Rent-A-Car Ltd v Courtesy Garage Ltd

• Jurisdiction: Barbados
• Judge: Rocheford, C.A.
• Judgment Date: 18 January 1982
• Neutral Citation: BB 1982 HC 2
• Docket Number: No. 124 of 1976
• Date: 18 January 1982
• Court: High Court (Barbados)

High Court

Rocheford, J. (Ag.)

No. 124 of 1976

Rent-A-Car Ltd.

and

Courtesy Garage Ltd.

Mr. J.S.B. Dear, Q.C., and Mr. C.W.P. Chenery for the plaintiff.

Mr. H. deB. Forde, Q.C., and Mr. P.D.H. Williams for the defendant.

Contract - Hire purchase agreement — Arrears

Rocheford, C.A.

1 The plaintiff is a company engaged in the hired car business and the defendant is a motor dealer. The plaintiff entered into a number of hire-purchase agreements with the defendant in respect of a number of motor cars. During the period 7th January, 1974 to 5th April, 1974 the defendant recovered possession of 15 of the motor cars. In respect of 5 agreements, the plaintiff had paid sums on each agreement in excess of sixty-six and two thirds per cent of the hire-purchase price and the defendant had recovered possession of those 5 motor cars other than by action. The plaintiff now claims that by virtue of the provisions of section 13 of the Hire Purchase Act Chapter 328 of the laws of Barbados, it is released from all liability under the said 5 agreements and is entitled to recover from the defendant the sum of $20 570.92, moneys paid by the plaintiff to the defendant under the said 5 agreements.

2 In respect of the 10 agreements relating to the other 10 motor cars, the plaintiff had paid sums on each agreement less than sixty-six and two-thirds per cent of the hire-purchase price and the defendant had recovered possession of those 10 motor cars without having given to the plaintiff not less than 21 clear days notice of his intention so to do. The plaintiff now claims that by virtue of the provisions of section 18 of the Hire Purchase Act it is released from all liability under the said 10 agreements and is entitled to recover from the defendant the sum of $28 698.04, moneys paid by the plaintiff to the defendant under the said 10 agreements.

3 The defendant pleads in defence that the said 15 agreements were made outside the statutory control of the Hire Purchase Act in that the said statute at no material time was applicable to the said agreements. The defendant also counterclaims. This is in respect of the said 15 agreements and an additional 6 agreements and is for the sum of $39 546.09, arrears of hire-purchase rent. There is also a counterclaim for interest at the rate of 8 per cent per annum as agreed from the date on which each installment became due, damages and such further or other relief as the court may deem just.

4 The plaintiff filed a defence to the counterclaim in which it pleads that the 6 additional agreements were terminated when the 6 motor cars in respect of those agreements were traded in to the defendant and the plaintiff was given credit in respect of them and that the defendant disentitled itself from receiving any arrears that may have been due by its failure to comply with the provisions of sections 13 and 18 of the statute.

5 The Hire Purchase Act commenced on the 1st September, 1959 Section 3 then read as follows:

“‘This Act applies in relation to all hire-purchase agreements and credit-sale agreements under which the hire-purchase price or total purchase price, as the case may be, does not exceed the sum of three thousand five hundred dollars, and the expressions “hire-purchase agreement” and “credit-sale agreement” shall be construed accordingly.”

6 The statute was amended with effect from the 24th December, 1973 by, among other things, the deletion of the words “three thousand five hundred” appearing in this section and the substitution therefor of the words “twelve thousand”.

7 The 21 agreements were entered into after the commencement of the statute and before the amending section took effect. The hire-purchase price in each agreement exceeds $3 500 and does not exceed $12 000. The question now to be determined is this. Are these agreements subject to the provisions of sections 13 and 18 of the statute? Section 13 provides that where sixty-six and two-thirds per cent of the hire-purchase price has been paid, the owner must proceed by action for recovery of possession and section 18 provides that where less than sixty-six and two-thirds per cent of the hire-purchase price has been paid, the owner must give notice before enforcing his right to recover possession if failure to pay an installment is the only breach.

8 Counsel for the plaintiff was of the view that the purpose of the statute is to regulate the enforcement of rights acquired under agreements, that is, that the statute affects procedure only and that the amending section therefore affects procedure only. He therefore argued for a retrospective construction of the amending section. Counsel for the defendant was of the view that the purpose of the statute is to regulate agreements at the time that they are being entered into, that is, that the statute affects the rights of the parties and that the amending section if given a retrospective construction, would affect vested rights. He therefore argued for a prospective construction of the amending section.

9 One submission made by counsel for the defendant was that there is a presumption by which the court will not limit or impair vested rights. He stated that the defendant had the following rights at the dates when the various transactions were entered into and that these rights are vested rights.

The right to recover arrears of instalments without the necessity of proceeding by action.

The right to recover possession of the motorcars without the necessity of giving 21 clear days notice.

The right to resist the payment of compensation when he has determined the agreements for cause, or on the plaintiff failing to pay an installment due.

If sued by the plaintiff, the right to contend that the agreements are not subject to the, provisions of the Hire Purchase Act.

10 He cited Walton and Others v. Baffsky (1975) 2 New South Wales Law Reports 565 in support of this submission. In considering this case, I note that there is a very close similarity between the laws of Barbados and New Zealand on this particular matter. The common law is the same and the relevant statutes are constructed similarly. The New Zealand statutes are the Money-lenders and Infants Loans Act 1941 and the Money-lenders and Infants Loans (Amendment) Act 1973. Section 3B (1) of the principle statute applies the provisions of the statute to loans in excess of $10 000 and section 21 contains the requirement for a money-lender to...