N8700

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO.135 OF 2015 (CC4) 

BETWEEN: 
KANDA INTERNATIONAL LIMITED trading as
KANDA INTERNATIONAL INSURANCE BROKERS
Plaintiff

AND:
WYNN EMECK (Lawyer) trading as EMECK LAWYERS
Defendant

Waigani:  David, J
2020: 6th November & 29th December

DAMAGES – assessment of damages following entry of default judgment – claim against lawyer for professional negligence - duty of care – sale and purchase of real property – massive fraud involving multiple persons -lawyer acting for vendor and purchaser – measure of damages.  

Cases Cited:
Papua New Guinea Cases

Cheong Supermarket Pty Ltd v Pery Muro (1987) PNGLR 24
Martha Limitopa v The State (1988-89) PNGLR 364
Kiee Toap v The State (2004) N2766
William Mel v Coleman Pakalia (2005) SC790
Steven Naki v AGC (Pacific) Ltd (2006) N5015
Banduwara Waranumbo v Hyper Construction Limited (2012) N4882
Teddy Suan v Peter Dumba (2013) N5428

Overseas Cases Cited:

Livingstone v Rawyards Coal Co, (1880) App Cas 25
Vulic v Bilinsky (1983) 2 NSWLR 472

Counsel:

Levi Tilto, for the Plaintiff

JUDGMENT
29th December, 2020

1.	DAVID, J: INTRODUCTION:  This was a trial on quantum, liability having been established against the defendant by the entry of default judgment on 29 July 2015.   Upon the entry of default judgment, the Court also ordered, among others, that damages be assessed.  The trial was conducted ex parte, the Court having been satisfied that the plaintiff had taken reasonable steps including publishing a Court order in the Post Courier to notify the defendant about the trial.  

BRIEF BACKGROUND

2.	The plaintiff, a company duly incorporated under the Companies Act, commenced this action for professional negligence against the defendant, a lawyer within the meaning of the Lawyers Act and holder of an Unrestricted Practicing Certificate with a valid Professional Indemnity Insurance cover with Aon Risk Management for the period 1 January 2012 to 31 December 2012, by writ of summons endorsed with a statement of claim filed on 19 February 2015 which was subsequently amended by amended writ of summons endorsed with an amended statement of claim filed on 10 June 2015.  The plaintiff’s claim arises from the sale and purchase of a property described as Allotment 8 Section 72 Boroko contained in State Lease Volume 114 Folio 230 (the Property) for K800,000.00 in which the plaintiff was the purchaser and one Franzuer William Solien was the vendor.  The plaintiff alleges that the defendant was involved in a massive fraud or scam with others including the vendor and sales agents to facilitate the fraudulent transaction when he acted for both the plaintiff and Mr. Solien in the conveyance. It is alleged that bank cheques drawn by Westpac Bank -PNG- Limited to the value of K800,000.00 were made available for settlement on 5 November 2012 in accordance with a settlement statement prepared, but at settlement in exchange for a fraudulent owner’s copy of the title deed, only cheques to the value of K600,000.00 were collected and the cheque for K200,000.00 drawn in favour of Mr. Solien was not collected by Mr. Solien as he did not attend settlement and he did not demand for delivery of the cheque to him after settlement.

3.	The plaintiff was unable to take vacant possession of the Property after settlement because another person namely, John William Ford armed with an order fraudulently obtained from the National Court purportedly on 12 June 2012 in fake proceedings entitled OS 731 of 2012 between John William Ford v Franzure William Solien (the fake Court Order) either colluded or conspired with officers within the Office of the Registrar of Titles to manipulate their records and effectively make him the registered proprietor by deliberately back dating the dates of entry on the State Lease to 12 June 2012 and later to 10 August 2012.  It is alleged that the plaintiff was unaware of Mr. Ford’s interest in the Property and the massive fraud or scam until in early May 2013 when its servants or agents with the assistance of the police went to evict people living on the Property and further attempts to evict the occupants of the Property were frustrated by the production of the fake Court Order by the occupants.  The cheque drawn in favour of Mr. Solien for K200,000.00 was later cancelled.  
 
4.	The plaintiff asserts that it has suffered loss and damage as a result and claims from the defendant; K600,000.00 being the actual sum of money lost as a direct consequence of the defendant’s negligence; general and special damages, interest at 8% yearly and costs of the entire proceedings on a solicitor/client basis.  

5.	On 29 July 2015, default judgment was entered against the defendant with damages to be assessed for being in default of filing his notice of intention to defend and defence.  On 20 August 2015, the defendant filed a motion to set aside the default judgment, but on 12 November 2015, the motion was dismissed for want of prosecution. 

