Tiome v Westpac Banking Corporation [2006] VUCA 6; CAC 12-06 (1 June 2006)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Appellate Jurisdiction)

Civil Appeal Case No. 12 of 2006

BETWEEN:

MARIE TIOME
Appellant

AND:

WESTPAC BANKING CORPORATION
Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Patrick Treston
Hon. Justice Hamlison Bulu

Counsels: Mr. Saling Stephens for the Appellant
Mr. Nigel Morrison for the Respondent

Date of Hearing: 22 May 2006
Date of Decision: 1 June 2006

JUDGMENT

This is an appeal from a decision of the Supreme Court which dismissed the Appellant’s claim for damages, exemplary damages or alternatively an order for specific performance of an asset purchase agreement and costs. The Claim was filed on 10 December 2003 and judgment was delivered by the Supreme Court on 1 March 2006 dismissing the claim in its entirety and awarding costs to the Respondent.

The parties entered into an asset purchase agreement for a Toyota Hilux Pick Up motor vehicle on 17 March 2000. The Defendant advanced VT1,971,625 which was to be repaid by the Appellant to the Respondent by forty two monthly payments of VT69,000 commencing on 17 April 2000.

After August 2000, from time to time the Appellant was in arrears of payments (see page 55 of the Appeal Book) until the Respondent issued a Notice of Breach of Essential Conditions of Asset Purchase dated 20 May 2003 (see page 54) requiring rectification of the breach of unpaid payments amounting to VT157,000 on or before 27 May 2003 failing which recovery action would be taken. Payment was not made in accordance with this notice and the vehicle was repossessed by the Respondent on 16 July 2003.

The grounds of appeal were that the primary judge had erred in fact and law in that he failed to give any weight to the Appellant’s evidence and submissions in that there was no need to have issued the notice as there was no breach and that he wrongly dwelt on the issue of repudiation of the agreement which had not been pleaded in the defence and that he wrongly held that the evidence regarding service of notice upon the Appellant was reliable.

Clause 7.1 of the Agreement provided as follows:-

"7.1 Essential Terms

The Hirer acknowledges and agrees that the following are essential terms of this Agreement going to the root of this Agreement:-

(a) that the Hirer will pay punctually when due all moneys payable by it under this Agreement;

(b) that the Hirer will duly and punctually comply with its obligations under Clauses 5.2, 5.3, 5.4, 5.5, 5.7, 5.8, 5.9 and 7.9; and

(c) that if the Hirer fails to comply with any of its obligations under this Agreement (other than an obligation to pay moneys or an obligation referred to in paragraph (b)), the Hirer will comply with that obligation or remedy that failure to Westpac’s satisfaction within 7 days of notice from Westpac requiring it to comply with or remedy the same;

such that any breach of any of the essential terms referred to above will constitute a repudiation of this Agreement by the Hirer entitling Westpac to exercise its rights under or in connection with this Agreement (including without limitation the rights to terminate this Agreement, seize the goods and to recover the moneys stipulated in Clause 7.3)."

Clause 7.15 of the Agreement provided as follows:-

"7.15 Notices

All notices, requests, demands, consents, approvals, agreements or other communications to or by a party to this Agreement must be in writing, signed by a Manager of Westpac (if given or made by Westpac) or signed by the Hirer or a director, secretary, manager or executive of the Hirer (if given or made by the Hirer) and will be deemed to be duly given or made:

(a) (in the case of delivery in person or by post, facsimile transmission or cable) when delivered, received or left at the address of the recipient shown in this Agreement or any other address which it may have notified the sender, or

(b) (in the case of telex) on receipt by the sender of the answerback code of the recipient at the end of the transmission."

The primary judge held that through non-payment of instalments the Appellant had repudiated the Agreement entitling the Respondent to terminate it and that he was satisfied on the balance of probabilities that the notice had been served on the Appellant.

Clearly the Appellant had been in breach of an essential term of the Agreement in that all moneys payable under the Agreement had not been paid punctually since very early on in the Agreement. That remained the situation when the notice was issued and the Appellant failed to comply with the notice. That gave grounds for repudiation by the Respondent.

In addition the primary judge found as a fact that the notice had been properly served on the Appellant. Such a finding of fact is one that this Court is reluctant to interfere with and, from our consideration of the file and the judgment, it was clearly a finding which was available to the primary judge and was not against the weight of evidence. The primary judge was at pains to explain the basis for his finding of fact which we find unexceptional.

At the hearing before this Court the Appellant argued that a letter from the Respondent dated 26 June 2003 was a waiver of its earlier notice (see page 105). The full text of that letter is as follows:-

"26th June 2003

TO WHOM IT MAY CONCERN

Dear Sir/Madam

This letter authorizes the bearer to collect the full outstanding amount of debt as listed below, or failing that, to repossess the vehicle mentioned below:

ACCOUNT NUMBER : 2000012787

CUSTOMER : Mrs. Marie TIOME

TYPE OF VEHICLE : Toyota Hilux 4x2 Pick Up

REGISTRATION NO : T5145

COLOUR : White

Arrears Vatu

05 March 2003 : 19,000

05 April 2003 : 69,000

05 May 2003 : 69,000

Other expenses : 10,000

TOTAL : 167,000

Yours faithfully,

Lettis Napat

PERSONAL BUSINESS OFFICER"

We find that that letter does not constitute a waiver. It was a letter addressed to the person who was to repossess the vehicle or to the Appellant and could never in those circumstances constitute any waiver of the Respondents’ rights to repudiate. The submission is rejected.

For these reasons the appeal must fail, and it is accordingly dismissed.

The Appellant must pay the Respondent costs of this appeal.

DATED at Port Vila, this ... day of May 2006.

Hon. Vincent Lunabek, CJ
Hon. John W. von Doussa J
Hon. Daniel Fatiaki, J
Hon. Patrick I. Treston, J
Hon. Hamlison Bulu J