Manusamoa v Alofipo [2020] WSDC 9 (8 December 2020)

DISTRICT COURT OF SAMOA
Manusamoa v Alofipo [2020] WSDC 9

Case name:	Manusamoa v Alofipo
Citation:	[2020] WSDC 9
Decision date:	8 December 2020
Parties:	Mala Manusamoa v John Alofipo
Hearing date(s):
File number(s):
Jurisdiction:	Civil
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Saaga-Atoa
On appeal from:
Order:	I am satisfied on the balance of probabilities that the Defendant is entitled to Judgement in the amount of $14,883.19 plus 15% VAGST which is a total of $17,115.67
Representation:	Applicant in person Afamasaga for Defendant
Catchwords:	statement of claim – balance of probabilities – burden of proof
Words and phrases:	Claim seeks an order for payment
Legislation cited:
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINU’U

BETWEEN

MALA MANUSAMOA of Sapunaoa.
Plaintiff

A N D

JOHN ALOFIPO of Vaitele.
Defendant

Counsels:
Applicant Unrepresented
Defendant represented by Mr Afamasaga

Decision: 8^th December 2020

DECISION OF JUDGEATOA-SAAGA

BACKGROUND

1. This matter is in respect of a Statement of Claim dated 19^th September 2018 for the amount of $19,050.00. The Claims seeks an order for payment of $19,000.00 and $50.00 for Court costs.
2. The Defendant denies the claim and prays for the dismissal of the action by the Plaintiff.
3. The Plaintiff is the owner of Toyota Hilux Double Cab license number 8170 that was involved in an accident on the 14^th January 2017.
4. As the vehicle was insured with National Pacific Insurance (NPI), quotes were sought by NPI for the repair of the vehicle. The successful bidder was Johnny’s Smash and Repair. The Defendant is the owner of the Repair shop.
5. The Defendant’s total quotation was $34,231 and the quotation was to replace the following:

Head light LH Head light RH

Grille Front Bumper

Bumper Reinforcement LH Fog light

RH Fog light Radiator Assembly

Condenser Radiator

Radiator Cover Fan Assembly

Washer Bottle Reservoir Bottle

Diesel Primer Fuel Filter Engine Cover

AC Pipes LH Inner Guard

RH Fender LH Fender

LH Corner Light RH Corner Light

LH Fender Cover RH Fender Cover

RH Side Mirror LH Door Shell

LH Door Glass Chrome Rear Bumper

Tail Light Side Step

LH Fender Flare RH Fender Flare

LH Bumper Flare Right Bumper Flare

Bonnet LH Knuckle Arm

LH Tie Rod LH Lower Arm

LH Upper Arm LH Shock Assembly

Total Parts $25,231.00

Paints and Materials $ 2,200.00

Labour $ 6,800.00

6. The Defendant received the funds from National Pacific Insurance on the 22^nd February 2017.
7. The Plaintiff claims that the Defendant removed the engine of the vehicle without his consent and the removal caused subsequent irreparable damage to the engine. Secondly, the Defendant did not provide all the items that he had provided under his quotation.
8. The Plaintiff’s total claim is $30,317.08 and it is a quotation prepared by Asco Motors. These parts are:

Lamp Assy, Fog W/Bra	844.55
Condenser Hilux Dies	1852.02

Tank Assy, Washer	220.53
Inlet Sub-Assy Wash	229.90
Reserve Tank Assy	793.83
Filter Assy Fuel	907.46
Hose, Discharge	598.54
Hose, Sub-Assy	617.74
Link Assy, Power Ste	5765.15
Knuckle, Steering, L	1303.42
Knuckle, Steering, R	1750.05
Arm Sub-Assy Suspension	3700.72
Arm Sub Assy	2056.75
Arm Assy Suspension	2303.23
Arm Assy Suspension	2873.97
Absorber Assy Shock	544.82
Total	$30,317.08

9. The Plaintiff is only claiming $19,000 of the total claim of $30,317.08.
10. A site visit was conducted of the vehicle at Vaitele at the Defendant’s workshop.

