Kae v Mondo [2020] PGNC 359; N8681 (14 December 2020)

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AGREEMENTS – parties’ agreements on relevant facts and issues for trial – purpose and objective of – effect of - concessions and admissions – crystalized position based on pleadings and evidence – prevails over pleadings - final and binding on all parties – seeking to withdraw from – party seeking withdrawal from need to make a case similar to repudiation of contracts or set aside of consent orders.

MORTGAGES – mortgagee sale – sale at under market value – notice of default not served prior to sale – admitted breach of duty – value of property not in dispute - effect of – mortgagee liable in damages – measure of – value of property less amount due and owing to mortgagee - residue payable to mortgagor – damages assessed at residual value – exemplary damages awarded for breach of statutory and duty owed to mortgagor

PRACTICE & PROCEDURE – case management – agreed facts and issues – purpose and objectives – narrow down issues and clearly indicate matters in dispute and those agreed – effect of – admissions – crystalized and final binding position on facts and issues – withdrawal from? – case to be made out – similar to repudiation of contract seeking or to set aside consent order.

TRIAL – mode of – parties’ agreement – trial by submissions only based on agreed facts and issues – one party seeking to opt out – party bound by agreement – duty of party seeking to opt out – make a case similar to repudiation of a contract or a consent order – failure to – parties bound.

Ekawi Tayanda v. Gigira Development Corporation Limited & Ors (2017) N6756.
Belden Norman Namah v. Hon. Rimbink Pato & Ors (2016) SC1497.
Philip Kikala v. Electoral Commission of Papua New Guinea & Anor (2013) N4960.
Andrew Kinaram v. Vanimo Forest Products Limited (2011) N4413
Markham Farming Company Ltd v. Tiri Wanga & Ors (2019) N8103.
Luke Alfred Manase v. Don Pomb Polye & Anor (2016) N7977.
Gahuku Traders Limited & Anor v. Yondu Coffee Producers Ltd & Anor (2018) N7396.
Talibe Hegele v.Tony Kila & Andrew Elabe (2019) N8119.
Onne Rageau v. Chaudoc Limited & Ors (2015) N5901.
Thomas Tulin v. Toyota Tsusho (PNG) Ltd (2015) N5895.
PNG Ports Corporation Ltd v. Charles Inni (2012) N4717.
In Igiseng Investments Limited v. Starwest Constructions Limited & Anor (2003) N2498.
Teio Raka Ila v. Wilson Kamit (2002) N2291.
Alex Awesa v. PNG Power Limited (2016) N6359.
Alex Awesa v PNG Power Ltd (2019) SC1848.
Hargy Oil Palm Ltd v. Ewasse Landowners Association Inc (2013) N544.
Harry Tovon v. Carl Malpo (2016) N6240.
Motor Vehicle Insurance (PNG) Trust v. John Etape [1994] PNGLR 596.
Motor Vehicle Insurance (PNG) Ltd Trust v. James Pupune [1993] PNGLR 370.
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694.
Coecon Construction v. National Fisheries Authority & State (2002) N2182.
PNGBC v. Jeff Tole (2002) SC694.
William Mel v. Coleman Pakalia & Ors (2005) SC790.
Australia & Nugini Banking Group (PNG) Ltd v. Kila Wari (1990) N801.
Walter Perdacher v. PNGBC (1997) N1637.
PNGBC v. Pala Aruai (2002) N2234.
Negiso Investments Ltd v. PNGBC (2003) N2439.
Westpac Bank PNG Ltd v. Miai Suve Larelake (2008) N3247.
Esther Torato v. PNG Home Finance Ltd (2012) N4583.
Anego Company Ltd v. Finance Corporation Ltd (2013) N5391.
Rage Augerea v. Bank South Pacific Ltd (2007) SC869.
Pija Grannies Ltd v. Rural Development Bank Ltd (2011) SC1327.
Magiten v. Moses, Anawon, Tovea and Rural Development Bank Ltd (2006) N5008.
David Nelson v. Credit Corporation (PNG) Ltd (2011) N4368.
Kimb Tai v. Bank South Pacific Ltd (2020) SC 1941.
Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC 1605.
Jacinta Albert v. Joseph Aine & Ors (2019) N7772.
Aiwara v. Cocoa Board (2017) N6788.
Sek No. 15 v. Apu (2014) N5662.
Trevor Yaskin v.Wallya Abilio (2006) N310.
Commissioner General of PNG v. Julian Paul Leach (1998) N1779.
Bromley v. Finance Pacific Ltd (2001) N2097.
NPF Board of Trustees v. Jimmy Maladina (2003) N2486.

1. KANDAKASI DCJ: On 03^rd December 2020, I delivered my decision orally and promised to have the full reasons published. This I now do.

2. The Plaintiff, Mr Edward Kae (Kae) is claiming the Second Defendant, Finance Corporation Ltd (Fincorp) sold his property, described as, Section 2, Allotment 42, Hohola, NCD registered as State Lease Vol 109 Folio 140 (the property), under its marketing value. He also claims, that was in breach of a loan and mortgage agreement they had. An entry of default judgment resolved liability in favour of Kae with damages to be assessed. Based on that judgment, the parties settled upon a Statement of Relevant Facts & Legal Issues for Trial (the Statement of Facts and Issues) rendering all facts undisputed. Accordingly, the parties agreed to and the trial proceeded on agreed facts and issues and submissions only.

3. Kae submits the entry of default judgment resolved in his favour of all the facts he pleaded against Fincorp. He also submits the Statement of Facts and Issues settled all of the relevant facts. Proceeding on that basis, Kae is asking for his damages to be assessed at either K503, 789.37 or K427,289.00. The first proceeds on the basis of an undisputed fact that the property was worth K600,000.00 at the time of the sale and that Fincorp was owed K96,210.00. The second is based on valuation putting an average market value at K523,500.00 and allowing for the K96,210.00 owed to Fincorp. Additionally, Kae is asking for an award of K150,000.00 in exemplary damages for Fincorp breaching their loan and mortgage agreements by selling the property at under its market value and in breach of s. 67 of the Land Registration Act.

4. In response, Fincorp is asking for a dismissal of the proceeding for a number of reasons. First, it takes issue with the mode of trial claiming, the trial should have proceeded in the normal way because the market value of the property was in dispute. Secondly, it is taking issue with the Statement claiming the following:

(1) Fincorp was of the view that the Statement concerned the question of liability only;

(2) the Statement has inconsistencies Fincorp failed to notice at the time of giving its agreement;

(3) Kae’s statement of claim pleads in the alternative for a claim based on negligence and or a claim based on breach of statutory duty;

(4) Kae’s statement of claim fails to properly plead with particulars his claim in negligence and damages.

(1) Can the agreement of the parties on the mode of trial, namely trial by submissions only and the trial proceeding on that basis, be revisited?

(2) If the answer to question (1) is in the affirmative, on what basis can an agreed mode of trial be revisited?

(3) Can the agreement of the parties on the relevant facts and issues for trial (the Statement) be revisited on the basis of an alleged mistake and allegations of inconsistencies in the Statement?

(4) Is Kae’s statement of claim bad for alternative pleading and failure to plead negligence and damages with particulars and if yes, should that result in a dismissal of the proceeding?

(5) Subject to an answer to questions (1), (2) and (3) was Kae required to and he failed to establish by evidence his damages?

6. I will deal with questions 1 to 3 together. Thereafter I will deal with the remaining two questions in the order presented because they are interconnected. But first a consideration of the relevant facts and background.

7. The relevant background and facts are clearly presented in the Statement of claim as resolved by the entry of default judgment and the Statement of Facts and Issues, the parties settled after the entry of the default judgment and after their failure to settle at mediation. The facts thus disclosed and established are as follows:

(1) On the 29^th November 2012, the Kae and Fincorp entered into a Loan agreement secured by a mortgage over Kae’s then property.

(2) Kae sufficiently serviced the loan until October 2015 when he began to fall into arrears due to delay of income in his business enterprise.

(3) By 8^th February 2016, the Plaintiff paid K25,906.36 to bring the loan account balance to K32,940.00.

(4) Fincorp issued a statutory notice of default for an amount of K96,210 which was not served on Kae. It then proceeded to advertised sale of the property by tender in The National on 4^th July 2016. Thereafter, on 10^th October 2016, it sold the property to the First Defendant, Kimana Mondo (Mondo) for K250,000.00.

(5) On 01^st November 2017 or thereabouts, Kae became aware of the foreclosure and that his property had been sold to Mondo when Mondo served a Notice of Eviction.

(7) On 01^st July 2019, the Court ordered default Judgement against the Defendants and referred the matter to mediation for the parties to resolve the issue of Kae’s damages, with mediation orders formally issued on 12^th September 2019.

(8) On 17^th February 2020, mediation took place and the parties failed to settle at mediation.

(9) The mediator on 05^th March 2020 confirmed the failed outcome of the mediation with his certificate in form 2 under the Court’s ADR Rules with facts and issues identified for trial.

(10) On the 06^th March 2020, the Court ordered the parties to settle upon a statement of agreed and disputed facts and legal issues on the basis of the mediators’ certificate. Based on that order, the parties settled the Statement of Facts and Issues and subsequently agreed to proceed to trial only on submissions.

8. I now turn to a consideration of the issues presented. In view of the issues Fincorp is taking against the Statement of Facts and Issues, I will deal with the first to the third issue first.

Issues, 1, 2 & 3 – Can the statement of agreed facts and issues and mode of trial be revisited and if yes on what basis?

9. Learned counsel for Fincorp through his written submissions is asking for a revisit of the Statement of Facts and Issues on three bases, namely inconsistencies, no evidence confirming the market value at K600,000.00 and the legal issues being bundled up and are confusing. Counsel apologize for not being able to pick up these issues before agreeing to and signing of on the Statement.

10. Before specifically addressing each of the matters raised by Fincorp, it is important that I should remind myself of the law on point. Counsel, for Fincorp failed to draw the Court’s attention to the relevant law on point, be it statutory or case law.

11. Requiring parties to settle upon a statement of agreed and disputed facts and issues for determination or resolution or a statement of facts and issues in any case before the Courts, is a well-accepted part of effective case management. Order 10, 9A – Listings Rules r.7 (4) (j) and r.9 (2) (e) of the National Court Rules (the Rules) provides the statutory foundation for such statements. These rules help provide a necessary process for parties to consider and where they so wish, exercise the option of voluntary admission of facts under O. 9, r.28 of the Rules.

12. Statements of agreed and disputed facts and issues are necessary to enable an expedited resolution of proceedings in court by avoiding unnecessary delays, unnecessary lengthy trials and costs. To achieve that objective, such a statement is aimed at getting the parties to point out the relevant facts, which of them are agreed and which of them are disputed and out of those, the factual and legal issues that are presented for resolution. As can be seen, such statements serve a most important purpose in the need for timely hearing and disposal of cases. Given that, our courts have taken any delays or failure to promptly settle upon a statement of agreed and disputed facts and issues as serious failures and have in some cases, resulted in dismissal of proceedings: See for example Ekawi Tayanda v. Gigira Development Corporation Limited & Ors (2017) N6756, per Shepherd J.

13. According to present case law, the need for a statement of agreed and disputed facts and issues arises when there is a serious issue on the relevant facts and the law in any proceeding. Sitting in the Supreme Court in Belden Norman Namah v. Hon. Rimbink Pato & Ors (2016) SC1497, I made that point clear with the agreement of my brothers, Salika DCJ (as we then were) and Kariko and Sawong JJ. There, in a case in which the parties failed to settle upon such a statement, I said:

“If indeed there were serious disputes on the relevant facts or on the law for very good reason, that fact and the reasons needed to be brought out promptly through the filing and serving of a statement of agreed and disputed facts and legal issues for trial with the cooperation and agreement of the parties. That could have enabled the parties and the Court to see which of the facts are disputed with the reasons for the dispute and which of the facts were not in dispute. Then in respect of any facts seriously in dispute, the parties could have easily agreed to such disputes existing and list the relevant disputed facts with the reasons of the dispute succinctly stated. The directions hearing Judge could have then inquired into the reasons for the disputed facts and determine which of them become agreed facts and which of them should remain contested with the reasons for the contest clearly stated. That could have then led to a prompt but a shorter trial specifically on the facts in dispute rather than an unnecessary lengthy trial. The Respondents failed in all these respects. That meant only one thing. There was no serious issue on the facts. This clearly invited the court to dispose of the matter summarily.”

