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'Etu v Mo'unga [1958] TOLawRp 9; [1923-1962] Tonga LR 198 (12 December 1958)

[1923-1962] Tonga LR 198

IN THE HIGH COURT OF TONGA
NUKU'ALOFA REGISTRY

BETWEEN:

SEFO 'ETU
(Appellant, defendant)

v

KAKILE MO'UNGA
(Respondent, plaintiff)

This was an appeal from the decision of the Supreme Court (Hunter J.) where judgment was given for the plaintiff for £54/8/6 and costs. The case arose over the sale of a motor lorry. The defendant appealed to the Privy Council (Hammett C.J.) and submitted that as the agreement between the parties had not been registered it was not enforceable. The Privy Council disagreed with this and dismissed the appeal.

The judgment delivered on the 12th December. 1958 is as follows:

This is an appeal from the decision of the Supreme Court dated 14th January, 1957 whereby the Plaintiff-Respondent obtained judgment against the Defendant-Appellant for 154/8/6 and costs. There was ample evidence to support the learned trial Judges' findings on the facts which were as follows.

In August, 1956, the Plaintiff agreed to purchase lorry number 175, from the Defendant for the sum of £300 of which £80 was paid before delivery; the balance of £220 was to be paid later. The lorry was found to be defective and it was then agreed between the parties that it should be returned to the Defendant who would repair it. The Plaintiff agreed to pay half the cost of repairing it and that the Defendant should deduct this from the £80 deposit the Plaintiff had paid and return the balance to the Plaintiff. The Plaintiff returned the lorry to the Defendant who has since sold it to a third party, but the Defendant has never repaid to the Plaintiff the balance of his deposit.

The Plaintiffs claim in the Court below was for the return of his deposit. The learned trial Judge held that one half of the cost of repairs to be borne by the Plaintiff was 125/11/6 and gave judgment for the Plaintiff for £80 less £25/11/6 namely £54/8/6 and costs.

The Defendant has appealed on the following main grounds —

1) that the alleged agreement had not been registered and it was therefore unenforceable by virtue of the provisions of the Contract Act Sections 3, 4 and 5, and

2) that credit should have been given to the Defendant for the cost of spare parts that he bought for the vehicle.

The learned trial Judge held that the agreement sued upon in this case was not a contract for goods supplied or to be supplied or money to be lent or services to be rendered. The transaction did not therefore fall within the provisions of the Contract Act which requires such contracts to be in writing and registered. He held that the contract in this case was merely an agreement to cancel the original agreement for the sale of the lorry and for the return of the deposit paid.

With this finding we .agree. The lorry in this case always remained the property of the Defendant. It was not to be transferred to the Plaintiff until he had completed payment thereof. He was merely given possession of it and the right to use it until he had completed payment of the agreed purchase price. When he returned it to the Defendant on the Defendant's agreement to refund the balance of the £80 deposit, the Plaintiff was not entering into a contract for goods to be supplied and their agreement was not one that required to be registered.

In our opinion there are no merits in any of the grounds of appeal. The Defendant-Appellant has already been given credit for that part of the cost of repairs which the Plaintiff-Respondent agreed to bear.

This Appeal is dismissed with £5/5/0 costs.