Aumua v Faimalo [2022] WSDC 3 (26 July 2022)

IN THE DISTRICT COURT OF SAMOA
Aumua v Faimalo [2022] WSDC 3 (26 July 2022)

Case name:	Aumua v Faimalo
Citation:	[2022] WSDC 3
Decision date:	26 July 2022
Parties:	SULIVETA AUMUA v SOLOMONA FAIMALO
Hearing date(s):	24 February 2022
File number(s):	DC563/17
Jurisdiction:	Civil
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Matautia Raymond Schuster
On appeal from:
Order:	Judgment for the plaintiff in the amount of $5,220. I also find that the plaintiff is entitled to costs of this action to the amount of $500
Representation:	Plaintiff representing himself Defendant representing himself
Catchwords:	proceedings – facts – the law – discussion - conclusion
Words and phrases:
Legislation cited:	Sale of Goods Act 1975; Fair Trading Act 1998 s2; Competition and Consumer Act 2016;
Cases cited:	Selevae v Tanielu [2006] WSSC 45 (18 August 2006), Vaai J;
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

IN THE MATTER: DC: 563/17

BETWEEN:

SULIVETA AUMUA of Saluafata
Plaintiff

AND:

SOLOMONA FAIMALO of Vaitoloa
Defendant

HEARING: 24^th February 2022
DECISION: 26^th July 2022
FOR PLAINTIFF: Representing himself
FOR DEFENDANT: Representing himself

RESERVED DECISION OF DCJ SCHUSTER

Proceedings

1. The Plaintiff has brought an action against the Defendant for breach of contract and fraudulent representation relating to the purchase of a motor vehicle from the Defendant of which the Plaintiff intended to use as a taxi.

Facts

2. That sometime in early April 2021, the Plaintiff was looking for a vehicle to replace a vehicle he recently sold for $$9,000 to pay for his daughter’s school fees at the National University of Samoa. The Plaintiff intended for a vehicle to be used as a taxi and as his father was also very ill, he needed a vehicle to transport him to his hospital appointments. He found a Nissan Tida on ‘Makeki-on-line’ for SAT$9,000. He called the owner Solomona Faimalo, the defendant in this matter.
3. Not long after, an arrangement was made to inspect the vehicle at the Defendants premises. The Plaintiff with his engineer met the Defendant and his wife on 13 April 2021. Upon seeing the vehicle, he noticed that there was no taxi sign and had not been painted. The Defendant in his testimony represented to the Plaintiff that the vehicle was in good condition fit for the purpose that the Plaintiff indicated to be used as a taxi. The Plaintiff, his mechanic and the Defendant went to test drive the vehicle. Upon return, the Plaintiff tried to bargain for the price as he only had $5,000 but to no avail. The Plaintiff decided to offer $4,500 as part payment and the balance by installments of $200 a week provided he can take the vehicle and start using as a taxi.
4. The Defendant was not amenable to releasing the vehicle part paid because of some bad experience he had in the past. He told the Plaintiff to come back when he obtains the full amount. The Plaintiff however insisted of his immediate need for a car given his father being in hospital. The Defendant then said to leave the $4,500 with him so that he can finish repairing, paint and register the car with the Land Transport Authority (LTA). Despite the fact the Plaintiff wanted to take the vehicle part paid, he parted with his money nevertheless. The evidence is open ended at this point as to what terms did the Plaintiff and the Defendant agreed on as to what the Plaintiff was to obtain from the part payment other than completing the repairs, paint and LTA registration.
