IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION

HIGH COURT CIVIL CASE 52 of 2020

BETWEEN:	LOLIN IUTA
	Plaintiff

AND:	MAKIRITI BAURO	
Defendant

Date of Hearing:	31 March, 29 May, 7 August, 12 August 2025- (Plft’s rebuttal w/sub)
Date of Judgment:			22 September 2025

Appearances:		Ms Elsie Karakaua for the Plaintiff
                                            Mr. Banuera Berina for the Defendant

JUDGMENT

Introduction

1.	By writ of summons, the plaintiff sues the defendant for breach of the agreement regarding the defendant’s payment for a new set of car keys for the plaintiff’s car. The plaintiff claims $10,800, damages, interest, and costs. The defendant denied liability.

2.	The breakdown of $10,800 is as stated in paragraph 19 of the Statement of Claim as follows;
-	Mechanic’s expense $850
-	Loss of enjoyment of car from 27/9/19 to 13/4/20 being 199 days x $50 per day = $9950

Facts

3.	The plaintiff and defendant were once friends. On September 27, 2019, the defendant went to the plaintiff’s house to pick up her passport, which the plaintiff had collected on her behalf from the Immigration Office.

4.	The defendant was given the car keys to retrieve her passport from the plaintiff’s bag that was in her car. She left the plaintiff’s house after she got her passport.

5.	According to the plaintiff, the defendant called back to inform her that she had forgotten her item in the car. The plaintiff searched for the car key and only realised then that the defendant did not return it when she took her passport.

6.	The defendant’s version is that she did not make any calls back to the plaintiff after she left. It was the plaintiff who called her several hours later after she had gone to inform her that she could not find her car keys.

7.	The defendant offered to pay for the cost of the replacement key once ordered.

8.	The plaintiff could not use her car thereafter. It took several months for the plaintiff to use her car again after obtaining a new set of car keys compatible with the vehicle. This was on April 13, 2020.

Defence
9.	The defendant stated that she agreed to help the plaintiff pay for the new set of keys. She denied losing the car keys but said she only agreed to assist the plaintiff because she was her friend. She paid $990 to the plaintiff for the key installation, not $802.80 as the plaintiff claimed. 

Issues
10.	Parties could not agree on the issues, so each presented their issues for the court’s consideration.

11.	According to the plaintiff, the issues are as follows;
a)	Whether the defendant should also be liable to pay the further cost of configuring the car keys to work on the car;
b)	Whether the defendant’s conduct in agreeing to pay for a new set of keys amounts to an admission of liability for the loss of the car keys;
c)	Whether the defendant is liable to compensate the plaintiff for further losses when she was no longer able to use her vehicle, transportation expenses, damages, interests or costs.

12.	The defendant, on the other hand, submits the issues as follows;
-	Did the plaintiff and defendant make an agreement for the purchase of the new set of keys by the defendant for the plaintiff’s car;
-	Did the defendant breach the terms of the agreement?
-	Did the plaintiff suffer the loss, set out in her claim, as a result of the breach by the defendant of the terms of the agreement?

Submission and Analysis

13.	 The court, after considering the evidence from both parties, finds that the defendant offered to buy the new set of car keys. Parties did not dispute this fact. 

14.	The plaintiff argues that because the defendant agreed to pay for a new set of car keys, it implies that she is responsible for the loss of the plaintiff’s keys. Evidence shows that the new keys ordered did not work on the car, requiring additional work to configure them to match the vehicle. The plaintiff claims that the defendant should also cover these extra expenses for configuring the keys because these costs were included in paragraphs 6 and 16  of the plaintiff’s Statement of Claim, which states that the defendant agreed to pay and had breached the term of the agreement by failing to pay ‘the total cost of ordering a new car key.’ The defendant contends that her responsibilities ended once she paid for the new car keys according to their agreement.

15.	It is important to note that there is no written agreement between the parties, only a verbal one. The plaintiff claims that it is an implied term of the agreement that the defendant is also responsible for ensuring that the replacement car keys are compatible with the plaintiff’s car, so the new keys can serve their purpose of operating the vehicle. 

16.	The defendant’s counterargument was that the implied term was not pleaded in the plaintiff’s statement of claim and therefore cannot be argued. Their defence was solely based on a specific agreement term regarding the payment for the new car keys. Counsel cited the PNG case of Kalo v Akaya [2007] PNGC 90; N3213 (31 May 2007) in support of this argument. The relevant paragraph is as follows;

“22. In relation to the law and the need to specifically plead, in Madiu Andrew v Mineral Resources Development Co, Ltd (2004) N2601, Kandakasi. J said;
“Pleadings in a civil claim play a very vital role. They lay the foundation for a claim and dictate the kind of evidence the parties can call and the grant of a relief, subject to evidence proving it. Both this Court and the Supreme Court have denied plaintiff’s grants of relief that have no foundation in the pleadings, even if there is evidence of it.”

