Neapo v Avifa [2007] PGDC 43; DC539 (16 April 2007)

DC539

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

GFCi 63 of 2005

BETWEEN

APO NEAPO
Complainant

AND

NEGI AVIFA
First Defendant

AND

CARSON PRATT SERVICES
Second Defendant

Goroka: M Gauli
2007: February 02; March 21; April 16

CIVIL - Claims civil debt of K10, 000.00 – Unpaid hire of a dump truck – Cross claim by Defendant – Reimbursement of fuel and maintenance costs.

Cases Cited
Nil

References
Nil

Counsel
Mr. D. Umba - For the Complainant
Mr. B. Koningi - For the Defendants

16 April 2007

DECISION OF THE COURT

M Gauli: The Complainant sued and claimed against the Defendants a sum of K10, 000.00 being for the hire of his vehicle in the year 2005. The defendant denies liability and makes a cross-claim against the complainant in the sum of K1, 237.10.

2. The brief facts are as follows. The Complainant is the owner of a Mazda 2.5 ton dump truck registration number LAA 421. The First Defendant is the employee of the Second Defendant as a driver. On or about the 07th April, 2005, the Complainant and the Defendants entered into a oral contract to hire the Complainant’s vehicle, the subject of this proceedings. The said dump truck was in the possession of the Defendants from 07th April to 27th May 2005. During the said period the Defendant made no payment to the Complainant and he withdrew the vehicle on 27th May. These facts are not in disputed.

3. The facts in dispute. The Complainant said that he let his truck on hire to the Defendant at a rate of K25.00 per hour. The vehicle was used and in possession of the Defendant for 50 days and the total hire amounts to K11, 250.00 but he abandoned the excess and only claims K10, 000.00 to fall within the jurisdiction of this Court.

4. The Defendant however claims that the hire rate was only K20.00 per hour. The vehicle suffered constant mechanical breakdowns during the period and the truck was only used for a total of 215 hours between 7th April to 28th May 2005 and the total amount of hire was K4, 300.00. The Defendant was supplying own fuel together with repair costs of the truck. These all amount to K5, 107.10 which is more than the total cost of the hire. And the Defendant claims that the Complainant owes him K1, 237.10 being the difference on the truck’s operating costs and the hourly payment on hire.

5. Based on the disputed facts there are three issues to be considered, and these are:

i. What were the actual terms of the contract of hire.

ii. What was the length of the hire of the truck.

iii. Whether the Complainant is responsible for the fuel and maintenance cost of the vehicle.

6. Issue No. 1: What were the actual terms of the contract of hire.

It is quite difficult to say what the actual terms of the contract of hire were where the agreement is oral and each party gives different versions of what the agreement should have been. The Complainant Apo Neapo gave evidence that the first defendant Negi Avifa approached him and told him that Mr. Bradly Jones of Carson Pratt Services sent him to hire the Complainant’s dump truck so the Complainant released his vehicle on 07 April 2005. The vehicle was in the custody and control of the Defendant seven days a week until 27 May 2005 when he retrieved the truck back for none payment of the hire. He said the agreed rate of the hire was K25.00 per hour. The First Defendant told him that they (Second Defendant) will hold the vehicle during the hire so he let the vehicle. The vehicle was being used to transport the defendant’s fuel for the road works in both Kainantu and Watabung and also for their workshop runs. The defendants agreed that they will provide their own fuel. There was no agreement as to who would be responsible for the costs of the repairs to the vehicle during the hire. The Complainant was surprised when he was given a bill of K5, 107.10 for fuel and maintenance cost of the vehicle.

7. The witness Seome Saiva is a close neighbour to both the Complainant Apo Neapo and the defendant Negi Avifa, they all reside at Faniufa. He gave evidence of witnessing the Complainant hiring out his dump truck to the defendant seven days a week and that the truck was always kept at the First Defendant’s (Negi Avifa) residence. He has no knowledge of the terms of the hire.

8. Mr. Negi Avifa, the only witness for the Defendants gave evidence that his employer the Second Defendant required work with a dump truck for its road maintenance contract in the Eastern Highlands province so he approached the Complainant. He said the Second Defendant’s standard terms of hire for 2.5 ton vehicle is K25.00 per hour for work actually done where the owner provides fuel and driver or K20.00 per hour where owner does not provide fuel and driver. These terms were explained to the Complainant. The Complainant did not have money to provide both fuel and driver so he handed the vehicle to Negi Avifa. Mr. N. Avifa kept the records of the actual hours the vehicle was used each day. The total hours the vehicle was in use was 215 hours at K20.00 per hour for a total amount of K4, 300.00.

9. He further gave evidence that the Complainant authorized Mr. N. Avifa to use fuel and oil from the Second Defendant. The vehicle suffered mechanical break downs on several occasions during the hire. Both the fuel and mechanical repair costs added up to K5, 107.10 which the Complainant is responsible to pay.

10. From the evidence as it stands the Complainant did not state what his hire rates were if he was providing fuel and driver or vise versa. All he said was that his rate was K25.00 per hour. The defendant has given his hourly hire rates where the owner either provides or does not provide both fuel and driver. On the balance of probabilities I accept the rates provided by the defendant. And I find that since the Complainant was not providing fuel and driver the rate the parties have agreed to was K20.00 per hour.

