Kapeli v Piukala [2007] TOSC 11; CV 778-2002 (3 December 2007)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

CV 778 of 2002

BETWEEN:

TOMASI KAPELI
Plaintiff

AND:

KELEPI PIUKALA
Defendant

BEFORE THE HON. JUSTICE ANDREW

Counsel:
Mr. Kengike for the Plaintiff,
Mr. Tu’utafaiva for Defendant.

Date of hearing: 26 & 27 November 2007.
Date of judgment: 3 December 2007

JUDGMENT

The Plaintiff claims that he sold goods to the Defendant on the 25 November 2000 to the value of $3,955.00 and that there was an agreement that the defendant was to pay for the goods within three months. To-date it is alleged there has been no payment made.

Those goods and their values are alleged to be as follows:

1.	Chair Sofa value of	$500
2.	4 Chair sofa value	$400
3.	1 Clock value	$250
4.	3 Sandals value $35 each	$105
5.	1 C.D. player value of	$1,200
6.	Dining set value of	$1,200
7.	Transformer value of	$300
	TOTAL	= $3,955.00

The defendant agrees that he did buy goods from the plaintiff in the past but that at this time he had gone to the plaintiff’s home to purchase household goods for his daughter’s wedding. This was on the 24th November 2000. He says he gave the Plaintiff a bundle of cash which was between $2,000 and $3,000 and his daughter then selected the goods which she wanted and they were loaded into his van. He said these goods included a T.V. set and a transformer, a wardrobe, a double bed, a dining set and 6 chairs and a table plus 4 single seater sofas and one long sofa. The Plaintiff says they did not discuss the price of each item separately but that it was agreed that the money which he paid would cover these items taken.

The defendant says that when they took these goods home on that day, ie the 24th November 2000 they found out that some items were not suitable for the wedding and they took them back on the next day the 25th November. He says that the Plaintiff accepted the T.V. back and 4 sofas and the long sofa and a C.D. player and it was agreed between them that the Plaintiff could take some other goods. His daughter then selected a clock, some sandals and further that the Plaintiff agreed they could keep the sofas for no extra cost. He says the goods returned were matched with the goods then taken plus the Plaintiff had said they could retain the sofas.

The Defendant says that he heard nothing further from the Plaintiff until December 2001 when he went to see the Plaintiff to purchase some office equipment and it was then, to his surprise, that the Plaintiff told him he owed him the amount now claimed, that is $3,955.00. He says he wrote the Plaintiff a letter denying he owed him any money and he threw it on the Plaintiffs face. The Plaintiff denies this.

The Plaintiff says that he gave the defendant a letter of demand on the 27th April 2002 and that the defendant apologized to him saying that he had thought the goods were a gift and that the defendant apologized to him. This is denied.

The Plaintiff’s lawyer Mr Kengike gave evidence on which he said that he had met the defendant in the 14th November 2002 and the defendant said to him "I did not respond to your letter about the Plaintiff’s claim, because he is my relative and I will contact him and do not worry about your fees. I will pay your lawyer fees". This conversation is denied.

The Plaintiff called two witnesses who say they were at the Plaintiff’s home and they clearly heard the defendant say, on the 25th November 2000 that "he would pay the balance of the money within 3 months." The Plaintiff maintains that the agreement was to pay the full amount in 3 months. The Plaintiff agrees that money was paid by the defendant on the 24th November and goods were taken. He agrees that the T.V. and some goods were returned.

I make the following findings of fact.

There are no records in this case. There was reference to various letters having been sent but they have not been produced. The Plaintiff read from a diary which he says lists the goods purchased and the money owing. But he has not seen fit to produce that book. It is agreed that the defendant had paid the Plaintiff a considerable sum of money around this time. The Plaintiff says this was for other goods.

The confusion continues because it is not said how much money was handed over and it is not clear as to what this was for. It is a strange state of affairs when the Plaintiff does not make any demand for payment until April 2002. There is no record of any agreement to pay for the goods within three months. There seems to be no evidence of the value of each item.

There is evidence that goods were brought back on the 25th November and that there was a discussion about other goods being taken in exchange.

I think that in the circumstances where there are no records that all of this evidence is too vague to establish on balance that the defendant owned $3,955.00 for these goods said to be purchased on the 25th November 2000.

This is a long time ago.

There are no records.

It seems to one that there was a discussion on the 25th November about the exchange of goods. The Plaintiffs witnesses say that the defendant had said that he would pay the balance of the money within 3 months." It seems to me that this may have related to the difference between that money already paid and any amount owing after an adjustment with the goods exchanged. The witnesses did not say that they heard the Plaintiff agree to buy the goods within three months.

I accept that the Plaintiff genuinely believes that he is owed this money. But in the circumstances where this all happened over 7 years ago and there are no written records and there is confusion between goods being returned and exchanged and where the fact is that money had been paid at this time, I cannot be satisfied on balance that the defendant owed $3,955 for unsubstantiated items.

I do not think that the conversation between the defendant and Mr Kengike can necessarily be construed as an admission. The defendant is only saying that he will speak to the Plaintiff. It may be a reference to settling things between them but that might be a reference to settling the difference between money paid and goods exchanged. But that is only conjecture for I am left in doubt as to what happened.

In all of these circumstances I cannot be satisfied on the balance of probabilities that the defendant is indebted to the Plaintiff in this amount.

I dismiss the Plaintiffs claim.

Costs are awarded to the defendant.

NUKU'ALOFA: 3 December 2007

JUDGE