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Potane v National Development Bank [2013] PGNC 79; N5099 (28 February 2013)

N5099


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS 437 OF 2008


BETWEEN:


MARGARET (NAPAO) POTANE
Plaintiff


AND


NATIONAL DEVELOPMENT BANK
Defendant


(NO. 2)


Wabag: Gauli AJ
2012: 19 November
2013: 28 February


DAMAGES – Breach of contract – Sale of mortgage property – Assessment on damages – General damages – Exemplary damages – Special damages – Interest and costs – Damages claim must be pleaded in the statement of claim – Plaintiff has the onus to prove damages rather than generalization of claims.


Cases Cited:
Papua New Guinea


PNG Aviation Services Pty Ltd v. Geob Karri [2009] SC1002
Harding v. Teperoi Timbers Pty Ltd [1988] PNGLR 128
Ibi Enei v. Rimbunan Hijau Limited (2011) N4402
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694
Ceocon Limited v. National Fisheries Authority (2002) N2182
Joseph Kupo v. The State (2011) N4478
Abel Tmbe v. Independent Sate of Papua New Guinea (1997) SC518
Koimi v. The State [1995] PNGLR 535
Fred Angoman v. IPBC of PNG (2011) N4363
The Commissioner General of Internal Revenue v. Julian Paul Leach ( Judgement delivered on 24 September1998) N1779
Felix Kua v. Clement Patiken (2010) N4103
Trevor Yaskin v. Wallya Abilio (2006) N3108


Overseas Cases


Bonham Carter v. Hyden Park Hotel Ltd (1948) 64 TLR 177
Hadley v Baxendale (1854) 9 Ex. 341
Rookes v Barnard [1964] UKHL 1; [1964] AC 1129
Strom Bruks Aktie Bolag v. Hutchinson [1905] UKLawRpAC 52; [1905] AC 515
Stedman v Swan Tours (1951) 95 Sol Jo 727


Counsel:
Mr. Paul Ouse, for the Plaintiff
Ms. Veronica Yabone, for the Defendant


JUDGMENT ON ASSESSMENT OF DAMAGES


28 February, 2013


  1. GAULI AJ: This is a trial on assessment on damages. Judgement on liability on damages had been entered against the defendant in my judgment after running a trial in September 2011, while the claim on specific performance was dismissed. It is trite law that the purpose of awarding damages is to put the injured party in a position that he would have been had there been no breach: see PNG Aviation Pty Ltd -v- Geob Karri [2009] SC1002.
  2. The proceedings arose out of a breach of contract of a mortgage sale of a commercial property namely Section 35 Allotment 05 at Sabama in Port Moresby, National Capital District between January and April 2008. The plaintiff's bid of K235,000.00 was accepted and the contract of sale signed and executed by both parties. Two weeks before the appointed date of settlement of the mortgage sale on the 4th of April 2008, defendant alleged that the mortgagor has exercised his right of redemption under Clause 13.9.1 of the Contract of Sale, by paying off all his outstanding loans to the defendant, the National Development Bank.
  3. However, there was no documentary proof from the defendant that the mortgagor actually paid off all his outstanding loans and the title of the property transferred back to the mortgagor. The mortgagor was not called to testify in court nor filed an affidavit that he had in fact settled his debts. Mere allegation by the defendant, without any documentary evidence of proof that the mortgagor has paid off all his debts, is insufficient to convince the Court that the mortgagor had in fact exercised his right of redemption. He who alleges has the onus of proving what he alleges but the defendant has failed to prove that.
  4. The plaintiff had gone to the extent of incurring expenses from the time she lodged her bid for the mortgage sale up to the time she became aware that the sale had fallen through. The alleged expenses were incurred based on the defendant's advice in the process of the settlement of the said contract of sale. I therefore found the defendant liable for the breach of a contract of sale and ordered that the plaintiff should have his damages assessed.
  5. On the 16th November 2012, the plaintiff gave notice to set down the matter for trial on assessment of damages. The trial was conducted on the 19th November 2012. At the trial on assessment on damages, the plaintiff Mrs. Margaret Potane relied on her own Affidavit sworn and filed on the 2nd November 2012 and the Affidavit of Mr. Pato Potane sworn on 31 October 2012 and filed on 02 November 2012. These affidavits were tendered by consent of the defence counsel.
  6. The defence, without calling witnesses, relied on the evidence given during the substantive hearing of the claim on liability, particularly the two affidavits of the witness Solomon Kiage marked Exhibit "B" and "C". Defence has no new evidence at this trial on the assessment of damages. Having received submissions from both parties, I now proceed on assessment of damages.

