N3350

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 456 OF 2007

BETWEEN

KALUWIN POLUME
Plaintiff

AND

NATHAN BENNY
First Defendant

AND:

COLD PROCESS TYRES LIMITED
Second Defendant

Lae: Kirriwom, J
2007:21 September
2008: 24 April

CIVIL – Claim of damages arising out of collision of two motor vehicles – Settlement by Deed of Release for cost of Repairs only by insurer prior to claim lodged – Pleadings not disclosed settlement by Deed and sought the same relief against vehicle owner – Whether Plaintiff estopped by promissory estopped – Abuse of Process – Dismissal of proceeding – National Court Rules, Order 12 r. 40.

Cases cited:

No cases cited in the judgment.

Counsel:

S. Toggo, for the Plaintiff/Respondent 
L. Tunian, for the Defendants/Applicants

RULING

24 April, 2008

1.	KIRRIWOM, J: This is an application by the Defendants by motion seeking dismissal of the Plaintiff’s claim pursuant to Order 12 rule 40 of the National Court Rules. Rule 40 provides that where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-

a).	no reasonable cause of action is disclosed; or
b).	the proceedings are frivolous or vexatious; or
c).	the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

2.	The Plaintiff owned a 15 seater Toyota Hiace PMV Bus registration number P724X. On 19th July 2005 whilst being driven along Malaita Street and heading towards the junction of Mangola Street, it collided with a vehicle, a Mazda Bravo Utility registration LAP-910, owned by the Second Defendant and at the material time driven by the First Defendant. There appears to be no dispute that the First Defendant was at all material times driving in the course of his employment. 

3.	On 7th November, 2005 the Plaintiff signed a Third Party Release or Deed of Release by accepting K15, 775.77 from Tower Insurance (PNG) Ltd who provided comprehensive insurance cover for the Second Defendant’s motor vehicle involved in the accident. By that instrument he executed between himself and Tower Insurance, the Plaintiff in clear and unambiguous language of the instrument promised to accept the K15,775.77 in full and final settlement and agreed to release the Defendant and its insurers from all claims and demands he may have against them in the future in respect of or arising out of the damage to his motor vehicle Toyota Hiace Bus registration number P724X with a Mazda Bravo registration number LAP 910 belonging to Cold Process Tyres at Malaita Street to Mangola Street Lae on 19th of July 2005.

4.	Responding to this argument, the Plaintiff, relying on his own affidavit sworn 11th September, 2007, says that he accepted the K15, 775.00 from Tower Insurance on the advice from his lawyers for the repair costs to his vehicle. In his view the deed of release of 7th November, 2005 did not stop him from claiming loss of business as Cold Process Tyres policy cover with Tower Insurance did not include loss of business. This is correct strictly speaking form a layman’s point of view. But did he understand the language of the Deed he executed? It was for all.

5.	Almost two years later on 30th April, 2007 the Plaintiff commenced this action against the First and Second Defendants claiming damages generally and in particular loss of his PMV business and quantified his loss suffered as:

•	costs of repairs to the bus	K15, 775.77	
•	Loss of earnings for 164 days x K390 per day	K63, 960.00	
	K89, 735.77	

6.	The defendants have filed a defence to the claim and inter alia say that the Plaintiff had already accepted full and final settlement for the damage caused to his vehicle with the K15,775.77 he received and by executing the deed of release and cannot claim the same again from the Second Defendant. The Defendants are in effect raising promissory estoppel in that having executed the deed as indemnifying the Second Defendant and its insurers; he cannot now go back on that promise and claim again.

7.	Ms Tunian whom I observe put in all her efforts in preparing well for this case before making this application before me strongly argued that this claim must be dismissed in its entirety for it is an abuse of process, it is frivolous and vexatious and no reasonable cause of action is disclosed given the clear language of the deed of release described ‘Third Party Release’ executed by the Plaintiff and the Second Defendant’s insurer Tower Insurance (PNG) Ltd. She submits that the Plaintiff is bound by this deed and whatever interpretation he had or may have had of the instrument is irrelevant because that is not reflected in his pleading when he chose to conceal the fact of the settlement in his claim. She cited various cases relating to admission of extrinsic evidence in support of his claim which is probably referring to the letter from Tower Insurance addressed directly to the Plaintiff dated 4th November, 2005 on a ‘without prejudice’ basis which advised that its motor vehicle policy does not extend to cover loss of business.
 
