Orekavala v Pelike [2007] PGDC 28; DC511 (7 May 2007)

DC511

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 60 OF 2007

BETWEEN

ESSO OREKAVALA
Complainant

AND

WARASO PELIKE
Defendant

Goroka: F MANUE
2007: April 19, 20; May 07

CIVIL - Sale of a car – whether there was a major defect on it – whether the defect was disclosed to the complainant. Return of the car – monies paid partially refunded, whether there was a breach of agreement.

Cases Cited
Nil

References
Nil

Counsel
Complainant: In Person
Defendant: In Person

07 May 2007

REASONS FOR DECISION

F Manue: The complainant comes to Court to seek an order for the balance of the money which he paid to the defendant. The money in the sum of K7, 000.00 was paid to the defendant and upon return of the vehicle a Toyota Hilux 4 x 4 Registration Number HAA-56, the defendant only refunded K3, 200.00 while the remaining K3, 800.00 is still outstandingly owed to him.

2. The issues are whether there was a major defect on the said vehicle and if there was, whether the complainant was either made aware or aware of it before he purchased the vehicle.

3. Secondly, whether the defendant agreed to refund the complainants money upon the return of his vehicle.

4. The complainant gave evidence and called one other witness, who is a mechanic. His qualifications has not been verified.

5. The complainant said he is a Secondary school teacher, now teaching at Okapa Provincial High School.

6. Prior to moving into Eastern Highlands he had been teaching in the Morobe Province. While in Morobe Province and prior to taking up his teaching position in Okapa, he had made up his mind to buy a good 4 x 4 vehicle, so that he could use it on the Okapa road and into town. Having that in mind he asked friends including his brother in law, Benny Yebure to try and look for a good 4 wheel drive vehicle in order for him to purchase.

7. He said Benny located one vehicle in 2006 Christmas and when the Complainant came he was shown the vehicle owned by the defendant.

8. He was told by his “Tambu” that the vehicle is being sold for K7, 000.00.

9. He said the parties meet in town and the complainant was told that the vehicle had little defects and the price tag was K7, 000.00.

10. He said he had no knowledge about cars and that he did not know how to drive. He knew not any qualified mechanic in town to assist him asses the quality of the vehicle but he engaged Sitong to assist him.

11. He said in Sitong’s assessment, the vehicle was good, even without proper checking and testing it.

12. On those basis he paid K7, 000.00 into the defendants BSP bank account.

13. On Friday he took possession of the vehicle after paying the monies. On Saturday the next day he and his witness Sitoneg who is a mechanic and who drove the car to Zogozoi river where it was driven into the river bed to wash it. Later he said they tried to drive it out but became slippery. Then they attempted to engage into the 4 wheel drive but that did not work either. It was then that they discovered the defect in that the 4 wheel drive was malfunctional.

14. On the same day, the vehicle was returned to the defendant. The major defect was pointed out to the defendant who was surprise himself.

15. The complainant further stated that he did not mind other minor defects. He was prepared to do those repairs. He had spent monies in doing some welding and that he had bought a new battery to the vehicle.

16. At the time the vehicle was returned the defendant agreed to refund the complainant’s money without much dispute or challenges over the discovered defect.

17. He under took to repay the K7, 000.00 but to date he was only paid K3, 200.00.

18. The mechanic witness€ stated that he drove test the vehicle after the complainant took possession of it and found that the 4 wheel drive was malfunctional. He discovered that on Saturday when he was attempting to drive the vehicle out of the Zokozoi river bed. He said after washing the vehicle, he attempted to drive out but it became slippery. He then engaged the 4 wheel driver but discovered that it was not functioning. He said prior to taking possession of the vehicle, the complainant and himself only checked the electrical parts of the car. They did not test drive it, as the car key was with the defendants wife, who was not there.

19. The defendant testified on his own behalf and called witness who was a mechanic by profession.

20. He stated that his vehicle was hired out to a road construction firm which was working on Okuk Highway when he was approached by the complainant who offered to buy the vehicle. He arranged to repossess it from the road construction firm.

21. He said the complainant and his mechanic checked the car and then test drove it.

22. They did a Statutory Declaration finalizing the sale agreement. The complainant deposited the money K7, 000.00 into his account and took possession of the car.

23. The vehicle was then returned on Saturday, which was a Sabbath to him and not much was conversed between them.

24. He said he told the complainant that they should talk preferably on Monday although he was told by the complainant that he had to travel to Okapa on Sunday.

25. On Monday he told the complainant that his car was ok and refunded only K3, 200.00. He said he will repay the remainder or balance in May 2007 during the coffee season.

26. The second defence witness testified that he is a qualified mechanic and is employed by the Civil Aviation Department as an Airport Inspector. He testified that he had the vehicle of the defendant repaired and had it road worthy before handing the vehicle to the defendant.

27. Prior to delivering the vehicle to the defendant he said he had tested the vehicle including the 4 wheel drive of the vehicle. The 4 wheel drive was working then. He stated the said vehicle was repaired by him in all aspects of road worthiness in between February and July 2006.

28. I first discuss the question of whether the said vehicle had a major defect namely that the 4 wheel drive was malfunctional when it is engaged.

29. Evidence by the complainant was that the defect was not disclosed to him. It was detected after he had paid for it and when attempting to use it.

30. The defendant by contrast says that it was checked and tested prior to the complainant paying and taking possession of it.

31. Having heard from the parties, I find that initially the complainant and his mechanic did check the physical appearance of the vehicle. There is also evidence that they checked the electrical components and devices of the vehicle. Having physically inspected the vehicle, he was satisfied generally that it was value for his money. However, they were denied the process of test driving it, so that he could feel how it runs and hear the sound of the engine. They were denied such because the defendants wife had taken the car key away.

32. In my view had the complainant been given the opportunity to test drive he would have discovered the major defect. Also, I do not think that the defect was disclosed to the complainant.

33. I assume that the defendant took it for granted that the 4 wheel drive was in good order on the basis that it was in good working condition since July 2006 and that it was at that point in time being used by the road construction firm.

34. In addition, there is no evidence that rebut to the claim of the defect by the complainant that the mechanical component of the 4 wheel drive was effective and functioning immediately prior to the complainant taking possession of the vehicle.

35. The evidence of the defence mechanic witness is good but that, that was in July 2006 and anything could have happened on the 4 wheel component of the vehicle from that time to the time of this transaction. It is advisable that prior to making payments, inspections, physically and mechanically be done by competent professions prior to sealing a deal.

36. I find that although the complainant was satisfied with the general condition of the vehicle, when he decided to buy the said car, he was not made known nor was he aware of the major defect of the said motor vehicle.

37. Upon discovering the major defect, the car was returned.

38. In my view, the return of the vehicle signifies a termination of the agreement. That agreement has been terminated because it was flawed in that one party did not disclose to the other the defects of the goods he was selling. The complainant had accepted the general condition of the vehicle and had he been informed of the defect the scenario could have different.

39. Since the defendant has refunded part of the money the complainant is entitled for the remainder of the balance.

40. There is evidence, he spent money for a new battery and welding. Complainant had to travel into town to conduct his cases, so transport cots were also incurred. Having discussed those issues, I find on the balance of probability that the complainant is made out.

41. I made orders accordingly.

Complainant: In Person
Defendant: In Person