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Wahab v Wilkinson [2006] PGNC 94; WS 548 of 2002 (19 September 2006)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 548 OF 2002

BETWEEN:

ABDUL WAHAB
Plaintiff/Cross Defendant

AND:

DAVID WILKINSON
First Defendant

AND:

ROYAL PAPUA YACHT CLUB
Second Defendant/Cross Claimant

AND:

GUY LAMONT
Third Defendant

AND:

BOROKO MOTORS LIMITED
Fourth Defendant

Waigani: Davani, .J
2006: 11, 19 September

COMMON LAW – Claim for damages – claim based on conversion – tests to be applied – whether plaintiff had possession or immediate or right to possession of chattel – no lawful justification in interference with chattel.

COMMON LAW – Claim for damages – loss of dinghy, motor & accessories – whether Bailment applicable – Occupancy Agreement on berthing – Indemnity clause specific – on Bailment – Berthing illegal – no Bailee/Bailor relationship.

Cases cited:
Papua New Guinea Cases:
O’Regan v. Hui Bros Transport Pty Ltd [1969 – 70] PNGLR 261;
Co-ordinated Air Services Pty Ltd v. Air Cair Pty Ltd [1988 – 89] PNGLR 549;
Rabtrad Niugini Pty Ltd v. ABCO Pty Ltd [1990] PNGLR 155;
John Tuink & Ors v. The State & Ors [1994] PNGLR 264;
Peter Goodenough v. The State N2157;
Albert Baine v. The State N133;

Overseas Cases:
MCC Proceeds Inc. v. Lehman International (Europe) [1997] EWCA Civ 3068; [1998] 4 All ER 675;

Texts Cited:
Salmond on the Law of Torts, 16th Edn.;
Halsburys 4th Edn. Vol. 45 (2).

Counsel:
P. Nanu, for the Plaintiff/Cross-defendant
F. Griffin, for all defendants/Cross-claimant

DECISION

19 September, 2006

1. DAVANI .J: This matter proceeded to trial on the issue of both liability and quantum.

2. By its Writ of Summons and Statement of Claim filed on 1 May, 2002, the plaintiff claims damages for unlawful conversion for the loss of a new outboard motor, a dinghy and accessories including damage to the boat and loss of business. The plaintiff also claims alternatively for the replacement of the dinghy, outboard motor and parts.

3. The second defendant also filed a Cross-claim which is before me for determination.

Background

4. The first defendant is the second defendants (‘RPYC’) manager. The third defendant is the Boroko Motors’ Marine Workshop Manager. The fourth defendant is a company that carries on business under that name and repairs boats and vehicles.

5. The plaintiff claims to be the owner of a dinghy and engine which were allegedly damaged whilst in the RPYC’s custody.

6. The plaintiff claims that whilst the RPYC had the care and control of the dinghy, that the dinghy sank and was thereafter, repaired by the third defendant in the fourth defendants premises, without first obtaining the plaintiffs approval and authorization.

Evidence and Analysis

7. Several affidavits were filed which I will refer to. These were tendered into court through the respective witnesses and marked as exhibits.

i. Ownership of dinghy

8. In the plaintiff’s evidence, he claims to be the owner of the boat ‘Abdul’, a 19 foot dinghy. He states in his affidavit that he had an agreement with one Tony Wang, an Asian, for Tony Wang to purchase the dinghy after which the both would use it for a fishing venture. The plaintiff claims that the agreement was also that he would repay Tony Wang from the proceeds of the sale of fish. There is no evidence from Tony Wang or any other person to confirm this arrangement that the plaintiff refers to.

9. Receipts produced to the court and which are attached to the plaintiffs affidavit sworn on 13 November, 2003 and filed on 14 November, 2003 (‘first affidavit’) show that two separate amounts of K1,000.00 and K5,000.00 were paid by Tony Wang to PNG Fibreglass Manufacturers Pty Ltd on 11 October, 1999 and 28 October, 1999, respectively. This affidavit was tendered through the plaintiff and marked as an exhibit.

