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Ronnie Choi Constructions Ltd v Tela [2024] PGSC 91; SC2617 (5 August 2024)

SC2617

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 182 OF 2021

BETWEEN:
RONNIE CHOI CONSTRUCTIONS LIMITED
Appellant

AND:
ROBERT TELA,
Provincial Works Manager, Enga Province
First Respondent

AND:
DAVID WEREH,
Regional Works Manager Highlands and Southern
Second Respondent

AND:
JOEL LUMA,
Secretary, Department of Works
Third Respondent

AND:
INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Respondent

Waigani: David J, Hartshorn J, Frank J
2024: 25^th April, 5^th August

SUPREME COURT APPEAL – ASSESSMENT OF DAMAGES - judgment subject of appeal is on assessment of damages - appellant’s claim in National Court was for breach of contract between the appellant and the State - Decision appealed refused all damages sought and awarded K150,000.00 for demobilisation costs - grounds of appeal - that the primary judge fell into errors of law and fact by incorrectly applying the principles for an assessment of damages and by heavily relying upon and applying irrelevant matters – the fact that non-compliance of statutory requirements were not pleaded in the defence does not relief the plaintiff- court cannot override a statutory provision- purported contract between state and appellant is unenforceable - appeal is dismissed

Cases Cited:
Mel v. Pakalia (2005) SC790
Ray (trading as Bara Construction) v. Numara (2018) N7380
Bluewater International Ltd v. Mumu (2019) SC1798
State v. Nimbituo (2020) SC1974
Ronnie Choi Constructions Limited v. Robert Tela and 2 Ors (2021) N9971
Kopyoto Investment Ltd trading as Lodge 10 v. National Housing Corporation (2022) SC2339
Ian Smith Ikowari v. Minister for Foreign Affairs (2022) SC2340

Counsel:
Mr. S. Phannaphen and Mr. B. Samson, for the Appellant
Mr. W. Mapiso, for the Respondents

5^th August 2024

1. DAVID J. and HARTSHORN J: The appellant appeals a judgment on an assessment of damages (Decision appealed). The appellant’s claim in the National Court was for breach of contract between the appellant and the State. That contract was for the appellant to pave and reseal a portion of the Enga Highway. The Decision appealed was on an assessment of damages after judgment had been entered after the respondents’ defence had been struck out. The Decision appealed refused all damages sought and awarded K150,000.00 for demobilisation costs.

2. The grounds of appeal are in essence that the primary judge fell into errors of law and fact by incorrectly applying the principles for an assessment of damages and by heavily relying upon and applying irrelevant matters.

Consideration

3. In the course of the hearing of the appeal, counsel for the appellant was questioned by the Court as to whether certain sections of the Public Finances (Management) Act 1995 (PFMA) had been complied with by the appellant when its claim was brought in the National Court. The Court of its own volition pursuant to its inherent jurisdiction is able to raise an issue: Bluewater International Ltd v. Mumu (2019) SC1798; State v. Nimbituo (2020) SC1974; Kopyoto Investment Ltd trading as Lodge 10 v. National Housing Corporation (2022) SC2339 and Ian Smith Ikowari v. Minister for Foreign Affairs (2022) SC2340.

4. Counsel for the appellant submitted that the requirements of the PFMA were matters of procedure and that in this instance liability in favour of the appellant had already been decided. Further, any non-compliance with PFMA should have been raised by the defendants in the National Court in regard to liability but was not.

5. The provisions of s. 47C and s. 47D PFMA and s. 2A Claims Act which were in force at the time when the purported contract between the appellant and the State was entered into and the National Court proceedings commenced, provide amongst others that:

Section 47C PFMA

(2) A contract for the purchase of property or stores or for the supply of goods or services entered into, or purported to have been entered into, by or on behalf of the State, in respect of which purchase or supply no Authority to Pre-commit Expenditure has been issued or no Integrated Local Purchase Order and Claim has been issued, is null and void.

Section 47D PFMA

(2) A claim for the price arising from the sale of property or stores or for the supply of goods or services to the State shall not be enforceable, through the courts or otherwise, unless the seller of the property or stores or the supplier of the goods or services produces –

(a) an Integrated Local Purchase Order or Claim (ILPOC); or

(b) an Authority to Pre-commit Expenditure,

relating to the property or stores or goods or services, the subject of the claim, to the full amount of the claim.

