Mand v Lypita [2021] PGNC 106; N8857 (4 February 2021)

N8857

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 133 OF 2019

BETWEEN
JOSEPH MAND
Plaintiff

AND:
JIMMY DIA LYPITA
Defendant

Lae: Dowa AJ
2020: 27^th October
2021: 04^th February

DAMAGES – claim for breach of contract for professional services – lawyer/client contractual relationship – lawyer failing to represent client in court appearances despite payment made by defendant/client resulting in client losing case - whether there is a breach of contract and or professional duty and if so, what damages is the Plaintiff entitled to - Defendant had both a contractual and professional duty to the Plaintiff as his client to attend Court and defend him - his failure to attend court, was a clear breach of his contractual and professional duty he owed to the Plaintiff – damages awarded to plaintiff with interests and costs

Cases Cited:

Enaia Lanyat v State (1996) N1481
Finance Corporation Ltd v Joseph Mand
Jonathan Mangope Paraia v The State (1995) N1343
Obed Lalip v Fred Sekiot and The State – N147
Peter Wanis v Fred Sikiot and The State (N1350)
Samot v Yame (2020) N8266
Yooken Paklin v The State (2001) N2212,

Counsel:

E. Mambei, for the Plaintiff
No appearance, for the Defendant

DECISION

04^th February 2021

1. DOWA AJ: This is my judgment in respect of a claim for damages by the Plaintiff against the Defendant for breach of contract for professional services.
   

Facts

2. The Plaintiff is a businessman based in Lae. The Defendant is a lawyer by profession. The Plaintiff engaged the services of the Defendant who held himself as a lawyer, to act for him in a matter concerning his property, in a National Court proceeding titled OS 734 /2015: Finance Corporation Ltd v Joseph Mand. The Plaintiff instructed the Defendant to set aside certain Consent Orders made on 18^th November 2016 which the Plaintiff says his former lawyer agreed without his instructions.
   
3. The Plaintiff paid the Defendant a total sum of K22,600.00 as legal fees over a period of time in consideration for his services.
   
4. It is alleged the Defendant failed to meaningfully carry out his instructions, resulting in the Plaintiff suffering the damages.
   
5. The Plaintiff instituted these proceedings claiming various heads of damages including refund of his legal fees.

Trial

6. The trial was conducted ex parte, that is, in the absence of the Defendant, on 21^st September 2020 and 27^th October 2020.
   
7. Although the Defendant filed a Defence, he did not participate at the trial despite notice being given to him several times. The matter was initially fixed for trial on 24^th March 2020. The Defendant did not turn up and the trial was vacated. After several adjournments, the matter was fixed for trial on 23^rd June 2020. The trial did not proceed on 23^rd June 2020, due to difficulties encountered by the Plaintiff in serving Notice of Trial on the Defendant. The matter was rescheduled for 12^th August 2020. The Defendant did not turn up despite being notified. The matter was further adjourned to 27^th August 2020 for trial. The trial was vacated and rescheduled for 21^st September 2020. On 21^st September 2020, the trial proceeded. The Defendant did not turn up. The court was satisfied that due notice for trial was given to the Defendant, by publication in the National Newspaper.
   

Issue

8. The issues for consideration are:

1. Whether there is a breach of contract and or professional duty
2. If so, what damages is the Plaintiff entitled to.
   

Evidence

9. The Plaintiff relies on his own Affidavit filed 22^nd October 2019 and tendered into evidence as Exhibit P1. The Defendant did not attend the trial and thus could not offer evidence in rebuttal.
   
10. The Plaintiffs evidence is that on or about December 2016, he engaged the services of the Defendant, who is a lawyer to defend him in a court proceeding titled OS 734/2015: Finance Corporation Ltd v Joseph Mand
    
11. The Plaintiff says he instructed the Defendant to apply to the Court to set aside a consent order made on 9^th November 2016. The Plaintiff says the consent order was issued without his instructions and his former lawyers agreed to the terms of the orders without his instructions. The Defendant agreed to act for the Plaintiff.
    
12. On 20^th December 2016, the Plaintiff raised a deposit of K5,000.00 for his legal fees and thereafter he made further deposits as requested by the Defendant from time to time totalling the sum of K22,600.00 by August 2017.
    
13. The Plaintiff says the Defendant did not file any application to set aside the consent orders.
    
14. The Plaintiff says in early March 2017, Finance Corporation Ltd filed a second proceedings in OS 55 of 2017 against him, seeking enforcement orders. The Plaintiff instructed the Defendant again to defend the second proceedings.
    
15. The Plaintiff says the proceedings in OS 55 of 2017 was heard on 24^th August 2017. The Defendant did not turn up in Court despite being aware of the hearing date.
    
16. The matter proceeded ex-parte and enforcement orders were granted against the Plaintiff. As a result, the Plaintiff lost his property through an order granting writ of possession to Finance Corporation Ltd.

Submissions of Counsel

17. At the hearing, Mr. Mambei, Counsel for the Plaintiff submitted that the Plaintiff has engaged the services of the Defendant who held himself out as lawyer to assist the Plaintiff. That the Plaintiff paid for those services but in breach of the agreement, the Defendant did not deliver on his obligations in failing to make an application to set aside the consent orders and to make subsequent court appearances to defend the Plaintiff.
    
