Aloi v Wendt [2012] WSSC 7 (9 February 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

TALA'I ALOI of Moataa, driver
Plaintiff

AND:

JOHN WENDT of Vailoa
Defendant

Counsel: Mr Enari for Plaintiff
Mr Malifa for Defendant

Hearing: 23 September 2011
Decision: 9 February 2012

DECISION OF THE COURT

1. The defendant is a motor mechanic. He also does land reclamation work using his excavator and truck under the supervision of his foreman Mr Collins. Both Mr Collins and the defendant know the plaintiff. The plaintiff's truck was often used in some of the defendant's reclamation work.
   
2. In June 2006 the defendant was contracted by Mr Penaia of Satitoa village to do reclamation work at Satitoa. Mr Collins went to Satitoa with the excavator and the truck. The agreed price for the reclamation was $60 per truckload of fill.
   
3. The plaintiff went to Satitoa with his truck after he was told by Mr Collins and carted loads together with the defendant's truck. He was told by Mr Collins the agreed price was $60 per load.
   

The plaintiff's claim

4. During the course of the reclamation which took several weeks, the plaintiff needed money for fuel and for his family. He claims he was given $400 by the plaintiff which was not sufficient. He then approached Mr Penaia who advanced him monies totalling $1700 during the duration of the work.
   
5. The plaintiff claims that he carted a total of 312 loads during the 3 months his truck was engaged in the contract. At $60 a load he is entitled to be paid $18,720 which after deduction of the advances by Mr Penaia and the $400 paid by the defendant the balance owing by the defendant to him amounts to $16,620.
   
6. He also claims $5,000 general damages.
   

Statement of Defence and Counterclaim

7. The defendant denies that he hired the defendant's truck. It is the defendant's contention that the plaintiff's truck was hired by Mr Penaia so that the proper defendant is Mr Penaia.
   
8. It is counterclaimed that during the course of Mr Penaia's project the defendant did mechanical repair works on the plaintiff's truck. He also supplied fuel and diesel amounting to about $2,500.
   
9. Particulars and details of the mechanical repairs and cost of fuel and diesel were to be supplied at the trial.
   

The Evidence

10. No particulars, details, costs or any evidence whatsoever relating to any mechanical repairs done by the defendant to the plaintiff's truck was given at trial. Similarly no particulars, details, costs or evidence whatsoever was given relating to any fuel or diesel supplied by the defendant to the plaintiff.
    
11. Mr Collins told the court that when the plaintiff came to Satitoa with his truck, he told the plaintiff to negotiate with Mr Penaia the price for his truck. The plaintiff wanted $120 per load but Mr Collins advised him that the defendant's truck will be hired at $60 per load. As a result the plaintiff agreed to $60 per load.
    
12. Mr Collins also testified that on other occasions when the defendant was contracted by a project owner, the plaintiff's truck was engaged but the plaintiff himself negotiated with the project owner the cost of hire for his truck and the project owner paid the plaintiff's truck separately, from the contract price. He cited Mr Gordon's reclamation work at Taumeasina as an example where the plaintiff's truck and the defendant's truck were paid separately by Mr Gordon.
    
13. Mr Penaia gave evidence. He said he thought the plaintiff was a truck driver for the defendant. He never talked to the plaintiff prior to the project. He only dealt with the defendant and Mr Collins. He did advance monies totaling $1,700 to the plaintiff when the plaintiff pleaded for money to refuel his truck and upkeep his family.
    

Discussion

14. The counterclaim should be dismissed and is dismissed. It must be stated also that the counterclaim was most probably only pleaded, vexatiously in my respectful view, out of spite, to prolong these proceedings.
    
15. The defence evidence lacks sincerity and credibility. Mr Penaia dealt with the defendant only to do reclamation work. He did not know the plaintiff. In fact he thought the plaintiff was one of the defendant's employee until the plaintiff requested advances.
    
16. Reference by Mr Collins to Mr Gordon's work at Taumeasina is blatantly misleading. Mr Gordon and expatriate was in Samoa at the time to develop Taumeasina for a major hotel project. He hired several entities, individuals and contractors to do reclamation and other works. In any event reference to Mr Gordon's huge development at Taumeasina has no relevance to Mr Penaia's project which hired the defendant not the plaintiff.
    

Result

17. Judgment for the plaintiff in the sum of $16,620.
    
18. Defendant's counterclaim is dismissed.
    
19. Defendant to pay costs of $2,000.
    

_________________

JUSTICE VAAI