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Uluivutia v Western Wreckers Ltd [2004] FJHC 330; HBC0445J.2000S (12 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0445 OF 2000

Between:

APISALOME ULUIVUTIA
Plaintiff

and

WESTERN WRECKERS LIMITED
Defendant

Mr. S. Valenitabua for the Plaintiff
Mr. S. Chandra for the Defendant

JUDGMENT

By writ of summons Apisalome Uluivutia (the ‘plaintiff’) claims against Western Wreckers Limited (the ‘defendant’) special damages, general damages, interest and costs arising out of an alleged breach of implied condition resulting from the sale of motor vehicle registration number D1967 (the ‘vehicle’) by the defendant to the plaintiff.

Background facts

The background facts, about which there is no dispute are as follows (as stated in the defendant’s submission):

(1) The Plaintiff purchased vehicle and without any dispute the vehicle registered number D1967 was registered from the Defendant to the Plaintiff on 10th day of November 1998 in consideration of $20,000.00 (herewith referred to “as the vehicle”).

(2) The Plaintiff paid to the Defendant a deposit of $7,000.00 on 10th November 1998 for the vehicle and the Plaintiff as the registered owner executed the Bill of Sale No. 98 of 3766 in favour of the Defendant as the Mortgagee.

(3) Under the Bill of Sale No. 98/3766, the Defendant was to pay $542.00 p/a in reduction of his debt to the Defendant.

(4) The Plaintiff also took possession of the vehicle from the Defendant on 10th November 1998.

(5) On 1st May 1999 the Plaintiff was in arrears of $1,130.00 to the Defendant and the Defendant seized the vehicle from the Plaintiff.

(6) The vehicle was advertised for sale under the Bill of Sale 98/3766 on 22nd February 2000 in the Daily Post news paper and was sold 29th day of March 2000.

Plaintiff’s submission

The plaintiff says that two weeks after the purchase of the vehicle it broke down. He says that it was returned to the defendant’s car yard at Ratu Mara Road. It was repaired but no ‘turbo’ was fitted as none was available. The plaintiff says that without the ‘turbo’ the vehicle could not run on full power and it was then parked at his home awaiting the availability of the ‘turbo’.

The plaintiff says that he returned the vehicle to the defendant’s garage in June 1999 on defendant’s instructions. He did not hear any more about it until he came to know later that the vehicle had been sold.

The plaintiff admits that the vehicle was sold to him on “as is where is” basis. He says that he paid $350.00 for Credit Approval Form, $7000.00 as deposit and $1250.00 as payments.

He claims special damages in the sum of $8250.00 and general damages for ‘loss of business and income due to the non-use’ of the vehicle from November 1998 to June 1999. He says that these losses are due to the defendant’s negligence and breach of contract.

Defendant’s contention

It is the defendant’s contention that no warranty or guarantee was given at the time of the sale of vehicle. It says that there were minor problems and repair was done at the cost of the plaintiff who took possession of the vehicle from the defendant and kept using the same.

The plaintiff used the vehicle and made partial payment under the Bill of Sale. By 1 May 1999 he was in arrears of $1130.00 and the total debt owed to defendant under the Bill of Sale was $13,350.00 when the vehicle was seized from the plaintiff.

The vehicle was advertised for sale by tender on 22 February 2000 and sold on 29 March 2000.

The defendant says that the plaintiff purchased the vehicle after he inspected it. There was no representation made by the defendant or its agents as to the fitness for the purpose, namely, as a commercial vehicle.

The issues

The issues for Court’s determination are as follows (as in Minutes of PTC):

Was the sale of D1 967 being a second hand vehicle by the Defendant to the Plaintiff subject to the relevant implied terms or conditions provided by the Sale of Goods Act, Cap. 230?

If yes, were the relevant implied terms breached by the Defendant through:-

(a) sale of defective vehicle?

(b) failure to provide spare parts to the plaintiff

Did the Defendant breach the terms and conditions of Bill of Sale when it was sold without informing the Plaintiff after the vehicle was repaired by the Defendant?

If the relevant implied terms and conditions as foresaid were breached, did the Plaintiff suffer damages?

If yes, how much?

Consideration of the issue

Helpful written submissions in law have been filed by both counsel I shall now deal with the issue for the Court’s determination.

The plaintiff has alleged negligence and breach of contract on the part of the defendant. It is for the plaintiff to prove on the civil standard.

