NAE Ltd v Cameron Construction Ltd [2012] PGNC 305; N5346 (31 January 2012)

N5346

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1185 OF 2010

BETWEEN:

NAE LIMITED
Plaintiff

AND:

CAMERON CONSTRUCTION LIMITED
Defendant

Waigani: Hartshorn, J.
2011: 6th October,
2012: 31st January

Assessment of Damages

Cases:
Langan v. Independent State of Papua New Guinea (1999) N1369
Jonathan Mangape Paraia v. The State (1995) N1343

Counsel:
Mr. M. T. Ipape, for the Plaintiff

31st January, 2012

1. HARTSHORN, J: The plaintiff Nae Ltd, had summary judgment entered in its favour in the sum of K645,116. 28 and for damages to be assessed. This is the hearing of the assessment of damages.

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. Nae Ltd in its statement of claim, apart from the liquidated amount, seeks primary relief for, "Damages for economic loss to be assessed." In his written submissions, counsel for Nae Ltd has conceded on two occasions that Nae Ltd has not provided credible evidence to substantiate its direct economic loss and on two further occasions, that Nae Ltd has not provided corroborated credible evidence of its economic loss.

4. It was submitted that notwithstanding these concessions, pursuant to Jonathan Mangape Paraia v. The State (1995) N1343, the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available, the court expects to have it, where it is not, the court must do the best it can.

5. Here, the only evidence as to loss is deposed to by Mr. Augustine Erepia, the Managing Director of Nae Ltd. Mr. Erepia deposes that amongst others, that Nae Ltd's daily operations from June 2008 to 28 August 2011 continue to be affected because Cameron Construction has failed to settle outstanding invoices. This has affected cash flow, the ability to service debts and pay for utilities and wages, and has suppressed Nae Ltd's capacity to expand and venture into other businesses as it lacked financial input or equity. There is no evidence supporting this deposition and it is not corroborated. One would have thought that they would at least be some form of financial reporting that supports Mr. Erepia's evidence. To my mind, such evidence would be available. There is no evidence that such evidence cannot be obtained or does not exist.

6. In Paraia's case (supra), the Court said amongst others, that a court must do the best it can. However, here, there is nothing for the court to do the best it can with. No financial data, even of the most rudimentary nature, has been provided concerning alleged economic loss. The sums of K50,000 to K100,000, submitted by counsel, are not supported at all.

7. I also note from the supporting documentation in support of a loan application, that it is apparent that Nae Ltd was not only involved in hiring plant and equipment to Cameron Construction but also to, "various organisations, including the National Government, Department of Works, Provincial Governments (and) other construction companies." This is not evidence of economic loss being suffered as contended as it would appear that at the relevant time, Nae Ltd had numerous other clients and customers upon which it relies.

8. Mr. Erepia further deposes that he was unable to obtain a loan from either Bank of South Pacific or ANZ Bank Ltd for the development of a 40 room hotel. Mr. Erepia was able to obtain a loan, from Finance Corporation Ltd but at an increased interest rate. In respect of this claim, there is no evidence of the rates of interest of Bank of South Pacific and ANZ Bank Ltd, and the rate of interest that is now being paid to Finance Corporation Ltd.

9. Further, from the documentation supporting the loan application, it is apparent that the loan obtained is not in the name of Nae Ltd, but is in the name of Mr. Erepia or City Links Hotel. So even if there was sufficient evidence to calculate the difference in interest, and even if this could be classed as economic loss, it is not economic loss suffered by Nae Ltd.

10. Given that evidence of economic loss could be available but is not, that there is no corroboration, that there is no financial information provided as to economic loss for the court to attempt to do the best it can, and that any loss suffered because of a higher interest rate, was not suffered by Nae Ltd, in all the circumstances I am satisfied that Nae Ltd is not entitled to any relief other than that already granted when summary judgment was entered. I refuse to make any award for damages in favour of the plaintiff.
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Kuman Lawyers: Lawyers for the Plaintiff