Sammut v De Rome

[2011] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION:

Sammut v De Rome [2011] QDC 294

PARTIES:

Daniel Sammut  
(Plaintiff)

v

Joanne De Rome & Geoff De Rome   
(Defendants)

FILE NO:

408 of 2010

PROCEEDING:

Trial

ORIGINATING COURT: 

District Court, Southport

DELIVERED ON:

18 November 2011

DELIVERED AT:

Southport

HEARING DATES:

16 – 18 November 2011

JUDGE:

Judge C.F. Wall Q.C.

ORDER:

Judgment for the plaintiff against the defendants for $108,394.04 plus costs

CATCHWORDS:

Sale of goods by description – 1969 GT XW Ford Falcon motor vehicle – Contract for sale of goods – essential term of contract that vehicle was genuine 1969 GT XW Ford Falcon vehicle – goods did not correspond with the description – breach of essential term of contract – damages

LEGISLATION:

Sale of Goods Act 1896 s 16

CASES: 

Cassar v Pegoraro [2011] VCC 819

COUNSEL:

Mr Michael Wilson for the Plaintiff

The defendants represented themselves

SOLICITORS:

Harris and Co. for the Plaintiff
The defendants acted for themselves

HIS HONOUR:  The plaintiff's case against the defendants involves the sale by the defendants to the plaintiff of a 1969 GT XW Ford Falcon motor vehicle.

The defendants believed that the vehicle was, in fact, a 1969 GT XW Ford Falcon vehicle and the plaintiff wanted to purchase such a vehicle.

The plaintiff's case is that there was within section 16 of the Sale of Goods Act, a sale by description, of the vehicle.  Alternatively, it is alleged that it was an essential term of the contract for the sale of the vehicle that the vehicle be a 1969 GT XW Ford Falcon vehicle.

The defendants deny that the second defendant, Mr De Rome, was with the first defendant, Mrs De Rome, an owner of the vehicle.

I am satisfied, in the circumstances, that the defendants were joint owners of the vehicle.  It was never suggested by the first defendant to the plaintiff that she alone was the owner of the vehicle. 

In my view, the first defendant, at all times, was acting on her own behalf and on behalf of the second defendant in relation to the sale of the vehicle and what she said in relation to the vehicle was said on behalf of herself and also the first defendant.

The vehicle was purchased in July 2006 from Jim Watt for $18,000.  The receipts issued by Mr Watt to the defendants are issued in the name of both defendants.  They are Exhibit 2.

The purchase money was handed to Mr Watt by the first defendant.   He said that he handed the deposit of $2,000 to Mr Watt and Mr Watt gave him a receipt.  The receipt was given to him in the name of the first defendant and the second defendant as purchasers. 

Within a week the first defendant, who handled the family finances, gave the second defendant $16,000 and he took that amount and gave it to Mr Watt.  Mr Watt gave him a receipt in the name of both the first and the second defendant.

The second defendant did not demur at all in the case of either receipts and did not suggest to Mr Watt that he was not, with the first defendant, a purchaser of the vehicle.

The other evidence supporting ownership of the vehicle by the first and the second defendants is its insurance.  The insurance documents, Exhibit 8, are addressed to the first and second defendant and reflect changes to their insurance policy. 

The vehicle purchased by Mr Watt, described as a 1969 Ford Falcon GT XW sedan, was insured for $25,000.  The name of the insured persons was the first defendant and the second defendant.

The first defendant gave evidence that she handled the family's finances and that she would have seen this letter and that in all probability the second defendant would not have seen it.  If that was the case, and her case is that she alone was the owner of the vehicle, then she should have informed the insurance company that the inclusion of her husband as an insured was not correct.

So I am satisfied that the vehicle was owned by both of the first and second defendants and that, in relation to its sale to the plaintiff, the first defendant was acting and making representations in relation to the vehicle on behalf of herself and her husband.

The vehicle was advertised in the Trading Post as a GT Falcon 1969 XW, matching numbers, all original, beautiful condition $143,000 or nearest offer, and then the defendants' phone number and address, Oxenford, was given.

The plaintiff responded to that advertisement.  He wanted to purchase a genuine 1969 GT XW Ford Falcon.  He said that he rang the phone number and spoke to the first defendant.  This was on the 1st of October 2007.    He said to her, "Is it the real thing?  Is it a genuine GT?"  She said, "Yes, it is."  He asked her if the numbers were matching.  She said, "Yes." 