ONUS OF PROOF


  1. In assessing damages, although the defendant was found liable for the breach of contract, the general law is that the plaintiff has the onus of proving the damages she claimed to have suffered. The damages can be awarded where breach of contract has caused disappointment, distress, anxiety and or frustration caused to a party. The award of damages is not automatic but at the discretion of the court. The law has been established in Harding v. Teperoi Timbers Pty Ltd [1988] PNGLR 128 at 132, where late Kidu CJ, said:

"If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach."


  1. And His Honour held that:

"(1) Where at the time of making a contract it is within the contemplation of the contracting parties that a foreseeable result of a breach of contract will be to cause vexation, frustration or distress, then if a breach occurs which does bring about that result, damages are recoverable under this heading."


  1. The law is that the plaintiff must prove the alleged damages. It is not sufficient to make general allegation in a statement of claim and expect the Court to award damages. The damages must be pleaded and proven by evidence in court. In Bonham Carter v. Hayden Park Hotel Ltd (1948) 64 TLR 177 at 178, Lord Goddard said:

"The plaintiff must understand that if they bring action for damages, it is for them to prove their damages. It is not enough for them to write down particulars and so to speak, throw them at the head of the Court, saying ...... 'This is what I have lost, I ask you to give me these damages, they have to prove it.'"


DAMAGES CLAIMED


  1. In this trial, the damages the Plaintiff claimed to have suffered have been pleaded in her statement of claim and they include:
    1. General damages for breach of contract.
    2. Exemplary damages.
    3. Special damages.
    4. Interest and Costs.
  2. Under the head of special damages, the plaintiff claims –

ISSUES:


  1. The main issue to be decided here is: Whether the plaintiff should be awarded the above damages she claimed to have suffered? I will consider this issue as I discuss each of the damages.
  2. GENERAL DAMAGES.
  3. The plaintiff claim a sum of K500,000.00 for general damages. Her bid for the property on mortgage sale was K235,000.00, which was accepted by the defendant and the contract executed. The amount she now claims is almost twice the amount of her contract of sale of the property.
  4. The plaintiff submitted that the Court should follow the decision of the Supreme Court in PNG Aviation Services Pty Ltd v. Geob Karri (supra). In that case, the Supreme Court said at paragraph 14:

"When assessing damages in contract, the Court seeks to put the injured party in the position that party would have been in but for the breach of contract. In other words, the object is to put the plaintiff in the same position as if the contract was performed".


  1. The defence submitted that the plaintiff's claim is for the value of the property as a result of the breach. In PNG Aviation Services -v- Geob Karri (supra), the State terminated the lease agreement and offered an alternative location for the appellant to operate from. The appellant refused for the reasons that the location was not conducive for business and the rentals in the alternative location were higher. The appellant offered that if they were to move to a new location the State would have to meet the relocation fee. The State then withdrew the offer for the alternative location and terminated the lease agreement. As a result of the termination, the Plaintiff's business ceased to operate. The plaintiff successfully sued the defendant and was awarded the damages.
  2. The present case involves a mortgage sale and the plaintiff knew very well that the mortgagor could redeem the property at any stage of the sale process and nothing was conclusive until the title was given to her. Therefore the defence submitted that plaintiff cannot claim the value of the property.
  3. The defence further submitted that the plaintiff failed to show the Court how the plaintiff has suffered or made that loss due to the breach of the contract of sale. In the PNG Aviation Services Pty Ltd (supra), the plaintiff was already operating a business on that property. And due to the breach, the business had to be shut down resulting in the plaintiff suffering and was awarded the damages it claimed after expert evidence was adduced. In the present case the plaintiff claims K500,000.00 as the value of the property and she estimated its value to be between K1.5 million to K2 million. There is no valuation report from a certified valuer of the property. She did not own nor conducted business on the subject property before the breach occurred. Therefore her claim under this head be dismissed.
  4. I have considered the submission by both parties on this claim on general damages. Any claim over and above the mortgage sale or the contract sale that the parties have executed would be too excessive and unreasonable in the circumstances. And the injured party would not be entitled to claim over and above the contract price. The award of general damages is at the discretion of the court. And the Court has a duty to ensure that the damages awarded to the injured party must be reasonable and not excessive. I followed what His Honour Gavara Nanu J, said in Ibi Enei v. Rimbunan Hijau Limited (2011) N4402 at paragraph 67:

"the aim of awarding damages to the plaintiff is not to over enrich him. The amount of damages awarded must be fair and reasonable and they should as much as possible put the plaintiff back in the position he was or would have been before the tort was committed or had the tort been committed."


  1. Although the above decided case was on tort, it is equally applicable in cases of breach of contract. The Supreme Court in an appeal case in PNG Aviation Services Pty Ltd (supra), adopted what was stated in Hardley v. Baxendale (1854) 9 Ex. 34, that said:

"Where two parties have made a contract which one of them has broken, the damage which the other party ought to receive in respect of such a breach of contract should be as may fairly and reasonably be considered either arising naturally, i.e according to the usual cause of things from such a breach of contract itself, or such as may reasonably supposed to have been within the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it."


  1. The principles of law in assessment of damages are well settled by the Supreme Court in Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694, which adopted and applied the principles summarized by Kandakasi J, in Coecon Ltd (Receiver/Manager Appointment) v. National Fisheries Authority (2002) N2182, following the entry of judgement on liability in default of the defendant's defence. Those principles are quite useful in assessing damages.
  2. In the present case, the plaintiff claims the value of the property to be between K1.5 million to K2 million but she only claims K500,000.00 in general damages. The plaintiff has never been on this property nor operated any form of business on the subject property at any one time prior to the breach. I do agree with the defence submission that the plaintiff has not established by evidence from any certified valuer for the valuation of the subject property to substantiate her claim of K500,000.00. How did the plaintiff arrive at that figure is unclear when there is no evidence supporting it. From the evidence as it is presented before this Court, the contract of sale of the mortgage property was K235,000.00, no more or no less. The plaintiff had made an arrangement for a bank loan of K242,000.00 to purchase the subject property. The loan was approved but there is no evidence of the loan been paid out to the plaintiff nor is there evidence that she was or has being repaying the said loan to the bank.
  3. There is no dispute that the defendant has breached the agreement for the sale of the mortgaged property by failing to sell the property to the plaintiff. Any sensational, unmeritorious and unsustainable claim for damages will not be granted. On the evidence as presented before me, I could not be satisfied that the plaintiff has suffered K500,000.00 in damages as a result of the breach. In cases of breach of contract, the aggrieved or injured party will only be entitled to recover the loss actually resulting at the time the contract was breached.
  4. The case that may be more relevant to the present case is that of Fred Angoman v. IPBC of PNG (2011) N4363, by Kariko J. In that case, the plaintiff sued the defendant for a breach of contract of sale of land, namely Section 85 Allotment 4 in Korobosea, National Capital District for K37,000.00. A contract of sale was executed where the plaintiff has paid the 10% deposit plus the stamp duty. The statutory approval under Section 128 of the Lands Act was obtained, contract and transfer instruments signed. But while awaiting the completion of the sale, the property became vested in the Privatisation Commission established under the Privatisation Act 1999. The ICPNG notified the plaintiff by a letter dated 9th July 2001 but the plaintiff failed to respond.
  5. In 2002 the Privatisation Act 1999 was repealed and the Independent Public Business Corporation Act 2002 (IPBC) was enacted. The Minister published a notice under Sections 31 & 50 of the IPBC Act, advertised the property for sale by tender. The defendant by a letter on 15th July 2007, advised the plaintiff that the property was placed on public tender and sold to a third party but the sale had fallen through and the property remains with the ICPNG. The defendant IPBC refused to complete the sale to the plaintiff. The plaintiff claimed breach of contract and sought orders for a specific performance or alternatively for damages including the refund of the 10% deposit.
  6. His Honour Kariko J, refused specific performance due to unreasonable delay on the part of the plaintiff but ordered the refund of the 10% deposit and awarded a nominal sum of K5,000.00 in general damages plus interest. In awarding general damages, His Honour found that the plaintiff has suffered some stress and anxiety while chasing up the contract to be completed. But he found that there is no evidence supporting his claim for general damages and only awarded a nominal amount K5,000.00 for general damages.
  7. In Fred Angoman v. IPBC of PNG (supra), everything required for the sale was completed but only awaiting the settlement of the contract of sale as compared to the present case. The contract price of the sale of the property was not considered by the Court for the reason that it was not pleaded. In the present case, I find that the plaintiff did suffer anxiety and stress when she was advised through a third person that the mortgagor has exercised his right of redemption and the sale has fallen through. She was not directly advised by the defendant of the sale been put off. She was only informed by her bank when she went to inquire of her loan application for the subject property. Though I find that there is no evidence to support her claim of K500,000.00 in general damages, there had been no undue delay or failure by the plaintiff in settling the contract. The plaintiff has pleaded general damages which is manifestly excessive. And she did not actually suffer the damage she claimed. But she has suffered anxiety and stress. I can only award a nominal amount of K8,000.00 for general damages to the plaintiff for the breach of contract.
  8. EXEMPLARY DAMAGES.
  9. The exemplary damage is one having punitive in nature against the person who breached a contract or committing a tort against the victim so that the wrong doer does not repeat such wrongful act in future. Its purpose is not to compensate the plaintiff but to penalize the party for the wrong he has done and to deter him from repeating the same wrongful act in future.
  10. The plaintiff claims a sum of K500,000.00 under the claim of exemplary damages. The general rule is that exemplary damages are not available in cases of breach of contract. The Supreme Court in PNG Aviation Services Pty Ltd v. Geob Karri (supra), said at paragraph 67 that:

"No cases were brought to the court's attention which suggests that submission was not correct. The trial judge observed that 'exemplary damages are not normally available for breach of contract'. We agree with that general rule and note that no claim based on tort, breach on statute or the breach of any Constitutional right was pleaded."


  1. Mr. Paul Ousi for the plaintiff referred to a number of decided cases where claims for exemplary damages were also refused. In Joseph Kupo v. The State (2011) N4478, His Honour Hartshorn J, said that no exemplary damages may be awarded against the State, pursuant to Section 12(1) of the Claims By and Against the State Act unless there is severe and continuous breach of Constitutional rights. And in Abel Tombe v. The Independent State of Papua New Guinea (1997) SC518, the Supreme Court held that:

"The Text in, 'McGregor on Damages (Fifth Edition) in chapter 11 on Exemplary Damages states the following principle which is useful:


"The primary object of an award of damages is to compensate the plaintiff for the harm done to him; a possible secondary object is to punish the defendant for his conduct for inflicting the harm. Such secondary object can be achieved by awarding, in addition to the normal compensatory damages, punitive damages, vindictive damages and even retributive damages, come into play whenever the defendant's conduct is outrageous to merit punishment, as to where it discloses malice, cruelty, insolence or the like".


"The award of exemplary damages is therefore not dependent upon whether the action was officially sanctioned by the State policy or directives, or whether the individual employee officers were named in the writ in order that the award can be made against them personally. Rather once liability for the breach or the tortuous conduct has been vicariously imputed to the employer, then the ordinary and exemplary damages can be awarded against the employer."


  1. The plaintiff submitted that in the present case, exemplary damages should be given in appropriate cases and the Court can award exemplary damages in breach of contract. In the case of PNG Aviation Services Pty Ltd (supra), the exemplary damage was not pleaded so was not an issue before the Court. The case in Ibi Enei v. Rimbunan Hijau Limited (2011) N4402, His Honour Justice Gavara-Nanu said at paragraph 75:

"Exemplary damages are vindictive and punitive in their nature and are subject to the discretion of the Court: Toglai Apa & Ors v. The Independent State of Papua New Guinea [1995] PNGLR 43. The award of exemplary damages is aimed at punishing the party against whom the award is made for the wrong done by the party. The damages awarded should have the element of deterrence to deter the party from repeating the wrong, it should also deter others from committing the same wrong ...."


  1. Ms. Yabone for the defence submitted that exemplary damages should not be awarded to the plaintiff as there is no uniformity as to when such damage may be awarded as this head of damage is not available in an action for breach of contract. She cited a leading case in England in Rookers v. Bernard [1964] UKHL 1; [1964] AC 1129, where the House of Lords held that exemplary damages should not be awarded except in specific situations which may be summarized as conduct by the servant of the government, conduct by defendant designed to make a profit greater than the compensation payable to the plaintiff, and where expressly authorized by statute. The defence relied on the Supreme Court decision in PNG Aviation Services Pty Ltd (supra) and in Koimi v. The State [1995] PNGLR 535 as the authorities for the Court not to award exemplary damages.
  2. I have considered the submissions from both parties as to whether or not I should award exemplary damages. In the case of the PNG Aviation Services Pty Ltd (supra), the exemplary damages was not pleaded in Court, therefore the Supreme Court did not determine exemplary damages. The case of Koimi v. The State (supra) relates to the police raid on a village, and His Honour Injia J, (as he then was), held that the approach taken in Rookes v. Barnard (supra) is too restrictive and inconsistent with the Constitution and should not be followed in awarding exemplary damages. And I would concede with His Honour's decision in Rookes v. Bernard (supra).
  3. There must be some negligence act on the part of the wrong doer to award exemplary damages: see Felix Kua v. Clement Patiken (2010) N4103. In the present case, there was negligence on the part of the defendant in that the defendant failed to foreclose the mortgagor's right of redemption of the property before executing the contract of sale. That has provided little or no protection of the plaintiff as the purchaser. And furthermore, the defendant failed to directly advise the plaintiff that the sale is called off because the mortgagor has exercised his right of redemption.
  4. The exemplary damage is not automatically given but it is based on the discretion of the Court. And the power to award exemplary damages is vested in the Court by virtue of Sections 22 and 155 (4) of the Constitution. Since exemplary damages is punitive in nature, the amount to be awarded should be reasonable and not to be seen as an enrichment to the victim since this head of damages is awarded as deterrence to the wrong doer from committing similar wrongful acts in future.
  5. There are a number of decided cases where exemplary damages have been awarded. The case of Ibi Enei v. Rimbunan Hijau (supra), was a dispute over the ownership of a portion of land. The disputing parties have taken out the MOU in which the Clause 4 of the MOU expressly stated that the rental fee be paid into a Trust Account in the event of a dispute over the land. The defendant was aware of the MOU yet he deliberately breached the Clause 4 of the MOU by continuously paying the monthly rental fees to Warata clan when the ownership issue was yet to be settled. The Court awarded K150,000.00 in exemplary damages.
  6. In Trevor Yaskin v. Wallya Abilio (2006) N3108, the defendant's agent deliberately breached the Customs Act, Chapter 101, when they unlawfully detained plaintiff's vessel from sailing. And the Court awarded K20,000.00 for exemplary damages. In The Commissioner General of Internal Revenue v. Julian Paul Leach (Judgement delivered on 24 September 1998) N1779, by Sevua J (as he then was), awarded a sum of K110,000.00 in general and exemplary damages in favour of the defendant for his defence and cross-claim. In the mentioned case, the plaintiff claimed against the defendant for unpaid income tax resulting in the defendant suffering with his salaries for 5 ½ years.
  7. In these mentioned cases, Ibi Enei v. Rimbunan Hijau (supra) and Trevor Yaskin v. Wallya Abilio (supra), the plaintiffs have one way or another suffered monetary loss in terms of rental fees or loss in business operation, while in The Commissioner General of Internal Revenue v. Julian Paul Leach (above) the defendant suffered loss in salary. Each case has its own circumstances in awarding the amount under the exemplary damages, since its objective is to punish or deter the wrongdoer. From these few decided cases, there is support that this Court can award exemplary damages. The case of Rookers v. Bernard (above) is no longer applicable as per the decision in Koim v. The State (above) as being too restrictive. The calculation of the amount to be awarded is at the discretion of the Court and it is usually less than that of the awards for the compensatory damages. In the circumstances of this present case, I would award the amount of K5,000.00 for exemplary damages as reasonable.
  8. SPECIAL DAMAGES.
  9. Special damages are actually out of pocket expenses the plaintiff incurred up to the date of filing the claim. They usually include medical expenses, transportation, accommodation and food, which expenses must relate to the cause of action before the court. These damages are very special and they must be pleaded with clarity and proven in court by evidence: see Ibi Enei v. Rimbunan Hijau Limited (2011) N4402, and many other cases have adopted the principle stated by Lord MacNanghton in Strom Bruks Aktie Bolag v. Hutchinson [1905] UKLawRpAC 52; [1905] AC 515 at 525 – 526, where his Lordship said:

"General damages are such as the law will presume to be the direct natural or probable consequence of the action complained of. Special damages on the other hand, are such as the law will not infer from the nature of the act. They do not follow in the ordinary cause. They are exceptional in character and therefore they must be claimed and proven."


  1. The plaintiff claims a total sum of K37,212.78 under the special damage, this includes her expenses on a tender fee (K100.00); Two bank cheques fees charges (K50.00); Insurance fee paid to MMI (K6,912.78); Air fares from Mt. Hagen – Port Moresby – Mt. Hagen (K9,550.00); Vehicle hire from Wabag – Hagen – Wabag on 11 occasions and also in Port Moresby for 12 days (K15,800.00) and accommodations in Port Moresby (K4,800.00). The question to be asked is whether the plaintiff has proven each of these claims and if so by how much should she be awarded? I deal with each claim as below.
  1. Tender Fee.
  1. The plaintiff claimed K100.00 tender fee she paid for her bid. This was not pleaded in her statement of claim until at this trial on assessment of damages. Any recent claims not included in the original statement of claim earlier will not be considered. In any event, a tender fee is not refundable even when a bidder or tender losses the bid. I will disallow this claim.
  1. Ten (10%) Deposit.
  1. This was pleaded in the Statement of Claim. There is evidence that the plaintiff's 10% deposit of K23,500.00 was fully refunded by the defendant on the 18th of April 2008. The plaintiff did not dispute this during the substantive hearing. I am satisfied that the defendant has fully refunded her deposit. I will disallow this claim.
  1. Stamp Duty to IRC.
  1. The plaintiff claims K11,760.00 she paid to the IRC for the stamp duty. There is evidence that the IRC only made a refund of K11,748.00 to the plaintiff. That is not disputed by the plaintiff. The plaintiff will only be entitled for the balance of K12.00 under this head of the claim.
  1. Fire Insurance to MMI.
  1. The plaintiff paid K6,912.78 to the MMI as insurance cover for the three properties she and her husband Mr. Potane owns. Two of the properties are in Wabag, Enga Province and one in Gordons in the National Capital District. Her bank told her to take out the insurance cover over these three properties as a security in order to obtain the loan, as per the MMI Invoice No. 6374, Annexed "E" to the affidavit of Margaret Potane.
  2. The defence submitted that the fire insurance was required by the plaintiff's bank for the purposes of her loan approval and it has served the plaintiff's advantage over her other properties, therefore this claim should not be made.
  3. There is no evidence to suggest that these three properties were already insured before the plaintiff made this payment. It is my view that since the plaintiff's bank required some security for the loan, she offered those three properties as her security, but they were not insured at the time of her making the loan application. It was for that reason, her bank required her to insure those properties first as her security for the loan. It is for the plaintiff to prove that those three properties were already insured before making this payment. I find that the plaintiff has failed to establish in Court that these three properties were already insured at the time and that the payment of K6,912.78 would not have been made except to insure the subject property she was intending to purchase.
  4. Since the payment was made to insure the other properties the plaintiff already had acquired, as security for the bank loan, and not for the property that is the subject of this proceeding, I do accept the defence submission that the insurance cover has served the plaintiff's benefit for insuring the three properties the plaintiff already owned. I will disallow this claim.
  1. Accommodation.
  1. The plaintiff claim for hotel and private accommodations in Port Moresby while attending to her mortgage sale contract. On two occasions, she was accommodated at the Holiday Inn with her husband, while for the rest of her travels, she was put up with friends. She claims the accommodation rate at the Holiday Inn was K400.00 per day at the time. And she applied the same rate for all her accommodations both at the hotel and by friends for10 days. And she claims a total amount of K4,800.00 in all.
  2. The defence submitted that the plaintiff failed to furnish evidence of her accommodation where she stayed, therefore her claim for the accommodation should be disallowed.
  3. The plaintiff is unable to provide checkout prints from the Holiday Inn for the accommodation. There are no receipts provided for her accommodation with friends in Port Moresby. That is not to say that she had not been afforded the accommodation while in Port Moresby. The onus is on the plaintiff to prove the number of days of her accommodation at the Holiday Inn Hotel and with friends. It is unacceptable to generalize the claim and apply the same rate on all accommodations provided to her. In the absence of any documentary proof of her accommodations, I would allow two nights' accommodation at the Holiday Inn at K400.00 per night, a total of K800.00 only.
  4. For her accommodations with friends, though there is no evidence of paying for the accommodation, it cannot be over-looked that she would have assisted the friends who accommodated her in terms of buying food. I would allow K200.00 per day, for 10 days, a total of K2,000.00 only. And I award a total of K2,800.00 for her accommodation claim.
  1. Vehicle Hire & Fuel costs.
  1. The plaintiff claims that she and her husband had made 11 trips from Wabag to Mt. Hagen then to Port Moresby which are related to this cause of action. They used their own vehicle for drop off and pickup in Mt. Hagen. She claims K1,000.00 per trip to a total of K11,000.00. While in Port Moresby, again they hired their own vehicle at a rate of K400.00 per day for 12 days. And she claim a total of K4,800.00. All in all she claims K15,800.00 as total expenses on vehicle hire.
  2. The plaintiff did not make submission on this particular head of damages but only made a general submission under the special damages and urged the Court to award for the hire of vehicles. In her claims for airfare costs, she said that she travelled to Port Moresby only five times. If she made trips from Mt. Hagen to Port Moresby and returns by plane five times only, then it is unrealistic as to how she had made the other six trips to Port Moresby.
  3. The defence submitted that the plaintiff was using her family's private vehicles and not hire vehicles and that she was only claiming for the vehicle's wear and tear, fuel, driver and security. She did not properly itemize these claims in her pleading but only generalized them. Relying on the decision in Bonham Carter -v- Hyden Park Hotel Ltd (1948) 64 TLR 177 (supra), the defence submitted that no award should be given under this head of damages.
  4. There are no receipts attached as proof of the hire of the vehicles. There is no evidence that the plaintiff's vehicles were on hire even to the owners themselves. The law in Bonham Carter -v- Hyden Park Hotel Ltd (supra) has been adopted and applied in many decided cases in our jurisdiction that the plaintiff must plead his claim and not to make general claims and expect the Court to award damages. I do accept that the plaintiff would not have used their own vehicles had it not been for this cause of action. However, she has not provided hire rate from any of the hire car companies both from Mt. Hagen and Port Moresby as a matter of comparison to assist this Court in considering her proposed hire rates. One would wonder whether a person would hire his own vehicle for his own use. Obviously, that is not possible.
  5. In using her own vehicles, she has no doubt used money on fuel. But there is no evidence as to how much she spent on fuel for each trip. There is no independent evidence that on each trip she took, the vehicle has to be brought back from Mt. Hagen to Wabag then go back for pickup. There is no evidence that during one of those trips the vehicle had encountered mechanical problems. There is no independent witness to support that a driver and the securities were engaged in all those trips. There is no evidence as to how much the driver and the security were paid. The plaintiff has failed to prove by evidence for the damages under this head. In the circumstances I consider that I can only allow a nominal sum of K2 000.00 for the use of her private vehicles between Wabag and Hagen and also in Port Moresby, which I considered to be reasonable.
  1. Two bank cheque fees.
  1. The plaintiff drew two BSP Bank cheques – Cheque No. 611725 on 07/03/08 for K23,500.00 paid to the National Development Bank (defendant), and a Cheque No. 598707 on 13/03/08 paid to Internal Revenue Commission (IRC). These cheques relates to this cause of action. The bank fee of K25.00 were charged for each cheque, total of K50.00. This is not disputed. I would allow this damage.
  1. Air Fares (Hagen /Moresby/ Hagen).
  1. Plaintiff claims that she made 5 trips to Port Moresby, in two of those trips she travelled with her husband, at the rate of K522.00 one way or K1,044.00 return per person. These trips were taken on the 5th, 13th, 17th March, 4th April 2008 and another trip after the 4th April to collect the 10% refund of the deposit. The defendant should have deposited that refund to her bank account instead of requesting her to personally collect it in Port Moresby, thereby incurring additional expenses on air fares. The defence does not oppose this damage. I would allow the damage under this head and I award a total sum of K6,264.00 for her expenses on airfares.
  2. For the special damage, I award a total amount of K11,126.00

SUMMARY OF DAMAGES ASSESSED


  1. From the above findings on the claims that have been allowed and those that are disallowed, I set out the damages assessed in summary as follows:

Total amount being: K24,126.00


  1. INTEREST
  2. It is a mandatory statutory requirement that where judgement is given in a proceeding for the recovery of debts or damages, interest will be awarded at the rate of eight percent (8%) per annum, pursuant to Sections 1 and 3 (4) of the Judicial Proceedings (Interest on Debts and Damages) Act. The interest will be calculated from the date the cause of this action was filed in Court to the date of the judgement on the assessment of the damages, the period being from 23rd April 2008 to 28th February 2013, total of 4.8 years.

Interest = Judgement Amount X 8% X Period in Years.

= K24,126 X 8/100 X 4.8 Years

= K9,264.38


And I award interest to an amount of K9,264.38


  1. COSTS.
  2. The general rule is that the cost follows the event; that is the successful party will have his costs paid for by the losing party. The question of costs is a discretionary matter for the Court to decide as to whether or not costs should be awarded. I see that there are no special circumstances that I should take to depart from the general rule. The plaintiff being the successful party shall have her costs on a party - to - party basis and to be taxed if not agreed.

ORDERS


  1. The orders of the Court are that:

Orders accordingly
_______________________________________
Warner Shand Lawyers: Lawyers for the Plaintiff
Greg Manda Lawyers: Lawyers for the Defendant

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