N10714

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 192 OF 2018 (COMM)

BETWEEN:
VUKSICH & BORICH (NZ) LIMITED
Plaintiff

V

PACIFIC ENERGY AVIATION (PNG) LIMITED
Defendant

Waigani: Anis J
2022: 20th September, 12th October
2024: 11th April

TRIAL – Claim in equity – claim for unjust enrichment – claim by sub-contractor against party in the head contract – claim for payment of outstanding invoices for work performed under the sub-contract – consideration of the elements of unjust enrichment – whether binding contract takes precedence – equity maxim – equity follows the law – considering whether plaintiff capable of conveying a benefit to the defendant – considering whether defendant benefitted at the expense of the plaintiff – considering whether it would be unjust for the defendant to keep the benefit – considering existence of additional elements – considering whether the elements of unjust enrichment apply given the circumstances of the case – ruling

PRELIMINARY ISSUE – Legal status of the plaintiff - whether sufficient evidence adduced to sustain plaintiff’s legal status – whether legal status was seriously contested as a determinative issue

Cases Cited:
Papua New Guinean Cases

Elis Pandopa v. Yapili Urupu (2020) N8510
Pius Koroguen v. Christine Wagen (2008) N3422
Jackson Laka v. Pius Nui (2013) SC1223
Leonard Gaua v. Joe Amir and Ors (2009) N3891
PNGBC v Barra Amevo and Bari Investments t/a Kainantu Pharmacy, Lennie Aparima and Orito Aparima (1998) N1726
Maoko v Ling [2008] N3293
Christian Life Centre v Associated Mission Churches of PNG & Others (2002) N2261
Soka Toligai v. Sir Julius Chan (2012) N4842

Overseas Cases

Reveille Trucking, Inc. v. Lear Corp., No. 4:14-CV-511, 2017 WL 661521, at 13 (S.D. Tex. Feb. 17, 2017)
Jupiter Enterprises, Inc v. Harrison, No. 05–00–01914–CV, 2002 WL 318305, at 3 (Tex. App. — Dallas Mar. 1, 2002)
Costello and Or v. MacDonald and Ors [2011] EWCA Civ 930
Hampton v Glamorgan County Council [1917] AC 13
Lumber v. W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27
Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd [1915] UKHL 1; [1915] AC 847

Counsel:

B Sinen with counsel assisting P Lowing, for the Plaintiff
E P Asigau, for the Defendant

JUDGMENT

11th April, 2024

1.	ANIS J:  This matter was trialed on liability and quantum.  Closing arguments were presented on 12 October 2022.  I reserved my ruling thereafter to a date to be advised.

2.	This is my ruling.

BACKGROUND

3.	The plaintiff company is alleged to be incorporated in New Zealand.  In the writ of summons and statement of claim (SoC) that is filed, the plaintiff claims unjust enrichment against the defendant.  The defendant was a principal party to a head-contract with another party called MRS Guernsey Ltd (MRS).  The head-contract was to construct an aviation fuel and oil depot or a fuel farm (fuel farm).  It was signed in 2014 (Head-Contract).  Under the Head-Contract, MRS was tasked to construct the fuel farm on the defendant’s leased premises for an initial value of AUD$8,421,483.57.  The defendant’s premises is situated at the Jackson’s International Terminal.  Based on the Head-Contract, MRS signed a sub-contract with the plaintiff.  The sub-contract is dated 14 August 2014 (Sub-Contract).  

4.	MRS subcontracted the plaintiff to do the following scope of work:

(a)	Initial site clearance, earthworks, and access road constructions; 

(b)	Construction of the foundation of two (2) fuel tanks;

(c)	The construction of perimeter bundwall enclosing the 2 fuel tanks and the protective concrete slab over the liner.

5.	The plaintiff performed its work under the Sub-Contract.  On 18 April 2016, MRS issued the plaintiff with a certificate of completion, that is, regarding the scope of work that had been assigned to the plaintiff under the Sub-Contract.  

6.	The complaint by the plaintiff that resulted in this proceeding relates to 2 final invoices that it had issued to MRS for work performed under the Sub-Contract.  The first is invoice number 101012, which was for a sum of AUD 535,256.22, and the invoice was issued on 14 April 2016.  MRS partially settled the first invoice by making a payment of AUD212,628.11.  The balance owed after the part-payment was AUD322, 628.11, which was equivalent to K486,563.18.  The plaintiff claims that the said sum is still due and owing.  The second invoice bears the number 101013.  It was issued by the plaintiff to MRS on 15 November 2016.  The amount claimed therein for work done was AUD359,359.24, which was equivalent to K822,867.83.  The plaintiff claims in the SoC that the balance of monies in the 2 invoices remains owing.

