Maiava v Unique Samoa Ltd [2013] WSSC 2 (1 February 2013)

SUPREME COURT OF SAMOA

Maiava v Unique Samoa Ltd [2013] WSSC 2

Case name: Maiava v Unique Samoa Ltd

Citation: [2013] WSSC 2

Decision date: 1 February 2013

Parties:

Peni Maiava of Utualii, Businessman.
Unique Samoa Ltd a company carrying on a car sales business at Lotopa, Samoa.
Rajesh Dodani, Vijay Jashnani Indian nationals but working as Sales Representatives for the first Defendant and Valavala Enosa

Leven Naren Indian national but living in Japan and described as the First Defendant’s Overseas based Boss.

Hearing date(s): 13 October 2010

File number(s):

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order:

(1) The plaintiff’s claim is dismissed.
(2) Each party will bear its own costs.

Representation:
T Toailoa for plaintiff
K Ainuu for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Bell v Lever Brothers [1931] UKHL 2; (1932) AC 161
Taylor v Combined Buyers Ltd [1923] NZGazLawRp 133; (1924) NZLR 627 Meredith & Associates Ltd v Bon Pacific (unreported) Supreme Court of Samoa 11/9/2009

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

PENI MAIAVA of Utualii, Businessman

Plaintiff

AND:

UNIQUE SAMOA LIMITED a company carrying on a car sales business at Lotopa, Samoa

First Defendant

RAJESH DODANI, VIJAY JASHNANI Indian nationals but working as Sales Representatives for the first Defendant and VALAVALA ENOSA

Second Defendants

LEVEN NAREN Indian national but living in Japan and described as the First Defendant’s Overseas based Boss

Third Defendant

Counsel:

T Toailoa for plaintiff

K Ainuu for defendants

Decision: 1 February 2013

DECISION OF THE COURT

The Parties

1. The plaintiff bought two second hand buses from the first defendant in November 2009 and January 2010. The second defendants were the Sales Representatives of the first defendants. Rajesh Dodani (Rajesh) and Vijay Jashnani (Vijay) attended to the plaintiff when he visited the first defendant’s premises to purchase the buses.
2. The third named second defendant Valavala Enosa (Valavala) had no dealings with the plaintiff, although he was present at the first defendant’s premises when the plaintiff was attended to by the other two second defendants.
3. The third defendant is described in the Statement of Claim as the defendant’s overseas boss living in Japan. He was not served in these proceedings. Rajesh, one of the second defendant was not served either.
4. The plaintiff’s claim is therefore leveled against the first defendant as well as Vijay and Valavala of the second defendants.

The claim

5. It is contended by the plaintiff that he specifically requested buses manufactured in the year 2000 or after. He spoke with Rajesh and also with Vijay. Although Valavala was not present during the discussions, he was at close proximity and could hear what was said.
6. Before the first bus was ordered, the plaintiff said he was shown a photograph of the bus, and the seating capacity was 35. But when the bus arrived in November 2009, the seating capacity was 28 instead of 35.
7. A sales agreement was drawn up and signed at the request of the plaintiff the bus arrived and before it was released to the plaintiff. Rajesh signed the Agreement for the first defendant. The plaintiff also signed. His insurer requested a Sales Agreement. Year 2002 is stated in the agreement as the year of the bus (presumably the year of manufacture).
8. When the second bus arrived in January 2010, which the plaintiff was led to believe was manufactured in 2001, a sales agreement was also signed.
9. Subsequent to taking delivery of the two buses, the plaintiff sought the assistance of Lipa Vaoga (Lipa) the Manager of Sales and Marketing of Asco Motors to search on the internet the year of productions of the two buses and to determine their current market values.
10. For the first bus Lipa determined the year of manufacture to be 1995with a seating capacity of 29. His written report produced as P7 was brief and it reads:
    • (a) 1995 Hino Liesse 11 29 seater Used-Bus

MODEL – RX4JFA (chassis 40279)

Regn No MO – 409

Currently serving Apia – Utualii Route

Mileage – 443,824 kilometers

5.3ltr Diesel engine, Manual transmission

Estimated current market value $58,000 (vagst included)

11. His determination of the year and current market value of the second bus was similar. It reads:
    • (b) 1997 Hino Liesse 11 29 seater used-bus

MODEL RX4JFA (chassis 41338)

Regn No Mo – 407

Currently serving Apia – Nofoalii Route

Mileage – 195, 180 kilometers

5.3ltr Diesel Engine, Manual transmission

Estimated current market value $62,000 (vagst included).

