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Reto v Kandege [2025] PGNC 455; N11606 (25 November 2025)

N11606

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 1363 OF 2013

JULIE RETO
as administrator of the estate of the late MARK RETO,
who was the administrator of the estate of the late JENNY RETO
Plaintiff

v

CHRIS KANDEGE
First Defendant

ANDREW TRAWEN as ELECTORAL COMMISSIONER,
PNG ELECTORAL COMMISSIONER
Second Defendants

WABAG: ELLIS J
5, 25 NOVEMBER 2025
(LAST SUBMISSIONS 17^TH NOVEMBER)

DAMAGES – Assessment – consideration of reasonable amount for loss caused by First Defendant – assessment of damages for lost vehicle – loss of business income – award based on income less expenses and income tax – exemplary damages not awarded – out of pocket expenses not proved – interest not claimed in Writ of Summons – no evidence of any loss caused by Second Defendants

Cases cited
Aimon Aure &Os v Captain Peter Bok and The State [1996] PNGLR 85
Andrew v Guard Dog Security Services Ltd [2020] PNGC 471; N8735
Apa v PNG [1995] PNGLR 43
Coecon v National Fisheries Authority (2002) N2182
Dumu v Rapilla [2024] PGNC 85; N10738
Graham Mappa v PNG Electricity Commission [1995] PNGR 171
Kalo v Akaya [2007] PGNC 90; N3212
Kei v Hasu [2004] PNGLR 50
Kennedy v Coca-Cola Amatil (PNG) Limited & Anor (2011) N4946
Kewa v Lus [2007] PGNC 3
Kinsim Business Group Inc v Joseph Homepwafi (1997) N1634
Liwa v Vanimo [2008] PGNC 140; N3486
Livingstone v Rawyards Coal Co (1908) 5 App Cas 25 (HL)
Palaru v Kaule [2023] PGNC 224; N10393
Paraia v Yansuan [1995] PGNC 25; N1343
Yange Lagan v The State [1995] PGNC 32; N1369

Counsel
B Kaki for the plaintiff
F Pelpis for the first defendant
No appearance for second defendants

JUDGMENT

1. ELLIS J: These proceedings only required an assessment of damages, judgment in favour of the Plaintiff having been previously entered. When the original Plaintiff (Jenny Reto) died, her husband (Mark Reto) became the Plaintiff when he became the administrator of her estate. When he died, their daughter (Julie Reto) became the Plaintiff when she became the administrator of her father’s estate.
   

Background

2. The original Plaintiff was the owner of a public motor vehicle (PMV) which was hired by the Second Defendants for ten days, at the rate of K600 per day, from 26 June 2012. Close to the end of that period, on 4 July 2012, while that vehicle was transporting polling officials from Wapenamanda to Wabag, it was attacked by supporters of the First Defendant who was said to have been a candidate at that time.
   
3. A front-end loader was used by those supporters to block the road, then lift that vehicle up and drop it, which conduct caused damage to the vehicle and injuries to people in that vehicle at that time. A claim for damages was made when these proceedings were commenced on 25 November 2013. Order 1, made on 21 March 2018, was: “Judgment is ordered for the Plaintiff with damages to be assessed.”
   
4. Over a period of more than seven and a half years, these proceedings continued at a slow pace until a month ago when a hearing date was allocated with the aim of finalising proceedings that were commenced more than 13 years ago.

Evidence

5. The evidence upon which the current Plaintiff relied was as follows:
   

(1) the affidavit of Jenny Reto (the original Plaintiff), filed on 20 October 2017,

(2) the affidavit of Papae Jack, filed on 19 April 2018,

(3) the affidavit of Paul Kapao, filed on 19 April 2018,

(4) the affidavit of Det Sgt Edward Tangone, filed on 19 April 2018,

(5) the further affidavit of Jenny Reto, filed on 11 May 2018, and

(6) the affidavit of Julie Reto (the current Plaintiff), filed on 27 June 2025.

6. The first affidavit of Jenny Reto, now deceased, contained evidence of ownership and of the hiring agreement. It alleged what occurred on 4 July 21012 and annexed a copy of the accident report prepared by the Police. Copies of letters from the local officials to the Electoral Commission were provided but there is no evidence of any admission of liability by either of the Second Defendants.
   
