Kevin v Wobar [2025] PGNC 277; N11349 (2 July 2025)

N11349

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 463 OF 2021

BETWEEN

CLETUS KEVIN & LILA WARIKE AS OWNER OF PAROGU TRANSPORT SERVICES
Plaintiffs
AND
RICKY WOBAR AS AMBUNTI/DREKIKIER DISTRICT ADMINISTRATOR
First Defendant

AMBUNTI/DREKIKIER DISTRICT DEVELOPMENT AUTHORITY
Second Defendant

INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WEWAK: COLLIER J
2 JULY 2025

DAMAGES – assessment of damages – default judgment as to liability – where unpaid debt for hire vehicle – principles for assessment of damages – where certain heads of damages not substantiated by evidence – award of damages for liquidated claim

The plaintiffs are joint owners of Parogu Transport Service. The first defendant is the CEO of the second defendant. The first defendant engaged the plaintiffs to hire a vehicle to implement his official roles and responsibilities. The plaintiffs entered into a written agreement with the first and second defendants for the hire of a vehicle at a rate of K900.00 a day. The first defendant failed to pay all invoices issued by the plaintiff.

The plaintiffs filed a notice of motion on 12 October 2023 which sought default judgment be entered against the defendants for a failure to file a notice of intention to defend and defence. On 19 October 2023, default judgment was entered against the first and second defendants. By those orders, the parties were directed to file affidavit evidence in relation to the assessment of damages. Both parties failed to file any such evidence.

Held
Damages for liquidated claim awarded.

Cases cited
Wasonang v Meaka [2025] N11316
Seong Guan Ng v Bow Ah Meng [2025] N11170
Mel v Pakalia [2005] SC790

Counsel
Mr A Kana, town agent for the plaintiffs
No appearance, for the first and second defendants
Mr B Semiat, for the third defendant

1. COLLIER J: On 16 October 2023, the National Court in these proceedings ordered as follows:
   1. Default Judgment be entered against the First and Second Defendants.
   2. The Notice of Motion for Default Judgment to be entered against the Third Defendant is refused.
   3. Costs of the Plaintiff’s application shall be paid by the First and Second Defendants pursuant to Table 2 of Schedule 2 of the National Court rules.
   4. This proceeding is adjourned to Monday 19^th February 2024 at 9.30am for listing or further directions.
2. Subsequently, the Court made the following orders on 8 February 2024:
   1. This proceeding is adjourned to Tuesday 18 June 2024 at 9.30am for confirmation of a trial date or for further directions hearing.
   2. In the event, that the Defendants are served with minutes of the order granting default judgment and the default judgment together with all affidavits in support of the assessment of damages before May 2024, each defendants shall file and serve its affidavits of the trial on assessment of damages if it wishes to be heard at that trial within 14 days of being served with the minutes of the default judgment and the plaintiffs affidavit.
   3. On the expiry of the period in Order No. 2, the plaintiff has 7 days to file and serve any affidavits in reply.
   4. Subject to compliance with Orders No 2. and the trial on assessment of damage is tentatively fixed for a half a day on Thursday, 20 June 2024 commencing at 9.30am.
   5. The plaintiff shall file and serve a minute of these orders on each defendant forthwith.
3. The endorsements on the National Court file indicate that, despite repeated listings of this matter after 8 February 2024 for directions to determine a trial date (in particular, I note such directions hearings on 15 April 2024, 20 June 2024, 18 September 2024, 19 September 2024 and 22 October 2024) the proceedings were repeatedly adjourned. A usual factor in the repeated adjournments was the failure of the defendants to appear at directions hearings.
4. Somewhat ironically, when the matter came before me on 30 June 2025 the plaintiffs’ lawyers appeared only by a Wewak town agent who had very limited instructions other than to, again, seek an adjournment in circumstances where the plaintiffs’ lawyers were apparently unable to appear in Wewak during that week. The State appeared, although I note that no judgment had been entered against the State. Unsurprisingly, given the history of the proceedings, no appearance was made by either the first or second defendants.
5. In the circumstances, I was not prepared to agree to yet another adjournment of a matter, where liability had been determined, and the only issue remaining was the assessment of damages. Accordingly, I informed Mr Kana, who appeared for the plaintiff as town agent, that I would assess damages on the basis of such papers as were on the file, and made an order to that effect.

