Kulunga v Wandil [2010] PGNC 168; N3910 (9 March 2010)

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FRANCIS KULUNGA, MANAGING DIRECTOR
JAY KAY WILLS MOTORS LIMITED
Plaintiff

MICHAEL WANDIL,
ACTING PROVINCIAL ADMINISTRATOR
DEPARTMENT OF WESTERN HIGHLANDS PROVINCE
First Defendant

WILLIAM PIK,
MANAGER, ENGINEERING DIVISION
WESTERN HIGHLANDS PROVINCE
Second Defendant

DAMAGES - Assessment of - Contract law - Contract for services - Repair and maintenance of motor vehicles and heavy equipment machineries - Services rendered - Invoices rendered for payment of fees - Breach of - Non payment of fees - Fees based on invoices - Importance of rendering invoices discussed.

PRACTICE & PROCEDURE - Pleadings - Pleading of invoices and fees due in statement of claim - Failure to plead - Effect of - Award based on evidence of invoices and fees due pleaded in statement of claim - No additional awards made on invoices and fees not pleaded.

Papua New Guinea Banking Corporation Ltd -v- Jeff Tole (2002) SC694
Madiu Andrew -v- Mineral Resources Development Company Ltd (2004) N2601
Firman Manua & Kolopa Security Services Ltd -v- Southern Highlands Provincial Government (2008) N3505

1. MAKAIL, J: The trial on assessment of damages of this matter was conducted on 8th July 2008 where the plaintiff who is the managing director of Jay Kay Wills Motors Limited gave oral evidence and had his two affidavits, one sworn on 30th September 2004 and filed on 7th October 2004 and the other, sworn on 13th September 2007 and filed on 19th September 2007 tendered and marked exhibits "P1" and "P2" respectively. He was cross examined by counsel for the defendants while the defendants offered no evidence. Counsel for the parties were directed to file and serve written submissions on each other by or before 22nd July 2008 and decision was reserved to a date for parties to be advised. Both counsel had complied with the direction. I had taken their written submissions into account and this is my decision.

2. The plaintiff operated a workshop in the town of Mt Hagen. He is a qualified tradesman and heavy equipment fitter machinist and had one time worked with Hastings Deering (PNG) Ltd. He provided repair, replace and maintenance work for various types of motor vehicles and heavy equipment machineries for a fee. Pursuant to a contract between the plaintiff and the defendants, between 2001 and 2003, the defendants through the Engineering Division engaged his services to maintain and fix their motor vehicles for a fee. The plaintiff rendered his services and upon completion, rendered his invoices for payment of his fees. The total sum rendered was K253,425.16. Although the defendants paid his fees, he claimed that they breached the contract as they still owed him K101,474.49. This is the amount he seeks from the defendants in this action.

3. The plaintiff's two affidavits (exhibits "P1" and "P2") had annexed to them a number of invoices that the plaintiff alleged were delivered to the defendants and not settled. It is necessary to look at each invoice closely as each of them go to verify the total outstanding fees as pleaded at paragraph 4 of the statement of claim. The particulars of the invoices and the fees due at paragraph 4 of the statement of claim are:

CUSTOMERS NAME	DATE	ORDER NO	INV. NO	AMOUNT IN KINA
WESTERN HIGHLANDS PROVINCIAL GOVERNMENT ENGINEERING DIVISION
	25/03/02	40265	0470	K19,023.07
	25/03/02	40264	0471	K18,695.18
	25/03/02	40265	0474	K12,921.93
	25/03/02	40266	0472	K13,268.93
	08/04/02	40267	0500	K 347.60
	09/04/02	40272	0499	K 408.65
	25/04/02	40272	0480	K 2,244.55
	10/04/02	40273	0498	K 1,181.07
	27/05/02	40287	0496	K 2,717.66
	11/05/02	40289	0504	K 2,437.60
	10/05/02	40290	0487	K 1,327.70
	05/05/02	40290	0505	K19,378.14
	12/04/02	40276	0506	K 2,586.76
	02/05/02	40279	0489	K 4,938.82
Total				K101,474.49

4. The evidence of the plaintiff in relation to providing repair and maintenance services to the defendants is undisputed. That means, the only matter in issue is the amount due for payment by the defendants. However, the general rule is that, the plaintiff bears the onus of proving his damages even though there is a default judgment against the defendants. In my view, first, the invoices that had been pleaded at paragraph 4 of the statement of claim must correspond with the invoices annexed to the affidavits of the plaintiff in order to establish that there is a debt of K101,474.49. That is what the plaintiff needs to establish first for it is settle law that a party is entitled to lead evidence, make submissions and claim reliefs only in relation to matters pleaded and sought in the pleadings. This is very important because that will give the opposing party the opportunity to know what he or she will be meeting at the trial: see Papua New Guinea Banking Corporation Ltd -v- Jeff Tole (2002) SC694 and Madiu Andrew -v- Mineral Resources Development Company Ltd (2004) N2601.

5. Secondly, the invoices must give a general description of the work done and the type of motor vehicle serviced by the plaintiff in addition to the plaintiff's evidence that he provided services to the defendants during the period stated in the various invoices. This is very important because generally speaking, in the world of business in this day and age, almost all services provided by business houses are paid based on rendering of invoices. An invoice would set out the description of the service rendered, the period of service rendered and the fee due for payment. In this respect, this case can be distinguished on its facts from Firman Manua & Kolopa Security Services Ltd -v- Southern Highlands Provincial Government (2008) N3505, a case where the plaintiffs sued the defendant for breach of a security services contract and claimed K525,600.00. Even though default judgment was entered against the defendant, I dismissed the action because I was not satisfied that the plaintiffs had proven their damages. I observed at p 6 that:

"Whilst I accept that there is evidence of a contract to show that the Plaintiffs were contracted to provide security services to the Defendant at the locations and buildings in the town of Mendi and that there is also evidence of 3 invoices rendered to the Defendant to pay K525,600.00, I am not satisfied that the Plaintiffs did actually provide security services to the Defendant.

I say this because, there is no evidence before me to show that the Plaintiffs actually provided security services to the Defendant. For example, the Plaintiffs did not call any evidence from the supervisors of the security guards to confirm that the Plaintiffs did provide the services by placing security guards at these locations and buildings. Also, the First Plaintiff did not say in his evidence that the Plaintiffs did provide security services to the Defendant. Further still, he did not say in his Affidavit how many guards were actually on guard per shift at any given time and at which locations and buildings in Mendi town. Thus, the Court is left in the dark so to speak as to the details of the actual work or services performed."

6. In this case, as I said above, the plaintiff gave evidence that he provided services to the defendants during the period of the contract, out of which he rendered various invoices for payment of his fees. However, the defendants failed to settle most of them. The relevant invoices that correspond to the invoices pleaded at paragraph 4 of the statement of claim may be found at annexure "G" to the affidavit of the plaintiff (exhibit "P2") although it is noted the same invoices also appeared at annexure "F" to his earlier affidavit (exhibit "P1"). These invoices are:

1. Invoice No 0471 for Order No 40264 for K18,695.18 dated 25/03/02,
2. Invoice No 0474 for Order No 40265 K12,921.93 dated 25/03/02,
3. Invoice No 0472 for Order No 40266 for K13,268.93 dated 25/03/02,
4. Invoice No 0500 for Order No 40267 for K347.60 dated 08/04/02,
5. Invoice No 0499 for Order No 40272 for K408.65 dated 09/04/02,
6. Invoice No 0480 for Order No 40272 for K2,244.55 dated 25/04/02,
7. Invoice No 0498 for Order No 40273 for K1,181.07 dated 10/04/02,
8. Invoice No 0496 for Order No 40287 for K2,717.66 dated 27/05/02,
9. Invoice No 0504 for Order No 40289 for K2,437.60 dated 11/05/02,
10. Invoice No 0487 for Order No 40290 for K1,327.70 dated 10/05/02,
11. Invoice No 0505 for Order No 40290 for K19,378.14 dated 05/05/02,
12. Invoice No 0506 for Order No 40276 for K2,586.76 dated 12/04/02, and
13. Invoice No 0489 for Order No 40279 for K 4,938.82 dated 02/05/02.

