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Andama v Piwah [2013] PGNC 200; N5445 (13 December 2013)

N5445

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 132 OF 2005

JOHN YULA ANDAMA
Plaintiff

V

JOE PIWAH
First Defendant

PNG HARBOURS BOARD
Second Defendant

Madang: Cannings J
2013: 25 October, 22 November 13 December

CONTRACT – lease agreement for residential property – alleged breach of contract constituted by damage to the property caused by negligence of the occupier.

The plaintiff entered into an agreement with the second defendant to lease his residential property to the second defendant so that it may be occupied by the second defendant's employee, the first defendant. One of the conditions of the agreement was that the second defendant would be "responsible for damages done due to negligence, wilful acts, abuse and misuse". The plaintiff alleged, after the first defendant vacated the property, that there was considerable damage to it and its contents, which could only have been caused by the negligence of the first defendant. The plaintiff requested that the second defendant pay for the damage but it refused. The parties could not agree on whether the second defendant was liable, so the plaintiff commenced court proceedings and a trial was conducted on the question of liability.

Held:

(1) The plaintiff's case failed as he failed to prove on the balance of probabilities that the first defendant damaged the property.

(2) No breach of contract was established and the proceedings were dismissed, with costs payable by the plaintiff.

Cases cited

No cases are cited in the judgment:

STATEMENT OF CLAIM

This was a trial on the question of liability for breach of contract.

Counsel

G Pipike, for the plaintiff
H Viyogo, for the defendants

13th December, 2013

1. CANNINGS J: The plaintiff, John Yula Andama, entered into an agreement with the second defendant, then called the PNG Harbours Board, now known as PNG Ports Corporation Ltd, to lease to it a residential property that he owned, Section 65, Allotment 53, Talio Street, Newtown, Madang, on the understanding that it would be occupied by the Board's employee, the first defendant, Joe Piwah. The agreed rental was K1,300.00 per month.

2. One of the conditions of the agreement was that the second defendant would be "responsible for damages done due to negligence, wilful acts, abuse and misuse". The first defendant occupied the property for two years. The rent was paid on time but the plaintiff alleged, after the first defendant vacated the property, that there was considerable damage to it and its contents, which could only have been caused by the negligence of the first defendant. The plaintiff requested that the second defendant pay for the damage but it refused. The parties could not agree on whether the second defendant was liable, so the plaintiff commenced court proceedings and a trial was conducted on the question of liability. The primary issues are whether the first defendant caused any damage to the property and, if he did, whether the damage was caused by negligence.

COMPETING EVIDENCE

3. The plaintiff alleges that the first defendant vacated the property on 10 October 2002 and that the next day he inspected it and took photographs of the damage that had been done. He states that as a result of the damage done to his property, no one wanted to rent it from October 2002 to August 2003 and as a result, he lost income of K13,000.00.

4. The first defendant states that during the period from October 2002 to August 2003, some of the plaintiff's relatives, who had been evicted from the Finch Road Settlement, came to sleep under the house. He states that before he vacated the premises, he and the plaintiff inspected the property and the plaintiff thanked him for looking after it and keeping it in good repair. He says that he asked the plaintiff a number of times to come and fix or replace the furniture, as it was cheap and of poor quality, but the plaintiff never attempted to repair or replace it. The first defendant denies being responsible for the damages claimed by the plaintiff, including broken fly-wire on the windows near the veranda, two missing louver blades from the living room window, damaged ceiling, no fluorescent tubes for light fittings, floor-tiles in laundry room removed, damaged lock to the laundry room, shower room door damaged and side plywood destroyed. As for claims by the plaintiff for a broken wooden single lounge suite, damaged wooden lounge suite and damaged single bed, the first defendant states that that damage was due to normal wear and tear. As for the claim of damage to the washing machine the first defendant states that there was a blockage with the drainage system and when the plaintiff's wantok came to fix it, he dismantled the machine, went away and never came back.

WHICH VERSION OF EVENTS SHOULD BE ACCEPTED?

5. I uphold the submission of Mr Viyogo for the defendants that the critical fact is that the plaintiff did not make known his complaints to the defendants, particularly the second defendant, which had been the lessee of the property, until ten months after the first defendant vacated the property. Mr Pipike for the plaintiff submits that, although it might appear that the plaintiff had been sleeping on his rights, he had in fact been making informal approaches to the defendants and making his grievances well known to them. I do not accept that explanation. There is insufficient evidence that the plaintiff was genuinely agitating his grievance in that ten month period and there is no independent evidence to verify his claim that the property was damaged in any way by the first defendant. He has annexed a bundle of photographs to his affidavit in an attempt to show that the house and contents were seriously damaged but there is no independent evidence to verify that those photographs were taken immediately after the first defendant vacated the property. I agree with Mr Viyogo who submitted that anything could have happened during the ten months between October 2002 and August 2003.

CONCLUSION

6. The plaintiff's case fails at the first hurdle: he has not proven on the balance of probabilities that the first defendant damaged the property. The case fails to get to the second hurdle: whether the damage was due to the negligence of the first defendant. There was no breach of contract by the defendants. Liability has not been established and the proceedings must be entirely dismissed. Costs will follow the event.

ORDER

(1) The plaintiff has failed to establish liability and the proceedings are entirely dismissed.

(2) The plaintiff will pay the costs of the proceedings to the defendants, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
_______________________________________
Paul Paraka Lawyers: Lawyers for the Plaintiff
H Viyogo: Lawyer for the Defendants