PLEADINGS

6. Noting that the State was not the subject of the default judgment entered against the first and second defendants on 16 October 2023, it is helpful to consider the pleadings on the Court file. In particular, in their Amended Writ of Summons and Amended Statement of Claim filed on 9 May 2022 the plaintiffs relevantly pleaded as follows:
   1. The Plaintiffs are join [sic] owners of the business Parogu Transport Service duly registered business under the Business Name Act 1963 at the Investment Promotion Authority.
   2. The First Defendant is the CEO of all LLGs in Ambunti/Drekikier District and is responsible to administer all services in Ambunti/Drekikier District under the Organic Law on Provincial Governments and Local Level Governments and can sue and be sued.
   3. The Second Defendant is an Authority to which the First Defendant is the CEO established under Section 33A of the Organic Law on Provincial Governments and Local Level Governments and under Section 4 of the District Development Authority Act of 2014 is recognised as a corporate boy with perpetual succession, to have a seal, may acquire, hold and dispose of real and personal property and may sue and be sued in its corporate name.
   4. ...
   5. The First Defendant as a public servant under Section 22 of the District Development Authority Act of 2014 is recognized as the Chief Executive Officer (CEO) of the Secon Defendant and under Section 22 (3)(4) is responsible for implementing the policy and decision of the Second Defendant. Moreover, the First Defendant has the day to day control and supervision of all staff of the Second Defendant including delegation of Second Defendant’s function.
   6. The Second Defendant do not have any vehicle for the First Defendant to implement its official duties and the First Defendant with his authority as the CEO reached out to the Plaintiffs to hire their vehicle described as Toyota Ten Seater Land Cruiser Registration No: 116 to implement his official roles and responsibilities.
   7. A written agreement was entered by the First and Second Defendants with the Plaintiff on the 19^th of July, 2019 to which they kept it with them.

Particulars of the Written Agreement

1. Vehicle Toyota Land Cruiser 4x4 Station Wagon is out on dry hire for K900.00 per day.
2. Renter agreed to pay for all fuel cost while on hire in possession of the vehicle.
3. Vehicle must always be clean and in sound mechanical condition prior to its release to the renter.
4. Vehicle while out in hire possession of the renter to ensure NO damage occurs.
5. I understood the National Government Financial Procurement process regarding hire payment of the vehicle.
6. Driver of the vehicle must have a current driving license before driving the vehicle.
7. Accident involving the vehicle must be reported to the nearest Police Station and reports completed within 24 hours.
8. All Traffic Violation is the responsibility of the Renter and must be report to the Lessor.
8. The First Defendant took possession of the vehicle on the said date to implement his official duty for the Second and Third Defendants. He returned the vehicle on the 20^th of July, 2020 by leaving the vehicle at Kreer Heights Administrative car park without any explanation to the Plaintiff.
9. Twelve (12) invoices were issued that accrued to a total of K324,000.00. At first, the First Defendant only paid five (5) invoices and left with the balance of K216,000.00 yet to be paid from the remaining invoices.
10. The Plaintiff followed up and served the Debt Notice on the First Defendant to which another payment of K54,000.00 was made leaving the balance of K162,000.00 outstanding and remained unpaid to date.
11. The Plaintiffs suffered stress caused by constant following up of non-payments of vehicle outstanding rentals. Further due to depreciating value of their vehicle as it was used by the First Defendant in remote and rough terrains of Ambunti Drekikier District, the nonpayment of outstanding payments has made it difficult for service of the fleet thereby decreased the cash flow.
12. Therefore the Plaintiff Claims
    1. Liquidated claim of K162,000.00 for the balance owed by the Defendants.
    2. Damages and loss of business.
    100. Interest at 8% per annum pursuant to Section 1 of the Judicial Proceedings (Interest of Debts and Damages) Act 1962 Chapter 52.

