Denys Roberts CJ:

Introduction

The plaintiff, a company carrying on the business of hire-purchase financing for motor vehicles, seeks-

(a) a declaration that a BMW car No. BF 7171 is its property;

(b) the return of the car, which is in the possession of the defendant company, or its value;

(c) damages for conversion and trespass.

Facts

There is a substantial measure of agreement between the parties as to the facts, which I shall set out chronologically, as this is appropriate.

About 6th August, 1983, Martin Loh Nyuk Loi ("Loh") filled in a hire-purchase proposal form, asking the defendant to finance the purchase by him of a new BMW car, then carrying the registration No. KD 25 ("the car").

The car was to be bought from Performance Company Limited ("Performance"), a well-known and reputable firm of car dealers.

The invoice prepared by Performance and dated 6 August 1983, showed a total price of $74,540. Loh paid a deposit of $21,040, leaving a balance of $53,500 due from him to Performance. The invoice was addressed to the defendant "A/c Mr. Loh Nyuk Loi @ Martin".

On 19 August 1983, the defendant's representative and Loh signed a hire-purchase agreement, which provided for the payment of Loh to the defendant of 36 monthly instalments of $1,932.

It is clear beyond argument, and indeed not disputed by the plaintiff, that it was a hire-purchase agreement and not a credit sale agreement. It provided for the bailment of the car to the hirer (Loh) who may not [by cl. 3(c)] assign or transfer the vehicle without the owner's consent in writing. And by cl. 10, the hirer was given a right, when he had made all payments due and discharged all obligations under the agreement, to exercise an option to become owner of the vehicle, "whereupon the vehicle shall become his property but until then the vehicle remains the property of the owner".

From this it follows that legal ownership of the car accrued to the defendant on the purchase of the car by it from Performance and remained so during the term of the hire-purchase agreement.

I accept the evidence of Mr. Wong Kam Sai ("Wong"), the general manager of the defendant company in Brunei, that the defendant's office records suggest that the normal procedure was followed on this occasion, that is to say that the registration of the car with the Registrar of the Land Transport Department ("LTD") was left to Performance to carry out.

What would usually happen was that the dealer would forward the sale invoice and a notification of hire-purchase of the car to the LTD.

The defendant, which financed an average of 150 hire-purchase transactions a month, would send an employee to LTD from time to time to collect the registration book, better known as the "blue card", relating to any new vehicles it had financed.

The LTD was very busy, according to Wong, and there was sometimes a gap of many months between the submission of the documents to LTD and the furnishing of the blue card and the entry of the necessary details in the register.

It is a matter of speculation as to where and why the usual procedure went wrong, but there is no doubt that it did and that the car was not registered in the name of Loh, as the owner, in 1983; nor was a claim of ownership recorded in the register, as would normally have happened, showing the defendant as claiming the ownership of the car.

Loh continued to make his monthly payments during 1983 and up to 28 August 1984, when he owed a balance of $44,300.

The defendant, apart from sending an employee to see if the car's blue card was ready for collection, had taken no further steps to protect their interest in the car.

It was early in May, 1984, that the plaintiff became involved with the car, when Loh asked it to lend him $30,000 on the security of the car. This was to be achieved by the purchase of the car by the plaintiff, which would hire it to Loh under a hire-purchase agreement of the usual kind.

The agreement, dated 7 June 1984, provided for Loh to pay by 1