PLAINTIFF’S EVIDENCE

11. The Plaintiff’s vehicle was towed to the Defendant’s workshop on 20^th January 2017. Mala followed up on the 3^rd February 2017 and the Friday following. He found the vehicle was still not fixed. He told Johnny that he wanted to attend his grandmother’s birthday celebration in Savaii on the 13^th March 2017. He was told to pay the excess fees of $500.00.
12. In mid-February 2017, on a subsequent visit, he discovered that the engine of his vehicle was removed without his knowledge and consent. He was shocked as the vehicle was referred to the workshop for work on its body and not for the engine. He was assured by Johnny that the engine will be returned into the vehicle. He was also assured that his car will be ready in time for the birthday celebrations. On the 9^th March 2017, he paid the excess fee of $500.00 to Johnny. He did not get a receipt. He was told by Johnny that he was the boss and that was no need for a receipt.
13. On Friday following, he went to the workshop and took his car. It was his understanding that he was able to take his vehicle as he had already paid the excess fee and that Johnny had given his permission on the condition that he was to return it to the workshop on his return. The fog lights and ‘apaapa’ had not been affixed yet and the air condition was not working.
14. He drove to Mulifanua and upon arrival at Salelologa drove to town to do some shopping before heading to Maota. Whilst driving, he heard a loud noise from the engine. The noise drowned out the conversation in the car. He also smelt oil and saw steam emanating from the engine. He could not continue driving the vehicle.
15. The vehicle was towed from Maota to Salelologa and left at the wharf. Mala contacted Johnny that evening and on Saturday the vehicle was transported from the Salelologa wharf to Mulifanua. Johnny towed the vehicle to his workshop.
16. Manusamoa returned to Upolu the following Thursday. Johnny told him to leave the vehicle with him. Manusamoa was also informed that the engine was not covered by the insurance payment and that he had to pay an additional $2,000 to Johnny to enable him to fix the engine. Manusamoa paid $2,000 in the months of March to June 2017.
17. Manusamoa continued to follow up from June, July and August. He was assured that the vehicle will be fixed by October 2017. During one visit, he found the vehicle on the hoist. The CV, condenser, windows and apaapa were removed. He was assured by Johnny that he had a container from Australia with all the parts of the vehicle.
18. By December 2017, he found that the engine had been replaced by a 2.0 KD Turbo. The original engine of his vehicle was a 3.0 Turbo. He found the replaced engine was not compatible. He also noticed that the replacement bumper and the condensers were old and dented. The reservoir bottle was also different and there was no washer bottle. The air condition pump was also leaking and the CV joints and hump were removed. Inside the vehicle, the cushions of the vehicle were torn.
19. Manusamoa told Johnny that he wanted the vehicle by December as his wife intended to use the vehicle for their inspection (“asiasiaga”).
20. The car was not ready. Johnny gave him a Tucson to use. When he returned the Tucson, he found the vehicle in front of the car dealer. There was no airflow. He told him to buy the airflow so they went to Paul Lobil and bought an airflow from there.
21. Manusamoa took the vehicle. The vehicle was not the same. He could hear noises from the engine. The tires shook. As they were driving from Tiapapata, the apaapa flew off. He found also that there were a few nuts and bolts in place.
22. In May 2018, whilst driving from Saleimoa, the vehicle was unable to move. The vehicle had to be towed to his place.
23. Since then, his vehicle has not been operational. He has resorted to using public transport and to date, pays funds for his children’s transport to school.
24. Whilst he has no vehicle, he is still paying for the vehicle loan.

DEFENCE EVIDENCE

25. After the vehicle was towed to the workshop, Johnny’s Staff started working on the vehicle. He ordered the parts from Australia. He wanted the best parts for the job. The vehicle was a second hand vehicle.
26. Manusamoa advised him that he wanted the vehicle to be ready for the birthday celebrations. He did not agree as he wanted the work on the vehicle to be completed before it was to be released. The payment of the excess fee was not for the release of the vehicle. That was the owner’s contribution to the costs of fixing the vehicle.
27. He instructed his staff not to release the vehicle. Manusamoa arrived that day whilst he was away and managed to convince his staff to take the vehicle. He would not have released the vehicle. He was informed that he reversed the vehicle quite abruptly and drove off quite recklessly on the road. He believed that this could have been the reason why the vehicle was damaged subsequently. If he was at the workshop, he would not have allowed Mala to take the vehicle as he would have wanted to test drive it first before releasing the vehicle. Johnny Smash and Repairs Shop was only contracted to do panel beating on the vehicle. He was not contracted to fix the engine.
28. When Mala called him that the vehicle was damaged, Johnny was very upset. He reprimanded Mala for taking the vehicle prior to completion of the work. He advised him to leave the vehicle at the shop. As the engine was not part of his quotation, he asked Mala to pay $2,000 so that he can fix the engine. The funds were insufficient to replace all that was wrong with the engine. The engine was damaged beyond repair and he had to replace it with a 2 KD to change the damaged engine.
29. He also did not take any parts of the vehicle. Rather, he replaced and bought new parts for the vehicle including the macs on the vehicle.
30. The Plaintiff also had the vehicle for more than six months before he demanded payment of the costs. Any damages therefore should be borne by the Plaintiff.

