PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2024 >> [2024] PGNC 106

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Puara v Andagali [2024] PGNC 106; N10761 (26 April 2024)

N10761


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 1402 OF 2019 (CC2)

BETWEEN:
RICHARD PUARA
Plaintiff/First Cross-Defendant


AND:
LARRY ANDAGALI
First Defendant


AND:
TRANS WONDERLAND LTD
Second Defendant


AND:
NOU NOU
Third Defendant/First Cross-Claimant


AND:
KAEVAGA INCORPORATED LAND GROUP
Fourth Defendant/Second Cross-Claimant


AND:
LAND TITLES COMMISSION OF PAPUA NEW GUINEA
Second Cross-Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Cross-Defendant


Waigani: Shepherd J
2024: 7th February
2024: 26th April


DAMAGES – assessment of damages – principles for assessment of damages – claim for general damages for trespass and interference with land – general damages allowed for estimated cost of re-survey, remediation and fencing of land damaged by wrongful conduct of defendants – general damages for mental anguish – interest on general damages allowed at 8% per annum.

Cases Cited:


Aigilo v Morauta, Prime Minister (No. 2) (2001) N2103
Angoman v Independent Public Business Corporation of Papua New Guinea (2011) N4363
Central Bank of Papua New Guinea v Tugiau (2009) SC1013

Cheong Supermarket Pty Ltd v Muro [1987] PNGLR 24

Coecon v National Fisheries Authority (2002) N2182

Harding v Teperoi Timbers Pty Ltd [1988] PNGLR 128

Hodson v Independent State of Papua New Guinea [1985] PNGLR 303

Kinsim Business Group Inc. v Hompwafi (1997) N1634

Likui Trading Ltd v Selma (2011) N4530

Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144

Nambawan Super Ltd v Petra Management Ltd (2017) N6748

Opi v Telikom PNG Limited (2020) N8290

Paklin v The State (2001) N2212

Papua New Guinea Banking Corporation v Tole (2002) SC694

Paraia v The State (1995) N1343
PNG Ports Corporation Ltd v Canopus No. 71 Ltd (2010) N4288
Puara v Andagali, Trans Wonderland Ltd & Ors (2021) N9210
Puara v Andagali, Trans Wonderland Ltd & Ors (2023) N10569

Rimbunan Hijau (PNG) Ltd v Enei (2017) SC1605

Samot v Yame (2020) N8246

Sorowa v Taison (2021) N9299

Vali v Motor Vehicles Insurance Ltd (2022) N9661

Wereh v Independent State of Papua New Guinea (2023) SC2487

Counsel:

Mr Nemo Yalo, for the Plaintiff/First Cross-Defendant
Mr Aaron Benny, for the First & Second Defendants
Mr Peter Hai Pato, for the Third & Fourth Defendants/Cross-Claimants

DECISION

26th April 2024

  1. SHEPHERD J: This is a decision on assessment of damages for the plaintiff. The defendants’ liability was determined by the Court’s decision delivered on 25 October 2023, at which time the case was adjourned for submissions to be made by all parties on the quantum of damages to be awarded to the plaintiff. The hearing on assessment of damages was held on 7 February 2024.

BACKGROUND

  1. This case relates to a portion of freehold land comprising an area of 2.03 hectares known as Portion 3959C, Milinch of Granville, Fourmil of Port Moresby, National Capital District being all the land described in Certificate of Title Volume 37 Folio 248 (the land).
  2. The land is situated near the Napanapa Oil Refinery at Motukea, not far from Port Moresby. It previously formed part of a larger block of customary land known as ‘Begadaha’, ownership of which is claimed by the fourth defendant (Kaevaga ILG).
  3. The land was sold to the plaintiff (Mr Puara) by Kaevaga ILG, represented by the third defendant (Mr Nou), under a contract for sale dated 23 December 2016. The agreed sale price was K300,000, with a 50% deposit which was paid up front and with the remaining 50% to be paid on issuance of registered title to Mr Puara. To obtain registered title, Mr Puara applied to the Land Titles Commission pursuant to the Land (Tenure Conversion) Act 1963 with the consent of Kaevaga ILG for conversion of customary ownership of the land to freehold registered title under the Land Registration Act 1981. Certificate of Title Volume 37 Folio 248 for the land was issued to Mr Puara by the Registrar of Titles on 17 October 2018. Kaevaga ILG challenged the registration of that title on the ground that Kaevaga ILG had endeavoured to revoke its contract for the sale of the land to Mr Puara because it had subsequently sold the land as part of a larger block of customary land to TWL, By this stage TWL had already entered onto the land and had carried out major earthmoving works in furtherance of its plans to develop the site. The occupation of the land by TWL and the steps taken by Kaevaga ILG and its chair Mr Nou to challenge Mr Puara’s registered survey plan Catalogue No. 49/3739 and Mr Puara’s title to the land are what prompted Mr Puara to seek injunctive and other relief from this Court for trespass and interference with his land.
  4. Further background to this dispute is set out in this Court’s earlier two decisions in connection with this proceeding, namely the Court’s interlocutory ruling on 1 October 2021 reported as judgment N9210 and the Court’s substantive decision on liability delivered on 25 October 2023 reported as judgment N10569, and need not be repeated here.
  5. The Land Titles Commission and the State, although cited as the second and third cross-defendants in this proceeding by cross-claimants Mr Nou and Kaevaga ILG, have never been active parties in this suit. Mr Nou and Kaevaga ILG have pursued their cross-claim solely against Mr Puara as first cross-defendant. For the avoidance of doubt, references in this Decision to “the defendants” excludes any reference to the Land Titles Commission and the State.

ISSUE

  1. The parties’ previous issues on liability for determination by the Court were set out on page 7 of the parties’ Statement of Agreed and Disputed Facts and Issues filed on 10 December 2021 (parties’ Statement).[1] Those issues were substantively determined by the Court in judgment N10569 delivered on 25 October 2023.
  2. The issue now before the Court is assessment of the quantum of Mr Puara’s damages.

LEGAL PRINCIPLES

  1. The fundamental principle which governs the whole of law of damages, in whatever area damages are awarded, is the principle of compensation. The Court must strive to award that sum of money which will compensate for a party’s loss or injury. It means that the amount of money to be awarded as damages must be such an amount which, so far as money can, puts the injured party who suffered loss or damage in the same position as that party would have been had they not suffered the injury or damages for which they are being compensated: Kinsim Business Group Inc. v Hompwafi (1997) N1634 (Bidar AJ).
  2. This principle, known as ‘restitutio in integrum’ derives its origin from ancient Roman law and means ‘restoration to original condition’. In practical terms it means that the amount of compensation awarded should be that amount of money as will put a successful plaintiff in the position that would have been the case if the wrongful act such as a tort or breach of contract had not been committed.
  3. It was said by the Supreme Court in Rimbunan Hijau (PNG) Ltd v Enei (2017) SC1605 (Salika DCJ and Kandakasi J as they then were, Toliken J) that:

Assessing damages is not a matter of mathematical or scientific precision. It however requires a careful consideration and weighing of all evidence presented before the Court and the Court arrives at an award it considers will best compensate a plaintiff who suffers loss or damage on account of a defendant’s tortious actions.

  1. The ‘restitutio’ principle is not an absolute principle. It is qualified by other principles, such as:

(a) A plaintiff has the onus of proving 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: Paklin v The State (2001) N2212 (Jalina J).

(b) The principles of proof and corroboration apply even when the defendant fails to present any evidence to dispute the claim: Wanis v Sikiot (1995) N1350 (Woods J).

(c) The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of payment of 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: Paraia v The State (1995) N1343 (Injia J as he then was).

(d) A plaintiff is under a duty to mitigate or lessen the consequences of the wrongful act, and damages are not available for loss which is attributable to a plaintiff’s failure to mitigate, although it is the defendant as wrongdoer who has the onus of proving failure to mitigate: Coecon v National Fisheries Authority (2002) N2182 (Kandakasi J).

