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2 Fast Motors Ltd v Digicel (PNG) Ltd [2019] PGNC 432; N8164 (23 September 2019)

N8164

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1503 of 2009

BETWEEN:
2 FAST MOTORS LIMITED
Plaintiff

AND:
DIGICEL (PNG) LIMITED
Defendant

Waigani: Hartshorn J
2019: 23^rd September

DAMAGES - Assessment of Damages – plaintiff has onus to prove its loss – plaintiff unable to prove its loss – no damages is awarded – claim dismissed

Cases Cited:

YangeLangan v. Independent State of Papua New Guinea, (1999) N1369
Frank Onga v. The General Manager Engineering Management Pty Ltd (2003) N2321
Nae Limited v. Cameron Construction Ltd (2012) N5346

Counsel:

Mr. D. Siminji, for the Plaintiff
Mr. J. Munnell, for the Defendant

23^rd September, 2019

1. HARTSHORN J: This is a decision on an assessment of damages after judgment was entered.
Background

2. The plaintiff sues the defendant in respect of three written lease agreements and one oral lease arrangement for the lease of the plaintiff’s vehicles by the defendant, which the plaintiff alleged were entered into by the parties. In the amended statement of claim the plaintiff claimed the sum of K868,289.61 allegedly owed, or alternatively, damages together with interest and costs. Following a trial I was satisfied that the plaintiff had sufficiently proved the three lease agreements and the oral lease arrangement. Judgment was entered for the plaintiff but with damages to be assessed.

3. The amount of damages now claimed by the plaintiff is K340,362.52, it being conceded by the plaintiff that the remainder of the amount which it sought in the amended statement of claim has been paid by the defendant.

Assessment of damages – law

4. The onus is upon a plaintiff to prove its loss. The following passage from McGregor on Damages is cited by Injia J. (as he then was) in Yange Langan v. Independent State of Papua New Guinea, (1999) N1369 and was reproduced in Nae Limited v. Cameron Construction Ltd (2012) N5346:

“The plaintiff has the burden of proving both the facts and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a factor 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 failed to deny the allegations of damage or suffers default, the plaintiff must still prove his loss”.

5. Reference is also made to the following passage from the judgment of Kandakasi J. in Frank Onga v. The General Manager Engineering Management Pty Ltd (2003) N2321:

“As noted in Coecon Limited (Receiver/Manager Appointed) vs. The National Fisheries Authority of Papua New Guinea and The Independent State of Papua New Guinea (supra), a plaintiff can discharge his burden of prove (sic) by calling credible evidence. If he is able to do that in relation to what he alleges then, there is no reason why there should (not) be a finding in his favour unless, the defendant is able to rebut it by other credible evidence. Apparent in this is the fact that, once a plaintiff establishes his case on the balance of probabilities, the burden then shifts to the defendant to rebut it. If the plaintiff (sic) (defendant) fails to discharge that burden, it is open to the Court to act on the evidence of the plaintiff.”

Consideration

6. The evidence upon which the plaintiff relies to prove its loss is from two affidavits. The first is the affidavit of Mr. Billy Lin, the Managing Director of the plaintiff. It contains invoices in the sum of K868,289.16 and includes the invoices for the sum of K340,362.50 which the plaintiff claims now remains owing. The second affidavit is of Ms. Arlene Taylan, the Financial Controller of the plaintiff. It also contains the 55 invoices claimed to be outstanding in the sum of K340,362.50.

7. The evidence upon which the defendant relies is from Mr. Andrew Kidu, the Senior Legal Counsel of the defendant and Mr. Timothy Baiyo, the Acting Financial Controller of the defendant. Mr. Kidu deposes that amongst others, from the various documentation received from the plaintiff, it is confusing as to what amount exactly the plaintiff claims the defendant owes to it. On two occasions, 8^th December 2009 and on 14^th April 2009, the plaintiff informed that the final amount owing was K410,611.55, but then on four other occasions the plaintiff informed that four different totals were owing. The plaintiff then issued this proceeding claiming K868,289.16. Further, Mr. Kidu deposes that there have been instances of the plaintiff duplicating invoices. Mr. Kidu deposes that in his view, the defendant does not owe the plaintiff the amount claimed or any amount. His evidence is not rebutted.

8. Mr. Baiyo’s evidence is amongst others, that from the defendant’s records, the defendant has paid most if not all of the invoices which are alleged by the plaintiff to be outstanding, that the plaintiff has duplicated some of its invoices, that the plaintiff has on numerous occasions altered the amount it claims is owing, that Westpac Bank confirms that the defendant has paid to the plaintiff the sum of K4,045,455.84 between 2007 to 2013 and that between 2007 and 2009 when the 55 invoices now alleged to be owing were generated, the defendant paid to the plaintiff the sum of K3,969,455.84. Mr. Baiyo deposes that in his view, the defendant does not owe the plaintiff the amount claimed or any amount.

9. The onus is on the plaintiff to prove its loss on the balance of probabilities. The evidence given on behalf of the plaintiff is that there are 55 invoices which it claims have not been paid by the defendant. This evidence is to be considered against the evidence of the defendant that during the period that the 55 invoices were generated, the defendant paid to the plaintiff the sum of K3,969,455.84, that the plaintiff’s accountant who handled the defendant’s account was terminated due to incompetence in handling the account, that the plaintiff on at least four occasions informed the defendant of different amounts which it claimed the defendant owed, that duplicate invoices were issued by the plaintiff and that the plaintiff’s Financial Controller, Ms. Taylan, admitted in cross-examination that the plaintiff reduced the amount it was claiming from K868,289.61 to K340,362.52 because of the defendant’s reconciliation; by implication, not because of a reconciliation by the plaintiff.

10. It should also be noted that the plaintiff has not pleaded and it is not contained in its evidence, the total amount that the defendant was invoiced, the total amount that the plaintiff claims that the defendant paid and the details of the invoices that the plaintiff claims the defendant paid. Without this information, the court is not able to properly determine the plaintiff’s alleged loss.

11. Given the above, it may be concluded as submitted by the defendant, that the plaintiff is unable to reconcile its account with the defendant. This conclusion is fortified by the affidavit of Ms. Taylan, which was filed two months after the affidavit of Mr. Baiyo, which refers to 55 invoices being unpaid - the same invoices about which Mr. Baiyo deposed that the defendant was unable to reconcile.

12. The onus is upon the plaintiff to prove its loss. In this instance, to my mind, the plaintiff is unable to prove its loss as it is unable to reconcile its account with the defendant and so is relying upon the records of the defendant in its attempt to prove its loss.

13. Taking all of the above into account and in particular the evidence given on behalf of the defendant, the defendant has raised and I am satisfied that there exists, significant doubt that the plaintiff has suffered the loss that it claims. I am not satisfied that the plaintiff has proved its loss on the balance of probabilities. I decline to make any award of damages in favour of the plaintiff.

Orders

14. The Court orders that:

a) No award of damages is made in favour of the plaintiff;

b) The costs of and incidental to the assessment of damages shall be paid by the plaintiff to the defendant;

c) Time is abridged.
__________________________________________________________________
Mirupasi Lawyers: Lawyers for the Plaintiff
John Peter Munnell Lawyers: Lawyers for the Defendant