South Pacific Rentals v Unutoa [2004] WSDC 10 (10 December 2004)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

SOUTH PACIFIC RENTALS
a duly incorporated company having its registered office at Alafua
and trading as South Pac Rentals.
Plaintiff

AND:

SAMUEL UNUTOA
of Vaivase-uta, Safety Training Officer.
Defendant

Counsels: S. Hazelman for plaintiff
Defendant represents himself

Hearing: 8.12.2004
Decision: 10.12.2004

DECISION OF VAAI, DCJ

Preliminary matters:

Before proceeding to call the evidence in this case, I made a ruling that the statement of defence produced by the defendant to the Court just before the hearing commenced was to be disallowed. This was on the basis that plaintiff’s counsel objected to the defendant relying on it, and my having agreed that it was prejudicial to the plaintiff’s case.

Furthermore on an application by plaintiff’s counsel for judgment in favour of her client on the basis that the defendant did not on the documents produced by him have a legitimate defence, I declined the application because before any judgment is made, the plaintiff needed to prove its case to the necessary standard of proof.

This is an action brought by the plaintiff against the defendant on a breach of an agreement for the hiring of a 15-seater van by the defendant from the plaintiff company on the 31^st day of March 2004.

The facts:

The relevant material facts as I found from the evidence are quite straightforward and not in dispute as to the issue to be determined. On or about the 31^st day of March 2004, the defendant agreed to hire a 15-seater van from the plaintiff for a period of two days (i.e.) from the 31^st March 2004 to the 2^nd April 2004. The plaintiff’s ordinary rate for hiring out of a 15-seater van was $300 per day in the normal course of its rental car business. On this specific transaction however, the plaintiff offered the defendant a reduced rate for hiring of the particular 15 seater van (“the vehicle”) hired to the defendant of $190 per day for the reason that the vehicle was undergoing panelling repairs to its right side; otherwise the vehicle was mechanically sound. In accordance with the Rental Agreement document produced as “Exhibit P1” by the plaintiff, the agreement to which the defendant agreed to and signed before taking possession of the vehicle was on the following basic terms:

1. Type of vehicle - 15-seater van.

2. Period of hire - 2 days (10a.m. 31/03/04 to 10a.m. 2/04/04)

3. Hire rate: $190 per day.

4. Gas tank content was three quarters full and to be filled to a similar level when returned.
   

What actually happened was this; the defendant took possession of the vehicle at about 10a.m. on the 31^st day of March 2004 after payment of a sum of $380 (for the two days hire) and drove away with a companion named Sonny Chadwick. The vehicle was returned to the plaintiff’s premises not on the 2^nd April 2004, but on the 6^th April 2004 at around 3.30pm with the gas tank almost empty. As a result the plaintiff is claiming loss of usage of the vehicle for four days and five and a half hours due to the defendant’s returning of the vehicle later than the date of their original agreement, being 2^nd April 2004.

On the other hand, the defendant claims that the vehicle he hired from the plaintiff was at the time he took possession of it, not yet affixed with registration stickers to certify it as a licensed and registered vehicle for the appropriate licensing period. This point is admitted by the plaintiff and according to the plaintiff’s managing director, the registration stickers were already issued and were in her possession at that time, but had overlooked affixing them on the vehicle prior to the defendant taking possession of it. Unfortunately for the defendant, this piece of information did not help him at all when he was at Savaii. As it turned out, the defendant was on two occasions stopped and questioned in Savaii by the Police for driving in an apparently unlicensed vehicle. The defendant alleges that this caused some unnecessary inconvenience, frustrations and delays in his schedule while in Savaii. Surprisingly, he neither gave evidence in support of this, nor did he pursue the option of a counter-claim in presenting his case.

The defendant also made mention in the evidence produced on his behalf of two flat tyres to the vehicle in Upolu which also contributed to his Savaii trip being disrupted by a few hours. There is also evidence that the defendant purchased a new tyre in Savaii and the plaintiff in it’s director’s evidence advised that she informed the defendant to bring the receipt in support of his purchase to her in Apia, and he would be compensated. At the time of the hearing, no receipt had yet been received by the plaintiff from the defendant.

Essentially the defendant’s case is that whilst he concedes a breach of the agreement dated 31^st March 2004 by his late returning of the vehicle to the plaintiff, the plaintiff’s claim however in relation to the late returning of the vehicle, and the plaintiff’s legal fees should not succeed in totality against him because, firstly, the vehicle was not legally licensed at the time he took possession of it. As a result of this, he argues that the agreement was invalid. I have difficulty in agreeing with this submission because the allegation did not materially challenge the legality of the agreement. Moreover, a careful reading of Clause. 7 of the agreement seems to place the responsibility of ensuring that the registration certificates are affixed to the vehicle, on the defendant.

Secondly, because the vehicle tyres were in such poor condition, the vehicle was of such a standard that he did not get the quality of vehicle expected for the money he paid. Therefore, his inability to meet his schedule while in Savaii was a direct consequence of the sub-standard vehicle hired to him by the plaintiff.

Thirdly, he saw no reason for the plaintiff hiring a lawyer to settle this dispute and incurring legal fees, had the plaintiff been more receptive to his several attempts to settle out of court.

Issue:

The issue for the court to decide is whether or not the defendant is liable to the plaintiff for the losses it incurred and of which are claimed to be consequences of the defendant’s breach of their agreement of 31^st March 2004, in the circumstances of the facts of this case.

Analysis:

At the outset, I make mention of the fact that the defendant admits he breached the agreement he entered into with the plaintiff on 31^st March 2004. In fact he admits liability in the amount of $80.00 being the cost of petrol needed to replenish the vehicle’s petrol tank back to the level in which the agreement required it upon the vehicle’s return. The defendant also admits his liability to the plaintiff in the sum of $110.00 for the five and a half hours, part of the total time in which the vehicle was returned late, after the period agreed to of two days had expired. The defendant (whilst admitting liability for breaching the agreement in the late returning of the vehicle to the plaintiff four days after the agreed period of hire had elapsed) however denies that he owes the amount claimed by the plaintiff of $760.00. His denial stems from the grounds mentioned earlier. They are, the plaintiff should not have rented to him the van whilst in an unlicensed condition, and that the plaintiff knew of the poor condition of the tyres at the time the agreement was entered into, yet still hired it to the defendant. For these reasons the defendant claims that he ought to be liable for a lesser amount for the breach of agreement, but by how much lesser, no evidence was adduced at all to disclose a reduced amount of liability.

In my view, the defendant in having failed to file a counter-claim against the plaintiff, let alone provide on oath evidence in support of any amounts claimed from the plaintiff, he seems to be asking the court to infer or imply a variation of the contract terms; specifically in relation to the period of hiring of the vehicle. In other words, he is arguing that the agreement ought to be impliedly varied from the two days agreed to to the longer period he actually had possession of the vehicle, due to the delays and the frustrations he had been subjected to with the two flat tyres he had while in possession of the vehicle. Furthermore, there is also the humiliation he experienced when pulled over twice by the police in Savaii for driving without any registration stickers.

The defendant in arguing that, faces several obstacles in the court’s humble view. Firstly, he had an opportunity to check the vehicle’s registration before taking possession of it. Either he did and agreed to drive away without the proper registration stickers affixed, or he didn’t but decided to waive his right to insist on the stickers as per Clause 7 of the agreement dated 31^st March 2004. Even if I am mistaken in this view, the evidence does not show at all nor is there any suggestion by the defendant that, that state of affairs led him to revoke the agreement with the plaintiff.

Secondly, the plaintiff assisted with the first flat tyre, and it also submits that it has no actual control over the vehicle tyres once it was rented out. The plaintiff therefore argues (and I accept it), it ought not to be held responsible for the ordinary wear and tear of the tyres at the time the vehicle was in the possession of the defendant.

In the absence therefore of any evidence on which the Court can satisfy itself either of an express or implied variation of the agreement by the parties, or an implied revocation of the agreement by the defendant, I am not able to accept this argument by the defendant.

If anything, the evidence by the plaintiff is persuasive in the finding of fact that I have reached. That is, the defendant and his companion willingly accepted the vehicle in the condition in which they found it in, and at the reduced hire price he paid for of $190.00 per day. I prefer the evidence on behalf of the plaintiff from Ms. Carol Schmidt on this, which lends supports to the above finding. There was no complaint from the defendant after he and his friend saw and checked out the van. He accepted the reduced price per day of hire that he paid for the two days he agreed to hire the plaintiff’s vehicle. None of this evidence adduced by the plaintiff was rebutted by the defendant.

In the absence therefore of any agreement between the plaintiff and the defendant to vary the period of hire to more than two (2) days, I am unable to accept an argument on a variation of the hire agreement either expressly or impliedly. Consequently, I find that the failure of the defendant to return the vehicle on the 2^nd April 2004 as per the agreement of 31^st March 2004, is a breach of the contract between the plaintiff and the defendant, and it follows that the defendant is liable for the consequential losses suffered by the plaintiff from such breach.

I am also satisfied that the legal fees incurred by the plaintiff in recovering its losses from the defendant for the defendant’s breach of agreement is also a related head of liability which is not only directly related to the breach of agreement in this case, but is also within the ambit of Clause 5 (f) of the agreement of 31/03/04.

In summary - The courts decision is as follows:

• It has been proven that the defendant has breached its agreement with the plaintiff dated 31^st March 2004 (Exhibit P1) by his returning the vehicle hired to him four days and five and half hours after the agreed period had elapsed.
  
• There is no evidence to support a finding of either an express or an implied variation of any of the terms of the original agreement dated the 31^st March 2004.
  
• The defendant’s argument that the agreement was invalid because he was rented a vehicle without the registration stickers affixed is rejected for reasons provided above.
  
• As a result of the finding that the defendant breached his agreement with he plaintiff, I make the following judgment:
  

Judgment:

Judgment for the plaintiff in the sums of:

1. $80.00 for the petrol replenishment admitted to by the defendant;
   
2. $760.00 for the loss of use of the vehicle for the four(4) days in which the defendant had possession of it, after the agreed period of two days had expired;
   
3. $110.00 for the 5-1/2 hrs from 10.am 6^th April 2004 to 3.30pm 6^th April 2004 - again part of the total time the vehicle was late in it’s return.
   

Total amount therefore arising directly from the defendant’s breach of agreement is for the sum of: $950.00.

4. $1226.50 for the legal costs incurred by the plaintiff in recovering her losses arising out of the breach of the agreement by the defendant.
   

DISTRICT COURT JUDGE