(e) A plaintiff is only entitled to damages which naturally arise from the wrongful act, not from loss which is too remote: Kinsim Business Group Inc. v Hompwafi (supra).

  1. In any assessment of damages the Court will consider awarding compensation for direct expenses, known as special damages, such as the proven actual cost of repair of damaged property and out-of-pocket expenses. Damages can also be awarded by the Court for past and future loss of income resulting directly from the wrongful act and for loss of amenities caused by pain and suffering, both physical and mental.
  2. I will apply these principles when determining each head of damages sought by Mr Puara in this instance.

DEFENDANTS’ OBJECTIONS TO PLAINTIFF’S AFFIDAVIT EVIDENCE

  1. On 5 February 2024, two days before the hearing on assessment of damages on 7 February 2024, the first defendant (Mr Andagali) and second defendant (TWL) gave short-served notice pursuant to s.35(2) of the Evidence Act Ch. 48 that they would object to Mr Puara’s use at the hearing of:

(1) the affidavits that comprised Exhibits P1 to P11 admitted into evidence for Mr Puara at the trial on liability conducted on 24 March 2022, and

(2) two affidavits recently sworn by Mr Puara and filed on 19 January 2024 and 2 February 2024 respectively.

  1. On 5 February 2024 Mr Nou and Kaevaga ILG filed a separate short-served notice of objection pursuant to s.35(2) of the Evidence Act to Mr Puara’s use of his affidavits filed on 19 January 2024 and 2 February 2024 on the ground that those two affidavits raise matters or issues that were not pleaded in Mr Puara’s amended statement of claim filed on 25 February 2020.[2]
  2. At the commencement of the hearing on assessment of damages I heard submissions from counsel for Mr Andagali and TWL and from counsel for Mr Nou and Kaevaga ILG on their clients’ respective objections. I made an ex tempore ruling and upheld the objections made by all four defendants to Mr Puara’s second affidavit filed this year on 2 February 2024 on the basis that Mr Puara had deposed in that affidavit to matters which related to the increase in the market value of the land between November 2018 and early 2023, matters which I held were irrelevant to the Court’s assessment of damages arising from the defendants’ liability. Mr Puara’s affidavit filed on 2 February 2024 was ruled inadmissible and was not allowed to be produced in evidence for Mr Puara.
  3. However, my ex tempore ruling dismissed the specific objections which had been made by Mr Andagali and TWL to the admission into evidence at the assessment of damages hearing of the following exhibits which had already been admitted into evidence in the prior hearing on liability:

My reason for dismissing the objections to this evidence, now relied on by Mr Puara at the assessment of damages hearing, was because all of the affidavits and other material admitted into evidence at the trial which had resulted in a finding of liability on the part of all defendants were, in my considered opinion, also relevant to the Court’s assessment of Mr Puara’s damages and should not be excluded. I held that the abovementioned Exhibits, having formed part of the totality of evidence that was before the Court at hearing which established the defendants’ liability, were also of probative value at the assessment of damages hearing and would remain in evidence, along with all other Exhibits admitted into evidence at the prior hearing, but that this was subject to the weight which the Court would place on them.

  1. As to Mr Puara’s affidavit filed this year on 19 January 2024, my ex tempore ruling dismissed the objection of all defendants to the admission of that affidavit into evidence. I referred in my ruling to the affidavit of Mr Andrew Fury filed for Mr Andagali and TWL on 5 February 2024, which affidavit had been admitted into evidence as Exhibit DA-6 without objection by counsel for Mr Puara at the hearing on assessment of damages. Mr Fury is the chief operations officer of the second defendant. Mr Fury objected in his affidavit on behalf of Mr Andagali and TWL to Mr Puara’s affidavit filed on 19 January 2024 because he asserted, among others, that Mr Puara should provide proof of actual amounts spent on surveying and source documents such as receipts for those payments, not just quotations for estimated costs for remediation and new survey. I held that the concerns raised by Mr Fury in his affidavit all go to the weight that the Court should put on various of the matters deposed to by Mr Puara in his affidavit filed on 19 January 2024. I ruled that questions going to the admissibility of affidavit evidence must be distinguished from those relating to its weight and that it is for the Court to determine what credibility should be given to matters that it considers to be material to an assessment of damages. I ruled that Mr Puara’s affidavit filed on 19 January 2024 contains matters relevant to the Court’s consideration of assessment of damages. Mr Puara’s affidavit of 19 January 2024 was accordingly admitted into evidence as Exhibit P20 at the assessment of damages hearing conducted on 7 February 2024.

PARTIES’ EVIDENCE ON ASSESSMENT OF DAMAGES

  1. After ruling on the objections by the defendants to various of the affidavits of Mr Puara, the undermentioned affidavits and documents were admitted into evidence at the assessment of damages hearing.

Affidavits and documents filed for Mr Puara

  1. The undermentioned affidavits and documents Exhibit P1 to P19 were previously admitted into evidence in this proceeding at the trial on 24 March 2022 and 7 April 2022 which determined the defendants’ liability. This evidentiary material was admitted into evidence at the hearing on assessment of damages on 7 February 2024 and was augmented by Mr Puara’s latest affidavit filed on 19 January 2024 (Exhibit P20):

Affidavits filed for Mr Andagali and TWL:

  1. The following affidavits Exhibits DA-1 to DA-5 were admitted into evidence at the assessment of damages hearing as they had already been admitted into evidence in the previous trial on liability but were supplemented at the assessment of damages hearing by the recent affidavit of Andrew Fury filed 5 February 2024 (Exhibit DA-6):
  2. Although two affidavits had been filed for Mr Nou and Kaevaga ILG at the previous trial on liability, Exhibit DB-1 and Exhibit DB-2, counsel for Mr Nou and Kaevaga ILG did not seek to rely on those affidavits at the assessment of damages hearing but instead relied on the evidence filed for Mr Andagali and TWL. Counsel for Mr Nou and Kaevaga ILG adopted the written submissions made by counsel for Mr Andagali and TWL at the assessment of damages hearing.

CONSIDERATION

  1. The Court’s assessment of the damages to be awarded to Mr Puara requires careful analysis of the parties’ evidence to determine what amount of monetary compensation will as closely as possible restore Mr Puara to his former position had it not been for the trespass and interference with Mr Puara’s land by TWL and members of Kaevaga ILG.
  2. Mr Puara commenced this litigation by the filing of his writ of summons with endorsed statement of claim on 31 October 2019. An amended statement of claim was filed on 25 February 2020.
  3. Mr Puara in his amended statement of claim has pleaded that following the grant to him on 17 October 2018 of registered title to the land, Mr Andagali and TWL by their employees and agents, enabled by the conduct of Mr Nou and Kaevaga ILG, intentionally trespassed and interfered with the land. Mr Puara pleaded that Mr Andagali and TWL did this by bringing dump trucks, excavators and other machinery onto the land and then carrying out bulldozing and earthworks on the land by unearthing tonnes of topsoil, rocks and vegetation which altered the landscape and contour of the land. Mr Puara pleaded that TWL also destroyed 20,000 meters of perimeter wire fencing and uprooted and destroyed survey pegs delineating the boundaries of the land.
  4. Mr Puara by his amended statement of claim claimed injunctive relief as well as:

(a) general damages for trespass and loss of land, particulars of which were pleaded in para. 16 to include loss of fencing to the value of K35,000, labour costs of K50,000 to reinstate 20,000 meters of perimeter wire fencing and K50,000 for the cost of a surveyor to reinstall survey pegs, a sub-total of K135,000. Mr Puara’s particulars of damages as pleaded in para. 16 also included an unliquidated amount for the cost of remediation of the land the contour of which had been altered by excavation, backfilling and digging of deep trenches or drains;

(b) general damages for mental anguish;

(c) costs of the proceeding; and

(d) interest on damages pursuant to statute.

  1. At the hearing on assessment of damages on 7 February 2024, counsel for Mr Puara submitted that Mr Puara’s evidence indicated that the Court should now award compensation under the two heads of damages pleaded in the amended statement for these amounts:

(1) damages for trespass and interference with land in the total sum of K827,615.84 based on the aggregate of two quotations which Mr Puara has obtained from registered surveyor Mr John H. Ulai (K86,875) and from Associated Builders & Contractors Ltd (K740,740.84).

(2) damages for mental anguish in the sum of K5,000.

  1. Counsel for Mr Puara also referred at the hearing on assessment of damages to a claim for exemplary damages but this was quite properly not pursued, the reason being that exemplary damages had not been pleaded as one of the heads of relief sought by Mr Puara in his amended statement of claim. Counsel for Mr Puara tacitly acknowledged that any claim by Mr Puara for exemplary damages could not be entertained by the Court as a claim for this category of damages had not been pleaded. This decision of counsel for Mr Puara not to pursue a claim for exemplary damages accorded with the fundamental principle of procedural law that a claim for a category of damages not pleaded cannot be awarded by the Court: Papua New Guinea Banking Corporation v Tole (2002) SC694 (Amet CJ, Sheehan & Kandakasi, JJ); Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144 (Davani, Hartshorn, Sawong, JJ).

GENERAL DAMAGES FOR TRESPASS AND INTERFERENCE WITH LAND

  1. After reviewing Mr Puara’s evidence in support of his claim for damages for trespass and interference with the land, it is apparent that Mr Puara is really seeking by way of general damages such amount as will cover the costs of re-survey, reinstatement of perimeter fencing and remediation of the land rather than global damages at large.
  2. I observe in this regard that no claim has been made under this head of damages by Mr Puara for any loss of economic use of the land which he may have sustained as a result of injury caused to his land by TWL and members of Kaevaga ILG.
  3. Mr Puara has furnished evidence of the likely costs of the matters he contends are necessary to restore him to the position he was in before the defendants committed trespass and interference with his land, those costs for the purpose of an award of general damages having been revised upwards by Mr Puara since the filing of his amended statement of claim and now stand at the very substantial sum of K827,615.
  4. Before consideration is given to the content of the two quotations challenged by Mr Andagali and TWL, I observe that their challenge has been mounted in the context of the duty of Mr Puara as plaintiff to mitigate his loss or damages but that their counsel acknowledges that the onus is on Mr Andagali and TWL as defendants to prove that Mr Puara has failed to mitigate his loss or damages: Coecon v National Fisheries Authority (supra).
  5. I further observe that Mr Puara’s affidavit filed on 19 January 2024 (Exhibit P20) was served on the offices of the law firms acting for the defendants soon after it was filed. I say this because on 30 January 2024 I granted an order on the application of counsel for Mr Nou and Kaevaga ILG for adjournment of the hearing date set down for that day for assessment of damages from to 7 February 2024 at 1.30 pm so as to allow all defendants further time to respond to Mr Puara’s affidavit filed on 19 January 2024. All four defendants therefore had close to a fortnight within to obtain their own quotations which they could have produced in evidence at the assessment of damages hearing had they wished to endeavour to persuade the Court as to the unreasonableness of Mr Puara’s two quotations by comparison with lower quotations they may have obtained. None of the defendants availed themselves of the opportunity to furnish such evidence. As it transpired, Mr Andagali and TWL left it until 5 February 2024 to file Mr Fury’s latest affidavit, only two days before the hearing, to raise their concerns as to the quotations obtained by Mr Puara but without furnishing any alternative lower quotations for the work covered by the two quotations annexed to Mr Puara’s affidavit filed on 19 January 2024.

(a) Quotation dated 2 November 2023 from registered surveyor Mr Ulai

  1. Mr Puara deposes in paras. 7 and 8 of his affidavit filed on 19 January 2024 (Exhibit P20) that the original survey of the land was carried out by Mr Ulai in January 2017. At that time Mr Ulai was a registered surveyor with a company named Montana Civil Constructions Ltd. Mr Puara deposes that he engaged the surveying services of Mr Ulai with Montana Civil Constructions Ltd soon after he had entered into his contract with Kaevaga ILG on 23 December 2016 to purchase the land. Mr Puara says that the cost of the original survey work carried out by Montana Civil Constructions Ltd when Mr Ulai was with that company in early 2017 came to a total of about K60,000 comprising K25,000 for bulldozer hire for clearance of shrubs and bush, K15,000 for the survey report itself (Exhibit P12) and K20,000 for materials for perimeter fencing. This is consistent with what was earlier deposed to by Mr Puara in this regard at para. 7 of his much earlier affidavit filed on 17 December 2019 (Exhibit P2).
  2. I note the following are agreed facts, acknowledged by all parties at paras. 5 and 6 of their Statement, that:

5. On 14 January 2017 a registered surveyor surveyed the land the Plaintiff had purchased from the Third and Fourth Defendants.

6. On 21 September 2017 the Surveyor General registered the Plaintiff’s survey plan in the Register as Cat. No. 49/3739.

  1. With reference to the recent quotation dated 2 November 2023 which Mr Puara has obtained from Ulai, Mr Puara deposes in paragraph 2 of his latest affidavit that in late October 2023 he engaged the consulting services of registered surveyor Mr Ulai to assess, from a surveyor’s perspective, the damage done to the land.
  2. Mr Ulai’s assessment is contained in his site visit report dated 2 November 2023, a copy of which is annexure “A” to Mr Puara’s affidavit (Exhibit P20). Mr Ulai says in his report that two different surveys of the land are now required: (1) a new survey, once reinstatement survey works have been done, and (2) a topographic survey.
  3. Mr Ulai states the following matters in his site report:[3]
    1. Introduction

...The purpose of the visit was to investigate on the earth works during construction work carried out there and to see first-hand the extent of damage to the survey markers at the corner of the above portion of land and these findings, how much the cost will be to carry out a boundary re-instatement survey of the land [and] a detailed survey of the entire land and nearby area as well.

2. Findings

...

  1. It was found that [a] few corner markers have been removed by the earthworks by another company. The marks include; corner 38 & 38a in the south-western corner at Motukea Wharf junction. The other marks removed are the most northern boundary corners. They were completely gone. These 4 corner mark are standard cement monuments authorized by the Department of Lands & Physical Planning. Therefore, these markers are to be made by hand and replaced to original position to the tolerance of ± 1 mm accuracy. This is to the Urban Class I Survey Specifications.
  2. The PNG 94 Coordination Marks (PSMS)

Our findings also found that the two (2) PNG 94 Survey Coordination Permanent Markers placed in the field during the initial survey have been removed or destroyed by the earthworks. The marks are 3rd Level Order Coordination markers which [are] part of the cobweb of Survey Coordination System within Motukea Wharf area, which controls the developments happening there. The two (2) markers are different from the cement monuments. These are either cast iron plaque or bolts flushed in concrete [and] hidden in the ground. These points are points numbered as PSM34061 and PSM 34062 and are at the road frontage. Thus these two (2) Marks must be replaced to [their] original positions at ± 1mm precision.


  1. Western Boundary

The western boundary has been removed because of a road constructed in the south to the north. The road has encroached onto the subject portion. During the road construction, the boundary fence line was destroyed. Rubbish of the earthworks and other debris was dumped in the subject land, Portion 3959C. Hence the boundary to be reinstated.

  1. Northern Boundary

The northern boundary was also affected doe to roadworks carried out there. The earth and debris have also been dumped inside this Portion 3959C. The fence line was also destroyed along the boundary. Hence the boundary has to be reinstated.

  1. Drain Line

It is also found that a concrete drain line runs north to south linking the existing inlet of the main culvert. The drain is about 3 meters wide. The drain splits the Portion in half ..

  1. Front Boundary

The front boundary is a short boundary of 16 meters from point corners 38 and 38a. These markers have also been destroyed, thus need corners replaced and the boundary cleared. The boundary was affected with the western boundary due to a new road constructed over the hill to the boundary here. Hence affecting the boundary line.

  1. Attached to Mr Ulai’s report is his itemized quote for K86,875 for the survey work which Mr Ulai says is required. The quote is divided into two parts. The first part of the quote is for the new survey plan to be done after reinstatement work has been carried out on the land and is for the sum of K53,875. This aspect of Mr Ulai’s quote for the new survey plan is subdivided into four sub-headings: (1) cost of surveyor searches at Dept of Lands & Physical Planning (K2,050); (2) cost of field work (K40,275); (3) cost of preparation for field work (K7,500); and (4) report preparation (K3,600). Each of these sub-headings has further specific items allowed for and quoted. The second part of Mr Ulai’s quote is for a separate amount for K33,000 for the topographic survey which Mr Ulai says is required.
  2. The total of Mr Ulai’s quote for both surveys is, as noted above, K86,875. But as there has been no allowance for GST in Mr Ulai’s overall quote, I infer that GST of 10% amounting to K8,687.50 would need to be added to any invoice that would be payable by Mr Puara if Mr Ulai’s quote were to be accepted, making a total of K95,562.50.

(b) Quotation from Associated Builders and Contractors Ltd

  1. Mr Puara deposes in para. 5 of his affidavit filed on 19 February 2024 (Exhibit P20) that the quotation dated 2 December 2024 he has obtained from Associated Builders and Contractors Ltd (ABC Ltd) is for K740,740. The quotation from ABC Ltd is annexure “B” to Mr Puara’s affidavit filed on 19 January 2024. I note from perusal of that quotation that the sum of K740,740 is inclusive of GST.
  2. Mr Puara says in paragraph 5 of his affidavit that ABC Ltd’s quote is for the restoration of the land to a usable state, including the clearing of waste and loose soil dumped there by TWL. The quotation also includes an estimate for the cost of reconstruction of 20,000 meters of Mr Puara’s fencing that was wrongfully removed from the land.
  3. I observe that ABC Ltd’s quote dated 2 December 2023, rounded to the nearest kina, covers the following work:

Sub-total K 673,400

GST (10%) K 67,340

Total of ABC Ltd’s quote: K 740,740

Defendants’ challenge to the two quotations obtained by Mr Puara

  1. Mr Andagali and TWL, supported by Mr Nou and Kaevaga ILG, challenge the relevance as well as the amount of the two quotations which Mr Puara has recently obtained.
  2. Counsel for Mr Andagali and TWL has advanced three main reasons why TWL contests the two quotations now in evidence for Mr Puara and why those two quotations should be disregarded by the Court.

(1) It is said that TWL should not be liable to compensate TWL for the costs associated with any new survey plan that may be required for the land because the removal of the survey pegs was not done by any of the employees or contractors of TWL, so TWL is not responsible for the cost of the new survey work that Mr Ulai has said in his site report is required.

(2) TWL should not be liable in damages to Mr Puari for the cost of replacing his fence because it was members of the Kaevaga Clan, not employees of TWL, who removed his fence, a fact which has not been denied by Mr Nou or by Kaevaga ILG..

(3) Further, the two recent quotations obtained by Mr Puara are said to be inflated, grossly so in respect of ABC Ltd’s quote for K740,470, and that if the two quotes were to be accepted by the Court, this would unjustly enrich Mr Puara. It is argued that the liability of TWL to pay damages, if any, should be limited to what Mr Puara paid back in 2017 for the costs associated with Mr Puara’s commissioning of the original survey of the land and the cost of his fencing of the land. To that end, Mr Puara should have filed his source documents and receipts to actually prove how much he paid for the survey carried out by Mr Ulai in 2017 and the cost of the fencing that Mr Puara caused to be constructed on the land. It is contended that damages, if any, under this category should be limited to the aggregate of those past costs. Mr Andagali and TWL should not be held accountable to pay damages to Mr Puara based on unreasonably high quotations.

  1. Mr Fury, who is the chief operating officer for TWL, has explained in his affidavit filed on 5 February 2024 (Exhibit DA-6) his reasons why the Court should not accept the two quotations in question.
  2. Mr Fury says in para. 14 of his latest affidavit that when TWL was doing work on the land, it did not do any damage to the survey pegs there. Mr Fury suggests that the survey pegs were “planted” by Mr Puara after TWL had “cleared and developed it”. I reject this suggestion out of hand. This is speculation on the part of Mr Fury unsupported by the evidence.
  3. Mr Fury says in his earlier affidavit filed on 17 March 2020 (Exhibit D5) that he was first employed by TWL in 2010 and then at some later point he left that company to run a marine project at Gladstone, Queensland. Mr Fury says in para. 5 of his affidavit filed on 17 March 2020 that he returned to work for TWL on some undisclosed date in 2019. Mr Fury was therefore not an employee of TWL when the matters complained of by Mr Puara, which mostly took place between 2016 to 2018, occurred. Mr Fury clearly has no direct knowledge of those matters, only hearsay records and hearsay accounts of what others have told him.
  4. Be that as it may, this is what Mr Fury deposed to at paras. 7 to 15 of his earlier affidavit filed on 17 March 2020 (Exhibit DA-5) soon after the commencement of this litigation in October 2019:

7. The Plaintiff is now claiming that TWL had removed his fencing on the land and is encroaching on his property and seeks to restrain us from further development of the land pending the determination of the proper ownership of the land.

8. From our records, TWL started developing the land since 2015. The Plaintiff however, erected the fencing on the stock pile left by TWL in October 2017. This is evidence[d] from a reply email by Mr Larry Andagali sent to the Plaintiff dated 9th September 2019. It is also confirmed by satellite images annexed as Annexure “A” in the Affidavit In Reply of Larry Andagali filed 20.12.19. ...

9. The customary landowners who are now the Fourth Defendants have removed the Plaintiff’s fencing on their land because they decided to cancel the contract of sale with the plaintiff’s company for its failure in completing the contract.

10. TWL started developing the land in full scale in 2019 knowing very well that the Plaintiff’s Survey Plan was cancelled by the Surveyor General based on the complaint lodged by the customary landowners.

11. ...

12. Development of the land [the] subject of this proceeding started even prior to the Plaintiff commenced this proceeding ... These proceedings were filed in 2019 whereas TWL started developing the land in 2017 and it is an ongoing activity.

  1. In contrast, this is what Mr Puara deposed to at paras. 5 to 7 in his first affidavit filed in this proceeding on 26 November 2019 (Exhibit P1):

5. On the 22nd of August 2019 I drove to my land and noticed Trans Wonderland had trespassed on my piece of land and demolished half of the perimeter fencing with a bulldozer. On 03rd September 2019 I served Trans Wonderland Limited with a Stop Notice Letter to stop them from further demolishing the fence or interference on the piece of land.

6. Despite the Stop Notice Letter, Trans Wonderland Limited and its work personnel had continuously trespassed on the land with dump trucks, excavators and such other machineries and had:

(a) demolished the entire perimeter chain mes[h] fence erected on the land

(b) carried out some extensive earthworks on the land

(c) destroyed and uprooted all survey pegs delineating the boundaries of the portion of land;

(d) and unearthed tonnes of top soil on the half side of the land dug up about 4-5 meter’s trenches affecting or permanently altering the landscape and contour of my parcel of land.

Annexed hereto and marked with the letters “D1”, “D2”, “D3”, “D4”, “D5” and “D6” are selected images of the earthworks undertaken by the Defendants and their agents and servants.

  1. There is much controversy between Mr Puara and TWL as to the location of the fence which Mr Puara had constructed on the land in 2017 and who removed it. Mr Puara’s evidence is that his fence was built in 2017 along the perimeter of the boundary lines shown in Survey Plan Catalogue No. 49/3739 (Exhibit P14) and that it was TWL’s employees who removed his fence. Mr Fury denies this and contends that it was members of Kaevaga ILG removed Mr Puara’s fence. Mr Puara disputes the dates over-written on the satellite images of the land which are annexed to Mr Andagali’s affidavit filed in this proceeding on 12 December 2019 (Exhibit DA-1).
  2. Mr Fury’s contentions that TWL had every right to be on the land from 2017 onwards and to develop it in 2019 were, and are, completely unfounded and misconceived in view of the Court’s findings in its substantive decision on liability delivered on 25 October 2023. It will be recalled that the Court found that Kaevaga ILG had wrongfully attempted to cancel its contract for the sale of the land to Mr Puara. That wrongful endeavour occurred when Mr Nou and other members of his clan entered into negotiations with TWL for the sale not only of the land it had already sold to Mr Puara but also the sale of a much larger portion of adjoining customary land, those negotiations having resulted in the subsequent contract for sale between Kaevaga Clan members and TWL dated 20 June 2019.
  3. What is not in doubt for the purposes of assessment of damages is that Mr Puara had the land surveyed by a registered surveyor, Mr Ulai, on 14 January 2017, that Mr Ulai’s survey plan was registered by the Surveyor General on 21 September 2017 as survey plan Catalogue No. 49/3739C, that Mr Puara caused a very long fence to be constructed on the land at his expense during 2017 and that at some point well prior to 22 August 2019 the fence and boundary survey pegs were destroyed or removed from the land either by members of Kaevaga ILG or by employees or contractors of TWL.
  4. I find that the first and second of the reasons advanced for Mr Andagali and TWL in support of their objection to the quotations from Mr Ulai and ABC Ltd are, on the evidence of the parties and the findings on liability made by this Court on 25 October 2023, without substance. However, it is the third reason advanced by Mr Fury in his affidavit filed on 5 February 2024 for Mr Andagali and TWL’s challenge to the quotations from Mr Ulai and ABC Ltd that requires closer consideration.
  5. I agree with counsel for Mr Andagali and TWL that in the ordinary course of events Mr Puara should have produced in evidence at the assessment of damages hearing the source documents and receipts for: (1) the surveying work which would obviously have been invoiced by Montana Civil Constructions Ltd back in early 2017 when Mr Ulai was with that company and when the original surveying work was carried out, and (2) the cost of the fencing materials and labour charges for the construction of the 20,000 meters of fencing which Mr Puara installed on the land during 2017. Had those source documents and receipts been available, Mr Puara could have claimed them as special damages if particulars had been pleaded in his amended statement of claim or if those particulars had been supplied to the defendants prior to the hearing on assessment of damages. It need hardly be repeated that special damages are compensation for expenses actually incurred due to injury to property and represent reimbursement for specific expenses.
  6. However, Mr Puara has explained at para. 8 of his affidavit filed on 19 January 2024 (Exhibit P20) that he no longer has the source documents and receipts for the survey work and fencing that he paid for in 2017 because that documentation was not retained or was lost when he moved residence a number of times during the course of the last seven years. Mr Puara is instead seeking by way of general damages the costs reflected in the recent two quotations he has produced in evidence.
  7. What must be borne in mind in this assessment of damages is not what Mr Puara paid back in 2017 for the surveying work and fencing work that was done at that time but rather the cost of that which needs to presently be done to restore Mr Puara financially, and his land physically, to the situation which notionally would have prevailed had none of the defendants trespassed and interfered with Mr Puara’s right to peaceful ownership and occupation of the land after execution of his contract with Kaevaga ILG on 23 December 2016.
  8. It is clear from what Mr Ulai has outlined in his report which immediately precedes his quotation dated 2 November 2023 that the following matters need to be attended to from the perspective of Mr Puara’s compliance with legal survey requirements as a result of the combined damage caused to the land by the defendants so as to restore the status quo ante which should have prevailed for Mr Puara had that damage not occurred:

(1) clearing of boundary lines from corner to corner with 3-metre stakes constructed and flagged at each corner so that the boundary lines can be referenced by clear visual inspection;

(2) preparation of a new survey after the 4 corner monuments and the PNG94 coordination points for PSM 34061 and PSM 34602 have been reinstated;

(3) preparation of a separate detailed topographic survey to show new roads, drains, power lines, drainage and similar for the general area.

