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PNG Oxygen Ltd v Oxy-Fuel Ltd [2017] PGNC 302; N7009 (16 March 2017)

N7009

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1232 OF 2013

BETWEEN:
PNG OXYGEN LIMITED

Plaintiff

AND
OXY-FUEL LIMITED
First Defendant

AND
DHAKA (PNG) LIMITED
Second Defendant

AND
KOK CHUAN LIM
Third Defendant

Waigani: Hartshorn J
2016: 20^th April &16th May
2017:16^th March

Trial

Counsel:

Mr. S. Gor, for the Plaintiff
Mr. R. Ababa, for the Third Defendant

16^th March, 2017

1. HARTSHORN J: PNG Oxygen Ltd (PNG Oxygen) sues Oxy-Fuel Ltd (Oxy Fuel), Dhaka (PNG) Ltd (Dhaka) and Mr. Kok Chuan Lim (Mr. Lim) for conspiracy against, and the defrauding and injuring of, PNG Oxygen in its business. It seeks amongst others, judgment and damages.

2. I permitted the trial of the proceeding to proceed in the absence of representation of Oxy Fuel and Dhaka as I was satisfied that they had properly been made aware of the date and time of the trial.

3. Oxy Fuel and Dhaka have not filed any affidavits or adduced any evidence to rebut the allegations made, and the case brought against them, by PNG Oxygen. Following a consideration of the pleadings and the evidence given on behalf of PNG Oxygen, I am satisfied that PNG Oxygen has properly established its case against Oxy Fuel and Dhaka on the balance of probabilities.

4. As to PNG Oxygen’s claims against Mr. Lim, Mr. Lim gave evidence by way of two affidavits but was not present at the trial notwithstanding that notice to cross examine him had been given. His evidence was allowed to be tendered subject to the court deciding what weight if any should be given to it.

5. It was submitted on behalf of Mr. Lim that amongst others, that PNG Oxygen had not pleaded that Mr. Lim had breached a fiduciary duty owed to it. As to the submission, it is for PNG Oxygen to decide what causes of action it should plead.

6. It was further submitted that PNG Oxygen had not properly pleaded and particularised its allegations of fraud against Mr. Lim. The decisions in Papua Club Inc v. Nusaum Holdings Ltd (2004) N2603 and my decision in National Fisheries Authority v. New Britain Resources Development Ltd (2015) N6078 and cases referred to therein, were cited in support of this submission.

7. From a perusal of the statement of claim, I am satisfied that Mr. Lim has been given sufficient notice of the case made against him and that the allegations of fraud and dishonesty have been sufficiently particularized. I note also that Mr. Lim has filed a detailed amended defence. I reject this submission made on behalf of Mr. Lim in this regard.

8. As to the evidence of Mr. Lim, it consists mainly of denials and lack of knowledge. In attempting to determine the veracity of Mr. Lim’s evidence, I am mindful of his absence for the purposes of cross examination, notwithstanding that he was required for such purpose, the evidence given on behalf of PNG Oxygen and the performance of its witnesses during their cross-examination. I am satisfied that PNG Oxygen has properly established its case against Mr. Lim on the balance of probabilities.

9. PNG Oxygen seeks costs against the defendants on an indemnity basis. I am not satisfied that PNG Oxygen has properly made out its case for such costs.

Orders

10. The Courts order are:

a) judgment is entered against all of the defendants, jointly and severally as follows:

i) damages for conspiracy to injure the plaintiff through the sale of its gas at an undervalue, to be assessed;

ii) K 1,005,171.00 as a debt for gas provided but unpaid;

iii) damages in the sum to compensate the plaintiff for unreturned gas cylinders in the aggregate of K754,017.28 particulars of which are as follows:

1340 Oxygen cylinders x K 381.15 = K 510,741.00

797 Acetylene cylinders x K 305.24 = K 243,276.28

iv) interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No. 52;

v) costs on a party to party basis to be taxed if not otherwise agreed;

vi) time is abridged.

____________________________________________________________
Fiocco & Nutley Lawyers: Lawyers for the Plaintiff
Rageau Manua &Kikira : Lawyers for the Third Defendant