N9068

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

 WS 296 OF 2013 

		BETWEEN:
ISLANDS HELICOPTER SERVICES 
LIMITED t/a ISLANDS NATIONAIR
Plaintiff

AND:
MANOLOS AVIATION LIMITED
Defendant

    Waigani: Hartshorn J, 
         2020: 14th August

DAMAGES - Assessment of damages

Cases Cited:
Yange Langan v. Independent State of Papua New Guinea, (1999) N1369 
Kenneth Bromley v. Finance Pacific Ltd (2001) N2097
Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority (2002) N2182 
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694 
Frank Onga v. The General Manager Engineering Management Pty Ltd (2003) N2321
William Mel v. Coleman Pakalia & Ors (2005) SC790  

Counsel:

Mr. I.R. Shepherd, for the Plaintiff
Mr. J. Biar, for the Defendant
14th August, 2020

1. HARTSHORN J: This is a decision on an assessment of damages following the dismissal of the defendant’s defence and the entry of summary judgment for the plaintiff with damages to be assessed on 11th December 2018.

Background

2. The parties entered into a written lease agreement in November 2010 for the plaintiff to lease its Bell 407 helicopter to the defendant. The plaintiff issued invoices for helicopter hire under the lease, in September 2012. The defendant did not pay the invoices and this proceeding was commenced in April 2013.

Assessment of damages – law

3. In Coecon Ltd (Receiver/Manager Appointed) v. National Fisheries Authority (2002) N2182, Kandakasi J (as he then was) stated:

“A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant’s defence, clearly show the following:
1.	The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.
2.	Any matter that has not been pleaded that is introduced at the trial is a matter on which the defendant can take an issue on liability.
3.	In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.
4. 	The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.
5. 	A plaintiff in such a case is only entitled to lead evidence and 				recover such damages as may be pleaded and asked for in his 				statement of claim.”
4. The Supreme Court adopted and applied those principles in Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694 and William Mel v. Coleman Pakalia & Ors (2005) SC790.  
5. The onus is upon a plaintiff to prove its loss. The following passage from McGregor on Damages is cited by Injia J. (as he then was) in Yange Langan v. Independent State of Papua New Guinea, (1999) N1369:
“The plaintiff has the burden of proving both the facts and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a factor is upon him, who alleges it and not upon him who denies it so that where a given allegation forms an essential part of a person's case, the proof of such allegation falls on him. Even if the defendant failed to deny the allegations of damage or suffers default, the plaintiff must still prove his loss”.

6. Reference is also made to the following passage from the judgment of Kandakasi J. in Frank Onga v. The General Manager Engineering Management Pty Ltd (2003) N2321:
“As noted in Coecon Limited (Receiver/Manager Appointed) vs. The National Fisheries Authority of Papua New Guinea and The Independent State of Papua New Guinea (supra), a plaintiff can discharge his burden of prove (sic) by calling credible evidence. If he is able to do that in relation to what he alleges then, there is no reason why there should (not) be a finding in his favour unless, the defendant is able to rebut it by other credible evidence. Apparent in this is the fact that, once a plaintiff establishes his case on the balance of probabilities, the burden then shifts to the defendant to rebut it. If the plaintiff (sic) (defendant) fails to discharge that burden, it is open to the Court to act on the evidence of the plaintiff.”
Evidence
7. The plaintiff relied upon five affidavits which were admitted into evidence. Counsel for the defendant objected to two of the affidavits on the basis that the deponents’ gave evidence concerning invoice no. 30 which refers to it being dated from 6th February 2011, when invoice no. 30 is referred to in the statement of claim as being from “(6/2/12)”. The objections were resisted by counsel for the plaintiff on the basis that no notice was given pursuant to s. 35(2) Evidence Act. That section however, provides for notice to be given of objection to the use of an affidavit and not with whether the evidence contained within an affidavit is admissible. In my view, the submissions made by counsel for the defendant, that the particular evidence was irrelevant or imprecise, have no merit. This is because the evidence also refers to the invoice number no. 30 as does the statement of claim. There is no doubt as to what is being referred to. The only aspect that is different is “11” in the invoice as opposed to “12” in the statement of claim. This is clearly a typographical error. Further, I note that no objection was raised by the defendant to the tendering of the earlier affidavit of Mr. Mark Chan which was marked exhibit “A”. This affidavit also makes reference to invoice no. 30 and has it annexed. Consequently, the objections of the defendant are rejected.
Consideration
8. The plaintiff relies upon amongst others, the affidavit of Mr. Michael Mayberry. Mr. Mayberry gives his professional opinion after receiving the plaintiff’s DFR summaries, bank statements and technical logs for the period 1st February 2011 to 31st October 2012, that the amount of the outstanding invoices which are due to be paid by the defendant to the plaintiff relating to the hire by the plaintiff to the defendant of a Bell 407 helicopter, is K1,385,923.69. 
9. There is no objection to the qualifications of Mr. Mayberry. He is a chartered accountant who has given evidence on cases on assessment of damages including in the case of Kenneth Bromley v. Finance Pacific Ltd (2001) N2097, in which Mr. Mayberry’s evidence was accepted by Kandakasi J. (as he then was).
10. The plaintiff also relies upon the evidence of Mr. Mark Chan in his two affidavits in which he deposes amongst others, in respect of the lease agreement, the hire of the helicopter and the amount owing. Mr. Chan also deposes that he requested the plaintiff’s accountants to prepare a summary of invoices rendered to the defendant pursuant to the lease agreement for 2011 and 2012 and to reconcile these with credits received in order to determine the amount of the claim.
11. As there has not been any evidence filed on behalf of the defendant in regard to the assessment, the evidence of the plaintiff in all of the five affidavits upon which it relies is unchallenged and not rebutted. I am satisfied that the plaintiff has proved on the balance of probabilities that its damages are as assessed by Mr. Mayberry and Mr. Chan.
12. As to interest, the plaintiff seeks interest at a commercial rate. There is no evidence before the court as to what the commercial rate currently is or what it should be. Further, in the statement of claim interest is sought pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act. This Act has now been repealed. Consequently, I will award interest at the rate of 8% per annum which is pursuant to the previous and usual practice.
Orders
13.   The court orders that:
a)	the amount of damages to be paid by the defendant to the plaintiff is K1,385,923.69;
b)	the defendant shall pay interest at the rate of 8% per annum on the said sum of K1,385,923.69 from the date of filing of the writ of summons to the date of payment of the said sum or on any amount remaining until payment of the said sum and interest thereon in full;
c)	the defendant shall pay the plaintiff’s costs of and incidental to this proceeding;
d)	time is abridged.
__________________________________________________________________	
Ashurst: Lawyers for the Plaintiff                                        
Namani & Associates: Lawyers for the Defendant