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Paikel v Kaiwe Pty Ltd [1996] PGNC 47; N1483 (24 October 1996)

Unreported National Court Decisions

N1483

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 853 OF 1991
BETWEEN
SEMBI PAIKEL - Plaintiff
And
KAIWE PTY LTD - Defendant

Mount Hagen

Injia J
23 May 1996
24 October 1996

CONTRACT - Bailment - meaning of - Bailor - Owner or person in possession of - Bailee - Motor vehicle repair workshop - property - Motor vehicle - Bailee released motor vehicle to wrong person after repair - Rights of bailee and duties of bailor discussed.

Cases Cited:

No cases are cited in the judgment.

Counsel:

D O’Connor for the Plaintiff

K Yaual for the Defendant

24 October 1996

INJIA J: This is an actiondamagdamages for the loss of a 25 seater PMV Nissan bus, which the Plaintiff claims he owns. Hems he deposited the vehi vehicle with the Defendant at its hop for repairs but when he returned to collect it, the Defe Defendant could not deliver it because the Defendant had wrongly release vehicle another person.

The case for the Defendant is accurately summarised by counsel for the Defendant Mr O’Connor in his written submission which reads:

“The Defendant admits that it completed repairs to an identified vehicle but denies that the vehicle was unlawfully released to an unknown third party as alleged. ys that the vehicle was reas released to Elias Kaeyo, a driver and mechanic employed by the Plaintiff and related to the Plaintiff by marriage.

The Defensays that by the conduct of the Plaintiff and Elias Kaeyo teyo the Defendant was reasonably led to believe Elias Kaeyo was the owner of the vehicle or a duly authorised agent. It further says the Plaintlaintiff has since the vehicle was released been able to recover his vehicle and denies the claim for damages.”

The evidence for the Plaintiff was given by the Plaintifself and Muku Taupin. #160; Theipective affidavitdavits were admitted into evidence (Exhibit “A” & “B”). The Defendant called the Workshop Manager, Max Buntrock, Robert Kawek, Rita Taru and Passingan Taru. Their affidavits wero admi admitted into evidence (Exhibit “H”-“K”).

In my view, this is claim for damages for breachontract of bailment. A contractailment is defindefined as:

“a delivery oery of personal chattels in trust, on a contract, express or implied, that the trust shall be duly executed, and the chattels re-delivered in either their original or an altered form, as soon as the...condition on which they were bailed shall have been...performed”; Re S David & Co Ltd [1945] Ch 402 at 405.

The issues in this trial concern the identification of the bailor or the “owner” of the vehicle. Mr O’Connor refihesethese issues as follows:

1. & W60;thes lainPiff the owne owner of the vehicle subject of this proceedings?

2. Was Elies Kan o ant ge serr servant e Plaf or e an wn tharty.

3.&#16. ##160 &#160 Was Was it reasonab the cthe circumstances for the Defendanteleas vehio Elias Kaeyo?

4. ـ & If the anto isto issue nuue number 3 is ̶“No&0;No”#8221;, is;, is the Plaintiff entitled to the relief sought ingraphf theement of Claim.

It was an implied term of the bailment that the the motormotor vehi vehicle would be re-delivered to the bailor upon being repaired and upon payment of the repair cost. Who then was the bailor? Was e Plaintiff or Elias Kias Kaeyo?

Where the Plaintiff is the bailor and he is the owner of the motor vehicle no question should arise. In the pt case Plaf says iays in his affidavit evidence that hhat he is e is the owner of the vehicle. In cross-eation, he admittdmitted tha Anai Yanda is the registered owner who is his brother. He says he hssession andn andn and control of the motor vehicle. e Writ, heds that he purchpurchased the bus in Lae and make makes no mention of any equitable interest or mere possessory and usage r.&#16 the same time thme the Defendant in its Defence and verified Statement in Answer to Interrnterrogatories filed on 30/8/94 denied the Plaintiff was the owner of the vehicle.

The Defendant submits that on the evidence and the pleadings, the court should find the claim not proven o base basis that the Plaintiff is not the registered owner of the motor vehicle and that he is not entitled to the relief he seeks in these proceedings.

The plaintiff has brought these proceedings on the basis that he is the “owner” of the vehicle having purchased it in Lae in 1990. The pleadings inWrit as to s to ownership or th220;owner” can can only be understood to mean a “registered owner”.

A motor vehicle is a special the tions for ownership of which is prescribed by stay statute. Ther Traffic Act Ch t Ch 2 Ch 243 and the Regulations, and form 9, provide for a system of registration of motor vehicles. The wner” of a mo a motor vehicle means a “registerner” whose name is pris prescribed in the current Certificate gistraistration and none other.

In his affidavit, thintiff asserted that he is e is the “owner” of the vehicle. Again, he must be taken to the ̶“registowner”. But he t he contradicted himself in cross examination when he said he is not the “registered owner”.

On vidence, I find that his claim of being the ownerowner of t of the vehicle has not been proven. Indee contrary has been shen shown.

The Plaintiff’s case appears to be based on possessory and usage rights over the vehicle. But no such evidenc be ler where no such action is pleaded in the Writ. 160; Indeed, th not the bahe basis of his claim as pleaded in the Writ.

