Sembi Paikel v Kaiwe Pty Ltd [1997] PNGLR 603

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 24 October 1996
• Citation: [1997] PNGLR 603
• Court: National Court
• Year: 1997
• Judgement Number: N1483

Full Title: Sembi Paikel v Kaiwe Pty Ltd [1997] PNGLR 603

National Court: Injia J

Judgment Delivered: 24 October 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 853 OF 1991

BETWEEN

SEMBI PAIKEL — Plaintiff

And

KAIWE PTY LTD — Defendant

Mount Hagen

Injia J

23 May 1996

24 October 1996

CONTRACT — Bailment — meaning of — Bailor — Owner or person in possession of — Bailee — Motor vehicle repair workshop — property — Motor vehicle — Bailee released motor vehicle to wrong person after repair — Rights of bailee and duties of bailor discussed.

Cases Cited:

No cases are cited in the judgment.

Counsel:

D O'Connor for the Plaintiff

K Yaual for the Defendant

24 October 1996

INJIA J: This is an action for damages for the loss of a 25 seater PMV Nissan bus, which the Plaintiff claims he owns. He claims he deposited the vehicle with the Defendant at its workshop for repairs but when he returned to collect it, the Defendant could not deliver it because the Defendant had wrongly released the vehicle another person.

The case for the Defendant is accurately summarised by counsel for the Defendant Mr O'Connor in his written submission which reads:

"The Defendant admits that it completed repairs to an identified vehicle but denies that the vehicle was unlawfully released to an unknown third party as alleged. It says that the vehicle was released to Elias Kaeyo, a driver and mechanic employed by the Plaintiff and related to the Plaintiff by marriage.

The Defendant says that by the conduct of the Plaintiff and Elias Kaeyo the Defendant was reasonably led to believe Elias Kaeyo was the owner of the vehicle or a duly authorised agent. It further says that the Plaintiff has since the vehicle was released been able to recover his vehicle and denies the claim for damages."

The evidence for the Plaintiff was given by the Plaintiff himself and Muku Taupin. Their respective affidavits were admitted into evidence (Exhibit "A" & "B"). The Defendant called the Workshop Manager, Max Buntrock, Robert Kawek, Rita Taru and Passingan Taru. Their affidavits were also admitted into evidence (Exhibit "H"-"K").

In my view, this is claim for damages for breach of contract of bailment. A contract of bailment is defined as:

"a delivery of personal chattels in trust, on a contract, express or implied, that the trust shall be duly executed, and the chattels re-delivered in either their original or an altered form, as soon as the...condition on which they were bailed shall have been...performed"; Re S David & Co Ltd [1945] Ch 402 at 405.

The issues in this trial concern the identification of the bailor or the "owner" of the vehicle. Mr O'Connor refines these issues as follows:

1. Was the Plaintiff the owner of the vehicle subject of this proceedings?

2. Was Elias Kaeyo an agent or servant of the Plaintiff or was he an unknown third party.

3. Was it reasonable in the circumstances for the Defendant to release the vehicle to Elias Kaeyo?

4. If the answer to issue number 3 is "No", is the Plaintiff entitled to the relief sought in paragraph 15 of the Statement of Claim.

It was an implied term of the bailment that the motor vehicle would be re-delivered to the bailor upon being repaired and upon payment of the repair cost. Who then was the bailor? Was it the Plaintiff or Elias Kaeyo?

Where the Plaintiff is the bailor and he is the owner of the motor vehicle no question should arise. In the present case, the Plaintiff says in his affidavit evidence that he is the owner of the vehicle. In cross-examination, he admitted that one Anai Yanda is the registered owner who is his brother. He says he had possession and control of the motor vehicle. In the Writ, he pleads that he purchased the bus in Lae and makes no mention of any equitable interest or mere possessory and usage rights. At the same time the Defendant in its Defence and verified Statement in Answer to Interrogatories filed on 30/8/94 denied the Plaintiff was the owner of the vehicle.

The Defendant submits that on the evidence and the pleadings, the court should find the claim not proven on the basis that the Plaintiff is not the registered owner of the motor vehicle and that he is not entitled to the relief he seeks in these proceedings.

The plaintiff has brought these proceedings on the basis that he is the "owner" of the vehicle having purchased...