He then asked for further details and the first defendant sent him an email on the same day at 3.25 p.m. containing details of the vehicle.  That email is document 2 in Exhibit 1.

The Trading Post advertisement is Exhibit 7 and the internet copy of that is document number 1 in Exhibit 1.

The plaintiff checked with the Ford Motor Company at Broadmeadows and confirmed the numbers.  He also made a finance check and confirmed that there was no money owing to anyone on the vehicle.

The plaintiff and the first defendant discussed the price.  The first defendant said, for a quick sale, she would take $100,000.  He offered her $90,000 because he wanted a genuine GT vehicle.  This was in the phone conversation on the 1st of October.  The first defendant said that it had matching numbers and was an original.  It was after this conversation that he received the email and then rang the Ford Motor Company.

On the 2nd of October 2007 the plaintiff flew to Brisbane and inspected the car in less than ideal conditions in a shopping centre type car park.  The first defendant picked him up at the airport.  It was dark.  He checked the numbers using his mobile phone light.  He saw a couple of bubbles of rust.  He agreed to purchase the vehicle subject to a panel beater checking the rust and on the basis that the rust was not, to use his words, "too bad".  He then paid a deposit of $2,000 and he was issued with a receipt for that amount which describes the vehicle as a GT XW number JG33JC3792.  The correct number is JG33JC37792 but nothing turns on that difference for present purposes.

The receipt is document number 3 in Exhibit 1 and is for $2,000.

The plaintiff then returned to New South Wales where he lived and flew back to the Gold Coast on the 9th of October with Steve Peek, a friend of his who was a panel beater, who he brought with him to inspect the rust on the vehicle.  I am satisfied that that was all that Mr Peek inspected the vehicle for because as a result of the representations made by the defendants to the plaintiff, the plaintiff was satisfied that it was a genuine GT XW vehicle.

I prefer the evidence of the plaintiff to the evidence of the defendants as to the circumstances of the sale on the 9th of October 2007.  I think the plaintiff's evidence is more consistent with the objective and documentary facts than the evidence of the defendants.

The plaintiff, on the 9th of October 2007, purchased the vehicle for $90,000 and was initially issued with a receipt for $70,000.  He asked for a receipt for the correct amount and was then issued with the receipt, which is document 5 in Exhibit 1.  I prefer the plaintiff's evidence as to these receipts, to the evidence of the first defendant.

Much was made by the defendants of the words on the receipts, "as is".  In my view, the meaning of those words must depend on the particular circumstances of the case and the particular facts of each case.  In the present case those words meant, I consider, accepting the evidence of the plaintiff, that it was a genuine GT XW vehicle. 

The second defendant had previously indicated to the plaintiff that the aerial and radio in the vehicle were not original.  On the 9th of October, the plaintiff spoke to the second defendant about the vehicle and the second defendant said to him that the only things which were not original on the car were the aerial and the radio. 

On the 9th of October, on the advice of Mr Peek that the rust was not too bad, the plaintiff agreed to buy the vehicle for $90,000.

"As is", in my view, means in this case, a genuine GT XW 1969 Ford Falcon motor vehicle with the radio and the aerial, as described by the second defendant and with the rust then apparent on the vehicle. 

The plaintiff said that he wanted a genuine GT vehicle.  The defendants believed that they were selling him a genuine GT XW vehicle.  He believed that he was purchasing a genuine GT XW vehicle.

In August 2009, he sold the vehicle.  The purchaser had it inspected and two weeks later advised the plaintiff that it was not an original or genuine GT XW vehicle.  He then rang the first defendant, told her that it was not an genuine vehicle.  She said that the expert didn't know what he was talking about.

The vehicle is not, in fact, a 1969 GT XW Ford Falcon motor vehicle.  I accept the evidence of the two experts who gave evidence, Mr Hansen and Mr Lloyd. 

Mr Hansen prepared a report, Exhibit 4.  He gave evidence that the vehicle is not a genuine GT XW 1969 Ford Falcon and he provided reasons in his report.  He said that the engine number, shown in the photograph 1962, is genuine but has been put on the vehicle.  The number doesn't belong to the vehicle.  The vehicle identification number, shown in photograph 3367, is not a number which belongs to the vehicle.  The section containing the number has been welded to the vehicle.  He said the vehicle has been rebirthed from a 1970 model XY Falcon, with numbers obtained from a 1969 XW GT vehicle.  He said the worth of such a vehicle is about one-seventh of the value of a genuine vehicle.

In 2007, when the plaintiff purchased it for $90,000 that represented about what it was worth then as a genuine vehicle.  Today's values are 25 to 30 per cent less.  Its current value, if genuine, would be $65,000 to $70,000.

Mr Hansen was vigorously cross-examined by the first defendant, but maintained his view that the vehicle was not a genuine XW GT Ford Falcon and I accept that that is the case.

His evidence was supported by the other expert, Justin Lloyd, who X-rayed the vehicle identification number and as a result concluded that the segment containing that number had been welded in.  It was not originally part of the vehicle.  It would not have been there upon manufacture.  He was not able to access the shock tower to X-ray the other number as his equipment was too big.

The first defendant confirmed much of the plaintiff's evidence.  She confirmed that the plaintiff asked her, on the 2nd of October, "Is it the real thing?"  She replied, "Yes."  She said that the plaintiff was interested in getting a real 1969 GT XW Falcon and she believed that she had one.  She believed that the vehicle she was selling was such a vehicle because it had matching numbers.

When the plaintiff inspected the vehicle in Brisbane on the 2nd of October, she said that he said he liked what he saw and agreed then, subject to further inspection in relation to rust, to purchase the vehicle for $90,000.

As I said before, I prefer the plaintiff's evidence as to what occurred at the defendants' house on the 9th of October to the evidence given by the defendants. 

Little weight can be placed on the fact that the vehicle was purchased for $18,000, having regard to the circumstances of that purchase as described by the second defendant.  There is no obligation on the part of the defendants to tell the plaintiff how much they had purchased the vehicle for.

But in relation to that, the plaintiff said that when the first defendant gave him the two receipts, Exhibit 2, she blacked out the purchase price either in his presence or before giving them to him.  She said that she did this.  Her son Brett said he did it.  Their evidence was not consistent in relation to that fact and is another factor detracting from their credibility.

Further, I don't believe the second defendant when he referred to being able to hear various conversations.  In my view he was taking little notice of what was happening and was leaving everything up to the first defendant.

The same applies to their son Brett.  Further, in relation to his evidence, it transpired that he was present in Court when all of the evidence of the plaintiff and the plaintiff's witnesses and the first and second defendants' evidence was given.  So he had plenty of opportunity to know what other witnesses had said before he gave evidence.

In my view, there was no pressure by the plaintiff on the defendants or on the first defendant for the defendants to sell the vehicle.  The defendants would have been more than satisfied with the price of $90,000 for a vehicle which a year or so earlier they had purchased for $18,000.

Judging from the evidence of Brett De Rome not a great amount of work was done on the vehicle.  He said he disassembled the motor and replaced the camshaft.

In my view, the plaintiff would not have purchased the vehicle had he known that it was not a genuine 1969 GT XW Ford Falcon motor vehicle.

In my view, there was a contract for the sale of goods by description with the implied condition that the goods shall correspond with the description.  The description was "a real genuine 1969 GT XW Ford Falcon motor vehicle" and the vehicle sold did not correspond with that description.

In this respect the case is on all fours with the circumstances which existed in Cassar v. Pegoraro, a decision of the Victorian County Court given on the 30th of June 2011.

The first defendant, in her submissions, sought to distinguish that case on its facts and there are, I agree, distinguishing factual features between that case and this.  Nevertheless, I am satisfied that, like the situation in that case, the sale here was a sale by description.  A reasonable person would understand the description in the advertisement and the email and the conversations which took place between the plaintiff and the first defendant as a sale of a genuine 1969 GT XW Ford Falcon motor vehicle.

The plaintiff agreed to purchase the vehicle for $90,000 only on the basis that the vehicle was a genuine 1969 GT XW Ford Falcon motor vehicle.

Alternatively, if I am wrong in relation to the sale being a sale by description, I am satisfied that it was an essential term of the contract for the sale and purchase of the vehicle that the vehicle be a genuine 1969 GT XW Ford Falcon motor vehicle and it was not.  On that basis there was a breach of contract because the vehicle was not a genuine 1969 GT XW Ford Falcon motor vehicle.

So, on either basis pleaded by the plaintiff, the plaintiff is entitled to succeed.  It was either a sale by description or if it was not a sale by description there was an essential term of the contract that the vehicle be a genuine 1969 GT XW Ford Falcon motor vehicle.

No issue was taken about damages.  The plaintiff has retained the vehicle.  Its value today is given as $15,000 dollars.  Mr Hansen referred to an amount of $10,000 in paragraph 21 of his report, Exhibit 4.

The plaintiff's damages are calculated as follows:

Purchase price $90,000, less value of the vehicle $15,000, balance $75,000 

There is also a claim for $383 for the plaintiff's airfares on the 2nd of October, $215 for his airfares on the 9th of October and $215 for the airfares of Mr Peek on the 9th of October.  The total claim for airfares is $813. 

The vehicle was towed from the Gold Coast to New South Wales and the towing cost was $1,000.

Total damages therefore are $75,000 plus $813 plus $1000, a total of $76,813.

FIRST DEFENDANT:  Excuse me, your Honour.  Are we allowed to have the car re-valued to see what the cost of the vehicle is?

HIS HONOUR:  No.

FIRST DEFENDANT:  And I have got some things here on replica GTs but the car's - if it - if it is it's a re-bodied GT which it's still worth really good money.  I don't‑‑‑‑‑

HIS HONOUR:  Well‑‑‑‑‑

FIRST DEFENDANT:  ‑‑‑‑‑believe this is fair.

HIS HONOUR:  But the - the evidence of the expert, Mr Hansen, is that its value is about $10,000 and‑‑‑‑‑

FIRST DEFENDANT:  Your Honour‑‑‑‑‑

HIS HONOUR:  ‑‑‑‑‑the plaintiff has given a value of $15,000 so that is more‑‑‑‑‑

FIRST DEFENDANT:  I have one here for 39‑‑‑‑‑

HIS HONOUR:  ‑‑‑‑‑more‑‑‑‑‑

FIRST DEFENDANT:  ‑‑‑‑‑exactly what they've got.

HIS HONOUR:  ‑‑‑‑‑towards your favour than he was.

FIRST DEFENDANT:  And also, your Honour‑‑‑‑‑

HIS HONOUR:  Now, I'd just like to finish what I'm saying, please.

FIRST DEFENDANT:  Yes.  Yeah.

HIS HONOUR:  Now, the plaintiff is also entitled to interest from the 9th of October until today.  At what rate, Mr Wilson?

MR WILSON:  I checked the default interest rate in the practice directions.  It's been 10 per cent since the 1st of July 2007, your Honour.  I have a spreadsheet calculation here of the interest if that interests your Honour.

HIS HONOUR:  Yes.  What's the interest from - from - on $76,813 from the 9th of‑‑‑‑‑

MR WILSON:  From the 9th of October 2007 to today‑‑‑‑‑

HIS HONOUR:  Yes.

MR WILSON:  ‑‑‑‑‑is 1,501 days and the daily rate is $21.04.

HIS HONOUR:  Yes.

MR WILSON:  That gives a total interest of $31,581.04.

HIS HONOUR:  31,581.

MR WILSON:  And four cents.

HIS HONOUR:  Yes.  All right.  Well, what's that total then?

MR WILSON:  Those - those two total, your Honour, at $110,450.41.

HIS HONOUR:  All right.  Well, I accept those interest rate calculations.  Interest amounts to $31,581.04.  That amount added to $76,813 gives a total of $110,450 and forty‑‑‑‑‑

MR WILSON:  Sorry, your Honour.  Can I just‑‑‑‑‑

HIS HONOUR:  Yes.

MR WILSON:  I just made a little mistake with that and I'll just correct it.  My calculator wasn't working correctly, your Honour, and it's - sorry, it's a little less 108 394 and 4 cents.

HIS HONOUR:  All right.  The total of those two amounts of $31,581.04 and $76,813 is $108,394.04.  I give judgment for the plaintiff against the defendants for $108,394.04. 

MR WILSON:  We - we seek an order for costs on the standard basis, your Honour?

HIS HONOUR:  Yes.