DISCUSSION

31. The burden of proof is on the balance of probabilities and the Plaintiff bears that burden.
32. The Plaintiff claim is for the amount of $19,000 which is a portion of the total cost of $30,317.08 quoted by Asco Motors. The total quote of $30,317.08 includes the cost of VAGST of $3954.40. The actual cost of the vehicles parts is $26,362.68.
33. The Defendant provided a total quotation of $34,321 which included the total costs of parts to be replaced of $25,231.00 and costs of $2,200 for paint and materials and $6,800 for labor. The costs of paint, materials and labor is not an issue. The costs of items replaced of $25,231 is in dispute.
34. The work was mainly panel beating and focused on the outer part of the vehicle. The Defendant nevertheless removed the engine in the course of replacing the parts and panel beating the outer part of the vehicle. There is no valid explanation for the removal of the engine whilst the focus of his work was on the outside of the vehicle and the replacement of the parts of the vehicle as identified.
35. After hearing the evidence, I am not convinced that the speed and the reversal by the Plaintiff of the vehicle prior to leaving the workshop caused the vehicle’s engine to overheat and stop working. There had to be substantial damage to the engine and damage is imputed to the Defendant only because he had removed the engine. The engine could also have been damaged during the accident but there is no evidence adduced by National Pacific Insurance of any damage to the engine prior to its removal.
36. Similarly, when the vehicle was damaged at Maota, the vehicle was towed and left at the workshop from March until December 2017. If the reason why it was not fixed earlier was to await payment, then the Defendant should have started working on the engine from June 2017 when the funds were fully paid yet it was not until December 2017 when the vehicle was finally released to the Plaintiff. Parts provided under the original agreement, should already been affixed to the vehicle. Yet parts were missing including parts that were not affixed properly.
37. According to the Plaintiff’s evidence, the following were not replaced:
    • Headlight LH
    • Front Bumper and Back Bumper
    • LH Fog light
    • Condenser
    • Radiator
    • Washer Bottle
    • Reservoir Bottle
38. The quotation provided from Asco Motors provides the costing of some of these items as follows:

Lamp Assy, Fog W/Bra	844.55
Condenser Hilux Dies	1852.02

Tank Assy, Washer	220.53
Inlet Sub-Assy Wash	229.90
Reserve Tank Assy	793.83
Total Costs	3940.83

39. Costings includes other parts that I had to try and reconcile with the list of parts that were removed after the vehicle was returned to the Shop including the CV joints. These are:

Filter Assy Fuel	907.46
Hose, Discharge	598.54
Hose, Sub-Assy	617.74
Link Assy, Power Ste	5765.15
Knuckle, Steering, L	1303.42
Knuckle, Steering, R	1750.05
Total Cost	10,942.36

40. The total cost is $14,883.19.
41. The quotations from Asco also includes other parts that were not part of the Parties evidence. These are the LH Shock Assembly, LH Lower and Arm, LH Knuckle Arm. According to the Plaintiff, the vehicle was damaged whilst he was driving from Saleimoa. That was in May 2018 which is almost 5 months from when the vehicle was released. These parts are included in the quotations from Asco Motors and during our site inspection, I was assured that these were still intact. Therefore, these parts following should not form part of the claim.

Arm Sub-Assy Suspension	3700.72
Arm Sub Assy	2056.75
Arm Assy Suspension	2303.23
Arm Assy Suspension	2873.97
Absorber Assy Shock	544.82
Total	$11,479.49

CONCLUSION

42. After hearing the evidence, I am satisfied on the balance of probabilities that the Defendant is entitled to Judgement in the amount of $14,883.19 plus 15% VAGST which is a total of $17,115.67.

JUDGE ATOA-SAAGA