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Hocten v Joshua [2024] VUSC 148; Civil Case 300 of 2022 (22 April 2024)

IN THE SUPREME COURT OF
Civil
THE REPUBLIC OF VANUATU
Case No. 22/300 SC/CIVL
(Civil Jurisdiction)


BETWEEN:


Paul Hocten
Claimant


AND:


Kevin Joshua
Defendant


Date of Trial: 2 June 2023

Before: Justice V.M. Trief

In Attendance: Claimant – Mr L. Malantugun

Defendant – Ms J. Tari

Date of Decision: 22 April 2024


JUDGMENT


  1. Introduction
  1. The Claimant Paul Hocten is seeking payment of the alleged balance of the purchase price of a motor vehicle pursuant to the parties’ oral contract. After trial, each party filed closing submissions. This is the judgment.
  1. Background
  1. Mr Hocten resides at Nambatri area in Port Vila.
  2. The Defendant Kevin Joshua resides at Erakor Half Road area, just outside Port Vila.
  3. In January 2017, the parties orally agreed that Mr Hocten purchase a Nissan Patrol truck for Mr Joshua from Carpenter Motors in Port Vila and Mr Joshua would repay him by way of instalment payments. Mr Joshua took possession of the truck and shipped it to Malo island.
  4. By the Claim, Mr Hocten alleges that the truck that Mr Joshua chose at Carpenter Motors in Port Vila was worth VT5,200,000. It is also alleged that in November 2020, the parties signed a written undertaking that Mr Joshua would repay Mr Hocten VT50,000 every fortnight, commencing on 15 November 2020 until completion. Mr Hocten is seeking repayment of the remaining balance.
  5. The Claim is disputed. By the Defence Mr Joshua alleged that he shipped the truck to Malo island but it had continuous maintenance issues therefore in around March 2021, he shipped the truck back to Port Vila. When Mr Hocten refused to accept the truck, he returned it to Carpenter Motors. He has made instalment payments of over VT1,000,000 but was not given receipts. Further, that the written undertaking was for repayment of VT50,000 fortnightly but Mr Joshua explained that the amount was too high so all those present (Mr and Mrs Hocten, Mr and Mrs Joshua and a Mr Joseph Kasso) agreed to fortnightly repayments of VT25,000.
  6. The truck has never been registered in Mr Joshua’s name.
  1. The Law
  1. Section 3 of the Sale of Goods Act 1893 (UK) (the ‘Sale of Goods Act’) provides as follows:
    1. Subject to the provisions of this Act and of any statute in that behalf, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties.

Provided that nothing in this section shall affect the law relating to corporations.


(my emphasis)

  1. Section 17 of the Sale of Goods Act provides as follows:
    1. (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.

(my emphasis)


  1. Subsection 19(1) of the Sale of Goods Act provides as follows:
    1. (1) Where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled.

(my emphasis)

  1. Section 49 of the Sale of Goods Act provides as follows:
    1. (1) Where, under a contract of sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods.

(2) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract.

(3) Nothing in this section shall prejudice the right of the seller in Scotland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be.

(my emphasis)

