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Inke v Ha'a [2007] PGDC 145; DC809 (27 April 2007)

DC809

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 160 of 2006

BETWEEN

WASAN INKE
Complainant

AND

MR HA’A
First Defendant

HAPA LIMITED
Second Defendant

Kainantu: I Kurei

2007: April 13, 27

Cases Cited

Nil

References

Nil

Counsel

For the Complainant – In person
For the Defendants – Mr. Mike Karu, Private Lawyer at Kainantu

13 April 2007

EX-TEMPORE JUDGMENT

Facts

Complainant is from the hauslain.

First Defendant is a businessman of Asian origin based in Kainantu.
Second Defendant is a Registered Trading entity. At this point in time erecting/constructing a huge shopping complex within Kainantu Township.

During the construction stage, Complainant approached First Defendant Mr Ha’a to negotiate to supply untreated sawn timber i.e., hard wood in highlands standard.

Understanding was for 249 pieces as Complainant claim agreed price was at K 16.60. First Defendant denies the agreed price and claim agreed price is K 10.00.

Complainant did supply twenty five (25) pieces initially and payment of K 1, 500.00 - (st of cl para 8).

Next lot of fifty (50) were delivered (st of cl par 9)

1. For twenty eight (28) pieces K 1, 600.00 paid.
   
2. For twenty two (22) pieces K 790.00 paid.
   

Contract ended due to quarrel and nearly a fist fight.

Complainant is left with nine (9) logs.

Issues

Whether or not there is an enforceable contract in place in the given circumstance.

By the actions of the parties was the contract breached.

What damages should be considered and awarded.

Law

Contract Law – Common Law.

1. Offer and acceptance
   
2. Intention to create legal relationship
   
3. Consideration
   

Cases Cited

No case laws cited by parties.

Evidence

Complainant called three (3) witnesses plus himself gave evidence.

First Defendant gave evidence and called four (4) witnesses.

Complainant plus his witness give evidence on several occasions, First Defendant was visited and negotiated on supplying the timbers. The two (2) witnesses who gave evidence supporting the complainant. The two (2) witnesses gave evidence on how the First defendant was approached and talk started. The third witness was the person whose machinery was hired to split the logs.

The First Defendant and his witness gave evidence on the fact that Complainant had seen the First Defendant and later the timbers were supplied.

Considering of Evidence and Law

The evidence clearly shows there was verbal communication between Complainant and first defendant.

As it is it seems there was offer and acceptance. In that offer of sale of timber was accepted and such trees were cut down, splited by machines transported to the building site of Second Defendant, when First Defendant together with his workers sorted out the timbers and made payment.

The consideration, in this simple or informal contract is cash payments for the timbers sold at the construction site.

It is clear Complainant did supply untreated timbers to the complainant, initially twenty five (25) pieces and later fifty (50) pieces.

The actions of both parties clearly show they had intended to create a legal relationship. As it can be seen both Complainant and First Defendant are adults and both are of sound mind.

What I have noted is language barrier or problem as First Defendant is of Asian origin, does speak some English/Pidgin but I would not say fluent in both.

Nevertheless elements of contract, an enforceable contract is in place.

Here we see offer to sell timber, acceptance of the sale of timbers and consideration as cash payable.

What is being disputed now in Court is the prices.

Complainant claim of agreed on price was K 16.60. How Complainant fixed his price is based on the cost of his operations including hiring of machinery, cutting of trees, splitting of logs, i.e., labour, transporting of untreated timber to construction site.

The price negotiated as Complainant says is K 16.60 per lineal meter for timber size of 6x2x6.

The Complainant claims, after first sale, part payment was made. After during second sale payment was made but still there is outstanding.

The First Defendant claims, timbers were not of the quality required, i.e., crooked, etc, also it is accepted that it is untreated. There was negotiation in the prices and accepted price was K 10.00 for per lineal meter of timber size of 6x2x6.

Since the parties are now disputing the prices, it is evident both Complainant and First Defendant their sound minds may not have agreed on a set price.

Complainant stands on K 16.60 per lineal meter.

First Defendant in his evidence is that K 16.60 per lineal meter for untreated and some crooked timbers are too much. What I observed when examined in Court. First Defendant holds the view he wanted to assist local people. In that they provide timber for him to purchase on terms and conditions negotiable and suitable to him. Not necessarily on any fixed pricing.

First Defendant goes on to provide quotation for timbers provided by other timber suppliers or hardware in Lae and SIL. No doubt they are treated and cheaper both soft wood and hard wood.

Now what is the best solution to this problem?

There are elements of enforceable contract in place except for consideration as there is dispute as to the pricing. I ask, would that made this contract void or it would not be enforced by this Court. My view is that would be unfair on the Complainant. At the same time Complainant should shoulder some responsibility as he should demand some understanding or agreement be in writing, as there is no doubt due to language or communication barriers.

Finding

1. The simple or informal contract is enforceable.
   
2. The reasonable pricing this Court would allow is at K 10.00 per lineal meter.
   
3. The simple contract was for Complainant to supply timber and First Defendant to purchase on negotiable price rather then fix price.
   
4. There is no contract between Complainant and First Defendant on cutting down the trees. How the Complainant obtains timbers was never agreed on as such First Defendant is not responsible for the unsplited logs.
   
5. First Defendant is responsible for the seventy five (75) pieces of untreated timbers supplied of which First Defendant has paid total of K 3, 890.00.
   
6. First Defendant to pay for seventy five (75) pieces of timber at the rate of K 10.00 per lineal meter. Whatever the total cost be minuses from the amount of K 3, 890.00 which was paid.
   
7. Defendant has to pay the difference if there is any to the complainant.
   

Assessment

1. Seventy Five (75) pieces of timber –size 6x2

Length – 6m x 450 total meter, cost per meter

K 10.00 equals K 4, 500.00 in total.

2. Amount of K 3, 890.00 has been paid, minus it from K 4, 500.00. The difference or remainder is K 610.00.
   
3. Defendant to pay K 610.00.
   
4. Costs considered, initial order orally in the cause, however I have reconsider my judicial dscretion and will order cost for the Complainant.
   

For the Complainant – In person
For the Defendants – Mr. Mike Karu, Private Lawyer at Kainantu