Misu v PTP Savings & Loans Society [2007] PGDC 160; DC831 (3 October 2007)

DC831

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
CIVIL JURISDICTION

Case No. 1713 of 1995

JAMES MISU
Complainant

PTP SAVINGS & LOANS SOCIETY
Defendant

Port Moresby: Pupaka, PM

2007: 3rd October

The Complainant in person
No appearance by the Defendant

3rd October 2007

PUPAKA: This matter now comes before me for an ex parte hearing as a result of the continued absence of the defendant. The defendant has filed no Notice of Intention to Defend or a Defence. On the face of the record this proceeding has been served on the defendant. There is on file a proof of service dated 7th September 2007 evidencing regular service. This is not exactly a Default Summons but it should have been pleaded and filed as one for it does seem the claim is for a liquidated demand based on invoices presented for payment.

Therefore, when this matter was set down for ex parte hearing, the complainant was advised to file affidavit evidence for a speedy hearing. He seems to have done that. He has filed an affidavit which is dated as having been sworn on the 19th of September and filed on the 20th of September 2007. The complainant has filed no other evidence.

FACTS /EVIDENCE

The facts as disclosed in the complainant’s affidavit are these:

The complainant either operated or operates a catering service. He trades under the registered business name of "OJ Catering Services".

On or around 7th April 2006 the parties reached agreement for "finger food and beverages" to be supplied by the complainant on 22nd April 2006 to the defendant at its "4 Mile Telikom Depot". As a result the complainant furnished a pro forma invoice to the defendant citing what food and beverages would be supplied. The price of the quantity to be supplied was quoted at K5281.00.

Upon receipt of the quotation on 14th April 2006, the Chairman of the defendant advised the complainant that his quotation was approved and accepted and that the complainant should go ahead and supply the food and beverages to the defendant at the latter’s gathering on 22nd April 2006.

As agreed, on 22nd April 2006 the complainant duly proceeded to deliver the food and beverages at the defendant’s 4 Mile Telikom Depot. However, upon delivery the complainant was advised that the scheduled meeting of the defendant was postponed as a result of the Chairman of the defendant having taken ill.

It is now immediately unclear whether the delivery was accepted or whether the complainant took away the food and beverages due to non acceptance of delivery or due to cancellation of the scheduled meeting.

I say that because this complainant goes on and on about a cancelled meeting when all he needs to say is whether or not he delivered a food and beverages order to the defendant. Whether the food was meant for a wedding or for a meeting or for whatever purpose, and indeed whether the food was in fact eaten by anyone, should not concern the complainant. All he needs to say or prove is that he delivered an order that was accepted and he is as yet not been paid for it.

The complainant goes on further to say that he was not advised of the deferment or postponement of the meeting, for which he was requested to cater. In the circumstances, I must presume he only refers to the postponed meeting in an effort to say he had not been informed quickly enough of the deferred meeting, such as for him to stop preparation. I take it that the complainant is trying to say he, due to the lack of a stop notice, went ahead and prepared the food order and he delivered the order to the defendant at the place referred to.

I should state that if the complainant took back the order, perhaps because it was not accepted due to a cancelled meeting, he would be entitled to sue for the wastage anyway. Of course, in that case, what he can ask for in court would be less than the entire sum. He would only sue for the wastage of any perishables, i.e., things he would not otherwise sell off. He may not be entitled to claim for non perishable and re saleable stuff like bottled or canned drinks.

I should state too that there are other matters of alleged losses asserted by the complainant but I cannot see how the complainant can attribute such long range losses to the initial non payment by the defendant. If the complainant holds himself as a businessman, he should know that delayed payment in his line of business is a regular occurrence. Therefore he should remember to insure his business against losses like payment for orders not coming in quick. Further the nexus between his other alleged losses to the late payment or indeed non payment by the defendant, as it now seems, is too far fetched. Normally I would be convinced that there is apparent remoteness of consequential damages. The associated losses are too remote in cases like this matter and I am not going to find that consequential losses asserted are recoverable here.

In any event the complainant only merely pleaded a general claim, apart from the claim for proved loss of K5281.00, for what he termed as "Opportunity Costs". The fact that he has been heard ex parte does not entitle him to ask for anything beyond the range fixed by his plea for relief in his complaint and summons.

ON LIABILITY

That said the claim is apparently based on an invoice. The claim therefore is for a liquidated amount. The defendant did write to the complainant, as it seems, denying delivery of the order. It is interesting that the defendant, by any correspondence, did not deny that they had placed an order for food and beverages earlier. Therefore I consider that this claim is at least based on a real event, particularly a placement of an order for "finger food" and associated beverages, which incidentally makes the job of granting judgment ex parte relatively easier. I accept the copy invoice tendered as adequate evidence in the circumstances. It is otherwise acceptable evidence. I therefore find the defendant liable as alleged.

CONCLUSION

Consequently I order judgement for the complainant in the sum of K5281.00 as sought. I decline to find that the other consequential losses, the so called "Opportunity Costs" which are said to be a direct flow on effect (losses) as a result of the refusal to pay, for the reasons I have given herein. In any event, as I said, the complaint cannot shift liabilities that are his alone by reason of a failure to insure against delayed payment or a failure to mitigate against losses.

The complainant of course is entitled to interests at the statutory 8% and his nominal costs of this proceeding.

_______________________________________________________

The Complainant in person
No appearance for or by the Defendant