Section 2A Claims Act

(2) A claim for the price arising from the sale of property or stores or for the supply of goods or services to the State shall not be enforceable, through the courts or otherwise, unless the seller of the property or stores or the supplier of the goods or services produces –

(a) a properly authorised Integrated Local Purchase Order or Claim (ILPOC); or

(b) an Authority to Pre-commit Expenditure,

relating to the property or stores or goods or services, the subject of the claim, to the full amount of the claim.

6. In regard to compliance with ss. 47C, 47D PFMA and s.2A Claims Act, we refer to Ray (trading as Bara Construction) v. Numara (2018) N7380. There is no pleading in the National Court concerning compliance with the above sections and nothing before this court to show that an Authority to Pre-commit Expenditure or an Integrated Local Purchase Order or Claim was issued or was produced by the plaintiff in the National Court. Consequently, pursuant to s. 47(D) (2) PFMA and s. 2A(2) Claims Act the purported contract between the appellant and the State is unenforceable.

7. As to the submission that compliance with the PFMA is a matter of procedure, if the procedure or manner prescribed by an Act of Parliament is not followed, consequences follow. That liability was determined does not have the effect of overriding a provision of an Act of Parliament. A court cannot ignore or set aside a statutory provision unless a statute gives the court the power to do so. That a National Court rule provides that a defence must be pleaded does not render a provision of an Act of Parliament of no effect if a defence is not pleaded and judgment entered. The reliance on the judgment of Mel v. Pakalia (2005) SC790 does not assist the appellant as the PFMA, s. 2A Claims Act and the ability of the court to override a statutory provision were not considered in that judgment.

8. Consequently, this appeal is frivolous as the purported contract was not able to be enforced in the National Court and is not able to be enforced in this court. As to this court’s jurisdiction in this regard, we refer to [8] and [9] Ikowari v. Minister for Foreign Affairs (supra) which are reproduced:

“8. In Don Polye v. Jimson Papaki & Ors (2000) SC637, the Court said:

“This Court always has had authority and of course jurisdiction to ensure the integrity of its process. Accordingly, any proceedings not brought in good faith or which are frivolous, vexatious or oppressive can and will be struck out by a Court as an abuse of its process.”

9. In ensuring the integrity of its processes this Court may exercise that power of its own volition: Moime v. National Housing Corporation (2012) SC1191; Minicus v. Telikom (2014) SC1368; Amben v. Telikom (2015) SC1422; National Airports Corporation v. Simitap (2019) SC1883; State v. Nimbituo (2020) SC1974 - see also Don Polye v. Jimson Papaki (supra); Tamali Angoya & Ors v. Tugupa Association Inc & Ors (2009) SC978; Rimbao v. Pandan (2011) SC1098 and Mendepo v. National Housing Corporation (2011) SC 1169. Consequently, as this appeal is frivolous as it is bound to fail the appeal should be dismissed.”

9. We mention that although we have found that the purported contract was not able to be enforced in the National Court, as the respondents did not appeal the judgment of the primary judge, that judgment remains unchallenged apart from the appeal of the appellant. Given the above it is not necessary to consider the other submissions of counsel. This appeal should be dismissed.

10. FRANK J: In this appeal, the appellant seeks to set aside or quash the judgment of the National Court which assessed its damages following a trial (Ronnie Choi Constructions Limited v. Robert Tela & 2 Ors (2021) N9971) after default judgment was granted in its favour.

11. In 2010 the appellant and the fourth respondent (“State”) through the Central Supply & Tenders Board (“CSTB”) entered into a road maintenance contract for the pavement and re-sealing of a portion of the Enga Highway between Yakaidis to Wapenamanda (“Contract”) for a consideration of K8,322,649.83 (“Price”).

12. The appellant issued to the State for payment 6 interim payment claims (“IPC”) for the works it allegedly undertook and completed under the Contract. The appellant alleged that the State:

(1) unlawfully deducted a certain amount from each of the first 5 IPC;
(2) unlawfully refused to pay any part of the sixth IPC;
(3) defaulted in promptly paying each IPC;
(4) defaulted in paying interest that was due and payable on account of the late payment of each IPC or its failure to pay the sixth IPC; and
(5) caused the appellant to suffer loss and damage.

13. In its statement of claim, the appellant alleged that it suffered loss and damage because of the State’s breach of its payment obligations under the Contract, including those the subject of the trial assessment and this appeal, those being:

(1) unpaid K500,000.00 mobilization fee;
(2) K3,185,635.67 being the sum of the unpaid portions of the first 5 IPC and the sixth IPC as set out under para.23 of the statement of claim;
(3) interest for the delay in paying the component of each of the IPC already paid;
(4) interest for the delay in paying the unpaid component of each of the IPC;
(5) loss of income, business and or profit;
(6) damages for breach of contract;
(7) costs.

