Maau v Ah See [2004] WSDC 3 (30 January 2004)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

TAUASA MAAU
of Matautu-uta Retired.
Plaintiff

AND:

LUAVALU AH SEE,
of Afega Motor Mechanic
Defendant

Counsel: P. Fepuleai for plaintiff
F.V. Hoglund for defendant

Hearing: 16 May 2003 & 27 May 2003
Decision: 30 January 2004

DECISION OF JUDGE NELSON

The Plaintiff is a retired gentleman who owns a late model Honda Accord vehicle and he is suing the defendant for monies allegedly paid by him to the defendant to purchase parts for the vehicle. He alleges he paid the defendant $392 for the following:

$120 for a CV joint

$ 72 for a pump

$200 for a radiator

$392

He alleges he has not received the CV or the pump and that the radiator given to him by the defendant was too small, was for a Suzuki vehicle and did not fit. It appeared from his evidence that he paid the defendant these monies not all at one time but at different times. It also appeared from the plaintiff's evidence that his dealings were not all face to face with the defendant but that some dealings were with the defendant's son who is also a mechanic and who runs and operates his own business separate and distinct from the defendant. The son was not joined as a party to these proceedings.

It became clear in cross-examination of the plaintiff by defence counsel that in fact, two CV’s were the subject of dealings between the plaintiff and the defendant. The plaintiff said he originally paid the defendant $120 for a CV joint. Subsequent to that he paid the defendant a further $160, also for a CV. This “second” CV was supplied and fitted into the plaintiff's car by the defendant's son but the $120 paid for the first CV was never refunded. All this came out of the plaintiff in cross-examination and was not mentioned by him in examination in chief neither is it referred to in the plaintiff's statement of claim.

The plaintiff did not explain either why, having paid the defendant $120 for the CV, he then went ahead and paid a further $160 to the defendant for a CV. It would seem strange behaviour to say the least for someone to pay again for a part already paid for and unsupplied, and on the second occasion, to pay more than what was originally paid. I found this and many other aspects of the plaintiff's evidence less than satisfactory.

I clearly prefer the evidence of the defendant and his son. He said a CV was eventually fitted and that the subsequent payment of $160 was for other work done on the plaintiffs car, work that involved replacement of wheel bearings on one side of the plaintiff's car. The defendant's evidence is in agreement with that of his son who testified that the first CV procured did not fit so his father obtained another CV. This one did fit and was duly installed in the plaintiff's car and is still there to this time. He also confirmed the work involving the wheel bearings and that this took some 3 to 4 hours. What the defendant's son did not clarify is whose time if anyone's was being charged, because the evidence was this work was primarily undertaken by him but that he did not charge the plaintiff or his father for the work. Whatever the case may be, I am satisfied that in relation to the CV, the plaintiff has no claim as against the defendant. The plaintiff paid for a CV and he received a CV.

As regards the pump the plaintiff said he paid the defendant $72 for a pump which was never supplied. The defendant agrees he received this money but said he told the plaintiff it was insufficient, but he would see what he could purchase. He said he had a spare pump which he installed in the plaintiffs car presumably as a temporary measure, while searching for a pump for the plaintiff. The defendant said that subsequently, the plaintiff told him he had bought a pump himself. He said he did not return the plaintiffs $72 but kept it because of the unpaid work done for the plaintiff. A reference presumably to the bearings episode referred to earlier. The defendant did not say what happened to the temporary pump he had installed in the plaintiffs car.

Later in his evidence, the defendant changed his story and said he told the plaintiff he was keeping this money to help pay for the cost of a radiator which the plaintiff had also asked him to procure. Further, that the plaintiff had agreed to this. But I am satisfied the real truth is probably the defendants original evidence that he kept it, at least initially, as payment for un-paid services rendered by him and/or his son to the plaintiff.

Again, I prefer the defendant's evidence on this issue and as will become apparent, I am not satisfied any legal or legitimate basis has been made out for the defendant to refund the $72.

The last part of the plaintiffs claim relates to a radiator. He said the defendant quoted $200 to supply a radiator for his vehicle and that he should pay the money either to him or to his son. He said he gave the $200 to the defendant's son at the defendants stall at the flea market at Savalalo but that the radiator supplied was too small and did not fit his car. He said he was told by his engineer it was a radiator for a Suzuki vehicle. He said the defendant's son uplifted his damaged radiator but never returned or replaced it. He has been left with an unusable Suzuki radiator but if he receives a suitable radiator, he is willing to return this radiator to the defendant. He admitted he told the defendant that if any money was left over from the $200 after purchasing the radiator, his son “could keep the change”. He also admitted that at one stage, he told the defendant he could keep the $72 for the pump provided he received his radiator.

