Mario F Lamarra V. Capital Bank Plc+shields Automotive Llimited
| Jurisdiction | Scotland |
| Judge | Sheriff Principal John McInnes, QC |
| Court | Sheriff Court |
| Date | 22 November 2004 |
| Docket Number | A1688/01 |
| Published date | 08 December 2004 |
SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY
A1688/01
| JUDGMENT OF SHERIFF PRINCIPAL J C McINNES, QC | |
| in the cause | |
| MARIO F LAMARRA | |
| Pursuer and Appellant | |
| against | |
| CAPITAL BANK PLC | |
| Defenders and Respondents | |
| SHIELDS AUTOMOTIVE LTD | |
| Third Party |
Act: Mr Buchanan, Counsel instructed by Buchanan MacLeod
Alt: Mr Lamont, Counsel, instructed by McClure Naismith
HAMILTON: 22 November 2004
The Sheriff Principal, having resumed consideration of the appeal, allows same; recalls the interlocutor of the Sheriff of 26 February 2004; amends the findings in fact as follows:
- in finding in fact 23 in the first sentence by inserting "not" between the words "was" and "of";
- in finding in fact 24 by deleting the third and fourth sentences;
- by adding a new finding in fact 25 in the following terms:
- by substituting for the findings in fact and in law the following:
"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.";
"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.
- The pursuer is entitled to repayment of his deposit and of the instalments paid by him in terms of that agreement, i.e. to repayment of the sum of £9,658.42.";
"sustains the fourth, fifth, sixth, ninth, tenth and eleventh pleas in law for the pursuer; quoad ultra repels the pleas in law for the pursuer and the defenders.";
ordains the defenders and respondents to pay to the pursuer and appellant the sum of NINE THOUSAND SIX HUNDRED AND FIFTY EIGHT POUNDS FORTY TWO PENCE (£9,658.42) STERLING with interest thereon at the rate of 8 per cent per annum from 10 July 2001 until payment; finds the defenders and respondents liable to the pursuer and appellant in the expenses of the cause save so far as previously decerned for; allows an account of expenses to be given in and remits the same when lodged to the Auditor of Court to tax and to report; certifies the appeal as suitable for the employment of junior counsel.
NOTE:
Background to the appeal
- The pursuer and the defenders entered into a hire purchase agreement in relation to a new Range Rover on 9 March 2001. The Range Rover was a top of the range automatic model. It was sold to the defenders by the third party (Shields). The purchase price was £51,550. The pursuer paid a deposit of £6,717.82 and two instalments which amounted to £2,940.60. These sums total £9,658.42.
- The pursuer's case is that the Range Rover was not of satisfactory quality, particularly having regard to the price paid for it. In his pleadings he avers that the Range Rover, when delivered, had several defects. He maintained that the vehicle pulled to the left, causing tyre wear. Because of the layout of the pedals his foot became trapped underneath the brake pedal. His foot 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 the engine or transmission. On these bases he rejected the vehicle by letter dated 30 March 2001. He also maintained that there was a deep scratch on the ashtray and that the glove box was obviously incorrectly fitted. He averred that a reasonable person would expect to receive such a vehicle free of defects. He sought rescission of the hire purchase agreement on the basis that the vehicle was not of satisfactory quality and that he had validly rejected it, and payment of a sum of money.
- Following an extensive proof the Sheriff found that, at the time when he took delivery of the vehicle, the pursuer was aware of the scratch on the ashtray and that the navigation disc was missing. A navigation disc was fitted pending delivery of a new one. A new ashtray lid was ordered. Shields rebalanced the wheels to deal with the vibration of which the pursuer had complained but found no evidence that the vehicle was pulling to the left. Shields offered to replace the brake and accelerator pedal housing with pedals of the pursuer's choice without charge. Part of the defence was that the pedals complied with United Nations Agreement Concerning The Adoption of Uniform Provisions Concerning the Approval of Vehicles with Regard to the Arrangement of Foot Controls. (ECE Regulation No 35). The Sheriff found that the pedal positioning conformed to that Regulation and did not make the vehicle unsafe. The pursuer 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 found that foot pedals did not require to be positioned so as to allow the pursuer to pivot his foot between these pedals. As she put it: "For safety reasons, there was a height difference between the pedals to prevent pivoting. Pivoting is not good driving practice".
- The Sheriff found that the pursuer had validly rejected the vehicle by the letter dated 30 March 2001 and did not invalidate his rejection by continuing to drive the vehicle nor by paying instalments. The vehicle was uplifted in early June 2001, by which time it appears to have been driven for nearly 6,000 miles. The Sheriff found that the vehicle was not unsafe and that the pursuer had exaggerated all his complaints. Shields were prepared to replace the foot pedals, the ashtray cover and the navigation disc, to rectify the alignment of the glove box and to re-test the steering alignment. So far as the transmission noise was concerned, "they were prepared to check this and repair if required". This would all have been done without charge, but the pursuer refused to accept their offer.
- It appears from her findings in fact that the Sheriff found that, at the time when the vehicle was delivered, the vehicle had the following defects, in addition to the missing navigation disc:
- the front wheels were incorrectly balanced, causing excessive tyre wear. This was corrected by rebalancing the front wheels in March 2001. It appears from the Sheriff's note that the steering geometry was also corrected. (Paragraphs 342 and 343)
- there was road speed related noise emanating from the transmission/drive system. This appears to have been rectified by Shields at a much later date, following the repurchase by them of the Range Rover, by replacing the front differential, a task which took about two hours.
- there was a scratch on the ashtray cover.
- there was misalignment of the glove box.
- there was poorly finished paint-work on parts of the roof.
- The Sheriff concluded that, notwithstanding these defects, the vehicle was of satisfactory quality. The defects were easy to rectify. These defects would be covered by the Land Rover warranty. These 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 pursuer was not entitled to reject the vehicle. Accordingly the defenders were absolved from liability.
- It was common ground that the outcome of this case depended on whether, when the hire purchase agreement was entered into, the Range Rover was of "satisfactory quality" in terms of the Supply of Goods (Implied Terms) Act 1973 as amended. Sections 10(1), (2), (2A), (2B) and (2C) of that Act are in the following terms:
"S 10. Implied undertakings as to quality or fitness
(1) Except as provided by this section and section 11 below and subject to the provisions of any other enactment, ... there is no implied term as to the quality or fitness for any particular purpose of goods bailed or (in Scotland) hired under a hire-purchase agreement.
(2) Where the creditor bails or hires goods under a hire purchase agreement in the course of a business, there is an implied term that the goods supplied under the agreement 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) above does not extend to any matter making the quality of goods unsatisfactory--
(a) which is specifically drawn to the attention of the person to whom the goods are bailed or hired before the agreement is made,
(b) where that person examines the goods before the agreement is made, which that examination ought to reveal, ... ."
Section 12A of that Act provides as follows:
"12A. Remedies for breach of hire-purchase agreement as respects Scotland.
(1) Where in a hire-purchase agreement the creditor is in breach of any term of the agreement (express or implied), the person to whom the goods are hired shall be entitled--
(a) to claim damages, and
(b) if the breach is material, to reject any goods delivered under the agreement and treat it as repudiated.
(2) Where a hire-purchase agreement is a consumer contract, then, for the purposes of subsection (1) above, breach by the creditor of any term (express or implied)--
(a) as to the quality of the goods or their fitness for a purpose,
(b) if the goods are, or are to be, hired by description,...
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