Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1106 OF 2012
BETWEEN:
TIMIL L. TAPE
Plaintiff
AND:
TOYOTA TSUSHO (PNG) LTD, TRADING AS ELA MOTORS
Defendant
Waigani: Davani .J
2014: 17th July, 6th August,
2015: ---3rd February,
SALE OF GOODS - plaintiff purchased bus – bus covered by warranty – engine defective during period of warranty – engine replaced by defendant
SALE OF GOODS – Warranty not a contract – plaintiff claims breach of warranty – claims damages – plaintiff not entitled to damages
PRACTICE AND PROCEDURE – Plaintiff relies on Goods Act – did not plead provisions of Goods Act – there must be specific pleading of statute and full particularization of claim
Facts:
The plaintiff purchased a 25 seater bus from the defendant. The bus was covered by a 3 month warranty. After a few weeks with the defendant, the bus began emitting black smoke. This happened during the warranty period. The plaintiff returned the bus and demanded a new bus. The defendant however, did not replace the bus with a new one because that condition was not covered by the warranty. The Defendant replaced and fitted a new engine to the bus at no cost to the plaintiff.
The plaintiff however, claims unconscionable conduct by the defendant and demands payment of damages for loss of business income during the period the bus was in the defendant's workshop.
Held:
Cases cited:
Nil
Other References
Ritchie's NSW Supreme Court Rules
Counsel:
Mr S. Japson, for the Plaintiff
Mr T. Anis, for the Defendant
DECISION
3rd February, 2015
Background facts
Evidence
A. for the plaintiff
- Affidavit of Timil L. Tape, the plaintiff, sworn on 12th December, 2012 and filed on 13th December, 2012, marked exhibit 'A' for the plaintiff;
- Affidavit of Timil L. Tape, the plaintiff, sworn and filed on 14th October, 2013, marked exhibit 'B' for the plaintiff.
B. for the defendant
- Affidavit of Willard Stephen, sworn on 8th October, 2013 and filed on 9th October, 2013, marked exhibit '1' for the defendant;
- Affidavit of Jose Verroya sworn on 28th April, 2014 and filed on 29th April, 2014, marked exhibit '2' for the defendant.
Plaintiff's case
Defendant's case
- that it did not give an assurance that a new engine was to be replaced within 45 to 60 days
- that by its letter of 30th March, 2012 to the plaintiff, the defendant advised that a new engine would arrive within 45 to 60 days, to be fitted to the bus
- that it advised the plaintiff that although the Warranty did not include labour costs necessary to refit the engine, that the defendant would bear the labour costs including any corrections to install the new engine, just as a way of enhancing its customer service relationship.
- that it had always kept the plaintiff informed of the delay in awaiting shipment of the engine from the manufacturer in Japan and which explanation the plaintiff accepted.
- that by the plaintiff's letter to the defendant of 30th July, 2012 to the defendant, the plaintiff advised that he had changed his mind and that he wanted the bus back after the new engine had been fitted.
- that by the same letter of 30th July, 2012, the plaintiff stated that if there were any complications within 3 months of the bus's return to him, that he would hold the defendant responsible and to repair the bus.
- that by its letter of 15th October, 2012 to the plaintiff, the defendant confirmed it being in regular contact with the plaintiff and amongst others, had fitted in a new engine to the bus at no cost to the plaintiff.
- that after the engine was fitted into the bus and returned to the plaintiff, that the plaintiff accepted the bus
- that by the plaintiff's conduct in accepting the bus and the new engine including the terms in the letter sent to him by the defendant, dated 15th October, 2012, that the plaintiff is estopped from making claims for loss of income.
Issues
i. whether the defendant had breached the terms of its warranty or warranty implied pursuant to the Sale of Goods Act as to merchantable quality and/or implied condition as to fitness of the bus pursuant to the same statute?
ii. whether the plaintiff is estopped by his actions/conduct?
iii. if liability is established, what would be the appropriate damages allowable under law based on what is being claimed?
Analysis of evidence and the law and issues
"12. The defendant was in breach of an implied warranty that the bus was of merchantable quality and further in breach of implied condition to fitness of the bus under the Goods Act 1951".