14. On 19 December 2021, in his judgment on the assessment, the trial judge:

(1) awarded K150,000.00 in damages for demobilization;
(2) awarded interest at 2 percent per annum on the K150,000.00 award; and
(3) refused to award any damages on account of each of the other heads of claim; and
(4) awarded the appellant costs at one eighth of the amount that it might otherwise have been entitled to claim.

15. Aggrieved by this judgment, the appellant contends that the trial judge erred in refusing to award damages in respect of the other heads of claim, in awarding interest at a lower rate to that which the appellant had claimed and in awarding only a portion of the costs of the proceedings below to that which it otherwise would have been entitled.

Mobilization Fee

16. By its first ground of appeal, the appellant submits that the trial judge erred in law and in fact when he refused to award any damages on account of the mobilization fee on the basis that the appellant had failed to prove that the requirements of the PFM Act and the Contract had been complied with to effect a variation of the Contract when:-

(1) liability had, on the authority of Mel v. Pakalia (2005) SC790, been resolved by the default judgment; and
(2) on the evidence, the appellant had established that the K500.00 stated in the Tender application and reflected in the Bill of Quantities as mobilization fee was a typographical error which the State, through its representatives, acknowledged in a meeting with the appellant in August 2010.

17. The appellant claimed K500,000.00 in para.12 of the statement of claim on the basis that:

(1) as pleaded in para.11 of the statement of claim, it is the usual mobilization fee; and
(2) as pleaded in para.12 of the statement of claim, it represents the costs which the appellant incurred in mobilizing itself after it was assured by the respondents that they will process the payment of the outstanding balance of the mobilization fee of K500,000.00, having paid only K500 of it.

18. The proposition that the mobilization fee was K500,000.00 can only be correct if the Price had been varied since its execution. The trial judge (“His Honour”) considered this claim in para.12 to 34 of his reasons for judgment (“Written Reasons”).

19. His Honour found that the Contract specified K500.00 for mobilization.

20. His Honour then considered the appellant’s claim that K500.00 was a typographical error and observed that no variation of the Price had been alleged in the statement of claim or established on the evidence.

21. As regards the pleading, para.9 of the statement of claim correctly pleads the Price as K8,322,649.83. However, the statement of claim does not allege that the Price was varied by a variation of the Contract. Nor does it allege that under the Contract, for instance, by the industry’s practice (if there was such a practice), the fee for mobilization applies for the appellant’s claim as pleaded to have any contractual basis. Therefore, the appellant’s alleged right to claim K500,000.00 as mobilization fee has not been pleaded.

22. And, as the statement of claim does not allege that the Contract was varied and that by such variation the mobilization fee was increased by K499,500.00 (which would also have increased the Price), the claim of right to that increased amount could not merge in the default judgment. Therefore Mel v. Pakalia (2005) SC790 is of no assistance to the appellant.

23. As regards the evidence, the submission that, on the evidence, the appellant had proven that the K500.00 stated in the Tender was a typographical error, is rejected, firstly, because the trial judge considered this evidence but was not satisfied by it to find that the K500.00 stated in the Tender was a typographical error. Therefore, the appellant cannot maintain that assertion as it has not appealed against the trial judge’s refusal to make that finding of fact. Secondly, the Bill of Quantities discloses that the sum of the Group 2 sub-total of K611,500.00 correctly reflects K500.00 as the mobilization fee agreed under the Contract which the appellant acknowledged by its letter dated 2 May 2010, before its Tender was accepted by the CSTB by letter dated 22 July 2010.

24. As regards the assurance by the respondents alleged in para.12 of the statement of claim that it will reimburse the amount which the appellant incurs for mobilization by paying the unpaid balance of the mobilization fee due under the Contract, first, this is premised on the mobilization fee payable under the Contract being K500,000.00 which the trial judge had found is not the case. Otherwise, the pleading in that regard is vague and does not disclose a cause of action if the claim as alleged was one of either deceit or misrepresentation.

25. With respect to the evidence on it deposed to by Ms Choi, this assertion was not suggested at all in her first affidavit sworn 15 and filed 16 July 2013 nor has it been referred to in the appellant’s letter to the first respondent dated 21 September 2010 the contents of which suggests otherwise.

26. In the result, this ground has not been made out.

The unlawful deductions from the first 5 IPC and the failure to pay the sixth IPC

27. The appellant claimed K3,185,635.67, which represents the sum of the sixth IPC amount and portions of the other 5 IPC which the appellant alleged were unlawfully unpaid or deducted. The trial judge reproduced the appellant’s break-up of it in para.36 of his Written Reasons.

28. The trial judge refused to award any damages on any part of this claim.

29. By its second ground of appeal, the appellant submits that the trial judge erred in law and fact by his refusal as, in breach of the role of a trial court in the assessment of damages as laid down in Mel v. Pakalia (supra), His Honour re-visited the issue of liability when he found that the appellant had failed to comply with the requirements of the PFM Act and the Contract.

30. The trial judge refused to award any damages as he found (paraphrased) that:

(1) the appellant did not plead and engage the dispute resolution mechanisms provided for in the clauses 24 and 25 of the Contract’s general conditions of contract;
(2) each IPC was not issued for a specific month in breach of clause 42.1 of the Contract’s general conditions of contract;
(3) IPC 4 included a claim for an advance, that is, a financial assistance for works yet to be undertaken;
(4) the statement of claim does not allege and the evidence did not establish in respect of the unpaid amount of each IPC;

• (a) that the Superintendent had, pursuant to clause 42 of the Contract’s general conditions of contract, certified that amount for payment;
• (b) any fact, matter or circumstance which might suggest that the deduction or non-payment was unlawful as against the works done;
• (c) that the works to which that component relates were performed and completed;

(5) the appellant did not have any issue with the Superintendent’s assessment and certification under clause 42 of the Contract’s general conditions of contract;
(6) the parties did not preserve any right to institute the proceeding below to raise such claim outside of the dispute resolution mechanisms under the Contract;
(7) a trial court was not in a better position to consider the issues raised by the appellant’s claims, the subject of the assessment and this appeal.
(8) as of 9 August 2011:-

• (a) only 21 percent of the actual works under the Contract had been completed as reported in the appellant’s Project Manager’s report (annexure DW5 to Mr Wereh’s affidavit);
• (b) the 21 percent represents K1,727,683.21 of the Price;
• (c) K2,236,308.76 had already been paid by the State to the appellant;
• (d) the appellant had, in the result, been overpaid by K598,625.55 against the Price component of the works completed;

(9) In respect of IPC 5 and IPC 6:

• (a) these were rendered after the term of the Contract had lapsed on 30 June 2011;
• (b) any work done for which a claim for payment was made as part of IPC 5 or IPC 6 was without the approval by way of an extension of the term of the Contract on behalf of the State.

(10) In respect of each IPC:

• (a) the appellant was not entitled to claim and be paid for the works done by it after the term of the Contract had lapsed;
• (b) as the appellant has been paid for the works completed, which represents 21 percent of the works to be undertaken under the Contract, it was not entitled to receive any further payment.

31. It is correct that the trial judge referred to the requirements of the PFM Act but these were in the context of the requirements for variation of the Contract term, and found, the appellant was not entitled to be paid for IPC 5 and for any works which the appellant undertook after the completion date.

32. This only affected IPC 5 and IPC 6, the former of which was issued after the end of the Period of Completion, which was 6 September 2011.

33. Notwithstanding the issues identified in para 30(1), (2), (6) and (7) above, His Honour assessed the appellant’s damages and refused to award any amount for the reasons outlined in paras 30(3), (4), (5), (8), (9) and (10).

34. The reasons in paras 30(9) and 10(a) were influenced by trial judge’s consideration and application of the PFM Act, as is evident from paras 78 to 84 of Written Reasons.

35. As to the reasons in paras 30(3), (4), (5) and (8), these were based on the Contract – not the PFM Act – and therefore, contrary to the appellant’s submission did not offend the principles in Mel v. Pakalia as to the role of a trial judge in assessing damages.

36. The appellant also submits that the legality of the deduction of a portion of the amount claimed in each of the first 5 IPC and the grounds or basis of it was settled by the default judgment and therefore on the authority of Mel v. Pakalia, it was not open to examination by the trial judge. I reject this submission as it was not a ground pleaded in the notice of appeal.

37. The statement of claim, particularly para 22, to which reference was made in the appellant’s submission, does not plead such matters and therefore although it is pleaded in para 22(v) that each IPC was excessively inflated or reduced, as the appellant did not plead any fact, matter or circumstance of the type alluded to as might support that allegation, the trial judge made those observations in para 22(4)(b)(c) of Written Reasons.