10. The only good evidence on ownership of the dinghy are the receipts. There is no other documentation showing ownership to the dinghy. Although the plaintiff claims the dinghy was purchased for him by Tony Wang, neither Tony Wang nor any other person has put evidence before this court to confirm this arrangement. As I stated, the only good evidence are the receipts. Considering the very meager evidence from the plaintiff on ownership, I found to be most dissatisfying the fact that plaintiffs counsel did not illicit from either Sibona Turia or Sare John Abdul, evidence on ownership to the dinghy.

11. And in the exercise of my discretion and relying on the only good evidence before me, I am unable to find that the plaintiff is the owner of the dinghy.

12. Which takes me to another issue, that of persons intending to go into business. If an unsophisticated person wishes to enter into commercial or business arrangements, no matter how small, they must ensure that these ‘arrangements’ are documented, because the risks in the business world are many. And this is one such situation where an ordinary citizen failed to take precautions. This court is unable to find he is the owner of the dinghy because he is unable to show that on the balance of probabilities.

ii. Ownership of Outboard Motor;

13. Sibona Turia, the plaintiff’s wife, deposes in her affidavit sworn on 13 November, 2003 and filed on 14 November, 2003, that on 12 October, 1999, the plaintiff and her discussed the purchase of a Johnson motor 175 hp from Toba Motors. Attached to that affidavit is a receipt issued to one Sibona Turia for K11,000.00 by Steamships Automotive Limited and dated 19 October, 1990. The receipt was issued for a "Johnson OBM". Also attached to that affidavit is an invoice from "the Steamships Automotive Limited incorporating Toba Motors and others", showing the amount of K11,000.00. I accept that Sibona Turia paid for an outboard motor and that she owns it.

14. Sibona Turia’s affidavit was tendered through her and marked as an exhibit.

iii. Authority to berth at the RPYC Marina;

15. The plaintiff deposes in his affidavit that on 15 October, 1999, he together with his son Sare John Abdul and a person called Mr Danny, a PNG Fibre Glass employee, mounted the outboard motor onto a dinghy. He deposes that Mr Danny then offered to arrange with the RPYC to have the dinghy brought into the RPYC’s marina to be berthed there.

16. He deposes further that Mr Danny organized this and on 22 October, 1999, together with Mr Tony Wang, Mr Danny and Sare John Abdul, drove the boat hitched onto a vehicle, through the RPYC’s security gate then down to the marina, where the boat was berthed. A photograph of the area where the boat was berthed was handed up to the court. It shows a boat sitting alongside a jetty. It also shows a vehicle parked above a partly submerged ramp, also alongside the jetty. There is a trailer hitched to the vehicle.

17. Sare John Abdul, the plaintiff’s son, deposes in his affidavit sworn and filed on 13 November, 2003 that he was with his father, the plaintiff, on 17 October, 1999, when, with the help of a Mr Danny, a PNG Fibre Glass employee, they mounted the motor onto a dinghy. He deposes that when they were at the security gates of the RPYC, the security guards opened the gate and allowed them entry into the RPYC grounds. That he spent the night on the dinghy which was tied to the jetty. When his father, the plaintiff, enquired the next day, he told his father that the boat did not have any leaks. They left the boat there and went home. His affidavit was tendered through him and marked as an exhibit.

18. The issue is whether the RPYC gave the plaintiff the authority to berth at its marina. The plaintiff deposes in his first affidavit, that on 22 October, 1999, both Tony Wang and him went to the first defendants office at the RPYC, Port Moresby, and asked the first defendant how much the berthing fees were. The plaintiff deposes that the first defendant told him that the fees were K30.00 per day, so they (see par. 10 of plaintiff’s first affidavit) paid K90.00 for three days. This was paid at the RPYC’s reception desk. He deposes that Tony Wang waited to pick up the receipt whilst he walked out and left him there.

19. Mr Wilkinson in his affidavit sworn and filed on 15 May, 2006, deposes that he has been the RPYC’s manager since October, 1999. He deposes that his duties include managing the RPYC’s premises and that the RPYC’s business includes leasing berth/handstand stations to owners of yachts or boats. His duties also include ensuring that the RPYC’s members comply with its rules.

