Puruno v Koi [1987] PGSC 22; SC345 (18 December 1987)

Unreported Supreme Court Decisions

SC345

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC APP NO. 41 OF 1986
BETWEEN: AKILO ROYUPE PURUNO
APPELLANT
AND: NIXON KOI
RESPONDENT

Waigani

Bredmeyer Woods Los JJ
28 August 1987
18 December 1987

CONTRACT - Sale of goods - Whether delivery has taken place - Rule in Browne -v- Dunn - Goods Act (Ch. 251) s. 18.

Cases Cited

Allied Pastoral Holdings Pty. Ltd. -v- Commissioner of Taxation (1983) 1 N.S.W.R. 1.

Browne -v- Dunn (1894) 6 R 67.

Counsel

J. Pakau, for the appellant.

J. Shepherd, for the respondent.

Cur. adv. vult.

18 December 1987.

BREDMEYER J: This is a dispute over the sale of a truck. The purchaser Akilo Puruno claimed that he paid Nixon Koi K7,000 for the purchase of a tipper truck in October 1979 and that he never got delivery. He also claimed K1,000 paid for repairs and K58.70 for an insurance policy both paid before he got delivery. The defendant acknowledged receipt of K7,000 and said that it was a part payment of K10,000 the agreed purchase price, that the purchaser got delivery and he counter claimed that K3,000 was still owing. The case was tried in Mt. Hagen and the purchaser won before Mr. Jacob Toroken, a Grade 5 Magistrate, in July 1985. On appeal before Amet J. that decision was reversed. The judge found that the purchaser had received delivery of the truck and that the agreed price was K10,000, of which K3,000 was unpaid. He entered judgment for the defendant for K3,000. No new evidence was heard by Amet J. or by this court.

The plaintiff, Mr. Puruno, won a contract for the hire of a truck to Works and Supply. The contract was to commence in two weeks time. It was thus imperative that he purchase a vehicle quickly. He made an oral agreement with Nixon Koi to purchase one of his tipper trucks. The only persons present were the plaintiff, his friend Mapia Poyia who gave evidence on his behalf, and Nixon Koi. Puruno gave evidence that he paid K7,000. Koi told him that the truck would be repaired and made roadworthy in a weeks time. Puruno then went to Tomba where Koi lived to tell a man named Koil Koroba that he had purchased the vehicle "and to get it down", presumably down to Mt. Hagen to get it repaired as per the agreement. Five days later the plaintiff saw Nixon Koi who told him the car was with Ela Motors and that he had asked that company to fix it.

Thereafter on the plaintiff's evidence he called to see Nixon Koi on several occasions to see if the vehicle was fixed. Sometimes Nixon was not home, other times he repeated his promise that the vehicle would be fixed. On the last occasions Nixon Koi drove him to Ela Motors. The manager told Koi it would cost K2,000 to fix it and that he needed a deposit. The plaintiff that day paid K1,000 to Ela Motors. The date was 19 June 1980. He produced a receipt from Ela Motors and his bank statement showing the payment. Koi told Ela Motors that he would pay K1,000 the next day, as his share, but did not do so. The plaintiff said he never received the vehicle from Ela Motors.

The defendant gave evidence that he agreed to sell one of his two tipper trucks for K10,000. He agreed to accept K7,000 down and the balance K3,000 in six months time. He told the plaintiff to select a truck and to tell his staff to take it to the workshop for a service only and to allow registration to be transferred. Three days later the plaintiff told Koi that the motor vehicle was in the workshop and that the plaintiff's driver had damaged it. Koi told him the responsibility was his. The plaintiff said the workshop charged K2,000. He would pay half and he wanted Koi to pay the other half. Koi said he was still owed K3,000.

There are two issues here: Did the plaintiff get delivery, and what was the agreed price?

Did the plaintiff get delivery of the truck? What were the terms of the contract about delivery? Under s. 18 of the Goods Act (Ch. 251) the property in goods passes from the buyer to the seller when the parties intend it to be transferred and that depends on the terms of the contract - the oral contract in this case - the conduct of the parties, and the circumstances of the case. Under s. 20 of the Act the risk passes with the property, i.e. the goods remain at the seller's risk until the property in the goods is transferred to the buyer.

The learned magistrate found for the plaintiff that delivery had not been made, and the learned judge, on appeal, found that delivery had taken place. In each case the decision was based on the probabilities rather than the demeanour and credibility of witnesses.

I do not propose to review all the evidence on the issue I wish to say that I consider the dates are important. The plaintiff said he paid the K7,000 to the defendant in 1979. His witness, Poyia, also said it was 1979. They gave no precise date in 1979 but the complaint drafted by his lawyer recited 30 October 1979. No other witness gave evidence of the precise date so I consider that we are entitled to accept the date as stated in the complaint. The plaintiff paid K1,000 to Ela Motors towards repairs on 19 June 1980. That date was proved by documentary evidence. I consider it highly unlikely that a purchaser who has paid K7,000 for a vehicle, over seven-tenths of the price on his evidence, and has a National Works contract for the hire of a vehicle which he wishes to fulfil, would wait 8 1/2 months for the delivery of the vehicle. I could understand him waiting a week or two at the most for delivery while repairs were being done, but not 8 1/2 months before he calls on Ela Motors and finds out the extent of the repairs outstanding. I think it probable that he did take delivery of the vehicle within a short time of payment of the K7,000 and that some time later his driver damaged the vehicle requiring K2,000 worth of repairs. I consider the learned judge on appeal was entitled to prefer the defendant's evidence that possession of the vehicle was taken by the plaintiff and that his driver damaged it.

The plaintiff's evidence on the price was that the defendant said the price was K10,000 after the vehicle had been repaired and made roadworthy. In cross examination he said the same thing, and then that the price would be fixed from K10,000 downwards after it had been repaired. His witness who was present at the discussions with the defendant gave the same evidence that the defendant would fix the price at between K7,000 and K10,000 after the repairs.

The defendant gave evidence that the agreed price was K10,000 and he accepted K7,000 down and gave the plaintiff six months to pay the balance of K3,000. Amet J. accepted the defendant's version. I consider that there has been a failure by counsel on both sides before the trial magistrate to observe the rule in Browne -v- Dunn. That rule is that if a party intends to contradict a witness by other evidence he must put that contradiction to the witness in cross examination to give him a chance of explaining the contradiction. Failure to do so can lead to one or more of about seven consequences.

Browne -v- Dunn (1894) 6 R 67 was a House of Lords decision reported in an obscure series of law reports known as "The Reports" which was published 1893-95. That series is not held in the Supreme Court library; neither is the case published in the All England Reports Reprint. The case itself is unavailable to me but extracts are quoted by Hunt J. in Allied Pastoral Holdings Pty. Ltd. -v- Commissioner of Taxation (1983) 1 N.S.W.R. 1 at p. 17. The best judicial discussion of the rule is by Hunt J. in that case at pp. 15-27 and the best textbook discussion is found in Cross on Evidence (3rd Australian edition), paras 9.61-66.

In this case the plaintiff failed to cross examine the defendant and put to him that the price was to be fixed by him at between K7,000 and K10,000 after repairs; and the defendant failed to cross examine the plaintiff and his witness that the agreed price was K10,000 to be paid K7,000 down and the balance to be paid in six months. One could argue that the failure on each side cancels out but I think not. the defendant bore the onus of proof on the counter claim that the agreed price was K10,000, to be paid as stated. The plaintiff had two witnesses for his version, the defendant only one, himself. the defendant's counsel failed to cross examine the two witnesses on his version that K3,000 was agreed to be paid in six months time. He is thus exposed to the comment that his client's evidence was a departure from instructions and a recent invention. Neither the trial magistrate or Amet J. said anything about the demeanour or creditworthiness of the witnesses. Amet J. held for the defendant on this issue on the probabilities of his evidence. I am unable to come to the same conclusion. There are two witnesses for the plaintiff against one for the defendant, the defendant carries the onus of proof on this issue, the defendant's evidence is open to the adverse comment I have made though his failure to cross examine, and neither version strikes me as more probable. I find the defendant's counter-claim not proved.

I would allow the appeal in part, affirm the decision of Amet J. that the plaintiff's claim fails but reverse his decision of judgment for the defendant for K3,000 and costs. The result is that both claim and counter-claim fails. Each party should bear his own costs in all three courts.

I would like to draw the appellant's attention to three procedural matters in the conduct of this appeal. The first is that the appeal book contains two backsheets for documents filed in the court. Backsheets need not and should not be reproducted in appeal books, see Supreme Court Rules Order 7 Rule 43(f). Secondly we expect a written extract of argument see Order 11 Rules 18-21 which we did not get it in this case. Thirdly the appeal book contained 15 photostat pages of the magistrate's handwritten transcript. Although the rules are silent on the point, I will not accept handwritten depositions in the Supreme Court. I have accepted, and struggled to read, handwritten depositions when hearing appeals in the National Court but I will not accept them in the Supreme Court. This is the highest court in the land and it is an insult to it to be offered lengthy handwritten material. The appellant must get the depositions typed. We are indebted to Mr. Shepherd, counsel for the respondent, for handing us a typed set at the outset of argument.

WOODS J: This is an appeal against a decision of the National Court which upheld an appeal from the District Court. The history of this matter is that in February 1982 in the District Court at Mount Hagen, Mr. Puruno claimed the sum of K8,058.70 from Nixon Koi being for moneys he had paid out for the purchase of a tipper 6000 truck from Mr. Koi. In the claim, Mr. Puruno referred to an agreement for sale in October 1979. Mr. Koi filed a Defence and Counter Claim admitting an agreement for sale for K10,000, admitting receiving K7,000 as a deposit, and stating that the complainant took delivery and failed to pay the K3,000 balance of purchase moneys.

The case was heard by the Magistrate on the 14th May and 25th July 1983 and he decided in favour of the complainant Mr. Puruno in the amount of K8,000. Mr. Koi appealed to the National Court. The National Court upheld the appeal and set aside the order for K8,000 damages in favour of Mr. Puruno and further ordered that judgment be entered for K3,000 in favour of Mr. Koi. Mr. Puruno has now appealed to this Court.

The evidence presented to the Magistrate by the complainant was that he spoke to Mr. Nixon Koi who had some tipper trucks for sale. Following these discussions there was an agreement to sell although none of this was in writing and Mr. Puruno stated that he wrote out a cheque for K7,000 and there was a reference to the truck being sold for K10,000 once it was repaired. Mr. Puruno indicated that he was in a hurry to get the vehicle to enable him to complete a Work's tender. The next thing that Puruno says is that he was looking for the vehicle and it was at Ela Motors. Eventually Mr. Puruno went to Ela Motors and he said that he wrote out a cheque for K1,000 to help get the vehicle repaired. On evidence presented to this court, this K1,000 appears to have been paid in June 1980. Mr. Puruno says that he has never received delivery of the vehicle.

The defendant, Mr. Koi, agrees that Puruno came to buy a truck off him and he says that there was an agreed price of K10,000 and that he accepted K7,000 down with K3,000 to pay. He agrees the vehicle was to be taken to a workshop to get the vehicle serviced and to change the registration. However the defendant says that Mr. Puruno actually collected the vehicle but he had an accident with it and it had to be repaired. Another witness George Oik gave evidence. However his evidence was very vague, merely that someone took delivery of the vehicle and that he did not really know anything about the arrangements for the sale.

The onus is on the plaintiff to prove his case to the satisfaction of the Court. I find that in this case the evidence presented to the magistrate is too vague. The court was asked to assume too much. There is no clear evidence of an agreement, merely talk by both people of discussions. Initially in his evidence, Mr. Puruno was talking about the urgency of getting delivery of this vehicle in October 1979. Yet the next thing on his evidence is that there is no delivery and the vehicle is at Ela Motors in June 1980 and he is paying K1,000 to Ela Motors for repairs. In so far as the Court is expected to assume and sort out its own history of the matter this suggests a probability that Mr. Puruno was responsible for the car while it was at Ela Motors. Surely evidence could have been brought from Ela Motors to show who had put the vehicle in there and who Ela Motors looked to for responsibility for paying for any repairs or whatever work was to be done to the vehicle. However no such evidence was brought.

Of course, the simplest method to verify ownership and transfer is to produce registration papers and if not the owner's copies then a search from the Motor Traffic office or the Third Party Insurance Company to ascertain who is officially regarded as the owner of the vehicle. However this was not done.

The plaintiff was legally represented at all times so he cannot claim ignorance of the legal procedures. With respect to the plaintiff's evidence about not taking delivery, the defendant Mr. Koi gave clear evidence that Mr. Puruno took delivery of the vehicle. And of course on top of Mr. Koi's evidence is the fact that the time lapse following Mr. Puruno's urgency to get the vehicle could suggest that Mr. Puruno may have taken delivery, whether in accordance with the agreement or otherwise.

The evidence from the plaintiff is not enough for a court to find that there has been an agreement which has failed through non delivery.

On the other hand, has the defendant Nixon Koi proved his counter claim? Has he satisfied the court that there was an agreement of K10,000 and that there is money still due under that agreement and that delivery took place? Mr. Koi produced no documentation to show there had been a transfer of the registration and then, with the evidence of K1,000 being paid for the vehicle for whatever reason by Mr. Puruno, one cannot really be sure as to who has paid what for what. So from the point of view of the defendant, the evidence is not sufficient to satisfy the onus of the defendant on his counter claim.

The overall effect of all the evidence is great confusion. The court is not here to try and surmise the situation from vague facts. We can only take the evidence and find on the evidence. There was clearly evidence that would have been available to have assisted the court, namely evidence from Ela Motors and registration papers and a witness Koil Koroka who was at Tomba. However, none of this evidence was brought to the court. In the circumstances I must find that neither claim succeeds.

I would allow the appeal in part and concur with the orders of Bredmeyer J.

LOS J: I have an advantage of reading the judgment of Bredmeyer and Woods, JJ. With respect I agree with their Honours generally excepting their decision on the counter claim. I agree with Bredmeyer, J on the evidentiary aspect that a buyer who had paid seven-tenths of the purchase price could not have waited long to get delivery of the vehicle given the purpose and the pressing need for the vehicle. The time of delivery of the vehicle as appears from the evidence was when the final payment was made. However the purchaser took upon himself to effect delivery when at that time both the property and the risk were with the seller.

Surely the purchaser was in breach of the term of the agreement - delivery upon payment of the balance. But the seller it seems, had chosen not to challenge the delivery. Hence the risk and the property had passed to the buyer, notwithstanding the non-payment of the balance. The agreed price namely K10,000 still stood. The purchaser got what he wanted but the seller still had not received the final payment. In this respect I would dismiss the appeal and affirm the decision of Amet J.

Lawyer for the appellant: Joseph Pakau.

Lawyer for the respondent: K. Y. Kara.