FIRST DEFENDANT:  Your Honour, I need to speak, please.

HIS HONOUR:  Yes?

FIRST DEFENDANT:  I accept your judgment.  Okay.  I don't accept that you never took into consideration anything I said because I told the truth.  I don't think that was fair.  Secondly, I have made an offer.  I made an offer to Mr Sammut this morning.  Let's try to work this out.  I made him an offer this morning and I made him an offer three weeks ago.  Can those offers be taken into consideration?  Next‑‑‑‑‑

HIS HONOUR:  Well, if - if they were more than 108,394‑‑‑‑‑

FIRST DEFENDANT:  Your Honour, I don't - we don't have that.  We don't have any money whatsoever.  We live in the worst part of Nerang.  We live in a house that my husband bought for 220,000 that has a mortgage for 220,000.  We're grateful to have that house 'cause we're not paying rent of $500 a week.

HIS HONOUR:  Mmm.

FIRST DEFENDANT:  You know?  He doesn't work.  I get a food package at the Dream Centre.  We're not in a position to - to pay.  I don't know what I would do but going bankrupt is - is going to gain nothing.  But I just don't - you know - well, what do we do, sir?

HIS HONOUR:  Well, I - I mean, I - I can only give the judgment which I consider is supported by the evidence.

FIRST DEFENDANT:  What - so what do I do about costs.  And also I have evidence here that the car is worth more than $12,000.  If I - you know - I would be happy to have the car back if I had the money to pay for it.  I need time.  Time to get the money on the offer I made this morning.

HIS HONOUR:  Well, it was less than $108,394‑‑‑‑‑

FIRST DEFENDANT:  They were willing to accept $70,000 two weeks ago, your Honour.  I have it in writing.

HIS HONOUR:  Well, you didn't pay it though, did you?

FIRST DEFENDANT:  I - I - I didn't have 70.

HIS HONOUR:  All right.

FIRST DEFENDANT:  My son said he could lend me some.

HIS HONOUR:  Yes.

FIRST DEFENDANT:  Then he spent it.  I would need time to pay a reasonable amount of money.

HIS HONOUR:  Well - well, you'll have to sort it - you'll have to negotiate that with the - with the plaintiff, you know.

FIRST DEFENDANT:  Is it allowed to be‑‑‑‑‑

HIS HONOUR:  Well, you‑‑‑‑‑

FIRST DEFENDANT:  ‑‑‑‑‑negotiated?

HIS HONOUR:  You - you can - you - you won't be able to - well, you can talk.  That's all I can say.

FIRST DEFENDANT:  Can you give permission for me to negotiate that‑‑‑‑‑

HIS HONOUR:  You - you'll - you'll be able to do that in any event.
MR WILSON:  It's always available.
HIS HONOUR:  Yes.

FIRST DEFENDANT:  But on pensions what do people do like this?

HIS HONOUR:  Well, I - look, I mean, I can only - you'll - you'll have a chance to talk.  All right.  I'll just finish the judgment.

I give judgment for the plaintiff against the defendants for $108,394.04.  I order that the defendants pay the plaintiff's costs of and incidental to the proceeding to be assessed on the standard basis unless agreed.

Now, that's all I can do today.  It's a matter for you to talk to the other side‑‑‑‑‑

FIRST DEFENDANT:  Your Honour, can I just ask‑‑‑‑‑

HIS HONOUR:  ‑‑‑‑‑about‑‑‑‑‑

FIRST DEFENDANT:  ‑‑‑‑‑are you - can you apply to the Court or something to get help or - I - I just don't know where to go.

HIS HONOUR:  No.  No.  No, we've - the Court doesn't have any facilities.

FIRST DEFENDANT:  Well, what does happen to people in this situation?

HIS HONOUR:  Well, they either pay up or negotiate with the other side a payment arrangement or a payment plan or they go bankrupt.

FIRST DEFENDANT:  Well, I - if I go bankrupt then we have to pay $500 a week rent and we only get 500 between us.  So what would you suggest in your wisdom, sir?

HIS HONOUR:  Well, no, I - I - I can't suggest.  I mean, I - I'm - I'm not a - in the business of doing that.  I'm sorry.  But you'll have to talk to the other side.

FIRST DEFENDANT:  Okay.  Thank you.

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