Jant Ltd v Bismark Real Estate [2015] PGNC 32; N5907 (18 March 2015)

N5907

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 683 OF 2012

BETWEEN;

JANT LIMITED
Cross-claimant

AND;

ROBERT KUBAK TRADING AS BISMARK REAL ESTATE
Cross-defendant

Madang: Cannings J
2014: 8, 13 December,
2015: 18 March

REMEDIES – breach of contract – assessment of debt and/or damages following judgment on liability – tenancy agreement – tenant's failure to pay rent – whether evidence of damage.

The cross-claimant succeeded at an earlier trial in establishing a cause of action in breach of contract against the cross-defendant. The contract was a tenancy agreement. The cross-defendant (the tenant) breached the contract by not paying any rent to the cross-claimant (the landlord). The question of appropriate orders and declarations that would determine the proceedings was referred to a mediator but the mediation failed and the proceedings returned to Court for further trial. The cross-claimant sought total damages of K88,000.00, comprising K60,500.00 'as determined by the Court in the judgment on liability', K3,500.00 for rental from April 2014 to October 2014 and K24,000.00 legal costs. The cross-defendant argued that the cross-claimant should be awarded nothing as it breached the contract by not providing the number of properties it had agreed to provide the cross-defendant under the tenancy agreement.

Held:

(1) The cross-claimant's submission was misconceived as the court made no determination of any entitlement to K60,500.00 at the previous trial, the claim for K3,500.00 rental was incomprehensible, the Court made no decision as to costs and no worthwhile evidence was adduced in support of the claim for damages.

(2) The cross-defendant's submission was also misconceived as it was attempting to resuscitate issues already determined previously.

(3) Faced with misconceptions on both sides, the Court based its decision on the facts found at the previous trial, in particular that the cross-defendant was in possession of three of the cross-claimant's houses for a period of 19 months but failed to pay any rent.

(4) The amount of rent due in that period was K1,000.00 per month: K1,000.00 x 19 months = K19,000.00. From that amount was deducted a bond of K10,500.00 lodged by the cross-defendant: K19,000.00 – K10,500.00 = K8,500.00.

(5) There was no evidence to support an award of damages. As no interest was claimed, none was awarded.

Cases cited

The following cases are cited in the judgment:

Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605
Robert Kubak v Jant Ltd (2013) N5432

Assessment of Debt and Damages

This was an assessment of debt and damages for breach of contract, liability having been determined in favour of the cross-claimant at a previous trial.

Counsel

D F Wa'au, for the cross-claimant
B Tabai, for the cross-defendant

18 March, 2015

1. CANNINGS J: The cross-claimant, Jant Ltd, succeeded at an earlier trial in establishing a cause of action in breach of contract against the cross-defendant, Robert Kubak trading as Bismark Real Estate. At the same trial the cross-defendant's action (as plaintiff) against the cross-claimant (as defendant) was dismissed (Robert Kubak v Jant Ltd (2013) N5432).

2. The contract was a tenancy agreement. The cross-defendant (the tenant) was found to have breached the contract by not paying any rent to the cross-claimant (the landlord). The question of appropriate orders and declarations that would determine the proceedings was referred to a mediator but the mediation failed and the proceedings have returned to Court for further trial. The cross-claimant is seeking what it describes as total damages of K88, 000.00, comprising:

• K60,500.00 'as determined by the Court in the judgment on liability',
• K3,500.00 for rental from April 2014 to October 2014, and
• K24, 000.00 legal costs.
  

3. The cross-defendant argues that the cross-claimant should be awarded nothing as the cross-claimant breached the contract by not providing the number of properties it had agreed to provide the cross-defendant under the tenancy agreement.

Misconceptions

4. I have found the submissions for both the cross-claimant and the cross-defendant to be misconceived. The cross-claimant's submission is misconceived as:

(a) The Court made no determination of any entitlement to K60, 500.00 or any other amount at the previous trial. The Court noted that that was the amount being claimed but it made no determination, final or preliminary, that the cross-claimant was entitled to that amount.

(b) The claim for K3, 500.00 rentals, which is said to relate to the period from April 2014 to October 2014, is incomprehensible.

(c) No decision on costs was made at the earlier trial and it is not appropriate to determine an amount of costs in the course of assessing the amount of debt and damages for which a person is liable pursuant to a judgment on liability (Monica Angogi v Fred Yadiwilo & Chemica Ltd (2014) N5605).

(d) No worthwhile evidence was adduced in support of the claim for damages. The only evidence to support the claim for damages was an affidavit by Wu Jui-Che, the cross-claimant's administration manager, but it was vague and emotive and expressed more as a submission than a deposition of facts to support a claim for damages.

5. The cross-defendant's submission is misconceived as:

(a) It attempts to resuscitate arguments about the cross-claimant being the party that breached the contract, which issues were addressed at the previous trial and resulted in dismissal of the cross-defendant's action (as plaintiff) against the cross-claimant (as defendant).

(b) No credible evidence has been adduced to rebut the allegation that the cross-defendant has paid no rent to the cross-claimant.

Assessment

6. Faced with misconceptions on both sides I have decided to approach the assessment of debt and damages this way. First, nothing will be awarded for damages as there is no worthwhile evidence to support the claim. Secondly, I will only assess the debt due to the cross-claimant under the tenancy agreement and the assessment will be based on the findings of fact made in the previous trial, which included:

• the cross-defendant took possession of only three of the nine houses which were the subject of the tenancy agreement;
  
• the cross-defendant was in possession of the three houses for a period of 19 months, from November 2011 to June 2013 (no evidence is available as to the situation after June 2013) and free to occupy them himself or sub-rent them;
  
• the parties did not at any time agree on what the rent should be for the three properties over that 19-month period (though there was a limited-term supplementary agreement, showing the initial rental being K1,000.00 per month, which I interpret as being the total rent per month for the three houses);
  
• the cross-defendant paid a bond of K10,500.00 to the cross-claimant at the start of the tenancy agreement.
  

7. The amount of rent (the debt) I assess as being due in the relevant period is K1,000.00 per month x 19 months = K19,000.00. The amount of the bond will be deducted from that amount: K19,000.00 – K10,500.00 = K8,500.00.

8. As no interest was claimed in the cross-claim I decline to award interest on that amount, which will be payable within one month after entry of judgment. Neither side has entirely succeeded, so they will pay their own costs.

Order

(1) The cross-defendant is liable to pay the cross-claimant the sum of K8,500.00 in full and final settlement of the cross-claim within one month after the date of entry of judgment.

(2) The parties shall bear their own costs.

(3) Time for entry of judgment is abridged to the time of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly,

_____________________________

Meten Lawyers: Lawyers for the cross-claimant
Tabai Lawyers: Lawyers for the cross-defendant