7.	The total sum claimed in the SoC is AUD572,221.35.

8.	Despite numerous follow-ups by the plaintiff, MRS did not settle the invoices.  

9.	The plaintiff says it later learnt in January 2016 that the defendant disputed MRS’s work that had been carried out under the Head-Contract.  MRS was tasked to construct the 2 fuel tanks.  So, after preparatory work had been completed by the plaintiff, MRS constructed the 2 fuel tanks.  The plaintiff learnt that the defendant was unhappy with the quality of work regarding the construction of the 2 fuel tanks and their certifications.  The plaintiff learnt that the dispute led to the defendant refusing to fully pay MRS’s dues under the Head-Contract which in turn affected MRS’s ability to pay its 2 outstanding invoices.

10.	The plaintiff claims that on 6 September 2016, MRS issued a letter of consent to it (i.e., the plaintiff) for the defendant to directly pay its 2 outstanding invoices.  The plaintiff claims the defendant knew of its 2 outstanding invoices and had offered to settle them.  However, it claims that on 9 September 2016, the defendant withdrew its offer.

11.	On 16 December 2016, MRS went into voluntary liquidation.  It did not have any funds to settle the plaintiff’s 2 outstanding invoices.

12.	The plaintiff pleads that around 9 February 2017, the parties held discussions concerning the plaintiff’s predicament and proposed an option where the defendant may be able to offset the plaintiff’s debt.  The parties discussed the possibility of entering into a road contract where the defendant may award the contract to the plaintiff.  The arrangement fell through after the defendant awarded the contract to another party.

13.	Thus, the plaintiff, being unable to sue the MRS under the Sub-Contract, commenced this action against the defendant.

EVIDENCE

14.	The parties gave evidence by affidavits as well as testimonies in Court.  The plaintiff’s evidence were given exhibit numbers and were marked as exhibits P1 to P4.  The defendant filed 1 affidavit which was marked as Exhibit D1.

15.	There were objections raised to some of the evidence of the plaintiff by the defendant.  These were addressed and overruled at the hearing.  In summary, I allowed the evidence in with a general ruling that the evidence will be considered, and that I will decide what weight to give to each of them where appropriate.

ISSUES

16.	Having heard the matter, the main issues in my view, are as follows:

(i)	Whether the plaintiff’s legal status is an issue and if so, what are the consequences if any;

(ii)	Whether the plaintiff had sub-contracted the Sub-Contract to a third party namely Vuksich & Borich (PNG) Ltd, and if that was the case then what this means to the claim;

(iii)	Subject to the above, whether the defendant has unjustly enriched itself, and if so, whether the Court should award the full amount claimed in the 2 invoices.

STATUS OF THE PLAINTIFF

17.	The defendant, at trial, appeared to challenge the legal status of the plaintiff.  In response, the plaintiff relied on Exhibit P1 to give clarity.  The defendant had opposed the use of the said evidence which was overruled.

18.	Should I give weight to this evidence?  When I observe Exhibit P1, Mr Sinen deposes his instructions on the legal status of the plaintiff.  To me, that may be regarded the same as counsel informing the Court that premised on his instruction, the plaintiff was incorporated in New Zealand.  However, what is relevant is where Mr Sinen attaches a company extract of the plaintiff which was generated on 17 June 2022.  That to me constitutes sufficient evidence of the fact that the plaintiff was registered in New Zealand on 25 July 2005.

19.	I must add that given that the plaintiff’s legal status was not denied by the defendant in the pleadings except to say that the defendant does not know and does not admit, does not place a heavy burden of proof on the plaintiff.  Thus, evidence such as those adduced in Exhibit P1 should be sufficient.  If there was denial in the pleadings, then it may become a serious issue and it is expected that the defendant may have a legitimate reason to question the existence of the plaintiff.  In the present case, no contravening evidence was adduced by the defendant on the subject matter except mere opposition by counsel for the defendant on the use of Exhibit P1 and challenges to its content.

20.	In my view, the issue, premised on the pleadings, is minor because the defendant states that it simply does not know of the plaintiff’s legal status, but then, when the plaintiff is bringing in evidence to prove that fact, the defendant is not interested to know but wants to shut out the plaintiff completely.  The plaintiff’s Exhibit P1 is also corroborated by Exhibit P2, that is, and I refer to para. 3 to Chris Laqua’s affidavit.  The plaintiff, as adduced in its evidence, is not a new company in the construction business.  It has operated in New Zealand and throughout the Oceania region for over 50 years.

21.	In summary and as I had ruled earlier, it is a question of what weight I should give to the plaintiff’s evidence.  I am minded to and I give sufficient weight to the evidence of the plaintiff, and in so doing, find that the plaintiff is a legal person who is capable of suing and can be sued.

ROLE OF THE PLAINTIFF & VUKSICH & BORICH (PNG) LTD

22.	To begin my consideration under the second issue, I find that both companies, namely, the plaintiff and Vuksich & Borich (PNG) Limited (Vuksich PNG), to be separate legal persons.

23.	Vuksich PNG is incorporated in PNG.  The defendant asserts that actual work under the Sub-Contract was undertaken by Vuksich PNG and not the plaintiff.  As such, the defendant submits, amongst others, that the plaintiff did not perform any work that it should be compensated for, nor could it make a claim for unjust enrichment.

24.	It is not however disputed that the plaintiff sub-contracted its work under the Sub-Contract to Vuksich PNG at the material time.  A copy of the sub-contract is adduced in evidence under Annexure C2 to Exhibit P2, that is, the affidavit of Chris Laqua filed 15 February 2021.  The contract is dated 14 August 2014 (second Sub-Contract). 

25.	I note that the plaintiff did not assign the Sub-Contract over to Vuksich PNG under the second Sub-Contract.  This consideration is crucial. That being the case, it is immaterial whether the plaintiff actually performed the work or sub-contracted it out to another person to perform.  The action by the plaintiff to enter into the second Sub-Contract was an internal matter for the plaintiff to decide for itself premised on the Sub-Contract.  If there was an issue concerning the decision by the plaintiff to further sub-contract its work, the only party who could have raised it would have been MRS.  At the end of the day, work under the Sub-Contract appeared to have been performed as required by MRS of the plaintiff, that is, when MRS issued the certificate of completion to the plaintiff on 18 April 2016.  I note that it is also not unusual for an overseas-based company to incorporate a subsidiary or domestic company where it would retain control of or use for its business activities in a domestic setting, like in this case. 

26.	So, in answer to this second issue, I find that in favour of the plaintiff.

DEFINITION – UNJUST ENRICHMENT

27.	Let me begin my consideration by looking at the definition of unjust enrichment.  Halsbury’s Laws of England, Contract, 4th Edition, at paras. 630 and 635 state and I quote:

10.  QUASI CONTRACT AND RESTITUTION

630. Common law.  Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep.  Such remedies in English Law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi contract or restitution.

For historical reasons, quasi contract has traditionally been treated as part of. or together with, the law of contract.  Yet independently, equity has also developed principles which are aimed at providing a remedy for unjustifiable enrichment.  It may be that today these two stands are in the process of being woven into a single topic in the law, which may be termed “restitution”.  
……
635. The alternative theories.  For many years, the theoretical basis of quasi-contractual liability has been controversial.  There are two main theories: (1) that liability is based on an implied contract; and (2) that liability is derived from the principle of unjust enrichment.  Whilst many systems of law have now accepted the latter theory, it may be that the matter has not yet been finally resolved in England.

[Underlining mine]

28.	Thompson J in Elis Pandopa v. Yapili Urupu (2020) N8510 stated at paras. 7, 8 and 9:

7.  The nature of a claim for unjust enrichment is set out by the Supreme Court in Covec (PNG) Ltd v Peter Kama and ors (2020) PG SC 9. The Court quotes from The Law of Torts in New Zealand, 5th Ed, 2009, Hughes Burrows Smillie Hawes: “Outside contract and tort, there is a source of civil obligation ... based on the idea of unjust enrichment.”

8.  They proceed to quote from The Law of Restitution, 1998, Goff and Jones, to state that the Defendant must have been enriched by the receipt of a benefit which has been gained at the Plaintiff’s expense, and it would be unjust to allow the Defendant to retain that benefit. The sums recoverable are not damages. They are measured by the amount of the gain made by the Defendant, rather than by the loss suffered by the Plaintiff.

9.  In order to succeed in her claim, the Plaintiff must establish that the Defendant received a benefit from the Plaintiff at the Plaintiff’s expense, and that it would be unjust to allow the Defendant to retain that benefit.

[Underlining mine]

ELEMENTS - UNJUST ENRICHMENT

29.	The elements of an equitable claim for unjust enrichment are settled in this jurisdiction.  Case authorities such as Pius Koroguen v. Christine Wagen (2008) N3422, Jackson Laka v. Pius Nui (2013) SC1223 and Leonard Gaua v. Joe Amir and Ors (2009) N3891, have stated them as follows:

(i)	the defendant has been enriched by the receipt of a benefit;

(ii)	the defendant has been enriched at the plaintiff’s expense; and

(iii)	it would be unjust to allow the defendant to retain that benefit.

30.	The above are basic tests or elements that have been applied by Courts in this jurisdiction premised on the English common law and equity.  The elements appear to be broad.  But premised on the case law, it can be said that the defendant must receive a benefit from the plaintiff at the plaintiff’s expense, and that it would be unjust to allow the defendant to retain the benefit.  Other elements may include plaintiff’s knowledge of the work that is performed by the defendant, and that the work performed by the defendant was not for free or something that was not intended to be charged or claimed.  For example, in the United States and in the State of Texas, the elements of unjust enrichment are similar but expounded into 4 in total as follows:

•	that valuable services were rendered or materials furnished;
•	for the person sought to be charged;
•	which services and materials were accepted by the person sought to be charged, used, and enjoyed by that person; and
•	under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged. 

31.	See Cases:  Reveille Trucking, Inc. v. Lear Corp., No. 4:14-CV-511, 2017 WL 661521, at 13 (S.D. Tex. Feb. 17, 2017); Jupiter Enterprises, Inc v. Harrison, No. 05–00–01914–CV, 2002 WL 318305, at 3 (Tex. App.—Dallas Mar. 1, 2002).  However, and in general, a plaintiff who is making a claim cannot recover under a theory of unjust enrichment if there is a valid contract that exists that covers the subject matter of the dispute.

32.	Courts in this jurisdiction have accepted claims under the common law in damages for breach of contract.  Courts have also accepted actions that are commenced under the common law and equity for (i) quasi or implied contracts and (ii) unjust enrichment, for the relief-restitution.  See s.9 and Sch 2.2(1), Constitution of PNG.

CONSIDERATION

33.	In the present case, the plaintiff’s only action is in equity for unjust enrichment.

34.	As such, I note that arguments such as privity of contract or non-party, assignment of rights and delegation of duty including case authorities that are cited by the parties, may have no direct relevance to assist me consider whether the defendant has unjustly enriched itself from the work or efforts of the plaintiff.  However, that said, they may assist in giving context to the material facts and law, the latter on whether I should choose equity if there are existing laws that already bind the relationships of the parties.  The cases relied upon by the parties include Costello and Or v. MacDonald and Ors [2011] EWCA Civ 930, Hampton v Glamorgan County Council [1917] AC 13, and Lumber v. W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27.

35.	The practical facts of a case, its pleadings, and the issues are paramount, in my view, to map out the perimeters of a claim that is premised on unjust enrichment.  In the present matter, we have the Head-Contract.  The Head-Contract was entered between the defendant and MRS.  The plaintiff was not a party to it.  Then we have the Sub-Contract between MRS and the plaintiff.  It is obvious in the facts that surrounded the Sub-Contract as well as its terms and conditions, which is also not disputed, that MRS and not the defendant, was responsible to pay the plaintiff directly for work that the plaintiff did.  The relevant clause is clause 37, and a copy of the Sub-Contract is marked as Annexure B to Exhibit P2.  It is also not disputed that MRS had sub-contracted the plaintiff to perform and complete specific scopes of work that were required under the Head-Contract.  It is not disputed that under the Head-Contract, the defendant contracted MRS to construct and deliver the fuel farm to it, and the considerations (i.e., monies) for the construction of the fuel farm were paid directly by the defendant to MRS.  And lastly, it is also not disputed that MRS never completed and delivered the fuel farm to the defendant, and the defendant terminated the Head-Contract where it had to engage a third party to complete and deliver the fuel farm to it; and the third party was the one that completed and delivered the fuel farm to the defendant.

36.	The plaintiff appears to concede that it has no legal basis, under the doctrine of privity of contract, to sue the defendant for breach of contract.  I find that to be the case herein.  The plaintiff could have sued MRS for breach of contract premised on the Sub-Contract.  However, it had opted not to, and the obvious reason is that MRS had gone into voluntary liquidation after the defendant terminated the Head-Contract, and it seemed that there were no funds left to pay for the plaintiff’s 2 outstanding invoices after the liquidation exercise, thus this action.

37.	So, without any existing contract between the plaintiff and the defendant, I ask myself this.  Does the plaintiff meet the 3 elements or requirements of unjust enrichment?  The first element is whether defendant has been enriched by the receipt of a benefit.  The facts of the present case, as summarised above, make it possible for me to say that, “yes, the defendant was enriched by receipt of a benefit in general because the fuel farm, premised on the first incomplete contract as well as the completed contract that the defendant had with a third party, was delivered to the defendant.”  The overall purpose for the contractual arrangements was for the construction and delivery of the fuel farm to the defendant, and given that there was no dispute in regard to part of the work that had been performed under the Sub-Contract which had operated under the Head-Contract, it may be fair to argue or say that the some benefits were conferred to the defendant in regard to the completion of the fuel farm.  

38.	I am minded to and find generally that the defendant has enriched itself from work that had been carried out under (i), the Head-Contract that had been terminated and (ii) the contract that the defendant later had with the third party who completed the project.

39.	I move now to the second issue, which is, Did the defendant enrich itself at the expense of the plaintiff?  The defendant’s contentions include this.  It claims that it was Vuksich PNG that actually performed the Sub-Contract and not the plaintiff thus it submits the plaintiff did not incur any expenses that it could have suffered or make a claim for.

40.	I note the arguments of the parties. 

41.	I dismiss the defendant’s argument.  Evidence adduced in Exhibit P2 shows that Vuksich PNG was sub-contracted by the plaintiff to perform the work (Second Sub-Contract).  Evidence of that may be seen at Annexure C2 in Exhibit P2.  Vuksich PNG was more or less like a subsidiary company of the plaintiff, and the second Sub-Contract appears to be an internal arrangement had between the plaintiff and its domestically based company which is not an uncommon practice in the commercial world.  Regardless, I note that the plaintiff did not assign its rights in the second Sub-Contract over to Vuksich PNG.  The work performed by Vuksich PNG under the second Sub-Contract constituted work that had been performed by the plaintiff pursuant to the Sub-Contract.  

42.	However, dismissing the defendant’s argument is not decisive of the second element.  

43.	The plaintiff has invoked the jurisdiction of this Court to sit as the Court of equity.  As such, I must observe and apply fairness subject to law.  In so doing, I must say and find that the defendant did not enrich itself at the expense of the plaintiff.  The defendant had paid for the fuel farm to be constructed and delivered to it, not by the plaintiff but, by MRS.  MRS failed to deliver the fuel farm for the price or consideration that the defendant had paid for, under a binding contract which was the Head-Contract.  The defendant then had to pay a third party for double or more the price that it had paid to MRS, to complete and deliver the fuel farm to it.  It may also be argued that the defendant suffered great loss for the construction and delivery of its fuel farm.  

44.	Had there been (i), no written or decisive contracts between the parties including MRS, and (ii), same level or a one-off set of facts, the situation could have been different, and the Court would have been tasked to scrutinize the actions or inactions of the parties to consider whether unjust enrichment occurred or exist.  This is however not the case.  First, the plaintiff and MRS had a separate binding contract, and MRS and the defendant also had a separate binding contract, all of which existed at the material time.  Secondly, this is not a classical painter’s case for unjust enrichment where for example a painter paints a wrong house and the owner sees the painter painting his house and says nothing and allows the painter to complete the job but later refuse to pay on the premise that he as the owner did not ask for a paint job over his dilapidated house but that after the painting it made his house looked much better or new.  The present case involved binding contracts and at different level or arrangements.  The top level was the Head-Contract which the plaintiff had no business in, and the second level was the Sub-Contract which the plaintiff was a part of.  The parties executed their contracts and understood their terms and conditions, and the works that were performed were carried out under those expressed terms and conditions.

45.	The third element of unjust enrichment is whether it would be unjust to allow the defendant to retain that benefit.  I will begin with this.  The defendant terminated the Head-Contract with MRS citing delays and want of quality in the construction of the 2 fuel tanks, which it claimed were contrary to the terms and conditions of the agreement.  Pursuant to contract law and the doctrine-privity of contract, once the Head-Contract was terminated, that was the end of the relationship between the defendant and MRS, and rights that may be claimed under the Head-Contract were restricted to the defendant and MRS; the plaintiff was not privy to the Head-Contract thus does not have any say nor can it sue for breach of contract under it.  See cases:  PNGBC v Barra Amevo and Bari Investments t/a Kainantu Pharmacy, Lennie Aparima and Orito Aparima (1998) N1726, Maoko v Ling [2008] N3293, Christian Life Centre v Associated Mission Churches of PNG & Others (2002) N2261, Soka Toligai v. Sir Julius Chan (2012) N4842 and Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd [1915] UKHL 1; [1915] AC 847.

46.	With these, I ask myself this question.  Does it matter if the defendant had knowledge of (i) the existence of the Sub-Contract, (ii) the plaintiff, (iii), the scope of work that was required of the plaintiff under the Sub-Contract at the material time, and (iv) the 2 outstanding invoices?  The answer to all 4 queries is in the negative.  And the reason for this is because of the existence of the Head-Contract.  As to how MRS chose its contractors or subcontractors to build and deliver the fuel farm to the defendant, was a matter for MRS.  Knowledge of who MRS’s subcontractor was or what happens between MRS and its workers, in my view, was irrelevant and did not affect the terms and conditions of the Head-Contract between the defendant and MRS.  

47.	I will also refer to and apply the maxim, equity follows the law.  This maxim, also expressed as ‘Aequitas sequitur legem’, may be interpreted to mean that "equity will not allow a remedy that is contrary to law."  Granting the relief may prove fatal to and be contrary to the binding contractual relationships that exist or existed between the defendant and MRS, and between MRS and the plaintiff, at the material time.  It will also be very unfair and wrong in law for this Court, sitting as the Court of equity, to order the defendant to pay restitution when the defendant had already paid double or more for the price of the fuel farm to those that it was legally entitled to pay under the contracts, and also, in a scenario where the plaintiff has a cause of action for breach of contract against MRS under a valid contract which is the Sub-Contract as oppose to no contract at all between itself and the defendant.

48.	Equitable principles such as acquiescence, in my view, did not or could not have applied, again, given the written contracts that existed between the parties.  I also do not see how the plaintiff can logically rely on this principle.  The plaintiff, at the material time, was performing its role as a sub-contractor who was answerable to MRS.  Further, knowledge of the 2 outstanding invoices and the defendant’s discussions with the plaintiff consisted of aftermath events that have no relevance for this purpose.  But even if I am wrong in that regard, discussions that may have been had between the plaintiff and the defendant would have occurred with the full knowledge of the contractual relationship that existed between the defendant, MRS and the plaintiff.

49.	Thus, in my view, although the plaintiff has passed the first element of a claim for unjust enrichment, I cannot see how the 2 remaining elements would even apply, and even if they do, that they would favour the plaintiff.  

GIVING CONSENT TO CHASE DEBT WITH PRINCIPAL

50.	At para. 31 of the SoC, the plaintiff pleads that, On or around 6 September 2016, MRS issued a letter of consent to the plaintiff for the Defendant to pay the Outstanding Invoices to the Plaintiff.  

51.	This pleading and the evidence that had been adduced in that regard appeared confusing to me.  However, having considered them, I find that this fact is nothing more then what may be described as a principal/agent type engagement whereby MRS had appointed or directed the plaintiff as its agent to do direct follow-ups for outstanding debts that were due and owed to it which included monies that MRS owed to the plaintiff.  This arrangement, as revealed in the adduced evidence, failed to materialise. 

52.	Adduced evidence under Exhibit D1 shows attempts by the parties to try to resolve payment of the plaintiff’s 2 outstanding invoices.  It had been proposed that the defendant may offer a construction contract to the plaintiff.  The arrangement however also did not materialise.  I will remark that that may be a separate matter and if there are credible evidence or considerations then it may be pursued separately.

SUMMARY

53.	In summary, this claim will fail for the above stated reasons.

COST

54.	Cost award is a discretionary matter.  In this case, I will order cost to follow the event to be assessed on a party/part basis to be taxed if not agreed.

ORDERS OF THE COURT

55.	I make the following orders:

1.	The plaintiff’s claim for unjust enrichment is dismissed.

2.	The plaintiff to pay the defendant’s cost of this proceeding on a party/party basis which may be taxed if not agreed.

3.	Time for entry of these orders is abridged to the date and time of settlement by the Deputy Registrar of the National Court which shall take place forthwith.

The Court orders accordingly

________________________________________________________________
Leahy Lewin Lowing Sullivan:	Lawyers for the Plaintiff
Pacific Legal Group:		Lawyers for the Defendant