N6152
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 378 OF 2013

ROY MALAI
Plaintiff

V

HUANG WEN JUNG, MANAGING DIRECTOR, JANT LTD
First Defendant

JANT LIMITED
Second Defendant

Madang: Cannings J
2015: 25 September, 7, 11 December

DEBT AND DAMAGES – assessment of debt and damages following entry of judgment on liability – claim by landowner for non-payment following harvesting of secondary growth trees on customary land – additional claim for general damages.

The plaintiff, a landowner, established liability in breach of contract against the defendant, a timber company, due to the defendant's failure to pay for the harvesting of his secondary growth trees according to an agreement reached. At this separate trial on assessment of debt and damages, the plaintiff claimed K10, 490.60 debt plus K5, 000.00 general damages plus special damages for legal fees.

Held:

(1)	For outstanding royalties, K10, 490.60 was awarded as a debt. For general damages, a proper claim for compensation for stress and inconvenience caused to the plaintiff, K5, 000.00 was awarded. For legal fees, nothing was awarded.

(2)	Interest was awarded on the total amount of debt and damages (K15, 490.60) at the rate of 8% per annum calculated from the deemed date on which the cause of action accrued to the date of judgment, a period of 7.67 years = K9, 505.03.

(3)	The total judgment sum was K10, 490.60 (debt) + damages (K5, 000.00) + interest (K9, 505.03) = K24, 995.63. 

Cases cited

The following cases are cited in the judgment:

Albert Areng v Gregory Babia & National Housing Corporation (2008) N3469
Christopher Kondai v Lon Sike & PIMS (2014) N5721
Lucas Diritala v Joe Jeffrey (2009) N3927
Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605
Paschal Feria v Ben Lange & The State (2009) N3574
Rodao Holdings Ltd v Sogeram Development Corporation (2007) N5485
Stephen Asivo v Bank of South Pacific Ltd (2009) N3754
Timothy Con v Jant Ltd (2014) N5721

ASSESSMENT OF DEBT AND DAMAGES

This was a trial on assessment of debt and damages for breach of contract following judgment on liability.

Counsel

T M Ilaisa, for the plaintiff
B W Meten, for the defendants

11th December, 2015

1. CANNINGS J: This is an assessment of debt and damages, after a trial on assessment. The plaintiff Roy Malai on 20 March 2015 secured judgment against the second defendant, for breach of contract. The court relevantly ordered:

(1)	The plaintiff has established a cause of action in breach of contract against the second defendant. 

(2)	The second defendant is liable for unpaid royalty payments and damages, as pleaded in the statement of claim, which will if necessary be assessed at a separate trial.

2. The court upheld the plaintiff's claim that in March 2008 he entered into an oral contract with Jant Ltd for the harvesting of secondary growth trees from his customary land. The contract was negotiated between himself and a yard foreman of Jant, and it was agreed that Jant would harvest the logs and pay him the going rate of K10.00 per cubic metre and that the contract would only operate during the month of March 2008. The contract was performed, in that Jant logged during that month and harvested 2,013.82 cubic metres, however Jant breached the contract by paying him only at the rate of K5.00 per cubic metre. They paid him K9, 647.50 when they should have paid K20, 138.20.

CLAIM

3. The plaintiff claims three categories of debt and damages:

(a) loss of outstanding royalties, K10,490.60;

(b) general damages, K5,000.00;

(c) special damages for legal fees, K2,000.00.

ASSESSMENT

4. For (a) loss of outstanding royalties, I award the amount claimed as this was a finding made in the course of the judgment on liability; and this is conceded by Mr Meten: K10,490.60.

5. For (b) general damages, this is a proper claim for compensation for stress and inconvenience caused to the plaintiff. I refer in the table below to five cases in which I have included in an assessment of damages for breach of contract an award for distress and frustration.

No	Case	Details	Award	
1	Rodao Holdings Ltd v Sogeram Development Corporation (2007) N5485	Defendant breached a management contract with the plaintiff – damages awarded to compensate the plaintiff for the distress, inconvenience and frustration caused to it by the defendant's breach of contract.	K50,000.00	
2	Albert Areng v Gregory Babia & National Housing Corporation (2008) N3469	Defendants' breach of contract was result of inefficiency and administrative incompetence over a period of 16 years – bureaucratic bungling over such a long period led to distress and frustration for the plaintiff and his father.	K30,000.00
	
3	Lucas Diritala v Joe Jeffrey 
(2009) N3927	Breach of contract re sale of motor vehicle – unpaid balance of purchase price of K5,600.00 – plaintiff tried to get the matter settled out of court but defendant uncooperative.	K2,800.00
	
4	Paschal Feria v Ben Lange & The State 
(2009) N3574	The 65-year-old plaintiff suffered hardship and suffering – denied the recognition and appreciation that should have been afforded to someone who served the Government for almost 40 years – given shabby treatment.	K30,000.00
	
5	Stephen Asivo v Bank of South Pacific Ltd 
(2009) N3754	Bank breached mortgage agreement – plaintiff compensated for the inconvenience, hardship, distress and anxiety wrought upon him and his wife by the insensitive treatment meted out by the bank.	K10,000.00

6. I have also considered other cases in which the plaintiffs, former employees, were awarded a similar category of damages: Christopher Kondai v Lon Sike & PIMS (2014) N5721 = K3, 000.00; Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605 = K4, 000.00; Timothy Con v Jant Ltd (2014) N5721 = K5, 000.00. After comparing the facts of the present case with those in the above cases I conclude that an appropriate award is K5, 000.00.
 
7. As for (c) I uphold Mr Meten's submission that this is a misconceived claim: nothing is awarded.

SUMMARY OF DAMAGES AWARDED

8. The plaintiff is awarded (a) K10, 490.60 + (b) K5, 000.00 + (c) 0 = K15, 490.00.

INTEREST

9. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest will be calculated in respect of the period from the deemed date on which the cause of action accrued (11 April 2008) to the date of this judgment, 11 December 2015, a period of 7.67 years, by applying the formula D x I x N = A, where D is the amount of debt and damages assessed, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest. 

10. Thus K15, 490.60 x 0.08 x 7.67 = K9, 505.03.

COSTS

11. 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

(1)	The second defendant shall pay to the plaintiff debt and damages of K15, 490.60 plus interest of K9, 505.03, being a total judgment sum of K24, 995.63, which shall be paid within one month after the date of entry of judgment.

(2)	The second defendant shall pay the plaintiff's costs of the entire proceedings on a party-party basis, which shall if not agreed be taxed.

Judgment accordingly,

____________________________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the Plaintiff 
Meten Lawyers: Lawyers for the Defendants