7. There is no evidence of invoice no 0470 for order no 40265 for K19,023.07 dated 25/03/02 to establish that the plaintiff incurred a fee of K19,023.07. Hence, in the absence of that invoice, it is not known what kind of service and what kind of motor vehicle the plaintiff serviced to incur this fee. From my perusal of the invoices that have been produced, I am satisfied that each invoice correspond with the ones pleaded at paragraph 4 of the statement of claim, hence the plaintiff is entitled to claim the outstanding fees based on these invoices. I am also satisfied that each invoice contained a general description of the kind of work done by the plaintiff and the type of motor vehicles serviced.

8. In this respect, I reject the defendants' counsel argument that there are no information in the invoices of the unit price of spare parts, workshop materials used, number of days of service and number of labourers used to justify the fees claimed in the invoices. In my view, that is a shallow argument as it ignores the fact that it was defendants who requested the plaintiff to service their motor vehicles in the first place and would have given specific instructions on what was needed to be done in relation to a particular motor vehicle to enable the plaintiff to carry out the task. In any case, there is sufficient information in each of the invoice in relation to the matters raised by the defendants' counsel. Hence, I see no basis for this argument and reject it.

9. For these reasons, while I accept the evidence of the invoices annexed as annexure "G" to the plaintiff's affidavit (exhibit "P2"), I am not satisfied that he has proven the claim of K19,023.07 and must reject that part of the claim. Deducting K19,023.07 from K101,474.49 leaves a balance of K82,451.42. This is the outstanding amount.

10. It is also noted that the defendants had not objected to an additional claim of K10,848.10 in invoice no 0750 dated 15th January 2004 (annexure "I") as stated at paragraph 13 of the plaintiff's affidavit (exhibit "P2") for services rendered to the defendants. However, I am not going to award that amount for the reason that it is based on a subsequent contract between the parties on 07th April 2003, a copy is marked annexure "C" to the plaintiff's affidavit (exhibit "P2"). That contract is not the subject of this action as it had not been pleaded and relied upon by the plaintiff in the statement of claim: see Jeff Tole's case (supra) and Madiu Andrew's case (supra).

11. There is also a suggestion by the defendants' counsel that a sum of K63,908.94 should be deducted from any outstanding amount as this amount was raised in a payment voucher (annexure "H") to the plaintiff's affidavit (exhibit "P2") by the clerk of the defendants' Engineering Division and that the plaintiff had been paid this amount. It has been suggested that the clerk concerned should have been called by the plaintiff to verify the payment of this amount. With respect, I reject this submission for two reasons. First, if that is the defendants' defence, they should have either brought in the clerk concern to give evidence or produced evidence of payment such as a cheque of that amount to establish that defence. As they had not, there is no evidence to support this submission of the defendants' counsel. For this reason, I reject this submission.

12. Secondly, the payment voucher is not evidence of payment of K63,908.94. It is evidence that a cheque of K63,908.94 had been raised but whether it had been paid to plaintiff cannot be verified by the defendants as there is no further evidence on that. As the plaintiff had denied been paid this amount, I must find that the defendants had not paid this amount to him. This leaves an outstanding of K82,451.42 and the defendants must now pay. The defendants' counsel also suggested that a payment of K70,872.34 was paid by the defendants to the plaintiff and had not been pleaded by the plaintiff in the statement of claim. Hence, the plaintiff is not entitled to claim the full outstanding amount of K101,474.49. In cross examination, the plaintiff admitted that he had received payment of K70,872.34, however, in my view, it was part payment of the total debt of K253,425.16. The plaintiff was clear and unequivocal on this in his answers to questions by defendants' counsel in cross examination. Hence, I cannot see how the payment of K70,872.34 would have fully settled the defendants' debt of K82,451.42.

13. In the end, there shall be a judgment for K82,451.42 in favour of the plaintiff including interest at 8% running from the date of issue of the writ of summons of 18th March 2004 to the date of judgment of 9th March 2010 at 2,177 days at a daily rate of K18.07 in the sum of K39,338.39. There shall also be an order for costs in favour of the plaintiff to be taxed if it is not agreed and time shall be abridged.

Jerry Kiwai lawyers: Lawyers for the Plaintiff
Paul Mawa Lawyers: Lawyers for the Defendants

National Court of Papua New Guinea

Kulunga v Wandil [2010] PGNC 168; N3910 (9 March 2010)