Gambu v Kurame [2017] PGNC 203; N6868 (13 September 2017)

N6868

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1243 OF 2012

ANTON GAMBU
Plaintiff

V

EDWARD KURAME
First Defendant

KURUMBUKARI LIMITED
Second Defendant

Madang: Cannings J
2016: 22 April & 11 July

2017: 13 September

CONTRACT – oral agreements – alleged oral agreement between plaintiff and defendants for defendants to support plaintiff’s funding proposal – need to prove existence of agreement.

The plaintiff claimed that he entered into a contract with a company, the second defendant, under which it was obliged to provide him with K100,000.00 funding of a piggery project he proposed to develop on land on which he conducted an existing business. He claimed that he entered into the contract through an oral agreement with the first defendant who was at the time the general manager of the second defendant. He claimed that after entering into the contract, he paid K5,500.00 to a consultant to prepare his project proposal and spent K19,069.00 for a function at his place of business to entertain the first defendant and directors of the second defendant, to launch his project proposal. He claimed that the defendants breached the contract by failing to provide the funding promised. He commenced proceedings against the defendants, seeking damages of K619,069.00 for breach of contract. The first defendant did not defend the proceedings. The second defendant filed a notice of intention to defend but did not file a defence. The plaintiff did not seek default judgment but took the matter to trial. The second defendant was granted leave to appear at the trial on liability and oppose the claim.

Held:

(1) As the cause of action pleaded in the statement of claim was breach of contract the plaintiff bore the onus of proving on the balance of probabilities the existence of a contract, the elements of which are: an agreement between the parties, an intention to create legal relations and support of the agreement with consideration (Steven Naki v AGC (Pacific) Ltd (2005) N2782).

(2) There was no credible evidence of any agreement between the plaintiff and either of the defendants or any intention to create legal relations or any support of any agreement with consideration.

(3) The plaintiff failed to prove his case and the proceedings were dismissed, with costs.

Cases cited:

The following cases are cited in the judgment:

Bob Bobbies v Andrew Benziman (2015) N6057
Jacob Wama v Simeon Manihia (PNG) Ltd (2014) N5499
Steven Naki v AGC (Pacific) Ltd (2005) N2782
The State v Keboki Business Group Incorporated and Morobe Provinsel Gavman [1985] PNGLR 369
Veltro Ltd v Steven Liu Huang (2006) N4608

STATEMENT OF CLAIM

This was a trial on liability for breach of contract.

Counsel:

B W Meten, for the Plaintiff
G Pipike, for the Defendant

13^th September, 2017

1. CANNINGS J: The plaintiff, Anton Gambu, claims that he entered into a contract with a company, Kurumbukari Ltd, the second defendant, under which it was obliged to provide him with K100,000.00 to fund a piggery project he proposed to develop on land on which he conducted an existing business. He claimed that he entered into the contract through an oral agreement with the first defendant who was at the time the general manager of the second defendant.

2. He claimed that after entering into the contract, he paid K5,500.00 to a consultant to prepare his project proposal and spent K19,069.00 for a function at his place of business to entertain the first defendant and directors of the second defendant, to launch his project proposal. He claimed that the defendants breached the contract by failing to provide the funding promised. He commenced proceedings against the defendants, seeking damages of K619, 069.00 for breach of contract.

3. The first defendant did not defend the proceedings. The second defendant filed a notice of intention to defend but did not file a defence. The plaintiff did not seek default judgment but took the matter to trial. The second defendant was granted leave to appear at the trial on liability and oppose the claim.

DETERMINATION

4. This is a clear-cut case. I refuse all relief sought by the plaintiff for the following reasons:

(a) As the cause of action pleaded in the statement of claim was breach of contract the plaintiff bore the onus of proving on the balance of probabilities the existence of a contract, the elements of which are: an agreement between the parties, an intention to create legal relations and support of the agreement with consideration (Steven Naki v AGC (Pacific) Ltd (2005) N2782). There was no credible evidence of any agreement between the plaintiff and either of the defendants or any intention to create legal relations or any support of any agreement with consideration.

(b) It was not essential for the plaintiff to prove that a written agreement was made. He could have with credible evidence proven the existence of an oral agreement. However, if an oral agreement is claimed to have been entered into, a plaintiff must plead and prove the agreement: he must precisely plead the details of the contract in the originating process. Who are the parties to the contract? When did it come into existence? What form is it in? Where was it entered into? Why was it entered into? These requirements were not met. (The State v Keboki Business Group Incorporated and Morobe Provinsel Gavman [1985] PNGLR 369, Veltro Ltd v Steven Liu Huang (2006) N4608, Jacob Wama v Simeon Manihia (PNG) Ltd (2014) N5499, Bob Bobbies v Andrew Benziman (2015) N6057).

CONCLUSION

5. The plaintiff has failed to prove his case and the proceedings will be dismissed. There is no reason costs should not follow the event.

ORDER

(1) All relief sought in the statement of claim is refused and the proceedings are dismissed.

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

Ordered accordingly,
_________________________________________________________________
Meten Lawyers: Lawyers for the Plaintiff
GP Lawyers: Lawyers for the Second Defendant