7. Photos plus a report from Ela Motors suggested the PMV was damaged beyond repair. Three quotations for a replacement vehicle were provided, and they showed amounts of K78,000, K74,429.40 and K72,900. A copy of a letter to the First Defendant dated 2 February 2013 and his 25 February 2013 reply suggest a willingness on his part to pay compensation, but subject to approval of a loan application.
   
8. Papae Jack, in his affidavit, said he was “the bus crew” on the day in question. After recounting what happened, he said that the First Defendant compensated the bus driver and him with K4,000 plus six pigs. He also maintained that “During the compensation ceremony the First Defendant promised to replace a new bus to the Plaintiff”. This affidavit is relevant to the issue of liability but does not go to the amount of damages recoverable other than to suggest the First Defendant accepted liability for a replacement bus.
   
9. Paul Kapao said he was one of two security escorts who were travelling in the subject vehicle on the day in question. He too said he had received compensation from the First Defendant who he also claimed had promised to replace the bus.
   
10. Det Sgt Edward Tangone was the police officer who investigated this incident. He said he witnesses a conversation between Jenny Reto and the First Defendant during which he sought to achieve an out of court settlement and said he would buy a “brand new bus” but needed more time to do so.
    
11. The second affidavit of Jenny Reto said she obtained a loan when she bought the subject vehicle and a supporting document showed an obligation to make 18 monthly payments of K2,403.55 from September 2011 to February 2013, which gives a total of K43,263.90 inclusive of interest. She did not indicate either what was the cost of the vehicle or the amount borrowed. She went on to claim that, prior to hiring the vehicle to the Electoral Commission, the PMV was doing trips six days a week. Average daily takings were said to be K572. It was also said that the daily costs were K200 for fuel and K40 for the “bus crew”. This affidavit also indicated that the loan was paid off by insurance cover.
    
12. Julie Reto also provided an affidavit in which indicated that (1) her mother, the original Plaintiff, died in 2018 (but did not indicate the date), (2) that her father was granted Letters of Administration on 19 July 2012, (3) that he died on 6 June 2024, and (4) that she was granted Letters of Administration on 29 May 2025.
    
13. Those six affidavits were tendered and were admitted as Exhibits A to F respectively.
    

Submissions for the Plaintiff

14. Ten pages of written submissions, filed on 5 January 2023, were marked for identification as MFI 1. It was suggested the term of the loan was three years but that was not supported by the evidence. After repeating the evidence of average daily takings of K572, that amount was extrapolated, based on six days a week and four days a month, to give a monthly amount of K13,728.
    
15. Submissions were then made under four headings (1) the pre-accident value of the vehicle, (2) loss of business income, (3) exemplary damages, and (4) out-of-pocket expenses. Those submissions are considered below, when considering each of those components of the amount claimed. The total amount claimed was K1,124,336.80, plus interest and costs.
    
16. A further claim was made, said to be based on the Judicial Proceedings (Interest on Debts and Damages) Act 2015, for interest at 8% per annum from the date when the Writ of Summons was filed. Finally, a claim was made for costs.
    
17. Oral submissions did not materially add to the written submissions.
    

Submissions for the First Defendant

18. As the First Defendant’s lawyer had only become involved in these proceedings shortly prior to the hearing, it would have been unreasonable to expect him to respond orally, on the day of the hearing, to the evidence and submissions upon which the Plaintiff relied. Instead, time was allowed for the provision of written submissions which have been marked for identification as MFI 2.
    
19. In relation to the pre-accident value of the vehicle, reference was made to an offer to provide a replacement vehicle that was said to have been made by the First Defendant. However, that cannot be taken into consideration as the affidavit containing that offer does not form part of the evidence tendered during the hearing.
    
20. On this issue, reference was made to the cases of Dumu v Rapilla [2024] PGNC 85; N10738 (Dumu), Kinsim Business Group Inc v Joseph Homepwafi (1997) N1634 (Kinsim), and Coecon v National Fisheries Authority (2002) N2182.
    
21. It was submitted that K43,263.90 was the value of the motor vehicle and that a 15% deduction should be made for depreciation, that being the percentage applied in Dumu.
    
22. On the topic of loss of business, reference was made to the decisions in the cases of Graham Mappa v PNG Electricity Commission [1995] PNGR 171 and Kennedy v Coca-Cola Amatil (PNG) Limited & Anor (2011) N4946 (Kennedy). It was contended that any award of damages should be based on compliance with taxation laws. The First Defendant submitted that an amount of K1,000 per month for five years should be allowed, but with a 50% discount, as was applied in Kennedy.
    
23. A submission was also made that the Plaintiff failed to mitigate her loss by buying a replacement bus, and reference was made to the cases of Kinsim, Livingstone v Rawyards Coal Co (1908) 5 App Cas 25 (HL) and Palaru v Kaule [2023] PGNC 224; N10393 (Palaru).
    
24. It was noted that an award of exemplary damages is discretionary and that the First Defendant had already paid compensation to the Plaintiff, bus driver and bus crew. The amount referred to in the First Defendant’s written submissions was K1,000.
    
25. As to special damages, otherwise referred to as out-of-pocket expenses, it was noted that no amounts had been particularised, and that no supporting evidence had been provided, as required by Order 8 Rule 34 of the National Court Rules,. It was noted that Palaru was a case where no special damages were awarded.
    
26. Further, it was also noted that the Writ of Summons had not made any claim for interest and that Order 8 Rule 29 of the National Court Rules requires that any claims be particularised in the Statement of Claim.
    
27. It was noted that, in Palaru, it was said that interest of 8% per annum, pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 2015, was awarded as it had been claimed.
    

Relevant law

28. As was noted in the Plaintiff’s submissions, cases such as Yange Lagan v The State [1995] PGNC 32; N1369, Paraia v Yansuan [1995] PGNC 25; N1343 and Liwa v Vanimo [2008] PGNC 140; N3486 (Liwa) establish that the Plaintiff’s loss must be proved and not merely claimed.
    
29. In relation to the pre-accident value of the vehicle, although reference was made to an unreported decision (a copy of which was not provided and could not be obtained) and Andrew v Guard Dog Security Services Ltd [2020] PNGC 471; N8735. However, the paragraphs quoted from those decisions clearly show that they each turned on their own facts.
    
30. On the issue of loss of business income, reference was again made to Liwa in which reference was made to the desirability of corroborative evidence from independent sources. In that decision, the question of paying income tax was raised and it was noted that (1) s 11 of the Income Tax Act 1959 imposed a mandatory obligation to pay tax, and (2) that there was no evidence the payment of tax in that case. The question of paying income tax was also referred to in Kei v Hasu [2004] PNGLR 50.
    
31. The Plaintiff’s submissions also referred to the decision Kewa v Lus [2007] PGNC 3 in which the amount claimed for loss of profits was awarded. However, that decision considered that claim in but one paragraph and did not consider either the expenses incurred in gaining income or the obligation to pay income tax.
    
32. It was also submitted that: “It is settled law that individuals who are identified in any civil cause of action for the purpose of damages, they must be held liable for exemplary damages”. That submission must be rejected. While Aimon Aure &Os v Captain Peter Bok and The State [1996] PNGLR85 was cited in support that proposition, it is only necessary to read that decision to find that was case where the court declined to award exemplary damages. The position in relation to exemplary damages was stated in Apa v PNG [1995] PNGLR 43 as follows:
    

A wronged plaintiff, as here, is clearly entitled to substantial damages by way of compensation. But a plaintiff is not entitled, as of right, to exemplary damages. The discretion of awarding exemplary damages, which are non-compensatory but are penal, lies with the Court. That is the situation in common law and under the Constitution. It is, therefore, a matter for determination whether the defendants in this case should be penalised by such an award as well as meeting an award of damages in compensation.

33. Finally, as to out-of-pocket expenses, there was reference to Kalo v Akaya [2007] PGNC 90; N3212 where such expenses were not allowed because it was not pleaded. It was noted that such a claim was pleaded in this case. A submission was made that an award for out-of-pocket expenses should be made “pursuant to Section 155(4) of the Constitution”. That sub-section is worded as follows:
    

The Higher Courts of Justice have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

34. Out-of-pocket expenses, as those words suggest, is a category of damages that permits the recovery of amounts spent as a result of the conduct of the defendant. For such claims, receipts or other documents should be provided. Any suggestion that the Court should pluck a figure out of the air when the Plaintiff failed to prove any out-of-pocket expenses must be rejected.
    
