Esera v Westbrook [2002] WSCA 5; 02 2002 (2 December 2002)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 2/2002

BETWEEN

FATA ESERA
c/- Peace Corps, Matautu, Apia.
Appellant

AND

GEORGE WESTBROOK
of Kamehameha Highway, Alea, Hawaii, Businessman.
Respondent

Coram: The Rt. Hon. Lord Cooke of Thorndon, President,
The Rt. Hon. Sir Maurice Casey
The Rt. Hon. Sir Gordon Bisson

Hearing: 27 November 2002

Counsel: P A Fepulea’i for Appellant
R Drake for Respondent

Judgment: 2 December 2002

JUDGMENT OF THE COURT
DELIVERED BY SIR MAURICE CASEY

[1] On 4 March 2002 the Chief Justice awarded possession of a 1991 Suzuki Geo-Tracker 4-wheel drive vehicle to the respondent in a claim by him in detinue for its return. He had sent two of them from Hawaii into the care of a friend in Apia intending to use them as rental vehicles. The friend proved to be dishonest and sold one of them to the appellant for $18,000 on 20 December 1991, afterwards disappearing. When the respondent discovered this, he made a demand for its return on 23 July 2001, but the appellant refused, claiming that he had purchased it in good faith for valuable consideration without notice of any defect in the seller’s title. Proceedings for its recovery were then launched, together with a claim for $8096 for its use for 92 days at $88 per day from 31 August 2001 to 30 November, even though the appellant had been in possession and used it as a family car for much longer. Various defences were raised but His Honour rightly rejected them and awarded the amount claimed.

[2] In this Court the appellant abandoned his appeals against the order for delivery of possession and costs, pursuing only an appeal against the award of damages. His counsel submitted that in the circumstances there should have been no award at all because the respondent did not proceed with his stated intention of using the vehicle commercially. In holding that the appellant should pay a reasonable hire for the vehicle, His Honour relied on Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 (CA) and Hillesden Securities Ltd v Ryjak Ltd and Anor [1938] 2 All ER 184. Mr Fepulea’i sought to distinguish them because they dealt with profit-earning chattels, but even where the goods were not in this category, the principle that the rightful owner is entitled to be paid for their use by a wrongdoer was recognised. In the Strand Electric and Engineering case an analogy was drawn with the ability of land-owner wrongly kept out of his or her land to claim a fair rental for it by way of mesne profits, even though the owner would not have been able to use it or let it to anyone else. The common-sense reason for this approach in regard to chattels (whether commercial or not) was put by Denning LJ at p 254:

"If the wrongdoer had asked the owner for permission to use the goods , the owner would be entitled to ask for a reasonable remuneration as the price of his permission. The wrongdoer cannot be better off because he did not ask for permission. He cannot be better off by doing wrong than he would be by doing right. He must therefore pay a reasonable hire."

[3] We agree with these comments, and the appellant’s main submission that no hire should have been awarded must be rejected. A question raised in the course of argument was whether the amount was reasonable. Counsel explained that the figure was based on the lowest of a number of quotations received from car hire companies in Apia, some of which were much higher. It seems that no issue was taken at the trial over the amount, the argument there being over liability, and the figure put forward in the statement of claim was accepted without reservation by His Honour. There is no evidence to show he was mistaken in this, and while there can be sympathy for the appellant as an innocent victim, the respondent did not press for the much higher amount which might have been justified for the whole fifteen months the appellant used the vehicle. The $8096 awarded represents a hire rate of under $20 per day for that period.

RESULT

The appeal is dismissed with costs of $1250 to the respondent together with disbursements to be fixed by the Registrar if the parties cannot agree.

Solicitors
Fepulea’i & Schuster Tamalagi for Appellant
Drake & Co Apia for Respondent