The defendant's version is quite different. He said he used the $200 plus $50 of the plaintiffs $72 for a pump to buy a radiator and gave the radiator to his son to give to the plaintiff. He was not told it did not fit and did not know this until the plaintiff's solicitor’s letter was received by him some time after. He said the plaintiff agreed to all this and to his using whatever change was left over from the $72 (being $22) to cover his petrol and other expenses.

On this evidence I am satisfied the defendant contracted to supply the plaintiff with a radiator for the plaintiff’s vehicle and that the plaintiff paid the defendant sufficient funds to cover the total cost of purchase of the radiator. The defendant was or must have had knowledge of the plaintiff’s vehicle type or and was or should have been aware what kind of radiator was required. The defendant has failed to supply a suitable radiator and it is beyond question that the defendant being a mechanic and having undertaken to supply the radiator for the plaintiff must honour the bargain and must supply a fully functional and proper size radiator. His failure to do so is a breach of that contract and it is no defence he was not aware the radiator did not fit. He must supply what he undertook and was paid to supply. In this, I find the defendant liable to the plaintiff for a refund of the plaintiffs $250 used to purchase the radiator. Needless to say the defendant would also be entitled to return of the unsuitable radiator he supplied to the plaintiff and to retention of the unused $22 to cover his expenses as agreed upon with the plaintiff.

The matter however does not end there as the defendant has filed a counter claim against the plaintiff. In it, the defendant counter claims for one days labour cost of $170 for labour required to ensure the plaintiffs taxi passed certain Ministry of Transport fitness tests in March 2002; as well as 1/2 days labour for inserting the CV joint and the wheel bearings; together with $200 for two days loss of earnings incurred by the defendant who is also a taxi-driver by occupation. He said he incurred this loss because of time spent in matters involving the plaintiff and his vehicle.

In respect of all these matters, the defendant was clear in his evidence that the costs incurred for the plaintiffs taxi licence were incurred before the episode involving the CV and other parts, i.e. sometime before March 2002. The defendants sons evidence was this work was carried out in late 2001 and neither the defendant or his son rendered an account for same to the plaintiff. The parties appeared at that time to have had a good and cordial relationship. The defendant said he only rendered an account to the plaintiff for the matters outlined in his counter claim when the plaintiff sued him and that this account was rendered to the plaintiff through his lawyer in late 2002 some twelve months later, after the plaintiff had commenced the present proceedings.

The defendant's evidence was it was him and his son who worked on getting the plaintiffs car ready to pass the necessary taxi licensing tests and that this work took ½ day to complete. Further, that at the plaintiff's request, the defendant lent the plaintiff his “taxi” sign in order that the plaintiffs car could pass the necessary licensing test. The plaintiff admitted the defendant did work on his car for these purposes but says the only work the defendant did was to install the defendants “taxi” sign onto his vehicle and for this he paid him $50.

This is not the forum to decide such a matter but the court does point out to both parties that swapping of taxi signs is an activity that is fraudulent and illegal and could result in either or both of them losing their respective taxi licences. It is perhaps fortunate for them the court is not required to deal with that matter in the present proceedings.

What is clear is the plaintiff accepts some services were rendered by the defendant for the purposes of licensing of his taxi. For such work and for licensing the plaintiffs vehicle, the defendant is entitled to some recompense. He is also in my view entitled to some recompense for the work he himself, as opposed to his son, did in respect of the CV joint and the wheel bearings.

For these matters, I consider the sum of $250 adequate and sufficient and accordingly hold the plaintiff liable to the defendant for same pursuant to the counter claim. The counter claim for $200 for loss of earnings is not supported by any evidence not even the defendants own evidence which refers to a much lower figure. Neither is it substantiated by any independent evidence. In any event, the plaintiffs evidence of payment to the defendant of $50 compensation was not denied by the defendant in his evidence which indicates even he considered that fair and adequate compensation considering all the circumstances.

All in all therefore, there will be –

(a) judgment for the plaintiff against the defendant on his claim in the sum of $250;

(b) judgment for the defendant against the plaintiff on the counter claim in the sum of $250.

Costs normally follow the event and if both counsels wish to waste further time and money in pursuing claims of costs against each other, do so in writing within 7 days hereof.

DISTRICT COURT JUDGE