N8332

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 617 of 2016 (COMM)

BETWEEN:
FRABELLE (PNG)
LIMITED
Plaintiff

AND:
BISMARK MARITIME
LIMITED
Defendant

Waigani: Hartshorn J,
2020: 17th April

CONTRACT – breach of contract - damages – Trial – plaintiff seeks damages from defendant for failing to supply materials as agreed – plaintiff claims materials where not delivered – defendant denies liability and admits materials where delivered on two occasions as indicated by two signed delivery dockets – no conclusive evidence to suggest materials were not delivered – proceedings dismissed

Counsel:

Mr. D. Bidar, for the Plaintiff
Mr. W. Frizzell, for the Defendant

17th April, 2020

1. HARTSHORN J: This is a decision on whether the plaintiff has proved its claim against the defendant, which is that the defendant did not return 225 metal sheets to the plaintiff as had been agreed that it would.

Background

2. The plaintiff claims damages in the sum of K753,522.00 against the defendant for breach of contract for failing to return 225 metal sheets to the plaintiff after repairing the defendant's wharf in Lae, Morobe Province. The amount of damages claimed is the value of the 225 metal sheets supplied by the plaintiff to the defendant which the defendant refused to pay.

Consideration

3. The evidence for the plaintiff is that the 225 metal sheets were not returned and that the purported two signatures of Mr. James Johnson employed by the plaintiff, acknowledging receipt on two separate occasions are not genuine. Further, Mr. Johnson's duties as General Manager of the plaintiff did not include overseeing incoming and outgoing deliveries. Mr. Johnson died in October 2017.

4. The evidence for the defendant is that it returned to the plaintiff 85 metal sheets on 7th November 2013 and 148 metal sheets on 22nd December 2013. Mr. Johnson signed a delivery docket acknowledging receipt, on both occasions. The defendants head of security, Mr. Parashuram Karki, recalls making both deliveries and recollects Mr. Johnson signing delivery dockets.

5. The expert evidence concerning the disputed signatures of Mr. Johnson on the delivery dockets is inconclusive. There is no expert evidence that the disputed signatures on the delivery dockets are or are not those of Mr. Johnson.

6. There is evidence, unrebutted, that there was animosity between Mr. Johnson and Mr. Hamish Sharp and that Mr. Johnson had a motive to misrepresent the facts.

7. There is no expert evidence that the disputed signatures are not those of Mr. Johnson. Only Mr. Johnson disputes that they are his signatures and that is in an affidavit to which he deposed, over three years after the purported signatures were made. Mr. Johnson had a motive to misrepresent facts. Mr. Kaki, to my mind was a convincing witness. He maintained his evidence and was consistent in that regard under cross-examination. He recalls making the subject deliveries and Mr. Johnson signing delivery dockets.

8. Following a detailed consideration of the evidence and the demeanour of the witnesses I am not satisfied that the plaintiff has proved its case on the balance of probabilities.

Orders

9.  It is ordered that:

a)	This proceeding is dismissed;

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

c)	Time is abridged.
__________________________________________________________________
O'Briens: Lawyers for the Plaintiff                                   
Warner Shand: Lawyers for the Defendant