12. In summary Lipa concluded that the first bus was a 1995 with a current market value of $58,000 and the second bus was a 1997 model with a $62,000 market value.
13. When the plaintiff and his son visited the premises of the first defendant in February 2010 to confront the first defendant about the year of make of the buses they met with Vijay and Valavala. A teleconference with the third defendant and Rajesh of Japan was set up. The plaintiff told the court that as a result of the teleconference the third defendant agreed to supply the plaintiff with two buses and a dyna truck as compensation. The plaintiff would also keep the two buses he bought.
14. From that day on the plaintiff and the third defendant corresponded by emails concerning the supply of two extra buses and the dyna truck. The second defendants were not copied with those emails. Finally in April 2010 the third defendant sent his final email informing the plaintiff that Vijay and Rajesh were no longer employees of the first defendant and secondly the plaintiff’s claim for compensation were considered by the first defendant’s father, chairman of Unique Ltd (Japan) to be very high and unreasonable.
15. As a result of the last email from the third defendant the plaintiff commenced this action.

The Defence

16. The defendants deny that the plaintiff specifically requested buses manufactured in the year 2000 and afterwards. A photograph of a bus was shown to the plaintiff when he visited the first defendant’s premises and it was never represented to the plaintiff that it was a 2002 bus. Notation on the Sales Agreements which refer to the year of the first bus as a 2002 bus was inserted at the request of the plaintiff for insurance purposes.
17. Vijay dealt with the plaintiff when the second bus arrived. Both he and the plaintiff were at the wharf. The plaintiff inspected the bus at the wharf, he also cited the export certificate which stated the bus was a 1999 make and he drove the bus from the wharf to his home. It was the plaintiff himself who wrote in the Sales Agreement the year of the bus as 2001.
18. Vijay told the court that the year of the bus was not typed into the Sales Agreement which he prepared. It was the plaintiff who telephoned Vijay the day after he drove the bus home requesting Vijay to type the year 2001 into the agreement. As the plaintiff took the typed agreement with him when he drove the bus home, Vijay told the plaintiff to write in the year himself which the plaintiff did for the purpose of obtaining insurance cover for the bus.
19. Vijay also told the court that during the teleconference the plaintiff was told that if the plaintiff was not happy with the buses he should return the buses and his monies will be refunded. But the plaintiff refused to return the buses. He wanted two extra buses and a dyna truck for compensation.

Discussion of claim against the Second Defendants

20. Both Vijay and Valavala of the Second defendants were both sued as Sales representatives of the first defendants on the basis that they made false representatives to the plaintiff as to the year of make and seating capacity of the two buses.
21. Valavala had no involvement with either transaction. Although it was brought out in the testimony of Vijay that Valavala was a local director of the first defendant, his position as director cannot render him liable personally in law for the wrongful acts of any representative or employee of his company. To do so would erode the concept of limited liability.
22. Even if Vijay did make false representations to the plaintiff that the second bus was a 2001 instead of a 1999 bus, it does not invoke any cause of action against Vijay who was acting in the normal cause of his employment with the first defendant from which the plaintiff ordered his buses. Not only was the contract of sale between the plaintiff and the first defendant, the plaintiff cannot resort to the law of negligence, in cases where the plaintiff’s cause of action is clearly in contract.
23. On the other hand Vijay told the court of why and how the words, year 2001, appeared in the Sales agreement for the second bus. His explanation sounds more logical and credible than that of the plaintiff. This issue will be dealt fully later in the judgment, suffice to say here that the claim against the second defendants has no basis in law and on the facts and is accordingly dismissed.

Discussion of claim against the First Defendant

24. Neither counsel addressed the Sale of Goods Act in their written submissions. Both were ordered to file further submissions.
25. The plaintiff claimed that on the basis of the false representations by Vijay and Rajesh as to the year of make and seating of the buses the plaintiff was entitled to rescind the contract or alternatively the plaintiff has suffered loss as a result of the breach of the conditions as to the year of make and seating capacity.
26. If the evidence of the plaintiff is to be accepted as correct and if either the year of make of the bus or the seating capacity is to be treated as a condition, then he was quite entitled to rescind the contract. Bell v Lever Brothers [1931] UKHL 2; (1932) AC 161 . But he did not rescind the contract even when the defendants told him to rescind. Vijay for the defendants told the court that during the teleconference at the first defendants premises the plaintiff was told to return the buses if he was not happy. The plaintiff was also asked under cross examination:

Question: They never indicated to you: Well Maiava return those buses and we return your money – they never said that to you?

Answer: I’m not sure

Question: Because the evidence from these two defendants will show that they told you to return the buses?

Answer: Well even if I return the bus, what bus do I get from them

Question: But that is not the point, the point is whether they insisted that you return the buses?

Answer: I think I ask to provide me two extra buses because of what they did

Court: I think the question is, did they insist that you return the buses to them, did they?

Answer: I’m not sure

Question: You just asked for compensation?

Answer: Yeah

Question: And your understanding of compensation was

Answer: Give me two new buses of later model

Question: And for you to return those buses

Answer: No keep the buses

Question: Oh you keep those two buses

Answer: Yeah

Question: And you get two new buses

Answer: Correct

Question: And a dyna, is that what you asked for

Answer: Yeah I think so.

27. In reality then if there was a breach of a condition of the sale by the first defendant, the plaintiff by accepting the buses, or in refusing to return them has treated the breach as one of a warranty. Taylor v Combined Buyers Ltd [1923] NZGazLawRp 133; (1924) NZLR 627; Meredith & Associates Ltd v Bon Pacific (unreported) Supreme Court of Samoa 11/9/2009.
28. On the evidence however, there was no condition or warranty to breach. The sale of the first bus was made after the plaintiff was shown the photograph of the bus. The Sales Agreement upon which the plaintiff relied principally were prepared and signed at the request of the plaintiff for insurance purposes. They were prepared after the buses have arrived and driven away by the plaintiff. When he demanded two new buses as compensation, there was no mention of seating capacity.
29. Vijay’s account of events which led to the year of the bus to be handwritten into the Sales Agreement for the second bus is to be preferred than the one given by the plaintiff. The second bus was inspected by the plaintiff at the wharf, the import certificate stating the year of the bus as 1999 was also cited, and instead of the bus being driven to the first defendant’s premises the plaintiff drove it home. He had with him the Sales Agreement as well.
30. As the plaintiff needed the Sales Agreement for insurance, he telephoned Vijay because the year of the bus was not in the typed agreement. Vijay told the court it was not necessary to type in the year of manufacture. As a result of discussions the plaintiff wrote into the agreement the year 2001.
31. To insist that the years of manufacture of the two buses were a condition of the sales is inconsistent with the tenor of the Agreement itself. At the very bottom of both agreements are the words:

“All vehicle are “SOLD AS IT IS” with no warranty. I acknowledge that I have read and accept these conditions.”

Immediately after these words is the signature of the plaintiff.

32. Lipa’s testimony as to year of manufacture of the first bus to be 1995 cannot be treated as totally correct. In perusing the computer print outs attached to his report the Hinno Liesse bus Model KC – RX4JFAA was first produced in 1995. It appears to have been superseded or replaced by the KK – RX4JFEA model in 1999. Logic would suggest the first bus was manufactured between 1995 and 1999.
33. Instead of dealing with the first and second defendants after the teleconference, the plaintiff dealt direct with the third defendant, who is described in the Statement of Claim as the first defendant’s overseas based boss. But as discussed in paragraph 14 above the third defendant does not appear to be the overseas based boss as described in the statement of claim.
34. If the plaintiff insisted that he was led to believe that he would be supplied with two buses of later models and a dyna truck as compensation for the breach of condition and warranty, and if he did believe he would be so compensated, he only has himself to blame for that so called belief. Any reasonable business person would not have made the demands given by the plaintiff and no reasonable business person would expect the third defendant to accept the demands of the plaintiff. The last email from the third defendant blatantly spelled it out:

“... In regards to our negotiations I had discussion with my father who is chairman of Unique Ltd (Japan). He finds that compensations you are claiming are unreasonable and very high ...”

35. Attempts by the third defendant to satisfy the demands of the plaintiff cannot be treated as acknowledgment by the first and second defendants of a breach of a condition or warranty. Emails from the third defendant were from Unique Automobiles. The first and second defendants were not copied with those emails. The third defendant does not appear to be the overseas based boss. No evidence was given as to the third defendant’s relationship to the first defendant.

Result

(1) The plaintiff’s claim is dismissed.
(2) Each party will bear its own costs.

_________________

JUSTICE VAAI