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Yandi v PNG Motors (Mt Hagen) Ltd [2009] PGDC 21; DC929 (4 April 2009)

DC929

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DCCi 797 of 2008

BETWEEN

TIMOTHY YANDI
Complainant

AND

PNG MOTORS (MT. HAGEN) LIMITED
Defendant

Lae: C Inkisopo
2009: 4th April

Legislations:

(1) District Courts Act 1963, Chapter No. 40
(2) Unclaimed Goods Act 1966

Civil Claim for restraint from sale of vehicle to third person by unpaid service provider exercising its rights under the Unclaimed Goods Act – Claim by Complainant for service provider to set-off total aggregate service bill against a mere quotation for alleged loss/and damage to motor vehicle – whether a valid cause of action when the originating process seeks an order of restraint against Defendant exercising its rights as unpaid service provider

District Courts Civil jurisdictions under Section 21 of the District Courts Act - Civil Claim – whether Complainant is entitled to restrain the Defendant from exercising its right of sale to third parties as unpaid service provider to recoup its costs of service provision – Complainant using mere quotes as bargaining tool to compel service provider to set off total workshop service bill against mere quotations.

Appearances:

Mr Timothy Yandi of Complainant in person
Mr Simon Sengi of Counsel for the Defendant

JUDGMENT

C Inkisopo: Complainant issues these proceedings against Defendant for an issue arising out of an alleged loss/damages sustained by his vehicle, a Mitsubishi Pajero Station Wagon registration No WAB-943 whilst under the care and custody of the Defendant at its Mt. Hagen workshop where it had been put in for a mechanical repair work.

2. Complainant had put in his vehicle for repairs after his vehicle developed an engine problem on the highway en route Mt. Hagen.

3. The vehicle was said to have been repaired and the Complainant picked it up from Defendant’s Mt. Hagen workshop after he had paid the workshop bill of K4,145.15 by way of an ANZ Bank personal cheque drawn on the Complainant’s ANZ Lae Branch office. The cheque was returned dishonoured by the Defendant’s bank, the Bank South Pacific Limited due to insufficient or lack of funds to the credit of the Complainant.

5. Meanwhile, Complainant had since he picked up his vehicle been having it in his possession all through – even after he was told of his dishonoured and returned settlement cheque.

6. Even though he was told of the returned cheque and was advised to arranged alternate methods of payment to account for his workshop bill but all went on deaf ears. Repeated reminders to have him pay up the Defendant’s workshop bill all went unheeded up until 12th of March, 2008 when the vehicle was impounded by the Defendant through Police assistance.

7. Complainant still did not settle the workshop bill until Defendant in the apparent exercise of its rights under the Unclaimed Goods Act inserted an advertisement in the daily news papers for the sale of the subject vehicle to recover its costs.

8. That’s when Complainant now comes to Court seeking an order of restraint of that proposed sale (against the Defendant).

9. Meanwhile, the Complainant procures and renders the Defendant a certain quotation of alleged loss and damages caused to his vehicle whilst it was under the Defendant’s care and custody. These quotations and the accompanying claim against the Defendant to make good the losses and damages he sustained through his vehicle were communicated to the Defendants who he claims took little interest or no action at all to address or negotiate the possible settlement of his claim.

10. Complainant says that he has a valid claim against the Defendant for all the loss and damages his vehicle sustained whilst in the care and custody of the Defendant that he claims should be set-off against Defendant’s workshop bill of K4, 145.15. He can then settle the balance within fourteen (14) days thereafter.

11. Complainant therefore comes to this Court claiming:-

(a) Defendant should be restrained from dealing with the said vehicle Mitsubishi Pajero Reg. No. WAB-943 by way of sale to a third party as per its daily paper advertisement of 8th August 2008.

(b) Defendant instead should be ordered to recalculate its repair workshop bill of K4,145.15 against his quotation of losses and damages sustained by his vehicle whilst under Defendant’s care and custody and therefore to render him a revised bill for settlement within the next 14-days.

12. I consider this case a little amusing – amusing in the sense that the Defendant carried out auto mechanical work on Complainant’s vehicle after he had put in his vehicle for repairs.

13. After the vehicle was repaired, Complainant took possession of it after making the required payment by way of an ANZ Bank Lae Branch personal cheque and was in possession of and was using it all through ever since.

14. The cheque rendered in settlement of the workshop bill was returned dishonoured due to lack of funds.

15. In about April, 2007, Complainant picked up his vehicle from the Mt. Hagen workshop of the Defendant’s where the subject vehicle was repaired and he had actual physical possession of it and was using it all those while.

