Max Kaman (trading as Tamanku Hire Cars) v Harisol [2023] PGNC 150; N10280 (21 April 2023)

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BETWEEN
MAX KAMAN trading as Tamanku Hire Cars
Plaintiffs

AND
JOHN HARISOL, in his official capacity as the Chief Executive Officer
for Nipa Kutubu District Development Authority
First Defendant

AND
NIPA KUTUBU DISTRICT DEVELOPMENT AUTHORITY
Second Defendant

Waigani: Ganaii, AJ
2023: 03^rd, 31^st, March 21^st April

CIVIL – Trial on Assessment of damages – Default judgment entered – Role of the Court - Breach of Contract – Failure to pay invoices for hire car – Intent of parties when entering into contract - Conduct of parties – Assessment on heads of damages – Consideration of nominal amounts where there is no evidence

Papua New Guinean Cases
Aigilo v Morauta, Prime Minister (No 2) [2001] PGNC 115; N2103
Andrew Kewa v Johnny Lus and Securimax Ltd (2007) Unnumbered Judgment; WS415 of 2003
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Coecon Ltd v National Fisheries Authority (2002) N2182
El Mangoth Co.Ltd v Jack Sarviman & Ors [2020] N8571
Hodson v State [1985] PGNC 14; [1985] PNGLR 303; N524
Jacinta Albert v Dr. Joseph Aine & Ors, In N7772, WS. NO.850 of 2016 (2019)
James Liwa & Peter Kuriti -v- Markis Vanimo & The State (2008) N3486
John Nuguwas v Peter Kopi, Anton Kaupa and Kuima Security Services [2014] N5504
Jonathan Paraia v The State (1995) N1343
Kewa v Madang Provincial Government [2014] PGNC 109; N5650
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Likui Trading Ltd v Selna [2011] PGNC 208; N4530
MVIT v Tabanto [1995] PNGLR 214
Na-Al v Debege [2000] PGNC 6; N1958
Nivani Ltd v China Jinagsu International (PNG) Ltd (2007) N3147
Peter Wanis v Fred Sikiot and The State (1995) N1350
Rodao Holdings Ltd v Sogeram Development Corporation Ltd [2007] PGNC 239; N5485
Tetley v The Administration (1971) No 647 (Pre-independence case)
Vanimo Forest Products Ltd v Ossima Resources Ltd [2013] PGSC 55; SC1275
Waima v MVIT [1993] PNGLR 370
Walaun v Droaz [2017] PGNC 20; N6641
William Mel v Coleman Pakalia and Others (2005) SC790
Yange Lagan and Others v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

1. GANAII, AJ This is a ruling on assessment of damages. Default judgment on liability had been entered against the Defendants on the 17^th of October 2021 and granted on the 21^st of October 2022.

2. The plaintiff operates a hire car company trading under the registered business name of Tamanku Hire Cars, in Port Moresby NCD.

3. The plaintiff executed an agreement for hire vehicles (the contract) with the defendants on the 30^th of June 2015 for the hire out of its vehicles to the defendants.

5. As a result of the above contract, the plaintiff issued invoices accordingly. Some invoices were partly paid whilst others were not paid and have been outstanding for some time.

6. The particulars of the outstanding invoices as per the plaintiff’s claim are restated below:

7. The plaintiff claims that a total amount of K179, 365.00 is outstanding as liquidated damages for unpaid invoices, among other claims under different heads.

9. The role of the Court when assesing damages for which a defendant is liable following entry of default was addressed by the Supreme Court in William Mel v Coleman Pakalia and Others (2005) SC790; Coecon Ltd v National Fisheries Authority (2002) N2182.

10. The trial judge's role is to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; if the facts and cause of action are reasonably clear, liability should be regarded as proven, ie the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.

11. In cases where the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability.

12. The plaintiff has the burden of producing admissible and credible evidence of the alleged damages; and any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.

14. The plaintiff has the onus of proving his loss on the balance of probabilities. (Yooken Paklin v The State (2001) N2212 ).