5. On or about 16 April 2021, the Plaintiff went back to the Defendant’s premises and noticed that the paint job was not done properly and the car still had not been registered. The Defendant excused the delay due to the unavailability of some person at LTA. The Defendant testified that he told the Plaintiff the vehicle had already passed LTA inspection but he had not attended to the payment of the registration sticker. The Plaintiff sought for proof of ownership but the Defendant only verbally assured the vehicle was his. The Plaintiff again offered to take the vehicle so he can register at his JT taxi stand at Vailoa as well as to put on a ‘Taxi’ sticker with Signz Studio which costs $50. The Defendant still would not release the vehicle suggesting to await registration. The Plaintiff gave another $100 and indicated to add to the $4,500 to reduce the balance.
6. The following day, the Defendant called the Plaintiff and asked for $50 to register the vehicle. The Plaintiff found out on this day that the registered owners name was Eteuati Faaiviivi and not the Defendant. However, the Defendant assured him it was his vehicle but just that he had not done the change of ownership title. The Defendant told the Plaintiff to attend to the payment of the warrant of fitness and licence as they did not have enough money to do it now and they will fix the change of ownership to the Plaintiff later.
7. On Wednesday 21 April 2021, the Plaintiff took possession of the vehicle and was told by the Defendant to purchase and re-fill the transmission fluid which he did. The Plaintiff said that he had to start the whole process of registration again as the vehicle had not been inspected and paid $421 for registration. The following Sunday 25 April when they were about to go to church, the vehicle did not work as he could not find a gear. He called the Defendant and was told to turn off the vehicle and turn it back on again. The Defendant also said to bring the car to him to repair if there were any other problems.
8. Despite having his own mechanic, the Plaintiff took the vehicle to the Defendant on Monday 26 April 2021. The Defendant said the filter was clogged which was the cause of the vehicle not working.
9. On Tuesday 27 April, the Plaintiff was at Farmer Joe and the car again failed to start. He was handed a violation traffic ticket by a Traffic Officer. Why he was ticketed was not made known. He took the car back to the Defendant who went under and said that the high pressure transmission hose was almost severed causing the leak in transmission fluid. The Defendant told the Plaintiff he must have gone over something hitting the bottom damaging the high pressure hose. The Defendant informed the plaintiff there was no transmission fluid due to the leak.
10. After purchasing the parts, the Plaintiff asked the Defendant to test drive the vehicle on Maota Samoa road. The vehicle did not make it up the hill as it kept stalling. They went to Papauta and unusual noises came from the vehicle causing them to return to Vaitoloa. The Defendant then told the Plaintiff to leave the car for three weeks so that he can fix the gear box.
11. The next time the Defendant contacted the Plaintiff was to ask for $300 to buy a ‘chain’ which was the only part needed for the gear box to work properly again. When the Plaintiff went back, the vehicle was not there. Not long after, the defendant arrived with the vehicle and told the Plaintiff that he could not take the vehicle as it was not completed.
12. The Defendant’s evidence under oath was not much different from the Plaintiff only for the disputed parts. He alleged that there was no fault after test driving the vehicle with the Plaintiff’s mechanic and that the Plaintiff must have damaged the vehicle during the three weeks he had possession given the bad road that goes up to Manunu village just inland from the village of Lufilufi. The Plaintiff testified that could not have happened because their road was tar sealed in 2018 long before this matter.
13. After numerous unsuccessful exchanges sometimes volatile, the Plaintiff served a letter on the Defendant to refund the amount of $5,222 which is made up of the $4,500 initial payment plus other subsequent payments made.
14. The defendant did not dispute these amounts claimed under oath.

The Law

15. The law of contracts require:

(a) the making of an offer;

(b) the fact of acceptance of that offer;

(c) the communication of that acceptance;

(d) the requirement of certainty of a contractual bargain; and

(e) whether the agreement was subject to conditions as to the creation of continuance of legal obligations.

16. Whether a contract has been formed is to be objectively ascertained from the point of view of reasonable persons on both sides^[1]. In order for a contract to be formed, there must be an intention to be immediately bound and an agreement (either express or implied) as to essential terms^[2]. No particular form of words is required to evidence a willingness to be bound^[3]:
    • “Few contracts of any complexity are actually made by an initial offer which is accepted without further negotiation. It will be much more common for contracts to arise from a series of communications between the parties which eventually result in an agreement.”

Certainty of terms

17. For a contract to be enforceable, there must be certainty as to terms. These terms include:

(a) the parties to the contract;

(b) the subject matter of the contract;

(c) the consideration (price) for the subject matter;

(d) the conduct constituting performance; and

(e) the time within which performance is to occur^[4].

18. Before I elaborate on the law, it is pertinent to say something about the general nature and circumstances of cases that come under the label of breach of contract. This is a private contract between the Plaintiff and the Defendant. It involves the every-day nature of human relationships in the exchange or buying and selling of “goods”. In this case, the purchase of a second hand motor vehicle. The facts are far from complex. However, in many instances, such arrangements may be governed under legislations that are specific so far as such contracts are concerned where there is alleged a written or verbal agreement and a subsequent dis-honouring of that agreement by one or both of the parties. The circumstances of this case warrant considering relevant legislations that may apply to the parties.
19. The Sale of Goods Act 1975 (hereinafter referred to as “the SGA”) defines these relevant terms:
    • "Contract of sale" includes an agreement to sell as well as a sale;
    • “goods” includes all chattels personal other than money or things in action. The term includes emblements, growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;”
    • “buyer” means a person who buys or agrees to buy goods;
    • “seller” means a person who sells or agrees to sell goods;
    • "Property" means the general property in goods, and not merely a special property;
    • "Quality of goods" includes their state or condition;
    • "Sale" includes a bargain and sale, as well as a sale and delivery;
    • "Seller" means a person who sells or agrees to sell goods;
    • "Specific goods" means goods identified and agreed on at the time a contract of sale is made;
    • "Warranty" means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated;
20. The SGA is an important law for consumers because it applies to many of the consumer rights and remedies. The SGA applies in transactions where the seller agrees to transfer, or transfers, property in goods to the buyer for money consideration.
21. The contract of sale can either be a “sale” or “an agreement to sell”. Both types of contracts fall under the definition of ‘contract of sale’ under the SGA. A sale occurs when ownership of the item passes immediately from the buyer to the seller. An agreement to sell occurs when ownership of the item is going to be transferred immediately, at a future time or is subject to some condition. Because ownership of the vehicle has not transferred in this case, this therefore becomes an ‘agreement to sell’. The Sale of Goods Act only applies when the buyer gets the goods. That buyer must receive unrestricted ownership of whatever they purchase. Therefore, contracts for leases or conditional ownership of goods for example do not fall under the Sale of Goods Act.
22. Section 2 of the Fair Trading Act 1998 (hereinafter referred to as “the FTA”) defines the terms relevant to this matter -
    • “goods” mean

(a) any article or product of any type or class that is intended for sale to a person for use or consumption;

(b) the supply of gas, water and telecommunications;

“consumer” means, subject to subsection (2), a person who acquires goods or services other than in the course of, or for the purpose of carrying on a trade or business;
“defect in relation to goods” or “defective goods” include goods that -

(a) are in the particular circumstances, unfit for use or are dangerous; or

(b) do not comply with a product safety or quality standard;

“trader” includes a person carrying on business as -

(a) an importer of goods for the purposes of sale or supply;

(b) a seller of goods in pursuance of a contract of sale or supply, and includes -

(i) a person who sells or supplies goods whole-sale to any other traders; and

(ii) a person who sells or supplies goods at retail rates to consumers.

(2) A person who acquires goods or services of a value being less than an amount prescribed for this purpose, for use in a business of primary production is a “consumer” for the purposes of this Act.

23. The FTA protects consumers from misleading and deceptive trader behaviour, and unfair trading practices. These behaviours can include anything from false claims about what a product is made from or where it comes from, unfair sales practices, and key details being hidden in fine print. However, given the definition of “trader”, it appears that the defendant in this matter would not come under that head for the facts do not show he is a person carrying on business as an importer or seller of goods.
24. In the Competition and Consumer Act 2016 (hereinafter defined as “the CCA”), it defines these following terms relevant to this matter:
    • “agreement” includes a contract, an arrangement, an understanding or a covenant;
    • “consumer” means a person who acquires, or who it is proposed will acquire, goods or services as a consumer;
    • “goods” means personal property of any kind (whether tangible or intangible), other than money or choses in action, and includes any of the following:

(a) goods attached to, or incorporated in, any real or personal property, except a whole building or part of a building that is attached to land and not easily removable;

(b) ships, aircraft or vehicles;

(c) animals or fish;

(d) minerals, trees or crops, whether or not on, under or attached to land;

(e) electricity or gas;

(f) water;

(g) computer software.

“trade” means any trade, business, industry, profession, occupation, activity of commerce or undertaking relating to the supply or acquisition of goods or services;

25. The purpose of the CCA safeguards buyers of goods and services, and the public, against unfair practices in the “marketplace” in order to regulate and prohibit unfair advantage over competitors or to mislead consumers. Consumer protection law or consumer law is considered as an area of law that regulates private law relationships between individual consumers and the businesses that sell those goods and services. Although the terms appear to suggest that the CCA may apply to the parties in the circumstances of this case, the fact that the defendant is a private individual as opposed to a trader or business not holding out to trade in goods and services places this case outside of the realms of the CCA.
26. In Selevae v Tanielu [2006] WSSC 45 (18 August 2006), a similar scenario arose relative to this case. His Honour Justice Vaai found that the defendant made a fraudulent misrepresentation to the plaintiff and the plaintiff relied on that representation that the vehicle was roadworthy but in fact it was not.

Discussion

27. I must consider the evidence on the balance of probabilities. This means that it is more likely than not that the alleged claim occurred. It means that it is probable, i.e., the probability that the event happened is more than 50%. Therefore, mathematically speaking, proof on a balance of probabilities is 50.1% likelihood of something having occurred. It would also follow that proof greater than that is not required. This is simply a balancing of both sides seeing which side has the stronger proof. The plaintiff must therefore prove that his facts tip the scale in his favor even if it is only a 51% probability that he is correct.
    
28. As decider of fact, I must first determine whether or not the facts alleged happened or not. There is no room for a finding that it might have happened. If I am left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened. In my view, the only practical way in which to reach a factual conclusion in a civil case is to decide whether it is more likely than not that the event occurred.
29. The evidence that I heard in this case featured obvious conflicts, and therefore it cannot all be correct. The divergence in the evidence simply does not allow for that to occur. I have looked at all the evidence with the aim of being objective, careful, impartial and dispassionate in my assessment of the evidence. It has been necessary for me to consider the honesty, reliability and credibility of each witness. I do not have to accept everything that a witness says or reject anything that a witness says. I am entitled to accept and reject parts of what a witness said in their evidence.
30. I also emphasize that in reaching a decision in a Judge alone trial, it is neither necessary - nor am I required - to articulate findings about every item of the evidence. My role is to determine whether the plaintiff has proven his case on the balance of probabilities.
31. I find the evidence of the defendant unconvincing particularly when he did not question or assert that the amount claimed was in dispute. The defendant merely put that the “time” the plaintiff had the vehicle, which he claims to be about three (3) weeks, the plaintiff must have damaged it by ignoring that the transmission fluid was low or empty resulting from damage to the pressure hose underneath the vehicle because the plaintiff’s in-land road was very bad.
32. The plaintiff took conditional possession of the vehicle on 21 April 2021 but by the 27 April, the vehicle was back with the defendant because of faulty issues. The plaintiff knew that possession of the vehicle was subject to completing the balance of the total $9000 and that he was to pay by installments. It appears that the defendant knew that there were problems with the vehicle but never made those known to the plaintiff. The fact that the plaintiff had another mechanic with him to check out the vehicle does not exonerate the defendant of his duty to inform the plaintiff of faults that came with the vehicle at the price offered.
33. I find the evidence of the defendant unbelievable. The vehicle was not with the plaintiff for three weeks and the many excuses for not registering the vehicle which was his responsibility were to avoid disclosure of the true owner of the vehicle. The moment the defendant agreed to part with the vehicle and accept the part payment on 21 April 2021 was his intention to enter into this agreement and made him liable for any breaches. The defendant was offering for sale a motor vehicle that he knew was not registered under his name as well as the fact that there were issues with the road worthiness of the vehicle. There was no evidence that it was advertised for sale “as is” but the facts suggest that the defendant made it out as if the vehicle was fit for the purpose the plaintiff was looking for. I accept the evidence of the plaintiff and draw an inference from the established facts that the vehicle was not advertised “as is” and the plaintiff deliberately made out that it was road worthy and fit for the purpose of the plaintiff but in actuality, it was not.
34. I do not accept the evidence of the defendant that the vehicle was damaged by the plaintiff during the time of about 8 days the vehicle was with the plaintiff. I take judicial notice that the in-land road to Manunu was tar sealed before 2021 and therefore rule out the allegation that the plaintiff caused the damage to the vehicle. This means then that the vehicle transmission was already faulty by the time the plaintiff entered into the agreement with the defendant to buy. This is the reason why the defendant told the plaintiff to put transmission fluid in the vehicle prior to it being driven off. That was an action that the defendant should have attended to prior to the deposit being made.
35. The defendant continues to be in possession of the vehicle as well as the deposit of $4600 plus car parts that were purchased by the plaintiff as advised by the defendant.
36. The general principle is that the plaintiff is to be put, so far as possible, in the position he would have been if he had not acted on the fraudulent inducement^[5].

Conclusion

37. Judgment for the plaintiff in the amount of $5,220. I also find that the plaintiff is entitled to costs of this action to the amount of $500

DCJ SCHUSTER

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^[1] Meates v Attorney-General [1983] NZLR 308 (CA) at 377 per Cooke J; Wilmot v Johnson [2002] NZCA 309; [2003] 1 NZLR 649 (CA); Fleming v Beevers [1994] 1 NZLR 385 (CA) at 390.
^[2] Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2001] NZCA 289; [2002] 2 NZLR 433 (CA) at 443–444.
^[3] John Burrows, Jeremy Finn and Stephen Todd Law of Contract in New Zealand (5th ed, LexisNexis, Wellington, 2016).
^[4] Burrows, Finn and Todd, at [3.2].
^[5] Selevae v Tanielu [2006] WSSC 45 (18 August 2006)