  1. Evidence
  1. Mr Hocten relied on his Sworn statement filed on 14 February 2022 [Exhibit C1]. He deposed that in January 2017, Mr Joshua asked him (Mr Hocten) to purchase a car for him and that he (Mr Joshua) would repay him afterwards. He then took Mr Joshua to Carpenter Motors to choose a car. Mr Joshua chose a car worth VT5,200,00, and he bought it for Mr Joshua.
  2. He deposed that Mr Joshua has repaid him VT390,000 and the remaining balance is VT4,810,000.
  3. Further, that Mr Joshua promised to pay him VT50,000 every 15th day and last day of the month until the amount was completely paid. Their contract was formalised in a written undertaking signed on 9 November 2020 in which Mr Joshua (Borrower) promised to repay him (Mr Hocten, Lender) the amount of VT4,810,000 by way of Vt50,000 instalment payments on the 15th and last day of every month starting from 15 November 2020 until completion of payment [copy attached as Annexure “PH1”].
  4. In cross-examination, it was put to Mr Hocten that the truck has never been transferred to Mr Joshua. He replied that he told Mr Joshua that the truck would stay in his (Mr Hocten’s) name until Mr Joshua had completed payment for it, then he would transfer it to Mr Joshua.
  5. He agreed that when he bought the truck, he and Mr Joshua did not discuss the amount for Mr Joshua’s instalment payments, only that Mr Joshua would pay him at the end of each month. They did not sign a written agreement because they were good friends and trusted each other.
  6. He agreed that he said the truck is no longer working and that it is at Carpenter Motors. He knows that Mr Joshua works at the Immigration Department. He agreed that in January 2017, Mr Joshua helped him clear the paperwork for the crew on two ships that he brought into Vanuatu. He denied putting on a feast for the ships that he invited Mr Joshua to and that he told Mr Joshua that night that because Mr Joshua helped him, that he would buy him a truck. He agreed that the very next day, they went together to Carpenter Motors and he bought the truck. He said that their discussion was that Mr Joshua would take the truck and pay him by instalments.
  7. It was put to Mr Hocten that 6 people were present when the parties met on 9 November 2020. He said only 5 were present. He said the fifth person uses both names, “Joseph Kasso” and “Joseph Yato”. He agreed that when Mr and Mrs Joshua arrived at his house, he gave them the document. He agreed that they asked for some time to read it. It was put to him that they did not agree with the amount repaid which was stated in the document, or the repayment amount. He said, no, they read the document, signed it and then they asked for the repayment amount to be VT25,000. He agreed that Mr Joshua signed the undertaking then asked to reduce the repayment amount to VT25,000, and that he agreed with VT25,000 repayment amount. He stated that he provided receipts to Mr Joshua, but then agreed that he had not attached any to his sworn statement. He stated that Mr Joshua asked him to purchase the truck.
  8. In re-examination, Mr Hocten stated that he put on a feast in December for one ship, and purchased the truck in January. He stated that when Mr and Mrs Joshua came to his house, he gave them the undertaking document, they read it and then signed it – he did not force them and they did not argue. He stated that he refused to take the truck from Mr Joshua because the truck is not working.
  9. Mr Joshua relied on his Sworn statement filed on 5 August 2022 [Exhibit D1]. He deposed that in January 2017, Mr Hocten told him that he (Mr Hocten) could buy a truck for him and he pay for it slowly. The two of them visited Carpenter Motors and Mr Joshua chose a Nissan Patrol truck. He did not know whether or not Mr Hocten paid for it; he took the key, drove it away and shipped it to Malo island.
  10. He deposed that the poor road conditions on Malo resulted in too many maintenance issues for the truck so in March 2021, he shipped the truck back to Port Vila. He tried to return the truck to Mr Hocten but he refused, telling him to pay for it slowly. He has paid over VT1,000,000 to Mr Hocten but never been provided receipts. He attached a breakdown showing the dates and amounts of VT1,890,000 paid to Mr Hocten from 20 April 2017 to 15 August 2021 [Annexure “KJ2]. From 30 October 2020 to 30 July 2021, he made fortnightly payments of VT25,000. He also attached a copy of the registration book for the truck – a Nissan Patrol truck, registration number 17796 – in which the owners are named as Paul and Janet Hoctene [Annexure “KJ3”]. .
  11. Mr Joshua deposed that after he had signed the written undertaking, he realised that the VT50,000 amount was not correct. He told Mr Hocten that he could not pay VT50,000 every 15 days so they verbally agreed that the would pay VT25,000 every fortnight pay day. He stopped his instalment payments when he realised he did not have ownership agreement or papers for the truck and that Mr Hocten could take back the truck at any time. He has paid for some repairs for the truck by Carpenter Motors and then will give the truck back to Mr Hocten. He knows Mr Hocten because he rented a house from Mr Hocten’s father. When Mr Hocten set up his businesses, he used Mr Joshua a lot to facilitate the entry into Vanuatu of his employees.
  12. In cross-examination, Mr Joshua agreed that Mr Hocten did not threaten him with a piece of wood or a gun to sign the written undertaking. He agreed that he was an educated Government officer. He agreed that he signed the undertaking after reading it. He said that he told Mr Hocten he would pay VT25,000 every 15 days before he signed the undertaking. He agreed that subsequently, he paid Mr Hocten VT25,000 every 15 days. He agreed that he faced many maintenance issues for the truck because of the poor road conditions on Malo. He agreed that he had not completed payment to Mr Hocten for the truck, even though he had signed the written undertaking. He agreed that his viva voce evidence in Court about attending a function by Mr Hocten where they spoke about Mr Hocten buying him a truck was not in his sworn statement.
  13. In re-examination, Mr Joshua stated that after he read the written undertaking document, he asked to get legal advice but was refused. Even though no piece of wood or gun was held to him, he felt from how and what was said that he was forced to sign it. He asked for legal advice but was refused. He was at an area belonging to someone else and understood how they were talking to him.
  14. He stated that the poor road conditions on Malo resulted in maintenance issues for the truck. When the area secretary came for payment of business licence, that was when he found out that the truck was not registered to him, but still to Mr Hocten. So, he shipped the truck back to Vila for repair and to return it to Mr Hocten, and stopped making payment to Mr Hocten.
  1. Discussion
  1. I accept for the purpose of this case that the Sale of Goods Act 1893 (UK) is an Act of general application which applies in Vanuatu: ANZ Bank (Vanuatu) Limited v Marchand [2001] VUCA 2.
  2. In a claim for breach of contract, the claimant must establish that the parties had a contract, what the terms of the agreement were and that the contract was breached.
  3. Under s. 3 of the Sale of Goods Act, a contract for the sale of goods may be made in writing or orally, and partly in writing and orally, or may be implied from the conduct of the parties.
  4. I find that in January 2017, Mr Hocten purchased a Nissan Patrol single cabin truck, registration no. 17796 for VT5,200,000 from Carpenter Motors. It was a truck, not a car as pleaded in the Claim.
  5. It was disputed as to whether Mr Hocten offered to purchase a truck for Mr Joshua, or whether Mr Joshua approached Mr Hocten and asked him to buy a truck for him. It is not material to decide this as whoever made the first approach, the fact is that Mr Hocten purchased the truck after he and Mr Joshua visited Carpenter Motors together.
  6. It is clear that when the parties made their oral agreement in January 2017, they did not agree the amount and timing for Mr Joshua’s instalment payments to Mr Hocten of the VT5,200,000 purchase price of the truck. In Mr Joshua’s own evidence, he took possession of the truck and shipped it to Malo island without even asking if Mr Hocten had paid for the truck!
  7. It is accepted that Mr Joshua no longer has possession of the truck. That after he had experienced many maintenance issues, he shipped the truck back to Vila but when Mr Hocten refused to take the truck from him, he left it at Carpenter Motors.
  8. In any event, Mr Hocten was the owner of the truck at all times.
  9. It was not until November 2020 that an effort was made to agree the amount and timing of Mr Joshua’s instalment payments.
  10. It is accepted that on 9 November 2020, the parties met at Mr Hocten’s house and signed a ‘written undertaking’ as to Mr Joshua’s instalment payments.
  11. I find on Mr Joshua’s evidence that he wanted to get legal advice but felt intimidated and pressured to sign that undertaking. Further, that he said at the meeting that VT50,000 was too high and he could only pay VT25,000 each instalment. Mr Hocten accepted in cross-examination that he verbally agreed to VT25,000 instalments. Mr Joshua’s evidence was that he made fortnightly VT25,000 payments from 15 November 2020 onwards.
  12. In the circumstances, I find that the written undertaking dated 9 November 2020 was signed under duress. In the circumstances, Mr Hocten cannot rely on the written undertaking.
  13. Mr Hocten’s case was that Mr Joshua has only repaid the amount of VT390,000 referred to in the written undertaking. However, Mr Joshua’s evidence was that he had paid over VT1,000,000 to Mr Hocten but was never given receipts. In cross-examination, Mr Hocten agreed that he had not attached any receipts to his sworn statement. In the circumstances, I prefer Mr Joshua’s evidence that he was not provided receipts but has paid VT1,890,000 to Mr Hocten.
  14. Subsection 17(1) of the Sale of Goods Act provides that where there is a contract for the sale of a specific good, the property in the good is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
  15. In ascertaining the intention of the parties, the Court shall have regard to the terms of the contract, the conduct of the parties and the circumstances of the case: subs. 17(2), Sale of Goods Act.
  16. Mr Hocten stated in cross-examination that he told Mr Joshua that the truck would stay in his (Mr Hocten’s) name until Mr Joshua had completed payment for it, then he would transfer it to Mr Joshua. This was a condition imposed by the seller: subs. 19(1), Sale of Goods Act. Accordingly, notwithstanding the delivery of the truck to the buyer (Mr Joshua), the property in the truck would not pass to Mr Joshua until that condition had been fulfilled, namely, that Mr Joshua had completed payment of its purchase price: subs. 19(1), Sale of Goods Act.
  17. Subsection 49(1) of the Sale of Goods Act provides that a seller may maintain an action against a buyer for the price of a good where, under a contract of sale, the property in the goods has: (i) passed to the buyer; and (ii) the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract.
  18. In the present matter, the property in the truck has never passed to Mr Joshua as he has not fulfilled the condition imposed by Mr Hocten, namely, to complete payment for the truck then Mr Hocten would transfer its ownership to him. In the circumstances, Mr Hocten does not have the right to bring an action against Mr Joshua for the balance of the price of the truck.
  19. For the reasons given, Mr Hocten has failed to prove the Claim on the balance of probabilities.
  1. Result and Decision
  1. The Claim is dismissed.
  2. The Claimant is to pay the Defendant’s costs as agreed or taxed by the Master. Once set, the costs are to be paid within 28 days.

DATED at Port Vila this 22nd day of April 2024

BY THE COURT


.................................................

Justice Viran Molisa Trief

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