Gatty v Patch Traders Ltd [1993] FJHC 78; Hba0002j.91s (13 September 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
APPELLATE JURISDICTION

CIVIL APPEAL NO. 2 OF 1991

BETWEEN:

RONALD GATTY
- Appellant

AND

PATCH TRADERS LIMITED
- Respondent

Mr. D. Sharma: For the Appellant
Mr. J. Flower: For the Respondent

Date of Hearing: 8th September 1993
Date of Judgment: 13th September 1993

JUDGMENT

This is an appeal from a judgment of the Magistrate's Court at Suva delivered on the 4th of December 1990.

The proceedings were begun in the Magistrate's Court by Writ of Summons issued on the 18th of March 1987 wherein the Respondent (Plaintiff) claimed from the Appellant (Defendant) the sum of $1157.70 being the amount together with interest thereon which the Respondent claimed was due to it by the Appellant in respect of one C.H.P. Pump valued at $895.00 and five Stainless Steel Joints valued at $125.00 which the Respondent had sold to the Appellant at the request of the Appellant on the 7th of March 1986.

The Statement of Claim endorsed on the Writ also claimed interest at the rate of 13.5 percent from the 7th of March 1986 to the 7th of March 1987 namely $137.70.

In the third and last paragraph of the Statement of Claim the Respondent claimed:

(a) judgment for $1157.70;

(b) interest at the rate of 13.5 percent from 8/3/87 to the date of payment;

(c) costs;

(d) such further and/or other relief as to the Court might seem just.

The hearing of evidence began in the Magistrate's Court on the 22nd of September 1987 after a default judgment for the amount claimed had been set aside by consent.

Also by the time the hearing began the Court had before it affidavits filed by the parties in respect of an application by the Appellant to have the default judgment set aside. I shall refer briefly to these affidavits shortly.

The Resident Magistrate who began the hearing of evidence was Mr. Anthony Gates who heard the examination-in-chief and cross-examination of Raymond David Paton the Managing Director of the Respondent. After this evidence had been taken Mr. Gates adjourned the hearing until the 3rd of November 1987 but for various reasons including apparently the fact that Mr. Gates was no longer a Magistrate the hearing did not resume until the 2nd of May 1989 before another Resident Magistrate Mr. H.C. Patel. Mr. Patel heard afresh evidence of Raymond Paton on behalf of the Respondent and for the first time the evidence of Ronald Gatty, the Appellant, on behalf of the Defendant.

The Learned Magistrate delivered his written judgment on the 4th of December 1990 in which he found for the Respondent and gave judgment for the Respondent in the sum of $1157.70 plus interest at the rate of 13.5 percent from 8th of March 1987 until the date of payment together with costs to be taxed if not agreed.

Five grounds of appeal were filed on behalf of the Appellant, the first of which is irrelevant and the second and third of which were abandoned before me leaving only two grounds of substance which were argued before me. These were that the Learned Trial Magistrate erred in law and fact in not properly considering the relevant provisions (unspecified) of the Sale of Goods Act and that the Learned Magistrate was wrong in law in awarding interest at 13 1/2 percent from the 8th of March 1987 until the date of payment.

Before the Court below and before me the Appellant claimed that there was no sale of the goods in question from the Respondent to him because first there was no document evidencing any such sale and secondly that although the Respondent had taken possession of the pump in question this was only on a trial basis and was to be returned to the Respondent after the Appellant had conducted satisfactory experiments with the pump. The Appellant contended that no receipt had been given for the pump and no price had ever been agreed for it.

The Appellant directed my attention to various parts of the evidence which he claimed supported this argument. One of these was the contradictory evidence given on affidavit in the application to set aside the default judgment by one Rod Finch, a farm adviser.

In an affidavit sworn on the 16th of July 1987 Mr. Finch stated that he knew both the Appellant and Raymond David Paton and that he was present on the 7th of March 1986 when the Appellant and Mr. Paton concluded the sale of the stainless steel pump and five stainless steel pipe fittings which he personally handed to the Appellant's Farm Manager one Noel Brown on instructions from Mr. Paton.

In the second affidavit sworn on the 31st of July 1987 Mr. Finch contradicted his earlier affidavit by stating that in fact he was not aware of any conclusive sale of a stainless steel pump by the Respondent to the Appellant because he knew that the pump was being taken by the Appellant on trial only and subject to two conditions, that the Appellant could locate and purchase a suitable engine to drive the pump, and that on trial on his farm, he would find equipment satisfactory for his purposes. He also said, referring to his earlier affidavit where he had used the phrase "concluded the sale", that this was inaccurate and he should have used the expression "concluded the agreement" instead of "concluded the sale".

Counsel for the Appellant argued that faced, with this contradiction, the Learned Magistrate should have found that the Respondent had not satisfied the onus of proof that there had been a sale to the Appellant. I do not accept this submission.

The Learned Magistrate clearly based his judgment on his assessment of the credibility of the witnesses who gave evidence before him, namely Mr. Paton and Mr. Gatty. He said:

"I have carefully considered the evidence of both witnesses. I have carefully observed their demeanour whilst giving evidence and under cross-examination. I believe the plaintiff company's witness Mr. Paton.

I dis-believe the defendant. The defendant says he tried several times to contact the plaintiff but could not locate. However, when he was initially "interested" in getting the pump he seemed to have no difficulty at all.

On the balance of probabilities I grant judgment in favour of the plaintiff for the sum claimed."

