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Malaga, For and On Behalf of Agima Stevedoring Business Group v Lovong [1999] PGNC 63; N1949 (29 June 1999)

Unreported National Court Decisions

N1949

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 277 OF 1996
FRANK MALAGA (FOR AND ON BEHALF OF AGIMA STEVEDORING BUSINESS GROUP)
PLAINTIFF
V
BEN LOVONG
1ST DEFENDANT
AND: IUNGPUNG STEVEDORING PTY LIMITED
2ND DEFENDANT

Kimbe

Sakora J
20 November 1998
29 June 1999

DAMAGES – Breach of Contract – Summary Judgment – Offer to pay Damages by way of Compensation – Offer not honoured – Assessment of Damages – Offer amount the Damages.

Counsel

Mr K S Latu for the Plaintiff.

No appearance(s) by or on behalf of the defendants.

29 June 1999

SAKORA J: A stevedoring agreement between the plaintiff and the second defendant was entered into and evidenced by a written contract dated 24 May 1992. Under this agreement the plaintiff was engaged to undertake stevedoring operation on behalf of the second defendant. The agreement also obliged the plaintiff to, whilst performing its stevedoring functions, train the second defendant’s personnel in the business of stevedoring.

This agreement was to run for a period of five (5) years from 24^th March 1992, expiring 24^th March 1997, with the option to renew for a further period.

The plaintiff, at the time of the Stevedoring Agreement, was the Chairman of Agima Stevedoring Business Group. The first defendant was and is the Chairman of the second defendant. The second defendant was and is a duly registered landowner company carrying on the business of stevedoring.

It was the plaintiff’s case that the agreement was unilaterally terminated by the first defendant on 7 March 1994 by the issuance of a termination notice to be effective on 17 March 1994. The Plaintiff contended that the purported termination was based on false allegation that the plaintiff was not fulfilling his contractual obligation. The plaintiff’s claim was that, as a result of the unlawful termination he has suffered loss and damage and will continue to suffer.

The loss suffered were particularised in the Writ of Summons issued and filed 14 March 1996 as incurred for the period 1995 to 1996 and 1996 to 1997, calculated according to the industry’s recognised methods. In monetary terms these became a total of K143,750.00 (of K51,875.00 per period), inclusive of insurance calculated at K40,000.00.

It was the plaintiff’s claim also that following the purported termination of the Stevedoring Agreement the second defendant through its holding company and the plaintiff executed an agreement for compensation for the plaintiff’s loss. And this agreement was executed on 31 May 1995.

It is noted that this agreement and the original Stevedoring Agreement of 24 May 1992 appear as Annexure “A” to the Affidavit of Mark Nakutau (filed on behalf of the plaintiff’s claim(s) and filing the defence, if any, the plaintiff sought and obtained from the Court Summary Judgment against the defendants on 13 May 1998 (and entered 14 May 1998).

The Court entering Summary judgment then ordered the matter should be set down for assessment of damages. I heard learned counsel for the plaintiff briefly and he filed his written submissions, which I have had more than ample time to peruse and consider.

Despite many and sufficient notices being given of all proceedings since the service of the writ, there has been no appearances by or on behalf of the defendants on continuous basis. Be that as it may, the Court has had the benefit of perusing and considering the two agreements referred to already. Liability, of course, having already been determined, I am confined to the question of damages.

The plaintiff sues on the amount agreed between the parties for the settlement of their dispute. And this amount is K142,375.00. In the absence of any material or contentions to the contrary, this is the amount. I award against the defendants. And I order that this amount becomes due and owing to the plaintiff, for and on behalf of Agima Stevedoring Business Group, from the first and second defendants forthwith.

It is ordered also that interest at the rate of 8% per annum be paid, calculated from the date of issue of the Writ of Summons to the date of judgment.

Lawyer for the Plaintiff: Latu Lawyers

No Lawyer(s) on record for the Defendants