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Niuatui v Alesana [2003] TVHC 25; HC Civil Case No 02 of 1999 (30 September 2003)

IN THE HIGH COURT OF TUVALU

CIVIL JURISDICTION

CIVIL CASE No: 2/99

LOMIATA NIUATUI

Plaintiff

v

ELISAIA ALESANA

Defendant

James Duckworth for plaintiff
Saini Seluka Maialau for defendant

Hearing: 24 September 2003
Judgment: 30 September, 2003

Judgment

This is a claim for the return of money paid by the plaintiff for a second hand computer and printer sold to him by the defendant in a private sale. The basis for the claim as summarised in the writ is that the return is being sought because the goods were not of merchantable quality nor were they reasonably fit for their purpose. In the statement of claim it is said to be for breach of express/implied terms as stated in the claim. The express terms were that he would have an opportunity to test the computer and printer, that they were reliable, in good working order and were sufficient for his needs (paragraph 2) and the implied terms were that the defendant would supply a computer printer that was of merchantable quality and reasonably fit for the purpose for which they were supplied (paragraph 5).

The plaintiff’s case was that he answered an advertisement for a computer and printer and, on 19 or 20 January 2000, he and the defendant went with their respective wives to the Baha'i centre where the defendant had been doing some secretarial work for the Baha'i community. The plaintiff switched the computer on and checked the programmes. He found it had the programmes he required and then opened a file and tried to print it. It did not print. He told the court that the defendant said it was a minor problem, that he would fix it and then deliver it.

In his statement of claim the plaintiff had claimed the printer was not tested there at all (paragraph 3).

The defendant had the computer delivered the next day about 2.30pm and the plaintiff tried it out. The computer was working but the printer was not. He rang the defendant and said he did not want the computer and he should come and collect it. Later that evening, when the defendant had not collected it, the plaintiff took both the computer and printer round to his house and left it. It is still there.

When the plaintiff first registered his interest in the computer, his wife left a cheque with the defendant's wife for the sale price of $2,400.00. The day after the plaintiff had tested it at the Baha'i centre, the wives met and took the cheque to the bank where it was cashed. The computer was delivered later the same day.

The defendant and his wife gave evidence. The defendant told the court how he had to go to the outer islands after he placed the advertisement and, on his return, his wife told him she had a cheque for the full amount. He advised her not to cash it until the plaintiff had seen the goods.

He told the court that, when they checked the machine at the Baha'i centre, the plaintiff checked the computer first and said it was all right. He then checked the printer and said it was not working. The defendant checked and agreed because it was printing but would not print in black and white; only in green. He was sure it was simply that the cartridge was empty. The plaintiff said it was only a minor problem and it would be fine.

He said that the plaintiff then told his wife he was satisfied and they would go ahead and purchase it. The two men then agreed that the defendant would deliver it the next day and the wives agreed also to meet the next day in order to cash the cheque at the bank.

The next day the plaintiff rang after working hours and said he would return it because he was not satisfied with the printer. The defendant continued, "I said, ‘All right but I have to consult my wife’. ... I also pointed out the deal was completed." It was some time after that ‘phone call that the computer and printer were returned to his house.

He said that he agreed to deliver the computer because the plaintiff had accepted the goods. He explained in re-examination that, when the computer was not working, the plaintiff said it was minor problem and he would look into it later when the computer reached his house. He indicated that he also thought it was the cartridge and he would get a new cartridge.

The only issue of fact is whether, when the computer was tested at the Baha'i centre, it printed but in green only and was agreed to be a minor problem or whether it did not work and the defendant said he would fix it and then deliver it.

I am satisfied that the computer was tested then and the parties agreed it was a minor problem. If the plaintiff believed the defendant was to repair it and then deliver it, I do not accept he would have allowed the wives to arrange to meet the next day and cash the cheque before that was done. Neither do I accept that, if there had been such a condition, he would have agreed to have it delivered without a further check that it had been complied with.

On the evidence before me, I am satisfied on balance of probabilities that there was a sale of those goods at the Baha'i centre. Although the defendant offered to deliver the goods, I am equally satisfied that it was, in fact, a sale at the time of acceptance by the plaintiff and the property in the goods passed and was intended to pass at that time to the plaintiff.

The plaintiff claims it was an express term that he should have an opportunity to view and test the goods to ensure they were in good working order and sufficient for his needs. I am satisfied on the evidence that he was given such an opportunity at the Baha'i centre and availed himself of it.

There is no evidence that there was an express term that the goods were sufficient for the plaintiff’s needs and such a term will only be implied where the person selling has specialist knowledge and the buyer makes it clear he is relying on it. That clearly does not apply in this case.

I accept that there is an implied term in every sale that the goods are of a merchantable quality and reasonably fit for the purpose for which they were supplied. The plaintiff must prove to the civil standard that the goods were not. If there is any defect revealed, the buyer may still accept the goods in that condition. I am satisfied that is what occurred here. The plaintiff’s inspection of the goods revealed a problem. I am satisfied that both parties thought the problem was simply an exhausted cartridge. Whether it was or not has never been demonstrated because the plaintiff returned the goods apparently without trying that solution. The evidence satisfied me that he accepted the goods in the condition he had found them on inspection. At that time, he was aware of the problem with the printer but still closed the deal.

Even on the plaintiff’s case, if I had found that the defendant had offered to fix the problem before delivery and the plaintiff had discovered at his house that the problem persisted, there is only evidence that it would have amounted to a breach of warranty when the goods were delivered and accepted by the plaintiff. As such it would not have given the plaintiff any right to reject the goods as he attempted to do in his telephone call and later did by leaving them at the defendant's house. However, as I have stated, I do not accept that promise was made and I prefer the defendant's account of the events at the Baha'i centre.

The plaintiff's claim fails.

In his statement of defence, the defendant claims reasonable payment for the care and custody of the goods since the plaintiff returned them. This should have been drafted as a counter claim. The plaintiff opposes it but takes no objection to the form of the claim.

It is clear that section 37(l) of the Sale of Goods Act, 1991, acknowledges the right of a seller to make such a charge. If such a claim is to succeed, the court needs evidence that the goods have not been collected and that a request has been made to the buyer to collect them. There was evidence that the defendant and his wife wrote to the plaintiff on 1 February 2000 and included a request that he should collect the goods.

I do not think the justice of this case would be served by such an order. The plaintiff has a computer for which I suspect he no longer has any use. During the time he has been pursuing this action it may well have deteriorated. If it has, that is his fault but the case has also taken a long time in the courts through no fault of the parties.

I therefore order that the claim be dismissed. The plaintiff shall remove the computer from the defendant's home within 28 days. If he fails to do so, the defendant shall charge him for the care and custody of the computer at the rate of $10 per month from the date of this judgment. If it has not been collected by the end of six months from the date of this judgment, the defendant shall sell it for the best price he can obtain, deduct the cost of his care and custody from the proceeds and pay the balance, if any, to the plaintiff. The plaintiff shall also pay the defendant $6 for the court fee.

Dated this 30^th day of September, 2003.

THE COURT.