The defendant is a dealer in second-hand motor vehicles and spare parts. On the evidence I find that this vehicle when sold did not contain any express or implied conditions of warranty. It was sold on 10 November 1998 on “as is where is basis”. It was at the end of November 1998 that a part (the ‘turbo’) broke down. It was in June 1999 the vehicle was left at the defendant’s garage to fit a turbo.

I find that the plaintiff was in arrears of payment under the Bill of Sale and therefore the vehicle was seized and sold by the defendant.

The evidence reveals that the plaintiff has been operating mini bus service for years and knows the type and condition of vehicle he purchases. After inspection himself he purchased the vehicle. In doing so he relied on his own judgment as to the condition of the vehicle.

On the evidence I find that there was no misrepresentation in the circumstances leading to the purchase on the part of the defendant or its agents.

Sale of Goods Act, Cap. 232

The plaintiff relies upon the provisions of Sale of Goods Act, Cap. 230 (the ‘Act’). Mr. Valenitabua refers particularly to section (3) which defines ‘contract of sale’ and section 16(3) of the Act which deals with conditions implied in a contract of sale.

Section 3(1) provides:

“A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the price .....”

Section 16(3) provides:

“Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known to the seller any particular purpose for which the goods are being bought, there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller’s skill or judgment.”

On the facts and circumstances of this case, I agree with Mr. Chandra that section 16(3) of the Sale of Goods Act does not apply for the reasons (inter alia) that: the vehicle was sold on ‘as is where is basis’, it is a second-hand vehicle which is an accepted fact by both parties, the plaintiff as a driver and mini-bus operator purchased the vehicle after his own inspection and judgment.

Furthermore, the plaintiff executed a Bill of Sale in favour of the Defendant, paid a deposit and took possession of the vehicle on 10 November 1998. Even in Receipt No. 23477 it is stated as one of the conditions of sale that “goods once sold cannot be taken back”. He even used the vehicle for two weeks and then complained about the ‘turbo’. The fact that the defendant also sells spare parts does not mean that it guarantees the supply of parts to vehicle it sells unless it undertakes to do that at the time of selling. All this shows that in the circumstances, as the section says ‘the buyer does not rely, or that it is unreasonable for him to rely, on the seller’s skill or judgment’.

On the facts and circumstances of this case, Mr. Valenitabua’s argument on ‘breach of implied term’ of contract of sale has no relevance in terms of the said sections 3(1) and 16(3) of the Act. The cases referred to by him also have no relevance to the situation in this case.

As submitted by Mr. Chandra the property with risk in the goods (the vehicle) passed to the plaintiff when he executed the Bill of Sale back to the defendant paid deposit and took possession of the vehicle on 10 November 1998.

The plaintiff must realize that he is not purchasing a new vehicle but a second-hand one. He bought it with his eyes open after a proper inspection. In these circumstances the term ‘as is where is’ is appropriate. The fact that some part is found to be defective after taking delivery does not mean that the contract is at an end and the vehicle is useless. Section 13(3) of the Act is relevant here. It provides:

“where a contract of sale is not severable and the buyer has accepted the goods or part thereof, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract express or implied.”

And under section 20 of the Act the property passes to the buyer as in Rule I which states:

“where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer where the contract is made and it is immaterial whether the time of payment or the time of delivery or both be postponed.”

The plaintiff evidently did not do anything else on his part to have the ‘turbo’ fitted in apart from leaving the vehicle at the defendant’s garage.

In the situation that existed in this case the plaintiff was still required to make payments under the Bill of Sale. He fell in arrears and the vehicle was therefore seized and sold by the defendant which it was entitled to do.

I do not find that there was any negligence on the part of the defendant.

Conclusion

In the outcome, on the evidence before the Court I find that the plaintiff has not discharged the burden of proof on the civil standard in proving his claim.

I do not find that there was any misrepresentation on the part of the defendant or its agents at the time of the sale or after delivery of the vehicle was taken.

Also there was neither any breach of implied term of contract of sale in the circumstances of this case nor negligence in any respect on the part of the defendant.

Therefore, the plaintiff’s claim fails and is dismissed with costs to the defendant in the sum of $400.00 (four hundred dollars) to be paid within 21 days.

D. Pathik
Judge

At Suva
12 July 2004