17.	The plaintiff, through Counsel, seems to agree that this part of her claim was not pleaded in her Statement of Claim; but, she argues that our High Court Civil Procedure Rules, Order 19 Rule 15, can accept a new matter or issue if raised during the hearing by evidence, even if not specifically pleaded. For ease of reference, the relevant rule is quoted below;

“New fact must be specially pleaded.
R.S.C. O.19, r15.
16. The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising of the preceding pleadings, as for instance, fraud, the Statute of Frauds, the Statute of Limitaions, release payment, performance, facts showing illegality either by Ordinance or other written law or common law.”

18.	 It is further submitted for the plaintiff that the court has the discretion to deal with any new matter or issue introduced during the trial by evidence. Counsel for the plaintiff referred to the case of New World Ltd v Vusonitokalau [2018] FJCA 20, where the court states that ‘although ratification was not pleaded, or raised as an issue, if there was evidence of it, it was open for the learned trial Judge to consider it.’ 

19.	Returning to the question of whether the claim for the additional cost of configuring the keys is properly pleaded, I have reviewed the plaintiff’s Statement of Claim and observed that from paragraphs 11 to 19, the plaintiff states that the mechanic was hired to work on the key programming to ensure compatibility with the car, and that the mechanic’s invoice for $850 was issued. The plaintiff suffered losses from paying these additional expenses. In paragraph 19, the plaintiff claims against the defendant for the payment of $850. All of this shows that the claim for the extra payment is clearly included in the pleadings. Therefore, the defendant was aware she would be questioned about these additional expenses at trial.

20.	From the above finding, the next issue is whether the defendant is liable to pay this additional $850 for configuring the keys. The agreement states that the defendant will cover the total cost of ordering the new keys. The evidence shows that the plaintiff ordered the keys, and the defendant paid $802.80 in full. However, the defendant refused to pay the extra cost for engaging the mechanic to configure the keys, as it was not included in the original agreement. The plaintiff argues that this additional expense was an implied term of the agreement since the new keys would serve no purpose if they did not work on the car. 

21.	The plaintiff cites the case of Metutera v Kiribati Shipping Services Ltd [2007] KICA 16; Civil Appeal 07 of 2007 (30 July 2007), which sets out the requirements in deciding whether a term should be implied. This is quoted below;

“The principles to apply in considering whether a term should be implied are well established:
It must be reasonable.
It must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it.
It must be so obvious that it goes without saying.
It must be capable of clear expression.
It must not contradict any express term of the contract.”

22.	The question before this Court is whether the defendant’s agreement to pay for the new keys amounts to an admission that she was responsible for losing the car keys. The defendant states she only agreed to pay because she felt sorry for the plaintiff as a friend. The plaintiff, through counsel, argues that paying nearly $1000 out of pity doesn't make sense. The only reasonable explanation is that the defendant accepted responsibility for losing the keys. 

23.	Counsel for the defendant also submits that whether the defendant is responsible for losing the keys is irrelevant to the claim because the plaintiff’s claim is based solely on the breach of the agreement term that the defendant agreed to pay for the new keys. Whether or not this is relevant, I find there is not enough evidence to prove that the defendant was responsible for losing the car keys. The evidence shows that the defendant’s new passport was ready for pickup at the Immigration Office. The plaintiff worked at the Immigration Office, so she collected the passport for the defendant. The defendant went to pick up her passport from the plaintiff at her house. The plaintiff gave her the car key to retrieve her bag from the car because the passport was in the bag. According to the defendant, she returned the car keys to the plaintiff when she got her passport. After a few hours, the plaintiff was unable to find her car keys and said she could not remember the defendant returning the keys. She called the defendant several hours later to inform her that she could not find her keys. Therefore, I cannot agree with the contention that because the defendant agreed to pay for the cost of the new keys, it indicates that she was responsible for losing the car keys. There is no solid evidence to prove that the defendant lost the car keys.  

24.	I will now deal with the issue of an implied term. The plaintiff’s Counsel argues that applying the principles stated in Metutera case, it goes without saying that the new keys should make the car run. The argument also shows that it is reasonable for the defendant to bear all costs of the replacement key for the car to operate. 

25.	I understand the plaintiff’s point on this implied term; however, I am not convinced from the evidence that the agreement for the defendant to buy the new car keys also includes an agreement to ensure the car is running. I accept that the defendant offered or agreed to pay for the cost of the new keys, but nothing more. The principle in Metutera case is therefore irrelevant.

26.	The plaintiff also claims compensation for the loss of use of her car from the time the keys were lost until they were replaced and the car was drivable again. This period spans from September 27, 2019, to April 13, 2020. Based on my findings above, since the agreement was only to pay for the new keys, this does not entitle the plaintiff to hold the defendant responsible for the loss of use of her car. The plaintiff is not liable for any inconvenience caused by her inability to enjoy her vehicle. 

Summary 
27.	For the reasons stated above, the plaintiff fails to prove her case by the required standard that the defendant is liable for the additional costs incurred for configuring the keys and for the loss of use of her vehicle.

28.	The case is dismissed with costs to the defendant to be agreed or taxed.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice