SUPREME COURT OF SAMOA
Toomata v Tagaleo [2013] WSSC 135

Case name: Toomata v Tagaleo
Citation: [2013] WSSC 135
Decision date: 15 November 2013
Parties: LEON TOOMATA, of Lelata, Fisherman (Plaintiff) v PETELONILA TANYA TAGALEO, of Togafuafua, Receptionist (First defendant) and  MALIA MOEGA, of Faleasiu, Unemployed (Second Defendant)
Hearing date(s): 16 & 17 September 2013
File number(s): CP 163/12
Jurisdiction: Civil
Place of delivery: Mulinuu
Judge(s): Justice Nelson
On appeal from:
Order:
Representation: 
S Wulf for plaintiff
L Stevenson for defendants
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Commonwealth v Stevenson [1993] WSCC 30
ALCC Brown v Savainaea [2009] WSSC 2
Stowers v Chan Mow [2013] WSCA 2
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
CP 163/12
BETWEEN:
LEON TOOMATA, of Lelata, Fisherman.
Plaintiff
AND:
PETELONILA TANYA TAGALEO, of Togafuafua, Receptionist.
First defendant
AND:
MALIA MOEGA, of Faleasiu, Unemployed.
Second Defendant
Counsels:   S Wulf for plaintiff
L Stevenson for defendants
Hearing:   16 and 17 September 2013
Ruling:   15 November 2013

ORAL RULING OF NELSON J
1.	The plaintiff claims that in January 2012 the defendants advertised their 1999 Toyota Corolla Sedan for sale for $9,000.00.  He heard the ad on Talofa FM and responded.  On 17 January 2013 he met the defendants outside the main government building in Apia and inspected the vehicle.  He agreed to buy it but told the defendants he needed to uplift funds from Western Union.  The parties travelled there and after uplifting his money he came out and told the defendants he only had $6,000.00.  He says the defendants agreed after discussion to reduce the price of the vehicle to $6,800.00 on condition he paid $6,000 in cash that day and was given a week to settle the balance.  On this basis the vehicle was handed over to the plaintiff.  To secure payment of the balance he agreed to give the defendants his passport.  
2.	In his oral testimony the plaintiff added that the car was old, had a cracked front windscreen, was dirty and had scratches on it and the cover to one of the rear lights was damaged.  This evidence was not in the plaintiffs original affidavit filed in this matter.  In his oral testimony he also said that at all times he spoke and dealt with the second defendant.  He never talked to the first defendant who was also present and that he only discovered subsequently that the vehicle in fact belonged to the first defendant.  That part of his evidence is not in his filed affidavit either.  
3.	The plaintiff said a few days later the first defendant got the vehicle off him to use.  And that this was not the first time.  She also came and asked to use it a second time to visit the second defendant at her home at Faleasiu.  He agreed but he was not happy.  So he went with his wife to Faleasiu and met with the defendants.  He told them that he no longer wanted the vehicle and wanted his money back.  He said at that meeting the second defendant told him that was a matter between him and the first defendant who owned the vehicle.  The first defendant told him the money had already been spent on a family faalavelave. But that if he pays for the Land Transport Authority change of vehicle ownership costs and gives her some cigarette money that would suffice.  The plaintiff says he agreed.  
4.	In his oral testimony he modified this affidavit evidence and said there were two separate trips to Faleasiu. The first by himself and the second accompanied by his wife.  And that one week later he picked up the first defendant to effect the change of ownership.  But the first defendant reneged on their arrangement and insisted he pay the outstanding balance of $800.00.  She refused to sign the change of ownership form until he paid the money.  He told her ‘no’ as far as he was concerned the matter was settled.  
5.	The plaintiff says he invested $6,177.00 in repairing the vehicle.  And he was shocked when the first defendant forcibly took possession of the vehicle while he was in Savaii for fathers day in August 2012.  He accordingly repudiates the contract to buy the vehicle and has brought these proceedings for his money back.  Seeking that the original $6,000.00 be repaid plus repair costs of $6,177.00.  He also seeks general damages and costs.  
6.	The plaintiff called his wife to support his testimony in relation to the visit to Faleasiu.  She confirmed his evidence that the first defendant settled for the plaintiff paying change of ownership costs plus cigarette money.  But I did not find the plaintiffs wife a plausible witness.  She deviated from her affidavit evidence more than once.  And in re-examination, about various paragraphs of her affidavit and in relation to a purported phone call admitting liability from the second defendant she reverted back to what was in her affidavit.  After denying it in cross examination.  She also said she told her husband about this phone call. But her husband made no reference to any such ‘we are happy’ phone call from the second defendant.  It is also apparent from the wifes evidence she is relying a lot on what her plaintiff husband told her.  Her evidence is of limited if any corroborative value.  