  1. I consider the quotation from Mr Ulai for the surveying work which his report says needs to now be done at an estimated cost of K86,875 (exclusive of GST) for preparation for the reinstatement survey and the separate topographic survey, including 3 days of field work by himself as a registered surveyor and deployment of staff to assist, is not unreasonable. In my opinion, Mr Ulai’s quotation is within bounds of a reasonable expectation, objectively held, as to what it will cost Mr Puara for provision of those necessary surveying services. The defendants have provided no evidence from other registered surveyors to suggest that Mr Ulai’s quotation, taken as a whole, is inordinately high or cannot be justified according to present day charges for surveying services.
  2. I therefore accept that Mr Ulai’s quotation for K86,875 net provides a reasonable yardstick as what should be allowed by way of the estimated overall base cost for the outstanding survey work that needs to be done as a component of Mr Puara’s claim for trespass and interference with the land. To this net amount of K86,875 I add an amount of 10% to cater for GST of K8,657.50, giving a gross allowable amount of K95,562,50 for the re-survey services required by Mr Puara, rounded off to K95,565, for which the defendants will be responsible.
  3. However, the ABC Ltd’s quotation dated 2 December 2023 is a very different matter when seen in the context of the ‘restitutio’ principle. There is one aspect of ABC Ltd’s quotation for K740,740 which causes the Court serious concern. ABC Ltd has furnished a sub-quote for K577,911.40 for “construction of perimeter chainmesh fence with 3.0M double gate including razor wire”.
  4. Mr Fury says in para. 17 of his latest affidavit (Exhibit DA-6) that Mr Puara wants to enrich himself by putting in a claim of more than K700,000. The main reason for Mr Fury’s allegation that Mr Puara is seeking to unjustly profit from this litigation seems to be because Mr Fury says in paras. 11 and 12 of his affidavit to the effect that Mr Puara did not erect a perimeter boundary fence on the land at all and that the fence that Mr Puara did install on the land was erected around a stockpile left by TWL as part of its development of the land. Mr Fury says that Mr Puara’s fence was constructed of steel pickets and barbed wire and that it was removed by the landowners, a clear reference to members of the Kaevaga Clan.
  5. Mr Fury refers in his latest affidavit to para. 2(b) of the affidavit of Mr Andagali filed on 20 December 2019[4] (Exhibit DA-2) where Mr Andagali states that Mr Puara erected his fence in or about October 2017 “while TWL was already occupying the land since 2015”. Mr Andagali has attached to his affidavit a series of photocopies of indistinct satellite photographs which purport to show that there was no visible fence which had been erected on the land from 2015 to September 2017. Mr Puara in his evidence has strenuously disputed the dates which have been overprinted on those photographs, or rather the dates which appear on the photocopies of those photographs.
  6. Mr Puara’s primary evidence regarding his fencing of the land is contained in para. 7 of his affidavit filed on 17 December 2019 (Exhibit P2).[5] Mr Puara says that he engaged Montana Civil Constructions PNG Ltd in early 2017 to survey the land and to conduct clearing of shrubs and bushes. He says that the survey plan itself cost K15,000, together with K25,000 for bulldozer hire to clear the land and K20,000 for perimeter fencing. Mr Puara says elsewhere in his evidence that it also cost him K50,000 for hire of labour to install the fencing. What is particularly significant about para. 7 of Mr Puara’s affidavit filed on 17 December 2019 is that he refers to a series of photocopies, clear photocopies of which are annexed to his affidavit and marked “RP06” to “RP11”. Mr Puara says these photographs depict the surveyor (Mr Ulai) in the process of surveying the land as well as photographs of the surveyor and a workman planting survey pegs on the land, photographs of a bulldozer Mr Puara had hired to conduct clearing and photographs of the fencing that Mr Puara he says he caused to be constructed on the perimeter of the land in early 2017.
  7. I observe that the Annexures “RP9”, “RP10” and “RP11” to Mr Puara’s affidavit filed on 17 December 2019 are photocopies which confirm to some extent what Mr Fury was stating in his affidavit material in that the photographs show that the fence which Mr Puara constructed on the land in 2017 consisted of steel stakes and barbed wire. The photographs show that the fencing in question was modest. It had only three strands of barbed wire strung between steel picket stakes. The fencing itself was not elaborate. It was to my mind intended to mark the boundary lines of the land, not to provide a solid barrier against entry onto the land.
  8. I therefore do not accept that Mr Puara is entitled to damages for the present-day replacement cost of fencing which he installed on the land in 2017 based on ABC Ltd’s sub-quote of K527,911.40. That sub-quote is not for the current cost of construction of a 3-strand barbed wire picket stake fence but for an expensive perimeter chain-mesh fence with razor wire and a 3-meter double gate.
  9. Mr Puara’s evidence is that back in early 2017 he originally paid a total of approximately K70,000 for perimeter fencing, His fencing was wrongfully removed by TWL or by members of the Kaevaga ILG some time prior to August 2019. I make no finding as to whether it was TWL or members of the Kaevaga ILG who actually removed Mr Puara’s fence, although I note that Mr Nou and other members of the Kaevaga ILG have never denied the assertions of Mr Andagali and Mr Fury in this regard. Irrespective of which of the defendants caused Mr Puara’s fence to be demolished or removed, Mr Puara is nevertheless entitled to be compensated for the current cost in 2024 of the materials and labour necessary for the replacement of his fence which comprised barbed wire strung in 3 strands between picket stakes. Mr Puara has not provided a quotation for the replacement cost of a fence of that description.
  10. Doing the best I can on the evidence available, I am prepared to allow for an inflationary factor of 8% per annum on the overall cost of the fencing, K70,000 according to Mr Puara, from 2017 to 2024, compounded over a period of seven years from date of original construction of the fence until now. I have selected a rate of 8% per annum to allow for inflation as that is the conventional rate of interest that is allowable on damages under Order 12 Rule 6(2) of the National Court Rules. On this basis, the amount to which Mr Puara is entitled by way of damages for the current cost to replace his fencing. wrongfully removed by one or more of the defendants prior to August 2019, comes to K119,965, which I round off to K120,000.
  11. As for the remainder of the items covered by ABC Ltd’s quotation, I am prepared to accept that the company’s sub-quote for K66,089, rounded off to K66,100, for removal of loose stock debris and disposal elsewhere is reasonable in the absence of any evidence to the contrary from the defendants. However, I am not satisfied with ABC Ltd’s sub-quote for K20,000 for “preliminaries and general items” or its further sub-quote for K59,400 for “provisional cost of miscellaneous works”, none of which works have been itemised or otherwise explained in ABC Ltd’s quotation or in Mr Puara’s latest affidavit evidence. I will therefore discount those two sub-quotes totaling K79,400 by 50% to arrive at a more acceptable amount of K39,700 for required general and miscellaneous works, which in the Court’s discretion I round off to K40,000.
  12. The total of the reduced amount allowed by the Court for the work and materials covered by ABC Ltd’s quotation for fencing and remediation of the land, including GST which will be payable by Mr Puara, is K248,710 comprising:

Fencing: K 120,000

Removal of loose stock debris: K 66,100

General and miscellaneous works: K 40,000

Sub-total: K 226,100

Allowance for GST (10%): K 22,610

Total for fencing & remediation of land: K 248,710

  1. The general damages assessed by the Court for the defendants’ trespass and interference with the land is therefore the sum of K344,275, being the aggregate of allowance for the re-survey costs of K95,565 and allowance of K248,710 for the costs of replacement fencing and remediation of the land.

Damages for mental anguish

  1. Damages for distress, mental anguish, frustration, vexation, injured feelings, hardship, general disappointment and other similar sequelae suffered by a plaintiff because of actionable wrongful conduct by a defendant are part of general damages: Hodson v Independent State of Papua New Guinea [1985] PNGLR 303 (Los J); Harding v Teperoi Timbers Pty Ltd [1988] PNGLR 128 (Kidu CJ).
  2. In Aigilo v Morauta, Prime Minister (No. 2) (2001) N2103, a case which concerned the wrongful termination of an employment contract, Kandakasi J (as he then was) stated at p.20:

It is the duty of this Court to assess and award such damages the Court feels would nearly as possible compensate the plaintiff. The plaintiff is claiming the sum of K20,000. The defendants on the other hand submit that the plaintiff has not suffered any distress or humiliation and frustration despite the evidence and submit that no damages should awarded. I consider the distress, humiliation and frustration the plaintiff was forced into by the defendants and impacted upon the plaintiff’s health were comparatively worse than those suffered by the plaintiffs in the earlier cases. I find the claim of K20,000 neither unreasonable nor inordinately high. Accordingly, I accept the plaintiff’s claim and award that amount in damages for distress, humiliation and frustration.

  1. In Central Bank of Papa New Guinea v Tugiau (2009) SC 1013 (Kirriwom, Kandakasi & Batari, JJ) the Supreme Court said this at p. 16:

The law has now developed to a point where the Courts have been awarding damages for such things as stress, anxiety and defamation of character or loss of reputation. This can only happen in cases where a plaintiff first properly pleads the loss or damage with the relevant particulars and then establishes it by appropriate evidence at trial. The evidence must establish actual damages being suffered, for example serious negative impact on one’s health or not being able to secure alternative employment because of any unlawful and baseless attacks and injury to one’s reputation or character.

  1. However, the rigour of the requirement for the pleading of comprehensive particulars and production of corroborative medical evidence outlined in Tugiau’s case for this category of general damages has been tempered somewhat by subsequent decisions of the Supreme Court. There has been a clear trend by the Courts to award modest damages for distress and mental anguish even where corroborative medical evidence is lacking but where the circumstances speak for themselves.
  2. In Wereh v Independent State of Papua New Guinea (2023) SC2487 (Collier, Kangwia & Lindsay, JJ) the Supreme Court said this at para. 34:

In relation to a claim for stress and anxiety not otherwise demonstrated by evidence the authorities indicate that an amount of nominal damages for stress and anxiety is in the region of K5,000: see for example Walup v National Housing Corporation (2019) N8065 (K5,000) and Madring v Santi Forestry (PNG) Ltd (2015) N5908 (K4,000). The appellants submitted that the primary Judge should have made no award for stress and anxiety at all, or should have made an award of nominal damages of less than K5,000. In our view the amount of K5,000 for stress and anxiety is appropriate to the present case.

  1. In the present case Mr Puara has relevantly pleaded in para. 16 of his amended statement of claim:
    1. The Plaintiff would not have suffered loss of his land, and would not have incurred legal costs of this proceeding and in addition would not have suffered emotional and mental anguish but for the conduct of the First and Second Defendants enabled by the Third and Fourth Defendants.
  2. Counsel for Mr Andagali and TWL, supported by counsel for Mr Nou and Kaevaga ILG, has submitted that because Mr Puara has not produced in evidence any medical reports to support his claim for damages for mental anguish, no award under this head of damages should be allowed.
  3. I disagree. The many affidavits of Mr Puara variously filed in this proceeding all depose to circumstances which would have caused Mr Puara extreme frustration and mental anguish as a result of the conduct of Mr Nou and Kaevaga ILG having so wrongfully sold Mr Puara’s land to TWL and for Mr Puara to have then had to embark on this litigation in order to obtain redress after the refusal by all defendants to accept Mr Puara’s repeated attempts to pay the balance of the purchase monies of K150,000 which Mr Puara owed under his contract with Kaevaga ILG.
  4. As to Mr Puara’s circumstances in this regard, I refer in to the affidavits of Mr Puara filed in this proceeding on 19 January 2019 (Exhibit P2), 23 January 2020 (Exhibit P3), 9 October 2020 (Exhibit P5), 15 October 2020 (Exhibit P9), 9 March 2022 (Exhibit P11) and 19 January 2024 (Exhibit P20), all of which depose to matters which would inevitably have caused Mr Puara to unnecessarily suffer stress and frustration and which would have collectively impacted on Mr Puara’s health causing him mental anguish.
  5. By way of comparable awards made in the last 15 years, I have considered those made in the last 15 years in Angoman v Independent Public Business Corporation of Papua New Guinea (2011) N4363 (K5,000); Likui Trading Ltd v Selma (2011) N4530 (K15,000); Samot v Yame (2020) N8246 (K6,000); Sorowa v Taison (2021) N9299 (K6,000); Vali v Motor Vehicles Insurance Ltd (2022) N9661 (K5,000) and Wereh v Independent State of Papua New Guinea (supra) (K5,000).
  6. Here Mr Puara claims K5,000 for the mental anguish he suffered. I consider this to an appropriate amount to be awarded under this head of damages. If medical evidence had been adduced for Mr Puara which may have warranted a higher award, that would have been considered by this Court. But doing the best that the Court can, guided by comparable verdicts under this head of damages in other cases and the circumstances of Mr Puara as proven, I consider that an award of K5,000 for Mr Puara’s mental anguish in this instance is warranted. Mr Puara is accordingly awarded general damages of K5,000 for mental anguish.

SUMMARY OF QUANTUM OF GENERAL DAMAGES


  1. The final amount of general damages awarded to Mr Puara as a result of this assessment is K349,275 computed as follows:

General damages for trespass and interference

with the land: K 344,275

General damages for mental anguish: K 5,000

Total of general damages: K 349,275

  1. Judgment will accordingly be entered against all defendants with joint and several liability for general damages assessed at K349,275.

INTEREST ON DAMAGES

  1. A plaintiff is, at the discretion of the Court, entitled to an award of interest on damages.
  2. Section s.4(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 states:
    1. Subject to Section 5, in proceedings in a court for the recovery of a debt or damages, the court may order a rate as it thinks proper to be applied to the sum for which judgment is given interest, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause action arose and the date of the judgment.
  3. Section 5 of the Act prohibits the awarding of interest on interest. What this means is that when there is an interest component which is included in a judgment, post-judgment accrual of interest under s.6 of the Act does not include allowance for further interest on the pre-judgment interest component. Post-judgment interest will however accrue from time to time on the unpaid amount of the damages component of a judgment debt.
  4. Section 4(1) of the Act confers a four-fold discretion on the Court: (1) whether to grant at all; (2) to fix the rate; (3) to grant interest on the whole or part of the damages for which judgment is given; and (4) to fix the period for which interest will run: see Cheong Supermarket Pty Ltd v Muro [1987] PNGLR 24 (Bredmeyer J): Nambawan Super Ltd v Petra Management Ltd (2017) N6748 (Cannings J).
  5. I have already stated in connection with allowance for inflation in respect of assessment of the current cost of replacement of Mr Puara’s fencing constructed on the land 7 years ago that when it comes to interest, the conventional rate of interest applied by the Courts to damages is 8% per annum, unless a Court in its discretion otherwise orders: Order 12 Rule 6(2) of the National Court Rules.
  6. Mr Puara by his amended statement of claim seeks interest on damages pursuant to statute, which is to say pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015, in respect of which the conventional rate is 8% per annum. No submissions were made by counsel for any of the defendants that if interest on damages were to be awarded, interest should be at a rate other than 8% per annum.
  7. I consider that the circumstances of this case are such that an award of interest on the general damages to be awarded to the defendant is warranted and that a fair and proper rate of interest to be applied to those damages is 8% per annum, notwithstanding the many fluctuations in commercial banking rates which have occurred since August 2019, which is when the damage wrought to Mr Puara’s land by TWL’s partial development of it, enabled by Mr Nou and Kaevaga ILG, and the removal of Mr Puara’s fencing was first observed by Mr Puara to have occurred. .
  8. As to when interest at 8% per annum on general damages should commence, I consider that the date on which Mr Puara filed this proceeding WS No. 1402 of 2019, namely 31 October 2019. is the most appropriate date from which interest should run, this being the date on which the defendant was compelled to commence this litigation after TWL refused to comply with Mr Puara’s “stop work” notice dated 3 September 2019.[6]
  9. Once a commencement date for interest on damages has been determined by the Court, the end date for interest to run is usually the date on which judgment on damages is delivered. The end date for computation of interest will therefore be today, 26 April 2024, a total of 1,640 days, including today’s end date.
  10. Interest on the defendant’s general damages of K349,275 is therefore the sum of K125,548 calculated to the nearest whole number. It is computed by applying the formula: D x IR x (N/325) = I, where D is the principal amount of the damages, IR is the applicable percentage rate of interest per year, N is the number of days for which interest is calculated expressed as a percentage of years and I is the amount of interest.

K349,275 x 8% x (1,640/365 days) = K125,548

  1. Post-judgment interest will, pursuant to the discretion of the Court allowed by s.6(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 and Order 12 Rule 6(1) of the National Court Rules, be payable by the plaintiff at the rate of 8% per annum on such of the judgment amount of general damages assessed at K349,275 as remains from time to time unpaid.

COSTS

  1. The general rule is that costs follow the event, which means that the successful party is awarded a contribution towards its legal costs paid for by the losing party on a party/party basis on the scale set out in Table 1 of Schedule 2 of the National Court Rules. However, an award of costs is always within the discretion of the Court. As the scale of party/party costs has not been revised since the National Court Rules came into operation in 1983 it is, in my view, way out of step with fees presently charged by lawyers to their clients. The Court may therefore, depending on the circumstances of the case, award costs to a successful litigant on a solicitor/client basis (also known as costs on a lawyer/client basis) or on an indemnity basis.
  2. An award of solicitor/client costs is compensatory. An award of costs on an indemnity basis is punitive. As to the distinction between solicitor/client costs and indemnity costs, see Opi v Telikom PNG Limited (2020) N8290 (Shepherd J).
  3. There are many circumstances when an award of solicitor/client costs is warranted, such as where there is no defence on the merits, where the other party failed to explore and exhaust all prospects of having the matter settled without court action or delay, where there has been defiance by the other party in complying with court orders or where the successful party has generally had to incur unnecessary expenses through unmeritorious litigation: PNG Ports Corporation Ltd v Canopus No. 71 Ltd (2010) N4288 (Kandakasi J).
  4. I am satisfied that in the present case this is a classic case where Mr Puara has had to unnecessarily incur very substantial legal costs in seeking relief from this Court. The defendants will therefore be ordered, jointly and severally, to pay Mr Puara’s costs of and incidental to the whole of this proceeding on a solicitor/client basis, such costs to be taxed if not agreed.

