Marion F. Lamarra V. Capital Bank Plc+shields Automotive Ltd Trading As Shields Land Rover
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Philip,Lord Kirkwood |
| Neutral Citation | [2006] CSIH 49 |
| Court | Court of Session |
| Published date | 10 October 2006 |
| Year | 2006 |
| Date | 10 October 2006 |
| Docket Number | XA4/05 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Philip Lord Kirkwood | [2006] CSIH 49 XA4/05 OPINION OF THE COURT delivered by LORD OSBORNE in the case of MARIO F. LAMARRA Pursuer and Respondent; against CAPITAL BANK plc Defenders; and SHIELDS AUTOMOTIVE LTD, TRADING AS SHIELDS LAND ROVER Third Party and Appellants: _______ |
Alt: Ellis, Q.C., Lamont; Balfour & Manson (for Levy & McRae, Solicitors, Glasgow)
(Third Party and Appellants)
Alt: McClure Naismith
10 October 2006
The background circumstances
[1] The respondent in this appeal entered into a hire purchase agreement with the defenders on 9 March 2001 for the hire and subsequent purchase of a 4.6 litre Range Rover motor vehicle, LMR 72, which was a new top-of-the-range automatic model. It was sold to the defenders by the appellants. The total cash price, as appears from the hire purchase agreement, was £51,550. The respondent paid a deposit of £6,717.82. In terms of the agreement, the respondent was due to pay a total of 36 monthly instalments, the first of which was of £1,517.80, subsequent instalments being of £1,422.80. The respondent paid the deposit and the first two instalments. These sums total £9,658.42.
[2] In the present action, raised by the respondent in Hamilton Sheriff Court, he craved the court:
(1) To find and declare that the hire purchase agreement dated 9 March 2001 between the parties is rescinded and the pursuer's obligations thereunder are at an end.
(2) To grant decree against the defenders for payment to the pursuer of the sum of £9,857.42, payable with interest thereon at the rate of 8% per annum from citation to follow hereon until payment with expenses; and to grant warrant to arrest on the dependence.
The sum sued for in the second crave represented the deposit and the first two instalments which the respondent had paid under the hire purchase agreement, together with the cost of a telephone system, which the respondent had had fitted to the dashboard of the vehicle, which amounted to £199. This had not been returned to him following upon the rescission of the contract.
[3] The respondent's case was that the Range Rover vehicle was not of satisfactory quality, particularly having regard to the price paid for it. In his pleadings, he averred that the vehicle, when delivered, had several defects. He maintained that, when driven, it pulled to the left, causing undue tyre wear. Because of the layout of the pedals, his foot had become trapped underneath the brake pedal. His foot had caught on the underside of the fascia panel. Because the pedals were positioned incorrectly, the vehicle was not safe to drive. There was a loud noise from either the engine or the transmission system. The respondent also maintained that there was a deep scratch on the ashtray and that the glove box was obviously incorrectly fitted. The respondent averred that a reasonable person would expect to receive a vehicle free of such defects. Accordingly, by letter dated 30 March 2001, the respondent rejected the vehicle. It was in these circumstances that he sought the remedies described.
[4] Following an extensive proof, the sheriff found that, at the time when the respondent took delivery of the vehicle, he was aware of the scratch on the ashtray and that a navigation disk was missing. A navigation disk had been fitted pending delivery of a new one. A new ashtray lid had been ordered. The appellants had rebalanced the wheels to deal with vibration of which the respondent had complained, but had found no evidence that the vehicle was pulling to the left. The appellants also offered to replace the brake and accelerator pedal housing with pedals of the respondent's choice without charge. Part of the defence to the action had been that the pedals complied with the United Nations Agreement concerning the adoption of uniform conditions of approval and reciprocal recognition of approval for motor vehicle equipment and parts, being Uniform Provisions Concerning the Approval of Vehicles with regard to the Arrangement of Foot Controls (E.C.E. Regulation No.35). The sheriff had found that the pedal positioning conformed to that Regulation and did not make the vehicle unsafe. The respondent had claimed in evidence that the pedals should have been so positioned that he could pivot his foot between the accelerator and the brake. The sheriff had found that foot pedals did not require to be in such a position so as to allow the respondent to pivot his foot between these pedals. As she put it in finding-in-fact 11:
"For safety reasons, there was a height difference between the pedals to prevent pivoting. Pivoting is not good driving practice."
[5] The sheriff also found that the respondent had validly rejected the vehicle by the letter dated 30 March 2001 and had not invalidated his rejection by continuing to drive the vehicle for a period of time thereafter, nor by paying instalments. The vehicle had been uplifted from the respondent early in June 2001, by which time it appeared to have been driven nearly 6,000 miles. The sheriff had concluded that the motor vehicle was not unsafe and that the respondent had exaggerated all his complaints. The appellants had been prepared to replace the foot pedals, the ashtray cover and the navigation disk, to rectify the alignment of the glove box and to re-test the steering alignment. So far as the transmission noise was concerned, the sheriff found in finding-in-fact 16 that "they were prepared to check this and repair it if required." The sheriff had also found that the appellants had been prepared to carry out all of the necessary work without any charge to the respondent and at a time convenient to him, but the latter had refused to accept their offer.
[6] It appears from the sheriff's findings-in-fact that, at the time when the motor vehicle was delivered, it had the following defects, in addition to the missing navigation disk:
(a) The front wheels were incorrectly balanced, causing excessive tyre wear. This had been corrected by balancing of the front wheels in March 2001. The steering geometry of the motor vehicle was also corrected, as appears from paragraphs 342 and 343 of the sheriff's Note.
(b) There was road speed related noise emanating from the transmission or drive system. This fault was rectified by the appellants at a much later date than the rejection of the motor vehicle by the respondent, following its re-purchase by the appellants, by replacing the front differential, a task which took about two hours.
(c) There was a scratch on the ashtray cover.
(d) There was misalignment of the glove box.
(e) There was poorly finished paintwork on parts of the roof of the vehicle.
[7] The sheriff concluded in finding-in-fact 23 that, notwithstanding these defects, the vehicle was of "satisfactory quality" in terms of the Supply of Goods (Implied Terms) Act 1973, as amended. She found that the defects were easy to rectify and that they would have been covered by the Land Rover warranty. She also found that such repairs "would not affect the durability, longevity or value of the vehicle". On the basis that the vehicle was of satisfactory quality, she found that the defenders were not in material breach of contract and that the respondent had not been entitled to reject the vehicle. Accordingly the defenders were absolved from liability. Accordingly she sustained the third and sixth pleas-in-law for the defenders; quoad ultra repelled the respondent's and defenders' pleas-in-law; assoilzied the defenders; and found the respondent liable to the defenders in the expenses of the cause.
[8] Against the sheriff's decision, the present respondent appealed to the sheriff principal, who, on 22 November 2004, allowed the appeal; recalled the interlocutor of the sheriff of 26 February 2004; and amended certain of the sheriff's findings-in-fact. The terms of the sheriff's findings-in-fact 23 and 24 were as follows:
"23. The vehicle supplied to the pursuer was of satisfactory quality. Any defects were easy to rectify and would be covered by the Land Rover warranty. The pursuer would not incur any cost in said repairs being carried out and they would not effect (sic.) the durability, longevity or value of the vehicle.
24. The pursuer acted totally unreasonably in refusing to accept Shields' offers to remedy any alleged defects. He also acted in a totally unreasonable manner in refusing to accept the defenders' attempts to have matters rectified. The vehicle being of satisfactory quality, the defenders were not in material breach of contract. The pursuer was not entitled to reject the said vehicle."
The sheriff principal made certain amendments to these findings-in-fact. In finding-in-fact 23, the first sentence was amended by the insertion of the word "not" between the words "was" and "of". In finding-in-fact 24, the sheriff principal deleted the third and fourth sentences. In addition, the sheriff principal added a new finding-in-fact 25 in the following terms:
"25. The vehicle was supplied to the pursuer in terms of the hire purchase agreement with the foregoing defects. The defect in the differential was not a minor defect. It required to be and was later replaced. The defenders were in material breach of contract by hiring the vehicle in that condition to the pursuer. The pursuer was entitled to reject the vehicle and claim damages."
The sheriff principal went on to substitute for the findings-in-fact and law made by the sheriff the following:
"1. The defenders, having hired to the pursuer a vehicle which was not of satisfactory quality and being in material breach of contract, the pursuer was entitled to reject it and treat the hire purchase agreement dated 9 March 2001 as repudiated.
2. The pursuer is entitled to repayment of his deposit and of the instalments paid by him in terms of...
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