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Sep v RB Panel Shop Pty Ltd [1999] PGDC 13; DC59 (5 July 1999)

Unreported District Court Decisions

[1999] PNGDC 13 - PETER SEP V RB PANEL SHOP PTY LTD

[1999] PNGDC 13

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 263 OF 1998

PETER SEP (Complainant)

v

RB PANEL SHOP PTY LTD (1^st Defendant) AND RONNIE BOAS (2^nd Defendant)

Kimbe

S Lenalia PM

29 June 1999

5 July 1999

Representation:

Counsel/Representative:

Complainant: O Oiveka

Defendants: L Mongko

Lawyers/Representative:

Complainant: Public Solicitor

Defendants: Tamusio Lawyers

S LENALIA PM:

N1>[1]����� The complainant claims damages for a motor vehicle Toyota Hiace Bus Registration Number P407P a 15 seater bus operated as a public motor vehicle. He paid a deposit of K200.00 and left his vehicle at the two defendants premises to be repaired. The vehicle was left there for sometimes and eventually, the complainant found out that all removable components were all removed leaving the mere skeleton on the yard of the two defendants.

N1>[2]����� Peter Sep says in evidence that on 23 May 1996, he approached the proprietor (who is the second defendant) of the first defendant and entered into an agreement for the second defendant to repair his vehicle. He was asked to deposit K400.00 but merely deposited K200.00 on the condition that after repair, the balance would be paid together with labour. Having paid the K200.00, the complainant left his vehicle in the premises of the two defendants. It is the complainant's evidence that the second defendant operated the premises as a workshop conducting business in the nature of general vehicle repairs.

N1>[3]����� Upon advice from the second defendant, the complainant further bought certain spare parts with receipts given to the second defendant in the hope that the second defendant was to keep and maintain a file at the second defendant's workshop. According to the complainant's evidence, he bought the following spare parts and supplied them to the second defendant:�

N2>(a)����� 1 x head gasket

N2>(b)����� 4 x glow plugs

N2>(c)����� 4 x injector nozzles

N2>(d)����� 1 set conrod bearings

N2>(e)����� 1 set crank shaft bearings

N2>(f)����� 8 seal valve stem oil

N1>[4]����� After the complainant had given the spare parts to the two defendants, the vehicle could not be fixed and according to Peter, his vehicle was dismantled three or four times and it is not clear from his evidence why was it dismantled but perhaps with the view to discovering the mechanical defect and eventually it was discovered that a crack on the crankshaft was causing much fumes and the engine oil was leaking.

N1>[5]����� Upon identifying the fault, the second defendant advised the complainant to take the crankshaft to Kimbe Bishop Brothers to be repaired. By about 13 January 1997 the complainant also found out that the proprietor had commenced renting the workshop to another tenant Mr Steven Kilala as from 2 December 1996. On this visit the complainant enquired with Mr Kilala as to what was happening to his bus. Mr Kilala informed the complainant that the same had commenced renting the premises since 2 December 1996 and that he had no knowledge of the complainant's bus. The complainant was also informed that any vehicles including that of Peter Sep, which came into their workshop while Ronnie Boas was running it, Mr Boas was liable. Following such revelations, the complainant discovered that all the main components of his vehicle had been removed. The complainant informed Mr Ronnie Boas about what Mr Kilala said and Mr Boas instructed the complainant to take the matter to police perhaps with the view to take out criminal prosecutions.

N1>[6]����� The Complainant further deposed that to date only the body of the vehicle sits in the defendants workshop. According to his evidence, Peter further deposes that, his vehicle was only two (2) years old when he brought it into the defendants workshop.

N1>[7]����� The defence does not deny the fact that the complainant had deposited his vehicle into their yard. They deny however that they were responsible for removing parts from the complainant's vehicle. Evidence of Mr Ronnie Boas reveal that, the complainant had removed some parts too from his own vehicle. To confirm this view, Ishmael Wakuku was called to be cross-examined by the complainant's lawyer who confirmed his affidavit and said, he saw the complainant remove the windscreen and took it away with him. There was no other evidence to substantiate evidence by Mr Ronnie Boas that, the complainant had taken other parts from his bus. I am only entitled to accept evidence by the defence in relation to removal of the windscreen by the complainant.

N1>[8]����� I am grateful to the lawyers for their written submissions. The complainant's submission is that there was a contract entered into by himself and the two defendants for purposes of repairing the complainant's bus. The defence argues that there was no contract as such but was merely an invitation to treat. In an invitation to treat, one party may simply ask for an invitation or invite the other to make an offer. The aforementioned party is then said to make an invitation to treat. The question whether a statement is an offer or an invitation to treat depends primarily on the intention with which it was made.

N1>[9]����� It is my view that in the case before me, it was not merely an invitation to treat, but the act of agreement to pay a deposit cash of K400.00 of which K200.00 was actually paid by the complainant to the second defendant signified an actual contract being entered into for purposes of repairing the complainant's bus. The vehicle was put into the second defendant's workshop and it was the responsibility of the defendants to take care of it. It is a case where the complainant had entrusted to the defendants care and security of his vehicle on the condition that the two defendants would look after it until it was repaired.

N1>[10]��� I feel the defendants owed a duty to the complainant's vehicle to ensure that his vehicle was safe from vandalism. I must find for the Complainant.

N1>[11]��� In assessing damages, I take into account the unchallenged evidence by the complainant of the list of missing parts prepared by Ela Motors�Kimbe Branch. The total value of all the missing parts from his bus amounted to K11,372.00, quite substantial, however the complainant has merely claimed K5,600.00. It is also the complainant's evidence that he spent some K1,900.00 for new parts which the complainant bought and by himself on the advice of the second defendant. Due to no independent evidence on the value of the windscreen and due to no evidence of which part or which windscreen was removed by the complainant, I will place a value of K500.00 being the second-hand which was perhaps sold by the complainant. I deduct that K500.00 from the amount claimed and leave the balance of K5,100.00 due and payable to the complainant by the defendants.

N1>[12]��� Judgment is therefore entered for the complainant in the sum of K5,100.00 plus the cost incordance with the District Court Scale due and payable within fourteen (14) days, in default distress.

N1>[13]��� Orders accordingly.