Wylie CJ (Borneo):

In these proceedings the respondent (the plaintiff in the Court below) claimed a declaration that it is the owner of a certain car registered No. SH 4382. There was also a claim for delivery of all documents of title relating to the car and for such further or other relief as the Court deemed fit. By his defence the appellant claimed the car to be his and counterclaimed for return of the car or its value and damages for its detention. He claimed that the hire-purchase agreement under which the respondent purported to seize the car and two previous hire-purchase agreements entered into by himself were not genuine hirepurchase agreements, but were intended to cover loans, that they were therefore bills of sale and void for non-registration under the Bills of Sale Ordinance. The details of these transactions, as they are disclosed by the findings of the trial Judge and the evidence given, were as follows.

On 29 May 1959 according to their sales invoice (Exh. p. 1) Progress Motors Ltd. sold this car to the respondent, but delivered it to the appellant. It is clear from the evidence that what happened was that appellant arranged to buy this car from Progress Motors Ltd., but, as he did not pay cash, the car was invoiced as sold to respondent, who in turn sold it to appellant by way of hirepurchase. The agreement for hire-purchase is dated 2 June 1959. Appellant paid eight monthly instalments under this agreement.

On 9 March 1960 the parties entered into a fresh agreement for hire-purchase in respect of this car. What really occurred, was that the respondent advanced to appellant a nett amount of $2,952. To this was added the amount the appellant would have had to pay to discharge his liability under the first agreement, plus the 'hire-purchase charges' payable in respect of the second period of hire. The total amount so arrived at was the amount payable by monthly instalments under the second agreement.

On 17 June 1960 one Lim Boon Hin signed a hire-purchase proposal form in respect of this car addressed to the respondent. Appellant had agreed to sell the car to Lim and the respondent was to finance this transaction, with a guarantee in its favour from the appellant. A series of transactions were undertaken with the object of recording that the respondent had paid the appellant $9,000 for the car, that the appellant had paid the respondent $6,062 as the balance outstanding under the agreement of 3 March 1960 and that Lim had paid $1,000 to respondent as a cash deposit on the car. No money in fact passed and it is obvious that the only genuine payment that was intended to be made, was a payment of $2,938 by the respondent to the appellant for his 'equity' in the car over and above the amount of $6,062 outstanding under the agreement of 3 March 1960. However, before this was done, a dispute arose between the parties because respondent's employee demanded 'football money' from appellant before he would complete the transaction. The parties fell out, the transaction was never completed and the registration of the car was not transferred from appellant to Lim.

Lim had, however, signed the hire-purchase agreement in anticipation of the transaction going through, as had appellant as surety. After the date when the first instalment would have been due under this agreement, the respondent caused the car to be seized because of nonpayment of that instalment.

I can see no reason for interfering with the finding of the trial Judge that the parties repudiated the agreement entered into on 17 June 1960. The respondent, by its agent, demanded 'football money' in addition to the consideration already agreed upon and this showed its intention to repudiate the agreement in its original form. The appellant, as he was thereupon entitled to do, accepted this repudiation and refused to go on with the transaction. That both parties adopted this attitude receives some confirmation from the fact that appellant was left in p