Tenta v Mark [2007] PGDC 171; DC763 (4 December 2007)

DC763

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 163 OF 2007

BETWEEN

MOSES TENTA
COMPLAINANT

AND

MARK
FIRST DEFENDANT

AND

RACHEL MARK
SECOND DEFENDANT

Port Moresby: S GORA

2007: 04 DECEMBER

Cases Cited

Nil

Statutes Cited

Nil

Counsel

Complainant appeared in person
Defendant appeared in person

DECISION

GORA. S This is an action by Complainant to recover payment for use of vehicle for six (6) months.

2. Complainant claims the sum of seven thousand five hundred kina (K7, 500.00) being payment for use of vehicle for six (6) months plus six hundred fifty five kina (K655.00) for damages caused to the vehicle.

3. The facts in brief are that on the 6th of May 2006, the complainant entered into a Memorandum of Agreement (written) with the defendant for the sale and purchase of his vehicle, a Mitsubishi L200, Registration number T3250 for the sum of six thousand kina (K6, 000.00).

4. It was a term of the Agreement that the defendants were to make an initial payment of one thousand kina (K1, 000.00) and further installment payments starting on the 17 March 2006 and ending on the 17 May 2006. No installment amount was fixed and agreed to.

5. Couple of weeks after the agreement was signed, the defendants made an installment payment of six hundred kina (K600.00) leaving a balance of four thousand four hundred kina (K4, 400.00) to be settled. Thereafter defendants made no further installment payments hence prompting complainant to reposes the vehicle on the 9 August 2006.

6. There is no doubt defendants have breached the agreement to complete installment payments within the time period agreed to by the parties, hence complainant repossessing the vehicle.

7. The issue is whether or not the defendants should pay the complainant the remaining balance of the purchase price. Obviously the answer would be "Yes". They used the vehicle for six (6) months without making further installment payments. They breached the agreement and therefore should settle the remaining balance of the purchase price.

8. However the complainant has re-possessed the vehicle and has no intention of returning same to the defendants. In fact both parties have on the 9 August 2006, signed Statutory Declarations to the effect that the complainant was to take back his vehicle and repay back to the defendants what has been paid towards purchase of the vehicle.

9. I view these Statutory Declarations as having cancelled the Memorandum of Agreement. That is the agreement for sale and purchase of the complainant's vehicle. The parties have expressed their intentions to call off the transaction. In other words the parties have by mutual consent as per the Statutory Declaration terminated the Agreement meaning that the Agreement has come to an end.

10. Thus in giving effect to the termination of the Agreement the complainant has repaid seven hundred kina (K700.00) back to the defendants with further nine hundred kina (K900.00) yet to be repaid.

11. As the Agreement as already been terminated, the parties by law have now been discharged from any further obligations, past and future arising from the Agreement.

12. I therefore cannot see any reason why this matter has come to this court. In fact records show that this matter had already been previously dismissed by Central District Court, a court of competent jurisdiction, I therefore cannot make a contrary order under the same process.

13. Accordingly I must dismiss this case with costs.

14. Order

1. Case dismissed with costs.s