[1997] PNGLR 603

PAPUA NEW GUINEA

[national court of justice]

SEMBI PAIKEL

v

KAIWE PTY LTD

mount hagen: injia j
23 May, 24 October 1996

Contract - Bailment - meaning of - Bailor - Owner or person in possession of - Bailee - Motor vehicle repair workshop - property - Motor vehicle - Bailee released motor vehicle to wrong person after repair - Rights of bailee and duties of bailor discussed.

words and phrases – "Bailment" – meaning of.

words and phrases – "Owner" – Owner of motor vehicle.

Facts

The plaintiff claimed that he was the owner of a 25-seater Nissan PMV bus, which was left at the defendant’s workshop for repairs to be done. When the plaintiff returned to the workshop to collect the PMV bus, the defendant could not deliver it. The defendant had wrongly delivered the PMV bus to another person. The plaintiff commenced proceedings against the defendant for damages for breach of contract of bailment.

Held

1.	"Owner" means a registered owner of a motor vehicle.

2.	In order to succeed in an action such as this, the plaintiff must prove either that he is the registered owner or that he is in exclusive possession and control of the vehicle, directly or indirectly.

Counsels

D O’Connor, for the plaintiff.
K Yaual, for the defendant.

24th October 1996

Injia J. This is an action for damages for the loss of a 25 seater Nissan PMV bus, which the plaintiff claims to own. He claims that he deposited the vehicle with the defendant at its workshop for repairs but when he returned to collect it, the defendant could not deliver it because the defendant had wrongly released the vehicle to another person.

The case for the defendant is accurately summarised by counsel for the defendant, Mr O’Connor in his written submission, which reads:

"The defendant admits that it completed repairs to an identified vehicle but denies that the vehicle was unlawfully released to an unknown third party as alleged. It says that the vehicle was released to Elias Kaeyo, a driver and mechanic employed by the plaintiff and related to the plaintiff by marriage. 

The defendant says that by the conduct of the plaintiff and Elias Kaeyo the defendant was reasonably led to believe Elias Kaeyo was the owner of the vehicle or a duly authorised agent. It further says that the plaintiff has since the vehicle was released, been able to recover his vehicle and denies the claim for damages."

The evidence for the plaintiff was given by the plaintiff himself and Muku Taupin. Their respective affidavits were admitted into evidence (Exhibit "A" & "B"). The defendant called the workshop Manager, Max Buntrock, Robert Kawek, Rita Taru and Passingan Taru. Their affidavits were also admitted into evidence (Exhibit "H"-"K").

In my view, this is a claim for damages for breach of contract of bailment. A contract of bailment is defined as "a delivery of personal chattels in trust, on a contract, express or implied, that the trust shall be duly executed, and the chattels re-delivered in either their original or an altered form, as soon as the ... condition on which they were bailed shall have been … performed"; Re S. David & Co. Ltd [1945] Ch. 402 at 405.

The issues in this trial concern the identification of the bailor or the "owner" of the vehicle. Mr O’Connor refines these issues as follows:

1.	Was the plaintiff the owner of the vehicle subject of these proceedings?

2.	Was Elias Kaeyo an agent or servant of the plaintiff or was he an unknown third party.

3.	Was it reasonable in the circumstances for the defendant to release the vehicle to Elias Kaeyo?

4.	If the answer to issue number 3 is "No", is the plaintiff entitled to the relief sought in paragraph 15 of the Statement of Claim.

It was an implied term of the bailment that the motor vehicle would be re-delivered to the bailor upon being repaired and upon payment of the repair cost. Who then was the bailor? Was it the plaintiff or Elias Kaeyo?

Where the plaintiff is the bailor and he is the owner of the motor vehicle, no question should arise. In the present case, the plaintiff says in his affidavit evidence that he is the owner of the vehicle. In cross-examination, he admitted that one Anai Yanda, who is his brother, is the registered owner. He says he had possession and control of the motor vehicle. In the writ, he pleads that he purchased the bus in Lae and makes no mention of any equitable interest or mere possessory and usage rights. At the same time, the defendant in its defence and verified statement in answer to interrogatories filed on 30 August 1994, denied the plaintiff was the owner of the vehicle.

The defendant submits that, on the evidence and the pleadings, the court should find the claim not proven on the basis that the plaintiff is not the registered owner of the motor vehicle and that he is not entitled to the relief he seeks in these proceedings.

The plaintiff has brought these proceedings on the basis that he is the "owner" of the vehicle, having purchased it in Lae in 1990. The pleadings in the writ as to ownership or the "owner" can only be understood to mean a "registered owner".

A motor vehicle is a special good, the conditions for ownership of which are prescribed by statute. The Motor Traffic Act Ch. 243 and the Regulations, and form 9, provide for a system of registration of motor vehicles. The "owner" of a motor vehicle means a "registered owner" whose name is prescribed in the current Certificate of Registration and none other.

In his affidavit, the plaintiff asserted that he is the "owner" of the vehicle. Again, he must be taken to mean the "registered owner". But he contradicted himself in cross-examination when he said he is not the "registered owner".

On the evidence, I find that his claim of being the owner of the vehicle has not been proven. Indeed, the contrary has been shown.

The plaintiff’s case appears to be based on possessory and usage rights over the vehicle. But no such evidence can be led where no such action is pleaded in the writ. Indeed, that is not the basis of his claim as pleaded in the writ.

In any case, in the absence of any evidence from its registered owner giving such a right or privilege to the plaintiff, I am not satisfied that he has proven the existence of such a right.

For purposes of argument, let me assume that the plaintiff’s action based on possession is properly before me. I am aware of the principle of law that a bailor or a person having mere possession of the vehicle who delivers the vehicle to the bailee can sue the bailee for breach of the contract of bailment. Palmer, N.E. in Bailment (2nd Edn., Law Book Co., Sydney, 1991), at p. 112, when summarising the common law principles says:

"The position is relatively straight forward when the non-owner makes a direct delivery to the alleged bailee. The fact that the possessor has both accepted the goods from him and undertaken to return the goods to him will normally constitute the deliverer a bailor, irrespective of the existence of some ulterior party enjoying a full proprietary interest in the goods. At common law, as we have seen, the bailee is estopped from denying the bailor’s title; there seems no reason to deny the estoppel in a case of this kind, especially since there is authority treating it as an implied term of the possessory relationship, and the relationship under consideration will be consensual if not contractual in origin."

The issue is whether the plaintiff was in possession of the vehicle when it was delivered to the defendant and whether it was him who delivered the vehicle for the repair. The plaintiff’s case is that his brother, Annai Yanda, gave him the motor vehicle to run as a PMV. He says that it was him and crew Micky Taupin only who delivered the vehicle to the defendant, not Elias Kaeyo. He also denies engaging Elias Kaeyo as his agent and denies any knowledge of him.

The defendant could not produce Elias Kaeyo. But they did produce Rita Taru and Passingan Taru to show that Elias Kaeyo was related to the plaintiff and that he (Elias Kaeyo) came and saw him (Passingan Taru) and asked for his assistance to help tow the vehicle from Kindeng to the defendant’s workshop. Passingan Taru then contacted Mr Buntrock, the defendant’s workshop manager, who went and towed the vehicle to the defendant’s workshop. No deposit was required to be paid on that date.

There is conflicting oral evidence as to who actually delivered the vehicle for repairs. Therefore, it is necessary to have recourse to the documentary evidence. The first document is the job registration book (Exhibit "D"). This was the first entry made when the vehicle was received at the Defendant’s workshop. But the name of the "owner" or "possessor" shown there is not the plaintiff but Passingan Taru. It names Passingan Taru as the person under whose name the vehicle was delivered.

The second document is the job card. It also names another person, not the plaintiff. On that card, (Exhibit "E") it names "Passingan Taru" as the person under whose name the job card was created. His name is written in blue ink. Below his name, appears "Elias Kaeyo" in black ink suggesting it was filled in later. The card does not say who actually had possession of the vehicle and delivered it. Passingan Taru said in his evidence that, although he arranged for the vehicle to be towed in by Mr Buntrock, he (Passingan Taru) did not physically take possession of the vehicle and go to the workshop to deliver it. Yet for some reason, the workshop staff saw it appropriate to put down his name.

The third document is the receipt dated 26 February 1991, issued upon payment for the repairs and upon re-delivery of the vehicle to Elias Kaeyo (Exhibit "F"). The name appearing there is Elias Kaeyo.

It is probable that the name Elias Kaeyo appearing on the job card in different ink must have been filled out at the time of release of the vehicle upon payment of the repair bill on 26 February 1991 because the job card quotes the receipt number and says "pay cash" in the same ink and handwriting and dated 26 February 1991.

Mr Buntrock’s evidence is that he did not clearly deal with anyone in particular when he went to tow the vehicle and he brought it back to the workshop. He did not identify Elias Kaeyo in particular on 29 February 1991 or anyone else, including the plaintiff. 

This could have been because he was principally dealing with Mr Taru whom he knew and trusted. So that when it came to releasing the vehicle on 26 February 1991, he had to examine Elias Kaeyo to test him to see if he was related to the vehicle. He carefully asked him questions on matters of knowledge peculiar to the vehicle. He asked him questions about the vehicle being picked up at Kindeng and being towed to the workshop. Elias Kaeyo answered the questions accordingly. This impressed Mr Buntrock. Having satisfied himself, Mr Buntrock released the vehicle to Elias Kaeyo upon payment for the cost of the repair work.

On the evidence, I am satisfied on the balance of probabilities that the plaintiff was not the person exclusively in possession and control of the vehicle, directly or indirectly. There was Passingan Taru at the helm. Then there was also Elias Kaeyo, his brother Lopai Kaeyo, the bus crew Muku Taupin and others.

It is true that it was incumbent on the defendant to identify the owner or possessor of the vehicle and release it to him after repair. The person producing the money to settle the repair bill could not necessarily be the owner or person in possession who delivered the vehicle for repair in the first place.

In this case, however, in view of the multiplicity of possible possessors of the vehicle and the plaintiff’s failure to identify himself to Mr Buntrock or his sub-ordinates as the "owner" or the person having right of possession and use of the vehicle at the outset when the vehicle was first towed in to the workshop, Mr Buntrock did the best he could, using his judgment in the circumstances. He took Elias Kaeyo as the person who delivered the vehicle for repair. Mr Buntrock cannot be expected to do more than what he did.

For these reasons, I find for the defendant and dismiss the claim with costs.

Lawyer for the plaintiff: Yapao Lawyers.
Lawyer for the defendant: D L O’Connor Lawyers.