Tuzo v Eurocar Service Ltd
| Jurisdiction | Bermuda |
| Judgment Date | 17 January 2013 |
| Date | 17 January 2013 |
| Docket Number | Civil Jurisdiction 2009 No 131 and Civil Jurisdiction 2010 No 130 |
| Court | Supreme Court (Bermuda) |
2013 Bda LR 4
In The Supreme Court of Bermuda
Civil Jurisdiction 2009 No 131 and
Civil Jurisdiction 2010 No 130
and
Mrs L Sadler-Best for the Plaintiff
Mr S Crockwell for the Defendants
The following cases were referred to in the judgment:
Garside v Black Horse Ltd [2010] EWHC 190
Motor Oils Helles (Corinth) Refineries SA v Shipping Corp of IndiaUNK [1990] 1 Lloyd's Rep 39
Farmworth Finance Facilities v AttrydeWLR [1970] 1 WLR 1053
Pollock & Co v Macrae & Co [1922] SC (HL) 192
Rogers v Parish LtdWLR [1987] 2 WLR 353
Warner v SousaBDLR [1993] Bda LR 68
Lathan v StirlingBDLR [1987] Bda LR 43
Clegg v AndersonUNK [2003] 1 All ER 721
Douglas v Glenvarigill Co Ltd [2010] CSOH 14
Kwei Tek Chao v British Traders and Shippers LtdELR [1953] 2 QB 459
Charnock v Liverpool CorporationWLR [1968] 1 WLR 1498
Hick v Raymond & ReidELR [1893] AC 22
Lamarra v Capital Bank PlcSC [2006] SC 95
Robot Arenas Ltd v Simon Waterfield [2010] EWHC 115
University of Edinburgh v Onifade (2005) SLT 63
Breach of contract for sale of motor car — Damages — Breach of service contract — Rejection — Implied terms — Loss of use — Cost of repairs
JUDGMENT of Hellman J
1. As this is quite a long judgment, it may assist the reader if I set out the different sections in a table of contents in which I include the amounts of damages that I have awarded. Both the claims and the counterclaim were successful in part. References in brackets are to paragraph numbers.
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i. Introduction (3 – 11)
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ii. Breach of contract of sale (12 – 78)
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(a) Engine (22 – 53)
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(b) Electrical (54 – 60)
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(c) Sunroof (61 – 65)
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(d) Transmission (66 – 67)
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(e) Miscellaneous faults (68 – 72)
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(f) Mileage (73 – 78)
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iii. Breach of service contracts (79 – 97)
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(a) First service contract (98 – 82)
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(b) Second service contract (83 – 97)
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iv. Rejection (98 – 104)
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v. Counterclaim (105 – 112)
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vi. Authorities (113 – 148)
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(a) Rejection: serious defects (113 – 121)
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(b) Rejection: reasonable time (122 – 128)
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(c) Acceptance (129 – 135)
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(d) Repairs: reasonable time (136 – 138)
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(e) Warranty (139 – 142)
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(f) Counterclaim: storage charges (143 – 148)
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vii. Findings on breach of contract of sale (149 – 186)
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(a) There was no breach with respect to the engine (149)
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(b) There was a breach of condition with respect to the electrical faults (150 – 158)
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(c) There was no breach with respect to the sunroof (159)
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(d) There was a breach of condition with respect to the transmission (160 – 162)
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(e) There was no breach with respect to the miscellaneous faults (163)
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(f) Mr Tuzo's purported exercise of his right of rejection was not effective (164 – 167)
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(g) Mr Tuzo can recover damages for breach of the sales contract
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1. Loss of use of motor vehicle. Damages assessed at $10,975.00 (173 – 184)
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2. Cost of repairs. Damages assessed at $3,573.56 (185)
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3. Summary. Total damages assessed at $14,548.56 (186)
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viii. Finding on breach of service contracts (187 – 196)
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(a) There was no breach of an express term of either service contract (187 – 188)
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(b) There was no breach of the implied term of the first service contract, but there was a breach of the implied term of the second service contract, that the repairs would be carried out within a reasonable time. Damages assessed at $7,625.00. But they are co-extensive with the damages for same period awarded against the Sales Company: damages for this period cannot be recovered twice (189 – 196)
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ix. Findings on counterclaim (197 – 204)
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(a) The Service Company can recover the cost of repairs to the vehicle. Damages assessed at 10,336.47 (197 – 198)
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(b) The Service Company can recover the cost of repairs to the loaner vehicle. Damages assessed at $260.00 (199)
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(c) The Service Company cannot recover the cost of storage of the vehicle (200 – 203)
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(d) Summary. Total damages assessed at 10,596.47 (204)
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x. Interest (205 – 206)
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xi. Summary. Damages recoverable by Mr Tuzo against Eurocar exceed damages recoverable by Eurocar against Mr Tuzo by $3,592.09 (207 – 209).