7.	The plaintiff also called his engineer to prove the repair costs.  But the engineers records were all destroyed in Cyclone Evan.  His testimony was therefore based on memory alone.  He must have remarkable recall abilities given the details in his testimony.  I contrast that to the evidence of the defendants engineer which was markedly different but was supported by documentation.  
8.	At the close of the plaintiffs case he applied to discontinue his action against the second defendant.  As it was clear the owner of the vehicle was the first defendant.  And any capacity in which the second defendant acted would have been as an agent of the first defendant.  That application was proper but should have been made earlier.  It was granted with costs in respect of  the second defendant reserved.  
Defendants case:
9.	The first defendant says that when she decided to sell her car she was advised by her aunty the second defendant to leave the negotiations to her as she was too soft.  From then on the second defendant took over and on her behalf advertised the vehicle and fielded all enquiries.  The vehicle was advertised for 9,000.00. They met the plaintiff in front of the government building where he inspected the vehicle and agreed to buy it.  But he said his money was coming via Western Union.  They went to Western Union and after retrieving his funds the plaintiff told her he only had $6,000.00.  But could pay the balance if he was given time.  First defendant said the matter was discussed and they agreed to let the plaintiff take the car and work it as a taxi in order to pay off the balance.  
10.	She says the plaintiff agreed to make payments of $350 per week for the period 17 January until 20 March 2012 to pay off the balance.  A period of some 8 weeks.  He also agreed interest of $200 a week was payable in case of a default in the weekly payment.  Further because the remaining balance was quite significant the second defendant asked the plaintiff for his passport to secure their arrangement.  The plaintiff agreed and handed the document over to the second defendant.  She was happy for her aunty to keep it because she is employed as a hotel receptionist and was living with relatives it would be safer if kept by her aunty.  
11.	First defendant said the plaintiff went into almost immediate default which caused her to chase up the payments.  As the defendant was not answering her phone calls she went to his fathers house looking for him.  The plaintiff was not there but he found out about her visit.  Came to her place of work and told her he could not pay the balance unless he travelled overseas for a job he had lined up in the Cook Islands.  For that he needed his passport released.  
12.	First defendant said she agreed and they travelled to Faleasiu to the second defendant to retrieve the passport.  The second defendant was not happy with the arrangement and warned her against it.  And because she persisted the second defendant became angry with her and resigned from having anything further to do with the matter.  Her aunty handed over the passport to the plaintiff.  Plaintiff took the passport and was not heard of for quite some time.  Neither were any monies forthcoming.  
13.	First defendant denied any agreement to reduce the price to $6,800.00.  In cross examination she accepted that the plaintiffs $6,000.00 was used to meet her fathers funeral expenses.  But said she also wanted to make a profit from the sale hence her sticking with the price of $9,000.00.  She said the interest was not that important only the outstanding balance.  With the assistance of the police and her lawyer she was able to repossess the vehicle in August 2012.  Because the vehicle had some problems she took it to her engineer.  He fixed it and billed her $2,360.00 for repairs which she paid.  The vehicle then became involved in an accident and is now a write off.  No one wants it now.  She denies the plaintiffs claim and has counter claimed for various items.  In particular the remaining balance of the purchase price plus accrued interest.  
14.	The second defendants testimony essentially confirmed that of the first defendant.  In particular the terms of the contract being payment of $6,000.00 as a deposit with the balance to be paid over 8 weeks at $350.00 per week with interest chargeable of $200 per week if there was default in the weekly payment.  
15.	The first defendant also tried to call other corroborative witnesses but as their testimony was not put by counsel to the plaintiff in cross examination in breach of the long established rule in Browne v Dunn I ruled that their evidence was not admissible.   
Analysis:
16.	The burden of proving a claim is on a plaintiff who brings it.  And he or she must do it on a balance of probabilities.  The quality of the evidence adduced on behalf of the plaintiff was poor.  His own evidence was not plausible.  Further there were important and material parts left out of his sworn affidavit specifically prepared for the purpose of this trial.  There were also inconsistencies between to some of his testimony and that of his wife.  For example in relation to the trip or trips to Faleasiu to meet the defendants.  And it is difficult to accept that a passport would be handed over to secure a debt of only $800.00.  It is far more believable that it was necessary to secure a larger amount and payments by installment.  