35. The Judicial Proceedings (Interest on Debts and Damages) Act 2015, in s 4(1), provides that:
    

... the court may order a rate as it thinks proper to be applied to the sum for which judgment is given interest, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

Consideration – the case against the Second Defendants

36. As indicated above, on 21 March 2018, the first order made by the court was expressed as follows:
    

Judgment is ordered for the Plaintiff with damages to be assessed.

37. At the time when order was made (1) there was nothing to suggest compliance with s 5 of the Claim By and Against the State Act 1996, (2) no valid basis for a claim against the Second Defendants had been pleaded in the Writ of Summons, (3) there was nothing to suggest either of the Second Defendants had been served with that Writ of Summons, (4) the original Plaintiff’s affidavit in support contained a copy of the hire agreement which specifically provided that she would be responsible for any damage to the vehicle during the hiring period, and (5) that order for judgment did not contain any reference to any defendant.
    
38. It is desirable not only to note that paragraph (b) of the hiring agreement required the original Plaintiff to supply the driver but also to set out paragraph (c) of the terms of that hiring agreement:
    

The Owner shall be responsible for damage to or loss of Vehicle by fire, accident or collision and for all damage to property, persons or animals caused by the Vehicle whether owing to the negligence or default of the Driver or any other person or otherwise and the Owner shall indemnify the Commission in respect of all such damage or loss

39. While it could be said that judgement against the Second Defendants was not and should not have been entered, it is not necessary to consider that aspect as there is nothing in the evidence to suggest that either of the Second Defendants cause or contributed in any way to the events upon which the claim for damages is based.
    
40. Entry of judgement in favour of a plaintiff only goes to liability. Any assessment of damages requires a consideration of what amount the plaintiff should be awarded, noting that (1) the plaintiff must prove the loss claimed, (2) that loss must have been caused by the defendant, (3) the plaintiff is only entitled to a reasonable amount, which may be less than the amount suffered or claimed.
    
41. The Writ of Summons did not indicate any valid basis for a claim against the Second Defendants. Not did the evidence provide support for a determination that the Plaintiff is entitled to recover any amount from the Second Defendants. The Plaintiff’s written submissions did not articulate any basis for recovery by the Plaintiff as against either the person or the entity named as the Second Defendants. The Second Defendants do not appear to have caused the Plaintiff any loss.
    
42. For those reasons, as between the Plaintiff and the Second Defendants, there must be a verdict for the Second Defendants. As those defendants do not appear to have participated in these proceedings in any way at any stage, it does not appear that they can advance any claim for costs. In those circumstances, the appropriate costs order, as between the Plaintiff and the Second Defendants, is that each party should pay their own costs.
    

Consideration – the case against the First Defendant

43. The Plaintiff’s claims are (1) K1,124,336.80, plus (2) interest of 8% per annum, calculated from the date when the Writ of Summons was filed, and (3) costs. Set out below are details of the amount that was claimed:

44. Pre-accident value of the vehicle. The Plaintiff provided three quotes which revealed amounts of K78,000, K74,429.40 and K72,900. Normally, the lowest of those three amounts would be awarded. However, the Plaintiff claimed the highest of those amounts. While no reason was given for claiming the highest quote, it is reasonable to infer that was because that quote was for the same brand of vehicle.
    
45. The registration certificate that was annexed to the first affidavit of Jenny Reto records a registration date of 2 August 2011 and the incident occurred on 24 June 2012 which is ten months later. To award K78,000 would be to give the Plaintiff an element of betterment because she would be getting a new vehicle in place of a vehicle that was ten months old.
    
46. If it be assumed that a new PMV has a usable life of ten years, ten months is 1/12^th of its usable life. Reducing K78,000 by 1/12^th gives K71,500. If the Court was mind to make an award based on those quotes, the court would adopt the lesser of the three quotes, namely K72,900, noting there is an alternative basis that yields a similar amount.
    
47. However, there is a better way to assess this claim of the Plaintiff. It is noted that (1) the Plaintiff did not provide evidence of the cost of the vehicle that was damaged, (2) there was no evidence the Plaintiff paid anything towards the cost of the vehicle, and (3) the evidence in support of an amount of K43,263.90 was based on the finance payments which included both principal and interest. Hence, even an amount of K43,263.90 overstates the cost of the vehicle. Further, the handwritten K5,000.00 written on the business records of the finance company must be disregarded.
    
48. In relation to this claim, the Court makes the following findings:
    

(1) The Plaintiff bought a used PMV for less than K43,263.90, which amount included both principal and interest payable to a finance company.

(2) As that finance had a term of 18 months, a reasonable amount to allow for the cost of that PMV is K40,000.

(3) As that PMV was acquired for about half the cost of a new vehicle, ie K40,000 compared to K78,000, it is reasonable to expect a usable life of five years, which is 60 months.

(4) Since 10 months is 1/6^th of the usable life of the vehicle used by the Plaintiff, a reduction of 15% is reasonable.

(5) Reducing K40,000 by 15% gives K34,000 as the amount that should be awarded under this heading.

49. Loss of profits. The amount claimed, namely K1,037,336.80 was obtained by taking the monthly amount of K13,728, obtained from the average daily takings, applying that amount for the 126 months from 4 July 2012 to 6 January 2023, giving K1,729,728, then discounting that amount by 40% for “contingencies” which gives K1,037,836.80 but, due to an arithmetic error, K1,037,336.80 was claimed.
    
50. The first problem with this claim is that a Plaintiff is not entitled to a loss of income. In this case, to allow a loss of income would overcompensate the Plaintiff because that would not allow for the expenses that were not incurred when the vehicle was not operating. It is noted that the expenses suggested by the Plaintiff, K200 for fuel and K40 for the crew, amounts to 42% of the average takings. That percentage must be considered low because no amounts were indicated for other expenses, such as registration and insurance. It is clear there was insurance because the evidence was that the loan was paid out by the Plaintiff’s insurer.
    
51. To award the Plaintiff income less expenses would still overcompensate the plaintiff because such an award would make no allowance for the obligation to pay income tax. It is unrealistic to ignore tax on the basis that either the Plaintiff will, after judgement, voluntarily pay the amount of tax due or that the Inland Revenue Commission will pursue the Plaintiff for such an amount. The clearly preferable course is to assume the Plaintiff was operating her business legally, which means she was paying tax.
    
52. For the level of income suggested, noting that average daily takings of K572 less expenses of K240 per day gives K332. Applying that amount, as was done in the Plaintiff’s case for six days a week and four weeks in the month gives K7,968 per month, which is K95,616 pa. While the applicable tax rates on that income vary due to tax rates being progressive, ie increasing as income increases, with amounts below the tax-free threshold incurring no tax, the court allows 30% for income tax.
    
53. Starting with the disclosed expenses of 42%, increasing that percentage to 45% to allow for other identifiable expenses omitted from the Plaintiff’s evidence, and adding for 15% to be paid in income tax (30% of the remaining 55% of income less expenses) gives 60% as the appropriate reduction to be applied to average income. The amount so allowed will be the loss of profits, after tax, which is the basis upon which the Plaintiff is entitled to recover.
    
54. However, it remains to consider for what period that claim should be allowed. The period set out in the Plaintiff’s submissions of 126 months, from 4 July 2012 to 6 January 2023 cannot sensibly allowed, given that the Plaintiff was said to have died in 2018.
    
55. It must be noted that, since the insurance company paid out the Plaintiff’s loan, when it became apparent that the First Defendant was not going to buy a replacement vehicle for the Plaintiff, it was open to her to obtain another loan to buy a new vehicle. As the Plaintiff was paying K2,403.55 for 18 months, from 9 September 2011 to 9 February 2013, it is a reasonable inference that she could have acquired a new vehicle by agreeing to pay K2,403.55 for three years as that would give payments of principal and interest totalling K86,527.80 in relation to new vehicles which the quotes suggest would have cost between K72,900 and K78,000.
    
56. There were two reasons why it cannot be said to have been reasonable for the Plaintiff to acquire a replacement vehicle immediately after the accident. First, promises by the First Defendant to buy a replacement vehicle. Secondly, the obligation to make the monthly replacements, which continued until the insurance cover removed that obligation.
    
