Wayner v Perak [2004] PGDC 47; DC339 (16 April 2004)

DC339

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 64 OF 2003

BETWEEN

John Wena Wayner
Complainant

V

Peter Perak
First Defendant

Enga Provincial Government
Second Defendant

Mt. Hagen: Appa, Pm
2004: 26th March, 16th April

JUDGEMENT (By Default)

This is a case based on Breach of Contract of Service. Repair of a vehicle owned by the Department of Education – Enga an Agent of the Enga Provincial Government. Notice of claim given. No notice of intention to defend or defence filed – case proceeded ex parte (defendants).

Counsel
J.W Wayner for himself
B. Yallon/Take for the defendants.

16th April 2004.

APPA, P.M. The complainant claims that on a date in June 2002 (12.06.02) the first defendant who was a school inspector brought the Enga Education Department vehicle which described as HAG –635 Mazda Bravo to Mt. Hagen for repair. The first defendant met up with the complainant (through their previous acquaintance) and verbally entered into an agreement to leave the vehicle with the complainant to do the repairs and payment to be made later. Cost of the pairs was to be born by the complainant.

The complainant’s evidence shows that it took him three months to repair the vehicle at a cost of K3,870.92 as showed on invoices and receipt annexed to his affidavit sworn on 09th December 2003. It appeared in evidence that the defendant did not turn up to pay the complainant and take delivery of the vehicle. The vehicle was kept under custody of the complainant for nine months. On 29th September 2002 complainant did test drive on the vehicle when Minj Police took him and vehicle was kept at Minj Police Station when the first defendant drove it away without making any payment to the complainant. Sometimes later complainant lodged complaint with Mt. Hagen Police and the vehicle was impounded at Mt. Hagen Police Station.

To show admission of liability, complainant annexed a document ("H") to his affidavit a formal letter of admission from Mr. Paul Sarr, the Advisor to Education Services in Enga offering to settle the bill at K6,000.00 by end of May 2003. However, that did not eventuate so the complainant took out this summons.

The summons was effected on the defendants but to date no defence or notice of intention to defend was filed. The defendant have the services of their legal officer and their City Agent -–Warner Shand Lawyers. They did not do anything to defend the proceeding so it was assumed that they had no defence and case proceeded ex parte. The letter of admission from Mr. Paul Sarr further strengthened this view.

In the nutshell, I am convinced by the complainant’s evidence that there was an enforceable contract in which complainant was to repair the vehicle at his own expenses and to bill the defendants for payment. By that agreement, the vehicle was repaired but defendants have failed to pay for the services rendered. That being so, in law, complainant is entitled to his damages.

On the issue of quantum, complainant claims a total of K8,340.00. The break up which was that:-

(1) K3,870.92 for actual repair cost based on receipts.

(2) K470.00 for towing of the vehicle and

(3) K4,000.00 on economic loss which totals up to K8,340.92.

On the Economic loss, complainant explains in his pleading and also in his affidavit that he is an artist doing sign writing and from his little savings he used it all up in buying parts and paid workshop bills so had no money left to buy paints and other things to do his business. The complainant however did not provide particulars of his economic losses. He only gave an estimate. I am aware of some case authorities that claims without evidence of losses would not be allowed. However, for fairness sake I will make some allowance here in order to meet the offer made by the first defendant, the K6,000.00 for the towing of the vehicle, there is an official department of Works receipt issued for K300.00 only on invoice No. 049 so the same is allowed. I allow K2000.00 for economic loss.

I enter judgement for K8,300.00 plus 8% interest to run from date of summons to date of settlement and cost of the proceedings to be taxed if not agreed. The judgment debt is to be settled by the defendant jointly.

In Person: Complainant
Warner Shand lawyers: Defendant