Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Lesuma v Toyota Tsusho (South Seas) Ltd [2002] FJHC 20; Hba0007j.2002 (9 August 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL APPEAL NO. HBA 7 OF 2002S

Between:

JONE LESUMA
and
SALASEINI LESUMA
Appellants

and

TOYOTA TSUSHO (SOUTH SEAS) LIMITED
Respondent

First Appellant in Person
D. Prasad for the Respondent

JUDGMENT

On 22 February 1999 the Appellants agreed to purchase a Honda Accord motor car CO737 from Asco Motors. The purchase was by the means of a bill of sale. A copy of the bill of sale is at page 21 of the record. The mortgagee was BPT (South Seas) Company Limited the name under which the Respondent previously operated.

According to the Statement of Claim filed in the Suva Magistrates’ Court the Appellant fell into arrears with the repayments. Relying on paragraph 11 of the Bill of Sale the Respondent sought repossession of the car, alternatively the sum $8,946.76 which the parties had previously agreed was the sum owed by the Appellant to the Respondent.

The Defence is at pages 37 and 38 of the record. In essence the Appellant (who represented himself both in this court and in the Suva Magistrates’ Court) contended that he had wanted to refinance the vehicle on more advantageous terms available to him within the civil service but the Respondent had so delayed providing him with accurate statement of the amount outstanding that he lost the refinancing opportunity previously available to him. In these circumstances he felt entitled to be offered the same advantageous terms by the Respondent but while negotiating with them on this basis the Respondent began the repossession process. While the Appellant did not deny owing the amount claimed his case was that the Respondent had acted unfairly and to his detriment and that accordingly their claim for repossession of the car should be dismissed. He was however prepared to pay the amount claimed providing the Respondent extended facilities to him.

The Resident Magistrate in a fairly short Judgment took into account the fact that the Appellant admitted owing the amount claimed and did not deny the Respondent’s right to repossess. When the Judgment was delivered in February this year the car was by then in the custody of the Respondent. They valued it at $7,000. In these circumstances the Resident Magistrate deducted $7,000 from the amount claimed and gave Judgment for the Respondent in the amount of $1946.76.

The grounds of appeal which are set out at pages 3, 4, 5 and 6 of the record amount to a rather more detailed version of the Defence. The Appellant having entered into the agreement with the Respondent discovered that as a civil servant he could pay off the amount outstanding rather more cheaply under the civil service car purchase scheme. Unfortunately the parties disagreed as to the amount owed and by the time this disagreement was resolved the scheme had been suspended following the events of May 2000. In these circumstances the Appellant felt that he was entitled to be offered the same terms by the Respondent as would have been available to him under the scheme.

What the precise source of the disagreement as to the amount owed was is not clear but when hearing the Appeal I gained the distinct impression that the Appellant only felt himself bound to pay interest on the principal for the period that it was actually borrowed rather than for the whole of the loan period envisaged in the agreement. When it was pointed out that according to paragraph 1 (b) of the Bill of Sale a fixed amount of interest was specified irrespective of whether the loan was paid off early or not the Appellant was surprised and disappointed. When he was referred to the declaration at the end of the Bill of Sale that its terms had been explained to him by a solicitor the Appellant told me that nothing had been explained to him and neither had he ever met the solicitor. Although I make no finding on these allegations they are not unusual and in the past had not always been found to be untrue. From the Appellant’s point of view it was unfortunate that the agreement was concluded just a few weeks before the commencement of the Consumer Credit Act 1999.

As I see it the principal difficulty facing the Appellant is that he entered into a contract with the Respondent but, while negotiating his release from the contract or its variation he fell into breach. In my opinion at least part of the Appellant’s sense of grievance stems from a misunderstanding of the nature of a contract and the limits imposed on its unilateral variation. While the Respondent indeed agreed to consider releasing the Appellant no agreement to this effect was actually concluded and therefore the contractual rights of the Respondent were preserved. These rights included the right to demand the full amount owing under the contract and the right to seize the mortgaged car.

Although I have some sympathy with the Appellant I can find no fault in the Resident Magistrate’s approach. Unfortunately the car has now been sold by the Respondent and the Appellant cannot hope to regain possession of it. The sale was however, if that is any consolation, for a sum rather less than the $7,000 deducted by the Resident Magistrate from the Respondent’s claim.

The appeal fails and is dismissed.

M.D. Scott
Judge

9 August 2002