Lawrence v Mate [2008] PGDC 65; DC715 (30 April 2008)

DC715

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

GFCi 11 of 2008

BETWEEN

MATHEW LAWRENCE
Complainant

AND

GAMATO MATE
Defendant

Goroka: M Gauli, PM
2008: April 29, 28, 30

CIVIL - Claims reimbursement and costs for selling defective engine – Complainant still in possession of the engine – Complainant repaired and maintained the engine – Engine ceased sometimes after it had been repaired and running – Defendant not liable.

Cases Cited:
Nil

References:
Nil

Counsels:
For the Complainant - In Person
For the Defendant - In Person

30 April 2008

DECISION OF THE COURT

M Gauli, PM: The complainant Mathew Lawrence claims that the defendant is indebted to him in the sum of K8, 343.00 since August 2007 for selling to him a mechanically defective and unworthy old Toyota Hiace bus engine for K3, 000.00. The complainant then expanded additional costs totalling K5, 343.00 on the engine and he claims that defendant is in debted to him in the total amount as claimed.

2. The complainant and his three witnesses John Bapka, John Watakaris and John Kondive gave evidence in Court. The defendant and his three witnesses Hamo Veho, Mote Moses and Albert Eti gave evidence in Court. Their evidence will be discussed as I discuss the issues.

3. There is no dispute that the defendant sold to the complainant the second hand engine at a cost of K3, 000.00 in about July or August 2007. There is no dispute that the engine had a fuel injector problem at the time of the sale. That injector was removed and given to another mechanic to repair it. And so at the time the engine was sold it was without the fuel injector.

4. There is dispute that the engine was not in a running condition when it was sold.

5. Issues:

i. Was the engine in running condition when sold to the complainant?

ii. Did the complainant use that engine at all?

iii. Is the defendant in debted to the complainant in the sum of K8, 343.00?

iv. Is the defendant liable to reimburse the complainant?

I now discuss the issues.

6. Issue No. 1: Was the engine in running condition when sold to the complainant?

The evidence of the complainant is that the engine was defective, unworthy or useless when it was sold to the complainant. The complainant Mathew Lawrence in his oral evidence said that after buying the engine he had his mechanic fitted the engine and it ran for five weeks before the engine broke down. In his affidavit evidence marked EXHIBIT ‘A’ he deposed that when he bought the engine the defendant told him that the engine was new, perfectly fine and mechanically working. The complainant and his mechanic John Kondive trusted the defendant’s word. However when the mechanic John Kondive tried to start the engine after fitting it to the vehicle, it did not start. When it was push started the mechanic found the gears failed to engage except just one gear. It was found that both the clutch and pressure plates have worn out. So he bought new parts and fitted them. The mechanic John Kondive told him that the entire engine was faulty and unworthy and not in good running condition. He bought new head gasket, water pump and injector pump. A week later the engine got working and the vehicle was up and running for one month before it broke down again. He then engaged another mechanic John Bapka to work on the vehicle. He found eleven faults with that engine. So they removed that engine and repaired the complainant’s original engine block and had the bus running again. He spent K1, 700.00 on labour costs and K3, 643.00 on parts beside the K3, 000.00 he paid the defendant for the engine.

7. The witness John Bapka, a tradesman motor mechanic deposed in his affidavit evidence marked EXHIBIT ‘B’ that in late July or early August 2007 the Complainant engaged him to fix the 2 L engine of a Toyota Hiace Bus which the other mechanic John Kondive had earlier worked on it. When John Bapka dismantled the engine he discovered there were defects on the engine components which includes – engine block scratched, piston heads (4) damaged, head gasket blown, water pump damaged, injector pump faulty, undersized crankshaft, oil pick up strainer damaged, piston pin bushes worn, piston rings worn, main and conrod bearings worn. The engine was practically of no use, it was dormant engine. So he had to repair the complainant’s original engine which he did after installing new parts and the vehicle is up and running.

8. The witness John Watakaris, a semi-skilled mechanic, deposed in his affidavit marked EXHIBIT ‘C’ that he assisted the qualified mechanic John Bapka in repairing the complainant’s engine. He said the entire engine was a complete mess and simply useless.

9. The witness John Kondive deposed in his affidavit evidence marked EXHIBIT ‘D’ that in late July or early August 2007 the defendant Gamato Mate told him that he was selling his old Toyota Hiace bus engine as he has fitted a new engine. Since the complainant was in need of the engine they both approached the defendant and bought the engine. That afternoon he fitted the engine but the engine failed to start. When it was eventually push started he found the gears could not engage. Next day upon checking the gear box he discovered the clutch and pressure plates were worn out. The complainant bought new parts and were fitted and the engine was functioning. He further found four cylinders missing, the engine over heating and engine oil dropped quickly. This was due to broken rings, worn out cylinder block, damaged water pump and damaged head gasket. The engine was unworthy. It was not in a good running condition as assured by the defendant. He then fitted the new parts in bought by the complainant and had the vehicle running on the road for a month before the engine ceased again. The witness confirmed during cross-examination that he went with the complainant and bought the engine, the defendant had removed the fuel injector because there was leaking from the engine block.