38. As to the other particulars in para 22(i) to (iv) of the statement of claim, even if it is accepted that an agent of the Superintendent and the State had jointly prepared each IPC, that is not the same as the act of the certification of the Superintendent. Furthermore, it is the determinations from such exercise and assessment by the Superintendent that the appellant ought to have pleaded together with the Superintendent’s review and adjustments and thereafter to then adduce evidence in line with those pleaded matters to establish the illegality or unlawfulness.

39. For these reasons also, the appellant could not point to the alleged excesses of the Superintendent’s exercise of authority under clause 42 of the Contract’s general conditions of contract as pleaded in the statement of claim.

40. As to the amounts allegedly deducted from each IPC:

(1) the amount allegedly deducted and claimed as unpaid is not a debt;
(2) it is the difference between the amount rejected on certification less -

• (a) the 5 percent retention fund deduction;
• (b) the 10 percent performance bond deduction; and
• (c) any repayment of a portion of any advance made by the State to the appellant as is reflected, for instance in the GEF for IPC 2, IPC 4 and IPC 5.

41. Taking IPC 2 to demonstrate this point, as 5 percent (retention fund) is K27,207.73, 100 percent is K544,154.60. Thus, the amount approved for payment for each of the first 5 IPC is in fact higher than those alleged in the UNPAID AMOUNT CLAIMED column under para 23 of the statement of claim so that, for instance, the K288,650.25 alleged to be due and owing in respect of IPC 2 of must be further reduced by K228,000.78 which is the sum representing the component of the retention fund, performance bond and advance repayment.

42. Therefore, again in respect of IPC 2, the unpaid portion not approved should be K60,649.47.

43. In the result, the amount pleaded as the unpaid component of each IPC is not accurate and should be lower by at least 17 percent of the amount in fact certified as due and payable.

44. In addition to these deficiencies in the pleading and evidence, the appellant has not challenged in any of the grounds of appeal, the trial judge’s acceptance of the appellant’s project manager’s assessment of the percentage of the works completed to determine the appellant’s damages under this head of claim.

45. Furthermore, at the end of the 10-month contract period, as the works contracted for had not been completed, the appellant was liable in damages pursuant to clause 49.1 of the Contract’s general conditions of contract which accrued as liquidated damages on a daily basis until the works is completed.

46. Ultimately therefore, on the pleadings and the evidence, the appellant did not demonstrate before the trial judge and has not attempted to do so in this appeal that by the terms of the Contract, the amount of his damages was as it has alleged.

47. While I accept that reasons in paras 30(9) and 10(a) were influenced by trial judge’s application of the PFM Act, the other reasons given did not offend the principles in Mel v. Pakalia.

48. In the result, this ground has not been made out.

Loss of business, income and profits

49. The appellant also claimed damages for loss of business, income and profits, which the trial judge refused for the reasons in paras. 109 to 122 of Written Reasons. I am not persuaded, by the submissions in ground 3.4 by which it is contended that His Honour erred, for the following reasons:

(1) the finding in para. 109 of Written Reasons that the appellant had failed to plead particulars of such loss was not a re-visit of liability as might offend the principles of assessment in Mel v. Pakalia as submitted in ground 3.4(a). This head of claim is pleaded in para 26 (b) of the statement of claim without any accompanying facts. As pleadings drive the evidence (see for e.g., Telikom (PNG) Ltd v. Wamara (2019) SC1762), facts which might found the basis for the reception of the evidence have not been alleged;
(2) I reject the submission in ground 3.4(b) that the trial judge erred in finding in paras. 110 to 111 of Written Reasons that the appellant had failed to adduce evidence of such loss. Even if the appellant had, on the evidence - including that of its accountant - prior to entering into the Contract, been generating an annual income of approximately K1.2 million (K10 million for the 9 years) as quantified in its submissions before the trial judge:

• (a) this only suggests that it was a going concern;
• (b) it does not, as the trial judge had properly observed, disclose the nature and extent of the alleged loss nor does it show how any breach by the State of its contract obligations has resulted in such loss or demonstrate why the State should be liable for such loss for a period which extends beyond 10-month contract period and above the Price which is inclusive of the appellant’s profit;
• (c) the loss must relate to the Contract since its execution in respect of which the appellant’s profit from its performance of its Contract obligations is built into the Price (clause 2.3 of the Bill of Quantities Section 1 Preamble, which the trial judge considered in paras 109 and 111 of Written Reasons;
• (d) it does not account for breaches on the appellant’s part in the timely discharge of its contract obligations including the financial capacity to promptly mobilize notwithstanding that it had disputed that K500 was the agreed mobilization fee including the prompt engagement of the provisions of the Contract by submitting its IPC and to resolve any issues arising therefrom through the Contract’s dispute resolution mechanism;
• (e) it does not show if the appellant had called upon its line of credit to enable it to continue and promptly perform its contract obligations; the evidence disclosed that almost as soon it was obliged to commence its performance of the Contract, the appellant sought financial assistance by way of an advance from the State;
• (f) on the assessment of the appellant’s own project manager, it had only completed 21 percent of the works valued at approximately K1.7 million against it having been paid approximately K2.3 million (see Written Reasons para 113(10));
• (g) there was no evidence which suggests, as the trial judge had correctly observed in para 113(12) of Written Reasons, that the appellant had attempted to mitigate its loss. The appellant could have accepted the breach alleged on the part of the State to end the parties commitments under the Contract and sued the State at the earliest opportunity;
• (h) had the appellant promptly discharged its contract obligations the credibility of its allegation of the third-party interference with its contract rights might have been clearly founded;

50. Therefore, the matters which the trial judge considered were not irrelevant as the appellant had submitted in ground 3.4(c).

Interest on late payments of each IPC

51. As to the appellant’s claim for interest on the late payments of its IPC for which it contends, in ground 3.5, that the trial judge erred when he disallowed or did not award any amount in damages, it is not necessary to consider the submissions advanced for that contention as it is evident from para 50 of its written submissions before the trial judge that the appellant had abandoned this head of claim.

Breach of Contract

52. As to the appellant’s claim for breach of contract for which it submits, in ground 3.6, that the trial judge had erred in dismissing it, I am not persuaded by the reasons given in the ground and in paras 17 and 18 of its extract of submissions. By reference to the instances of breaches alleged in the statement of claim, the basis of its alleged loss which it quantified at K2.9 million in paras 82 to 89 of its written submissions before the trial judge, which the trial judge considered in paras 137 to 142 of Written Reasons any loss arising from the alleged breach have already been considered under the earlier grounds of appeal.

General Damages

53. As to the appellant’s claim for general damages for which the appellant submits, in ground 3.7, that the trial judge erred in not awarding any amount in damages under this head of claim, the appellant did not plead particulars of the factual or legal foundation for such loss.

54. Having regard to paras 90 and 91 of the appellant’s submissions before the trial judge and the trial judge’s reasons in paras 143 to 149 of Written Reasons it is evident that the appellant had advanced this head of claim based on Radao Holdings Ltd v. Sogeram Development Corporation Ltd (2007) N5484 and Binnen Construction Ltd v. Malai (2014) N5775, which the trial judge considered and distinguished. In the ground of appeal and its submissions, the appellant does not demonstrate how the trial judge might have erred in distinguishing those case authorities from the appellant’s claim in this instance. I am not persuaded by the reasons advanced by the appellant as pleaded in that ground and in paras 19 and 20 of its extract of submission in this appeal. Leaving aside any loss covered under any of the heads of claim pleaded and the subject of this appeal, it evident from the statement of claim, that the factual or legal basis for a separate award of damages under this head of claim have not been pleaded. General damages is a phrase that can be understood in more than one context, in tort and also in contract and includes financial compensation for non-monetary losses: See McGregor on Damages, 19^th Edn, paras. 3-001 to 3-005 at pp[21]-[24]. Against this and without sufficient particulars, the claim as pleaded is vague.

55. As to the trial judge’s award of one-eighth of the costs, the appellant, in ground 3.8 and para 21 of its extract of submissions, submits that as the trial judge has erred in his determination of the various heads of damages - the subject of the earlier grounds of appeal already considered - His Honour fell into error in his award of costs. As the appellant has failed to demonstrate that the trial judge has erred in his refusal to award any damages under those heads of claim, this ground must fail.

56. In the nineth ground (erroneously also numbered 3.7), the appellant submits that, contrary to Mel v. Pakalia, the trial judge erred in his assessment of the appellant’s damages under the various heads of claim and the PFM Act. These grounds were advanced and have been considered in the determination of the earlier grounds of appeal.

57. For these reasons given, as the appellant has not made out any of the grounds of appeal, I would dismiss the appeal.

Final Orders of the Court

a) This appeal is dismissed.

2. The appellant shall pay the costs of the respondents of and incidental to this appeal to be taxed if not otherwise agreed.

__________________________________________________________________
Lhyrn Lawyers: Lawyers for the Appellant
Guardian Legal Services: Lawyers for the Respondents