Toan v Daiva [2000] PGDC 16; DC134 (29 August 2000)

DC134

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2351 OF 2000

BETWEEN

BARRY S. TOAN

Complainant

AND

ANDREW DAIVA & ORS
Defendant

Port Moresby: I Geita - Magistrate
14, 29 August 2000

Counsel

Complainant in Person
No appearance for the Defendant

EX PARTE DECISION

GEITA I.S. - The complainant makes a claim against the defendants for the sum of K3, 668.19 together with interest and cost. The claim arises from a simple contractual arrangement between the complainant and the defendants. The facts are few and basic and are summarised hereunder: -

The defendant and his friends claiming to be landowners entered into an oral agreement with the complainant for the hire of his taxi for seven days at a rate of K120 per day. The complainant's taxi registration number being T.4144. It appears that the hurried oral arrangement was made between the hours of 8-9 p.m. on 13 June 2000 along the roadside at Kanage Street, 6 mile.

Having put that arrangement into place the complainant's first task was to drive the defendants' accompanied by some women friends from Budget Inn where they were staying to Players Nite Club for a dance. The complainant returned at 2 a.m. the next morning at the appointed hour, picked up the defendants with some other women and as they were driving out, was attacked by some unknown men with stones. As a result the complainant's taxi was badly damaged. The front windscreen and some glass panels were broken. According to him the defendants promised him that they would pay for the damage done to his taxi. When he returned the next day to collect the promised payments from the defendants they escaped through the back door of the hotel in another taxi.

The complainant asserts that on 18 June Mr Andrew Daiva, who is the chairman of their land-owning group, requested for a quotation for the damage and was given one the next day. Five weeks later the damage still remained unpaid with Mr Daiva constantly evading the complainant by changing his hotel rooms making it difficult for any meaningful settlement. Hence this summons upon complaint. Despite due service of the process on the defendant they failed to make representation. Consequently the matter was fixed for an ex parte hearing. The only evidence being the complainant's affidavit and three separate quotations. Three quotations obtained by the complainant are from Ideal Autoparts Limited, Motoring Discount and Ela Motors for the respective total sums of K880.00, K814.00 and K1, 428.19. The quotes are all for replacement parts. The court accepted the quote from Motoring Discount

Having regard to the affidavit evidence of the complainant, untested it may be, I am satisfied that there was a verbal contract for the provision of a taxi service by the complainant to the defendants. Even in the absence of a formal contract, an agreement may be inferred from the conduct of the parties involved. This court is entitled to and must find some agreement and in doing so look at the objective situations namely engagement and use of the taxi, returning after drop-off to pick the defendants at the appointed time of 2 a.m. Those objective facts point to the existence of a contractual relationship between the complainant and the defendants.

On the evidence before the court I am satisfied on the balance of probabilities that the defendants were in breach of a valid contractual relationship. They have failed to pay for services provided to them; hence I find them liable in damages for breach. This court must restore the complainant's status quo vis-à-vis his taxi, to a position as close as possible to the position he was in immediately before the accident.

Accordingly I am satisfied that the complaint is made out. I will order the defendants to pay to the complainant the sum of K1, 770.00 together with cost and interest forthwith. No orders for loss of business due to lack of evidence before me.

Summary:

1. Damage and cost of replacements parts K880.00
2. 7 days hire at K120 / day K840.00
3. Costs at a flat rate K 50.00

K1, 770.00

In Person: Complainant

In Person: Defendant