Super Save v. NKSB Enterprises et al Date:, 2015 BCPC 159

Citation: Super Save v. NKSB Enterprises et al Date: 20150423 2015 BCPC 0159 File No: 12-39245 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: SUPER SAVE DISPOSAL INC. CLAIMANT AND: NKSB ENTERPRISES LTD. AND BSKN ENTERPRISES

(2000) LTD. DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP BRYAN G. BAYNHAM Appearing for the Claimant: J.N. Jordison Appearing for the Defendants: B. Razavi

Place of Hearing: Vancouver , B.C. Date of Hearing: September 10, 2014 Date of Judgment: April 23, 2015 [ 1 ] The claimant Super Save Disposal Inc. (“Super Save”) seeks to enforce a contract entered into by a predecessor company in 2004. Given that the contract is over ten years old, Super Save was unable to adduce either viva voce evidence or a complete documentary record of the background facts which lead to the signing of the original contract. [ 2 ] The defendants, on the other hand, called evidence from Behzad (Ben) Razavi a director of both defendant companies. Mr.

Razavi was knowledgeable about the provision of waste disposal services to the gas station in question since 2001. FACTS [ 3 ] Mr. Razavi is the director and shareholder of NKSB Enterprises Ltd. (“NKSB”), the company that presently operates the gas station. Mr. Razavi was previously the sole director and shareholder of BSKN Enterprises Ltd. (“BSKN”), the previous operator of the gas station. BSKN was dissolved for failure to file annual reports on October 24, 2003. [ 4 ] On March 1, 2001, BSKN entered into a contract with Waste Not Recycling and Disposal Inc. (“Waste Not”).

On July 26, 2004, BSKN signed another agreement with Waste Not. Super Save alleges that it purchased this contract from Waste Not on August 31, 2004. Super Save did not present any evidence to support the bald allegation that this contract was purchased or assigned to them. [ 5 ] On November 20, 2007, Ben Razavi entered into a contract with Super Save on behalf of NKSB for waste disposal services. The representative who presented this contract to Mr. Razavi to sign was not called as a witness. Super Save did not produce a copy of this contract.

This agreement was produced by the defendants in their trial statement. [ 6 ] The standard Super Save contract put into evidence by the defendants provides for a five year term. Importantly, there are handwritten marks each time the five year term is found in the contract. There also appears to be initials over these markings. Mr. Razavi testified that the five year term was varied to be a three year contract. Super Save did not dispute this. [ 7 ] On August 1, 2010, Mr. Razavi sent a letter informing Super Save that NKSB intended to cancel their services.

Super Save responded in a letter on August 30, 2010 that NKSB had to give 60 days’ notice in order to validly cancel the contract. Mr. Razavi then sent a letter on September 20, 2010 giving notice to Super Save that NKSB no longer required their services. [ 8 ] Super Save subsequently brought a claim against BSKN, NKSB, and Mr. Razavi for breach of contract. Super Save was awarded $5,000, the maximum amount permitted by this Court, in a default judgement. Super Save also applied to the Court for an interest rate of 19 percent to be levied on the damage award. Mr.

Razavi on behalf of the defendants successfully set aside this default judgment. ANALYSIS [ 9 ] There is no evidence that Super Save purchased the BSKN’s contract from Waste Not. Even if the contract was legally transferred to NKSB, the contract expired on July 20, 2007. In any event, the only evidence of a contract between either of Mr. Razavi’s companies and Super Save was provided by Mr.

Razavi, the terms of which were altered to reflect a three year term. [ 10 ] I find that NKSB complied with the terms of the 2007 contract between BSKN and Super Save by giving Super Save the required notice that they no longer needed their services thus terminating the contract. [ 11 ] This claim is dismissed with costs of $200 to NKSB reflecting both the costs to set aside the default judgment and the costs of trial. ____________________ B. Baynham, Q.C. Adjudicator