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Iosefa v Siaosi [2012] TVHC 11; Civil Case 4.2010 (26 November 2012)

In The High Court of Tuvalu
At Funafuti

HC. Civil case no. 4/10

Civil Jurisdiction

Between:

Matanile Iosefa
Plaintiff

v

Amupelosa Siaosi
Defendant

BEFORE THE CHIEF JUSTICE

I Isala for plaintiff
M Agaifo for defendant

Hearing: 15 November 2012
Judgment: 26 November 2012

Judgment

[1] The plaintiff owned and operated a business trading under the name of MKSTI Construction and Maintenance Company. On 9 April 2008 he hired out a concrete mixer to the defendant who was, at that time, building a house. By a claim filed on 31 March 2010, he claims money due for that hire and also for two repairs which were necessary during the time the defendant had the mixer.

[2] Although the defence filed, with leave, out of time on 18 March 2011, is a denial of the whole of the claim, there is no dispute that the defendant hired the plaintiff's mixer or that repairs were necessitated following two breakdowns of the mixer during the period of hire.

[3] The plaintiff's case is that there was an oral agreement that the cost of the hire would be at the rate of $18.00 per metre square and that the total area filled amounted to 1,902 metres square.

[4] During the time the defendant had the mixer it broke down and when the plaintiff went with his mechanic it was clear the turning belt had broken. A new one was obtained from Fiji by the plaintiff and fitted by his mechanic. Later, when the plaintiff was asked by another client to let him hire the mixer, the plaintiff went to the defendant's site to see the mixer. He found it at a different place and noted that the defendant's work had been completed. He took the mixer away, delivered it to the new client who reported that it was not working. The mechanic identified the fault as being in the bucket driving gear and it was repaired.

[5] The plaintiff claims AUD$3,344.00 for the outstanding hire charge plus FJD$240.00 for the first repair andFJD$900.00 for the second. There is no dispute that the defendant has already paid AUD$440.00. He claims it was a fair charge for the whole hire but the plaintiff's case is that it was an agreed down payment due once the work had commenced.

[6] The defendant's case is that he was already using a concrete mixer which he had hired from the TCS at a rate of $30.00 for each day it was used. He told the Court that he came to hire the plaintiff's mixer at the request of the plaintiff who asked him to hire it to help the plaintiff because he was in need of the money. The defendant explained that he and the plaintiff were friends and no rate was stated. The plaintiff simply assured the defendant that he would charge him "as a friend".

[7] Even when the mixer had been taken back by the plaintiff, no figure had been agreed. The defendant denies the rate of $18.00 per metre square or, indeed, that any rate was mentioned. He told the Court that the plaintiff's wife came shortly after the mixer was returned with an invoice for $4,797.84 in hire charges.

[8] The defendant had a loan from the Development Bank. He took the invoice to the Bank for payment but they refused to pay and told him to ask his carpenter how many days the mixer had been in use. He did so and was told it had only been used on 11 days. The bucket on the plaintiff's mixer was larger than that on the TCS mixer and so the defendant decided a fair rate would be $40.00 per day used. The cost of eleven days use at that rate was the payment of $440.00 which he then paid.

[9] There was no mention of any agreement about breakdowns. In those circumstances it is a reasonable inference that any machinery hired out will be fit for the job and in good condition. Should it break down, the person hiring the machine out will be responsible for repair unless the breakdown is a result of negligence or malpractice by the defendant when using the machine.

[10] The plaintiff's mechanic gave evidence that, in his opinion, the turning belt had been broken as a result of the machine being overloaded. I accept his evidence of the cause of that damage and the cost of that repair should clearly be paid by the defendant. There was no evidence from the mechanic as to why the bucket driving gear failed. There is no dispute that must have occurred whilst it was in the custody of the defendant and the mechanic suggested that it could have been caused by the machine being knocked. I find that an unconvincing explanation and, considered with the mechanic's evidence that the part was worn, I do not accept the plaintiff has proved any liability of the defendant for that damage.

[11] As is so often the case in this type of hire, there was no written agreement or confirmation of the basis upon which payment would be made. Both the plaintiff and the defendant gave clear evidence and it is not possible on that alone to be satisfied which case is correct. The burden is on the plaintiff to prove his claim and so, if he is to succeed, there will have to be something more.

[12] I am satisfied that "something more" is the evidence of events after the hire had been completed. I have already mentioned that an invoice was delivered by the plaintiff's wife. A copy was exhibited and is dated 2 June 2008. The total figure charged is $4,797.84.

[13] If the defendant's account of how he eventually estimated a total sum of $440.00 is correct, the sum on the invoice was very much higher than his figure. I find it surprising that his immediate reaction was not to challenge it but to take it to the Development Bank to release the money. It was only when the Bank questioned it that he asked his carpenter how many days the machine had been used.

[14] There was no challenge to the plaintiff's evidence that he wrote two further letters asking for the money and tried unsuccessfully more than once to meet up with the defendant to discuss it. Eventually, he went to the People's Lawyer who wrote a letter to the defendant reducing the amount by the removal of an item marked as "Charges" totalling $1,013.84 and asking for payment of $3,784.00 together with the cost of both repairs. At the start of the trial, that figure in the claim was amended to read $3,344.00 to allow for the $440.00 already admittedly paid.

[15] The defendant agrees he was given the first invoice and received subsequent letters including the demand from the People's Lawyer. He says he did nothing initially because the plaintiff did not come to see him but sent other people. He had paid the $440 and did not feel he needed to pay anything further.

[16] As I have stated, I find that conduct remarkable by a man faced, on his own account, with a demand for a sum of money more than ten times higher than the figure he considered fair. Even after it was reduced it was still, on his estimate, vastly inflated yet he did nothing to challenge it.

[17] The plaintiff must prove his claim on the balance of probabilities and I am satisfied to that standard that he has proved the figure of $3,344.00. I am also satisfied that he has proved the repair to the turning belt was the result of misuse by the defendant but I am not satisfied that he has proved any liability by the defendant for the repair to the bucket driving gear.

[18] Therefore I give judgment to the plaintiff in the sums of AUD$3,344.00 and FJD240.00 and dismiss the further claim for FJD$900.00.

I order interest on the outstanding judgment sums at 4% per annum from 31 March 2010 to the time of payment.

I make no order for costs.

Dated: 26th day of November 2012

Hon. Sir Gordon Ward
CHIEF JUSTICE