Kasiger Trading Ltd v Madang Provincial Government [2024] PGNC 67; N10716 (12 April 2024)

N10716

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 512 OF 2020

BETWEEN
KASIGER TRADING LTD
Plaintiff

-V-
MADANG PROVINCIAL GOVERNMENT
Defendant

Madang: Narokobi, J
2023: 22nd June
2024: 12th April

DAMAGES – Assessment of Damages - Principles on Assessment of Damages – Debt Claim as Opposed to Damages – General Damages – Pleadings and Evidene Required – Award for Debt Claim, General Damages, Interests and Costs Made
The plaintiff has filed proceeding against the defendant for non-payment of hire car services. The services were rendered from 7 May to 5 July 2019. Six separate lease agreement were signed between the provincial administrator of the defendant and the plaintiff, meaning that the plaintiff’s six vehicles were supplied to the defendant. The plaintiff claims the invoiced amounts totalling K228,800, general damages and costs.

Held:

1. The plaintiff’s claim for K228,000.00 for unpaid invoices has been characterised in cases such as Buka v Aloi (2022) N9431 as a claim for debt as distinct to a claim for damages. The evidence suggests that this is such a claim being monies outstanding for services rendered. The claim for K228,000 is therefore granted.
   
2. A claim for general damages for breach of contract is a proper claim to make (Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485). General damages are awarded for inconvenience occasioned by the breach of contract.
   
3. The evidence does not provide any evidence of loss and inconvenience suffered. But there is no doubt that the plaintiff has gone through a lot of trouble following up on the unpaid invoices, resulting in it filing proceedings. This has been going on since 2019. To deny the claim would not be fair. But to award everything that the plaintiff asks, despite the lack of supporting evidence, would also not be appropriate. So instead of awarding the asking price of K80,000, the claim is discounted by 50% and K40,000 awarded for general damages.
   
4. The plaintiff is as a result entitled to K268,000.00, that is K228,000.00 for unpaid invoices and K40,000,00 for general damages for breach of contract.
   
5. Orders also made for interest on the judgment sum and costs at a fixed sum.
   

Cases Cited:
Binnen Construction Ltd v Malai (2014) N5775
Buka v Aloi (2022) N9431
KW Timber Ltd v Thumbtien (2014) N5648
Leeway East Enterprise Ltd v Danaben (2013) N4951
Mel v Pakalia (2005) SC790
Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485

Counsel:

Mr B Wak, for the Plaintiff
No appearance for the Defendant

DECISION

12th April 2024

1. NAROKOBI J: The plaintiff has filed proceeding against the defendant for non-payment of hire car services. The services were rendered from 7 May to 5 July 2019. Six separate lease agreement were signed between the provincial administrator of the defendant and the plaintiff, meaning that six vehicles of the plaintiff were supplied to the defendant. The plaintiff claims the invoiced amounts totalling K228,000, general damages and costs.
   
2. The defendant has only filed a notice of intention to defend, but has not filed a defence. As a result the plaintiff applied for default judgment and was granted default judgment on 23 March 2023. The matter returns now for assessment of damages. The plaintiff has filed an affidavit through its Operations Manager Atis Deme, to support its claim. The affidavit shows that plaintiff’s certificate of incorporation and the various invoices that it has rendered to the defendant. All the invoices total K228,000.00.
   
3. The plaintiff in its submission also claims K80,000.00 in general damages relying on the case of Binnen Construction Ltd v Malai (2014) N5775.
   
4. The principles to apply when deciding on the issue of damages especially the evidentiary aspect is stated in the often-cited case of Mel v Pakalia (2005) SC790:
   
   • 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.)
     
5. These principles apply to the evidentiary requirement to prove damages. I am satisfied that the plaintiff has provided sufficient, clear and credible evidence to prove its claim, although it would have been preferrable to have the claim corroborated. I do not see anything unusual about the claim. There is also no contest from the defendant on the evidence relied by the plaintiff despite filing a notice of intention to defend.
   
6. The next question is the particular heads of damages being relied on. The first one is the plaintiff’s claim of K228,000.00 for unpaid invoices. Such a claim has been characterised by Justice Cannings in cases such as Buka v Aloi (2022) N9431 as a claim for debt as distinct to a claim for damages. The evidence suggests that this is such a claim being monies outstanding for services rendered from the various invoices annexed to the plaintiff’s operations manager’s affidavit tendered as evidence at trial. I will therefore grant the claim for K228,000.00.
   
7. The second claim is for general damages for breach of contract. The plaintiff claims K80,000.00. I accept that a claim for general damages for breach of contract is a proper claim to make, and I refer to the case of Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485 to support my view. General damages are awarded for inconvenience occasioned by the breach of contract. The plaintiff relied on the case of Binnen Construction Ltd v Malai (2014) N5775, Leeway East Enterprise Ltd v Danaben (2013) N4951, and KW Timber Ltd v Thumbtien (2014) N5648. These authorities say that despite the lack of evidence, if a loss has been proven the plaintiff should be entitled to some award of money. I take it that the reason why the plaintiff relied on these case authorities is because it has not provided any evidence to support the claim for general damages although it has been pleaded.
   
8. I have considered the affidavit relied by the plaintiff, and it does not provide any evidence of loss and inconvenience suffered. But there is no doubt that the plaintiff has gone through a lot of trouble following up on the unpaid invoices, resulting in it filing proceedings. This has been going on since 2019. To deny the claim would not be fair. But to award everything that the plaintiff asks, despite the lack of supporting evidence, would also not be appropriate. So instead of K80,000, I will discount the claim by 50% and award K40,000 for general damages as the middle ground.
   
9. The plaintiff did plead that he should be entitled to business losses, but has abandoned this claim for general damages. I have made an award for general damages above.
   
10. This would mean that the total damages that the plaintiff is entitled to is K268,000.00, that is K228,000.00 for unpaid invoices and K40,000,00 for general damages.
    
11. Since the plaintiff has been denied the use of the money by the non-payment of the invoices, it is appropriate to award interest. I award interest at 8% pursuant to s 4 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 from the date of filing of the writ to the date of judgment.
    
12. The plaintiff asks for costs in the fixed sum of K30,000.00. The reason why this court awards fixed sum for costs is because of the infrequent taxation that occurs in Madang. Having considered that the defendant has not defended the claim, and this is not a complex case, I will award costs in the fixed sum of K20,000.00.
    
13. Having said all, I have discussed above, I now make the following orders in respect of this matter:
    
    1. The defendant pays the plaintiff damages in the sum of K268,000.00.
    2. The defendant pays interest on the judgment sum of K268,000.00 at 8% from the date of filing of the writ to the date of judgment.
    3. The defendant pays the plaintiff’s costs in the fixed sum of K20,000.00.
    4. The matter is considered determined, and the file is closed.
    5. Time is abridged.
       

Judgment and orders accordingly.
________________________________________________________________
Bradley and Company Lawyers: Lawyers for the Plaintiff