Vakautakakala v Motuliki [2023] TOSC 1 (6 January 2023)

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

CV 60 of 2021

BETWEEN :

PITA VAKAUTAKAKALA
Plaintiffs

AND :

TAFINGA MOTULIKI
Defendants

RULING UPON FORMAL PROOF

BEFORE: JUSTICE P. TUPOU KC

Appearances: Ms. Lesina Tonga for the Plaintiff
No appearance for the Defendant

Date of hearing: 9 December, 2022

The Proceedings

1. This action was commenced by the Plaintiff on 1 November, 2021. The Defendant was served on 18^th November, 2021 but did not file a defence. The Plaintiff requested a formal proof hearing and was heard on 9 December, 2022.
   
2. At the hearing, the Plaintiff confirmed that his claim was brought under a breach of contract and I have dealt with this action in that context.
   
3. After hearing the Plaintiff’s evidence, I granted judgment in his favour and said I would give a written ruling and I do so now.
   
4. The Plaintiff seeks recovery of a sum of $22,000 he paid the Defendant under a verbal agreement for the purchase of the Defendant’s vehicle.
   

The Evidence

5. The evidence was given by Pita Vakautakakala, the Plaintiff, via a written brief of evidence sworn on 30 November, 2021 and oral evidence on the day of the hearing. His evidence established the following.
   
6. The parties reached an agreement around March, 2019 for the Plaintiff to purchase the Defendant’s vehicle. The Plaintiff was told by the Defendant that the vehicle was a Toyota Hiace Diesel van 2011 with licence plate number L17419. That the engine, valve and sieve of the vehicle had been replaced and the vehicle was in good condition.
   
7. On 26 March, 2021, the parties agreed on a final cash price of $26,000 for the sale.
   
8. On the same day, the Plaintiff requested to take the vehicle for a test drive and to have his mechanic examine the vehicle. The Defendant demanded the full amount be paid first.
   
9. The Plaintiff agreed to pay $22,000 on the condition that if he decided to go ahead with the purchase, he would pay the balance of $4,000. The vehicle failed to start several times on the same day.
   
10. On 27 March, 2021, the Plaintiff had his mechanic scan the vehicle and a number of faults were detected, including, sensor failure, broken fuses and short circuit from the cold plug to relay.
    
11. The next day, the Plaintiff informed the Defendant of the problems he experienced and his mechanic’s opinion. The Defendant insisted they take the vehicle to Asco Motors for their mechanics to confirm they had fixed the vehicle.
    
12. At the Asco Motors, their mechanics confirmed what the Plaintiff’s mechanic had detected and it turned out that the vehicle was fixed by a different mechanic and not Asco Motors. It was confirmed that the vehicle was a 2007 not a 2011 model.
    
13. The parties agreed to cancel their agreement and for the Defendant to return the Plaintiff’s $22,000 the next day.
    
14. When the Plaintiff went to collect his money the next day, the Defendant refused citing he had seen a lawyer about the matter.
    
15. On 1 April, 2019^[1], Mr. Clive Edwards demanded the payment of $5,000 claiming that was the balance of the purchase price, on behalf of the Defendant. Principally, the demand claimed there was nothing wrong with the vehicle when it was handed over to the Plaintiff.
    
16. Ms. Tonga responded in a letter dated 2 April, 2019^[2], setting out the terms of the agreement as well as the cancellation and the parties’ consensual arrangement to return the Plaintiff’s money.
    
17. I have not considered exhibits “C” and “D” as they are hearsay evidence.
    
18. No further response was received from the Defendant’s counsel and the Plaintiff filed this action.
    
19. On the evidence I have heard, I am satisfied that the Plaintiff has established on the balance of probabilities that the Defendant breached their agreement and failed to return the $22,000 paid to him and I make the following orders;
    
    1. Judgment is hereby entered for the Plaintiff against the Defendant in the sum of $22,000.
       
    2. Together with interest thereon at the rate of 10% per annum from the date hereof to the date of payment.
       
    100. Costs to be agreed or taxed.
         
    4. The Plaintiff is to serve a copy of this Order on the Defendant within 14 days of its issuance from the Court.
       

P. Tupou KC
J U D G E

Nuku’alofa: 6 January, 2023

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^[1] Exhibit “A”
^[2] Exhibit “B”