Selevae v Tanielu [2006] WSSC 45 (18 August 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

VAEOTAMASOALII SELEVAE
of Nofoalii, Carpenter
Plaintiff

AND

ESAU SAUAO TANIELU
of Tulaele & Taufusi, Mechanic
Defendant

Counsel: Mr M. Leung Wai for Plaintiff
Mr T. S. Toailoa for Defendant

Hearing: 25th April 2005
Judgment: 18th August 2006

JUDGMENT OF VAAI J

On or about March 2004 the plaintiff purchased from the defendant a 1988 Nissan Sentra motor vehicle which he intended to operate as a taxi. The vehicle had a taxi plate number T927 and was driven away after the plaintiff paid $11,800 to the defendant. The following day the car broke down and the defendant attended to it. A week later the brakes failed and the vehicle was taken back to the defendant’s workshop. Brake pads were purchased by the plaintiff on instructions from the defendant who mounted them. Sun roof was also leaking. About two days after the brakes were fixed there was noise from underneath which prompted the plaintiff to drive it back to the defendant and tie rods were identified as the cause of the problem. Soon after the plaintiff drove to Satalo village where again the car broke down. The vehicle was taken to the defendant’s workshop where except for a few days it was used by the plaintiff it has remained there ever since so that within two months after the plaintiff purchased the motor vehicle, the vehicle was returned to the defendant as a result of numerous faults including bent valves, damaged piston rings, faulty alternator and others.

The Plaintiff’s claim

The plaintiff’s claim is brought under two headings namely:

(a) Fraudulent misrepresentation; and / or
(b) Breach of implied conditions of fit for purpose or merchantable quality.

The defendant was the mechanic for the plaintiff. In 2004 when the plaintiff wanted to buy a taxi vehicle he went to the defendant’s workshop where he was told by the defendant he had a taxi vehicle to which he will add five new tyres at a price of $12,000. He also undertook to do repairs if the need a rise. On the day the plaintiff drove away the vehicle the five new tyres were not provided; he paid $11,800.00. He also paid the defendant $313 for the warrant of fitness which the defendant had obviously arranged with some corrupt officer at the Ministry of Transport without testing the vehicle for roadworthiness. The day after and within two months after he took delivery he experienced numerous problems which were both costly and annoying culminating in the return of the vehicle to the defendant. The mechanic who inspected the vehicle at the defendant’s workshop said that parts of the engine were missing, the engine valves were bent; piston rings were faulty and the car had about 8 months life remaining.

The Defendant’s Argument

The defendant said he was working on his vehicle when the plaintiff came for help to buy a taxi and he told the plaintiff to go looking but he came back the following day wanting to buy the defendant’s car. Purchase price of $12,000 was agreed to and five new tyres were to be supplied by the defendant who had a pending overseas trip. After inspection of the vehicle and payment of $11,000 the plaintiff took the car. One week later the car was brought back and the brakes were mended; about 3 weeks after that it was again brought back and shocks were replaced; about two months later the vehicle was again returned with broken timing belt, bent valves, faulty piston rings and a failed alternator.

The defendant denies that he represented to the plaintiff that the vehicle was in good condition to be used as a taxi; he did however agree to attend to any required repairs.

Implied conditions of fit for purpose, and merchantable quality

I accept that the plaintiff did make known to the defendant the purpose for which he wanted the car so as to show that he relied on his skill and judgment; indeed the defendant knew the plaintiff was relying on his skill and judgment. This car cannot be said to be fit for the purpose of being driven along the road let alone being used as a taxi. Problems appeared the day after the plaintiff drove it away, more problems and numerous defects emerged within the two months until it completely broke down prompting the plaintiff to return the car to the defendant. It was a complete failure and not worthy to be on the road; it would never have passed a warrant of fitness test which explains why the defendant prior to the sale did not subject the vehicle for a test for a warrant but somehow obtained the warrant from the Ministry of Transport. Needless to say that a buyer who buys a second hand car should realise that defects may appear sooner or later and he may have no redress against the seller in the absence of any express warranty. After all a second hand car is not expected to be perfect as a new car; but at the same time it should be in a roadworthy condition, fit to be driven along the road in safety. This car came no where near that requirement and it cannot be said it was reasonably fit for its purpose, nor can it be said that it was of merchantable quality.

