IN THE HIGH COURT OF JUSTICE. Between KERRON MURPHY. And TRAVIS CHARTER. Trading as AJ S AUTO SUPPLIES. Oral Judgment

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV Between KERRON MURPHY Claimant And TRAVIS CHARTER Trading as AJ S AUTO SUPPLIES Defendant BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR APPEARANCES: Ms. B. Lodge-Johnson for the Claimant Mr. A. Ashraph for the Defendant Oral Judgment Background 1. On the 9 th October 2008 the claimant delivered to the defendant s agent,a vehicle, an engine, and parts (A Nissan twin cam 16 valve engine and radiator,1 mesh grill, 2 headlights, Front fender, Front bumper, Front nose cut.), for installation. Page 1 of 9

2 2. He first made a payment on or around May 2009 when he paid $ towards the cost of the work. 3. Although an estimate was provided to the claimant for the works to be done purportedly dated the 3 rd November 2008, that estimate appears to reflect the payment of the $ made in May It therefore must have been created, in its final form, after that payment. 4. The claimant admits that he had personal issues and, after November 11th 2008, did not visit the defendant s garage again until March When he visited the defendant in or around March 2009, (and, according to him at several other times thereafter), he observed that the vehicle had been placed in the yard of a neighbour of the defendant 2 houses away. 6. On the 15 th day of May 2009 the vehicle was missing, presumed stolen. The Claim 7. The claimant claims that the defendant was in breach of a duty of care to keep the vehicle safe and secure while it was in his custody while undergoing repairs, the subject of bailment. 8. The defendant claims that all repairs had been completed, that a reasonable time had elapsed, that the claimant had not paid in full for the repairs, or attended to collect his vehicle, Page 2 of 9

3 and that he could not be held responsible for safe storage of the vehicle more than 7 months after it had been delivered to him. Issue 9. The key issue of fact is whether the repairs had been completed. If they were completed then the claimant had a duty to pay for the repairs and retake possession of the vehicle within a reasonable time. 10. If they had not been completed then the defendant had a duty, (as the bailment would have continued while he was in the process of repairing it), to take reasonable steps to keep it safe and to not negligently place it where it would be unsecured or could be stolen. 11. Counsel for the claimant directed the court to the following helpful authority. Peddrick v Morning Star Motors Ltd 14 th February 1979 It was obviously an implied term of that agreement which one would not have expected to be put in as an express term because it was so obvious that when the repairs had been done by the Defendants, subject to any right of lien for payment of money that was due for the work done, should allow the Plaintiff to take that car away. It was equally obviously an implied term of that agreement that when the repairs had been duly done, the Plaintiff should make proper payment for them, in accordance with the contract, and should take the car away. If the Plaintiff, of his own volition, and contrary to the wish of the Defendants, chose to leave that car with the Defendants when the Defendants asked him to take it away on the due performance of the contract, that would be a breach of contract on the part of the Plaintiff. I do not see that Page 3 of 9

4 there can be any doubt about those implied terms. It is not part of a contract, when somebody hands over a chattel to somebody else in order to work upon it, that the person to whom it has been handed over should be obliged, by virtue of his contract, to keep that chattel whether it be a white elephant, a motor car or anything else indefinitely, for the convenience of the owner and his own inconvenience and disadvantage. 12. The claimant claims that the works had not been completed. He claims that the clutch plate and clutch pedal had not been installed. Neither had the bumper and the grill. 13. The defendant states that the works had been completed. He admits that he had removed the battery and fuel pump so that the vehicle could not be driven, and he retained the keys. I expressly find that this did not mean that the repairs had not been completed, as the evidence is that the fuel pump could have been re- installed within 10 minutes, as could the battery. 14. He denies that the clutch plate and pedal had not been installed, as he testified that although he did not do the works himself he supervised, and was aware that the vehicle had been started. He could tell from that fact that they had been installed. 15. According to the claimant, the grill and bumper had not been installed as of March when the vehicle had been moved to the new location by the neighbour s house. He had taken photographs which show this. The defendant was not in a position to deny this. I find that it is more likely than not that these had not been installed, though the absence of these items did not Page 4 of 9

