Cole's Farm Store Ltd v China Motors Ltd

JurisdictionJamaica
Judge Campbell, J.
Judgment Date11 February 2011
Judgment citation (vLex)[2011] 2 JJC 1106
CourtSupreme Court (Jamaica)
Date11 February 2011
Docket NumberCLAIM NO. 2007 HCV03578

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2007 HCV03578

BETWEEN
COLE'S FARM STORE LTD
CLAIMANT
AND
CHINA MOTORS LTD
DEFENDANT

Ms. Janet Taylor and Ms. Kadia Wilson, instructed by Taylor, Deacon and James for the claimant.

Ms. Stacy-Ann Young, instructed by Clark, Robb and Company for the defendant.

Sales of Goods Act S. 15 – in course of the seller's business – reasonably fit for such purpose – merchantable quality – new vehicle – rejection – remoteness of damages.

Campbell, J
1

(1) The claimant is a company, with its registered offices at Santa Cruz, in the Parish of St. Elizabeth. The company operates a store that sells farm products, chemicals, pesticides and fertilizer. It is just one of two such stores in that area, which is ringed by a farming community. It is a distributor for one of the larger livestock feed brands and supplies smaller stores throughout the parishes of Manchester, Westmoreland and St. Elizabeth. A part of its business is the delivery of its goods to its customers.

2

(2) In 2006, directors of the company decided to acquire a truck to facilitate delivery. They applied for and obtained a loan from RBTT Bank Jamaica Ltd. to finance the purchase of the delivery truck. On the 7 th November 2006 Mr. Cole, a director of the claimant, purchased a JAC truck, from the defendant, for $1,249,000.00.

3

(3) The defendant was in the business of importation of motor vehicles, sales and servicing. It had started the importation of JAC trucks in December 2004. The vehicle was a two ton left-hand drive, standard gears, diesel engine, drop-side truck.

4

(4) Mr. Cole, states that he had a general drivers' licence since 1978 with which to drive trucks and other heavy duty equipment. According to Mr. Cole, the problems with the JAC truck started on its ‘maiden journey’ from the defendant's sale lot. The clutch pedal would remain pressed and not return to its original position when the pressure was released. He said that he contacted a Mr. Lindsay of the defendant, who advised him that the problem would be corrected. A number of other concerns arose; the driver's seat rocked, the steering wheel wobbled, the vehicle swayed from side to side and the air conditioning did not work.

5

(5) The truck was taken for its scheduled first servicing on the 9 th January 2007, it was not challenged that the defendant was advised of all the concerns that Mr. Cole had with the vehicle. After servicing the truck, it functioned properly for a period. However, soon after, the clutch pedal spring fell out and the pedal remained depressed after being floored. The defects that had been observed prior to the first servicing on the 9 th January 2007 had returned.

6

(6) On the 8 th March 2007, Mr. Cole testified that, whilst driving the truck, he heard a loud noise from the engine and the vehicle stopped. He made no attempt to restart the engine, and called a wrecking service that towed the vehicle to the defendant's sale lot. As the vehicle was being hoisted onto the wrecker, Mr. Cole testified that he noticed that the undercarriage showed severe rotting and rusting. The vehicle has since remained at the defendant's sale lot. Mrs. Cole, a director of the claimant, wrote to the defendant that same day, highlighting the concerns of the claimant in respect of the truck. The Coles, contend that there was no response to Mrs. Cole's letter. Mrs. Cole state that it was after she had made a complaint to the Consumer Affairs Commission (which was copied to the defendant) that the defendant responded with the assurance that efforts were being made to address the complaints under the terms of the warranty.

7

(7) Mrs. Cole said that not having heard from the defendant any further, she was obliged to rent a truck to continue the business of the claimant's operations. On the 21 st March 2007, she requested that the company be given a full refund of the purchase price of the vehicle. The managing director of the defendant responded and alleged that the problems being experienced were driver related and are customarily caused when a driver engages a wrong or too low a gear for the speed being travelled.’ The letter proceeded to offer to sell the truck once it had been repaired. A later letter from Mr. Townsend repeated the offer for sale and the allegation of ‘the driver's fault’, as being the cause of the engine damage.

8

(8) On the 7 th September 2007, the claimant filed a Writ of Summons, claiming for breach of contract and/or negligence in that the defendant provided the claimant with a defective two-ton JAC truck, causing the claimant to suffer inconvenience, consequential loss and damage. The claimant considered the contract rescinded as the defendant company was in breach of its duty to provide it with a motor truck in good working condition.

9

(9) The defendant denied that there were recurring problems, put the claimant to strict proof and alleged that the claimant contributed to any negligence that may be found, by not exercising the requisite care and skill in driving the truck and that the claimant failed to mitigate their loss and damage. The defendant said there was no breach of contract as the motor vehicle sold to the claimant was fit for its intended use and purpose and that the initial complaints were not material defects to render the motor vehicle unsuitable.

Was the vehicle defective?

10

(10) The answer as to whether the vehicle was defective will depend upon, the intentions of the parties as contained in their agreement. Was it a new vehicle or second that was the subject of the agreement? What was it that they agreed should be the quality of the vehicle that the claimant's company purchased? There were limited express terms of the contract between the parties, in evidence before the Court. Such as were in evidence, was contained in a Memorandum of Registration, (memorandum) a single page document, presented to the purchaser at the time of purchase. The first line of this memorandum reads, ‘ Your JAC vehicle is manufactured from the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT