Tropicana Ltd v Oceania Coconut Products Ltd [2025] PGNC 515; N11661 (2 December 2025)

N11661

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 95 OF 2024

BETWEEN:
TROPICANA LIMITED
Plaintiff

V

OCEANIA COCONUT PRODUCTS LIMITED
Defendant

KOKOPO: CHRISTENSEN J
11 NOVEMBER, 2 DECEMBER 2025

CIVIL – DAMAGES – Default judgment – assessment of damages – rental arrears – proof of claim – corroboration – lease agreement – account ledger – claim for damages exceeds monetary amount claimed in originating process – debt recovery proceeding – discretion to order recovery of rental arrears up to date of assessment – O 10 r 19 – claim during lease agreement period – procedural efficiency – each missed rental payment a default encompassed within liability judgment – procedural fairness to be afforded – judgment for outstanding rental payments – interest – costs

Cases cited

Grand Columbia Ltd v Independent State of Papua New Guinea [2025] PGNC 142, N11268
Maryland Estates Ltd v Joseph [1998] EWCA Civ 693; [1999] 1 WLR 83
Papua New Guinea Banking Corporation (PNGBC) v Tole (2002) PGSC 8, SC694
Steven Charles Pickthall v Lae Plumbing Ptd Ltd [1994] PNGLR 363, SC462

Counsel

R Asa for the plaintiff
No appearance for the defendant

ASSESSMENT OF DAMAGES

1. CHRISTENSEN J: By way of writ of summons filed 9 April 2024 the plaintiff company claimed rental arrears under a lease agreement entered with the defendant company.
   
2. On 11 October 2024 default judgment was entered pursuant to O 12 r 25 of the National Court Rules 1983 in a circumstance of the defendant never filing a notice of intention to defend and a defence. Damages were to be assessed, and that is the issue now under consideration.
   

Background

3. The relief sought in the writ was the then total balance debt of K530 247.50, as well as K50 000.00 for breach of lease agreement, 8% interest, and costs. The writ provides that the amount claimed was the total balance of rental arrears as at that time, with the full particulars of the balance to be provided at the time of trial.
   
4. The defendant company ceased to operate at an unspecified time. When the writ was served on 13 April 2024, by pining the document to the door of the company office at the rental property, the Directors and employees were no longer occupying the premises.
   
5. Further documents were served in the same manner on 10 July 2024. Additionally, correspondence was sent via email to Directors of the company on 12 April 2024, 11 June 2024, 21 August 2024, and 9 December 2024, informing of the debt claimed, seeking repayment, and the intention to seek default judgment.
   
6. On 16 April 2024, a Director responded by email acknowledging the debt and indicating an intention to pay the debt when funds allowed. The defendant company, on the evidence provided, has not otherwise responded to the demands for payment, or to the legal proceeding.
   
7. The plaintiff no longer presses the relief for breach of lease agreement, simply seeking that the outstanding rental payments be recovered.
   

Established facts

8. In support of the assessment, the plaintiff relies on affidavit material from officers of the plaintiff company.
   
9. The evidence establishes that on 1 March 2021 the defendant entered into a Lease Agreement over the use of a property at Section 74 Allotment 19, Takubar, East New Britain Province. The lease was for a period of 60 months (5 years), until 28 February 2026. The agreement plainly provided that monthly rental in the amount of K20 009.00 was payable to the plaintiff on the first day of each month.
   
10. The evidence establishes that the defendant company has defaulted with payment of the full monthly rent from September 2021.
    
11. Since then, and up to and including now, the defendant company has continued to occupy the plaintiff’s property with machinery and equipment. A recent inventory of the equipment and machinery that remains on the rental site establishes that it is equipment of the type for making or converting coconut or copra into a finished product. It is estimated to be valued at K541 308.98. The plaintiff company advised of an intention to recover part of the debt through recovering of the machinery and equipment.
    
12. The rental agreement has remained in place throughout this proceeding, and rental arrears have continued to accrue. Accordingly, the plaintiff seeks to recover the additional monthly arrears.
    

Consideration

13. The initial assessment of damages in this matter is not complicated. It is unnecessary to go beyond the principles as applied in a similar matter by Makail J in Grand Columbia Ltd v Independent State of Papua New Guinea [2025] PGNC 142, N11268 which I gratefully adopt.
    
14. That is, that entry of default judgment does not relieve a plaintiff from proving its claim and corroboration is usually required, and that vague claims must be rejected. Here, the claim is credibly established on the balance of probabilities with reference to the lease agreement and the account ledger that are in evidence.
    
15. The evidence includes corroborative evidence of a rental statement of account which sets out the outstanding amounts. I am readily satisfied on the balance of probabilities, and in accordance with the writ, that rental arrears totalling K530 247.50 for the period October 2021 to December 2023 (27 months) are owing. Based on this, I award a sum of K530 247.50 as reflecting outstanding rental for the period October 2021 to December 2023 in accordance with the writ.
    
16. Since the filing of the writ, and per the submissions at the hearing for the assessment of damages, the plaintiff also seeks the additional rental arrears, being the amount up to the end of October 2025. The final six months of the rental under the lease agreement were not sought.
    
17. The court was not assisted by counsel with any authority that permits judgment in an amount beyond the amount specifically claimed in the originating process. Authorities such as Steven Charles Pickthall v Lae Plumbing Ptd Ltd [1994] PNGLR 363, SC462 and Papua New Guinea Banking Corporation (PNGBC) v Tole (2002) PGSC 8, SC694 make plain that a plaintiff cannot typically recover damages not pleaded in the claim.
    
18. However, here, the form of relief claimed, being rental arrears, is clear and was pleaded. The relief sought has a foundation in the pleadings, but the amount now sought is greater than that originally particularised. It was submitted that doing so was permissible at a stage when judgment is sought during the lease period. This was submitted to be because:
    
    • (a) the premises have remained under effective control of the defendant with the plaintiff unable to otherwise lease the premises due to the equipment of the defendant remaining installed; and
      
    • (b) the additional claim made was foreseeable, and in accordance with the ledger.
      
19. I accept that in a debt recovery proceeding involving rental arrears the court is not confined to recovering of only the monetary rental arrears as particularised in the claim. That is, the court has a discretion to order recovery of arrears accrued up to the date of judgment, subject to ensuring procedural fairness to the defendant. Such an approach is in accordance with O 10 r 19 of the National Court Rules 1983, which provides:
    

Damages to time of assessment

(1) Where damages are to be assessed in respect of—

(a) any continuing cause of action; or

(b) repeated breaches of recurring obligations; or

(c) intermittent breaches of a continuing obligation,

the damages shall be assessed down to the time of assessment, including damages for breaches occurring after the commencement of the proceedings.

(2) Sub-rule (1) applies to the assessment of damages under this Division or otherwise.

20. In Maryland Estates Ltd v Joseph [1998] EWCA Civ 693; [1999] 1 WLR 83, the Court of Appeal in England & Wales found that rent in arrears up to the date of court order was permissible. While concerned there with an interpretation of a legislative provision, the principles for permitting such a course were well founded and of relevant application to this jurisdiction. That is, as the Court there found, an ability to recover arrears up to the date of assessment avoids a multiplicity and complexity of proceedings. It promotes procedural efficiency. Each missed rental payment is to be regarded as a default, encompassed within the liability judgment finding. However, such a course should only be permitted where procedural fairness is afforded to the defendant.
    
21. Here, the defendant was well on notice of the plaintiff’s intention to seek rental arrears beyond the amount particularised in the original writ, and in an amount reflective of the entirety of the lease agreement up until assessment. Most recently, by way of email, a Director of the company was informed on 27 October 2025, 3 November 2025, and 10 November 2025 as to the evidence relied upon for the purposes of the assessment of damages. This informed the defendant of the intention to claim the additional rental arrears outstanding.
    
22. Accordingly, in addition to the rental arrears for the period from September 2021 to December 2023, I further award a sum of K440 198.00, being rental arrears for the period January 2024 to October 2025 (22 months).
    
23. As to the claim for interest and costs, both are appropriate to order as sought by the plaintiff, with there being no basis to not adopt a usual course.
    

Orders

24. For those reasons, the following orders are made:
    
    • (1) Judgment is entered in favour of the plaintiff in the total sum of K970 445.50 of outstanding rentals to be paid by the defendant.
      
    • (2) Pre-judgment interest is awarded at the rate of 8% on the judgment sum from the date of filing of the writ of summons to the date of judgment, being an amount of K128 046.00.
      
    • (3) Post-judgment interest is awarded at the rate of 8% on the judgment sum until final settlement.
      
    • (4) The defendant pays the costs of and incidental to the proceeding on a party-party basis to be taxed if not agreed.
      
    • (5) The proceeding is thereby determined, and the file is closed.
      
    • (6) The time for entry of these orders is abridged to the date of settlement by the Registrar, which shall take place forthwith.
      

Lawyers for the plaintiff: Warner Shand Lawyers