5 affect the roadworthiness of the vehicle, as I accept the evidence of the defendant that the vehicle could have been driven, had he not removed the fuel pump, and had he installed a battery. 16. The defendant claims that the vehicle was towed to its location two houses away although the initial arrangement between him and Guptar was that it would be towed to Guptar s home 2 miles away, while the defendant retained the keys and fuel pump to ensure payment. 17. It therefore is an issue of credibility and weight. I take into account the following matters which arise from the evidence. i. Is it more likely than not that the claimant, who let considerable periods elapse between his visits to the vehicle and the garage, was even in a position to know whether the clutch plate and pedal had not been installed? I find that the evidence of the defendant is more credible in this regard, and that these had been installed. ii. Why would these not have been installed after 7 months? No reason has been suggested as to why these particular items would remain uninstalled after 7 months, or why, if so, the claimant would not have complained about what would have been an inordinate delay. iii. If they had not been installed why would there be a need to even retain the keys, or the fuel pump, since without clutch plate and pedal the vehicle could not have been driven in any event. There would have been no need to further remove the fuel pump to ensure that it could not be removed without payment. Page 5 of 9

6 iv. Why did the claimant not complain that they had not been installed after 7 months if he in fact was ready and able to collect the vehicle (in May, shortly after he had paid $ the first payment that he made to the defendant). v. The defendant on the other hand departed from his pleaded case in that he testified that the vehicle had not been removed under an arrangement between the Claimant and Guptar, but rather under an arrangement between the Defendant and Guptar. vi. However the claimant knew that the vehicle had been moved on his visit in March and therefore, if he had concerns over the safety of the vehicle, had the opportunity to pay off for the vehicle s repairs and retrieve it shortly after he made the payment of $ in May. Instead he left it, in its substantially repaired condition, at that site, while not making efforts to pay the defendant for the repairs. 18. Accordingly I find that the repairs were in substance complete, a. Save for the reinstallation of the battery and fuel pump, (which were removed to prevent the vehicle being driven away, in exercise of the defendant s mechanic s lien), and b. Save for the installation of the grill and bumper, which did not affect the ability of the vehicle to be driven. 19. I find that that in all likelihood the vehicle repairs had been substantially completed, particularly as the claimant did not complain that they had not. Page 6 of 9

7 20. In particular I find that even if the grill and bumper had not been installed, all the other repairs, including all repairs necessary to ensure that the vehicle was mobile, had been completed as at May 2nd. 21. I find that the claimant had only paid $ out of the bill for over $ , that he knew that the vehicle had been removed to the neighbour s yard, yet took no steps to pay off for the vehicle. 22. The finding on a balance of probabilities that the repairs had been completed leads in law to the finding that the duty of the defendant as bailor, while undertaking repairs to the vehicle, came to an end after a reasonable period had elapsed thereafter. I find that on a balance of probabilities, repairs had been substantially completed by March when the vehicle had been removed off site. Alternatively, at latest, they were complete by May 2 nd when the claimant made his first payment. 23. In either event by May 15 th a reasonable period had elapsed, and the claimant was required to make proper arrangements to pay for the repairs and collect his vehicle. 24. Alternatively, even if the defendant s duties as bailor did continue as a result of the repairs not having been completed, (contrary to my express findings), or otherwise, there is no evidence, apart from the fact that the vehicle was apparently stolen, that the defendant was in breach of duty. Page 7 of 9

8 25. He took steps to ensure that the vehicle was immobile, as it was missing a battery, a fuel pump, and the keys. According to claimant, it was even missing the clutch plate and pedal, though I do not accept this. 26. The vehicle had to be towed to the location from which it was presumably stolen. In all likelihood, it would have had to be towed from that location, unless the thieves were extraordinarily well equipped with keys, battery, and fuel pump. 27. The vehicle was not left on the street, or in a readily mobile condition. It is not alleged that parts were stolen from it. The claim is that the entire, immobile, vehicle went missing. The defendant took reasonable steps to ensure that the vehicle could not be easily removed in ensuring that the entire vehicle was so immobile. The fact that those steps were unsuccessful does not mean that he was in breach of duty to take reasonable care for the safety and security of the vehicle. 28. The claimant s case must therefore be dismissed. Page 8 of 9

9 Costs 29. Having heard the parties on costs, and the defendant graciously electing to forego costs, each party is to bear his own costs. Dated the 30 th day of September, 2014 Peter A. Rajkumar Judge The Court is indebted to counsel and their teams, in particular for the diligence of their research and the thoroughness and extreme detail of their written submissions, from which great assistance was derived. Page 9 of 9