Ya v Opu [2019] PGSC 49; SC1822 (27 June 2019)

SC1822

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 57 OF 2016

DAVID KUBULO YA
Applicant

V

JACOB IVEHO OPU
Respondent

Waigani: Salika CJ, Cannings J, Pitpit J
2019: 26, 27 June

DAMAGES – assessment of damages arising from breach of agreement for sale of trade store – whether the trial judge erred in awarding plaintiff K9,000.00.

The applicant sought review by the Supreme Court of the decision of the National Court to award him K9,000.00 damages in proceedings he commenced against the respondent. At the centre of those proceedings was an agreement under which the respondent agreed to sell to the applicant a trade store building for the sum of K15,000.00. The agreement, signed in 2007, provided that the applicant would pay a deposit of K9,000.00 up-front and was required to pay the balance of K6,000.00 by the end of 2008. The applicant made the up-front payment of K9,000.00 and in early 2008 paid an instalment of K1,500.00, leaving a balance of K4,500.00. The applicant attempted to pay that sum to the respondent at the end of 2009 but the respondent refused to accept it, saying that the applicant had not paid on time and the agreement was terminated. The applicant sued the respondent in the National Court, seeking damages of at least K60,000.00 on the basis that in the period that he was in possession of the trade store he had rented it to a third party for K1,000.00 per month, but while he was away from town, the tenant paid the rent to the respondent and the respondent had profited substantially. The applicant secured a default judgment with damages to be assessed at trial. The trial judge found that the applicant had breached the agreement for purchase of the trade store at the end of 2008 and was only entitled to the refund of what he paid to the respondent (K10,500.00) less a sum being 10% of the purchase price (10% of K15,000.00 = K1,500.00) for loss of the bargain. Thus the plaintiff was awarded K9,000.00, plus interest.

Held:

(1) No errors of law or fact were committed by the trial judge, who properly ruled that the applicant breached the agreement on 31 December 2008 by not paying the entire balance of the purchase price.

(2) The trial judge properly found that ownership of the trade store did not pass to the applicant until the purchase price was paid in accordance with the agreement. It was not so paid, so the applicant did not at any time own the trade store and had no right to lease it to a tenant and no right to receive rent. The rent was lawfully received by the respondent, who remained at all times the owner.

(3) The applicant was not treated unfairly or unjustly. The trial judge decided the case according to law, justly and fairly. The application for review was dismissed.

Cases cited

The following cases are cited in the judgment:

Leahy v Otri (2009) N3860
Taudevin v Thesira [1995] PNGLR 56
Thomas Tulin v Toyota Tsusho (PNG) Ltd (2016) SC1555

APPLICATION

This was an application for review of a decision of the National Court on an assessment of damages. \

Counsel

D K Ya, the applicant, in person

27^th June, 2019

1. BY THE COURT: The applicant, David Kubulo Ya, seeks review by the Supreme Court of the decision of the National Court to award him K9,000.00 damages in regard to civil proceedings he commenced against the respondent, Jacob Iveho Opu.

AGREEMENT

2. At the centre of those proceedings was an agreement under which Mr Opu agreed to sell to Mr Ya a trade store building at Faniyufa village, Goroka, for the sum of K15,000.00. The agreement, signed in 2007, provided that Mr Ya would pay a deposit of K9,000.00 up-front and was required to pay the balance of K6,000.00 by the end of 2008. Mr Ya made the up-front payment of K9,000.00 and in early 2008 paid an instalment of K1,500.00, leaving a balance of K4,500.00.

3. Mr Ya attempted to pay that sum to Mr Opu at the end of 2009 but Mr Opu refused to accept it, saying that Mr Ya had not paid on time and the agreement was terminated.

NATIONAL COURT PROCEEDINGS

4. Mr Ya, as plaintiff, sued Mr Opu, as defendant, in the National Court at Goroka, in proceedings WS 360 of 2012. He sought damages of at least K60,000.00 on the basis that in the period that he was in possession of the trade store in 2008 he had rented it to a third party, Peter Mukale, for K1,000.00 per month, but while he (Mr Ya) was away in Madang, Mr Mukale paid the rent to Mr Opu, who had profited substantially.

5. Mr Ya secured a default judgment with damages to be assessed at trial.

6. The trial judge, Justice Neill, ruled in his judgment delivered on 25 August 2016 that Mr Ya – not Mr Opu – had breached the agreement for purchase of the trade store at the end of 2008, because he had not paid the balance of the purchase price by then. Therefore Mr Ya was only entitled to a refund of what he paid to Mr Opu (K10,500.00) less a sum due to Mr Opu being 10% of the purchase price (10% of K15,000.00 = K1,500.00) for loss of the bargain. Thus Mr Ya was awarded K9,000.00, plus interest.

HEARING

7. Mr Opu did not appear at the Supreme Court hearing and there was no appearance by his lawyers. We heard only from Mr Ya who appeared in person.

APPLICANT’S SUBMISSIONS

8. Mr Ya argued that the trial judge had erred in law by misinterpreting the written agreement signed by the parties in 2007. The agreement was part of the evidence in the National Court and was before us in the Supreme Court. Mr Ya submitted that the trial judge proceeded to make further errors by finding that Mr Mukale properly paid rent to Mr Opu and that Mr Opu was entitled to keep the rent.

9. Mr Ya also argued that the trial judge had relied on legal principles that were irrelevant to the case and the sort of agreement that was at the centre of it: an agreement between two laypersons entered into without the assistance of lawyers.

10. Mr Ya urged us to understand what he had been through in a period of more than ten years, trying to get justice for the injustice done to him by Mr Opu, and also with respect by the trial judge.

DETERMINATION

11. We have examined the agreement in detail, having full regard to the fact that it was drafted and entered into by laypersons. We cannot fairly read it any way other than the trial judge did: the full balance of the purchase price was to be paid by the end of 2008. It was not paid by then. So when Mr Ya attempted to pay the K4,500.00 to Mr Opu in December 2009, it was too late. Mr Ya had already breached the agreement. It was the breach of a fundamental term of the agreement (Thomas Tulin v Toyota Tsusho (PNG) Ltd (2016) SC1555, Taudevin v Thesira [1995] PNGLR 56, Leahy v Otri (2009) N3860). Mr Opu was quite within his rights to refuse the K4,500.00 and to regard the agreement as terminated.

12. No errors of law or fact were committed by the trial judge, who properly ruled that Mr Ya breached the agreement on 31 December 2008 by not paying the entire balance of the purchase price.

13. The trial judge properly found that property or ownership rights over the trade store did not pass to Mr Ya unless and until the purchase price was paid in accordance with the agreement. It was not so paid, the agreement was breached by Mr Ya, and it followed that he did not at any time own the property. Mr Ya had no right to rent the trade store to a tenant and no right to receive rent. The rent was lawfully received by Mr Opu, who remained at all times the owner of the trade store.

14. There was no breach of the agreement by Mr Opu. There was no basis for a claim that he was liable to Mr Ya for rent received from Mr Mukale.

15. We find no flaw in the reasoning of his Honour that resulted in the award of K9,000.00.

16. We have carefully considered Mr Ya’s submission that we should take pity on him, bearing in mind that he and Mr Opu are laypersons, and see the unfairness and injustice done to him, which has resulted in Mr Opu profiting unfairly by having a tenant in the trade store (who Mr Ya arranged).

17. We do not agree that Mr Ya has been treated unfairly or unjustly. We conclude that the learned trial judge decided the case according to law, justly and fairly. The application for review will be dismissed.

ORDER

1. The application for review is dismissed.
   
2. The decision and order of the National Court at Goroka in WS No 360 of 2012 of 25 August 2016 is affirmed and shall be given full force and effect.
   
3. The parties will bear their own costs.

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