EVIDENCE

6.	The plaintiff relies on the affidavit of Benn Piani Tiki sworn on 4 October 2017 and filed on 11 October 2017 (Exhibit A) and the affidavit of Fred Tiki sworn on 27 December 2018 and filed on 28 December 2018 (Exhibit B).

LEGAL ISSUES

7.	The main legal issues are:

1.	Whether, despite the entry of default judgment, the issue of liability should be revisited?

2.	If not, what damages, if any, should the plaintiff be awarded? 
 
LIABILITY

8.	It is trite law that once a default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven:  William Mel v Coleman Pakalia (2005) SC790.   
9. 	A judge assessing damages following the entry of default judgment may revisit the question of liability, but the discretion must be exercised sparingly. A judge assessing damages should make only a cursory inquiry to be satisfied that the facts and the cause of action are pleaded with sufficient clarity and if so, liability should be regarded as proven. Only if the facts or cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability:  William Mel v Coleman Pakalia (2005) SC790; Banduwara Waranumbo v Hyper Construction Limited (2012) N4882; Teddy Suan v Peter Dumba (2013) N5428. 
10.	The duty of care to a client reposed in a lawyer is generally reflected in the Professional Conduct Rules. 

11.	Section 3 of the Professional Conduct Rules, among others, states:

“It is the duty of a lawyer –

(a)	not to engage in conduct (whether in pursuit of his profession or otherwise) which –

(i)	is illegal; or
(ii)	is dishonest; or
(iii)	is unprofessional; or
(iv)	is prejudicial to the administration of justice; or
(v)	may otherwise bring the legal profession into disrepute; and ...”  

12.	Section 8(1) of the Professional Conduct Rules states:

“A lawyer shall treat a client fairly and in good faith, giving due regard to –

(a)	the dependence by the client upon him and his special training and experience; and
(b)	the high degree of trust which the client is entitled to place in him.”  

13.	In Martha Limitopa v The State (1988-89) PNGLR 364 Brunton, AJ at 368-369 adopted and applied the principles in the judgment of Miles, J in Vulic v Bilinsky (1983) 2 NSWLR 472 at 478 where it was held, among others, that the action against a lawyer by a client for breach of the lawyer’s professional obligations is an action in tort where the duty arises from the relationship of lawyer and client.  

14.	As to the duty of care that a lawyer has to his client, it is to be measured by the standards which apply to the profession as a whole.  In Martha Limitopa v The State (1988-89) PNGLR 364 at 369, Brunton, AJ made this useful observation: 

“Whether or not the professional acts or omissions of a lawyer were reasonable must be judged on the standards that apply to the whole profession.  The duty of care that a lawyer has is not measured against standards that may be considered reasonable for labourers, or carpenters, or nurses, or community schoolteachers, or research biochemists”. 

15.	A lawyer must act in accordance with his or her client’s instructions, unless those instructions are unlawful.  A lawyer is always under a duty to fairly represent his or her client’s interest to the best of his or her abilities based on his or her client’s instructions and anything falling short of that would amount to professional negligence: Martha Limitopa v The State (1988-89) PNGLR 364.  

16.	Where a person brings a claim to the Court, the originating document must clearly set out the legal ingredients or the elements of the claim and the facts that support each element of the claim:  Kiee Toap v The State (2004) N2766.  The defendant acted for both the vendor, Mr Solien and the plaintiff.  I have made a cursory inquiry and am satisfied that the facts and cause of action alleged against the defendant is in tort for professional negligence as a lawyer acting for the plaintiff in the purchase of the Property and they are pleaded with sufficient clarity. The essential elements of the tort of negligence are; first, the defendant owed a duty of care to the plaintiff; second, the defendant breached that duty; third, the breach of duty caused injury to the plaintiff. In addition, it is abundantly clear that the facts and cause of action pleaded also demonstrate that the defendant was engaged in conduct which was illegal, dishonest; unprofessional; and which otherwise brought the legal profession into disrepute.  The facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded are regarded as proven.   

DAMAGES
Submissions

17.	Mr. Tilto for the plaintiff contends that the purported sale of the Property by Mr. Solien to the plaintiff was a scam and the defendant by his conduct was a party to the scam and therefore he is liable in damages for professional negligence.  In addition, it was submitted that the plaintiff has proven his loss on the balance of probabilities by adducing sufficient and credible evidence by the plaintiff’s Managing Director, Benn Piani Tiki which was corroborated by the real estate agent, Fred Tiki.  Their evidence showed that the plaintiff lost the sum of K600,000.00 which it paid to various recipients in accordance with a settlement statement prepared by the defendant through a number of bank cheques drawn and delivered at the settlement of the fraudulent conveyance in exchange for a fraudulent title deed.  It was argued that as a result of the defendant’s negligence, the plaintiff has been deprived of the right to possession of the Property after settlement which is now owned by another person and therefore must be recompensed by the defendant. 

