resulting from losses due to KHV infection. The Claimant (Ronald Craven) bought fish from a Japanese breeder on a buying trip that was organised by the Defendant (TMI). The fish were shipped by TMI to the UK and held in their care before being collected by Mr Craven. What followed was an outbreak of KHV at both TMI and Mr Cravens ponds. Needless to say, he lost the bulk of his collection.

Judge McGonigal awarded damages amounting to £74,928.68 plus costs to the Claimant. In paragraph 5.17 of his judgement he concluded:

"I find therefore that one or more of the Tewin Fish was not of satisfactory quality or fit for the purpose of being kept by a koi carp hobbyist when they were delivered to Mr Craven on 5 January 2001. The KHV infection in such fish spread to the other Tewin Fish and to the other fish in Mr Craven's covered and uncovered pond and to those in his quarantine and hospital tanks. If a seller sells fish suffering from an infectious disease to a buyer knowing that the fish will be kept with other fish, the seller is liable for the deaths of other fish that become infected with the disease (see Smith v Green (1875) 1 CPD 92). It was in the contemplation of the parties that Mr Craven would put the Tewin Fish into ponds containing other fish and that, if any of the Tewin Fish was infected with KHV, then KHV would spread to other fish in any pond where the Tewin Fish were put and could spread to adjoining ponds. I find that Tewin's breach of the terms implied by Section 14 of the Sale of Goods Act 1979 caused the death of those fish." (My highlighting: Ed)

The immediate reaction from the Trade was that of utter disbelief and shock. Should each and every fish now be sold with a contract limiting liability? Should they be importing and selling Koi at all? Was the financial risk not too high? How can Producers be tied down?

But, while the Craven v TMI case carries a special set of circumstances that may not apply to the way most Koi are sold, it offers a warning to the Trade in live fish in general.

The highlighted parts above is of particular significance to each and every Trader of Koi in the UK and they should reconsider the way in which they conduct their business in future in order to minimize their risk. Likewise, the Producers of Koi worldwide should take notice of developments and bring their house in order.

The Judge did not come to any conclusion regarding the origin of the TMI KHV infection, but there was a common denominator lurking ominously in the pages of the transcript.

Quote :

not of satisfactory quality or fit for the purpose of being kept by a koi carp hobbyist

Quote :

If a seller sells fish suffering from an infectious disease to a buyer knowing that the fish will be kept with other fish, the seller is liable for the deaths of other fish that become infected with the disease (see Smith v Green (1875) 1 CPD 92).

So in other words the judge says that the dealer knew the kois had KHV or that something was wrong and still passed them onto the hobbist and thats why he was found guilty. This sounds like very specific circumstances. The dealer knew There must have been proof of it.

I think this case is fair....dont sell sick fish if you know about it

Most dealers i know Qt their fish for 4-6 weeks and do KHV test and try their best to identify any illness before releasing the fish to the owners. This technique must count in their favour in any defence.

Hi Paul
Kan jy nie vra dat die ander party jou kostes waarborg nie, daar is mos so reel is daar nie, en dan kry jy maar n lekker duur advokaat.

Neville, hulle pas bedrae wat vasgestel word deur wetgewing baie selde aan. Hy moet R 1000.00 inbetaal as sekuriteit, en die bedrag is al vir 10 jaar R 1000.00. Belaglik.