2015 QCCQ 3698, 2015 QCCQ 3698

Milazzo c. Allocca 2015 QCCQ 3698 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL No: 500-32-138217-130 DATE: April 28, 2015 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ SALVATORE MILAZZO Plaintiff v.

FIORAVANTE ALLOCCA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This is an application for cancellation of the sale of a used motor boat. Salvatore Milazzo claims that the boat was affected by latent defects and demands the reimbursement of the sale price, as well as miscellaneous disbursements.

He has reduced his claim to $7 000.00 in order to respect the monetary jurisdiction of the Small Claims Division. [ 2 ] The boat, unused since the summer of 2012, is still in the possession of Mr Milazzo.

INTRODUCTION [ 3 ] The versions of each party are so absolutely irreconcilable that the Court will summarize each and then will explain which is preponderant. [ 4 ] It must be noted that both parties confirm that the transaction was conducted entirely in cash and that neither of them has any documents to confirm the dates or the exact amounts paid. [ 5 ] Mr Allocca has however presented a witness in view of corroborating certain dates alleged in his version. FACTS

a) According to Mr Milazzo [ 6 ] Mr Milazzo testifies that he became interested in purchasing the boat during the summer of 2011. He had known Mr Allocca for some 25 years and implicitly trusted him when he offered him a used boat that was apparently in good condition. [ 7 ] Although, he did not inspect the state of the hull of the boat, he did notice a weakness in the deck that Mr Allocca agreed to repair during the winter. [ 8 ] Mr Milazzo then paid a deposit of $3 000.00. [ 9 ] Mr Milazzo states that the boat was delivered at beginning of the 2012 season. The boat’s motor quickly began to malfunction.

Mr Allocca made some adjustments and thereafter Mr Milazzo paid the balance of $3 000.00 on May 25, 2012 (Exhibit P-1). He cannot explained however why he had already transferred the title to the boat on May 22, 2012 (Exhibit P-3). [ 10 ] When the motor malfunctioned once again later that summer and Mr Allocca neglected to return to execute repairs, Mr Milazzo had the boat inspected (August 2, 2012, Exhibit P-4).

This inspection, uncontested, shows that the boat has numerous problems, most importantly that the hull is not waterproof and is so weak that the boat should not be used. [ 11 ] Mr Milazzo sent a demand letter to Mr Allocca on September 11, 2012, stating that “ the boat you sold me did not pass

inspection ”. He demanded reimbursement.

b) According to Mr Allocca [ 12 ] Mr Allocca’s version is drastically different. He states that Mr Milazzo has been in possession of the boat since June of 2009, when he delivered it to his lakeside cottage. [ 13 ] Although the agreement was to pay $6 000.00 cash on delivery, Mr Milazzo surprised the vendor by saying he had only $500.00 available. [ 14 ] In view of this, it was agreed that title to the boat would not be transferred until full payment was made. [ 15 ] For two more seasons, similar excuses and partial payments were made by Mr Milazzo.

In this fashion, he paid $500.00 in June 2010; $1 000.00 in June 2011 and $2 000.00 in May 2012. In the interval, Mr Allocca continued to maintain and winterize the boat each year. [ 16 ] These are the circumstances that explain that the receipt (Exhibit P-1) was executed on May 25, 2012. [ 17 ] Mr Allocca concedes that P-1 is silent as to the chronology of the payments he alleges and that he has no further documents to confirm his version. RULES CONCERNING LATENT DEFECTS [ 18 ] According to

article 1726 of the Civil Code of Québec , Mr Allocca is bound by a warranty as to the quality of the sold motor boat [1] . It must not be affected by latent defects. [ 19 ] To justify a claim by a purchaser, the rules are as follows: 1) The defect must be serious and it must diminish the purchaser’s use of the sold goods; 2) The defect must have existed prior to the sale; 3) It must be hidden, notwithstanding a serous examination by the purchaser prior to the purchase. BURDEN OF PROOF [ 20 ] The burden of proof in this matter lies on the shoulders of Mr Milazzo.

He must prove by preponderance of evidence, that each of these criteria is met [2] . This means that the version put forward by Mr Milazzo must be more convincing then that of Mr Allocca [3] . ANALYSIS [ 21 ] If Mr Milazzo is to be believed, his case appears founded. According to his version, each of the criteria stated above has been established. [ 22 ] On the other hand, Mr Allocca’s defence lies elsewhere. In fact, if his version is to be retained, the sale took place not in to 2012 but rather in June of 2009 when he delivered the boat to Mr Milazzo’s country house.

The payments were spread out only because Mr Milazzo claimed he had no money to pay him. If this is the case, there is absolutely no evidence that the defects affecting the boat in 2012 did in fact exist prior to the sale. [ 23 ] Neither witness is more convincing on his own. Normally, this would mean that the party, who had the burden of proof, in this case Mr Milazzo, should lose. [ 24 ] However, the testimony of Mrs Wendy DiFalco corroborates part of the chronology given by Mr Allocca.

Although Mrs DiFalco is Mr Allocca’s girlfriend, the Court has no reason to disbelieve her, be it by way of the testimony itself or her demeanour before the Court. She states that she was present in July 2010 at Mr Milazzo’s cottage. At this time, Mr Allocca had presented himself to receive final payment for the boat. She did in fact see the boat on the premises and had been told that it had been delivered the previous year. Although she was not privy to all of the conversation between the parties, she knows that Mr Milazzo again stated that he had no money to make a payment.

CONCLUSION [ 25 ] Mrs DiFalco’s credible testimony leads the Court to conclude that Mr Milazzo has not met his burden of proof. [ 26 ] On the contrary, the Court believes Mr Allocca’s version that he did in fact deliver the boat in June of 2009. The sale took place at that date. Transfer of the official title in 2012 does not change this fact. The boat was used by Mr Milazzo for three full seasons. Therefore, although the evaluation of the boat in 2012 is not contested, there is nothing in the evidence to convince the Court that the defects then found existed prior to the sale in 2009.

Clearly, these defects in 2012 were most probably caused by use and abuse of the boat over the seasons during which Mr Milazzo used the boat. FOR THESE REASONS, THE COURT : DISMISSES the application;

CONDEMNS Salvatore Milazzo to pay to Fioravante Allocca the sum of $156.00 for the legal disbursements. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: March 23, 2015 [1] Art 1726, C.C.Q : The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them.

The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert.