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Adeb v Wangom [2015] PGNC 178; N6077 (26 September 2015)

N6077

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 371 OF 2014

EHEDE ADEB
Plaintiff

V

KEVIN WANGOM
Defendant

Madang: Cannings J
2014: 8 December,
2015: 20 March, 26 September

DEBT AND DAMAGES – assessment of debt and damages following entry of default judgment – claim by landlord for unpaid rent – additional claim for general damages.

The plaintiff, a landlord, established liability in breach of contract against the defendant, his tenant, due to the defendant's failure to pay rent for the lease of a workshop that the defendant used for his motor vehicle repair business. At this separate trial on assessment of debt and damages, the plaintiff claimed K47, 000.00 debt plus K15, 000.00 general damages.

Held:

(1) There was evidence that the rental agreement provided for payment of rent of K2,000.00 per month and that apart from an initial payment of K3,000.00 the defendant had not paid any rent for a continuous period of 21 months. K39, 000.00 was awarded as a debt payable to the plaintiff.

(2) Taking into account the stress and inconvenience caused to the plaintiff, K5, 000.00 was awarded as general damages.

(3) Interest was awarded on the total amount of debt and damages (K44,000.00) at the rate of 8% per annum calculated from the date of entry of default judgment to the date of judgment, a period of 1.02 years = K3,590.40.

(4) The total judgment sum was K39, 000.00 (debt) + general damages (K5, 000.00) + interest (K3, 590.40) = K47, 590.40. In addition costs were awarded to the plaintiff.

Cases cited

The following cases are cited in the judgment:

George Podas v Divine Word University (2011) N4395
Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485
Timothy Con v Jant Ltd (2014) N5503
William Mel v Coleman Pakalia (2005) SC790

ASSESSMENT OF DEBT AND DAMAGES

This was a trial on assessment of debt and damages for breach of contract after entry of default judgment.

Counsel

W Akuani, for the Plaintiff

26th September, 2015

1. CANNINGS J: This is an assessment of debt and damages for breach of contract, following entry of default judgment.

2. The plaintiff, Ehede Adeb, says he owns a piece of customary land at Four Mile near Madang town and that he agreed to lease it to the defendant, Kevin Wangom, so that the defendant could use it as a workshop for his motor vehicle repair business. The rent was K2, 000.00 per month, the rental agreement commenced on 1 January 2013, the defendant made an initial payment of K3, 000.00 but after that he paid nothing. The plaintiff commenced these proceedings on 4 June 2014. The defendant failed to file a notice of intention to defend or a defence. On 15 September 2014 the Court ordered default judgment and the order was entered on 19 September 2014.

3. The effect of the default judgment is that the facts and cause of action pleaded in the statement of claim are presumed to have been proven, and are only revisited if they do not make sense or would make an assessment of damages a futile exercise (William Mel v Coleman Pakalia (2005) SC790). Here, the facts pleaded were clear, as was the cause of action relied on, so the issue of liability has not been reconsidered.

1 UNPAID RENT

4. There is ample evidence that apart from the initial payment of K3, 000.00 the defendant has not paid any rent up until 22 October 2014, the date of the plaintiff's primary affidavit. Mr Akuani, for the plaintiff, argued, when the submissions were made in March 2015, that the Court could safely presume that no rent had been paid between October 2014 and March 2015, and therefore the assessment of debt should carry on until March 2015. However, I disagree with that approach. There is evidence of unpaid rent only up to October 2014. In fact, only to the end of September 2014 to be precise, so I will assess the unpaid rent for a period of 21 months from 1 January 2013 to 30 September 2014 at K2, 000.00 per month, less the initial payment of K3, 000.00. Thus 21 x K2, 000.00 = K42, 000.00 – K3, 000.00 = K39, 000.00.

2 GENERAL DAMAGES

5. The plaintiff claims K15, 000.00 on account of pain, suffering and inconvenience caused by the conduct of the defendant. I agree that, in principle, this is a proper claim, for the reasons I set out in cases such as Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485, George Podas v Divine Word University (2011) N4395 and Timothy Con v Jant Ltd (2014) N5503. I award K5, 000.00.

INTEREST

6. Interest will be awarded at the rate of 8% per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest will be calculated in respect of the period from the date of entry of default judgement (19 September 2014) to the date of this judgment, a period of 1.02 years, by applying the formula D x I x N = A, where: D is the amount of debt and damages assessed, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest. Thus: K44, 000.00 x 0.08 x 1.02 = K3, 590.40.

COSTS

7. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The plaintiff's claim has not been fully upheld but the claim was not an exaggerated or unreasonable one, so the plaintiff will be awarded costs.

ORDER

(1) The defendant shall pay to the plaintiff debt of K39, 000.00 plus damages of K5, 000.00 plus interest of K3, 590.40, being a total judgment sum of K47, 590.40.

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

Judgment accordingly,

William Akuani Lawyers: Lawyers for the Plaintiff