Verley (Vilma) v Michael Powell

Judge Sinclair-Haynes, J (Actq.)
Judgment Date29 July 2005
Judgment citation (vLex)[2005] 7 JJC 2906
CourtSupreme Court (Jamaica)
Date29 July 2005




CONTRACT - Motor vehicle- Transfer of

Sinclair-Haynes, J (Actq.)

Michael Powell decided to self his 1993 Honda Civic hatch back motor vehicle. In furtherance of that decision, he engaged the services of De Planners Auto Dealers. On the 17 th January 2003, he gave them possession of the vehicle.


On the 31 st January, Miss Vilma Verly entered into an agreement with De Planners for the purchase of the vehicle for the sum of $220,000.00. The vehicle that she agreed to purchase bore the registration no. 3408 BY.


In order to facilitate the sale transaction, the defendant handed the certificates of fitness and registration to De Planners.


He retained the certificate of title. Miss Vilma Verly insured the vehicle in her name and the defendant's pending the grant of the title. Upon failure by De Planners to present her with the title, she made enquiries at the company and discovered that the owners of the company were in police custody. She contacted the defendant who told her the company did not pay him. He refused to hand over the title to facilitate the transfer. In fact, he obtained a new certificate of title.


On the 31 st May 2004, a police officer accompanied him to her place of employment and seized the car. Miss Vilma Verly has now instituted proceedings by way of Fixed Date Claim Form against Mr. Powell for possession of the vehicle and that the defendant sign the necessary document to effect transfer of the vehicle or alternatively, a refund of the purchase price and a sum representing money she expended in repairing and enhancing the vehicle.


Defendant's Version


The defendant has, however, trenchantly resisted this claim.


In his affidavit in answer dated 18 th March 2005, he avers that the car was left with De Planners to be exhibited for eventual sale. It was his intention that he would transfer title or ownership to the purchaser after he had personally received the agreed purchase price. He denied giving De Planners any authority to pass the title of the motor vehicle.


He avers that the certificates of fitness and registration and the title were to be released to the company or a potential purchaser for the purpose of facilitating the eventual sale of the vehicle, such as providing the potential purchaser with documentary proof of the vendor's ownership to present to a financer or lender to enable the potential purchaser to qualify for a loan.


About a week later, he called the claimant and discovered that the principal officer of the company was in police custody. The company informed him that it had received payment for the car, but the company was unable to pay the purchase price less the commission. He reported the matter to the police.


On the 1 st December 2003, he saw the car parked at Discount Pharmacy with registration no. 3408 BY affixed which was the same registration plate he owned. He realized there was a fraudulent duplication of this registration number so he reported the matter to the police.


On the 3 rd May 2004, he caused an inspector of police to seize the vehicle. He recovered possession of the certificates of registration and fitness. He discovered that both were renewed without his knowledge or consent. The car, he avers had deteriorated significantly. He further avers that he was not aware of the fact that the claimant had insured the vehicle in their names. He did not authorize or consent to the vehicle being insured by anyone or any purchaser until he received the full purchase price. Further, he gave no assurance that the claimant would receive the title for the car until he received full payment.


Claimant's Version


The claimant's version is that on the 31 st January, she purchased motorcar bearing registration no. 3408 BY. She paid De Planners the sum of $220,000.00 and was given a receipt. Upon receipt of the fitness and registration and pending the transfer of the vehicle, she insured the car with NEM in her and the defendant's name. De Planners assured her that she would soon obtain the title. An employee informed her that the title was ready. However, she attended De Planners' office and did not receive it. Consequently, she reported the matter to the police and was informed that the owners were in police custody.


Contact with the defendant revealed that he was not paid. She had by this time expended $239,592.86 in repairing and enhancing the vehicle.


Submissions by Mr. Wendel Wilkins on behalf of the defendant


On the 11 th May 2005, the matter was fixed for the first hearing of the fixed date claim form. The court is of the opinion that the matter ought to be disposed of in a summary manner. Mr. Wilkins, who was of a contrary view, was instructed to put his submissions in writing.


He submitted that the claim is a Fixed Date Claim Form and that the rules expressly prohibit the court on its own motion from granting summary judgment. The court, he submitted, ought to complete the Case Management Conference, make the orders and give such directions as it deems fit in consultation with the parties.


Further, he submits, Rule 27.7 of the Civil Procedure Rules (CPR) bars the judge conducting the Case Management Conference from trying the case. Consequently, the claim ought to be Case Managed to trial by a different judge.


Ruling on submission


At this juncture, I will consider the merits of this submission. The court is not seeking to grant summary judgment in terms of Part 15 of the CPR. The word summary was used to denote the expeditious manner in which the matter ought to be dealt with in light of the overriding objective.


Rule 27(7) states that at the first hearing of a Fixed Date Claim, the judge has all the powers of a Case Management Conference. Rule 26.3 (c) confers upon the judge the power to strike out the statement of case which discloses no reasonable grounds for bringing or defending a claim.


Further submissions by Mr. Wendel Wilkins


Mr. Wilkins further submitted that the relationship between the company and defendant was based on an agreement. In order to ascertain the terms of the agreement, the court must have regard to the intention of the defendant and the company. It must look at what was written; what was said and the conduct of the parties. It must take into consideration the evidence before it and nothing else in arriving at a finding. Only the defendant in this regard provided the evidence.


His evidence therefore ought to be accepted by the court. The evidence elicited by defendant, he submits, is that the defendant engaged the company to expose the vehicle to the market for eventual sale by him (the defendant) to a third party. The defendant did not sell the vehicle to the company nor did he authorize the company to sell the vehicle as an agent on his behalf. He did not intend to sell the vehicle on credit. The company was a mere market facilitator of the sale of the motor vehicle to the market. This, he contends, is supported by the fact that the defendant retained the certificate of title which was to ensure that he was paid the purchase price before title or property passed to the purchaser.


None of these intentions, he submits is reflected in the written agreement between the company and the defendant. It was not intended that the written agreement, which was prepared by the company would reflect all the intentions of the parties and terms of the agreement. It is trite; he submits that a contract may be oral, in writing or a mixture of both. He submits that the document was:

  • (a) Prepared by the company;

  • (b) A standard document used by the company. It was not specifically drafted for benefit of the company and defendant.


He further submitted that:

  • (i) The first page of the document contained the conditions;

  • (ii) The price was not fixed. There is a "not less than" clause to be completed by the defendant, the document was therefore not an entire agreement. It did not capture all the terms and conditions;

  • (iii) The purpose of the reverse side was to protect the interest of the company. Legally trained...

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