11. Throughout the hire the vehicle was in total control and custody of the defendants 24 hours a day. The vehicle was never retuned to the owner after each day the vehicle was been used. So long as the vehicle was in the custody of the defendant regardless of the vehicle been actually used or not that matters not. The facts that the defendant was in custody of the vehicle 24 hours a day, it will be deemed that the defendant was actually having the use of the Complainants either for the road contract he was involved in or for their other operations including their workshop runs. The Complainant only claims 9 hours a day instead of 24 hours. I allow the hire of 9 hours a day which is quite reasonable.

12. The rate of K20.00 hourly rate per day excluded fuel costs, in that the defendant was to provide his own fuel and driver according to the defendant’s evidence. I see no reason why the defendant had to charge the Complainant for the fuel cost. The defendant’s witness Negi Avifa contradicted himself in his evidence in that respect. The reduction of the hire rate takes care of the defendants fuel costs..

13. Regarding the mechanical repair costs of the vehicle during the hire, there is no evidence to show that the parties have agreed on who should be responsible for such expenses. Where the terms of an agreement are unclear, in my view, the person who is in custody and in use of the vehicle must bear any mechanical costs of the repairs unless the owner of the vehicle is informed of the mechanical faults and he is asked to meet the costs.

14. In any event the defendant has produced no documents from the workshops of the repairs done on the vehicle. The Complainant was not even informed of the mechanical problems the vehicle had during the hire. Even if the vehicle had mechanical break downs, there was no agreement that the complainant was to meet the repair costs which were to be off setted from the hire charge. I am not convinced by the defendant’s evidence of all the terms of the contract it alleged. I find on the balance of probabilities that the evidence of the Complainant to be more convincing than the defendant’s.

15. On the evidence as it stands, I find that the actual term of the contract the parties have agreed on was that the vehicle was hired at an hourly rate of K20.00 and that the defendant was to provide their own fuel and driver. And since the defendant was going to keep the vehicle 24 hours a day, the hire was for 9 hours a day.

16. Issue No. 2: What was the length of the hire of the truck.

There is no evidence of the period of time the defendant was to hire the truck for. My only view is that the truck was hired for the entire period of the defendant’s road constructions for the roads at Kainantu and Watabung. There was open length of time for the hire with no specific time frame. And so the period of hire would be from the day the vehicle was released to the defendant to the day the vehicle was retrieved by the Complainant, which was a total of 50 days.

17. Issue No. 3: Whether the complainant was responsible for the fuel and maintenance of the vehicle.

I have adequately discussed and covered this issue in discussion the Issue No. 1 above. The defendant’s evidence is that since the Complainant was unable to provide fuel and driver, the defendant’s standard rate of K20.00 per hour applies. This means that the defendant was to provide his own fuel and a driver at his own costs. Where the owner of the vehicle provides fuel and driver, the defendant was to pay the hire rate of K25.00 per hour. I find that from the evidence as provided before this Court, the Complainant is not responsible for the defendant’s fuel costs as that was taken care of itself in the reduction of the hourly hire rate.

18. In respect to the cost of the mechanical break downs of the vehicle during the hire, there was no agreement reached as to who would be responsible. Generally a vehicle hired out should be mechanically fit for hire. If the vehicle is mechanically un-road-worthy, those defects ought to be fixed by the owner before the person hiring it takes possession for use. The defendant’s evidence is that when the vehicle was on hire it encounters several mechanical break downs. He did not specify what those mechanical problems were nor did he produce job cards from the workshops as proof of the matters alleged. In the absence of such vital evidence I could not be convinced that the vehicle had mechanical break downs.

19. Even where the vehicle did experience the mechanical break downs, the Complainant was not been informed of in order to agree on who would meet the workshop costs. And if the complainant to meet those cost there was no agreement on how those costs would be met. If the vehicle did have break downs and the defendant went about his own way to repair the defects or faults at his own costs without first consulting the owners as to who is to meet the expenses, the complainant cannot be made responsible to re-imburse the defendant’s costs.

20. Where there is no clear agreement as to who would be responsible for the mechanical break down of the vehicle, if the vehicle does experienced the break downs while in use by the hirer and that the owner has not been informed of before the fault is repaired, the owner of the vehicle would not be responsible for the costs. The hirer or user would be responsible for the mechanical faults the vehicle encountered during the hire and while the vehicle was in the custody of and in use by the hirer.

21. From the discussions of the above issues I find that the parties have agreed on the hire rate of K20.00 per hour for 9 hours a day where the defendant provided his own fuel and driver and kept the vehicle 24 hours a day during the hire for a total of 50 days from 7 April to 27 May 2005 (K20.00 x 9 hrs x 50 days). I enter judgement for the Complainant in the sum of K9, 000.00 plus costs and interest at 8% per year from the date this action was field in Court to the date of this order.

22. As to the defendants cross-claim of K1, 237.10 being the balance of the back charge on the fuel and mechanical repair costs, I have found that there was no agreement upon which the defendant was authorized to back-charge the Complainant. This Court therefore dismisses the Defendant’s cross-claim against the Complainant.

For the Complainant – Mr. D. Umba of Umba Lawyers
For the Defendants – Mr. B. Koningi of Koningi Lawyers