15. The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350). The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte.
16. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369 ).

17. Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214; Waima v MVIT [1993] PNGLR 370.

18. The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

19. When assessing damages for breach of contract, special principles apply. Tetley v The Administration (1971) No 647 and Coecon Ltd v National Fisheries Authority (2002) N2182, which considered Hadley v Baxendale (1854) 9 Exch 341 and Victoria Laundry v Newman [1949] 2 KB 528.

20. The special principles of Hadley v Baxendale and the Victoria Laundry cases are appropriate to the circumstances of PNG, and therefore can be safely applied as part of the underlying law. The special principles are: the purpose of an award of damages is to put the innocent party in the same position, as far as money can do, as if the guilty party had not committed a wrongful act, is qualified substantially when assessing damages for breach of contract; the qualification is that the innocent party only gets the amount of his actual losses that were reasonably foreseeable at the time the contract was formed; what is taken to have been reasonably foreseeable at the time the contract was formed depends on two things: (a) the sort of knowledge that any reasonable person would be expected to have; and (b) knowledge of special circumstances outside the ordinary course of things.

21. I have taken into account all of the above principles when assessing the remedies covered by the default judgment. In the present case, I have read the pleadings and the cause of action. I have taken the steps involved in the entry of default judgment and I am satisfied that the default judgment is in order and to the extent of proving liability.

22. Whilst the issue of liability is settled, the plaintiff is still required to prove damages and loss of business earnings suffered with credible evidence, and on the balance of probabilities.

23. One main principle of law regarding loss of earnings is that the plaintiff must prove his actual loss suffered through evidence. Mere speculations or assumptions on losses suffered or likely to be suffered is not good enough. Se El Mangoth Co.Ltd v Jack Sarviman & Ors [2020] N8571; Jonathan Paraia v The State (1995) N1343.

24. The plaintiff, Mr. Kaman relied on his own affidavit sworn on the 19^th of October 2022 and filed on the 21^st of October 2022. The affidavit was tendered and received into evidence without objection and marked as Exhibit “P1”. Annexed to the plaintiff’s affidavit are the following: the dully executed contract dated 30 June 2015, to run for 2 and half years commencing on date of execution ie 30 June 2025; invoices and copies of cheques showing payments.

25. MR Kaman deposes that he owns and operates a Hire Car business trading under the registered business name of Tamanku Hire car. He leased to the defendant for hire his vehicles at the rate of K350 per day (not per month as contained in the affidavit of the plaintiff at para 4). Some invoices were settled in part, others were not settled at all, thus the balance owing is the basis of the current proceedings.

26. Mr Kaman annexed to his affidavit all the seven invoices which adds up to the total amount claimed in the plaintiff’s statement of claim.

27. Mr Token of learned counsel for the plaintiff submitted that the cumulative amount outstanding is K179, 365.00.

28. The non-payment of this amount has caused the plaintiff to miss out on business opportunities and investments; suffer from loss of income from a damaged vehicle whilst on hire to the defendant; and to spend time, resources and money to recover the unpaid monies.
29. The plaintiff had suffered the following damages from frustration, discomfort and mental distress; and financial distress and loss.

30. The plaintiff claimed liquidated damages in sum of K179 356 for unpaid and part paid invoices. The defendants have no defence and have not disputed the amount. The facts on assessment of damages have been established as they have been pleaded and not disputed.

31. Upon questions by the court relating to the invoices having records of hire periods and use of vehicles falling outside the terms of the written contract, Mr Token, made the following further submissions.

32. The intentions of the parties are clear by inference drawn based on their respective conducts and that is that the plaintiff will hire out their vehicles for the defendant’s use, and the defendants will pay at a rate of K350 per day, for a period of two and a half years.

33. When raised by this court, Mr Token conceded that some of the invoices, particularly invoices no 30, 34, 16 and 17, show periods of time and use of certain vehicles that did not fall within the period stipulated and in the terns of the contract. The relevant details of these invoices’ numbers 30, 34, 16 and 17 are summarised in the table below.

No	Invoice No	Hire period outside term of Contract. Use of Vehicles outside term of Contract	No. of Days
1	30	17^th December 2014 – 29^th June 2015 Vehicle Registration No BDE 055	196
2	34	01^st March 2015 – 29^th March 2015 Vehicle Registration No BDE 055	121
3	16	01^st April 2018 – 30^th June 2018 Vehicle Registration No BDN 055	90
4	17	01^st March 2018 – 30^th June 2018 Vehicle Registration No BDN 055	121

34. Despite this, Mr Token submitted that the court must consider that it was the Plaintiff’s intention generally to hire out its’s vehicles to the defendant and it was the defendant’s intention that they will pay for the hire of the vehicles. He submitted that this intention was realised and that is evident from the conducts of both parties.

35. The conducts of the parties show that the plaintiff did let its vehicles for hire and the defendant did use the vehicles for hire over a period of time. The plaintiff then issued seven invoices which started from periods running prior to, during and after the date of the execution of the contract. From these invoices, the defendant made some part payments only.

36. A summary of the payments made for five out of the seven invoices is described in the table below.

No	Cheque #	Cheque Date	Amount	Invoice No/Hire Period Vehicle Registration No
1	1779	27/09/2015	K10, 000	# 30: 17/12/14 – 30/06/2015 Vehicle Registration # BDE 055
2	163	31/08/2015	K36,000	# 34: 01/07/2015 – 30/12/2015 Vehicle Registration # BDE 055
3	2599	9/01/2017	K15, 000	# 41: 26//06/2016 – 03/09/2016 Vehicle Registration # BDN 055
4	2715	24/02/2017	K15, 000	# 114: 09/04/2017 – 16/10/2017 Vehicle Registration # BES 055
5	3049	11/11/2018	K30, 000	#17: 01/03/2018 – 30/06/2018 Vehicle Registration # BDN 055

37. Form the above table, it is shown that the defendant made a total of five cheque payments for five invoices for hire periods that ran from the 17^th of December 2015 to 30 June 2018.

38. Although, hire periods and specific vehicles mentioned in all the invoices except for Invoice # 114, were not covered in the terms of the contract, Mr Token submitted that the parties’ intentions of hiring for a specified consideration was made known through the parties’ respective actions of hiring out, issuing invoices and making part payments. Hence, Mr Token submitted that it is this intention that must be enforced by the courts. (See case of Vanimo Forest Products Ltd v Ossima Resources Ltd [2013] PGSC 55; SC1275.

39. Where other motor vehicles were used instead of those specifically mentioned and covered by the terms of the contract, Mr Token submitted that the Court would consider that given the nature of a hire car business, there was need for the plaintiff to change their vehicles due to issues such as accident and or road worthiness of the vehicles and the wear and tear of them. It was reasonable to draw these facts.

40. Where there was no evidence of specific variations made to the contract and or that no renewal was done to the contract, Mr Token submitted that the variation is inferred from the conduct of the parties. Plaintiff relied on the case of Nivani Ltd v China Jinagsu International (PNG) Ltd (2007) N3147 which adopted the principle in the case of Eldridge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264.

41. Mr Token submitted that the Court will assess the Plaintiff’s damages in accordance with principles of damages set out in Rodao Holdings Ltd v Sogeram Development Corporation Ltd [2007] PGNC 239; N5485.

42. Based on the entry of the default judgment, the defence did not refute the assertions of Mr Kaman. The terms of the written contract demonstrated that the contract was certain and was binding. Mr Kaman would hire out two vehicles described as Toyota Camry vehicles, bearing the registration numbers BES 055 and BEY 448 for a period of two and a half years commencing on the 30^th of June 2015. That will end on the 30^th of December 2017.

a) For invoice No 30, dated 30^th June 2015, the period of hire that the plaintiff claims for the vehicle bearing the registration number BDE 055 started on the 17/12/2014 and ended on the 30/06/2015. There was a total of 196 days hire of hire. At the rate of hire at K350 per day, the total the plaintiff is seeking is K68, 690 for that invoice.

b) In my assessment, two things are wrong with this invoice. The stated period of hire which is a total of a 196 days (ie from the 17^th December 2014 to the 30^th June 2015) is not covered within the terms of the contract and also the vehicle that was used for hire, described in invoice no 30 as a Toyota Camry, Gracier, green in colour bearing the registration number BDE 055 is also not one of the two vehicles described in the terms of the contract as vehicles hired out to the defendants.

c) Going strictly by the terms of the contract which are certain, there is no evidence to support the claim of K68, 690 against invoice no 30.

d) However, I consider the intent and conduct of the parties. There is evidence demonstrating that the defendant has made a total of five, part payments between the period 27/09/2015 to the 11/11/2018. Although these payments were not specifically identifiable to the invoices, on the balance of probabilities, I accept the plaintiff’s submissions that against invoice no 30, the defendant made a part payment of K10, 000, via a cheque dated 27/09/2015. This is because this payment was raised closer in time after the date of when the invoice was issued which is 30^th June 2015.

e) On the balance of probabilities, I am satisfied and make the finding that the defendant’s payment of K10, 000 was paid against Invoice # 30.

f) So, based on the defendant’s conduct in paying K10 000 against invoice # 30, for the period which commenced on the 17^th December 2014 and ended on the 30^th June 2015, for vehicle bearing the registration number BDE 055, I also find that, the terms of the contract were varied through the defendant and the plaintiff’s conduct. To give effect to their intention, which is to hire out and to pay for use, on the balance of probabilities, I find that the defendant owes the plaintiff a sum of K68, 690, minus K10, 000 equal to the balance of K58 690 which is outstanding against Invoice No 30.

vehicle bearing the registration number BDE 055 started on the 01/03/2015 and ended on the 20/09/2015. There was a total of 203 days of hire. At the rate of hire at K350 per day, the total the plaintiff is seeking is K71, 050 for that invoice.

from the 01/03/2015 – 30/06/2015 is not covered within the terms of the contract, which is in evidence, and so, a total of 29 days is outside the term of the contract.

Toyota Camry, Gracier, green in colour, bearing the registration number BDE 055 is also not one of the two vehicles described in the terms of the contract as vehicles hired out to the defendants.

evidence to support the claim for K350 x 203 days = K71, 050 against invoice no 34.

evidence demonstrating that the defendant has made a total of five, part payments between the period 27/09/2015 to the 11/11/2018.

plaintiff’s submission that the defendant made a part payment of K36, 000, via a cheque dated 31/08/2015. In the absence of any evidence indicating certainty as to which invoice this cheque was paid against, but in the light of the evidence which shows that invoice # 34 was raised on the 20/09/2015 and the payment of K36, 000 was made via a cheque dated 31/08/2015, where both dates are closer in time to each other, and on the balance of probabilities, I find that the defendant’s payment of K36, 000 was paid against Invoice no 34.

34, for the period which commenced on the 01/03/2015 and ended on the 20/09/2015, for vehicle bearing the registration number BDE 055, I also find that, the terms of the contract were varied through the defendant and the plaintiff’s conduct, and to give effect to their intention, which is to hire out and to pay for the use of the plaintiff’s vehicle.

plaintiff a sum of K71, 050 minus K36, 000 which is equal to an outstanding of K35, 050 against Invoice no 34.

vehicle bearing the registration number BDN 055 started on the 26/06/2016 and ended on the 03/09/2016. There was a total of 69 days (not 91 days as calculated by Plaintiff) of hire. At the rate of hire at K350 per day, the total the plaintiff is seeking is K24, 150 for that invoice.

Camry, Gracier, grey in colour bearing the registration number BDE 055 is not one of the two vehicles described in the terms of the contract as vehicles hired out to the defendants.

evidence to support the claim of K350 x 69 days which is equal to a sum of K24, 150.

effect to them. There is evidence demonstrating that the defendant has made a total of five, part payments between the period 27/09/2015 to the 11/11/2018.

defendant did not make any payments at all either in full or in part for the total due which is K24, 150.

claim, where default judgement had been entered, and on the balance of probabilities, I accept the plaintiff’s evidence that no payments have been made against this invoice. I find that the defendant’s outstanding payment of K24, 150 is owing to the plaintiff against Invoice # 41.

defendant’s conduct in paying previous invoices ie invoices # 30 and 34, for the stated periods of time, and for stated vehicles, I also find that on the balance of probabilities, the terms of the contract were varied through both the defendant’s and the plaintiff’s conducts, and to give effect to their intention, which is for the plaintiff to hire out and for the Defendant to pay for the use of the plaintiff’s hire vehicle.

vehicle bearing the registration number BDE 055 started on the 13/11/2016 and ended on the 08/12/2016. There was a total of 25 days of hire which is within the terms of the contract. At the rate of hire at K350 per day, the total the plaintiff is rightly seeking is K8, 750 for that invoice.

Camry, Gracier, green in colour bearing the registration number BDE 055 is not one of the two vehicles described in the terms of the contract as vehicles hired out to the defendants.

evidence to support the claim of K350 x 25 days which is equal to a sum of K8, 750 for the vehicle used. However, I consider the intent and conduct of the parties. There is evidence demonstrating that the defendant has made a total of five, part payments between the period 27/09/2015 to the 11/11/2018.

defendant did not make any payments in full or in part for the total due which is K8,750.

where default judgement had been entered, and on the balance of probabilities, I accept the plaintiff’s evidence that no payments have been made against this invoice. I find that the defendant’s outstanding payment of K8, 750 is owing to the plaintiff against Invoice no 63.

# 30 and 34, for the stated periods of time, and for stated vehicle, I also find that on the balance of probabilities, that the terms of the contract were varied through both the defendant’s and the plaintiff’s conducts, and to give effect to their intention, which is to hire out and to pay for the use of the plaintiff’s vehicle.

vehicle bearing the registration number BES 055 started on the 09/04/2017 and ended on the 16/10/2017. There was a total of 60 days of hire. At the rate of hire at K350 per day, the total the plaintiff is seeking is K21, 000 for that invoice.

vehicle bearing the registration number BDN 055 started on the 01/04/2018 and ended on the 30/06/2018. There was a total of 90 days of hire. At the rate of hire at K350 per day, the total the plaintiff is seeking is K31, 500 for invoice no 16.

vehicle bearing the registration number BDN 055 started on the 01/03/2018 and ended on the 30/06/2018. There was a total of 121 days of hire. At the rate of hire at K350 per day, the total the plaintiff is seeking is K42 350 for that invoice.

the same hire. Details on both invoices show that both invoices were done on same date, ie for 30^th June 2018, against the same vehicle ie BDN 055; and for the same period ie 01/04/2018 – 30/06/2018 and 01/March 2018 – 30/06/2018) with a slight difference of one month. Due to that, I find that one invoice is a duplicate of the other and this cannot be accepted on that basis as it will amount to double payment. Invoice No 17 will be considered the proper invoice and is accepted as it covers the extra one month which must be paid.

period of hire is not covered within the terms of the contract and also the vehicle that was used for hire, described in this invoice, ie Toyota Camry, Gracier, grey in colour bearing the registration number BDN 055 is not one of the two vehicles described in the terms of the contract as vehicles hired out to the defendants.

is evidence demonstrating that the defendant has made a total of five, part payments between the period 27/09/2015 to the 11/11/2018.

Based on the defendant’s conducts in making payments against raised invoices, I find that, the terms of the contract were varied through the defendant and the plaintiff’s conduct, and to give effect to their intention, which is to hire out and to pay for use of the vehicles. On the balance of probabilities, I find that the defendant owes the plaintiff a sum of K42, 350 – K30 000 equal to K2, 350.

44. In making those findings, I am mindful of the legal principles discussed above and go on to say that although a defence was not filed to challenge the claim or the specific sums sought against the various invoices, the burden still rests on the plaintiff not only to clearly and concisely plead their claim, but also to provide the evidence to prove it.

45. In the pleadings, whilst I consider that the plaintiff did not specifically plead that a variation was made to the existing contract, the conducts of the parties and their intentions, demonstrated that the parties had varied the contract. This inference is made from the conducts of the parties.

46. I therefore, make these findings in conclusion in relation to the claims against each of the seven invoices, in a summary below:

Where the defendant had paid, K30, 000 against invoice # 114, for an outstanding sum of K21, 000; K9, 000 is extra monies paid by the plaintiff against invoice # 114.

Invoice No 17 K2, 350
-------------------------------------------------------------
Total Amount: K128, 990
-------------------------------------------------------------

47. For this invoice, No 114, the amount of K9, 000 is not added as it was extra monies paid for the stated hire period.

48. General damages cater for pain and suffering which also covers humiliation, distress, inconvenience, frustration, discomfort and mental distress suffered by the plaintiff.

49. The plaintiff is claiming a sum of K60 000 for general damages. Mr Token relied on a number of cases namely: Hodson v State [1985] PGNC 14; [1985] PNGLR 303; N524; Na-Al v Debege [2000] PGNC 6; N1958; where an award of K15 000 was paid for non-payment of salary whilst studying overseas; Aigilo v Morauta, Prime Minister (No 2) [2001] PGNC 115; N2103 where K20 000 was awarded for pain and suffering for breach of employment contract; Likui Trading Ltd v Selna [2011] PGNC 208; N4530, where the Court awarded K15 000 and held that the plaintiff was under an obligation to prove his losses with particularity and Jacinta Albert v Dr. Joseph Aine & Ors, N7772, WS. NO.850 of 2016 (2019), the Court awarded K200 000 for pain and suffering based on professional negligence.

50. This Court has researched three cases. In James Liwa & Peter Kuriti v Markis Vanimo & The State (2008) N3486, the Court awarded K5,000.00. as it was not a serious case of frustration and distress. It arose from loss of PMV service operations which affected other business, increased by another K5,000.00, thereby awarding a total of K10,000.00 as general damages.

51. In James Liwa (supra), the Court said according to established case principles, general damages are intangible, non-monetary losses that do not have an exact monetary value and include compensating for mental anguish and distress. This claim was not properly pleaded as no particulars were alleged under this heading. The Court considered that there was no doubt the plaintiffs would have been affected emotionally and mentally after losing business and awarded a nominal sum of K5 000.

52. In Walaun v Droaz [2017] PGNC 20; N6641, on a breach of contract for service rendered, K7,000 was awarded as a nominal amount under this head of damage for mental distress.

53. In Kewa v Madang Provincial Government [2014] PGNC 109; N5650 (27 June 2014), the case involved a breach of oral contract for provision of transport and labour to the defendant, where the defendant failed to honour invoices issued. After liability was entered by default judgment, under the heading for general damages for pain and hardship, the Court said though it is difficult to quantify, there is evidence that the plaintiff has suffered anguish and stress because of the breach of contract and the failure of the defendant to explain the refusal or difficulty in paying this particular invoice and awarded a nominal cost of K5,000.00.

54. In using these cases as a guide, and where the plaintiff has not provided any evidence to support these claims, I award a nominal amount of K5, 000 for pain and suffering under this heading, general damages for pain and suffering.

55. For out-of-pocket expenses or special damages, case laws have categorised these damages as those awarded for costs of fuel, printing and photocopying, etc. Where these are not supported by any documentary evidence such as invoices or receipts, a nominal amount is awarded.

56. I consider also that these expenses may be sought if costs are awarded in favour of the plaintiffs. I am mindful to award cost in favour of the plaintiff and so I award a nominal amount of K2, 000 under this head of damages.

