Kave v Gabuna [2000] PGDC 34; DC244 (26 October 2000)

DC244

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2748 OF 2004

BETWEEN

Michael Kave
Complainant

V

Noel Gabuna
Defendant

Mr Iova. S. Geit A - Senior Magistrate
2000: 26th October 2000

REASONS FOR DECISION

GEITA - The Complainant makes a claim against the Defendant for the sum of K7,591.60. The sum he asserts is the total sum of money he expended in renovating the Defendants property. The section and allotment number are not mentioned however the house is situated in Port Moresby.

In a brief statement of claim the Complainant pleads as follows:-

"That the Defendant is indebted to the Complainant in the sum of K7,000.00 being for renovation and maintenance work done to the Defendant's house.

Three different phases of work including carpentry at a cost of K6,000.00 painting at a cost of K500.00 and plumbing at a cost of K500.00 was done on property since March 16th 1999"

The Complainant therefore prays to this court for payment of the said K7,000.00 plus cost of K30.00 and interest of K560.00, thus totalling K7,591.60 inclusive.

The issues here as I see it is whether at all material time there was a valid agreement in existence between the parties in respect of the renovation work. If indeed one existed, what were the terms of the agreement and whether there has been any breach of the agreement.

In his supporting affidavit the Complainant deposed that he was approached by the Defendant and his wife to carry out renovation work on the family house. He commenced work on 16th March 1998. There is no evidence of an agreement or a quotation for the scope of work to be done.

According to the Complainant he single handedly carried out renovation work except the toilet and shower area when his family was evicted from the Defendant's property. I might add in passing that the Complainant is the father of the Defendant's wife and they are all related one way or another.

He says that only two lots of payments of K500.00 and K1,000.00 were paid to him on 26th April 1999 and 6th December 1999 respectively. Since than no other payments have been made.

In his own evidence the Defendant confirms engaging the Complainant, who happens to be his in-law to renovate his property. He termed the contract as a gentlemen's agreement with no fixed price being negotiated between the two parties. The Defendant takes issue of the K7,000.00 said to be part of the agreement of the renovations.

No other witnesses were called however the Defendant only relied on his diary notes to show that a total of K3,500.00 had been paid out to the Complainant. He says that payments below the K200.00 mark were not recorded in his personal diary. According to the Defendant materials worth K8000.00 were purchased for the renovation however the house still remain incomplete. This is consistent with what the Complainant said as a result of some differences and eventual eviction from the Defendant's property. So that is not surprising.

In his attempts to defend himself the Defendant rebutted by saying that the Complainant instead owes him K29,000.00. I take this defence to mean a cross-claim. The parties being lay persons I have accepted their evidence as they are. Basically what the defendant is alleging is that for the past ten years the Complainant has lived on his premises rent free. Paid no water, electricity or living expenses and therefore must be made to pay now.

It is noted that the Defendant's set off exceeds the amount in respect of which the Court has no jurisdiction, however I am not satisfied that the set off is claimed bona fide hence the set off is struck out. There is insufficient evidence to sustain the set off or cross-claim.

When asked during cross-examination if he had received the K3,500.00 the Complainant denied receiving that amount. He remained adamant that only K1,500.00 was given to him by the Defendant.

Having outlined the foregoing relevant evidence the question, then arises, as to whether there was a valid agreement for the renovation work and how much was quoted.

On the evidence as it is before me, I am of the view that there was indeed a valid agreement entered into by both parties on the basis of a "gentleman's agreement". Because of the nature of the agreement and the closeness of parties towards each other they saw no real need for exact figures for the scope of work. Unfortunately this often happens with Papua New Guineans when the need to enter into formal agreements, contracts are a rarity until disputes are abound and the need arises for such relations to be formalised. By than its usually too late.

On the balance of probabilities, I find that in particular regard to the improvements there was a common understanding that the Complainant would be compensated for the renovation work done to the Defendants property. I find this to be the fundamental term in respect of the renovations. Since the Defendant has refused to pay the Complainant for such renovation, I am of the view that he has breached the agreement. Such breaches must be remedied by way of damages. I find that the Defendant is liable to the Complainant under the terms of the gentlemen's agreement to pay damages.

What then is the amount that the Defendant should pay? The Complainant has given a figure of K7,000.00 for his labour however, I am not able to rely on that figure since it is not a true reflection or computation of the scope of work put into. I note that the Complainant is a skilled artisan previously employed by the Department of Works for 30 years and has a vast experience is carpentry. I shall use that as a yardstick to assess his labour hours since the duration of the renovation is not clear. I am unable to ascertain when the Complainant finished work on the premises. Under these circumstances I would discount the Complainant's labour charge by half and allow the total labour charge at K3,000.00.

In the end result I will award damages against the Defendant in the sum of K3,000.00. Since he has been paid K1,500.00 I will discount the award of damages by that amount.

In the end result the Defendant is therefore ordered to pay to the Complainant the sum of K2,091.60, inclusive of cost and interests.

Summary

	K3,000.00
Less Payment	(-) 1,500.00
Received	1,500.00
+ 8% interest	560.00
costs	31.60
Net Judgement	K2,091.60