2. In this judgment I shall refer to:
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i. The Renault Espace motor vehicle, registration T164, as ‘the vehicle’;
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ii. The Plaintiff, Somers Kenneth Tuzo, as ‘Mr Tuzo’;
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iii. The Defendant in No 131 of 2009, Eurocar Service Ltd, as ‘the Service Company’;
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iv. The Defendant in No 130 of 2010, Eurocar Ltd, as ‘the Sales Company’; and
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v. The Defendants collectively as ‘Eurocar’.
3. This is a case about a Renault Espace motor vehicle, registration T164. The letter ‘T’ at the start of the registration mark indicates that the vehicle is a taxi.
4. Mr Tuzo, is a taxi driver.
5. The Service Company services and repairs motor cars by way of business.
6. The Sales Company sells motor cars by way of business and is an authorised dealer for the car maker Renault.
7. Eurocar operate from garage premises at 4 Woodlands Road North in Pembroke (‘the Garage’).
8. Mr Tuzo bought the vehicle from the Sales Company. He claims that in breach of the implied terms of the contract of sale it was not of satisfactory quality nor fit for the particular purpose for which it was bought. He submits that these implied terms were conditions and not merely warranties, and that as they were breached he was entitled to reject the vehicle. He claims repayment of the purchase price plus damages for additional loss.
9. Mr Tuzo used to take the vehicle to the Service Company to be repaired. He claims that on two such occasions the company expressly agreed to repair the vehicle within a specified period, but that on both occasions, in breach of contract, it failed to do so. Further or alternatively, he claims that on both occasions, in breach of an implied contractual term, it failed to repair the vehicle within a reasonable time. He claims damages for breach of contract.
10. Eurocar disputes these claims. Moreover, the Service Company counterclaims damages for the cost of repairs done to the vehicle, and to a replacement vehicle (or ‘loaner’ car) which they supplied to Mr Tuzo on a temporary basis, and for storage charges for the vehicle.
11. I gave been greatly assisted by the able representation provided by Lauren Sadler-Best for Mr Tuzo and Sean Crockwell for Eurocar.
12. On 10th February 2006 Mr Tuzo purchased the vehicle from the Sales Company. The company had advertised the vehicle as suitable for use as a taxi and, it is common ground, knew that Mr Tuzo was buying it for this purpose. At the same time, Mr Tuzo purchased from the company the registration plates for the vehicle, a dispatch radio, and a global positioning system. He also purchased a yellow roof light marked ‘taxi’. The overall price was $43,034.99, of which $37,500.00 was the price of the vehicle and the remainder was the price of the additional items.
13. These items were all installed in the vehicle by the Sales Company. This was because their after-sales manager told Mr Tuzo that if Mr Tuzo had his mechanic install them the warranty covering the vehicle would not be honoured. The company added some additional wiring when the roof light was fitted.
14. It is therefore not disputed that, when Mr Tuzo purchased the vehicle, the Sales Company was well aware that he intended to use it as a taxi.
15. The contract for sale of the vehicle was subject to the implied undertakings as to quality or fitness contained in section 14 of the Sale of Goods Act 1978 (‘the 1978 Act’):
‘14 (1) Except as provided by this section and section 15, and subject to the provisions of any other Act, there is no implied condition or warranty as to the quality or fitness for any particular purpose of goods supplied under a contract of sale.
(2) Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality.
(2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
(2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods?
(a) fitness for all the purposes for which goods of the kind in question are commonly supplied;
(b) appearance and finish;
(c) freedom from minor defects
(d) safety; and
(e) durability.
(2C) The term implied by subsection (2) does not extend to any matter making the quality of goods unsatisfactory?
(a) which is specifically drawn to the buyer's attention before the contract is made;
(b) where the buyer examines the goods before the contract is made, which that examination ought to reveal; or
(c) in the case of a contract for sale by sample, which would have been apparent on a reasonable examination of the sample.
(3) Where the seller sells goods in the course of a business and the buyer expressly or by implication makes known to the seller any particular purpose for which the goods are being bought, there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller's skill or judgment.’
16. Section 15A of the 1978 Act provides for the modification of remedies for breach of condition in non-consumer cases. This was not a consumer contract as defined in section 1 of the 1978 Act as...
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