8.	What use the Plaintiff was going to make of this letter was not canvassed in the argument by Mr Toggo for the Plaintiff other than simply rely on the Plaintiff’s own affidavit sworn 11th September, 2007 referred to earlier as his response to this application. This was pathetic to say the least. Commencing this action on behalf of the Plaintiff two years after settlement on a deed of release and advising and assisting him to pursue this claim in total contradiction to the terms of the deed of release and all its intents and purposes, one would be led to believe that this bold decision must be prompted by good and sound legal authority. I was expecting that I will be well assisted with counter argument excepting this case to be different and justifying the course taken by the Plaintiff. I am disappointed that I was referred to the Plaintiff’s own opinion as the basis for this claim. This being the case, there was no real response to the well researched submission presented by the Defendants’ lawyer
Ms. Tunian. Plaintiff’s own opener as layman is not going to rescue him from the precise and unambiguous language of the Deed he executed and led the other party to believe that this matter was now all end.

9.	I am inclined to uphold the application solely on two grounds: First, the Plaintiff is not coming to court with clean hands. Secondly, the deed of release is quite explicit in its purport and effect.

10.	Clean-hands

The Plaintiff does not deny that he had received K15, 775.77 from Tower Insurance on behalf of the Defendant in respect of the damage to his vehicle. Before he actually chose to accept that payment from the Defendant’s insurer of its vehicle, he knew from the letter he received from the Insurance Company that the policy obtained by the Defendant from Tower Insurance did not cover loss of business except repair costs to the vehicle. This fact was known long before he accepted payment of K15, 775.77 and executed the deed of release on 7th November, 2005.
 Because he was represented by lawyers throughout this time, he knew the implications of signing such document as explained to him and he would have read and understood fully what it meant. His lawyers who nevertheless chose to commence this proceeding despite the deed of release must have acted on strong and persuasive legal authority to overcome the deed, did not present any such reason in response. Furthermore, the Plaintiff had deliberately failed to disclose the fact of having received some payment from Tower Insurance in his pleading and instead sought to claim the same amount again from the Defendant second time. In my view if that fact had been pleaded by excluding 
K15, 775.77 as one of the relief sought in the writ and setting out the reason for claiming the loss of business component of his claim directly against the Second Defendant, this could go to his credit. But that is not the case here. This is a deliberate attempt to claim twice for the same amount and is tantamount to fraud.

11.	Deed of Release (described Release of Third Party)

Deed of Release is a legal document that everyone knows that once executed, a party is bound by what the deed is committing them to. It does not exclude other claims arising out of that accident such as loss of business. The deed of release in this instrument is expressed in these terms:

In consideration of Tower Insurance (PNG) Limited as indemnifiers of Cold Process of P.O. Box 2128, Lae, Morobe agreeing to pay Kaluwin Polume the sum of Fifteen Thousand Seven Hundred Seventy Five Kina and Seventy Seven Toea (K15, 775.77). I/We, Kaluwin Polume of C/- P.O. Box 2064, Lae, Morobe Province hereby fully accept the offer in full and final settlement and agreed to release the said Insured and their Insurer from all claims and demands which I/We now have or but for this discharge may in future have against the said Insured and the Insurer, his/her or their servants and agents and/or indemnifiers in respect of or in any way arising out of the damages to my/our Toyota Hiace Bus bearing Registration number P724X with Mazda Bravo bearing registration number LAP 910 belonging to Cold Process Tyres at Malaita Street to Mangola Street Lae on the 19th of July 2005.

- I/We have other insurance or comprehensive insurance
covering this loss/damage

- This discharge is not binding until I/We have received the payment referred to above.

- I/We agree to co-operate fully in any recovery action including giving evidence in Court if necessary.

12.	The operative words in the deed are ‘hereby fully accept the offer in full and final settlement and agree to release the said insured (which is Cold Process Tyres) and their insurer (which is Tower Insurance) from all claims and demands which we now have or but for this discharge may in future have, against the said insured and the insurer, their servants and agents and or indemnifiers in respect of or in any way arising out of the damages to our Toyota Hiace Bus bearing registration number P724X with a Mazda Bravo bearing registration number LAP 910 belonging to Cold Process Tyres at Malaita to Mangola Street Lae on the 19th of July 2005’.

13.	The Defendant is entitled to rely on this deed of release as indemnifying him from further claims arising out of this same motor vehicle incident of 19th July 2005. After all vehicle owners purchase at exorbitant prices comprehensive insurance covers for their motor vehicles to insure themselves against damage caused to their vehicles and to third party’s property by their vehicles and to be relieved of them in the event of accidents. In this case the insurer had taken care of that as evidenced by the deed of release. If there was anything more that fell outside this insurance cover, the case ought to have been clearly and adequately pleaded so that the Defendant could properly respond and the issues become crystal clear at the outset to be addressed. The Plaintiff has not convinced me that notwithstanding the deed of release, he can still proceed with his claim on the loss of business quite apart from the deed which only relates to the repairs to the vehicle. Instead the case has been proceeded with in a haphazard manner with no real determination. In my view, the Plaintiff is bound by the deed that he executed.

14.	I therefore uphold the Defendant’s application and dismiss the entire proceeding as an abuse of process. Costs follow the event.

____________________________________________

Daniels & Associates Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendants