Supreme Court
Action No. 88 of 1982
19th May, 1983
Moe, C.J.

Mr. L. Welch for the Plaintiff.
Mr. P. Zuniga for the Defendant.

Claim for return of portion of purchase price paid to Defendant for motor vehicle - Counterclaim for damages for loss and damage suffered as a consequence of the Plaintiff's breach of agreement for sale - Transaction between parties - Agreement to buy by installments or a conditional sale agreement - Plaintiff defaulted and Defendant repossessed - Plaintiff entitled to damages for breach of agreement up to date of repossession - Damages awarded of $297.00 representing money spent on repairs to vehicle and balance on installments less credit to Plaintiff for value of wagon which she was buying but which he got back - Costs to Defendant.

JUDGMENT

The Plaintiff claims from the Defendant the return of $2,230 which she paid him for a station wagon sold to her by him on credit for $3,500. The Defendant removed the wagon from her possession without her consent, sold it and has not returned the $2,230. The Defendant says that there was an agreement for sale of the wagon containing certain specified terms. The Plaintiff broke the terms of the agreement by virtue of which he was entitled to repossess the wagon. He counterclaims for damages for loss and damage suffered as a consequence of the Plaintiff's breach of the agreement.

There is common ground between the parties that the Defendant agreed to sell to the Plaintiff, who agreed to buy the wagon for $3,500. That it was agreed that the Plaintiff would pay a deposit of $1,000.00 which she did. That the Plaintiff would pay the balance in installments of $75.00 per week on every Saturday. That the Plaintiff would take delivery of the wagon and be responsible for its repairs. That when the Plaintiff had fully paid, the Defendant would give the Plaintiff title to the car.

There was some dispute as to whether there was a term of the agreement that if the Plaintiff made default in three consecutive installments the Defendant would be entitled to repossess the wagon. The Plaintiff's evidence on this was not clear. At one stage she said that the Defendant did not want the $75.00 installment to run over three weeks, that there was no agreement the Defendant would take back the wagon if she defaulted in payment but in cross-examination she admitted that when she first had the arrangement she understood payments were not to be three in arrear and that it was made clear if she fell down, the Defendant would be entitled to take back the wagon. She then maintained that the Defendant's making it clear he would repossess was after she had defaulted in installment payments. In addition the Plaintiff herself put in evidence a statement of account she received from the Defendant which carried a notice that the wagon would be repossessed if payments were three weeks overdue and most importantly the following "our agreement was that at no time payment should overdue 3 weeks period". Here I set out the notice in full:

"This statement is the total of cash paid toward St. wagon car. This is a notice that if payment is not paid up to date and payment in future payment is to be paid every Saturday of each week. Any time payment is over 3 week over due we will have to repossess said car and all payment will be freeze and charged as if car was on rent for each day from the start of payment. Our agreement was that at no time payment should overdue 3 weeks period."

That notice written by the Defendant in my view substantiated the Plaintiff's version. At that date the Defendant reminded the Plaintiff of the agreement that payments were not to be 3 weeks overdue but he did not say the agreement was that he was entitled to repossess in such a circumstance. He was then giving notice that in future, if payments were so overdue he would repossess and treat all payments as charges for the car as if it was on rent.

The Defendant sought to add a new term to the agreement but I held that that was not a specific term of the agreement entered into by the Plaintiff.

Now since the property in the wagon was to take place in the future, I hold that the transaction between the parties was an agreement to buy by installments or a conditional sale agreement. In view of the amount agreed to be paid for the wagon, the agreement is not governed by the Hire Purchase Ordinance CAP 214. See section 3 of the Ordinance.

The Plaintiff defaulted in her payment of installments and the Defendant repossessed the wagon and there is evidence that when approached about the matter she asked for time to meet her commitments. She thus evinced an intention to carry on with the agreement. After a lapse of some time, 10 months, the Defendant repossessed the wagon. When the Defendant did so, he effectively determined the agreement between the parties. He is however entitled to damages for any breach of the agreement by the Plaintiff up to that date. See Financings Ltd. v. Baldock [1963] 2 Q.B. 104 and Brady v. St. Margaret's Trust Ltd. [1963] 2 Q.B. 494.

The Defendant claimed damages in the sum of $1,827.00 which he spent on repairs due to the Plaintiff's failure to maintain the wagon in a good and serviceable condition. He satisfied me on this claim and I allowed the amount. The Defendant also asked for damages in the sum of $3,000 being 40 weeks of installment payments of $75.00 for the period from 25th April,1980 when the Plaintiff last paid until the date of repossession by the Defendant. I think what he is entitled to is the balance of installments which he would have received if the agreement had been carried through, i.e. $l,270.

In his claim for damages, the Defendant must however give the Plaintiff credit for the value of the wagon which she was buying but which he got back. There is evidence that it was then worth $2,800.00. Deducting that figure from the sum of $3,097, the amount of $297 is left.

The Defendant will have judgment for that amount and costs.

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