20. Mr Wilkinson deposes that to his knowledge, the plaintiff has never been, at any time, a member of the RPYC. He also deposes that prior to 10 November, 1999, he had never met the plaintiff and had never spoken with him. Mr Wilkinson deposes that the vessel Abdul may have been illegally moored in the marina because he has not sighted any records of permission or authority having been given to the plaintiff to use the marina, or that the plaintiff ever signed an Occupancy Agreement. He deposes further that before any vessel berths in the marina, that they must sign an Occupancy Agreement. He deposes that no such agreement was signed by the plaintiff for the vessel Abdul. A sample of the Occupancy Agreement is attached to his affidavit.

21. In cross-examination of the plaintiff, he continued to maintain that the berthing fees were paid. But he could not produce the receipts. And if such fees were paid or permission given, I am sure the RPYC would have some records. And these would have been discovered during the discovery process. But they were not. And I do not know if the plaintiff insisted on this because there is no evidence before me to that effect.

22. The plaintiff however continues to maintain that even if he did not sign anything, he was allowed by the security guards to drive through the RPYC gate. There is no evidence before me as to who drove the car and who owned the car. It may be that the car was a member’s car or there was some identification on it e.g a stamp or sticker that did not draw any questions from the security guards. The plaintiff cannot rely on the fact that because the security guards let him through, that it is sufficient authorization. Although his son’s evidence is also that they were allowed entry into the RPYC, that in itself is not authority or is not confirmation of membership. It is common knowledge that only members are allowed into the RPYC. It could be that Tony Wang was a member but again, there is no evidence to that effect.

23. I also have before me a copy of the RPYC’s Occupancy Agreement which is usually signed by persons wishing to berth at the marina and the RPYC’s representative, in this case, the first defendant. It states that the occupant must be a member of the RPYC. The term of the occupancy is specified in the agreement and fees are paid quarterly or annually, in advance. As to safety, the agreement states that the occupant shall not bring or store fuel or any products of a flammable nature, into the marina without the prior written consent of the RPYC. In this case, the evidence is that the plaintiff had in the dinghy, four large drums of fuel. Which reinforces the first defendants submissions that the RPYC did not give permission or authorize the plaintiff to berth at the marina because if Mr Wilkinson had spoken to the plaintiff and Mr Wang as claimed, he would in all likelihood have furnished them with the occupancy agreement and also enquired on the contents of the dinghy.

24. So did the plaintiff obtain the first defendants and second defendants authority before berthing? It appears not. At least there is no evidence before me to that effect.

iv. Whether the first and second defendants had a duty of care over the dinghy?

25. The plaintiffs claim is in unlawful conversion and losses arising from this unlawful conversion.

26. The plaintiff’s lawyer did not make any submissions on the law on conversion and when it is unlawful. The defendants’ lawyer filed written submissions on conversion and other issues which I have considered and adopted in part in these reasons.

27. First, the law applicable in a case of conversion is set out in Salmond on the Law of Torts, 16th Edn., at pp. 96 – 97. It reads;

"S. 30. What is Conversion

A conversion is an act ... of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it. Two elements are combined in such interference: (1) a dealing with the chattel in a manner inconsistent with the right of the person entitled to it, and (2) an intention in so doing to deny that person’s right or to assert a right which is in fact inconsistent with such right. But where the act done is necessarily a denial of the other’s right or an assertion of a right inconsistent with it, the tort may have been committed, though the doer may not know of or intend to challenge the property or possession of that other. If a person, not being an agent or bailee, deals with the goods of another as his own, his intention is irrelevant, for liability in conversion is strict."

28. In the same textbook is found the following statement relating to remoteness of damage:

"If the defendant has thus intentionally interfered with a chattel without lawful justification and loss of the chattel does in fact result from the interference, it is no defence that such a loss was not intended, or even that it was not the natural or probable result." (pg. 107).

29. Halsburys 4th Edn., Vol. 45 (2) at par. 559 states this on who may sue in conversion;

"559. Right of possession and property. To sue in conversion, a claimant must show that he had either possession or an immediate right to possession of the chattel at the time of the act in question. Either relationship with the chattel affords the necessary possessory title to sustain a claim for conversion. If either is shown, the claimant need not be the owner of the chattel in order to succeed in conversion; indeed an owner can be liable in conversion to a person who had either possession or the immediate right of possession at the time of the owners act...". (pg. 367).