(i) Lack of pleading of specific provisions of the Goods Act
Does the non-pleading of ss. 15 and 53 of the Goods Act affect the plaintiff's case in any way?
13. The breach of implied warranties as to merchantable quality and implied condition as to fitness of the bus are sufficient grounds to give a new bus to the plaintiff or alternatively set aside the contractual transaction and does refund the plaintiff's purchase price but the defendant did not accept either one of them.
"6. The defendant denies par. 12 of the Statement of Claim.
7. In answer to paragraph 13 of the statement of claim, the defendant;
i. denies the allegations concerning breach of implied warranties as to merchantable quality and implied condition as to fitness;
ii. says that it explained to the plaintiff the reasons why a new bus could not be given to the plaintiff and the plaintiff accepted the explanation;
iii. says that with respect to the allegation concerning refund of the purchase price, the plaintiff not only sought refund but also sought compensation for alleged loss of income;
iv. Does not admit the balance of the matters alleged."
"14. Matters for specific pleading. (15/3)
In a defence or subsequent pleading the party pleading shall plead specifically any matter, for example, performance, release, any statute of limitation, fraud, or any fact showing illegality-
(a) Which he alleges makes any claim, defence or other case of the opposite party not maintainable; or
(b) Which, if not pleaded specifically, may take the opposite party by surprise; or
(c) Which raises matters of fact not arising out of the preceding pleadings."
"[15.13] Matters for specific pleading
13. (1) the plaintiff shall, in his statement of claim, plead specifically any matter which,if not pleaded specifically, may take the defendant by surprise.
(2) In a defence or subsequent pleading the party pleading shall plead specifically any matter, for example, performance, release, any statute of limitation, extinction under Division 1 of Part 4 of the Limitation Act, 1969, of a right or title, voluntary assumption of risk, causation of accident by mechanical defect not known to, or discoverable by, the defendant, fraud or any fact showing illegality –
(a) which he alleges makes any claim, defence or other case of the opposite party not maintainable;
(b) which, if not pleaded specially, may take the opposite party by surprise; or
(c) which raises matters of fact not arising out of the preceding, pleading."
"The requirement for specific pleading – a particular application for a wider principle." The requirement for specific pleading, particularly of any matters that might take the other party by surprise, complements many other rules designed to define the matters in issue and promote the "just, quick and cheap" disposal of proceedings... The consequence of the specific pleading requirement is that neither party can merely traverse.
"NOTES
[15.13.1] The requirement of specific pleading – a particular application of a wider principle. The requirement for specific pleading, particularly of any matters that might take the other party by surprise, complements many other rules designed to define the matters in issue and promote the "just, quick and cheap" disposal of proceedings. Those rules include the statement of overriding purpose in Pt 1 r 3, the provisions of Pt 15 r 2 and Pt 15 A) (relating to the definition and reasonableness of matters in issue) and the costs sanctions in Pt 52A rr 43, 43A. The consequent of the specific pleading requirement is that neither party can merely traverse the other's allegations where the party's true case involves either some positive assertion of fact, some special claim (such as a statutory cause of action or defence) or a claim that the other party's case is bad in law: Attorney General v. Lord Mayor of Sheffield (1912) 106 LT 367. The purpose of the requirement is to give the other party proper opportunity to prepare and present its case: Bright v. Sampson & Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346; Re Robinson Settlement; Grant v. Hobbs [1912] UKLawRpCh 40; [1912] 1 Ch 717 at 728. The philosophy underlying the purpose of the requirement is that the interests of justice are best serviced by ensuring the real issues in dispute are litigated in a proper, timely and efficient manner. The ramifications of this philosophy for the proper conduct of litigation are illustrated in the observations of Allsop J in White v. Overland BC 200105643; [2001] FCA 1333 at [4] Allsop J said;
"... the parties should take steps to ensure that all relevant parties to the dispute are cognizant of what the issues are... where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party...ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. To paraphrase Roscoe Pound from "The Causes of Popular Dissatisfaction with the Administration of Justice" (1906) 29 ABA Rep 395 at 404-6, the "sporting theory of justice" (1906) 29 ABA Rep 395 at 404-6, the "sporting theory of justice" and any behavioral manifestation of it should be seen as a survival, or better, relic, of the days when a lawsuit was a fight between two clans; cf Jackamarra v. Krakouer (1998) 195 CLR 516 at 526-7; 153 ALR 276 at 283 – 4 per Gummow and Hayne JJ. Representatives do not owe duties to the other side's client. They owe duties to their own client. But no one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false... In the long run, the only consequence of keeping issues hidden or not clearly indentifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties...
The same point is illustrated by the decision in Nowlan v. Marson Tansport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116; 34 MVR 495 and Malone v. NSW National Parks and Wildlife Service BC200105899; [2001] NSWCA 345, where the Court of Appeal explicitly approved Allsop J's comments and allowed an appeal on the basis of further evidence on a factual issue that has not been specifically put in contest at the hearing below. See also Glover v. Australian Ultra Concrete Floors Pty Ltd BC200301878: [2003] NSWCA 80 (corroborative further evidence admitted on appeal, to rebut oral evidence of fabrication.)"
"[15.13.2] Matters for specific pleading – general examples. The plaintiff should plead matters relied upon in aggravation of damages. Millington v. Loring (1880) 6 QBD 190; Whitney v. Moignard [1890] UKLawRpKQB 57; (1890) 24 QBD 630. All matters of jurisdiction or excuse must be specially pleaded (Attorney General v. Lord Mayor of Sheffield (1912) 106 LT 367; Johnstone v. Pedlar [1921] UKHL 1; [1921] 2 AC 262); so must all defences of illegality or nullity: Thorby v. Goldberg [1964] HCA 41; (1964) 112 CLR 597 at 617; Davie v. New Merton Board Mills [1956] 1 All ER 379; [1956] 1 WLR 233; Castles v. Freidman Settlement; Gant v. Hobbs [1912] UKLawRpCh 40; [1912] 1 Ch 717 (moneylending legislation defence). Estoppel must be pleaded: Coppinger v. Norton [1902] 2 Ir R 232 and see also [15.13.4]. A defence of statutory authority must be pleaded: Coburn v. Collings [1887] UKLawRpCh 58; (1887) 35 Ch D 373; Hayward v. Lely (1887) 56 LT 418. Release must be pleaded: Proudfoot v. Stubbens (1886) 2 WN (NSW) 46. Payment must be pleaded. Young v. Queensland Trustees Ltd (1956) 99 CLR 560; [1956] ALR 939. Other matters which should be specially pleaded include a defence of non est factum (Gallie v. Lee [1971]. AC 1004); a defence raising the Statute of Frauds or its modern equivalents (Clarke v. Callow (1876) 46 LJQB 53; Olley v. Fisher [1886] UKLawRpCh 228; (1886) 34 Ch D 367); an allegation of fundamental breach: Hunt & Winterbottom (West of England) Ltd v. RRS (Parcels) Ltd [1962] 1 QB 617. Contributory negligence must be pleaded: Pt 15 r 14. The burden of proving a failure to mitigate lies on the defendant: Wenkart v. Pitman (1998) 46 NSWLR 502; TCN Channel 9 Pty Ltd v. Hayden Enterprises at 738. Accordingly, failure to mitigate damages should be pleaded – at least
where the matters relied upon go beyond matters alleged in the plaintiff's claim: Plato Films Ltd v. Speidel [1961] Ac 1090 at 1105, 1145."
(my emphasis)
(ii) Letters from Ela Motors to the plaintiff
"despite this fact, I have decided to change my mind and have my bus back, after the engine is replaced. I therefore request as soon as the part arrives, have it replaced and return my bus."
"in relation to my proposed actions in my earlier letters, I reserve my right to take any of the action if I wish to do so. As such, my position relates only to return of my bus after the faulty engine is replaced without any further or other undertakings.
I look forward to the return of my bus after it is fixed.
I also put on you on notice that, if the bus faces any complication within 3 months after it is fixed and returned, and if such complication
arises without any fault of mine, I will hold Ela Motors responsible to have it fixed."
(my emphasis)
"a. the replacement engine has been received and fitted to the vehicle;
b. the vehicle has been road tested to ensure no further issues (as encompassed in our letter to you dated 30th March, 2012) are present and the engine is now in good order;
c. Ela Motors value your custom (sic) and loyalty and as a matter of meeting customer satisfaction and good will, Ela Motors has rectified the issues with the vehicle's engine by ordering a replacement engine;
d. All costs of reinstallation and fitment of the replacement engine have been met by Ela Motors;
e. Ela Motors will also provide a warranty for period of 3 months or 5,000 kilometers whichever comes first (from the date of taking
possession of the vehicle) specifically for the engine."
(my emphasis)
iii. The Warranty
"Basic coverage period;
"Toyota warrants that it will either repair or replace any part that Toyota supplies that is defective in material or workmanship under
normal use except those terms listed under "what is not covered" for a period of 24 months or 50,000,00 kilometers (30, 000 miles),
whichever comes first."
(my emphasis)
"Factors beyond the manufacturer's control
Lack of maintenance or use of wrong fuel, oil or lubbes
Maintenance is owners' expense
i. that there was a breach of warranty
ii. that the defendant's actions were unconscionable based on an unequal bargaining power in that the defendants wielded power when it maintained its position not to accede to the plaintiff's request to replace the bus.
iv. Whether a warranty is a contract
"The Concise Law Dictionary 7th Edition defines warranty at page 343 as follows;
"A guaranty or assurance. An agreement with reference to goods of which are subject of a contract of sale, but collateral to the main purpose of such contract, breach of which gives rise to a claim for damages, but not a right to reject the goods and treat the contract as repudiated (Sale of Goods Act 1979 s. 61(1)).
..."
At page 413 of the book WORDS AND PHRASES legally defined, Volume 4: R-Z warranty is defined as follows;
The term 'warranty' is not defined in the [Food Act 1984], but both at common law and by statute it has been contrasted with the term 'condition' when applied to the law of contract. It may be defined as a provision which is subsidiary or collateral to the main purpose of the contract, a breach of which gives the innocent party a right to damages but not a right to treat the contract as at an end. (18 Halsbury's Laws (4th edn) par 1299 n).
'Warranty is one of the most ill-used expressions in the legal dictionary, but in its essence it is contractual in nature and must be pleaded in terms sufficient to assert that contractual relationship. How a statement in a letter that a valuer has accomplished his task can support an allegation that by that letter a contract came into existence I cannot understand. The document is completely inconsistent with the conception of any contractual intent in writing. This is one of those cases where the word 'warranty' has been used, as it so frequently is, to try to manufacture a cause of action by calling something a warranty which on its face is clearly not contractual. Warranty is something collateral or incidental or collateral.' Finnegan v. Allen [1943] 1 KB 425 at 430, CA per Lord Greene MR.
...
(3) Conditions, warranties and intermediate terms
(a) STATEMENT OF THE DISTINCTION English law has for some considerable time recognized a distinction between two classes of contractual terms; conditions and warranties. "Condition" is here used (in its promissory sense) to refer to a contractual terms, the breach of which gives the injured party the right to rescind the contract. Of course he need not rescind but may instead affirm; and he can claim damages whether he affirms or rescinds. A warranty, on the other hand, is a term "the breach of which gives rise to a claim for damages but not to a right...to treat the contract as repudiated. The injured party can generally set up the damages to which he is entitled by reason of a breach of warranty in diminution or extinction of the price and if they are equal to, or exceed the price he will not have to pay anything. Such an outcome may seem to resemble rescission (in the sense of refusal to pay); but the process differs from rescission in that it requires the injured party to prove both the breach and his loss, while rescission requires him to prove no more that the breach.
(my emphasis)
"Toyota warrants that it will either repair or replace any part that Toyota supplies that is defective in material or workmanship under normal use..."
1. Under the terms of the Warranty, the defendant can replace a defective engine with a new one;
2. the plaintiff cannot raise and rely on sections 12 and 53 of the Goods Act, without firstly pleading them and fully particularising;
3. the plaintiff is estopped from raising the argument that the defendant refused to return the bus to him.
Formal Orders;
2. the plaintiff will pay the defendant's costs of the proceedings, to be taxed if not agreed.
___________________________________________________________
Japson & Associates Lawyers: Lawyers for the plaintiff
Bradshaw Lawyers: Lawyers for the defendant
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2015/2.html