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Genderiso v Bank South Pacific Ltd [2012] PGNC 169; N4860 (25 October 2012)

N4860

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 712 OF 2008

KI GENDERISO
Plaintiff

V

BANK SOUTH PACIFIC LIMITED
Defendant

Goroka: Ipang AJ
2012: 27 September &
25 October

Damages – Plaintiff claimed damages for conversion – of his monies held in his bank account by Defendant – Statement of Claim discloses reasonable cause of action – default judgment entered – assessment and calculation of damages for conversion.

Cases Cited

Eliab Buka v Henry Uramete [2009] PGNC 205; N3905 (15 September, 2009)
Coecon Ltd (Receiver – Manager Appointed) v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182 (28 February, 2002)
Peter Goodenoug v The Independent State of Papua New Guinea (2001) N2157
Molomb v State [2005] PGNC 109
Kunnga v The State [2005] PGNC 94; N 2864
William Mel v Coleman Pakalia, Commissioner of Police, The Independent State of Papua New Guinea SC 790
RH Trading Limited v Damansara Forest Products (PNG) Ltd & Ors [1999] N1904
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Counsel

Mr. C. M. Gagma, for the Plaintiff
Mr. K. J. Peri, for the Defendant

JUDGMENT

25 October, 2012

1. IPANG AJ: The Plaintiff commenced this proceeding based on law of tort for wrongful conversion of his monies against the Defendant. So the plaintiff's claim is one of recovery of his monies wrongfully converted to the use of the Defendant. The Plaintiff claims for; (1) Damages for the conversion in the sum of K26, 600.00; (2) Alternatively, payment for the said sum of K26, 600.00 as money had and received by the defendant to the use of plaintiff; (3) General damages for stress and mental anguish to be assessed; (4) Exemplary damages to be assessed; (5) Costs; (6) Interest pursuant to statute; (7) Any other orders this Court deems fit.
   
2. I will state the back ground to this case so that one would appreciate the fact that it has taken a little more than four (4) years for this case to reach its finality.
   
   • 2.1. On the 12th of March, 2010 Deputy Chief Justice Gibbs Salika entered default judgment in favour of the plaintiff. On the 29th of April, 2010 the Defendant filed a motion seeking to set aside the default judgment entered on the 12th of March, 2010. On the 10th of September, 2010 Yagi, J heard the motion and dismissed the Defendant's motion and confirmed the default judgment entered on the 12th of March, 2010.
     

2.2. On the 20th of October, 2010 Defendant filed an application seeking leave of court to appeal against the interlocutory judgment of the National Court.

2.3. On the 09th of December, 2011, Davani, J granted leave to the Defendant/Applicant. The application was uncontested as the Plaintiff/Respondent was late in securing services of a lawyer.

2.4. On the 13th February, 2011, the Appellant served sealed copies of the court order of 9th December, 2011 and the Notice of Appeal filed on the 19th of January, 2012 in a letter dated 01st February, 2012.

2.5. On 30th March 2012, the Appellant's application seeking leave for an extension of time to appeal was dismissed with costs. Plaintiff now returns to the National Court for a trial on assessment on damages.

Plaintiff's case

3. At the outset, Mr. C. Gagma of counsel for the Plaintiff submitted that the Plaintiff will not use or rely on the Affidavit of Ki Genderiso filed on the 01st of July, 2010 and the Affidavit of P. Wanguwe sworn on the 02nd May, 2012 and filed on the 10th May, 2012. Counsel said these affidavits are not relevant. Instead, the Counsel said the Plaintiff will rely on his own affidavits sworn on the 09th of May, 2010 filed on the 10th of May, 2010 and sworn and filed on the 26th of September, 2012 respectively. Apart from the affidavit evidence, the plaintiff also gave oral evidence on the 27th of September, 2012.
   

Applicable Law & Practice

4. Counsel for the Plaintiff gave two options that I should take or approach on the issue on assessment of damages, especially where default judgment. The options are whether for this court to determine the plaintiff's claim as liquidated demand under Order 12 Rule 27 of the National Court Rules or conduct the assessment of damages by applying the principles on the assessment on damages.
   
5. The Order 12 Rule 27 states;
   

"27. Liquidated demand. (17/4)

(1) Where the Plaintiff's claim for relief against a defendant is for a liquidated demand only, the plaintiff may enter judgment against that defendant for a sum not exceeding the sum claimed in the statement of claim on that demand and costs.

(2) Where a claim for liquidated demand includes interest at an unspecified rate, interest accruing after the date of filing the statement of claim to the date of entry of judgment shall for the purposes of judgment under this Division be reckoned at the rate of 8% yearly."

6. Mr. Gagma of Counsel for the Plaintiff submitted that the Plaintiff's claim is one of the liquidated demand and the Court should enter judgment against the Defendant for the sum of K26, 600.00 the sum claimed in the statement of claim and for the costs under Order 12 Rule 27 (1) of the National Court Rules. Counsel also submitted that the Court also award interest at the rate of 8% as the plaintiff has pleaded interest pursuant to Judicial Proceedings (Interest on Debts and Damages) Act, Chapter No. 52. See also Peter Goodnoug v The State of Papua New Guinea (2001) N2157
   
7. In Buka v Uramete [2009] PGNC 205; N3905 (15 September, 2009) Hartshorn, J said:
   

"the plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages. A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his Statement of Claim."

8. In Coecon Ltd (Receiver – Manager Appointed) v National Fisheries Authority of Papua New Guinea [2002] PGNC 144; N2182 (28 February, 2002) in the context of assessment of damages the court held:
   

"For the purposes of assessing the plaintiff's damages in cases where liability has been resolved either in default or by consent, the plaintiff is under an obligation to establish his damages on the balance of probabilities. If a plaintiff is able to establish his damages on the required standard of prove, it must be award."

9. I am reluctant to accept Mr. Gagma's submission that because the Plaintiff's claim is one of the liquidated demands, the Court should accept this and enter judgment. This is because the plaintiff still has the obligation to prove his loss. In McGregor on Damages (Sweet & Maxwell, 13 edn. 1972, London) the learned Author made this explicitly clear in the following words;
   

"The plaintiff has the burden of proving both the fact and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person's case, the proof of such allegation falls on him. Even if the defendant fails to deny the allegations of damage or suffers default, the plaintiff must still prove his loss." (p. 935)

10. So in choosing which of the two (2) approaches initially suggested by Mr. Gagma, it is the latter approach I preferred by conducting the assessment of damages by applying the principles on the assessment of damages.
    

Assessment of Damages

11. The plaintiff claimed for the payment of a sum of K26, 000.00 for wrongful conversion of money by the Defendant. The money was in the custody of the Defendant when tort for wrongful conversion took place.
    
12. In his affidavit sworn and filed on the 26th of September, 2012, the plaintiff deposed that on the 18th of February, 2003 an amount of K36, 601.26 was deposited in to the plaintiff's Bank Account No. 1000706057 under the name Ki Genderiso. The said Bank Account was with Bank South Pacific Ltd held here in Goroka.
    
13. Plaintiff in Annexure 'A' to his affidavit of 26th September, 2012 said the following transactions were done without his knowledge, permission or authority.
    

14. On the 18th of February, 2003, plaintiff said his entitlements in the sum of K36, 601.26 was deposited into his bank account. He said this was his entitlements after he left as a teacher with the Education Department.
    
15. Plaintiff said he had no intention to withdraw at will and use the money for his own enjoyment. He said he can't believe when his money was continuously been withdrawn in thousands within a month from 13th March, 2003 to 09th April, 2003 totaling to K26, 600.00. He said the Defendant through its employees, servants and/or agents has deprived him from the enjoyment of his savings with his family. As a consequence, his children's education has been affected and his family suffered.
    
16. He said he made enquiries with the bank about the wrongful or unauthorized withdrawals from his savings account but none of the BSP employees assisted him to identify officers responsible for the fraudulent transactions so his money was not refunded. On the 19th of May, 2008, the plaintiff hand delivered his letter (Annexure 'A') to the Branch Manager of Bank South Pacific Ltd, Goroka Branch giving his notice of intention to institute legal proceeding for wrongful or unauthorized withdrawals from his bank account. On the 28th May, 2008 the Defendant responded through Rita Singut and attached three (3) copies of the manual withdrawals. Mrs. Singut said she confirmed the said withdrawals were conducted by the plaintiff.
    
17. The Plaintiff said the Defendant did not provide him with adequate information on the transaction done to his account with verifications. He said due to the Defendant's refusal, he went ahead and instituted legal proceedings.
    
18. RH Trading Limited v Damansara Forest Products (PNG) Ltd & Ors (1999) N1904, Woods, J stated;
    

"The law is that damages for conversion are damages at large, thus they do not depend on proof of what the plaintiff had actually planned to do with the profit earning asset but rather with the fact (that) the defendant has illegally deprived the plaintiff of its assets and should not be allowed to gain from that."

19. Mr. Genderiso took the right approach to make enquiries with the bank when he realized his money totaling to K26, 600.00 was wrongfully withdrawn from his bank account. The most honorable response from the bank was to cross check the officers who dealt with the transactions to verity each of the withdrawals instead of shutting off the plaintiff.
    
20. I am satisfied on the balance of probabilities that the plaintiff has been deprived of his hard earned K26, 600.00 by the tort of conversion committed by the employees, servants and/or agents of the Defendant. I award the sum of K26, 600.00. I also award the 8% interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, Chapter No. 52. I also award K6, 500.00 for general damages for stress and mental anguish and exemplary damages.
    
21. I follow Cannings, J in Molomb v State [2005 PGNC 109, N2861 in calculating the interest on the following formula: D X I X N = A
    
    • D is the amount of damages assessed
    • I is the rate of interest per annum
    • N is the appropriate period in number of years (4 years, 3 months)
    • A is the amount of interest
      

Therefore, K33, 100.00 x 0.08 x 4.3 = K11, 386.40

22. Plaintiff is awarded in total damages inclusive of interest, the amount of K44, 486. 40 plus costs of this proceeding. Costs to be agreed if not to be taxed.
    

________________________________

Sirae & Co. Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendant