Nambawan Super Ltd v Petra Management Ltd [2017] PGNC 108; N6748 (29 May 2017)

N6748

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 976 OF 2009

NAMBAWAN SUPER LIMITED
Plaintiff

V

PETRA MANAGEMENT LIMITED,
FORMERLY HEKARI HOLDINGS LIMITED
First Defendant

ELIAP TOKANA AND MEKI TOKANA, OF DUBARA IDI CLAN
Second Defendants

Waigani: Cannings J
2015: 11 November,
2017: 29 May

DAMAGES – trespass to land – unlawful entry of plaintiff’s land by defendants and undertaking of earthworks by defendants – assessment of damages and costs of land restoration, after entry of summary judgment

The plaintiff secured summary judgment against the defendants for the tort of trespass to land, expressed in the following terms: “judgment is entered for the plaintiff for trespass and for the cost of restoring the land which has been dug up by the first defendant”. At the trial on assessment of damages and cost of land restoration, the plaintiff claimed K20,000.00 damages and K153,120.00 for cost of land restoration. The defendants submitted that nothing should be awarded as the value of the land had actually increased since they entered it and there was insufficient evidence that the land had been dug up; thus the plaintiff had failed to prove any losses.

Held:

(1) As the purpose of an award of damages is to put the innocent party in the same position, as far as possible, as it would have been in if the wrongdoer had not committed the wrongful act, the claim for K20,000.00 general damages, representing corporate time and energy allocated to resolving the problems caused by the defendants’ unlawful incursion and activities on the plaintiff’s land was modest and reasonable. The defendants’ assertion that the value of the land had increased due to the defendants’ actions was unsupported by the evidence, and in any event was an irrelevant consideration. The plaintiff was awarded K20,000.00 general damages.

(2) The claim for cost of land restoration was well supported by the evidence. The defendants’ assertion that no land was dug up was rejected as it related to the question of liability, which was foreclosed by entry of summary judgment. The plaintiff was awarded K153,120.00.

(3) The total award was K173,120.00. The question of whether interest was payable on that sum was a matter of discretion to be exercised under the Judicial Proceedings (Interest on Debts and Damages) Act 2015. Interest can be awarded despite a plaintiff not expressly claiming it. Interest was awarded at the rate of 8% per annum on the total award of damages and costs of land restoration in respect of the period from the date of judgment on liability to the date of judgment on assessment = K99,578.62.

(4) The total judgment sum was K173,120.00 + K99,578.62 = K272,698.62.

Cases cited

The following cases are cited in the judgment:

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Livingston v Raywards Coal Co [1880] 5 App Cases 25
Losia Mesa v Gari Baki (2009) N3681
NCDC v Robert Dademo (2013) SC1260
Samuel Roth v Samuel Waironak (2011) N4452
William Mel v Coleman Pakalia (2005) SC790

TRIAL

This was a trial on assessment of damages and cost of land restoration for trespass to land.

Counsel

F Parua, for the Plaintiff
D Kakaraya, for the Defendants

29^th May, 2017

1. CANNINGS J: The plaintiff, Nambawan Super Ltd, secured summary judgment against the defendants, Petra Management Ltd and Eliap and Meki Tokana, for the tort of trespass to land, expressed in the following terms: “judgment is entered for the plaintiff for trespass and for the cost of restoring the land which has been dug up by the first defendant”.

2. A trial has been conducted on assessment of damages and cost of land restoration, in accordance with that judgment. The plaintiff claims K20,000.00 damages and K153,120.00 cost of land restoration. The defendants submit that nothing should be awarded as the value of the land has actually increased since they entered it and there is insufficient evidence that the land had been dug up; thus the plaintiff has failed to prove any losses.

3. The land consists of 153 residential allotments forming stages five, six and seven of the plaintiff’s Malolo Estate, a housing estate, at Eight Mile, National Capital District. The plaintiff is the registered proprietor of all those allotments.

4. In 2009 the first defendant entered the land, being of the mistaken view that it was customary land and that it had permission of the customary landowners, the Dubara Idi Clan (represented in the proceedings by the second defendants) and carried out earthworks and other preparatory work for construction of a sporting complex. The first defendant failed to accede to the plaintiff’s request to cease work.

5. The plaintiff commenced these proceedings on 11 August 2009 and summary judgment was entered in its favour on 19 March 2010. In addition to making the defendants liable for damages and cost of land restoration the Court declared that the land is State land and that the plaintiff has “clear titles” over it and granted a permanent injunction restraining the defendants from “trespassing over” the land.

6. The effect of the summary judgment is, as is the case with a default judgment, that the facts and causes of action pleaded in the statement of claim are presumed to have been proven, and are only revisited if they do not make sense or would make assessment of damages a futile exercise (William Mel v Coleman Pakalia (2005) SC790). Here, the facts pleaded are clear, as was the cause of action relied on, so the issue of liability will not be reconsidered.

1. GENERAL DAMAGES FOR TRESPASS
   

7. The purpose of an award of damages is to put the innocent party in the same position, as far as possible, as it would have been in if the wrongdoer had not committed the wrongful act (Livingston v Raywards Coal Co [1880] 5 App Cases 25, Samuel Roth v Samuel Waironak (2011) N4452). The claim for K20,000.00 general damages, representing corporate time and energy allocated to resolving the problems caused by the defendants’ unlawful incursion and activities on the plaintiff’s land – which would have otherwise been able to be deployed to more productive pursuits – is modest and reasonable. There is ample evidence in the affidavits of the plaintiff’s then Managing Director, Leon Buskens (exhibit P1), and its former General Manager, Commercial, Wayne Smith (exhibit P2), to support this claim.

8. The defendants’ assertion that the value of the land increased due to their actions is unsupported by the evidence. In any event, even if it were the case that the value has increased, this would not compensate the plaintiff for the inconvenience, frustration and delay it endured as a result of the tort committed by the first defendant. The plaintiff is awarded K20,000.00 general damages.

2. COST OF LAND RESTORATION
   

9. The claim for cost of land restoration is well supported by the evidence set out in the affidavit of the plaintiff’s consulting engineer, Bamake Rumbam (exhibit P3). The earthworks undertaken by the first defendant were for the purpose of preparing the land for laying out a sports stadium and football fields. The earthworks that in fact needed to be undertaken were for the different purpose of subdivision of the land into residential allotments.

10. The defendants’ assertion that no land was dug up is rejected. This relates to the question of liability, which is foreclosed by entry of summary judgment. The plaintiff is awarded K153,120.00.

SUMMARY

11. The total award is K20,000.00 (damages) + K153,120.00 (cost of land restoration) = K173,120.00.

INTEREST

12. The question of whether interest is payable is a matter of discretion to be exercised under Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015. This section confers a four-fold discretion: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run (Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24).

13. Interest can be awarded despite a plaintiff not expressly claiming it in the statement of claim (NCDC v Robert Dademo (2013) SC1260, Losia Mesa v Gari Baki (2009) N3681).

14. I see no reason not to award interest on the total award at the standard and generally accepted rate. Interest is awarded at the rate of 8 per cent per annum on the total award from the date of date of entry of judgment, 19 March 2010, to the date of this judgment, a period of 7.19 years, by applying the formula D x I x N = A, where D is the amount of damages including cost of land restoration; I is the rate of interest per annum; N is the appropriate period in number of years; and A is the amount of interest: K173,120.00 x 0.08 x 7.19 = K99,578.62.

COSTS

15. 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-party basis. I see no reason not to apply the general rule.

ORDER

16. The Court orders that:

(1) The defendants are liable to the plaintiff for damages and cost of land restoration in the total sum of K173,120.00, plus interest of K99,578.62, being a total judgment sum of K272,698.62.

(2) Subject to any specific costs order made in the course of the proceedings, the defendants shall pay the plaintiff’s costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.

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

Judgment accordingly.
____________________________________________________________
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Plaintiff
Kakaraya Lawyers: Lawyers for the Defendants