10. The defendant’s evidence basically is that the engine was in good running condition when he sold it to the complainant except for the problem with the fuel injector. He had that injector removed before he sold the engine and he informed the complainant and his mechanic John Kondive of it. There was no problem with shifting the gears nor was there over heating of the engine.

11. The witness Hamo Veho gave evidence that at times when he drove the defendant’s bus with that engine on, he never experienced the engine been over ehated or the gears failing to engage. The engine was in good running condition when they replaced it with the new engine.

12. The witness Mote Moses only gave evidence of him assisting the defendant and his boys in removing that engine from the bus to install the new engine. He had no idea if the engine they removed had mechanical problems.

13. The witness Albert Eti simply said that the defendant’s old engine was in a running condition when they removed it to fit in the new engine.

14. When the complainant went to buy the engine from the defendant, he went with a qualified mechanic John Kondive. The defendant told them that the engine was in a running condition. Defendant being a mechanic himself they trusted him. In the afternoon that same day they discovered the engine had some faults. They did not bother to return the engine to the defendant instead the complainant bought parts and had the engine repaired. The engine was running for a month before it ceased again.

15. If the defendant’s original engine was in good running condition except for the fuel injector, why did he opt to buy and fit in a new engine, when all he could have done was to fix or change the fuel injector which is much cheaper than buying a complete engine. I am not convinced that the defendant’s original engine was in running condition when he sold it to the complainant. I find on the balance of probabilities that the defendant opted for another engine because his original engine had defects but it was not worthless or useless.

16. Issue No. 2: Did the complainant use that engine at all?

There is evidence from the complainant and his witness John Kondive that he had the engine he bought from the defendant repaired and he used it for a month before the engine ceased again. The fact that the engine was repaired and running after appropriate pars were fitted in and been used for a month established without any doubt that the complainant did have the use of the engine that he bought from the defendant.

17. The engine having ceased after it had been running for a month, in my view, could not be said that it was because the engine was completely useless. There are number of possibilities why that engine ceased or broke down. It is possible that the parts that were fitted in may not have been the right parts. Or if they were right parts they may not have been properly fitted in by the first mechanic who worked on the engine. I am of this view because the mechanic John Bapka who dismantled that same engine after it ceased more or less identified the same faults in that engine. He described those damages as a complete mess. I am of the view that these damages resulted from unprofessional mechanical repairs been carried out by the earlier mechanic. The defendant could not be blamed for this damage to the engine.

18. I find that the complainant had the use of the engine he bought from the defendant. And I am of the view that the ceasing of the engine a month after it been repaired was possibly due to unprofessional mechanical repairs done on it by a qualified mechanic.

19. Issue No. 3: Is the defendant indebted to the Complainant in the sum of K8, 343.00?

Debts are monies one owes to another usually monies borrowed from the other person that have yet to be repaid. So the term ‘indebted’ means the borrowed monies that have not been repaid. Did the defendant borrow from the complainant the monies the subject of this proceedings? The answer is simply ‘No’. The defendant is not indebted to the complainant. Wrong terminology are been used here in this proceeding.

20. Issue No. 4: Is the defendant liable to reimburse the complainant?

The engine was not in a good running condition when it was sold to the complainant. At the time the engine was purchased and taken possession of, the complainant knew the engine was defective. This is because the defendant did inform him that there was fuel leakage in the engine so the fuel injector had been removed to be repaired. Apart from that problem the defendant told him that the vehicle was in good running condition. The complainant trusted the defendant but it was found that there were more problems with the engine than just the fuel injector.

21. The complainant having discovered that the engine had mechanical defects kept the engine and proceeded to repair the defective parts instead of returning it to the defendant. By proceeding to repair the defective engine indicates that the complainant had accepted the engine in the condition as it was. If he did not accept the engine in the condition as it was then all that he should have done was to return the engine and demand for the return of the money he paid. Then he would be entitled for the return of the exact amount he paid for the engine.

22. When the complainant proceeded to and made good repairs to the mechanically defective engine and having had used it for some length of time and the engine ceased due to the same or more serious mechanical defects, the defendant could not be held liable to reimburse the complainant for the purchase price nor the expenses on the repairs of the engine. If you want to be reimbursed you must return the defective, damaged or contaminated good to the seller. Failure to do so will result in no reimbursement. For the reasons I have alluded above I find the defendant not liable to reimburse the complainant of both his expenses and costs. And I order that the case be dismissed with parties meeting their own costs.

For the Complainant - In Person
For the Defendant - In Person