Benjamin Evans Kah-lam Wang v. Concord Ltd

HCA002023/1978

Coram: Zimmern, J.

Date of Judgment: 16 March 1979

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JUDGMENT

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1. On the evidence it is common ground that on the 14th of April 1978 the Plaintiff with the intention of buying a car visited the showroom of the defendant company. When he arrived there he was met by a Mr. Alex Poon, an assistant sales manager, and the car the Plaintiff was minded to buy was not available. He then saw a Jensen Interceptor 3, and he showed interest and he and his friend, Michael Mak, and Alex Poon went for a trial run in the car. The Plaintiff liked it and was minded to buy it on his terms and he told Alex Poon that if the company would accept a price of $100,000 he would be interested, only provided that the car was that of a 1976 manufacture. This conversation was denied by Alex Poon who said that 1976 manufacture was not mentioned by the Plaintiff. Be that as it may, the Plaintiff paid Alex Poon a thousand dollars as a form of a deposit, not as consideration for any bid or tender but merely to show the seriousness of his intention to buy. It was agreed that the Plaintiff would return to the showroom the next day. The Plaintiff and Mak did return the next morning but Alex Poon was not there and instead there was a Mr. Mories Poon. The Plaintiff showed annoyance of the absence of the man he had dealt with the day before and Mories Poon could not give the answers to the questions which he said he had asked of Alex Poon. Mories Poon then told him he would contact him at 3 o'clock. At 3 o'clock the Plaintiff was contacted and he went back to the showroom. At the showroom the Plaintiff said Mories Poon told him that the management had agreed to the price of $100,000 and that the car was a 1976 manufacture. Mories Poon in the witness box completely denied this. He said that afternoon he had only told the Plaintiff that the management had agreed to $100,000 and he further told the Plaintiff that the car could be registered as of 1976 manufacture. This is a direct conflict which I have to resolve. I first refer to the pleadings. The defence prior to amendment is dated the 19th July 1978 and it was signed by counsel and paragraph 2 reads:-

"As to paragraph 2 of the Statement of Claim, it is admitted that on or about 18th April 1978 the defendant sales manager Mories Poon and salesman Alex Poon orally represented to the plaintiff that the motor-car in suit was of 1976 manufacture."

This is a clear admission of that representation. Furthermore at page 35 of bundle A, there is a letter from the Defendant's solicitors to the Plaintiff's solicitors and it reads:-

"With reference to your letter of the 31st ultimo to Concord Limited we are instructed that there is no truth in your client's allegation at all, the subject matter of the sale is a new Jensen Interceptor 3 of 1976 manufacture. Your client was so particular and meticulous that eventually he insisted to add in his copy of the contract the description '1976 manufacture' and made our client's salesman initial even though our client's salesmen were not authorised to make any signature on any contract."

Both are clear admissions that representation had been made that the car was of 1976 manufacture. It was not till the date of the hearing, two days ago, that an application was made to me for leave to amend the defence to delete paragraph 2 which I have read and to substitute therefor-

"the defendant's salesman Alex Poon orally represented to the plaintiff that as far as he could remember the motor-car in suit was of the year 1976. The defendant's salesman Alex Poon orally represented to the plaintiff that the motor-car in suit could be registered and shown in the licence book as of '76 manufacture'".

I nevertheless gave leave. I have heard the Plaintiff in the box. I have heard both Alex Poon and Mories Poon in the box. I have not the slightest doubt in my mind, even without considering the defence filed and the admission of the Defendant's solicitors, that Alex Poon represented to the Plaintiff that the car was a 1976 manufacture. I have no doubt, having seen the Plaintiff in the box, that he is not an easy person to deal with in any transaction, but he was clear, he was precise, and I have no doubt that he insisted on a 1976 manufacture. The reasons why he wanted a 1976 manufacture is of no relevance. He was a buyer. If he wanted something and is prepared to pay for it and the seller has that something to sell, then that is all there is to it, but in this case it would appear to me that the Defendant did not have that something to sell, that is a 1976 Jensen Interceptor 3. I find that Mories Poon represented to the Plaintiff that the car was that of a 1976 manufacture and his representation was made to induce the Plaintiff to buy the car; the Plaintiff acting on that inducement bought the car and I have no doubt that that inducement by Mories Poon was false. It was false on his own evidence alone in this court that he did not know the year of manufacture of the car, and there was no means he could find out. For the reasons given I hold that that the representation which was falsely given was a term of the contract and furthermore, it was a fundamental condition of the contract.

I come to the next point - the burden of proof. Mr. Wei, on behalf of the Defendant, tries to persuade me on the authority of Mr. Justice Devlin as he then was in A.B. Kemp Ltd. & others v. Tolland ⁽¹⁾ that the burden of proof is always on the party alleging a breach to prove that breach. I do not agree. The onus probandi is on the party who asserts an affirmative and furthermore it is on the party who knows the peculiar facts of the matter. In this case there can be no doubt that the Defendant was the party who knew the peculiar facts of the matter, that is, when the car was manufactured. I find it surprising in this case that the documents which must have been available, i.e. the correspondence between the Defendant and Jensen were not discovered. Be that as it may, those documents were not discovered and a pro forma invoice which was sent by Jensens to the Defendant and dated 11th November 1975 was said by the Defendant to be "missing, not available, cannot be found". Even if I am wrong in the onus of proof of a matter of this nature, let me say this: document A2, an invoice sent by Jensen Motors Limited to the Defendant dated the 15th January 1976 is in evidence. This invoice shows these particulars: chassis No. 1879, engine No. 5C00291, transmission No. 46033924 as per pro forma invoice X61189 dated 11th November 1975. Further, letter of credit No. A14870-BHMDC 49656, 10th of December 1975. From this document alone I find there is sufficient persuasive evidence to at least transfer the burden of proof to the Defendant to prove the car was that of a 1976 manufacture and not 1975. Having heard the two Poons in the box they were in my view obsessed with one thing and one thing only and that was not to say a word at all cost that the car was that of a 1975 manufacture and Mories Poon went on to tell this court that if a buyer had wanted a 1975 manufacture he would not have sold that car to him. I do not believe him. Accordingly, I find that the car was not that of a 1976 manufacture which was a fundamental term of the contract and was breached by the Defendant. Seeing that it was a representation in the first instance which was false, there will be judgment for the Plaintiff for rescission, as claimed, the return of $25,000 being deposit paid, special damages in the sum of $4,850 being the sums expended by the Plaintiff as particularised in paragraph 6. I do not award any interest on these sums, and costs will follow the event.

Representation:

Wesley Wong (Victor Ng & Co.) for Plaintiff

Robert Wei (Deacons) for Defendant

(1) [1956] 2 Lloyd's Rep. p. 681