DC906

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DC NO. 22 of 2009

BETWEEN

MICHAEL POLPU
Complainant

AND

HARRY WOLO
Defendant

Aitape: M Samala
2009: 21 April, 04 June

CIVIL - Action to recover part payment from sale of portable sawmill, Defence, Defective machine and Complainant withheld the keys, Estoppel by acquiescence, He who comes to equity must come with clean hands.

Cases Cite:

Maip Pty Ltd v Ambra Coffee Estates Pty Ltd [1995] PNGLR 25
Re Nagi Clan [1995] PNGLR 13

Counsel:

In person, the Complainant
In person, the Defendant

04th June 2009

M Samala: The Complainant sues to recover K4 400.00 being remainder of money from sale of a second hand portable saw mill sold at K20 000.00 on 10 December 2007. The milling machine is said to be in running condition upon delivery to the Defendant but Complainant withheld the starter key preventing trial test run requested by the defendant at the time. Complainant kept the starter key away from the machine for one year and failed to surrender it on request. On the date of delivery 10 December 2007 defendant made part payment in the sum of K15 600.00.

2. FACTS

Complainant alleged that Defendant owed him K4 400.00 by failing to make good full payment for sale of his portable saw mill to him at K20 000.00 on 10 December 2007 in which he only paid K15 600.00 with the remainder of the money still to be completed. The machine he said was a brand new machine bought by his father in-law but later given to him and wife and after using it for some years he sold it to defendant in running condition. He put out the notice for sale and defendant was the first person expressing interest to buy at the offering K20 000.00 sale price. 

3. He is now suing to recover the remainder of money owing to him in the sum of K4 400.00. 

4. EVIDENCE

The Complainant’s evidence before Court was brief, he stated he is suing to recover in full part money still to be paid left from sale of a portable saw mill at K20 000.00 in which K15 600.00 was paid but K4 400.00 is still owed. 

5. He further alleged the machine was in running condition and sold, except that there been three minor engine parts missing and on the date of delivery the defendant was made aware of the three minor engine parts not with the machine. Now that defendant totally failed to pay remainder of monies, he is coming to court for orders to claim full payment.

6. In cross examination, defendant strongly contested the Complainant’s evidence and asked why was it that he did not hand the machine keys to him since date of sale and delivery of the machine on 10 December 2007. This complainant stated, he did not give the keys because defendant did not make full K20 000.00 payment. Further asked, why and at the material time when he delivered the machine, he was asked to start the machine, he told him and others that he forgot to bring the keys with him and now is making a different statement that he wanted full payment first before he surrenders the keys. This complainant stated he was forced to sell as they had verbally agreed on the sale price at K20 000.00, both accepted the sale deal but defendant himself failed to make full upfront payment when the machine was delivered so he withheld the key till now.

7. In further cross examinations, defendant contested complainant’s evidence stating that the machine sold was not working, many parts were missing against what complainant been claiming engine was good in running state and asked again, Why he refused to start the machine when he was asked by him to give a test run? He replied stating he forgot to bring the keys at the time so could not start the machine.

8. In most of Complainant cross examination reply and remarks he kept denying stating he withheld the keys for reasons defendant did not pay in full so he didn’t want to test run the machine. When asked further, does he know that key for the machine to start the machine is vital part that should be supplied together with the machine for test purposes, to examine the quality and confirm its running state of the machine he is alleging? It was this question that he made admission stating, “Yes, that I failed”. Furthermore, when asked, Why and he can not supply the starter key for over one year till now for purposes of sale and for complete payment be made? He replied. “I failed doing that and now I am in court with the keys”. 

9. Defendant then stated he waited and waited and got frustrated by the conduct not been handed the starter key and had to buy a brand new portable mill from Farmset Goroka this year and is now using that machine instead of Complainant’s machine. And because complainant learnt he has a new machine, he is coming to court blaming him for not paying in full when he has himself to blame for not handing the starter key together with the miller.

10. I find it very hard to understand actions of the Complainant and do not believe his statement of machine in good running state sold and delivered to defendant in 2007 when deliberately withholding the key being vital part of the machine to test and confirm condition he was alleging at the time. In the first instance he never gave the keys away with the machine stating he forgot the key and now claiming the payment was not made in full so withheld the key. 

11. I much convinced by Defence statement he misrepresented the facts by lying the machine was in running condition and supplying the key will reveal hidden facts of the defective machine he offered for sale at K20 000.00 money not easy to find. His action of withholding the keys till now, over one year spokes for itself as plaintiff is guilty of laches in unreasonable delay in the sale defeating equity and accepting his mistake. 

12. The maxim res ipsa loquitur on improbable behaviour by intentionally withholding the keys obviously speaks for itself amounted to lying and misrepresentation not wanting discovery of faulty and defective machine he is offering for sale. As such, the Complainant’s hands are not clear being general nature of his unfulfilled obligation in the sale and can not come with unclean hands to claim what he is claiming when not acting properly from the start with inference of blameworthiness on his part evident in this case.

13. I rely on the principle of equitable estopple in the case of Re Nagi Clan [1995] PNGLR 13 at 16, though this is a land appeal case with facts not similar to case in hand. Doherty J raised the issue of equitable relief for persons coming to Court with clean hands in that if applicants wanting court to give them relief or certain rights, then they must have acted properly in the beginning. The same in the case of Maip Pty Ltd v Ambra Coffee Estates Pty Ltd [1995] PNGLR 25, Woods J stated there was no contract of sale when contract was accepted subject to some unfulfilled requirements and the plaintiff be guilty of undue delay in meeting requirements set out ..., and a plaintiff seeking equity must not be guilty of laches.

14. It is very clear in this case Complainant is guilty of laches by unreasonably withholding his milling machine starter key for one year not fulfilled his obligation accepted in the sale contract. Furthermore, there is strong evidence he cheated the Defendant by misrepresentation in lying about its condition when it was faulty and defective having made admissions of three missing parts only and so, is not entitled to the relief he is seeking when coming to court with unclear hands. 

15. On the basis of this findings and admission by Complainant, accordingly I dismissed the complaint and ordered that all proceeds relating to part performance of the contract being K15 600.00 received and the portable sawmill machine delivered to the Defendant to remain and rest where they are and that, Complainant to surrender the starter key to the Defendant forthwith.
Orders made accordingly.

Unrepresented matter