Atua v Kemmah [2012] PGNC 38; N4687 (18 May 2012)

N4687

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 426 OF 2008

SONNY ATUA
Plaintiff

V

GRACE KEMMAH
First Defendant

DAVID GABRIEL
Second Defendant

Madang: Cannings J
2011: 9, 16 December,
2012: 18 May

ASSESSMENT OF COMPENSATION – unjust enrichment – plaintiff entered into verbal agreement with defendants for purchase of residential property – part-payment made, then agreement terminated.

The plaintiff succeeded at an earlier trial in establishing a cause of action in unjust enrichment. A further trial was held for purposes of assessment of compensation.

Held:

(1) The primary remedy for the equitable action of unjust enrichment is restitution, and accordingly the plaintiff should be awarded an amount of monetary compensation that reflects the extent to which the defendants were enriched at the plaintiff's expense plus an amount to compensate the plaintiff for anxiety and inconvenience caused to him by the defendants' conduct.

(2) The plaintiff was awarded K21,880.00 for enrichment of the defendants at his expense, plus K1,000.00 in respect of anxiety and inconvenience, being a total amount of compensation of K22,880.00, plus interest of K16,473.60, being a total judgment sum of K39,353.60.

Cases cited

The following case is cited in the judgment:

Sonny Atua v Grace Kemmah & David Gabriel (2011) N4296

TRIAL

This was a trial on assessment of compensation for unjust enrichment.

Counsel

W Akuani, for the plaintiff
B Tabai, for the defendants

18th May, 2012

1. CANNINGS J: This was a trial on assessment of compensation for the equitable action of unjust enrichment. The plaintiff, Sonny Atua, succeeded at an earlier trial in establishing liability against the defendants, Grace Kemmah and David Gabriel, who were found to have unjustly enriched themselves at the expense of the plaintiff by obtaining K21,180.00 from him regarding the proposed sale of a residential property in Madang.

2. The defendants had a verbal agreement with the plaintiff to sell him the property. He gave them K21,180.00 to facilitate the sale but the defendants did not adhere to the agreement and the sale did not eventuate. The plaintiff asked the defendants to repay what he had given them but they told him to wait as it was an informal agreement made between families. The plaintiff waited too long and then commenced proceedings against the defendants and succeeded in establishing a cause of action (Sonny Atua v Grace Kemmah & David Gabriel (2011) N4296). The plaintiff now seeks K21,880.00, being the amount he is out-of-pocket, plus K10,000.00 on account of 'pain, anguish, stress and anxiety', his total claim being K31,880.00, plus interest.

DETERMINATION OF CLAIM

3. The primary remedy for the equitable action of unjust enrichment is restitution, and accordingly the plaintiff will be awarded an amount of monetary compensation that reflects the extent to which the defendants were enriched at the plaintiff's expense plus an amount to compensate him for anxiety and inconvenience caused by the defendants' conduct.

4. I have no difficulty with the first part of the claim. The plaintiff proved at the earlier trial that he had given cash and benefits (including air tickets) to the defendants to the value of K21,880.00. So he should be repaid that sum.

5. As to the stress and anxiety claim, this is rather vague. There is little evidence to support it and the defendants have countered the evidence that has been provided by suggesting that the plaintiff has brought the stress upon himself. They continue to argue that the agreement was an informal and oral one which the plaintiff misinterpreted. They maintain that they did not agree to sell the property to the plaintiff and that they borrowed the money from the plaintiff who agreed to help them out and because he is, through his wife, related to them (the second defendant, from Manus, says that he is a nephew of the plaintiff's wife, who is also from Manus). This evidence does not in any way disturb the finding on liability but it does provide another side to the story and persuades me that it would not be appropriate to award the full amount claimed by the plaintiff. I will, however, award the plaintiff a notional sum of K1,000.00 on account of stress and inconvenience. This reflects my assessment of this unfortunate saga being one that should have been resolved out-of-court and the fact that it has resulted in court proceedings is really the fault of the defendants.

6. The total award of compensation is therefore K21,880.00 + K1,000.00 = K22,880.00.

INTEREST

7. Interest will be awarded at the rate of 8 per cent per annum on the total amount of compensation under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52; the term "damages" in that provision being broad enough to encompass an award of compensation. Interest is calculated from the date on which the cause of action accrued, which was in early May 2003, to the date of this judgment, a period of nine years, by applying the following formula:

• C x I x N = A
  

Where:

• C is the amount of compensation assessed;
• I is the rate of interest per annum;
• N is the appropriate period in numbers of years;
• A is the amount of interest.
  

Thus K22,880.00 x 0.08 x 9 = K16,473.60.

COSTS

8. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. There is no reason to depart from that rule here.

ORDER

9. The court orders that:

(1) the defendants pay to the plaintiff compensation of K22,880.00 plus interest of K16,473.60, being a total judgment sum of K39,353.60; and

(2) the defendants shall pay the plaintiff's costs of the trial on a party-party basis which shall, if not agreed, be taxed.

Judgment accordingly.
_____________________________

William Akuani Lawyers: Lawyers for the plaintiff
Bilding Tabai Lawyers: Lawyers for the defendants