N11465

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS No. 490 OF 2023

BETWEEN 
PAUL DORI (Jnr) trading as Ailan Hire Car & Rentals 
 Plaintiff 

AND
AMBROSE SILUR
Defendant 

KAVIENG:  COLLIER J
4 SEPTEMBER 2025
  
DAMAGES – damage to hired vehicle – contract for repayment between the parties – damages for replacement vehicle – damages for loss of business earning – interest on judgment sum – principles of damages.

The defendant hired a vehicle from the plaintiff which was damaged beyond repair during an accident while the vehicle was hired. The parties reached an agreement for the defendant to repay the plaintiff for the value of a new replacement vehicle. The defendant failed to comply with that agreement and the plaintiff claimed damages, loss of business earning, interest and costs. 

HELD: Plaintiff is entitled to damages and loss of business earning in the amount agreed by the parties in their contract. The plaintiff was not entitled to be awarded GST in addition to loss of business earnings. The defendant to pay interest on the judgment sum at a rate of 8% per annum. The defendant to pay the plaintiff’s costs of the proceeding.   

Cases cited
Cheong Supermarket Pty Ltd v Muro (1987) PNGLR 24
Naki v AGC (Pacific) Ltd [2006] N5015
Palaru v Kaule [2023] N10393

Counsel
Mr Dalu, for the plaintiff
No appearance, for the defendant

1	COLLIER J: Before the Court are a writ of summons and statement of claim filed 26 September 2023 by the plaintiff, Paul Dori (Jnr) trading as Ailan Hire Car & Rentals. The claim is one for damages and loss of business against the defendant, Ambrose Silur, for breach of a contract dated 17 July 2023. Default judgment on liability was entered against the defendant by the Court on 6 March 2025. The issue currently before the Court is the assessment of damages referable to the defendant’s liability. The plaintiff seeks various damages, namely: 
(1)	K235,713.25 for the purchase of a new vehicle and
(2)	K76,670.00 for loss of business; and 
the plaintiff also seeks 8% interest on the judgment sum. 
2	It is prudent to note from the outset that the trial on assessment of damages was conducted ex parte. Since the proceeding was commenced in September 2023, there has been no engagement by the defendant. Several affidavits of service have been filed in the proceeding by the plaintiff, evidencing service on the defendant. The matter has come before the Court on numerous occasions and the defendant has never appeared. The defendant has also not filed any documents in the proceeding. It appears that the defendant has never had an interest in defending the proceeding. When the matter came before me on 1 September 2025 for directions, and 3 September 2025 for the trial on assessment of damages, there was no appearance by the defendant. Accordingly, I considered it in the best interests of the just and expeditious disposal of the proceeding that the trial proceed ex parte. 
Background
3	Such background facts as are known to the Court are to be found in the uncontradicted affidavit evidence filed earlier in these proceedings by the plaintiff.
4	On 6 July 2023, the parties entered into a contract whereby the defendant hired a vehicle from the plaintiff. 
5	On 7 July 2023, the defendant was involved in an accident involving the plaintiff’s car which he had hired, a Toyota Landcruiser. 
6	On 17 July 2023, the parties entered into a contract in which it was agreed the defendant would pay the plaintiff K235,713.23 within one month of the execution of that contract. The contract further provided that if the defendant failed to pay the full amount within one month, such failure would result in a loss of business at the rate of K850 per day on top of the original K235,713.23. 
7	The defendant has not paid any of the amount owing under the 17 July 2023 contract. 
plaintiff’s evidence 
8	In relation to the damages claimed, the plaintiff relied on an affidavit sworn by him on 3 September 2025. 
9	In his affidavit, the plaintiff deposed that he is the co-owner of (with his nephew, Mr Vernon Kippel) of Aillan Hire Car & Rentals. The plaintiff deposed that annexures A1 and A2 to his affidavit are copies of a “Certificate of Good Standing – Long Form” and a “Certificate of Registration of Busines Name” from the Office of Registrar of Companies. Annexure A1 lists the plaintiff as an owner of Aillan. Annexure A2 shows that Aillan has been listed as a business name since 20 October 2021. I am satisfied that annexures A1 and A2 are copies of the documents as deposed to by the plaintiff. Accordingly, I am satisfied that the plaintiff is an owner of Aillan. 
10	The plaintiff further deposed that on 6 July 2023, the parties entered a rental agreement wherein the defendant would hire a vehicle from the plaintiff in consideration of payment of K850 per day of the hire, for a period of four days. The plaintiff deposed that Annexure B to his affidavit is a copy of a “Rental Car Hire Agreement” dated 6 July 2023. Annexure B is a low quality scan of a document that does appear to be a rental agreement. The defendant’s name, date of birth and signature are discernible. The exact amount on the agreement is not discernible. However, in the absence of any evidence to the contrary, I am satisfied that Annexure B contains the details as deposed to by the plaintiff. 
11	The plaintiff gave evidence that, on 7 July 2023, the hired vehicle was involved in an accident in which it was damaged beyond repair. The plaintiff deposed that Annexure C to his affidavit is a collection of photographs of the damaged vehicle. Annexure C does contain five photographs of a blue Toyota Landcruiser which is extremely badly damaged. I am satisfied that the photographs in Annexure C are photographs of the hired vehicle with severe damage. 
12	The plaintiff deposed that on 10 July 2023, the Traffic Police visited the crash site and compiled a report. The plaintiff deposed that Annexure D to his affidavit is a copy of the Traffic Accident Report. Annexure D is a report of a traffic accident where the vehicle is listed as a blue Toyota Landcruiser. I am satisfied that Annexure D relates to a traffic accident involving the vehicle hired by plaintiff to the defendant. 
13	The plaintiff deposed that the defendant “owned up and took responsibility for what had happened and agreed to foot the bill for the damages caused”. He further deposed that, after negotiations, it was agreed on 17 July 2025 that the defendant would pay for the cost of replacing the damaged vehicle at a cost of K235,713.23 and that if he did not pay that amount within one month, loss of business costs would accumulate at K850 per day until the total amount was paid. The plaintiff also deposed that the then Provincial Legal Officer, Mr Logoso, witnessed the agreement between the parties. The plaintiff deposed that Annexure E to his affidavit is a copy of the agreement reached on 17 July 2023. I am satisfied that Annexure E is a contract between the parties, witnessed by Mr Logoso, containing terms exactly as deposed to by the plaintiff. I would add an observation that, pursuant to clause 2 of the contract, the defendant did have the option to either pay the K235,713.23 or procure a replacement vehicle himself. That observation is not material given the findings I will turn to.
14	The plaintiff deposed that the amount of K235,713.23 agreed in the contract of 17 July 2025 was arrived at based on a quote from Ela Motors for a replacement Landcruiser. The plaintiff deposed that Annexure F to his affidavit is a copy of the “Total Loss Assessment” from Ela Motors. Annexure F is a letter from Ela Motors to the plaintiff providing a quote for a new Toyota Landcruiser for a total amount of K235,713.23. Page two of Annexure F states that a 2015 Toyota Landcruiser was “damaged beyond economical repair”. I am satisfied that Annexure F is a true copy of a quote sent to the plaintiff for a new Toyota Landcruiser.  
15	The plaintiff deposed that he contacted Ela Motors following the accident, and that he was informed by Ela Motors that the pre-accident value of the hired vehicle was K55,000. In the absence of evidence to the contrary, I am satisfied that it is more probable than not that this pre-accident valuation is correct. 
16	The plaintiff deposed that his loss of business as a result of the hired vehicle being unusable was calculated at K76,670, being K850 per day from the date of the accident to the date of filing of the originating process in this Court on 26 September 2023. The plaintiff deposed that Annexure G is an “invoice containing the loss of business calculation”. Annexure G is an invoice template which lists the days of lost business being 82, and the cost of such loss being K850 per day. The total amount displayed on that invoice is K69,700 before GST, and K76,670 inclusive of GST. I am satisfied that Annexure G is a correct calculation. 
plaintiff’s submissions
