Gerard Antrobus v Neal & Massy Automotive Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Dean-Armorer, J.
• Judgment Date: 05 February 2018
• Neutral Citation: TT 2018 HC 107
• Docket Number: Cv. 2011-03442
• Court: High Court (Trinidad and Tobago)
• Date: 05 February 2018

High Court

Dean-Armorer, J.

Cv. 2011-03442

Gerard Antrobus

and

Neal & Massy Automotive Limited

Appearances:

Mr. Lennox Sanguinette, Attorney-at-Law for the Claimant

Mr. Faarees I Iosein, Advocate instructed by Andrea Orie, Attorneys-at-Law for the Defendant

Sale of goods - Purchase vehicle — Several defects discovered -Whether vehicle was of reasonable quality and durability — Breach of implied condition — Right to reject.

REASONS

INTRODUCTION

Dean-Armorer, J.

1 In mid-2008, the Claimant, Mr. Gerard Antrobus bought a new Tiida from the Defendant, Neal and Massy Automotive Ltd. (N.M.A.L). He experienced many difficulties with his new vehicle, and returned to the Defendant on some twenty five (25) occasions, seeking repairs. Ultimately, Mr. Antrobus abandoned the vehicle on the compound of the Defendant. He instituted these proceedings pursuant to the provisions of the Sale of Goods Act Ch 82:30.

2 On the 14th July, 2017, I gave judgment for the Claimant. My reasons for so doing are set out below.

PROCEDURAL HISTORY

3 The Claimant, Gerard Antrobus instituted these proceedings by his Claim Form and Statement of Case on the 9th September, 2011. He sought the following relief:

• “(i) Damages for breach of contract in relation to defects in HCK 3855.

• (ii) Damages for loss of earnings.

• (iii) Interest…

• (iv) Costs…”

4 The Claimant was granted permission to amend his Statement of Case, which he did on the 30th January, 2012. By his Amended Statement of Case, the Claimant made this plea:

“2. On or about August, 11, 2008 acting on the assurance of the defendant that HCA 3855 was a brand new Nissan Tiida free from defects and a vehicle suitable for use as a hire taxi, the Claimant purchased the car HCA 3855.”

The Claimant listed the alleged defects and at paragraph 21, made this allegation:

“21. The defendant at the time of the contract was well aware that the Claimant was purchasing the car for use in his business as a taxi driver and that certain implied conditions were expected. Namely that the vehicle should be of reasonable quality and durability for that of a car for hire…”

5 The Defendant filed its Defence on the 5th December, 2011. At length, the Defendant applied to strike the Claim on ground that it failed to disclose a reasonable cause of action. Parties filed written submissions in support of and in opposition to the application to strike.

6 On the 11th March, 2014, the Court struck out paragraphs 10–25 of the Amended Statement of Case on the ground of prolixity, but refused to enter summary judgment.

7 The trial was heard on the 1St February, 2016, the Claimant testified on his own behalf, while David Jardim and Allister Gordon and Curtis Browne testified on behalf of the Defendant.

8 Following the trial, parties were allowed time to file written submissions.

FACTS

9 In August, 2008, Mr. Antrobus visited the showroom of N.M.A.L in Morvant, and spoke to an employee of the Defendant. Mr. Antrobus, could not at first recall the name of the employee. However, while under cross examination, Mr. Antrobus recalled that he had spoken to Mr. Allistar Gordon, a New Car Sales Representative for Nissan vehicles. This was consonant with the evidence of Mr. Gordon, who stated in his witness statement that the claimant sought him out and indicated that he wished to buy a new Tiida. Mr. Gordon also testified that he was aware that the Claimant was purchasing the vehicle for use as a taxi.

10 Mr. Antrobus enquired about the Nissan Tiida Motor Vehicle and asked Mr. Gordon whether the Tiida was suitable for use as a taxi. Mr. Gordon told Mr. Antrobus that the Tiida was suitable for use as a taxi and admitted under cross examination that any new motor vehicle would be suitable for use as a taxi.

11 Mr. Antrobus, obtained financing from Scotiabank, in order to pay the purchase price for a brand new Tiida. On the 11th September, 2008, Mr. Antrobus conducted a pre-delivery inspection and was told that his vehicle was in good working order and took delivery of his new Tiida, registered as HCK 3855. On that day, Mr. Gordon gave Mr. Antrobus his Warranty Information Booklet.

12 Mr. Antrobus began using the vehicle as a taxi, plying the route between Morvant and Port-of-Spain.

13 Two weeks after the purchase, Mr. Antrobus returned to the Defendant on the 22nd September, 2008 with complaints that the brakes were not holding and that the gears were not changing smoothly. The Defendant conducted the required repairs.

14 In the months which followed, it became necessary for Mr. Antrobus to return to the Defendant with complaints concerning the new vehicle, on some twenty five (25) occasions.