16. Complainant was meanwhile advised of his returned cheque payment and for him to settle the bill by cash which advise went unheeded up until March, 2008 when the subject vehicle was taken off him by Police and given up to the Defendant’s custody in Lae.

17. Still the Complainant had not yet paid anything in satisfaction of the workshop bill rendered him by the Defendant. In the stead of meeting his obligation, Complainant obtained a Boroko Motors Ltd quotation for some purported losses and damages sustained by and to his vehicle. As I glean from his actions and attitudes all throughout, Complainant seemed to me to be trying to have the Defendants set-off his Boroko Motors quotation figure from the Defendant’s workshop bill and for him to settle any difference resulting there from (if any).

18. He wrote to the Defendant enclosing his Boroko Motors quotation via a letter dated 27th June, 2007. He claims that Defendant seemed to have done nothing apparently on the letter and its intents and contents.

19. The Defendant in an apparent exercise of its right as unpaid service provider inserted a newspaper advertisement in the daily paper for the sale of the said vehicle under the provision of the Unclaimed Goods Act for sale to third persons to recover its costs on 8th August, 2008.

20. Complainant instigates this proceeding as a result of that advertisement for sale.

Issues

(1) Does the Complainant have a valid cause of action recognized by law?

(2) Is he entitled to the relief he seeks in the particular circumstances of these proceedings?

21. In my view, Complainant would seem to have a valid cause of action in so far as it regards his claim for the lost and damaged items sustained by his vehicle whilst under the care and custody of the Defendant. It is therefore a valid claim of its own to be brought to Court against the Defendant. The quotes he has obtained comprise a handy evidence for purposes of proving the quantum of the loss and the damage he purportedly suffered. That is a separate action he must take to prove and settle once and for all the issue of liability against the Defendant.

22. The quotes he rendered the Defendant in the pursuit of his claim are simply just mere quotations and nothing else that must be proven in Court as to the loss and damage he has purportedly sustained.

23. This is a separate matter to proceed with normally before a Court of law.

24. In the present case, Complainant comes to Court seeking an order to compel the Defendant to set-off his Boroko Motors quote of his loss/damage from his final workshop bill rendered to him by the Defendant for the repair of his vehicle.

25. The Complainant’s claim pre-supposes that his quotes were something akin or tantamount to a lawful and valid Court Order that must necessarily have to be set off against the Defendant’s workshop bill. The evidence before this Court does not show this to be the case.

26. Complainant is apparently using a mere quote as a bargaining weapon to try to make Defendant dance to the tune he was striking.

27. If the quotes were translated into a Court Order as a result of a successful Court action against the Defendant, then this Court would have little to no difficulty upholding his claim for a set-off.

28. But the problem here is that he is trying to use a mere quote to press a claim for set-off which course I consider to be wholly misconceived, in my humble view.

29. I perceive a number of factors adversely affecting the Complainant’s efforts in what he tries to do. In my view, I consider the Complainant to be someone who tries to detour and deflect the real issue from the spot light by seemingly perpetrating a scheme to draw attention away from the real issue of his needing to settle the Defendant’s workshop bill by delving on matters that are not and never are issues at all.

30. From about April, 2007 to August, 2008 for about 16 months, Complainant made no attempts at all to settle the Defendant’s bill though he had all those times been in possession and use of the vehicle and that he was advised of his returned cheque. Though I noted him to have made a good number of promises to settle the bill which promises never came through until the advertisement to sell appeared when Complainant jumps up and down and now comes running to the Court with this claim.

31. The Court in all the circumstance finds that:-

Yes, he has a primary cause of action to sue the Defendants for the loss and damage sustained by his vehicle whilst under their custody which is a separate matter for Complainant to initiate, but in this present case, it is wholly a total misconception by seemingly equating mere quotes to some sort of an authority or order of a Court as proven authority to base his subsequent claim for set-off on such a mere quote as is seemingly the case in the present proceeding.

The current cause of action is wholly misconceived and therefore cannot be a lawful cause of action that Complainant can properly pass before this Court.

Court Order

(1) I have therefore no choice but to dismiss this claim as being wholly misconceived.

(2) Complainant is not entitled to the redress he seeks in this proceeding.

(3) Each party to bear own costs of proceedings

________________________

Lawyers:
Complainant appearing in person
Gamoga & Company Lawyers for Defendant