30. In this case, the ownership of the outboard motor is properly proven, that it is owned by Sibona Turia, the plaintiff’s wife. But she is not named as a plaintiff. There is no pleading as to how the plaintiff can claim the loss of the outboard motor either as matrimonial property or jointly owned property. Only at par. 1 of the Statement of Claim is there a mention of his wife. It reads;

"1. The plaintiff is an adult male citizen and the owner of the property/boat "ABDUL" 19 ft Boat with Johnson 175 hp motor purchased by his wife and can sue and be sued in his name and style as cited."

31. Plaintiffs counsel has also not made submission on this. So I cannot see the basis on which the plaintiff is laying claim to the outboard motor. That claim must fail.

32. In this case, the first defendants evidence is that the plaintiff did not obtain permission to berth or moor the dinghy at the Marina.

33. Even if he were not the owner of the dinghy and motor, he could still claim at conversion. But the defendants submit that, the plaintiff cannot do that because he had no right, title or license to be at the second defendant’s marina in the first place. On that note, the defendants submit that it is most probable that the plaintiff brought the dinghy into the marina by sea. But there is no good evidence before me to that effect, only the strong evidence, that non-members of the RPYC are not allowed entry into its premises.

34. In this case, conversion would occur if the RPYC personnel had

1. dealt with the dinghy in a manner inconsistent with the right of the person entitled to it; and

2. intended to deny that persons right to the property (see Salmond on Torts (supra).

35. Here, the first defendants role in this commenced when he authorized the salvage of the dinghy and outboard motor. And that occurred on 10 November, 1999, when the first defendant learnt from the RPYC’s security staff that the dinghy had sunk at the boat ramp pontoon in the early hours of 10 November, 1999. The first defendant was at the scene about 7.30am to 8am and supervised the salvaging of the dinghy. He said there was a large amount of fuel and oil leaking from the vessel so he had to deal with it immediately to prevent leaking oil spreading to other boats berthed in the marina or from destroying fish and other wildlife.

36. And for the plaintiff to succeed, he must also show that he had immediate right to possession or possession of the dinghy at the time of the act. He need not show that he is the owner. (see Halsburys 4th Edn. Vol. 45 (2) par. 559). But this is not a case where there was a legal arrangement between the plaintiff and the second defendants, for the second defendant to "house" the plaintiff’s dinghy. I have already found on the evidence that no such arrangement was in existence or in place between the plaintiff and the RPYC. And this situation can be distinguished with the case MCC Proceeds Inc. v. Lehman International (Europe) [1997] EWCA Civ 3068; [1998] 4 All ER 675 where the court held the principle that a person had title to sue in conversion if he had either actual possession or an immediate legal right to possession of the goods at the time of the conversion. In that case, M Inc, a Delaware company controlled by RM, owned the controlling interest (10.6m shares) in B Inc. In November 1990, following a stock lending agreement by the defendant, a wholly-owned subsidiary of SL, the shares were transferred out of M Inc’s name to BIT, an investment trust which was also controlled by RM, as nominee for M Inc under an agreement governed by New York law. Thereafter, in breach of that agreement and without M Inc’s knowledge or consent, 1.9m B Inc. shares were pledged to the defendant as collateral under the stock lending agreement. After default, following RM’s death in 1991, the defendant, in exercise of its power of sale as pledge sold the B Inc shares to SL. M Inc thereupon issued proceedings against SL for the recovery of the B Inc shares, but the judge dismissed the claims, holding that under the terms of the nominee agreement BIT had held the shares on trust for M Inc, and that SL had acquired good title to the shares as a bona fide purchaser for value without notice. In 1995, the plaintiff to whom M Inc’s rights in respect of the B Inc shares had been assigned after it became insolvent, issued proceedings against the defendant alleging conversion of fire B Inc share certificates. The Statement of Claim made no reference to the first action. The defendant applied to strike out the Statement of Claim as disclosing no cause of action or vexatious or abuse of process. The judge granted the application holding that the plaintiff could not sue for conversion. The plaintiff appealed.