15 On each occasion, the Defendant, through its employees assisted Mr. Antrobus, conducted the required repairs and returned the vehicle to him. Mr. Antrobus, on most occasions, was not required to pay for repairs.

16 There was no dispute as to the dates on which Mr. Antrobus returned to complain and these are set out in the table below:

Date	Complaint
1. 22nd September, 2008	Brakes not holding properly and gears not changing smoothly.
2. 10th October, 2008	Right rear door was sticking. Windshield wipers vibrating and horn not working.
3. 13th October, 2008	Rubber on the left rear door was hanging loose and front brakes not holding properly.
4. 20th October, 2008	Left back rubber coming loose.
5. 7th November, 2008	Horn not working.
6. 4th December, 2008	Left rear door rubber falling off; air and oil filter not changed and brakes not functioning. Vehicle kept overnight.
7. 2nd January, 2009	Vehicle not starting, battery defective.
8. 26thFebruary, 2009	Hearing rolling noise from the rear.
9. 2nd March, 2009	Unusual heaving rolling noise.
10. 22nd April, 2009	Horn not working.
11. 6th May, 2009–7th May, 2009	Left rear door rubber hanging loose. Screeching noise using wipers, rear tyres junking and pinging noise from the engine.
12. 8th May, 2009	Oil leak at the left front wheel.
13. 29th May, 2009	Horn not working.
14. 15th July, 2009	Knocking noise from the steering wheel.
15. 12th October, 2009	Vehicle not starting.
16. 22nd November, 2009	Engine misfiring and knocking noise from the suspension.
17. 11th December, 2009	Handbrake coming up too high; Noise from fan belt. Brakes noisy. Rear door rubber burst.
18. 30th December, 2009	Brakes noisy.
19. 17th March, 2010	Transmission giving trouble. Car kept for 2–3 weeks. Claimant given an extended warranty.
20. 20th April, 2010	Horn not working.
21. 5th May, 2010	Noisy brakes.
22. 17th June, 2010	Boot rubber burst and rattling front vehicle over rough roads.
23. 13th June, 2010	Renewal of transmission.
24. 6th August, 2010	Engine misfiring.

17 It was not disputed that the vehicle incurred significant mileage, higher than that of the average customer and that Mr. Antrobus missed some recommended services.

18 Nevertheless, under cross-examination, Mr. Curtis Broome, technical analyst for N.M.A.L., admitted that one hundred and eighty kilometres (180 km) per day for two trips per day was not excessive.

19 After having returned to N.M.A.L. on some twenty-five (25) occasions, the Claimant visited the Defendant towards the end of August, 2010, and spoke to the General Manager, David Jardim. The Claimant told Mr. Jardim that he did not want the vehicle anymore.

20 Mr. Jardim told the Claimant that the vehicle was already two (2) years old and that in the space of two years, the vehicle had incurred significant mileage, that is to say, in excess of 130,000 km. However, the Defendant offered to obtain a sale of the vehicle. Mr. Antrobus asked that the vehicle be sold for Eighty-Five Thousand dollars ($85, 000.00).

21 The demand of Eighty-Five Thousand dollars ($85,000.00) proved to be too high. Offers were not exceeding Sixty- Seven Thousand ($67, 000.00). The Defendant in the interest of good customer relations, offered to buy the vehicle free from all encumbrances. It transpired however, that there were sums owing to the Scotiabank.

22 The defendant wrote to the Claimant by a letter dated 17th January, 2011, requesting that the Claimant retake possession of the vehicle by 28th January, 2011, failing which the Claimant would be required to pay a daily fee of One Hundred dollars ($100.00) for every day that the vehicle remained on the Defendant's compound.

23 The Defendant indicated further that no steps would be taken to restrain Scotiabank from exercising its right to possession. Scotiabank in fact repossessed the vehicle from the compound of N.M.A.L. on the 27th January, 2011. The Defendant wrote to Mr. Antrobus on the 31st January, 2011 and informed him that the vehicle had been repossessed.

SUBMISSIONS AND LAW

25 Parties relied on the very scholarly and useful submissions of their respective attorneys-at-law. It was common ground that the claim was built on the provisions section 16 of the Sales of Goods Act, Chap 82:30.

THE SALE OF GOODS ACT, CHAP. 82:30 (“THE ACT”)

26 Section 16 of the Act provides as follows:

• “(1) Except as provided by this section and section 17 and subject to any other written law, there is no implied condition or warranty about the quality or fitness for any particular purpose of goods supplied under a contract of sale.

• (2) Where a seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of merchantable quality except that there is no such condition–

  • (a) as regards defects specifically drawn to the buyer's attention before the contract is made; or

  • (b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal.

• (3) Where the seller sells goods in the course of a business and the buyer...