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Tu'ivai v Nalesoni [2009] TOLawRp 64; [2009] Tonga LR 458 (14 October 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CV 173/2009

Tu'ivai

v

Nalesoni anor

Salmon J
13 October 2009; 14 October 2009

Practice and procedure – order sought for release of bus from repairer – contract issue to be resolved – order denied

The plaintiff had contracted the defendant to repair a bus. The parties had different accounts of the contractual arrangements for the repairs to the engine of the bus. The defendants held the bus because the plaintiff had not paid for the repairs. The plaintiff claimed damages and an order for release of the bus.

Held:

1. The repairer of a motor vehicle was entitled to hold the vehicle until paid and also had certain rights to sell the vehicle in the event of non-payment. It was inappropriate for the Court to make an order for release of the bus.

2. The Court ordered that the defendants deliver the bus to ASCO Motors so that the plaintiff could obtain a report on its mechanical condition. The bus must be returned to the defendants after it was inspected.

3. The substantive proceedings should be set down for hearing.

Mr Tu'ivai in person
Counsel for the defendants : Mrs Fakatulolo

Judgment

[1] Mr Tu'ivai issued proceedings relating to a bus repaired by the defendants. The defendants still hold the bus because Mr Tu'ivai has not paid for the repairs. His claim is for damages and an order for release of the bus.

[2] The hearing before me related to an application, originally made ex parte, seeking as interim relief the immediate release of the bus and certain other orders. It was apparent from the pleadings and was emphasised during the hearing that the parties had very different accounts of the contractual arrangements for the repairs to the engine of the bus. It was obvious that these differences could only be resolved at a full trial with the opportunity for cross examination. After the conclusion of the hearing I was advised that the parties had reached a settlement but it appears that Mr Tu'ivai is not prepared to proceed with it.

[3] I pointed out to Mr Tu'ivai during the hearing that the repairer of a motor vehicle is entitled to hold the vehicle until paid and also has certain rights to sell the vehicle in the event of non payment. For this reason and because of the widely divergent views as to the terms of the contract it would be inappropriate to make an order for release of the bus at this stage.

[4] I am however prepared to make an order that the defendants deliver the bus to ASCO Motors so that Mr Tu'ivai can obtain a report on its mechanical condition. The bus must be returned to the defendants after it has been inspected.

[5] The substantive proceedings should be set down for hearing. The file will be returned to Shuster J to arrange an appropriate directions conference.