Clearly because of the conflict in the two affidavits of Rod Finch he disregarded Mr. Finch's evidence and preferred to rely on his assessment of the credibility of the Appellant and Mr. Paton. In this he was acting perfectly correctly. Time and again Appellate Courts have declined to interfere with a finding of the trustworthiness of witnesses in a lower court whom the Judge or Magistrate has seen and heard. Thus, in Powell and Wife v. Streatham Manor Nursing Home (1935) A.C. 243 the House of Lords held that an appeal, although a rehearing, is a rehearing on documents and not, as a rule, on oral evidence; and where the judge at the trial has come to a conclusion upon the question which of the witnesses, whom he had seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be; and the appellate tribunal will generally defer to the conclusion which the trial judge had formed.

At page 267 Lord Wright remarked that as the evidence proceeds through examination, cross-examination and re-examination the judge is gradually imbibing almost instinctively, but in fact as a result of close attention and of long experience, an impression of the personality of the witness and of his trustworthiness and of the accuracy of his observation and memory or the reverse.

In my respectful opinion that remark is equally apposite to the facts of this case and I am not prepared to find that the Learned Magistrate erred in preferring the evidence of the Respondent to that of the Appellant. Accordingly I reject this first submission.

Next counsel for the Appellant quoted part of the evidence of Mr. Paton in support of the Appellant's contentions that the parties never intended to effect a sale. Mr. Paton said "this was a friendly arrangement not a business one". I do not accept this submission because counsel has quoted the remark of Mr. Paton out of context. He had earlier said that Mr. Noel Brown, the Appellant's Manager wanted some pipe fittings but they were the wrong ones. Mr. Rod Finch had asked if he could hand the fittings belonging to the Respondent which were on Mr. Finch's land to Mr. Noel Brown. There were five of them costing $25.00 each, a total of $125.00. Mr. Paton then continued:

"The container on Mr. Finch's land holds many thousands of dollars worth of pipe fittings and pump parts. They were seen on Mr. Finch's farm."

In my judgment it is obvious that the friendly arrangement to which Mr. Paton was referring was not in relation to the sale of the pump to the Appellant but rather to the holding on Mr. Finch's farm as a friendly gesture of the container of pipe fittings. I therefore reject this submission.

Next the Appellant argued that there was no evidence involving the Appellant in any sale. He argued that if anybody should have been found to have bought the pump and the pipes this was Mr. Brown and he quoted the earlier passage I mentioned beginning, "Mr. Brown wanted some pipe fittings". I cannot accept this submission because when he was cross-examined at the second hearing the Appellant stated:

"Noel Brown directed me to Paton for the pump. Noel Brown may have discussed the possibility of purchase of pump with Paton. Noel Brown was my farm manager. He was authorized to write cheques for the company up to $2000."

I take this evidence to mean, as I believe the Learned Magistrate did also, that Noel Brown was acting for the Appellant in the purchase of the pump. He was the Appellant's Manager with authority to write cheques for the Appellant up to $2000.00.

It is true that the Appellant was never cross-examined about the steel fittings but in my view the Learned Magistrate was entitled on the evidence to find as he did on the basis of credibility that the Appellant had agreed to buy the pump and the steel fittings from the Respondent.

It was argued that the Learned Magistrate had failed to consider various unspecified sections of the Sale of Goods Act. In an affidavit sworn on the 5th of August 1987 the Appellant had deposed that he had been advised and verily believed that the transaction was also unenforceable under the Sale of Goods Act. Before me counsel for the Appellant stated that the section on which the Appellant relied was section 6 which states that a Sale of Goods on credit or an agreement to sell goods on credit in the course of trade shall not be enforceable by action at the suit of the seller unless accompanied by a written invoice giving full details of the goods concerned.

There is no evidence to satisfy me that the sale here was a sale on credit. The Respondent indicated by clear implication that the goods were sold for cash (see page 16 of the Record of the Court below). I consider that the Learned Magistrate was in order also in reaching this conclusion. I therefore reject this submission.

Counsel then submitted that there was evidence, and I agree, that the Appellant had subsequently bought a new machine around May 1986 but it does not follow from this that he had not agreed to buy the Respondent's machine also. I therefore reject this submission.

The last matter put to me by the Appellant concerns the Magistrate's finding on interest and here I believe the Appellant is on much stronger ground. Counsel for the Respondent submitted that this was claimed in the Statement of Claim paragraph 3(b). I agree but I am not at all clear as to why the Learned Magistrate chose the 8th of March as the starting date because I cannot understand from the evidence why the Appellant's then solicitors chose the 8th of March 1987 as the appropriate date. It may be because the Appellant had claimed interest for one year from the 7th of March 1986 to the 7th of March 1987 and that thereafter it was reasonable to claim from the 8th of March until the date of payment, but it is impossible to say with any certainty.

Interest is always discretionary and whilst I hesitate to hold that the Learned Magistrate exercised his discretion wrongly, here I am driven to conclude that he did.

Counsel for the Appellant originally contended that the Learned Magistrate should have awarded interest at the rate of between 4-5 percent if any in fact were due but he later agreed with me that normally now interest is awarded at the rate of 10 percent from the date on which the Writ was issued until the date of judgment although at times this is not always done.

In my judgment on the facts of this case the Learned Magistrate erred in his award of interest and that for the rate of 13.5 percent from the 8th of March 1987 until the date of payment there should be substituted an award of interest at the rate of 10 percent from the date the Summons was issued, namely 16th March 1987, until the date of judgment, 4th December 1990. This will be on the amount of $1020.00 being the value of the goods sold and which I calculate at 10 percent, $382.50.

I therefore uphold the appeal on this one ground and enter judgment for the Respondent in the sum of $1020.00 plus interest of $382.50 a total of $1402.50.

On the question of costs, as the Appellant has been only partly successful and as I am varying the order of the Court below, I consider that the parties must pay their own costs both in the Court below and in this Court and I so order.

JOHN E. BYRNE
J U D G E

HBA0002J.91S