KVDC Gold Ltd v Periasomy [2012] PGNC 304; N5347 (4 January 2012)

N5347

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 134 OF 2005

BETWEEN:

KVDC GOLD LIMITED
Plaintiff

AND:

RAJANDRAN PERIASOMY
First Defendant

AND:

MRS LEONARA JUDGE
Second Defendant

AND:

OCEANIC INTERNATIONAL TRADING & MERCHANDISING LIMITED
Third Defendant

Waigani: Hartshorn J.
2011: August 23rd,
2012: January 4th

Assessment of damages

Cases cited:

Yange Langan v. Independent State of Papua New Guinea (1999) N1369

Counsel:

Mr. P.B. Lomai, for the Plaintiff

4th January 2012

1. HARTSHORN J. The plaintiff, KVDC Gold Ltd (KVDC) had judgment entered in its favour against the third defendant, Oceanic International Trading & Merchandising Ltd (Oceanic International) after a defended hearing. Oceanic International was found to be in breach of a Gold Agreement that it entered into with KVDC.

Assessment of damages – law

2. The onus is upon a plaintiff to prove its loss. The following passage from McGregor on Damages is cited by Injia J. (as he then was) in Yange Langan v. Independent State of Papua New Guinea, (1999) N1369:

"The plaintiff has the burden of proving both the facts and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a factor is upon him, who alleges it and not upon him who denies it so that where a given allegation forms an essential part of a person's case, the proof of such allegation falls on him. Even if the defendant failed to deny the allegations of damage or suffers default, the plaintiff must still prove his loss".

3. KVDC claims K 2,708,918.20 in damages. The particulars of these damages are given as:

a) recovery of dishonoured cheque K 87,000.00

b) payment in breach of contract to provide 2 million

c) economic loss (loss of profit) 500,000.00

d) loss of social status 100,000.00

e) cost for 1095.91 grams at K20 per kg 21,918.20

4. As to K 87,000.00, recovery of dishonoured cheque; KVDC has conceded that the payment of K 44,359.00 was part payment of the K 87,000.00 dishonoured cheque. That the cheque was dishonoured is not disputed. KVDC is entitled to the balance in the sum of K 42,641.00.

5. As to payment in breach of contract to provide K 2 million, pursuant to the Gold Agreement, I assume that this relates to the, "SBLC established by (Oceanic International) with the ANZ PNG Ltd of about K 2 million or more.....". Apart from there being evidence that the K 2 million was not paid, there is no evidence to prove that KVDC has suffered a loss of K 2 million. When regard is had to the Gold Agreement, it appears that the K 2 million facility was to be expanded to allow gold to be purchased. If the money was not provided, no gold was purchased. The only loss that KVDC may have suffered is any profit it might have made in the buying and selling of gold, but that is not the specific claim that is made under this heading. KVDC was not going to be in the position of having K 2 million and not using it. This is confirmed in paragraph 7 of Mr. Saulep's affidavit sworn 24th May 2006. As it has not been proved that KVDC has suffered the loss of K 2 million, this claim is refused.

6. As to economic loss (loss profit) K 500,000.00, there is no evidence to prove any loss of profit and so the claim under this heading is refused.

7. As to loss of social status, this is not properly pleaded and is not satisfactorily proved by evidence. The claim under this heading is refused.

8. As to the cost of 1095.91 grams at K 20 per kg being K 21,918.20, I am satisfied that this loss has been satisfactorily proved on the evidence.

Orders

9. I order judgment for the plaintiff against the third defendant in the sum of K 64,559.20 together with interest at 8% per annum from 19th October 2004 until payment of the judgment sum and interest thereon.

10. The third defendant is to pay the plaintiff's costs of and incidental to the proceeding.

Lomai & Lomai Lawyers: Lawyers for the Plaintiff
Dotaona Lawyers: Lawyers for the Second and Third Defendants