57. A period of twelve months is considered reasonable to allow for the loss of profits claim as the position in relation to both those reasons would have been clear by that time.
    
58. While it could be said that the Plaintiff’s failure a replacement vehicle amount to a failure to mitigate her loss, the Court considers the preferable basis is that the chain of causation was broken after twelve months in that the Plaintiff’s loss of profits after that period was not caused by the conduct of the First Defendant but was instead caused by the Plaintiff’s failure to acquire a replacement vehicle.
    
59. Taking the average gross takings per month (K13,728), reducing that amount by 60% to allow for expenses and tax, gives a monthly loss of profits of K5,491.20. Multiplying that amount for 12 months gives K65,894.40 for the loss of profits claim.
    
60. Exemplary damages. The Plaintiff wrongly presumed an entitlement to exemplary damages and sought an award of K5,000. A consideration of the circumstances of this case, particularly the voluntary payment of compensation by the First Defendant, does not suggest to the court that any such award is warranted and no basis has been articulated. No amount is awarded for this claim.
    
61. Out-of-pocket expenses. For an amount to be awarded under this heading, supporting documents should have been provided. The Plaintiff sought refuge in a provision of the Constitution but to allow any amount on that basis would not be appropriate as that would operate to remove the need for the Plaintiff to prove the amount claimed. As the submissions for the Plaintiff noted, damages must be proved and not merely claimed. Hence, no amount is allowed under this heading.
    
62. Interest. No amount is awarded for interest as no claim for interest was made.
    
63. Summary. Adding K34,000 for the loss of the vehicle and K65,894.40 gives K99,894.40 as the amount which the Court considers the Plaintiff is entitled to recover from the First Defendant, leaving the claim for costs to be considered. It is noted that such an amount would be sufficient to enable the Plaintiff’s daughter to acquire a new vehicle and conduct the same business as did her mother, if she is so inclined. It is noted there was no evidence that either the husband or daughter of the original Plaintiff were (1) involved in the business, or (2) intended to carry on that business after her death.
    
64. Costs. There does not appear to be any reason why costs should not follow the event (ie the outcome) as between the Plaintiff and the First Defendant. Accordingly, the First Defendant should be ordered to pay the costs of the Plaintiff, as taxed if they cannot be agreed.
    
65. However, the parties did not have an opportunity to make submissions as to costs. Further, there may have been settlement offers that are relevant to the question of costs. In those circumstances, the preferable course is to make what may be termed a rebuttable order and provide an opportunity for written submissions to be filed and served if either party wishes to contend that a different order should be made in relation to costs. If such written submissions are filed, it would be clearly preferable to avoid having to conduct a further hearing on the question of costs.
    
66. The correct Plaintiff. For the sake of completeness, the record should be correct to change the name of the Plaintiff to Julie Reto and to indicate the basis upon which she is the appropriate plaintiff.
    

Orders

67. For the reasons set out above, the orders of the Court will be as follows:
    
    1. The name of the Plaintiff is changed to: Julie Reto as administrator of the estate of the late Mark Reto, who was the administrator of the estate of the late Jenny Reto.
    2. As between the Plaintiff and the First Defendant, verdict for the Plaintiff.
    3. Judgement for the Plaintiff against the First Defendant in the amount of K99,894.40.
    4. As between the Plaintiff and the First Defendant, subject to Order 5, the First Defendant is to pay the costs of the Plaintiff, as taxed if not agreed.
    5. If either party wishes to contend that a different costs order should be made, the following orders apply:

(1) Order 4 is set aside.

(2) Any written submissions in support of a different costs order are to be filed and served by 8 December 2025.

(3) Any written submissions in response are to be filed and served by 19 December 2025.

(4) Any such written submissions may be filed and served electronically, with the filed copy sent to psoon@pngjudiciary.gov.pg and are to include an indication of whether the party accepts that costs should be determined on the papers (ie based on written submissions, without a further hearing).

6. As between the Plaintiff and the Second Defendants, verdict for the Second Defendants.
7. As between the Plaintiff and the Second Defendants, each party is to pay their own costs.

8. Time is abridged so that these orders may be entered forthwith.

Orders Accordingly.

__________________________________________________________________

Lawyers for the plaintiff: Minok & Company

Lawyers for the first defendant: Robert Mai & Company