CONCLUDING REMARKS

  1. I refer to paras. 28 to 110[7] of the Court’s decision on liability delivered on 23 October 2023 (N10569) which expressly relate to the Court’s finding, among others, that it was Mr Nou and Kaevaga ILG who intentionally breached their contract for sale dated 23 December 2016 with Mr Puara by wrongfully refusing to accept Mr Puara’s tender of his payment of K150,000 which would otherwise have enabled Mr Puara to complete the payment of what was owed by him to Kaevaga ILG under that contract.
  2. Mr Puara in his evidence at the trial on liability accepted that he still owed this remaining amount of K150,000 to Kaevaga ILG. The amount of K150,000 will therefore be catered for in today’s judgment as a set-off against Mr Nou and Kaevaga ILG’s liability to pay Mr Puara’s taxable solicitor/client costs.
  3. I also refer in particular to paras. 101 of 104 of the Court’s decision on liability. Mr Andagali was aware at all material times, as managing director of TWL, that Kaevaga ILG had sold the subject land to Mr Puara. However Mr Andagali chose to believe what was told to him by members of Kaevaga ILG regarding their concocted story that Mr Puara had placed a fraudulent consent document before the Land Titles Commission to obtain the Commission’s order for conversion of title to registered freehold title under the Land Registration Act. Mr Andagali believed this untrue story at his own peril. This Court found as a fact Mr Nou and other members of Kaevaga ILG had consented in writing to the Land Titles Commission granting its conversion order under the Land (Tenure Conversion) Act, and that this in turn facilitated the Registrar of Titles issuance of Certificate of Title Volume 37 Folio 248 to Mr Puara. No fraud had been committed by Mr Puara at all.
  4. In the opinion of the Court, Mr Andagali is an astute businessman. This is because Mr Andagali contractually protected TWL in the event that his belief in what he was told by Mr Nou and others from Kaevaga Clan in connection with the events which took place at the Land Titles Commission hearing turned out to be untrue and/or if the legal effect of the purported cancellation of Mr Puara’s registered survey Catalogue No. 49/3739 similarly turned out not to be correct. Which is exactly what has occurred. Mr Andagali’s protection of TWL in this regard is evidenced by the steps he took to ensure that there was an indemnity clause in TWL’s contract with members of the Kaevaga Clan dated 20 June 2019. Mr Nou was one of those vendors. Clause 4 in the Special Conditions set out in the Third Schedule of TWL’s contract states:[8]
    1. Kaevaga Clan members, executives individually and collectively hereby indemnify TWL against any and all legal challenges by ... interested parties, and individuals in relation [to[ the 20.41 hectares traditionally called Bega Daha and Sasiva land, CAT. NO. 49/3917, PORTION 4251C.
  5. Clause 11 of the Special Conditions in the Third Schedule on page 15 of TWL’s contract defines the vendor, the Kaevaga Clan, as meaning “its clan members, elders, and affiliated customary relatives, having an incorporated land group, described as Kaevaga Land Group Incorporated No. 307 and 496”.
  6. Mr Puara’s land, which is Portion 3959C described in registered survey plan Catalogue 49/3739C, is land that Mr Andagali already knew long before TWL entered into its contract with the Kaevaga Clan on 20 June 2019 had previously been sold by Kaevaga ILG to Mr Puara on 23 December 2016 but which sale Mr Andagali had been led to believe by Mr Nou and others from Kaevaga ILG could or would be cancelled. Mr Puara’s Portion 3959C is land that falls squarely within the much larger Portion 4251C purchased by TWL under its contract with members of the Kaevaga Clan.
  7. It therefore transpires that TWL has a contractual indemnity, binding on those members of the Kaevaga Clan on behalf of Kaevaga ILG who executed and/or consented to the sale of Portion 4251C, which land included Mr Puara’s Portion 3959C. That indemnity clearly extends to offset any or all damages and costs awarded against TWL in this proceeding WS No. 1402 of 2019 against Mr Nou and Kaevaga ILG’s joint and several liability under today’s judgment. TWL can presumably do this by negotiating a deduction from what it may still owe to members of the Kaevaga ILG under its contract for the purchase of the balance of the land in Portion 4251C with those members of the Kaevaga ILG, the deduction to be equivalent to TWL’s own joint and several liability to pay today’s judgment in Mr Puara’s favour. That is a matter for TWL to pursue with Mr Nou and Kaevaga ILG, the third and fourth defendants in this proceeding.
  8. Next, it is clear from all of the foregoing, including this Court’s decision on liability delivered on 23 October 2023, that Mr Puara is entitled to the permanent injunction sought in his prayer for relief pleaded in para. 18(c) of his amended statement of claim.
  9. Finally, it is also clear from the Court’s decision on liability and today’s decision on assessment of damages that Mr Nou and Kaevaga Ltd’s cross-claim against Mr Puara is without foundation, misconceived and must be dismissed.

JUDGMENT

  1. The terms of the formal judgment consequent upon assessment of the defendants’ damages by way of final determination of their liability and all remaining relief sought by Mr Puara as plaintiff in this proceeding are as follows:

(1) Judgment is entered for the Plaintiff against all Defendants, each Defendant having joint and several liability, in the sum of K 474,823 comprising:

(a) general damages for trespass and interference with the land: K 344.275

(b) general damages for mental anguish: K 5,000

K 349,275

(c) Interest on above damages at 8% per annum

from 31 October 2019 to 26 April 2024: K 125,548

Total of damages and pre-judgment interest: K 474,823


(2) Post-judgment interest on the total of general damages of K349,275 shall accrue at the rate of 8% per annum on so much of the above assessed general damages of K349,275 as remains from time to time unpaid.

(3) A declaration is made that the plaintiff is the lawful registered proprietor of all that land comprising an area of 2.03 hectares known as Portion 3959C, Milinch of Granville, Fourmil of Moresby, National Capital District being all the land described in Certificate of Title Volume 37 Folio 248.

(4) All interim injunctions previously granted in this proceeding are hereby discharged but are replaced with immediate effect with a permanent injunction whereby each of the Defendants, including all members of the Fourth Defendant, and all persons acting or claiming to be acting on behalf of or associated with the Defendants or any of them, including all employees, contractors and agents of any of the Defendants, are restrained from:

(a) encroaching or entering upon any part of the Plaintiff’s said land; and/or

(b) harassing the Plaintiff or interfering in any way with the Plaintiff’s peaceful use and ownership of the Plaintiff’s said land.

(5) The cross-claim of the Third and Fourth Defendants as First and Second Cross-Claimants against the First, Second and Third Cross-Defendants is entirely dismissed.

(6) The First, Second, Third and Fourth Defendants are jointly and severally liable to pay the Plaintiff’s costs of and incidental to the whole of this proceeding on a solicitor/client basis, such costs to be taxed if not agreed.

(7) The balance of the Plaintiff’s payment of K150,000 owed by him to the Fourth Defendant to complete his obligations under the contract for sale of the said land dated 23 December 2016 entered into by the Plaintiff as purchaser and the Fourth Defendant represented by the Third Defendant as vendor shall be set-off against the Third and Fourth Defendant’s taxable costs payable by them to the Plaintiff under term 6 of this Judgment.

(8) The time for entry of this judgment is abridged to the time of signing by the Court which shall take place forthwith.


Judgment accordingly
____________________________________________________________
Nemo Yalo Lawyers: Lawyers for the Plaintiff/First Cross-Defendant
Niuage Lawyers: Lawyers for the First Defendant and Second Defendant
Parker Legal: Lawyers for the Third and Fourth Defendants/First and Second Cross-Claimants

[1] Court document no. 93.
[2] Court document no. 41,
[3] Several obvious typographical and grammatical errors in Mr Ulai’s report have been editorially corrected.
[4] Court document no. 22.
[5] Court document no. 16.
[6] Annexure “C’ to Mr Puara’s affidavit filed on 26 November 2019 (Exhibit P1), Court document no. 3.
[7] There is an editorial error in para.108 of N10569. The word ”not” in the second line should have been deleted.
[8] See p.14 of TWL’s Contract for Sale with Kaevaga Clan , Annexure “A” to affidavit of Mr Andagali filed on 12 December 2019 (Exhibit DA2), Court document no. 12.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2024/106.html