18. In respect of damages, Mr. Mambei submitted that the Plaintiff has decided not to pursue damages for the loss of property in Lae. Mr. Mambei submitted damages in respect of the following heads of damages only:
    

a) General damages for emotional distress in the sum of K50,000.00

b) Refund of legal fees at K22,600.00

c) Interest and costs

Liability

19. The Plaintiff’s evidence is uncontested. He clearly instructed the Defendant to represent him initially in proceedings titled OS 374/2016: Finance Corporation Ltd v Joseph Mand. The Plaintiff’s instructions were for the Defendant to apply to the Court to set aside the consent orders made on 18^th November 2016. The Plaintiff paid a sum of K5,000.00 on 20^th December 2016. The Plaintiff made further payments thereafter. The evidence shows no application was made. There is no evidence of any advice or reporting done by the Defendant, who had a contractual and professional obligation to report to his client. I find the Defendant breached the terms of the Contract of Service.
    
20. The Defendant was again engaged to defend the second proceedings in OS 55 of 2017 between Finance Corporation Ltd vs Joseph Mand, in respect of the enforcement proceedings. The Defendant was paid further sums of monies to represent him. From the evidence provided, the Plaintiff made 10 deposits, between 20^th December 2016 and 06^th August 2017 totalling K22,600.00.
    

Again, I find from transcript of proceedings, the Defendant made no appearance on behalf of the Plaintiff on 24^th August 2017. The evidence also shows the Defendant did not have an appropriate Practising Certificate from the PNG Law Society at that time. The defendant should have but did not advise the Plaintiff of any difficulties he may have had representing the Plaintiff as lawyer. As a result, the application for the grant for the writ of possession was granted unopposed.

21. In my view, the Defendant had both a contractual and professional duty to the Plaintiff as his client to attend Court and defend him. His failure to attend court, was a clear breach of his contractual and professional duty he owed to the Plaintiff. As I have found, at the relevant time, the Defendant did not have a practicing certificate and it was his duty to advise the Plaintiff to seek alternative legal representative. Consequently, I find liability against the Defendant on the balance of probabilities.
    

Damages

22. In respect of damages, the law is clear: Whilst the issue of liability is settled, the Plaintiff is still required to prove its damages with credible evidence. Ref: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (N1350), Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State – N147; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.
    
23. In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“ 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.)”
  

24. I will adopt and apply these principles in the present case when considering each head of damages sought by the plaintiff. In the statement of claim the Plaintiff was seeking various heads of damages including damages for loss of his property in Lae. At the trial the Plaintiff abandoned the claim for loss of property.
    
25. Firstly, I commend the Plaintiff and his lawyer for not pursuing the claim for loss of property. In my view the claim is remote as the Defendant was engaged after the consent orders for summary judgment was obtained. Secondly, the pleadings and evidence do not provide any description or details of the Lae property.
    
26. I now turn to the balance of his claim for general damages and for the refund of the legal fees. In respect of the legal fees, the evidence shows the following payments were made, by direct deposits into the Defendants BSP Account No. 1013298292.

Item	Date	Amount	Payee
1	20.12.2016	K5,000.00	Jimmy Dia Lyipit
2	17.01.2017	K4,000.00	Jimmy Dia Lyipit
3	30.01.2017	K3,000.00	Jimmy Dia Lyipit
4	05.02.2017	K3,500.00	Jimmy Dia Lyipit
5	03.03.2017	K2,000.00	Jimmy Dia Lyipit
6	09.05.2017	K1,000.00	Jimmy Dia Lyipit
7	12.05.2017	K 500.00	Jimmy Dia Lyipit
8	17.05.2017	K2,000.00	Jimmy Dia Lyipit
9	07.07.2017	K1,000.00	Jimmy Dia Lyipit
10	17.07.2017	K 600.00	Jimmy Dia Lyipit
Total		K22,600.00

27. I am satisfied from evidence provided that a total sum of K22,600.00 was paid into the account of the Defendant at various times for services that were not rendered. The Plaintiff is therefore entitled to the refund of all the payments, totalling K22,600.00. I will make an award of K 22,600.00.
    
28. In respect of general damages for distress, Mr. Mambei submits that a sum of K50,000.00 be awarded. Mr. Mambei refers to the case of Peter Aigilo v The Independent State of Papua New Guinea, (2001) N2102 and Jeff Tole v PNGBC (2001).
    
29. I have carefully considered the evidence of the Plaintiff and find there is no evidence that the Plaintiff suffered any emotional or physical pain as a result of the Defendant’s actions. In order for me to make an award, I have to be satisfied on evidence that the Plaintiff did in fact suffer distress and emotional break down which was caused by or as a result of the Defendant’s conduct. In the absence of such evidence, I am not prepared to make an award under this head of damages. In any case, extra expenses incurred in pursuing this matter can be compensated by an order for costs.
    

Interest

30. The Plaintiff claims interest at 8%. I will award interest at 8% on the proven claim of K22,600.00 from date of filing of the Writ of Summons which is 28^th February 2019, to date of judgment, which amounts to K3,519.45.
    

Cost

31. The Plaintiff is entitled to cost of the proceedings, which cost will have to be taxed, if not agreed.
    

Orders

32. The Court orders:

1. Judgment be entered for the Plaintiff in the sum of K26,119.45 inclusive of Interest.
2. Further interest will accrue at 8% from date of Judgment until settlement.

100. The Defendant shall pay cost of the proceedings to be taxed if not agreed.

4. Time be abridged.

________________________________________________________________
Solwai Lawyers: Lawyers for the Plaintiff
Nil representation: Nil appearance by the Defendant