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Asi Holdings Ltd v Independent State of Papua New Guinea [2017] PGNC 427; N8349 (30 January 2017)

N8349

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 373 of 2010

BETWEEN:
ASI HOLDINGS LIMITED
Plaintiff

AND:
JOEL LUMA
Secretary for Works & Supply
First Defendant

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Second Defendant

Waigani: Hartshorn J
2015: 18^th & 20^th November
2016: 31^st March
2017: 30^th January

CONTRACT – Trial – plaintiff seeks from the defendant an underpaid sum of money for work done – defendant shows evidence of money been paid to the Plaintiff and claims there is nothing left to be paid - the plaintiff has not proven its case against the defendants on the balance of probabilities – proceedings dismissed

Counsel:

Mr. P. Ame and Mr. A. Rake, for the Plaintiff
Mr. T. Tanuvasa, for the Defendants

30^th January, 2017

1. HARTSHORN J: The plaintiff and the second defendant entered into a contract dated 13^th July 2007 for the plaintiff to upgrade and seal the Kisenapoi to Ialibu Road in the Southern Highlands Province.

2. The plaintiff claims amongst others that it performed the required work but that it was underpaid the sum of K1,076,216.46. This sum represents variations to the scope of works, that the plaintiff claims were approved and verified.

3. The defendants submit that:

a) the work completed by the plaintiff was valued at K5,311,521.91 and as at 19^th April 2010 the total sum that had been paid to the plaintiff was K5,184,928.63 leaving a balance of K126,593.58. This balance was the remaining 50% of retention monies pursuant to clause 60.3(b) of the contract. This amount was paid with an adjusted amount of K136,413.33 by cheque on 7^th July 2010 and was received by Mr. Raphael Noipo, the managing director of the plaintiff, on 8^th July 2010;

b) the plaintiff has not utilised clause 67.1 of the contract which provides for the settlement of disputes by arbitration.

4. In essence the plaintiff submits that there is no evidence on behalf of the defendants to rebut the plaintiff on its allegations of fact. There is evidence on behalf of the defendants however, and it does rebut the allegations of the plaintiff. The evidence of Mr. David Wereh who was the Field Project Manager of the Highlands regional maintenance group of the Department of Works is amongst others, that the work completed by the plaintiff was valued at K5,311,521.91, the total amount paid as at 19^th April 2010 was K5,184,928.63 and K126,593.58, being 50% retention monies, remained to be paid.

5. The evidence of Mr. Steven Pup, who was the Project Director for the Asian Development Bank Funded Projects, one of which was the Kisenopoi to Ialibu Road Project, is amongst others, that the plaintiff forwarded an invoice for the “Final Payment Certificate No. 11” in the sum of K738,109.59. That amount was paid by cheque and received by Mr. Raphael Noipo on 30^th October 2009. Copies of this and the receipt are in evidence. Significantly, in my view, this cheque is not listed as being received, in the pleadings and the evidence given on behalf the plaintiff.

6. Mr. Pup also deposes as to a letter from the plaintiff requesting payment of the 50% retention monies in the sum of K136,413.33, and that sum being paid and received by Mr. Noipo on 8^th July 2010. Both Messrs Wereh and Pup further depose that there is nothing left owing to the plaintiff.

7. Given the above, and from a consideration of the pleadings, evidence admitted on behalf of the parties and submissions, I am not satisfied that the plaintiff has proved its case against the defendants on the balance of probabilities. Given this it is not necessary to consider the other submissions of counsel.

Orders

8. It is ordered that:

a) This proceeding is dismissed;

b) The plaintiff shall pay the defendants’ costs of and incidental to this proceeding;

c) Time is abridged.

_____________________________________________________________
Ame Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants