Dai v Kespa [2007] PGDC 5; DC503 (28 April 2007)

DC503

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 2288 OF 2005

BETWEEN

JACOB DAI
Complainant

AND

EDWARD KESPA
Defendant

Port Moresby: J KATENGE
2006: 28 April

Complainant appeared in person
Defendant appeared in person

DECISION

28 April 2007

KATENGE J On April 2 2004 complainant filed a summons upon complaint against the Defendant, claiming four thousand kina (K4, 000.00) being nonpayment of debt for sale of a motor vehicle.

2. Early 2004, complainant at Hohola No. 5 made a public offer to sell his car Nissan Blue Bird, Sedan, white in colour, a Taxi registered number TI 352 for six thousand kina (K6, 000.00). Defendant who is also from the same area in the Western Highlands Province where the complainant is from had shown interest in the said motor vehicle and offered to buy it for four thousand kina (K4, 000.00). This was agreed to following lengthy discussions between the complainant and the defendant.

3. Few minutes later after the discussion the defendant paid one thousand kina (K1, 000.00) cash deposit and took the car away with a promise to pay off the three thousand kina (K3, 000.00) balance within four to six months time.

4. The defendant never kept his promise until a year later (not to mention number of requests to honor his promise were turned down). On April 2, 2005 complainant saw it appropriate to swear out a summons against the defendant, inviting him to show cause why he should not honor his contractual agreement.

5. Defendant, however, by way of cross-claim dated 28 September 2005, disputes liabilities and raises four points for deliberation and those are;

a. Agreement that initial agreement for sale was for three thousand kina (K3, 000.00) only and not four thousand kina (K4, 000.00) as claimed in the summons,

b. Agreement that three thousand kina (K3, 000.00) agreed as per agreement was to be paid at a later date and not on a specified date.

c. Agreement that, three thousand kina (K3, 000.00) agreed as per agreement was to be paid when the Taxi generated sufficient income from operation of Taxi services and finally, defendant

d. Argues that since he was misled or wrongly represented that the vehicle he bought was in a running condition when he spent seven thousand kina (K7, 000.00) for repair works, that seven thousand kina (K7, 000.00) should be reimbursed including one thousand kina

(K1, 000.00) cash deposit.

6. As the defence argument speaks for itself that since he had incurred seven thousand kina (K7, 000.00) in repair works, he should not pay the three thousand (K3, 000.00) owed and instead complainant should reimburse four thousand kina (K4, 000.00) repair costs inclusive of one thousand kina (K1, 000.00) cash deposit. Basically this is what the defendant in his cross-claim, claims.

7. There are two questions I need to consider in the light of these arguments.

1. Firstly, whether an agreement had been reached for sale and purchase of a motor vehicle between the complainant and the defendant.

2. Whether the car which is the subject matter of this litigation was in a running condition when sold.

8. Issue one (1). Following an understanding reached between the two defendant paid a deposit of one thousand kina (K1, 000.00) cash and took away the car is an indication that an agreement was reached.

9. Question as to how much was agreed to is put aside because defendant argues that car was sold to him for three thousand kina (K3, 000.00) which was to be paid at a later date. Complainant, however argues that the car was sold for four thousand kina (K4, 000.00) and of that one thousand kina (K1, 000.00) cash was deposited and took the car away.

10. Once the defendant had taken away the car after paying one thousand kina (K1, 000.00) cash deposit the act clearly speaks out for itself that there was an agreement reached between the complainant and the defendant for a sale and a purchase of a motor vehicle.

11. Issue two (2). Here, defence argues that the car was in a write off condition when taken off the hands of the complainant. This is what the defence alleges, but they have not given evidence on the manner of movement. Whether the car was driven away or towed, this piece of evidence is lacked. Defendant had not given evidence on how he moved the car from the complainant’s premises. This is a failed argument.

12. On the other hand, there is evidence that car was last registered on the 19 February, 2004 and sold on 2 April 2004 is only one (1) month, one (1) week and six (6) days difference. As this being the case its bit hard to determine whether the car was in fact in a write off condition at the material time it was sold. Whilst having borne this in mind and considering the fore mentioned observation that the defendant had failed to provide factual evidence that the vehicle was in a write off condition when sold, I find that the car was not in a write off condition. This then becomes the answer that the car was driven away on the material time of its sale.

13. Final question that I had forgotten to mention earlier in this judgment is, whether defence cross claim be allowed to proceed as claimed; that is the seven thousand kina (K7, 000.00) for repair works. Since I have arrived at a negative answer for Issue number two (2) above, I find that its of no significance embarking on that issue.

14. According to material evidence I have before this court, I find that repair works to the named vehicle commenced on 25 July 2004. This is three (3) months twenty three (23) days after the subject car was sold. Since the named car first exchanged hands on 2 April 2004, it had been driven since till its repair works were carried out on the 25 July 2004. Cars as one can see as opposed to other commodity goods its subject to wear and tear any day, any time, especially a second had motor vehicle. Three (3) months twenty three days of running a motor vehicle in my view, especially a second hand one is suffice to warrant to repair works to be carried out, (not to mention repair works to injuries sustained as a result of hit and run, etc). From this observation I am of the view that defendant’s expenses incurred in carrying out repair works commenced on 25 July 2004, is seen to have fallen into the normal wear and tear category.

On the basis of this observation I find that the defendant’s cross claim should not stand.

15. Based on the foregoing reasons, I enter judgment for the complainant in the sum of three thousand kina (K3, 000.00) being balance of the unpaid contractual amount of four thousand kina (K4, 000.00) of which one thousand kina (K1, 000.00) was already deposited when collecting the motor vehicle which is the subject matter of this case. I finally order that the sum ordered is paid within four (4) months as of the date of judgment.

No costs awarded.

_________________________

Complainant in person
Defendant in person