On appeal, the Court of Appeal, Civil Division held that a person had title to sue in conversion if he had either actual possession or an immediate legal right to possession of the goods at the time of conversion. A claim for conversion of goods was not, however, maintainable by a person who had only an equitable interest in them against another, who had acquired the legal title to the goods as a bona fide purchaser for value without notice of the prior equitable claim, since such an interest had been overreached and extinguished. Having regard to the findings and conclusions of the judge in the first action, M Inc had only an equitable interest in the shares and the share certificates, and the defendant, as the bona fide purchaser from BIT of the legal estate in the shares without notice of any breach of trust by BIT or of any claim by M Inc, had acquired a good title to them, extinguishing M Inc’s prior equitable interest. It followed that the plaintiff could not maintain a claim for conversion against the defendant as its predecessor in title had only an equitable title to the share certificates and the shares, and the judge had been right to dismiss the action for that reason.

37. Clearly, the plaintiff cannot sue in conversion when, although he was in possession of the dinghy, there was no existing legal arrangement between the first and second defendant and him, for him to berth the dinghy at the Marina.

38. Which means the first and second defendants did not have a duty of care over the dinghy and properties that were on it when it sank.

v. Cross-claim

39. The second defendant sues the plaintiff for its costs of salvaging the dinghy and motor. The costs incurred as pleaded in the cross-claim are;

40. In its Defence to the Cross-claim filed on 6 August, 2002, the plaintiff repeats his assertions that the first defendant did not obtain his consent and authority prior to performing work on the motor and dinghy.

41. The plaintiff claims that he did not authorize the first and second defendants to salvage the dinghy and engine and to clean the engine. The first defendant’s evidence is that if a boat meets with an accident in the marina, that he would take steps to immediately salvage the boat and engine, to save them. And he did that to the dinghy, although he did not know who the owner was. He also said that the dinghy was moored at the boat ramp pontoon which is an area where boats are normally not berthed, i.e the pontoon is used by boat owners when launching their boats. And there is evidence before me in the form of the photograph that was earlier tendered into evidence. It clearly is not an area for boats to be berthed. Which tells me that if the dinghy was berthed there, that it was there illegally because the first defendant would not have allowed that. He would have been allowed to launch the boat, (subject to the RPYC’s permission, of course), and that was it. And that permission was not given.

42. And should the plaintiff have given his authority before the salvage operation? As I see it, first, the first defendant did not know who owned the dinghy which means he could not locate the plaintiff even if he did not want to. Secondly, fuel was being emitted from the four (4) drums which were fully immersed in the water proving to be a hazard to the environment and traffic on the water and thirdly, as the custodian of the RPYC, the first defendant had a duty to save the engine and dinghy by immediately salvaging them and his evidence confirms that. It also brings to the fore the reality then that only members are allowed to berth at the marina. Which was probably why the first defendant acted the way he did to save a member’s property, which was his legal duty as custodian and manager of the RPYC.

43. And the plaintiff did not give evidence as to what he would have done under those circumstances. I consider that stance to be very unreasonable.

44. Should the plaintiff pay the fourth defendant for services rendered?

45. When the dinghy and motor were salvaged, the first defendant did what he thought was proper, under the circumstances. Mr Nanu for the plaintiff did not make any submissions on the law, only relying on the fact that the plaintiff did not authorize the third and fourth defendants to clean the engine, hence incurring costs.

46. The third defendant, Guy Aird Lamont, relies on an affidavit which he swore and filed on 2 November, 2005. This affidavit was tendered through him as an exhibit.

47. He is a manager with the fourth defendant and has had extensive years of experience in the repair of outboard motors and boats. That is not disputed. He deposes in his affidavit that on the morning of 10 November, 1999, he received a telephone call from a long term member of the RPYC who advised that a boat had sunk near the launching ramp of the RPYC and was blocking the ramp. He was asked to salvage this vessel which he agreed to do but only after the RPYC had given him an official Yacht Club order. Mr Lamont was also advised by the Yacht club representative then, one John Sutter, that the ownership of the dinghy and motor was unknown to him, but Mr Sutter gave the fourth defendant an official yacht club order, anyway.

48. Mr Griffin for the RPYC/cross-claimant, relies on s. 4 of the Unclaimed Goods Act 1996 in submitting that the bailee has the right to sell repaired goods not redelivered. But is this a situation of a bailor/bailee?

