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Fifita v Bailiff Officers [1999] TongaLawRp 30; [1999] Tonga LR 158 (23 July 1999)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku’alofa

CA 21/99

Fifita

v

Bailiff Officers

Burchett, Tompkins, Beaumont JJ
16 July 1999; 23 July 1999

Sale of goods — vehicle seized under writ of distress — question of ownership of vehicle — when does property pass?
Creditors’ remedies — vehicle seized under writ of distress — question of ownership of vehicle

The appeal was concerned with questions of title to, and property in, a motor vehicle that arose in interpleader proceedings. The appellant agreed to sell a vehicle to the fourth respondent for the price of $8,987 (including insurance). After payment of a deposit of $3,500 there was a balance of $5,487 to be paid. Under the agreement the vehicle was registered and licenced in the appellant’s name and would remain so until the fourth respondent had paid the balance in full. The fourth respondent had possession of the vehicle upon the signing of the agreement and the payment of the deposit but was to return the vehicle to the appellant if the fourth respondent breached any part of the agreement. The fourth respondent paid the appellant some of the instalments due under the agreement, but then defaulted. By 19 September 1997, the fourth respondent was in default and owed the appellant $4,237. Meanwhile, the second, third and fourth respondents became involved in litigation in the Supreme Court in which the fourth respondent was ultimately the unsuccessful party. On 19 September 1997, the vehicle was seized by a Bailiff Officer under a Writ of Distress issued by order of the Supreme Court dated September 1997. The appellant gave notice of his claim to the vehicle (dated 25 September 1997) to judgment creditors (the second and third respondents). By their notice of dispute of claim dated 30 September 1997, the second and third respondents gave the appellant notice that they disputed his claim of title. On 6 July 1998, in a reserved judgment, the Judge made orders to this effect: the appellant’s claim was dismissed; the sale of the vehicle was directed to proceed; the Bailiffs’ costs were to be deducted from the proceeds of sale; the costs of the second and third respondents were also to be deducted from the proceeds; and the balance of the proceeds were to be paid to the fourth respondent. On 18 September 1998, the vehicle was sold by the Bailiffs pending a final court order (the Bailiffs held the net proceeds of sale, $2,850, in a Bank Term Deposit). The appellant appealed from the orders made at first instance on 6 July 1998.

Held: