Chang Min Tat FJ (delivering the judgement of the Court):

The short question in this appeal is whether the agreement entered into between the parties is a hire-purchase agreement as contended by the appellant-defendant or an outright sale on instalment terms as argued by the respondent-plaintiff. If it is a hire-purchase agreement, then by the terms of it the appellant would have been entitled to re-possess the vehicle on breach of any of the terms 17 the agreement and would not be liable for damages. If an outright sale, the property in the vehicle had passed to the purchaser and the purchaser would have a perfectly valid claim for wrongful repossession.

In the High Court on an application to strike out the claim of the purchaser for damages for wrongful-possession as disclosing no cause of action on the pleadings and having regard to the facts, the learned trial Judge refused to do so. He therefore dismissed the application with costs. From that decision this appeal lies.

The vehicle concerned was a second-hand caterpillar tractor priced at $173,500. The price was such that, as in so many instances, an agreement for purchase by instalments was entered into. This agreement is in the usual form of the appellant. It bore the heading and it was entitled "Hire Purchase Agreement" under the Hire Purchase Act 1967. The rights and obligations of the parties under section 4 of the Act were recited in the agreement. They were the incidents of hire-purchase. By the agreement it was agreed that "the Owner will let and the Hirer will take on hire the motor vehicle more particularly described (hereinafter referred to as the 'vehicle..) upon and subject to the terms and conditions in this agreement and the Hire Purchase Act 1967 contained."

Accompanying this agreement was an offer, again in the hiror's usual form, whereby the respondent requested the appellant to let on hire "upon the terms and conditions appearing below and also appearing in the Hire Purchase Agreement attached hereto (which I have read and understood) the goods more particularly described below ...." This offer was signed by the respondent.

In the events that had happened, the respondent paid an initial deposit of $52,050 but failed to pay the instalments due on 5 July 1975 and subsequent months. The appellant repossessed the vehicle. It was never a contention between the parties that in doing so, the appellant had failed in any way to comply with the provisions of law in the Hire Purchase Act and with the terms of the agreement. The repossession was clearly founded on the claim that in the relationship between the parties, the property between the parties had not passed from the appellant to the respondent.

The respondent being in need of the vehicle for its purpose then paid the appellant, partly by postdated cheques, all the arrears that had fallen due by reason of which the right of repossession of the vehicle was exercised as well as the expenses incurred by the appellant in the repossession and was given back the vehicle. The hire-purchase agreement was revived. Again the respondent fell into arrears but this time when the appellant sought to repossess the vehicle, it found that the respondent had put it out of reach. The appellant accordingly commenced two actions: the first, Civil Suit No 2245 of 1976 against the respondent and the guarantor for: (1) $60,000 being arrears of instalment of rent, (2) $2,042.74 being interest there-on up to 15 April 1976, (3) return of the said tractor, (4) damages for wrongful detention, (5) alternatively, damages for conversion. (6) interest, (7) costs of suit and (8) such further or other reliefs, the second, Civil Suit No 2244 of 1976 against the drawer of the postdated cheques tendered in purported payment which had been dishonoured on presentation. Nothing, fortunately, turns on any question of election as a settlement was reached under which the respondent paid the appellant the payments outstanding on the purch