Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Sakura Marine Products Ltd v Siware [2012] PGNC 306; N5352 (27 September 2012)

N5352

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 202 OF 2009

BETWEEN:

SAKURA MARINE PRODUCTS LIMITED
Plaintiff

AND:

PATRICIA SIWARE trading as
PHILO MARINE
First Defendant

AND:

SIBONA MEMENA trading as TRADE
MARINE PRODUCTS
Second Defendant

Waigani: Hartshorn J.
2012: June 18th,
: September 27th

Assessment of Damages

Case cited:

William Mel v. Coleman Pakalia & Ors (2005) SC790

Counsel:

Mr. J. Sirigoi, for the Plaintiff
Mr. B. Ovia, for the First Defendant

27th September, 2012

1. HARTSHORN J. This is a decision on the amount of damages to be paid to the plaintiff, Sakura Marine Products Limited (Sakura Marine) by the first defendant Patricia Siwae trading as Philo Marine (Ms Siwae). A hearing to assess damages was held after Ms Siwae's defence was struck out and judgment entered on the 10th June 2011.

2. Sakura Marine and Ms Siwae entered into a written agreement for Sakura Marine to advance funds to Ms Siwae in consideration for which Ms Siwae would exclusively procure bêche-de-mer products for Sakura Marine. Sakura Marine alleges amongst others, that Ms Siwae breached the agreement by providing bêche-de-mer product to the second defendant and by not providing Sakura Marine with bêche-de-mer product to the value of the funds advanced by Sakura Marine.

3. At the hearing to assess damages, Sakura Marine sought the sum of K 504,395.66 in damages, being the total funds advanced to Ms Siwae, less the value of the bêche-de-mer product provided to Sakura Marine.

4. Counsel for Ms Siwae submitted that Sakura Marine's claim should be dismissed as there was no evidence that Sakura Marine had advanced K1,090,088.00 to Ms Siwae as alleged, that evidence that Ms Siwae had acknowledged receiving and owing the funds was forged and that in any event there was evidence that Ms Siwae had procured bêche-de-mer product for Sakura Marine to the value of K1,264,500.00.

Assessment of damages – law

5. As to the law on the assessment of damages following the entry of default judgment, the Supreme Court in William Mel v. Coleman Pakalia & Ors (2005) SC790 stated:

"The principles that apply to a trial on assessment of damages following entry of default judgment were summarised by Kandakasi J. in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002), National Court, N2182.

His Honour stated:

A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant's defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.

2. Any matter that has not been pleaded that is introduced at the trial is a matter on which the defendant can take an issue on liability.

3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.

4. 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.

5. 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.

The Supreme Court adopted and applied those principles in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, Amet CJ, Sheehan J, Kandakasi J.

Kandakasi J. applied those principles recently in the National Court in Desmond Huaimbukie v James Baugen (2004) N2589. We believe His Honour succinctly and correctly stated the law. We elaborate on the first principle by saying that once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven. (See Keith Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337, National Court, Kapi DCJ and Andale More and Manis Andale v Henry Tokam and The State (1997) N1645, National Court, Injia J.)........................

Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach: the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven; only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability."

The claim

6. As judgment has been entered, the facts pleaded in the statement of claim are regarded as proved as are all questions of liability. So in this instance, it is accepted that Ms Siwae breached the agreement by not exclusively providing bêche-de-mer product to Sakura Marine and by not providing Sakura Marine with bêche-de-mer product to the value of the funds advanced to her.

Proof of damage

7. The affidavits relied upon by Sakura Marine were entered into evidence with the consent of Counsel for Ms Siwae notwithstanding that the deponent, Mr. Arnold Sakura, although required, was not available for cross-examination. An affidavit of Mr. Sakura has annexed amongst others, letters purportedly signed by Ms Siwae acknowledging that K433,448.16 is yet to be paid. Further, 16 payment vouchers are annexed in the total sum of K178,660.00. It is deposed that these vouchers are acknowledged by Ms Siwae. There is also a further acknowledgement of this sum of K178,660.00 being advanced, in a packing list dated 19th February 2009, from Ms Siwae.

8. Ms Siwae in her affidavit, deposes that her purported signatures acknowledging amounts owing are forged. Ms Siwae further deposes that she was not provided with a copy of Mr. Sakura's affidavit filed on 10th June 2009 until 28th October 2011. As to not being provided with a copy of Mr. Sakura's affidavit, I note that Mr. Lewis Siwae on behalf of Ms Siwae replied to Mr. Sakura's affidavit, by affidavit filed 18th June 2009. Mr. Lewis Siwae's affidavit appears to have been prepared by the lawyers for Ms Siwae and so they had a copy of Mr. Sakura's affidavit. In such circumstances, one would expect Ms Siwae's lawyers to have provided a copy of Mr. Sakura's affidavit to her as well as to Mr. Lewis Siwae. Given this, I attach little weight to Ms Siwae's assertion that she did not see Mr. Sakura's affidavit until 28th October 2011.

9. As to Ms Siwae's signatures being forged, one would have thought that an appropriate application would have been made in regard to the alleged forgeries when the acknowledgments by Ms Siwae in Mr. Sakura's affidavit were brought to Ms Siwae's attention, whenever that was. In any event, questions of liability have been determined by the entry of judgment. An allegation of forgery may be the basis of a defence and should have been raised earlier. The fact that it has only been raised now does not add to its credibility. I note also that Mr. Lewis Siwae did not raise the issue that Ms Siwae's signatures had been forged in his affidavit in reply filed 18th June 2009. I am not inclined to accept Ms Siwae's evidence that her signatures were forged, given the circumstances.

10. Ms Siwae further deposes that bêche-de-mer had been supplied to Sakura Marine in excess of the funds advanced to her. Reliance is placed upon a purported letter from Airlines PNG Daru Agency. This letter is undated and the author of it is not identified. Given these circumstances and that this evidence is inconsistent with the acknowledgements of amounts owing deposed to in Mr. Sakura's affidavit I attach little weight to it.

11. I am satisfied that Sakura Marine has sufficiently proved its damage.

Orders

12. The Court orders that:

a) the first defendant shall pay to the plaintiff damages in the sum of K504,395.66 (judgment sum) plus interest on the judgment sum at the rate of 8% per annum from 27th February 2009 until full payment of the judgment sum.

b) the first defendant shall pay the plaintiff's costs of and incidental to this proceeding.

c) time is abridged.
_____________________________________________________________
Sirigoi Lawyers: Lawyers for the Plaintiff
Kundu Legal Services: Lawyers for the First Defendant