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Papindo Trading Co Pty Ltd v Waipo [2018] PGNC 567; N7709 (14 November 2018)

N7709

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 772 OF 2017(CC1)

BETWEEN:
PAPINDO TRADING COMPANY PTY LTD
Plaintiff

AND:
MICHAEL WAIPO, as the
Commissioner of PNG Correctional Services
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Dingake J
2018: 12 & 26 April, 20 & 27 July, 21 September

Cases Cited:
Papua New Guinea Cases

Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd (2012) N4682

Overseas Cases

Bonham Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177

Counsel:

Mr. Alphonse Ayako, for the Plaintiff
Ms. Mona-lisa Irakau, for the Defendants

14^th November, 2018

1. DINGAKE J: By originating summons the plaintiff claims the following from the defendants:
   • (i) The outstanding amount of K5,062,260.68 for food and rations supplied;
   • (ii) General Damages for loss of business and investment opportunities;
   • (iii) Interest on Judgment pursuant to the Judicial Proceedings (Interest on Debts & Damages Act);
   • (iv) Costs of this proceedings;
   • (v) Any other orders as the Court deems appropriate in the circumstances.
2. Liability against the defendants was established by way of a default judgment on the 26^th of April, 2018.
3. It is common cause that the plaintiff was contracted by the PNG Correctional Services through its Commissioner from 2010 to 2016 to supply food rations to a number of Correctional Institutions throughout the country.
4. It is also common cause that the contract was oral.
5. The matter was set down for trial for assessment of damages on the 12^th of November, 2018.
6. Initially the parties were not agreed on the quantum, but by the end of the trial the plaintiff had conceded that:

6.1 there is no evidence to support its claim for the amount of K5,062,260.68.

6.2 there is no evidence for loss of businesses and investment opportunities as claimed.

7. I have, notwithstanding the concession, considered the evidence filed of record and find that the concession was proper and correct. Indeed there is no cogent and credible evidence in support of the amount of K5,062,260.68 and the loss of business and investment opportunities in the amount of K1 million or any other.
8. It is settled law that the plaintiff bears the onus to prove, on a balance of probabilities, the loss/damages it claims to have sustained (Bonham Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177; Madang Cocoa Growers Export Co Ltd v National Development Bank Ltd (2012) N4682;
9. The evidence filed of record proves that the plaintiff is owed K4,462,331.11 arising from the oral contract entered into by the parties in terms of which the plaintiff was to supply food to several Correctional Institutions throughout the country. This is what the reconciliation of the invoices filed of record establish. This finding is reinforced by a letter dated 19^th of July, 2016 from the plaintiff confirming that outstanding ration supplies as at the 19^th of July, 2016 stood at K4,462,331.11.
10. I have also considered the affidavit of Mr. Michael Waipo (Doc. No. 14), more particularly annexture ‘C’ of that affidavit and I am satisfied that part payment in the amount of K247,997.05 has been paid to the plaintiff.
11. It follows from the evidence of Mr. Michael Waipo, that has not been contradicted, that the sum of K4,462,331.11 has been reduced due to the fact that the defendants paid the amount of K247,997.05.
12. Taking into account the aforesaid payment, the defendants are now indebted to the plaintiff in the amount of K4,214,334.06.
13. The plaintiff prays for interest at the rate of 8%. The applicable rate in the event this Court considers it appropriate to order same is 2% in terms of the Judicial Proceedings (Interest on Debts & Damages) Act.
14. In this matter, I see no reason why the defendants should not pay interest of 2% and such shall be ordered.
15. In the result, it is ordered that:

15.1 Judgment is entered in the amount of K4,214,334.06 in favour of the plaintiff and against the defendants.

15.2 The defendants shall pay plaintiff interest in the amount of 2% from the date of Judgment.
_______ ____________________________________________________
Haiara’s Legal Practice: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants