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PNG Oxygen Ltd v Oxy-Fuel Ltd [2019] PGNC 371; N8091 (23 September 2019)

N8091

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

Waigani: Hartshorn J
2019: 23^rd September

Assessment of Damages

Cases Cited:

Frank Onga v. The General Manager Engineering Management Pty Ltd (2003) N2321
Nae Limited v. Cameron Construction Ltd (2012) N5346
Yange Langan v. Independent State of Papua New Guinea (1999) N1369

Counsel:

Mr. S. Gor, for the Plaintiff

23^rd September, 2019

1. HARTSHORN J: This is a decision on an assessment of damages after judgment was entered. Specifically, the damages to be assessed are for conspiracy to injure the plaintiff through the sale of its gas at an under value.
   
2. I allowed the hearing for assessment of damages to proceed in the absence of representation on behalf of the defendants as I was satisfied that the defendants had been given sufficient notice of the hearing.

Background

3. 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 sought amongst others, judgment and damages.
   
4. Following a trial, I was satisfied that PNG Oxygen had properly established its case against each of the defendants on the balance of probabilities. Judgment was entered against all of the defendants, jointly and severally for amongst others, damages for conspiracy to injure PNG Oxygen through the sale of its gas at an undervalue, to be assessed.
   

Assessment of damages – law

5. The onus is upon a plaintiff to prove its loss. The following passage from McGregor on Damages is cited by Injia J. (as he then was) in Yange Langan v. Independent State of Papua New Guinea, (1999) N1369 and was reproduced in Nae Limited v. Cameron Construction Ltd (2012) N5346:
   

“The plaintiff has the burden of proving both the facts and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a factor is upon him, who alleges it and not upon him who denies it so that where a given allegation forms an essential part of a person's case, the proof of such allegation falls on him. Even if the defendant failed to deny the allegations of damage or suffers default, the plaintiff must still prove his loss”.

6. Reference is also made to the following passage from the judgment of Kandakasi J. in Frank Onga v. The General Manager Engineering Management Pty Ltd (2003) N2321:
   

“As noted in Coecon Limited (Receiver/Manager Appointed) vs. The National Fisheries Authority of Papua New Guinea and The Independent State of Papua New Guinea (supra), a plaintiff can discharge his burden of prove (sic) by calling credible evidence. If he is able to do that in relation to what he alleges then, there is no reason why there should (not) be a finding in his favour unless, the defendant is able to rebut it by other credible evidence. Apparent in this is the fact that, once a plaintiff establishes his case on the balance of probabilities, the burden then shifts to the defendant to rebut it. If the plaintiff (sic) (defendant) fails to discharge that burden, it is open to the Court to act on the evidence of the plaintiff.”

Consideration

7. PNG Oxygen relies upon two affidavits of Mr. Chon Boon Lee, its current Managing Director. Mr. Lee’s evidence is unrebutted and there is no evidence given on behalf of any of the defendants.
   
8. As submitted by PNG Oxygen, Mr. Lee gives evidence of the losses suffered by PNG Oxygen. He deposes specifically as to the losses for the respective years 2007, 2008, 2009, and 2010 with reference to the amounts less than market price for oxygen and acetylene that the third defendant caused PNG Oxygen to sell gas cylinders to Oxy Fuel.
   
9. For each of the years 2007 to 2010 Mr. Lee annexes copies of primary documents such as ledgers, shipment documentation, customer cylinder holding records and invoices to other customers to support PNG Oxygen’s claims. Mr Lee also annexes copies of invoices which PNG Oxygen issued to Oxy Fuel and to its other customers showing that the third defendant had caused PNG Oxygen to sell gas cylinders to Oxy Fuel at a reduced value and at unrealistic and uncommercially low prices.
   
10. From a consideration of the unrebutted evidence of Mr. Lee, I am satisfied that PNG Oxygen has established on the balance of probabilities that it suffered loss as follows:

2007 K235,960.00;

2008 K488,444.00;

2009 K898,240.00;

2010 K1,141,430.00: Total = K2,764,074.00

Orders

11. The Court orders that:
    1. Judgment is entered against the defendants' jointly and severally in the sum of K2,764,074.00 for damages for money had and received being the loss sustained for the sale of gas at an undervalue;
    2. The costs of and incidental to the assessment of damages shall be paid by the defendants’ to the plaintiff;
    100. Time is abridged.

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Fiocco & Nutley Lawyers: Lawyers for the Plaintiff