“The Respondents did not offer any justifiable reason to effectively, have the hearing of the substantive application vacated to allow for a trial on the facts on their belated claims of disputes on certain of the facts. I note in any event that, the Respondents dispute over certain of the facts are without merit or good reason. The facts they disputed were in fact facts borne out against them by the material filed in support of the substantive application. Repeating what I have already said, the taxpayers’ money could be better applied only to resolving matters that have real and serious dispute over the facts or law through the usual process of trial. Such disputes should be for very good reason which are beyond the ability of the parties to resolve perhaps due to there being no case precedent or clear legislative provision providing guidance for a resolution of the dispute or issue. Such is not the case here, not only by reason of the Respondents failure to act promptly but also when cross checked against the evidence before the Court.”

15. A statement of agreed and disputed facts and issues is derived from the pleadings and the evidence the parties to a proceeding rely upon in support of their respective positions. Hence, it is not a pleading: See Philip Kikala v. Electoral Commission of Papua New Guinea & Anor (2013) N4960, per Makail J. It is instead, a representation of the parties crystallized position in their case, after a consideration of the relevant pleadings and all of the evidence: See Andrew Kinaram v. Vanimo Forest Products Limited (2011) N4413, per Batari J. Accordingly, where such a statement contains agreed facts, they have been treated as admissions in a defense filed in response to a statement of claim which minimizes the issues for trial. The decision in Markham Farming Company Ltd v. Tiri Wanga & Ors. (2019) N8103, per Gavara-Nanu J makes that point clear in the following terms:

“24. As to the forfeiture, it is not disputed that no notice of forfeiture was served on the plaintiff. In paragraph 6 of the Statement of Agreed and Disputed Facts and Legal Issues (SADFLI), the respondents agreed that the first respondent did not serve the forfeiture notice on the plaintiff. This was a concession by the respondents which is relevant to the primary issue of whether the forfeiture was valid.

28. The concession by the respondents in the SADFLI that the forfeiture notice was not served on the plaintiff is fatal. A concession is akin to an admission in a defence to a statement of claim. The concession is therefore binding on the respondents. The binding effect of a concession made in a SADFLI derives from the terms of the SADFLI which are mutually agreed to by the parties, following Directional Orders given by the Court. Such the concession narrows down the issues for litigation. See, Order 16 r 13 (6) (4) of the National Court Rules. In this instance, the concession also contributed to the effective disposal of the substantive issues. See, also Order 16 r 8 (l) (d) (Schedule A) of the National Court Rules.”

16. It follows therefore that, once a party has given his or her admission or agreement in respect of all or parts of the relevant facts in a case, that party is bound by the agreement or admission. In appropriate cases, this might attract the application of the provisions of O.9, r.30 which provides for the entry of judgment on admissions. Given that position, many Judges have readily accepted the agreement of the parties on the facts and issues per their statement of facts and issues: See for example the two decisions of Yagi J in Luke Alfred Manase v. Don Pomb Polye & Anor (2016) N7977 and Gahuku Traders Limited & Anor v. Yondu Coffee Producers Ltd & Anor (2018) N7396; Talibe Hegele v. Tony Kila & Andrew Elabe (2019) N8119, per Kariko J; the two decisions of Hartshorn J in Onne Rageau v. Chaudoc Limited & Ors (2015) N5901; Thomas Tulin v. Toyota Tsusho (PNG) Ltd (2015) N5895 and PNG Ports Corporation Ltd v. Charles Inni (2012) N4717, per David J.

17. Where there are shortfalls in a statement of facts and issues, parties have been permitted by their mutual agreement to supplement it. In Igiseng Investments Limited v. Starwest Constructions Limited & Anor (2003) N2498, I allowed for that. The following part of the judgement tells what happened there:

“At the outset of the trial, the parties agreed to all of the relevant facts as set out in the Statement of Agreed and Disputed facts and agreed issues for trial dated 26th August 2003. This statement does not fully set out the relevant facts. The parties sought to have that complemented and supported by affidavits filed by them with some of the deponents being cross-examined who have given opposing evidence.”

18. But where parties have agreed to all of the relevant facts and issues for determination, trials have proceeded on that basis on submissions only. As early as 2002, I adopted and applied that approach in Teio Raka Ila v. Wilson Kamit (2002) N2291. There, following directions, the parties filed a statement of agreed and disputed facts. That resulted in an agreement on the relevant facts by the parties and they agreed to proceed to a trial on submissions only on the issues then before me. Certainly, that considerably reduced trial time and therefore costs.

19. I applied the same approach in Alex Awesa v. PNG Power Limited (2016) N6359. The decision went on appeal to the Supreme Court. The Supreme Court in its decision reported as Alex Awesa v. PNG Power Ltd (2019) SC1848, Hartshorn, Yagi & Thompson JJ, dismissed the appeal in its entirety. In so doing the Court noted:

“7. Following Directions Hearings in May 2015, the parties agreed and the Court directed by consent, that both the Appellant’s proposed questions and the mediator’s proposed questions would be included in a Statement of Agreed and Disputed Facts and Issues (SADFI) which would be referred to the National Court for determination. The Appellant’s lawyer endorsed his consent on the resultant, SADFI which contained both sets of questions / issues for determination.

8. On this point, the Appellant’s lawyer submitted that he had only ‘reluctantly’ agreed to the SADFI including all the questions because he had been overborne by the Judge. No transcript or affidavit evidence was provided to support the submission, and the lawyer had not made any application at the time to vary or set aside the SADFI. This court can therefore only proceed on the basis that the questions/issues had been referred to the primary Judge, by consent.”

20. The Court also dismissed an attempt by the appellant to introduce a new issue that was not in the SADFI and hence not before me at the trial level. The issue was “The Judge erred in failing to find the termination notice period in the lease was insufficient to allow the Appellant enough time to find other persons who were willing and able to enter into another lease for the same period and same rent.” The Supreme Court treated that issue in the following way:

“33. This was not a question which was referred to the primary Judge. The primary Judge considered the amount of the rentals, in the context of the Appellant’s argument that he was entitled to have the Lease reviewed under the Fairness of Transactions Act, and in relation to the issue of whether or not the Appellant had a duty to mitigate his loss, if there had been a breach of the Lease Agreement. There was no pleading that the notice period was insufficient, and no pleading of any basis on which the court had the power to rewrite the notice clause in the Lease. (see PNGBC v. Jeff Tole (supra)). No error has been shown in the primary Judge not making such a finding.”

21. As will be apparent from the foregoing, that an agreed statement of facts and issues is an important tool used for the effective management and expedited disposal of cases. Hence, once the parties have agreed to such a statement, it constitutes a concession made by them and it amounts to an admission similar to admissions in response to a statement of claim, or an admission voluntarily given under O.9, r. 28 of the Court Rules. It should follow therefore that, where all the facts are agreed to, the parties and the Court could proceed under O. 9 r.30 to order judgement or otherwise proceed on the basis of such admission, something the courts are already doing, as indicated by the cases I referred to above.

22. In this case, Fincorp’s submissions have a number of flaws. Firstly, learned Counsel for Fincorp, has not demonstrated any appreciation of the law and the object and purpose an agreed statement of facts and issues serves in the hearing and determination of cases brought before the Court. This is evidenced by counsel’s complete lack of any discussion of the law governing such statements as set out and discussed above. These means, there is a complete lack of understanding and accepting of the object or purpose of statement of agreed and disputed facts and issues by Fincorp. It also demonstrates a complete lack of understanding and appreciation of the various directions hearing that were conducted, the discussions on the draft statement and the eventual settlement of the Statement that was agreed upon and filed on 11^th August 2020. Further, this complete lack of submission also means, Fincorp fails to understand, appreciate and accept the fact that, it agreed to proceed to trial on the basis of the Statement of Facts and Issue and submissions only.

23. Secondly, following on from the first flaw, Fincorp, has also failed to point to any legal foundation for effectively seeking to opt out of the Statement of Facts and Issues. My quick look up of the law has taken me to the provisions of O.9, r. 28 (2) of the Court Rules in the case of voluntary admissions which gives us some idea has to how a party could opt out of a statement of facts and issues. The provision in question states:

“A party may, with the leave of the Court, withdraw an admission under Sub-rule (1).”

24. Order 8 r.62 similarly provides for in the case of admissions in a pleading in a defense or any other matter operating in favour of the other party in the following terms:

“(1) A party raising any matter in a defence or subsequent pleading may withdraw that matter at any time.

(2) Sub-rule (1) does not enable a party to withdraw, without the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of that other party.”

25. Fincorp has failed to draw to the Court’s attention any or both of these provisions. Also, Fincorp is not seeking leave of this Court to withdraw its admissions contained in the Statement of Facts and Issues.

26. Thirdly, Fincorp had the duty and obligation to make a case for a grant of its wish to opt out of the Statement of Facts and Issues. This, it failed to do with the support of relevant principles of law on point. That caused the Court to conduct its own research. Unfortunately, the Court was not able to come up with a case that might directly be of assistance. It seems, this is the first time in which the Court is being asked by a party to withdraw its admissions contained in Statement of Facts and Issues. In the absence of any specific case law on point, I consider the principles that govern the repudiation or invalidation of a contract and or a set aside of orders by consent, should be adopted and applied with the necessary modifications. This is appropriate because a statement of facts and issues represents an agreement between the parties as is the case with contracts and consent orders. Searches for the relevant principles has led me to my decision in Hargy Oil Palm Ltd v. Ewasse Landowners Association Inc (2013) N544.

27. In that case, after discussing the essential elements that would constitute a valid and legally enforceable contract, I went on to point out the basis on which a contract could be invalidated. In the process, I had regard to a number of Supreme and National Court decisions noted:

“...In certain cases, ... even where these essential elements are present, some contracts can be invalidated or nullified in certain known circumstances. Various authorities on contract law specify the following circumstances in which a contract could be nullified or invalidated:

(a) there is a failure to meet statutory requirements in cases where the contracts are regulated by statute;

(b) the agreement is to commit a crime or commit an act that is illegal such as an agreement to carry out a bank robbery;

(c) there has been fraudulent misrepresentation in some material respect at the negotiations which eventually leads to an agreement;

(e) there has been use of force and or duress to obtain or secure the contract.”

“...It should clearly follow therefore that, unless a party is able to make out a case under anyone or more of these known grounds, they would be bound by the terms of their agreement. Hence, any action taken by any party against the clear terms of an agreement would no doubt, amount to a breach of contract. That would of course entitle the other innocent party to go for an appropriate enforcement of the contract.”

29. In the case of a party seeking to set aside a consent order, my decision in Harry Tovon v. Carl Malpo (2016) N6240 comes to mind. There, again after considering past decisions of both the Supreme and National Courts, I summarized the relevant principles in the following terms:

“36. The principles governing applications for a set aside of orders by consent which finalize (sic) any proceeding can be summarized in this way:

(a) Like any other agreement, a consent order finalizing any proceeding that was arrived at by misrepresentation or fraud can be set aside on application of a party affected by the order;

(b) The majority of case authorities on point stand for the proposition that, claims of lack of instructions and or authority in a party’s lawyer to consent to an order cannot undo or result in a set aside of the consent order. Instead, the party concerned as a recourse against his lawyer if indeed the lawyer acted without instructions.

(c) The principle stated in (b) above is founded on the doctrine of ostensible authority. This is necessary for the purposes of protecting the innocent third parties and to also safeguard, protect and encourage parties to have their disputes settled through their own direct negotiations or other forms of ADR by upholding their agreement subject only to fraud and misrepresentation brought whom (sic) to the other parties which may undo them;

(d) If the consent order is yet to be formally entered, an application by motion in the same court that made the order can be filed and pursued;

(e) If however, the order has been formally entered, the order can be revisited only by a fresh proceeding or by an appropriate Supreme Court review application; and

(f) There is one exception to the above. Where a serious error or irregularity is apparent on the face of the record as was the case in the Simon Mali case, the Court has power to readily deal with the matter to safeguard against any abuse of its process.

30. Using these principles as a guide, I am of the view that an applicant for leave for withdrawal of an admission or concession under O.9, r. 28 (2) and Order 8 r.62 or a statement of agreed and disputed facts and issues, should demonstrate to satisfaction of the Court the existence of anyone or more of the factors set out below in order to succeed. The applicant needs to show that his admission or concession in a statement of agreed facts and issues was arrived at:

(b) by fraudulent misrepresentation in some material respect at the negotiations or discussions which eventually led to concession or admission;

(d) without the applicants expressed agreement but not claims of lack of instructions and or authority in a party’s lawyer or representative for they would have had the ostensible authority to agree or make the concession or admission; or

(e) when there was a serious error or irregularity which is apparent on the face of the statement of facts and issues for trial or the admission.

31. To this I add, the application has to be made before the relevant Statement is endorsed by and is formally filed with the Court. Where the Court meaningfully engages in a consideration of the terms of a draft Statement, endorses it and is subsequently filed, that amounts effectively to an order of the Court. Once the Statement is endorsed and is filed, it is in my view, in the same position as a Court order, a minute of which, has been taken out and formally entered. Thereafter, if upon the parties’ agreement a matter proceeds to trial based on such a statement, the agreed facts in the statement will remain admitted and concluded for the purpose of the trial subject only to the Court receiving submissions and making its decision. This is akin to a court at a trial having received all the evidence and the parties have respectively closed their respective cases. There would be no revisit of the evidence except only on appeal after a final decision in the case or on a proper application to re-open the case before a final decision at the trial level is arrived at. Only in a few exceptional cases, where for example, the trial judge dies after having received submissions and prior to a delivery of the decision, the trial could be revisited.

32. In the present case, the Statement of Facts and Issues was settled by the parties and presented to the Court for its endorsement which was done on 06^th July 2020. Thereafter, the parties had it filed on 11^th August 2020. The facts agreed to and contained in the Statement became agreed or admitted facts. Fincorp is bound by its admissions or the concession evident in the Statement. That being the case, it was obliged as matter of law to make out a case to withdraw its admissions or concessions. This, it failed to do. Consequently, Fincorp remains bound by the terms of the Statement of Facts and Issues.

33. Fourthly, I have carefully considered Fincorp’s basis for its seeking to opt out of the Statement of Facts and Issues and the mode of trial. The first basis is its claim of inconsistencies between two provisions in the Statement itself. The second is, its claim of there being inconsistencies between the Statement of Facts and Issues and Kae’s Statement of Claim endorsed to the Writ of Summons.

34. Turning firstly to the alleged inconsistency within the Statement of Facts and Issues itself, Fincorp says the inconsistency exists between paragraph 1.1 and 1.8. These paragraphs read:

“1.1 The Second Defendant did not serve Notice of Default in contravention of section 67 of the Land Registration Act and in breach of clause 24 of the Mortgage Deed executed on the 29^th of November 2012 and the Loan Agreement

1.8 At the time the Statutory default notice was issued on the 28^th day of April 2016, the loan arrears was K96,210.37.”

35. I see no inconsistency in these paragraphs. Paragraph 1.1 talks about Fincorp not serving the notice of default on Kae, while paragraph 1.8 talks about Fincorp having issued a default notice for the then specified amount of K96.210.37 as the outstanding on the loan. They are not one and the same. They are instead talking about two different facts. One is about the issuance of a default notice and the other is about a failure to serve that notice on Kae. Accordingly, I find this complaint is without merit and I order its dismissal.

36. The second alleged inconsistency is between paragraph 1.6 and 1.7 of the Statement of Facts and Issues and the respective pleadings in the Statement of Claim, namely paragraphs 4 and 7. These pleadings and statements respectively read:

1.7 At the time the Plaintiff defaulted the loan balance was K32,940 as at 8February 2016.”

“4. On the 29^th of November 2012 the Plaintiff and the Second Defendant entered to a loan and Mortgage Agreement (hereinafter ‘Agreement’) for a facility amount of K250,000-00.

37. On the face of these statements, there appears to be an inconsistency as alleged by Fincorp. However, we need to be guided by the law on point as discussed above. The Statement of Facts and Issues here, proceeded on the basis of the pleadings and affidavit evidence the parties filed. A deliberate choice was made by the parties to crystalize the facts and issues set out in the Statement. Applying the law on point as discussed earlier, I am of the view that, the Statement of Facts and Issue prevails over the pleadings. In coming to that view, I am mindful of the fact that, it is settled law that, it is the pleadings that drive the issues and evidence that can be called at the trial in any case. At the same time, I note it is also settled law that, if by the parties conduct, they choose to go outside the pleadings at the trial and allow for evidence to be led on matters not pleaded, either of the parties cannot be allowed to hark back at the lack of or what is pleaded in a statement of claim: See Motor Vehicle Insurance (PNG) Trust v. John Etape [1994] PNGLR 596; Motor Vehicle Insurance (PNG) Ltd Trust v. James Pupune [1993] PNGLR 370 and Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694. Here, the parties were well aware of their respective pleadings and the affidavit evidence they filed and they chose to settle upon the Statement of Facts and Issues. In that regard, I note for example in the affidavit of Adam Hughes, Fincorp’ Chief Assets Management Officer sworn and filed on 27^th June 2019, at paragraph 2, confirms the loan was for a total of K350,000.00 as opposed to the K250,000.00 pleaded in the Statement of Claim at paragraph 4. I find in these circumstances, that the claim of inconsistency raised here for the purposes of opting out of the Statement of Facts and Issues is thus, without merit and is accordingly dismissed.

38. This leaves us to turn to the next issue Fincorp raises against the Statement of Facts and Issues. The claim here is that, it is not proper for the parties to agree on the market value as this is a factual matter that requires the calling of evidence. Fincorp goes on to say, this fact was the main reason why the parties were not able to settle at mediation.

39. I find there are number of problems with this argument. First, the Statement was settled by the parties. As already noted, Fincorp has not pointed to any law, be it statutory or case law supporting its argument and its attempt to opt out of the Statement of Facts and Issues. Secondly, Fincorp has not established any of the factors upon which what was settled per the Statement in question could be withdrawn, ignored or rejected. This it could have done by producing evidence for example of fraud or misrepresentation or force or coercion employed by Kae resulting in its endorsement of the Statement that amongst others, states as an admitted fact the very issue it is raising. Thirdly, if indeed this was a contested fact for Fincorp, it was obliged to and had the right and power to make that clear and decline to sign off on the Statement. That it failed to do at the relevant time. Finally, Fincorp’s submission does not draw the Court’s attention to any evidence of it taking the correct steps to ascertain the current market value of the property, the value it ascertained and eventually, selling the property at that value. This would have demonstrated the basis for Fincorp saying the K600,000.00 valuation was disputed. Even if that was the case, the fact of the matter is, the parties’ settlement the dispute on the correct market value per the admissions in the Statement of Facts and Issues. In these circumstances, I find Fincorp’s argument is without any merit and is thus also dismissed.

40. The final issue Fincorp raises against the Statement of Facts and Issues is that the statement of the legal issues has been bundled up and is confusing. The issues are relevantly stated as follows:

“What is the measure of damages to be awarded for breach of Section 67 of the Land Registration Act and the Loan Agreements or for failure to sell at the market price.

41. I note these statements of the issues are directly related to and are driven by the facts stated in the Statement of Facts and Issues. Whilst the first statement of the issue does appear to lump together breaches of Sections 67 of the Land Registration Act and the Loan Agreement as well as a failure to sell at the market value, the question or issue for resolution is one and they arise out of one chain of action by Fincorp. That one question is, what is the measure of damages for these breaches. A consideration of this issue could look at each of the breaches and work out their respective breaches and arrive at a cumulative amount in damages or lump the separate breaches together as is suggested by the question and arrive at an assessment of damages as one whole that is all inclusive. Hence, I see no cause for any confusion here. Accordingly, I dismiss Fincorp’s claim here.

42. Ultimately in the end of it all, I answer the main question presented under Issue 1 to 3 in this way. Unless a case is made out according to law on a known ground, a statement of agreed facts and issues and an agreed mode of trial cannot be revisited. The parties are bound by their agreement.

43. I now turn to a consideration of Issue 4. That is the issue of, is Kae’s statement of claim bad for alternative pleading and for failure to plead negligence and damages with particulars and if yes should that result in a dismissal?

Issue 4 & 5 – Alternative and insufficient pleadings, lack of evidence and consequence?

44. Both counsels assisted the Court with submissions on the law on assessment of damages following entry of a default judgment against a defendant. They both referred to the decision in Coecon Construction v. National Fisheries Authority & State (2002) N2182. There, after surveying the cases on point, I summed up the principles governing a trial on assessment of damages following an entry of default judgment in the following terms:

“A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant’s defence, clearly show the following:

45. A number of Supreme Court decisions have adopted and applied those principles with approval. This includes the decisions in PNGBC v. Jeff Tole (2002) SC694, per Amet CJ, Sheehan J, Kandakasi J (as we then were) and William Mel v. Coleman Pakalia & Ors (2005) SC790, Los and Jalina JJ (as they then were) and Cannings J, cited by counsel in support of their submissions.

46. Counsel for Fincorp, emphasizes the 4^th and 5^th principles outlined in my summation of the principles in Coecon case and argues that, this case required the calling of evidence by Kae to establish his claim in damages. Counsel then cites a number of National Court cases where that point was made. Counsel then goes on to point out that, Kae did not produce any evidence of:

(b) Kae’s own valuation report that confirmed the then market value of K600,000.00;

47. I agree with the submissions that a plaintiff must produce evidence establishing his damages after entry of judgment on liability. If no evidence is produced, the Court will have to decline to assess any damages. That is the law in all cases. However, where there is an admission as in this case, per the Statement of Facts and Issues as discussed in the considerations under Issues 1 – 3 above, the need to produce evidence is negated. Hence, we need only look at what was it that the parties agreed to per their Statement of Facts and Issues and decide if that is sufficient to determine what if any, damages Kae suffered and come to a decision after that exercise on his damages.

“1.1 The Second Defendant did not serve Notice of Default in contravention of section 67 of the Land Registration Act and in breach of the clause 24 of the Mortgage Deed executed on the 29^th of November 2012 and the Loan Agreement.

1.2 The Second Defendant did not obtain valuation of the property prior to sale of the property in October 2016.

1.3 Second Defendant’s conduct in the failure to serve Statutory Default Notice was deliberate and unscrupulous (sic).

1.4 Plaintiff didn’t know that his property had been sold until evicted by First defendant on the 1 of November 2017.

1.5 Second Defendant’s loan agreements including mortgage deed in so far as they lessen, abate or interfere with the Mortgagor’s right to sell are unconscionable conduct and therefore null and void under the Fairness of Transactions Act.

1.7 At the time the Plaintiff defaulted the loan balance was K32,940 as at 8 February 2016.

1.8 At the time the Statutory default notice was issued on the 28^th day of April 2016, the loan arears was K96, 210. 37.

49. These facts stood admitted or agreed upon by the parties as at the time when the matter was listed for trial. As noted already, the parties agreed to trial by submissions based only on these undisputed facts. Hence, all claims and submissions of the parties must therefore be considered and answered by reference to what is stated in the Statement. In other words, nothing extrinsic to what is stated in the Statement can be permitted or entertained. The relevant question therefore, should be, whether these facts sufficiently establish Kae’s claim in damages and not whether Kae produced any evidence establishing his damages.

50. Based on these undisputed or admitted facts, it was clearly established that:

(3) On 28^th April 2016, Fincorp issued a Statutory Default Notice with the total arrears on the loan standing at K96, 210. 37. However, contrary to s. 67 of the Land Registration Act and the parties Mortgage Deed and Loan Agreement, Fincorp did not serve the Statutory Notice of Default on Kae. That was not an oversight but deliberate;

(4) Fincorp sold Kae’s property without obtaining the market value of the property, which value was K600,000-00.

51. The parties’ agreed Statement of Facts and Issues as noted above made the task of assessing Kae’s damages easier. As mentioned earlier, that Statement represents a crystalized position of the parties. It sails above whatever issue there might have been the case with the pleadings and the evidence. Following return from mediation and the various directions hearing, the parties deliberately arrived at that Statement. The statement represents an abandonment by Kae of all other heads of damages and a decision made to purse only those directly related to Fincorp failing to ascertain the market value and selling the property under its correct market value. The parties’ statement of agreed facts and issues clearly states the value of the property was K600,000.00. The Statement of Facts and Issues also states that the total arrears due to Fincorp was K96, 210.37. The property was sold at a price well below the value of the property.

52. The law on point is clear. A mortgagee has the power and the right to sell a mortgaged property upon a mortgagor defaulting. This is to recover the outstanding loan with the agreed interest. Such is usually subject to a mortgagor’s right to redeem his or her property prior to the signing of any contract of sale of the property with a third party: Golobadana No.35 Ltd v. Bank of South Pacific Ltd (2002) N2309. A mortgagee exercising its powers and rights is under an obligation to ascertain and dispose of the property at the current market value of the property. Where that power is properly exercised, that would result in an ascertainment of the current or fair market value of the property. The property would then be sold at that price with any residual, after allowing for the loan arrears and proven costs and expenses, would be paid back to the mortgagor. This point was clearly made in Australia & Nugini Banking Group (PNG) Ltd v. Kila Wari (1990) N801, by Salika AJ (as he then was). Taking guidance from the English case of Cuckmere Brick Company Limited and Anor v. Mutual Finance Limited [1971] EWCA Civ 9; 1971 2 All E.R. 633, his Honour emphasized that a mortgagee exercising its mortgagee powers, has a duty to take the interest of the mortgagor into account whist exercising its powers. That duty requires a mortgagee to “take reasonable care to obtain whatever was the true market value of the mortgaged property at the moment he chose to sell it”. Where a mortgagee sells at an undervalued price in breach of that duty, that would entitle the mortgagor to the residual after allowing of the total loan arrears. Applying that principle, his Honour arrived at Mr Kila Wari’s damages in the following way:

“I am, on that evidence prepared to put a price tag on the property (sic) at K180,000.00. This would mean the property was sold under value to the tune of K50,000.00. Of that K50,000.00, K30,000.00 would have offset the loan and K20,000 would have been surplus to be paid to Mr. Wari.”

53. A long list of cases has adopted, applied and emphasized the principles stated in the above case. This includes the decision in Walter Perdacher v PNGBC (1997) N1637, Golobadana No 35 Ltd v. Bank of South Pacific Ltd (supra), PNGBC v. Pala Aruai (2002) N2234, Negiso Investments Ltd v. PNGBC (2003) N2439, Westpac Bank PNG Ltd v. Miai Suve Larelake (2008) N3247, Esther Torato v. PNG Home Finance Ltd (2012) N4583, Anego Company Ltd v. Finance Corporation Ltd (2013) N5391.

54. Banks in Papua New Guinea are also subject to an overriding duty to be reasonable and fair in loan transactions: Rage Augerea v. Bank South Pacific Ltd (2007) SC869, Pija Grannies Ltd v. Rural Development Bank Ltd (2011) SC1327, Magiten v. Moses, Anawon, Tovea and Rural Development Bank Ltd (2006) N5008, David Nelson v. Credit Corporation (PNG) Ltd (2011) N4368) and Kimb Tai v. Bank South Pacific Ltd (2020) SC 1941. In this case, the default judgment resolved in favour of Kae the question of whether Fincorp acted fairly, a matter the parties reaffirmed in their agreed Statement of Facts and Issues in the negative.

55. The undisputed fact clearly is that the property was valued at K600,000.00 but was sold under that value at K250,000.00. For the purposes of assessing Kae’s damages, I find that the property was valued at K600,000.00. Fincorp had the duty to ascertain and sell at that or a higher price, a duty it also admittedly failed to discharge. In these circumstances, and based on the relevant law, it is fair to allow for the value of the property at the undisputed amount of K600,000.00 and then allow also for the undisputed total loan arrears of K96, 210.37. This produces a difference of K503, 789.63.

56. Before arriving at a final assessment, I have also given some consideration to an alternative submission by learned counsel for Kae. The alternative submissions is asking for an assessment of damages at K427,289.37. That is based on an average of valuation obtained by an Independent Valuer at K447,000-00 and the agreed value of the property at K600,000 which gives an amount of K523,500.00. Then allowing for the K96,210.63 in arrears, produces the final figure of K427,289.37. This alternative submission has no foundation in the Statement of agreed facts and issues. Also, there is no foundation in the pleadings. Accordingly, I reject the alternative submission. Consequently, we are left only with the submission for K503,789.63. I find in these circumstances that, Kae’s damages has been established at that amount. Accordingly, I assess Kae’s damages at K503,789.63.

57. The only other item of damages mentioned and remains to be resolved is the issue of punitive damages, which is the second issue per the parties Statement of Facts and Issues. I now turn to a consideration of that issue.

58. The way the parties have stated the issue as reproduced as the heading for this part of Kae’s claim suggests, this is an appropriate case for the Court to consider an award of punitive or exemplary damages. The law on this head of damages is well settled in our jurisdiction. One of the most authoritative and clear statement of the law by the Supreme Court is, its decision in Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC 1605, per Salika DCJ, Kandakasi J (as we then were) and Toliken J. There, the court stated the relevant principles in the following terms:

“51. Turning then to the award of K150, 000.00 in exemplary damages, we note the relevant principles are clear. In Abel Tomba v. The State,... the Supreme Court considered the circumstances in which exemplary damages could be awarded. Relying on McGregor on Damages, 5th Edition, Amet CJ (as he then was) expressed the view that exemplary damages may come into play “whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence or the like.” This easily covers cases in which a defendant acts illegally and is in breach of clear legislative provisions and other requirements in total disregard and disrespect for the rights and interests of others. This is why as the learned trial Judge noted, “exemplary damages are vindictive and punitive in nature” to punish the party against whom the award is made. It is usually at the discretion of the Court to award such amounts as the Court considers appropriate in exemplary damages having regard to the conduct of a defendant in the particular circumstances of each case. The main purpose of awarding exemplary damages is dual in purposes. The first is to punish and the second is to deter the party against whom the award is made as well as others from engaging in future and further such conduct or behaviour.”

58. I adopted and applied the above principles in the case of Jacinta Albert v. Joseph Aine & Ors (2019) N7772. That was a case of medical professional negligence by medical doctors and nurses then at the Port Moresby General Hospital, which bordered on criminal negligence. The doctors and nurses could each have been charged for a fetus death of the Plaintiff’s baby and the various operations resulting in the removal of her uterus, cervix and the other parts of her body which ultimately resulted in her being rendered infertile for life. I noted that was not the first time, doctors and nurses in the public hospitals owned and operated by the State have failed to discharge their duties and responsibilities with competence in a timely and professional manner. I referred to a number of earlier cases like the decision in Julie Jack v. Dr. Glen Mola & Ors (2008) N3537, as examples of cases of medical professional negligence and cases in which, exemplary damages were awarded. I then noted with concern the lack of any improvement and the various awards of exemplary damages having failed to achieve that objective. Accordingly, I took the view that, award of damages for exemplary damages must substantially increase until the medical profession wakes up and makes serious improvements. That was necessary to send a strong deterrent message to doctors, nurses and other hospital staff, hospitals and other medical establishments and their owners that, serious consequences will follow against them if they continue to fail in their duties and responsibilities. I considered also that, an increase in exemplary damages was necessary to highlight the State’s failure to swiftly and decisively deal with or discipline medical doctors, nurses and staff who fail in their duties and responsibilities. In those circumstances, I decided to award K100,000.00, which I considered was both appropriate and reasonable. In making that award, I noted that represented an increase of 100% from earlier award as in Julie Jack, which was necessitated by the facts of the case and the failures to adhere by all concerned to past judicial pronouncements.

59. In addition to the foregoing cases, I have also had regard to the decisions in the following cases referred to the Court’s attention by Kae’s counsel:

No	CASE	NATURE	GENERAL DAMAGES	PUNITIVE
1	Aiwara v. Cocoa Board (2017) N6788	Unreasonable refusal of license, breach of legislation	K39,000	K5,000
3	Sek No. 15 v. Apu (2014) N5662	Company & Property Fraud	K60,000	K20,000
4	Trevor Yaskin v.Wallya Abilio (2006) N310	Breach of Customs Act		K20,000
5	Commissioner General of PNG v.Julian Paul Leach (1998) N1779	For breach of law	K600,000	K110,000

60. Further, I had regard to my other decisions in the matter of Bromley v. Finance Pacific Ltd (2001) N2097 and NPF Board of Trustees v. Jimmy Maladina (2003) N2486 cited by counsel for Fincorp. These cases support the proposition that, exemplary damages are consequential and hence dependent on awards of damages on the main heads of damages claimed. Given that, exemplary damages cannot be awarded on their own or alone.

61. In present case, it is admitted and or agreed per the Statement of Facts and Issues that Fincorp breached s67 of the Land Registration Act and the Mortgage and Loan Agreements in failing to serve the default Notice on Kae. It is also an admitted fact that, Fincorp’s conduct was deliberate or intentional and unscrupulous. From these, I infer that Fincorp deprived Kae opportunity to get to know Fincorp was foreclosing on him and give him the opportunity to redeem his property before it was sold off. These were serious beaches of the provisions of the Land Registration Act as well as what is fair and right in the particular circumstances of the case. Foreclosing and selling of a mortgaged property has to be with due notice given to mortgagors and must be at the best possible prevailing value and price in the market. No one should be easily and readily be allowed to be deprived of his or her property which takes much hard work and effort to acquire and takes substantial periods of time to do so. When one is displaced of his property, it is not that easy to find appropriate replacements especially in a small property market.

62. The long line of cases following and since the decisions in Australia & New Zealand Banking Group (PNG) Ltd v. Kila Wari (supra) as note above should have been enough instruction to financing houses who chose to have secure mortgages as security for monies they lend. By now, the industry should have taken these instructions from both the Supreme Court and this Court through the various judgments and would have appropriately adjusted their processes and procedures in due compliance of the law. Despite that, Fincorp’s conduct has taken us back to ANZ Bank v. Kila Wari. This kind of conduct and behaviour by banking and other financing houses are unfair and unreasonable for the reasons given above and therefore unacceptable. This calls for a clear pronouncement against such conduct by the imposition of an appropriate level of exemplary damages both as a penalty and as a deterrent to Fincorp itself and others that this kind of conduct or behaviour is unacceptable in our society and must cease forth with.

63. Having regard to all of the above, I consider an award of K50,000.00 in exemplary damages is an appropriate pronouncement against Fincorp’s conduct and behaviour. Accordingly, I award that amount in exemplary damages.

64. I order interest at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015 on the total judgment sum of K553,789.63 from the date of the issue of the writ until full satisfaction of the judgment.

65. Kae through, his learned counsel asked for costs on a solicitor and own client basis. In support of that submission, counsel points to the various occasions at the many directions’ hearings, mediation and other opportunities given to Fincorp to have this matter settled and it failed to do so. Counsel also points out that the costs of going to trial was totally avoidable. Whist there is basis for Kae’s submissions, I decide against costs on the scale asked for in view of the award of exemplary damages, which I consider also serves the same purpose. Costs will thus have to be on the usual party/party basis with such costs to be taxed, if not agreed.

66. In summary I assess and award Kae damages and make orders in his favour as follows:

(3) Interests at 8% for the date of the issue of the write until full satisfaction of the judgment;

________________________________________________________________
Apo & Co Lawyers: Lawyers for the Plaintiff
Finance Corporation In House Lawyers: Lawyers for the Second Defendant

National Court of Papua New Guinea

Kae v Mondo [2020] PGNC 359; N8681 (14 December 2020)