The plaintiff argues that because the car was neither for fit for its purpose nor was it of merchantable quality, the defendant as the seller breached the implied conditions in sections 15(a) and (b) of the sale of Goods Act 1975 which provides:

15(a) “Where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he is the manufacturer or not) there is an implied condition that the goods shall be reasonably fit for such purpose.

15(b) “Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or not) there is an implied condition that the goods shall be of a merchantable quality ...”

It will follow from the wording of both sections that the plaintiff’s claim based on sections 15(a) and (b) must fail simply because the defendant is a motor mechanic by trade whose principal business is to repair motor vehicles including the plaintiff’s motor vehicle, and it is not in the course of the defendant’s business to sell motor vehicles. It was never claimed by the plaintiff that it was part of the defendant’s business to sell second hand motor vehicles; the sale should therefore be treated as a private sale and outside the scope of section 15(a) and (b) of the Sale of Goods Act. Which means that I reject plaintiff’s argument that the present factual situation is similar to that in Cromther v Shannon Motor Co. (1975), All ER 139 cited by Sapolu CJ in Tuulima Laiti v Apia Traders 18/8/1998 (CP 146/98); because in both those cases the goods sold were of a description which were in the course of the sellers business to supply.

Fraudulent Misrepresentation

I reject the defendant’s evidence that when the plaintiff told him he was looking for a vehicle to buy he (defendant) told the plaintiff to go looking elsewhere but the following day the plaintiff came back wanting to buy the defendant’s vehicle. On the contrary it was the defendant who offered to sell his vehicle to the plaintiff for $12,000 when the plaintiff told the defendant he had $10,000 and was looking for a vehicle to operate as a taxi. As a further inducement the defendant offered to add five new tyres, attend to any needed repair free of charge and will arrange to obtain a warrant of fitness (paid for by the plaintiff). Five new tyres were not provided when the plaintiff took the car; the defendant’s explanation for the absence of the new tyres was that his pending overseas trip did not eventuate. I do not believe he had a planned overseas trip. His reasons for not going overseas was never explained. It is true he did attend to fix the mounting problems which surfaced the day after the plaintiff took delivery but the vehicle needed replacement parts including tie rods, timing belt, piston rings, valves. In fact the condition of the vehicle was so bad it virtually ceased to function as a vehicle within two months and will cost approximately $7,000 to make it roadworthy. Despite his knowledge that the vehicle was not roadworthy the defendant told the plaintiff the vehicle was good. I reject the contention by counsel for the defendant that the defendant’s response was a general reply to a very general question and should be viewed as an expression of opinion rather than fact. Having told the defendant that he wanted to buy a vehicle to use as a taxi there was no vagueness in the question posed by the plaintiff if the vehicle was good. I conclude that the answer by the defendant was deliberate to deceive the plaintiff. He knew what was wrong with the vehicle because he was working on it; he knew or ought to know the numerous faulty parts as he is a motor mechanic by trade; consequently he knew it will not sustain a warrant of fitness test so he arranged for one without subjecting the vehicle for a test. By knowingly uttering a false statement to the plaintiff, the defendant intended to induce the plaintiff to act upon it and the plaintiff did act upon it; after all the defendant has for a considerable period of time the motor mechanic for the plaintiff’s family vehicles. Having said that, the final question for determination is whether the plaintiff has established that he suffered loss by acting in reliance on the false statement by the defendant, and if so, what is the measure of damage. See Derry v Peek (1889) 14 Appeal Cases 337; Doyle v Olby (Ironmongers) Ltd [1969] EWCA Civ 2; (1969) 2 QB 158; Toteff v Antonas [1952] HCA 16; (1952) 87 CLR 647; Foster v Public Trustee (1975), 1 NZLR 26; Holmes v Jones [1907] HCA 35; (1907) 4 CLR 1692

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: Holmes v Jones (supra) at 1709; Doyle v Olby (supra) at 167

As a result of the deceit the plaintiff paid $11,800 to the defendant for a motor vehicle which commenced breaking down the day after delivery; he also paid $313 to the defendant for the warrant of fitness; he also paid for other parts such as brake pads and others when requested by the defendant but their values could not be quantified from the evidence to warrant consideration. Suffice to say that for all his problems the plaintiff only used the vehicle for a period of less than two months before he returned the vehicle to the defendant. He is entitled to rescind the contract and to recover the $11,800 he paid as the purchase price and the $313 paid for the warrant of fitness.

Judgment is given for the plaintiff in the sum of $12,113.

The defendant’s counterclaim is dismissed.

The plaintiff is also entitled to costs which I fix at $1500.

Vaai J