57. Mr Token submitted that the non-payment of the sum owing to the plaintiff based on his calculation is a sum of K179 365. This has caused the plaintiff to lose business in these ways: missed out on other business opportunities and investments; suffered loss of income, from one of its vehicles which was damaged by the defendants; spent time money and resources to pursue recovery action; and has paid tax and paid for vehicle registration and insurance.

58. Counsel argued loss of business by saying that the full payment of the plaintiff’s invoice would have enable him to purchase six more similar vehicles at the sum of K28, 000 each to expand his hire car business, and counsel relied on a quote from Ela Motors demonstrating that the cost of each vehicle was at K28, 000.

59. Counsel submitted that the plaintiff’s loss of business opportunity and expansion can be measured by how many new vehicles he would have purchased had the defendant paid all his invoices on time.

60. The plaintiff, therefore, calculated loss as follows in terms of how many more vehicles he could have purchased to be at: K179 365 (outstanding amount ÷ K28 000 (cost of one vehicle) = 6. Therefore, the number of new vehicles the plaintiff argues he would have bought with the total amount owing to him is 6. Six vehicles at the cost of K28, 000 is K168 000. The plaintiff argues that that is the value of loss of business he has suffered.

61. The Plaintiff relied on the second school of thought in the case of Andrew Kewa v Johnny Lus and Securimax Ltd (2007), unnumbered judgment; WS 415 of 2003 and argued that the Court will assess loss of profit with whatever amount the plaintiff states in his affidavits unless disproved by other evidence.

62. As a response, this Court has made the findings as per above reasoning that the outstanding claims is at K128, 990 and not K179, 365. I will respond to the plaintiff’s submissions on the value he has put to the loss of his business later.

63. Mr Token asked the court to take a ‘liberal approach’ in assessing the losses in the absence of any corroborating and supporting evidences and make a nominal or general assessment of loss of business as the Court considers proper and reasonable in the circumstances of this case and award a nominal compensation for the loss of business suffered. (See Andrew Kewa (supra).

64. I consider that whilst damages cannot be assessed with certainty, this does not relieve the wrong doer of the necessity of paying damages. Where precise evidence is available the Court expects to have it. However, where it is not, the Court must do the best it can to assess the loss – Per Injia J (as he then was) in Jonathan Paraia v The State (supra).

65. Cannings J summarized well the liberal approach in John Nuguwas v Peter Kopi, Anton Kaupa and Kuima Security Services [2014] N5504 as follows:

“According to the undisputed facts, the plaintiff had lost income when invoice not paid. All these happened through no fault of his own with liability been established against the defendants for their non-performance. Notwithstanding the fact that the plaintiff has not proven his losses does not relieve the defendants of any liability”.

66. The Court in John Nuguwas’ (supra) case considered it appropriate that the plaintiff be awarded some nominal compensation for the loss of his business in the absence of any evidence that independently corroborated the losses and award K20 000 for loss of damage.
67. For loss of business, there are no proper documentary evidence produced to assess any real loss of business. The plaintiff argued that he would have bought six more vehicles, however, he has not shown by proper accounting evidence that his business has been successful in the past and has the potential to grow in the manner he stated. Being guided by case law, I am reluctant to award the amount sought. I therefore, award a nominal amount of K20 000 for loss of business.

68. The award of interest is a discretionary matter. The test in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, are; (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

69. I have considered those matters. In the normal course of events, the plaintiff should receive interests. There is nothing in the circumstances of this case, that takes it out of the ordinary in that regard.

70. I award 8% interest on the total judgment debt to cover for the time lost by the plaintiff to use the money.

71. Plaintiff is represented by the Public Solicitor. The Public Solicitor does charge reasonable amounts as cost for representing clients, pursuant to Public Solicitors (Charges) Act 2021. I order legal cost to be paid by defendant.

Orders accordingly.
_____________________________________________________
Public Solicitors: Lawyers for the Plaintiff

National Court of Papua New Guinea

Max Kaman (trading as Tamanku Hire Cars) v Harisol [2023] PGNC 150; N10280 (21 April 2023)