CONSIDERATION

7. As I have already noted, liability of the first and second defendants for breach of contract was established following the entry of default judgment against them. Insofar as I am aware, no appeal has been made against those default judgment orders.
8. In Mel v Pakalia [2005] SC790, the Supreme Court explained the following principles as applicable in respect of assessment of damages following default judgment:
   • 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.)
9. For a recent application of these principles, see the judgment of Dowa J in Wasonang v Meaka [2025] N11316 at [27].
10. Review of the Court file in these proceedings reveals that the evidence before the Court can only be described as minimal. I note the plaintiffs pleaded that the relevant contract of hire of the vehicle was kept by the first and second defendant, and at first blush it seems somewhat strange that a copy of the agreement was neither kept by the plaintiffs, nor put into evidence in the present proceedings. However, this pleading is supported by the affidavit of Mr Cletus Kevin, one of the plaintiffs, sworn 16 October 2023, in which he relevantly deposes:
    3. On the 19^th of July 2019 a written agreement was entered between me and the First and Second Defendants. The First Defendant kept the Original Executed Agreement with him.
    4. I was unable to get the written copy of the said agreement after the execution because the First Defendant left for Ambunti Station at that time immediately to attend his urgent office duties however we drafted the said agreement and enclosed the unsigned copy of the said agreement which the terms were same as the one signed.
11. Annexure A to Mr Kevin’s affidavit sets out nine terms of the rental agreement for the plaintiffs’ vehicle. Those terms of agreement are identical to the particulars of the written agreement set out in para 7 of the Amended Statement of Claim, subject to a different para 5 in the terms of the rental agreement annexed to Mr Kevin’s affidavit which reads:
    5. Vehicle incurring damage while on hire additional cost will apply to meet its damage.
12. This variation between the terms as pleaded and the terms as described in Mr Kevin’s affidavit is, in my view, immaterial to the present task before the Court.
13. The scanty nature of the evidence is further highlighted by the lack of evidence on the part of the plaintiffs relevant to the claimed damage following the breach of contract by the first and second defendants, such as their alleged loss of business. I note however that the daily hire of the vehicle was the subject of Mr Kevin’s evidence. Nonetheless, I also note that the plaintiffs have had ample opportunity since the orders for default judgment were made on 16 October 2023 to file evidence in support of the relief they claim – indeed Order 5 of the Orders of 16 October 2023 required the plaintiffs to file and serve all affidavits on which they intended to rely for the assessment of damages. It is unclear why the plaintiffs have not availed themselves of that opportunity.
14. Plainly, the first and second defendants have filed nothing in the present proceedings, notwithstanding that the material on the Court file (in particular the affidavit of Mr Livai Kuaken, the lawyer for the plaintiffs, sworn 10 October 2023) evidencing the efforts made by the plaintiffs to bring to the attention of the first and second defendants the plaintiffs’ claim against them. I can only assume that the first and second defendants have, for unknown reasons, chosen to ignore the proceedings filed against them, or alternatively adopted a strategy of avoidance in the hope that the plaintiffs would drop their claims.
15. Doing my best on the material before me, in particular the unchallenged evidence of Mr Kevin which supports the facts as pleaded by the plaintiffs, I consider that the plaintiffs have substantiated their liquidated claim of K162,000.00 for the balance owned by the first and second defendants for the hire of the vehicle. Clearly, there was an agreement between the plaintiffs and the first and second defendant for the hire of the vehicle. I am satisfied that that hire was at the rate of K900.00 per day as deposed by Mr Kevin, and for the period of time pleaded by the plaintiffs.
16. I am not able, however, to make any findings in respect of other damages or loss of business allegedly experienced by the plaintiffs, in view of the lack of supportive evidence before me, and decline to make any orders referable to that category of relief.
17. The plaintiffs have also sought interest on the damages they recover. Orders as to interest are in the discretion of the Court: see Anis J in Seong Guan Ng v Bow Ah Meng [2025] N11170 at [71]. It is appropriate in the present case that interest be awarded to the plaintiff on the amount of K162,000.00 pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 at the rate of 8% per annum from the date of filing of the proceedings by the plaintiff in WS No. 463 of 2021 until the date of payment by the first and second defendants.
18. Finally, it is appropriate that costs follow the event, and that the first and second defendants pay the costs of the plaintiffs on a party-party basis, to be taxed if not otherwise agreed
    

THE COURT ORDERS THAT:

1. Judgment in the amount of K162,000.00 be awarded to the plaintiffs against the first and second defendants.
2. Interest be awarded to the plaintiffs on the amount of K162,000.00 pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 at the rate of 8% per annum from the date of filing of the proceedings by the plaintiffs in WS No. 463 of 2021 until the date of payment in full by the first and second defendants.
3. The first and second defendants pay the costs of the plaintiffs on a party-party basis, to be taxed if not otherwise agreed.

____________________________________________________________________
Lawyers for the plaintiffs: Mr A Kana as Town Agent
No appearance, for the first and second defendants
Lawyers for the third defendant: Mr B Semiat