17	The plaintiff submitted, relevantly, that he should be entitled to a global sum encompassing all of the damages claimed, being K362,364.57. 
consideration
18	The legal principles referable to the assessment of damages are settled law. As Cannings J observed in Naki v AGC (Pacific) Ltd [2006] N5015:
i.	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
ii.	Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
iii.	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, National Court, Woods J.)
iv.	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. 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, National Court, Injia J.)
v.	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
vi.	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, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
vii.	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer 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. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
viii.	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.)
iv. 	The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)
19	I respectfully adopt the observations of Cannings J in Naki. 
20	I will consider each of the plaintiff’s three claims for damages in turn. 
21	First, the claim for K235,713.23 for a replacement vehicle. I earlier accepted that the plaintiff’s vehicle was damaged beyond repair due to an accident in which it was involved while it was being hired by the defendant. I further accepted that a quote for a new Landcruiser was in the amount of K235,713.23. I am cognisant of the fact that Ela Motors estimated the value of the hired vehicle to be K55,000 before the accident. However, in circumstances where I accepted the evidence of a contract between the parties whereby the defendant was to pay the plaintiff K235,713.23 for the purchase of a brand-new replacement vehicle, I am satisfied that the plaintiff should be awarded K235,713.23 on this head of damages. 
22	Second, the claim for K76,760 for loss of business earnings. Again, in circumstances where I am satisfied that the parties agreed a figure for loss of business earnings as K850 per day (being the rate the defendant paid for the vehicle per day) I am of the view that the plaintiff should be awarded K850 per day, which it was agreed the defendant would pay him for loss of earnings. I note that the plaintiff’s claimed figure of K76,760 includes an additional allowance for 10% tax on top of the agreed K850 per day. The contract of 17 July 2023 does not contemplate tax being paid by the defendant in addition to the agreed amount. In any event, if the business earnings were actually earned, the plaintiff would not enjoy the benefit of retaining an additional 10% in tax as it would be paid to the Government. Accordingly, I consider it appropriate to award the plaintiff damages for loss of business at K850 from the date of the accident, to the date of the filing of the writ of summons, without any additional amount for tax. As such, I am of the view that the plaintiff should be awarded K69,700 for loss of business earnings. 
23	The total award to the plaintiff for both general damages and loss of business earnings is therefore K305,413.23. 
24	Third, the plaintiff claims interest at the rate of 8% per annum on the judgment sum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015. The award of interest under that act is a matter of the Court’s discretion: Cheong Supermarket Pty Ltd v Muro (1987) PNGLR 24; Palaru v Kaule [2023] N10393. I am satisfied that the plaintiff is entitled to interest at the rate of 8% per annum on the total amount awarded (being K305,413.23) from the date of filing of the writ of summons on 24 September 2023, to the date of judgment. 
conclusion 
25	The award of costs in proceedings is of course discretionary. However, costs should generally follow the event. To that end, the defendant is ordered to pay the costs of the plaintiff of and incidental to the proceedings, to be taxed if not otherwise agreed. 

THE COURT ORDERS THAT:

1.	The defendant pay the plaintiff damages in the amount of K305,413.23. 
2.	The defendant pay the plaintiff interest at the rate of 8% annually, pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015, on the total amount awarded of K305,413.23 from the date of filing of the Writ of Summons on 23 September 2023 to the date of judgment.
3.	The defendant pay the plaintiff’s costs of and incidental to the proceeding, such costs to be taxed if not otherwise agreed. 
	
Lawyer for plaintiff:      Ainui Legal Services