49. The RPYC’s Occupancy Agreement is specific on this. It states under its Indemnity Clause in no uncertain terms that "The club shall not be deemed to be a Bailee for any purpose whatsoever". It is necessary that I set out the full text of the Indemnity clause. It reads;

"INDEMNITY

The Club shall not be liable and accepts no responsibility for the safety of any Vessel, craft, trailer, motor vehicle and other property in or about the confines of the marina nor for the adequacy or otherwise of the marina or of the Berth/Hardstant Station or any other part of the facilities of the marina and the Club shall not be liable to the Occupant or any other person for any loss or damage to property incurred or suffered within the confines of the marina whether the same occurs (as a result of the negligence or otherwise howsoever) and whether or not attributable to the acts or defaults of the Club or its servants or agents or contractors or otherwise however. The Occupant in addition shall indemnify the Club against any loss, expense or claims suffered by the Club within the marina and arising as a result of the Occupants acts or omissions of others to which the Occupant has contributed (whether or not as a result of negligence). The Club shall not be deemed to be a bailee for any purpose whatsoever.

The Occupant accepts full and exhaustive responsibility for all loss and damage to any Vessel, craft, motor vehicle, trailer and other property in or about the confines of the marina owned by the Occupant or the Occupant’s invitees, and indemnifies the Club in respect of any damage or loss howsoever caused thereto. The Occupant shall at all times keep the Vessel including trailer fully insured with an insurance company against loss or damage by fire, storm, tempest, typhoon, act of God and all other usual maritime risks including explosion, against all public liability for a minimum amount of one million Kina (K1,000,000) or such other sum as the Club shall determine from time to time, per occurrence, against public liability for domestic staff and such other risks as the Club may require the occupant to insure against. If the occupant fails, refuses or neglects to insure as aforesaid, the club will have the right to remove the Vessel from the Berth/Hardstand Station. The Occupant shall at all times ensure that the Club has a copy of the current insurance documents that satisfy this clause." (my emphasis).

50. Before I discuss the effect of this clause, it is necessary that I set out the principles on Bailment and Bailor/Bailee.

51. The principle of Bailment was considered in O’Regan v. Hui Bros Transport Pty Ltd [1969 – 70] PNGLR 261; Co-ordinated Air Services Pty Ltd v. Air Cair Pty Ltd [1988 – 89] PNGLR 549 and referred to by Doherty .J in Rabtrad Niugini Pty Ltd v. ABCO Pty Ltd [1990] PNGLR, 155 where the court held;

"Bailment namely a delivery of goods on a condition that they shall be restored to the bailor according to his direction as soon as the purpose for which bailment was entered into has been completed. Once there is a bailment and in as much as it appears that delivery has not been made in strict compliance with the conditions of the contract of bailment the burden lies on the defendant of proving delivery to the plaintiff or under some other actual authority of the plaintiff". (pgs. 159 and 160).

52. Mr Griffin in relying on s. 4 of the Unclaimed Goods Act submits further that whoever was the owner of the vessel at the date of its sinking on 10 November, 1999, that by their actions in bringing the vessel into the RPYC’s private marina, that "it was agreed between RPYC and the owner that a bailment situation would be created whenever RPYC incurred costs to salvage the owner’s vessel." (pg. 6 of Mr Griffin’s written submissions). On questioning by the Bench as to this statement, Mr Griffin reaffirmed his submission that a bailment situation is created in such a scenario. I find these submissions to be incorrect. The Occupancy Agreement, the only document governing the relationship between owners of vessels that berth at the marina and the RPYC states in no uncertain terms that the RPYC is not responsible for the acts or omissions of occupants who, under the Occupancy Agreement, are defined to be a member of the RPYC. And it states that the occupant shall indemnify the RPYC against any losses or expenses suffered by the Club within the marina and arising as a result of the occupant’s acts or omissions. Most importantly, it states that the RPYC shall not be a bailee for any purpose.