18.	 Mr. Tilto also informed the Court that the plaintiff was now only claiming the sum of K600,000.00 it lost and would abandon its claim for general and special damages to be awarded. 

Consideration

19.	The objective of an award of damages is to give the claimant compensation for damage, loss or injury he has suffered.  In this regard, I note the speech of Lord Blackburn in Livingstone v Rawyards Coal Co, (1880) App Cas 25 at 29 where His Lordship defined the measure of damages as:

“that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.” 

20.	The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

•	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

•	Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.) 

•	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
 
•	The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

•	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.) 

•	Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

•	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)

•	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

•	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)

21.	I adopt and apply these principles here.

22.	It will be remiss of me not to set out the factual background of the plaintiff’s claim supported by the available evidence before me as it will have an impact on what amount of damages the Court should grant taking into consideration the above-mentioned principles which I now do. 

23.	On or about 22 October 2012, Messrs Fred Tiki (a Real Estate Agent who was then working with Every Home Real Estate Ltd), Alberta Nollen and the defendant made representations to Benn Piani Tiki, Managing Director of the plaintiff company that their mutual client, Mr. Solien was offering to sell the Property for K800,000.00 and the original of the Owner’s Copy of the State Lease was produced and shown to Benn Piani Tiki.   The plaintiff through Benn Piani Tiki was led to believe at the time that Mr. Solien was the registered proprietor of the Property.  Benn Piani Tiki then made an offer on behalf of the plaintiff to purchase the Property for K800,000.00 and the offer was accepted by Mr. Solien.  The plaintiff then engaged the services of the defendant to get his professional advice on the conveyance and also placed total reliance on the defendant and his knowledge and experience to act on its behalf to facilitate the purchase of the Property.  The defendant advised Benn Piani Tiki that Mr. Solien had a clear title. 

24.	The Contract for Sale of Land and Instrument of Transfer were drawn and engrossed by the defendant under the name of the defendant’s law firm and were executed on or about 22 October 2012 and 23 October 2012 respectively.  The execution of the documents was witnessed by Fred Tiki, the Real Estate Agent.

25.	On or about 23 October 2012, after the execution of the Contract for Sale of Land and Instrument of Transfer, Fred Tiki lodged the documents at the Internal Revenue Commission for them to be stamped in accordance with the Stamp Duties Act.  

26.	Settlement was proposed to take place at Westpac Bank -PNG- Limited Branch at Waigani on 5 November 2012 and did take place as proposed.  The plaintiff drew several Westpac Bank -PNG- Limited bank cheques to the value of K800,000.00 in favour of certain individuals and organisations and for amounts specified in a Settlement Statement prepared by the defendant and these are: 

	1.	Department of Lands & Physical Planning 	K4,000.00
	2.	National Capital District Commission		K11,663.36
	3.	Eda Ranu						K971.00
	4.	Hellen Soh						K40,000.00
	5.	Concepts & Solution PNG Ltd			K463,365.64
	6.	Wynn Emeck 					K2,000.00
	7.	Every Home Real Estate Ltd			K45,000.00
	8.	Alberta Andrew Nola				K33,000.00
	9.	Franzuer William Solien				K200,000.00  

27.	Except for the cheque for Mr. Solien, all cheques to the value of K600,000.00 were collected at settlement and either encashed or applied towards payment of public utilities or services intended to be settled.  Mr. Solien did not attend settlement and so did not collect the cheque drawn in his favour.  Mr. Solien never collected his cheque after settlement and it was later cancelled.

28.	At settlement, Benn Piani Tiki, on behalf of the plaintiff, received from the Real Estate agent the Owner’s Copy of State Lease Volume 114 Folio 230. The State Lease showed that the Property was transferred from the Housing Commission to Mr. Solien in 2002 with the endorsement on the title showing the date of production for registration being 10 October 2002 at 9:06 am and the date of entry being 11 October 2002. 

29.	Soon after settlement and upon payment of arrears of land rental of K4,000.00 at the Department of Lands & Physical Planning on or about 8 November 2012, the Contract for Sale of Land, Instrument of Transfer and the Owner’s Copy of the State Lease were lodged at the Office of the Registrar of Titles for purposes of registration.

30.	The plaintiff received a letter from Kuman Lawyers dated 12 December 2012 advising that; the National Housing Commission (NHC) had an interest in the Property as it was fraudulently transferred to Mr. Solien; NHC was aware that the plaintiff had entered into a contract for the sale and purchase of the Property; and that the NHC was taking appropriate steps including legal action in the National Court to protect its interest.  The plaintiff made enquiries with the NHC about the matters raised by Kuman Lawyers that revealed that the Property was disposed of via the National Government’s Give Away Home Ownership Scheme. 

31.	In or about early May 2013, Fred Tiki, the Real Estate Agent collected the Owner’s Copy of the State Lease from the Office of the Registrar of Titles and had it delivered to the plaintiff, through Benn Piani Tiki. The endorsement on the State Lease showed that the plaintiff was registered as the proprietor of the Property. However, the endorsement on the State Lease showed that the date of production for registration was 22 December 2009 at 9:54 am and the date of entry was also 22 December 2009.

32.	In or around May 2013, when the plaintiff through Benn Piani Tiki in the company of some of its employees and police went to the property to evict people living on the Property, those people showed them a copy of the fake Court Order and refused to move out.  The terms of the fake Court Order are reproduced in full below.

“On the 12th June 2012, at Waigan, National Court of Justice, the Honourable Court makes the following Orders: 

1.	It is the Judgment of this Court that the Registrar of Titles cancel the property known as Section 72, Allotment 8, NCD under the name of Franzure William Solien and be registered and transferred to John William Ford.
2.	The Respondent (Franzure William Solien), the family members, servants and/or agents are ordered not to interfere with the Plaintiff and/or any of the family members and to comply with the Orders forthwith.
3.	The registration and transfer of the said property was done through fraudulent means and ways and therefore it is pronounced illegal and of no effect by the Court.
4.	The Court also orders that upon service of this Order to the Respondent, the Respondent shall vacate the said Property also known as Section 72, Allotment 8 at Kuku Place, Boroko, NCD.

Ordered by the Court on 30th July 2012.” 

33.	The plaintiff realised that something was not right so decided to lodge a caveat to forbid registration of instruments affecting its interest, which it did on 29 July 2013.

34.	On or about 4 December 2013, the plaintiff engaged Kari Bune Lawyers to look into the matter.  On 9 December 2013, Kari Bune Lawyers conducted a search at the National Court Registry at Waigani and made enquiries with the Registrar of the Supreme Court of Justice and National Court of Justice through their letter dated 11 December 2013 that revealed that no court proceedings between John William Ford v Franzure William Solien were commenced either by writ of summons or originating summons and the action commenced by OS 731 of 2012 was actually between totally different parties and registered in the Lae National Court of Justice.  By letter to Kari Bune Lawyers dated 16 December 2013 received by them on 17 December 2013, the Office of the Deputy Registrar, National Court of Justice advised, among others, that; the fake Court Order was clearly defective and fraudulently issued as the opening paragraph of the order stated that the order was made on 12 June 2012, but the second page showed that the order was made on 30 July 2012; and that the plaintiff was displaced from the Property by use of the fake Court Order issued and obtained by Mr. Ford.

35.	   On 4 January 2014, Kari Bune Lawyers wrote to Kuman Lawyers requesting, among others, copies of documents relating to the purported transfer of the Property to Mr. Solien, but no response was received.  

36.	Attempts to conduct title searches of the title to the Property by Kari Bune Lawyers on 14, 28 and 31 January 2014 to ascertain the true legal status of the title revealed that the title file could not be found.  This prompted Kari Bune Lawyers to write to the Registrar of Titles by their letter dated 3 February 2014 expressing its grave concern about the missing file and the significance of not conducting a title search which stood in their way to taking steps to protect the plaintiff’s interest as there were serious discrepancies about the purported registration of the title under John William Ford’s name and the letter was copied to the Minister for Lands & Physical Planning, the Secretary of the Department of Lands & Physical Planning and the plaintiff. No response to that letter was received.

37.	By a letter dated 13 February 2014 addressed to the Acting Solicitor General, Kari Bune Lawyers gave notice of the plaintiff’s intention to make a claim against the Registrar of Titles, the Department of Lands & Physical Planning and the State pursuant to Section 5 of the Claims By and Against the State Act.

38.	Kari Bune Lawyers made further attempts to conduct a title search on 14, 19 and 25 February 2014, but it was not possible as the title file remained missing.

39.	By letter dated 21 February 2014 which was copied to the Secretary of the Department of Lands & Physical Planning, the Registrar of Titles and the plaintiff, Kari Bune Lawyers wrote to the Minister for Lands & Physical Planning requesting the Honourable Minister to intervene in the matter due to its seriousness where massive fraud was alleged. 

