DC401

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 23 OF 2000

BETWEEN

Anton Pinzi Kupuna
Complainant

V

Simon Morupa
Defendant

Mt.Hagen: Appa, P.M.
2001: 9th, 29th November

JUDGMENT

The complainant is a community school teacher and so is the defendant. The complainant claims that in February, 2000 they verbally entered into a contract of sale agreement in which the complainant agreed to buy the defendant’s vehicle, a Nissan Patrol Reg. No. IAA-874 at a price of K10,000.00. In execution of the contract and by agreement, complainant had made a deposit of K4000.00 and took delivery of the said vehicle. The balance of the payment of K6000.00 was to be paid on instalment basis of K600.00 per month and which was to be paid up by end of August 2000.

It appeared in evidence which was not in dispute that the balance of payment to be paid on instalment of K600.00 per month was later changed to K300.00 per month. This was reduced into signing of a Statutory Declaration. Following the amended condition the complainant had paid K300.00 on 31st March 2000 and another K300.00 on 30th April 2000. The May payment was made on 31st May 2000 with a sum of K580.00. For the month of June, complainant said he was ready with K600.00 but the defendant did not turn up at the school both were teaching at the time. It was in evidence that on 04/07/2000 defendant sent a warning note to the complainant to pay up the June due no later than 05/07/2000.

According to the complainant’s evidence, he complied with the demand and arranged to meet the defendant on 05/07/2000 at Togoba High School. By this time the vehicle was with a mechanic for service. The defendant instead came with his tribesmen, threatened the mechanic and took away the vehicle. Complainant went to defendant’s house with four of his people to hand over K600.00 for the month of June and get the vehicle but defendant refused to hand over the vehicle. Complainant said defendant demanded for full payment of the balance at K4,920.00. The transaction apparently ended there.

It was not in dispute that complainant had used the vehicle to buy and transport coffee to coffee depot on almost daily basis and earned K100.00 per day in commission and since the vehicle was repossessed by the defendant, he had made a huge loss of over K12,000.00. Complainant had produced documents to proof that he used the vehicle for coffee business. This was also confirmed by the defendant in his evidence.

When the vehicle was repossessed by the defendant, complainant had already paid K5,180.00 for the vehicle and had yet to pay K4,920.00.

Defence case appeared to be that since complainant had used the vehicle for some five months doing coffee business, he had made enough money to cover his purchase price so unless complainant had made full payment, he decided to take the vehicle back.

According to the rules of contract, the defendant was clearly in the wrong in repossessing the vehicle. It should be pointed out here that how the complainant was to use the said vehicle was not part of the condition for the sale. He was free to use it the way he wished. The essential condition was that complainant, the buyer paid the full price. Whether the complainant had made money or not from the use of the vehicle was immaterial, so to speak because there was no condition attached to it.

In my view, there is sufficient evidence to suggest that complainant had done everything possible to perform his part of the contract but the defendant took a negative attitude and discharged the contract prematurely by repossessing the vehicle when the complainant was ever willing to discharge through performance. According to the terms of the agreement, the dead line to complete the instalment payment was by end of August, 2000 but the defendant had frustrated the contract. There was no doubt that the defendant was clearly in breach of the contract. I therefore find that liability is established beyond any doubt.

On the issue of quantum, complainant had made a number of claims like;-

(a) Re-imbursement of K5,180.00
(b) Exemplary damages
(c) General damages for breach of contract
(d) Loss of business
(e) Frustration
(f) Interest
(g) Cost

The complainant had foregone the excess claim asked for only K10,000.00 to cover all other legs of the claims.

There was no doubt that complainant was entitled to the damages for breach of contract. The most obvious one is the re-imbursement of K5,180.00. I would also agree with the claim for exemplary damage because as I have already indicated the conduct of the defendant in repossessing the vehicle and refusing to compromise was unreasonable under the circumstance. I would also agree with the claim for business loss for the same reasons. However, it is often difficult in such situation to be exact in devaluation of damage’s in all aspects of the claim. Except in liquidated claims, its all guess work. The essence of compensation or damage’s for breach of contract is to put the adversely affected person to where he was or where he should have been before the breach of contract. Court must also be mindful of the deterrent effect in such situation.

Judgment is entered for the complainant in the following manner;-

(a) Re-imbursement	K5,180.00	
(b) Exemplary damage	K 200.00	
(c) Global award on loss of business	K1,000.00	
Total award = 	K6,380.00	

I allow 8% interest on the total awards to run from date of summons to judgment date and cost of the proceeding (yet to be assessed and taxed). The judgement debt be settled within three months time from the date the order was served on the defendant.