For purposes of argument, let me assume that the plaintiff’s action based on possession is properly before me. I am awf the principle of e of law that a bailor or a person having mere possession of the vehicle who delivers the vehicle to the bailee can sue the bailee for breach of the contract of bailment.&#1s the treatise Bailment by t by NE Palme (2nd Edn, Law Book Co, London, 1991) at p. 112, when summarising the common law principles says:

“The position is relatively straight forward when the non-owner makes a direct delivery to the alleged bailee. The fact that the possesssr has both accepted the goods from him and undertaken to return the goods to him will normally constitute the deliverer a bailor, irrespective of the existence of some ulterior party enjoying a full proprietary interest in the goods. At common law, as we seen,seen, the bailee is estopped from denying the bailor’s title; there seems no reason to deny the estoppel in a case of this kind, especially since there is authority treating it as an implied term of the possessory relationship, and the relationship under consideration will be consensual if not contractual in origin.”

The issue is whether the Plaintiff was in possession of the vehicle when it was delivered to the Defendant and whether it was him who delivered the vehicle for the repair. The Plaintiff’s case is that his brother, Annai Yanda, gave him the motor vehicle to run as a PMV. He says it was hi crew Micw Micky Taupin only who delivered the vehicle to the Defendant, not Elias Kaeyo.&#He also denies engaging Elig Elias Kaeyo as his agent and denies any knowledge of him.

The Defendant could not produce Elias Kaeyo. But they did produce Rita Taru and Passingan Taru to show that Elias Kaeyo was related to the Plaintiff and that he (Elias Kaeyo) came and saw him (Passigan Taru) and asked for his assistance to help tow the vehicle from Kindeng to the Defendant’s workshop. He (Passigan Taren contactntacted Mr Buntrock, the Defendant’s workshop manager, who went and towed the vehicle to the Defendant’s workshop. No deposit was requirebe p be paid on that date.

There is conflicting oral evidence as to who actually delivered the vehicle for repairs.

Therefore, it is necessary to have recourse to the documentaryence. The first documdocument i the job registration book (Exhibit “D”). This wasfirst entry made wade when the vehicle was received at the Defendant’s workshop. But the of the “owne;owner” or “Possessor”& shown there is not the Plaintiff but Passingan Taru. #160; It names ngan Taru asru as the person under whose name the vehicle wlivered.

The Second cond document is the job card. It also nanother person, non, not the Plaintiff. On that card, bit 󈬆”) it namt names “Passingan Taru” as the person under whose name the job card was created. His na writn blu. #160;#160; Below his name, appears “Elias Kaeyo” in black ink suggesuggesting it was filled in later. Trd doesn&#t say who actuaactually had possession of the vehicle and delivered it. Pas; Passingan Taru saihisn his evidence that althhe arranged for the vehicle to be towed in by Mr Buntrock, he (Passingan Taru) did not phys physically take possession of the vehiclego to the workshop to deliver it. Yet for some reasoneason, the workshop staff saw it appropriate to put down his name.

The third document is the receipt dated 26/2/91 issued upon payment for the repairs and upon re-delivery of the vehicle to Eliaso (Exhibit “F”)221;). The name appearing there is Elias Kaeyo.

It is probable that the name Elias Kaeyo appearing on the job card in different ink must have been filled out at the time of release of the vehicle upon payment of the repail on 26/2/91 because the johe job card quotes the receipt number and says “pay cash” in the same ink and handwriting and dated 26/2/91.

Mr Buntrock’s evidence is that he didn’t clearly deal with anyone in particular when he went to tow the vehicle and when he brought it back to the workshop. He didn’t identify Elias Kaeyo in particular on 29/1/91 nor anyone else including the Plaintiff.

This could have been because he was principally dealing with Mr Taru wh knew and trusted. So that when it co releasileasing sing the vehicle on 26/2/91, he had to examine Elias Kaeyo to test him to f he was related to the vehicle. He ully asked him questionstions on matters of knowlknowledge peculiar to the vehicle. He asked histions about thut the vehicle being picked up at Kindeng and being towed to the workshop. Eliaso answered the questiuestiocordingly. This impressed Mr Buntroc6. Having satisfied himself, Mr Buntrock reck released the vehicle to Elias Kaeyo upoment of the cost.

On the evidence, I am satisfied oned on the balance of probabilities that the Plaintiff was not the person exclus in possession and control trol of the vehicle, directly or indirectly. There was Passingan Tarthet the helm. Then there was alias KaeyoKaeyo, his brother Lopai Kaeyo, the bus crew Muku Taupin and others.

It is true that it was incubedent on efendo identify the owner or possessor of the vehicle icle and release it to him after repair.&#ir. erson producing the money oney to settle the repair bill could not necessarily be the owner or person in possession who delivered the vehicle for repair in the place.

In this case, however, in view of the multipultiplicity of possible possessors of the vehicle and the Plaintiff’s failure to identify himself to Mr Buntrock or his sub-ordinates as the “owner” or the person having right of possession and use of the vehicle at the outright when the vehicle was first towed in by Mr Buntrock, Mr Buntrock did the best he could using his judgment in the circumstances. He took Elias as the pers person who delivered the vehicle for repair. Mr Buk cannot be expected cted to do more than what he did.

For these reasons, I find for the Defendant and dismiss the cwith .

Lawyer fyer for the Plaintiff: Yapao Lawyers

Lawyer for the Defendant: DL O DL O’Connor Lawyers