40.	On 25 February 2014, Kari Bune Lawyers wrote to Kuman Lawyers following up on their letter to them of 4 January 2014, but no response was received.

41.	On 7 March 2014, Kari Bune Lawyers wrote to the Papua New Guinea Law Society requesting information as to whether the defendant practiced on his own account between 2011 and 2014 and details of his location and postal address.  On 10 March 2014, the Papua New Guinea Law Society responded by letter advising that the defendant held an Unrestricted Practising Certificate in 2011 and 2012, but was not issued with a Practising Certificate in 2013 and at the time of writing, the defendant had not applied for a Practising Certificate for 2014. 

42.	On 8 May 2014, the plaintiff wrote to the defendant requesting him to finalise the conveyance of the Property to it, but no response was received.

43.	On 9 May 2014, Kari Bune Lawyers wrote to the defendant requesting details of the conveyance and his part in the process.  

44.	On 8 July 2014, Kari Bune Lawyers wrote to the defendant giving him notice that the plaintiff would lodge a complaint against him with the Papua New Guinea Law Society regarding his conduct in the conveyance matter.

45.	On 10 July 2014, the defendant wrote to Kari Bune Lawyers and attempted to explain himself out of the situation.

46.	By a letter from the Office of the Minister for Lands & Physical Planning dated 30 November 2015 which was received by Kari Bune Lawyers on 17 March 2016, Hon. Benny Allan advised, among others, that; a fake order was obtained in fake proceedings entitled OS No.731 of 2012, John William Ford v Franzure William Solien; a court order of 19 October 2012 restrained parties from dealing with the Property; a court order of 6 May 2013 restored title to National Housing Corporation; and there were judicial review proceedings on foot regarding the sale of the Property to one Allan Mana.
    
47.	On the evidence available, the facts show that there was a massive fraud or scam involving the defendant and others to sell the Property to the plaintiff which the plaintiff unknowingly and innocently agreed to purchase for K800,000.00. The plaintiff has never recovered the amount of K600,000.00 it paid at settlement. The plaintiff was fortunate not to lose a further K200,000.00 to Mr. Solien who failed to collect a bank cheque made in his favour for that amount at or after settlement.  The plaintiff has been deprived of the right to possession of the Property pursuant to the relevant contract for sale of land after settlement.  

48.	In all the circumstances of this case, I think an award of K600,000.00 to the plaintiff for the actual loss it has suffered as a result of the negligent conduct of the defendant is justified.  This is consistent with the objective of an award of damages which I have alluded to earlier which is to give the claimant compensation for damage, loss or injury he has suffered and the measure of damages is the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. 

49.	The claims for general and special damages have been abandoned so they are dismissed.

INTEREST

50.	The plaintiff claims interest at 8% yearly.  The Judicial Proceedings (Interest on Debts and Damages) Act, Chapter 52 was repealed and replaced by the Judicial Proceedings (Interest on Debts and Damages) Act 2015 which came into force after a Notice of Commencement dated 9 March 2016 signed by the Head of State was published in National Gazette No.G138 on 16 March 2016.  This action was commenced on 19 February 2015.  The awarding of interest under the repealed and current legislation is discretionary:  Cheong Supermarket Pty Ltd v Pery Muro (1987) PNGLR 24.  Interest under the repealed and current legislation may be ordered to apply either for the whole or part of the period between the date when the cause of action arose and the date of judgment.  In the exercise of my discretion, I will award interest at the rate of 8% yearly from the date of filing of the writ of summons on 19 February 2015 to the date of judgment, a total of 5 years and 314 days which is K281,180.32.  Interest will run on the award at 8% yearly until paid.

COSTS

51.	The awarding of costs is a discretionary matter.  The plaintiff submits that costs should be awarded on a solicitor-client basis.  I am not satisfied that I should order costs on a solicitor-client basis.  In the exercise of my discretion, costs shall follow the event, that is, the defendant shall pay the plaintiff’s costs of and incidental to these proceedings on a party-party basis which shall be taxed, if not agreed. 

ORDER

52.	The Court’s orders are:

1.	Judgment is entered in favour of the plaintiff in the sum of K881,180.32 which is inclusive of the award of K600,000.00 plus interest in the sum of K281,180.32.
2.	Post-judgment interest shall run at the rate of 8% yearly.
3.	The defendant shall pay the plaintiffs’ costs of and incidental to these proceedings on a party-party basis, which shall be taxed, if not agreed.
4.	Time is abridged. 

Judgment and orders accordingly.

______________________________________________________________
Kari Bune Lawyers: Lawyers for the Plaintiff