53. The RPYC is protected under the terms of the Occupancy Agreement from claims that may be lodged against it by occupants. Which is why the Indemnity clause also requires that all vessels must be insured. And I would assume that it is the RPYC’s practice to insist that occupants take out insurance cover and demonstrate to it that they have insurance cover, before moving in.

54. In this case, the first defendant salvaged the boat because he may have acted under the assumption that the dinghy was owned by a member and occupant. I say this because his evidence is that only members are allowed into the marina. But his evidence to the court is also that at the time of the salvage, he did not know who owned the boat, but he salvaged it anyway. And he incurred costs in the process. He took that risk knowing full well he did not have an executed Occupancy Agreement nor did he have assured insurance cover from an occupant, in this case the plaintiff. Both counsel did not make submissions on the assumption of risk nor is it pleaded in the plaintiffs defence to the cross-claim. So I will not take this further.

55. Neither Guy Lamont nor Mr Wilkinson in their evidence say what has become of the engine. But when the RPYC gave the official order to Boroko Motors to repair and clean the engine, the official order no. 12703 addressed to Boroko Motors to the attention to Guy Lamont, and which is attached to Mr Wilkinson’s affidavit, gave Guy Lamont specific directions to clean the dinghy and engine. It read;

"* Please remove craft from water. Take to (?)

* Remove engine, dismantle & clean – (?) (motor submerged)

* Please hold craft & engine on basis of workers lien

* Until further advised.

(signed) _________(Signed)_____________"
Royal Papua Yacht Club Inc.

56. Mr Wilkinson did not explain what the above writing meant. But as far as I can tell, it is an authority from the RPYC to Boroko Motors to clean the engine and dinghy.

57. Is there evidence of payment of these expenses by the RPYC? All I have are invoices attached to the affidavit of Mr Wilkinson. These are invoices from the RPYC to "ABDHU" at "P.O. Box 140, Port Moresby, NCD". And there is no evidence from Mr Wilkinson as to who ‘ABDHU’ is although the plaintiff assumes it is the name of the dinghy. And ‘P.O. Box 140’ is the RPYC’s postal address. So the conclusion I reach here is that the first and second defendants have not produced receipts issued to them by Boroko Motors or notations in their business records or some form of record showing payment made by the RPYC to Boroko Motors for salvage work to the dinghy and motor. And this also applies to the claimed period of salvage.

58. The alleged loss of K9,233.90 must be proved on the balance of probabilities. This statement is supported by many authorities decided in this jurisdiction on this point, a few of which I set out herein. In Peter Goodenough v. The State N2157, where Salika .J supported the above view when he said "In the absence of proper documents the court cannot award damages asked for". Likewise in John Tuink & Ors v. The State & Ors [1994] PNGLR 264, his Honour Mr Justice Woods said "...once you are claiming for what are major economic activities, enterprises the court is entitled to insist on proper evidence in the nature of ledgers and accounts books and even taxation returns to comply with modern laws. The Court cannot find a judgment based on mere assertions or assumptions". Mr. Justice Woods expressed a similar view in the case of Albert Baine v. The State N133 when he said "The Courts must demand more corroboration of such a value and cannot go merely on the talk of the plaintiff. By analogy, if a car is damaged in any accident, a court requires an appropriate valuation from a reputable car dealer, if a house is destroyed, it is usually assessed by an insurance assessor...the court must have independent evidence to support estimates of value...".

59. In this case, there is no such evidence. I make no findings on the cross-claim because it has not been proven on the balance of probabilities.

Conclusion

60. So the evidence and my findings so far are that the plaintiff does not own the dinghy. The motor is owned by his wife. But she does not make a claim for its return. The first defendant ordered the salvage of the boat without knowing who the owner was.

61. As for the second defendants claim on Trespass, this claim has not been particularized nor has it been progressed in pleadings or affidavit material. I make no orders in relation to that.

Orders

62. I make the following orders;

1. The plaintiffs claim is dismissed;

2. The second defendants cross-claim is dismissed;

3. The plaintiff shall pay all defendants costs on his claim against the defendants;

4. The second defendant shall pay the plaintiffs costs of the cross-claim;

5. All costs shall be taxed if not agreed.

___________________________________

Public Solicitor: Lawyer for the Plaintiff
Young & Williams: Lawyer for all defendants & Cross Claimant