17.	The plaintiff also changed his evidence when questioned on some issues by myself.  For example on how long the first defendant used the vehicle.  Originally he said she used it for two days then changed that to three or four days.  He also could not explain why if he is correct that he used the vehicle as a taxi, why he made no effort to pay any part of the outstanding $800.00.  His answers left a lot to be desired. 
18.	As observed above his wifes evidence did little to salvage his credibility.  And his engineers evidence was memory reliant.  Which cannot compare to that based upon the documentary evidence kept by the defendants engineer.  
19.	I prefer instead the evidence of the defendants.  Their accounts were more cogent believable and consistent.  I find that the contract between the parties was for sale of the first defendants vehicle to the plaintiff for the sum of $9,000.00.  Of which $3,000.00 remains unpaid.  Property in the vehicle was intended by the parties to pass and did in fact pass to the plaintiff when the $6,000.00 deposit was paid.  And physical possession of the vehicle was given to the plaintiff.  
20.	There is no indication that this was made conditional on payment of the outstanding balance.  The parties had already provided for the means of payment of the balance of the purchase price.  Registration of the change of ownership appears not to have been specifically addressed at the time.  But only became an issue subsequently.  I do not accept plaintiffs evidence that the first defendant waived payment of the outstanding balance provided the plaintiff paid change of ownership costs and cigarette money.  But since she had not received the outstanding balance the first defendant was quite entitled to refuse to sign the change of ownership form.  That does not invalidate or otherwise affect the contract already entered into between the parties.  Or the passing of good title in the vehicle to the plaintiff when possession of the vehicle was handed over.  
21.	I further find that the terms of the contract was that the plaintiff was to meet the outstanding balance by weekly payments of $350.00 with provision for charging interest at the rate of $200.00 per week in the event of late payment.  An exorbitant rate but I accept that was what the parties agreed upon.  Such interest is now payable as a matter of law.  Because in this case the plaintiff is saying that it was a specific term of the contract.  A term which like every other term of the contract is enforceable against the plaintiff.  Difficulties only arise in cases where no provision has been made for interest in the relevant contract.  Or where it does not arise by implication from the dealings between the parties.  See Commonwealth v Stevenson [1993] WSCC 30 and ALCC Brown v Savainaea [2009] WSSC 2.  
22.	Accordingly the plaintiff is liable to the first defendant for the unpaid balance of $3,000.00 plus weekly interest calculated at $200.00 times 8 weeks equals $1,600.00.  I do not award interest at $200.00 per week beyond that period as there is no evidence that was within the contemplation of the parties.  The evidence is the parties negotiations did not go as far as addressing such an eventuality. Neither would it be reasonable to imply such a term into the contact.  
23.	As to the first defendants counterclaim the first defendant quite properly waived her claim for payment of her mechanics invoice and for exemplary damages.  Likewise she has no basis for claiming loss of income for the period the vehicle was in the plaintiffs possession. Because if the contract had been  completed as anticipated her only entitlement was to payment of what was due to her pursuant to the contract.  Nothing more nothing less.  She is however in my view entitled to some interest for loss of the use of the monies due to her i.e. the $3,000.00 as from the date the contract should have been completed and the outstanding purchase price paid in full i.e. as from 20 March 2012 which is the date of completion stipulated in the contract as per her affidavit and her testimony up until todays date being the date of judgment.  
24.	As to the rate to be applied for such interest I follow the approach approved by the Court of Appeal in Stowers v Chan Mow [2013] WSCA 2 and fix that rate at 8% per annum.  I calculate accrued interest to be as follows:  20 March 2012 to 20 March 2013 accrued interest of $240.00; from 21 March 2013 to 15 November 2013 interest accrues at 71 sene per day for 240 days that is a sum of $170.43.  Total amount of accrued interest accordingly is $410.43.  
25.	There will be judgment for the first defendant: 
(i)	In the sum of $3,000.00 being the unpaid purchase price of the vehicle;
(ii)	In the sum of $1,600.00 representing interest due on said monies;
(iii)	In the sum of $410.43 by way of general damages for the loss of the use of said monies.  
Total award of $5,010.43.  
26.	Defendants are both entitled to costs.  Defence counsel to submit the relevant memorandum within 7 days hereof for approval.  The costs of each defendant are to be apportioned and claimed separately.  
Addendum
27.	Costs memo now filed.  Second defendant awarded her full costs in the sum of $1,426.25; first defendant as per normal practice will be awarded ⅔ of her costs being the sum of $1,584.17.

………………………
JUSTICE NELSON