Nali v Wapia [2007] PGDC 2; DC493 (29 March 2007)

DC493

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 1803 OF 2006

BETWEEN

FRANK NALI
Complainant

AND

TED WAPIA
Defendant

Port Moresby: S GORA
2007: 29 March

Cases Cited

Statute Cited

Counsel

29 March 2007

GORA S: This is an action by the complainant against the defendant for recovery to monies spent on maintaining and repairing defendants vehicle.

2. The facts in brief are that on or not about the 15 March 2006, the complainant acting thru an agent one Mr. Markam offered to buy from the defendant a vehicle Reg.No. BBD 05O, a white double cab Nissan Ute. It is alleged that at that point in time the subject vehicle was unregistered and un-road worthy. Nevertheless the vehicle was handed over to the complainant by the defendant and the agent Mr Markam on the 26 May 2006. On the 12 May 2006, the defendant got his vehicle back from the complainant hence commencement of this proceeding by the complainant for recovery of monies spent in maintaining and repairing the vehicle.

3. The issue is whether the complainant is entitled to recover monies spent on maintenance and repair of the subject vehicle.

4. The defendant in his statement of defence denied the entire statement of claim and maintains that his is not liable to meet any maintenance and repair costs incurred by the complainant for purposes of evidence both parties opted to file sworn affidavits and they now rely on these affidavit evidence. I therefore now wish to consider these evidence to address the issue at hand.

5. The complainant filed his sworn affidavit on the 25 July 2006. He stated in his affidavit that the arrangement between himself and the defendant was for the sale and purchase of the defendants’ vehicle. In paragraph four (4) of his affidavits the complainant stated:

"Before I received the vehicles’ key from Mr Ted Wapia I asked him what is the price of the vehicle. And Mr Wapia said, we are relatives so, I won’t charge you when ever we stop then we will stop or half you can get it for your tambu woman as a bride price" [Emphasis Mine]

6. In paragraph five (5) he stated:

"I did not get the price so I did not give Mr Ted Wapia any money regarding the vehicle purchase as a part payment".

7. However it appears that the complainant did in fact made some instalment payments to the defendant. But it is not clear whether or not the payments were towards purchase of the vehicle.

8. The defendant on the other hand denied that the arrangement was for the sale and purchase of the vehicle but that it was for hire of the said vehicle. In paragraph five (5) of his affidavit, the defendants stated.

"On or about 16 March 2006, I was approached by Mr Markam Kapea in my house at Morata No two (2) asking me if I could hire my vehicle Reg No BBD 050 to the complainant on K500.00 per fortnight".

9. The defendant then stated that he agreed for the hire of his vehicle by the complainant. And in paragraph nine (9) of the affidavit, the defendant stated.

"while delivering the vehicle to the complainant at his Gerehu Stage two (2) residence we agreed in the presence of Mr Markam to the following:

(a) Complainant to register the vehicle including third party insurance cover

(b) The hire was on the condition of "Where it is as it is basis"

(c) Complainant to meet all maintenance and repair cost while the vehicle was in his custody.

(d) Complainant to pay K500.00 per fortnight on hire basis.

(e) Complainant to take full liability for any unforeseen events and costs arising out of the use of the vehicle while in his custody

(f) In the event of any breach of the hire agreement and understanding, the defendant shall have the absolute power to impound and remove the vehicle from the complainant without notice."

10. From evidence of both parties, it appears they did not come to a common understanding as to the nature of arrangements made between themselves over the vehicle, the subject of this proceedings. It seems the complainant was bargaining for the purchase of the vehicle with no purchase prise fixed. Whilst the defendant was of the view that the arrangement was for the hire of the said vehicle at K500.00 per fortnight with no hire duration fixed.

11. I have been trying to work out why there was such misunderstanding between the parties pertaining to the nature of arrangements over the vehicle and the only explanation which has become apparent is that the agent one Markam Kapea who was the middle man between the parties was actually mis-representing each of their intentions to the other, thus parties mis-understanding each other on the nature of the arrangement over the vehicle.

12. This being the case, I can only conclude that there was no meeting of the minds of the parties, hence no consensus and item and consequently no contract made between the parties. I am therefore reluctant to make orders for enforcement of any obligations, which may have arisen from the arrangements purportedly made by the parties.

13. However by reason of the fact that the defendant has taken back his vehicle, which is the subject of this proceedings, I find that the complainant is entitled to seek refund of monies spent on repair and maintenance of the vehicle. He has submitted a total claim of K1870.60.

14. This amount includes K850.00 he paid to the defendant for use of his vehicle. I do not think the complainant is entitled to seek refund of this amount of K850.00 because this were payments made for use of the vehicle for three (3) months. The complainant is therefore entitled to maintenance and repair cost of K1020.60.

15. Accordingly, I make the following orders:

(1) Defendant is hereby ordered to pay to the complainant the sum of K1020.60 being refund of repair and maintenance cost of his vehicle plus cost of K100.00 for and incidental to this proceeding.

Hence total of K1120.60

(2) This sum to be paid within one (1) month from the date of this order.

____________________________

David Keta Lawyers, for the Complainant
Mirupasi Lawyers, for the Defendant