N11601
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 510 OF 2022 - IECMS

LEPI YAMBA
Plaintiff

V

GABRIEL UMBA
First Defendant

JOHN BOMAI
Second Defendant

WAIGANI: CARMODY J
21 NOVEMBER 2025

PRACTICE AND PROCEDURE- defence and counter-claim filed but not served in breach of O. 8 r. 4 of the NCR and court orders – repeated failures to appear despite notice – judgment with respect to liability – admissions O. 9 r. 30 (1) of the NCR. 

DAMAGES - unjust enrichment - assessment of damages - recovery of price paid for vehicle and costs of repairs - proof and corroboration – failure to provide all receipts – incorrect calculation as to damages by the plaintiff - discretion of the Court on damages.

Brief facts

The plaintiff entered into an oral agreement with the first defendant, on behalf of the second defendant, to purchase a Toyota registered under the name of the second defendant. The Toyota was not roadworthy. The price was K20,000 to reflect its poor condition. Upon payment the second defendant was to transfer ownership to the plaintiff. 

The plaintiff paid for and took possession of the Toyota and paid for extensive repairs and accessories while waiting for the second defendant to transfer the ownership. The second defendant did not. Instead, the defendants, with police assistance, retrieved the Toyota. 

The plaintiff sought to recover the purchase price and the monies he had expended by having the vehicle repaired. The plaintiff claimed the repairs were extensive. Some but not all invoices were in evidence before the Court. The mechanic who undertook the repairs deposed to the range of work undertaken.

Held:

The defendants are in breach of the agreement and have been unjustly enriched by:

1.	retrieving theToyota for which the plaintiff had paid them K20,000; and

2.	having been enriched at the expense of the plaintiff by enjoying the benefits of the moneys paid by the plaintiff to restore the Toyota to a roadworthy state and in fitting it out with accessories.

Judgment is entered for the plaintiff in the mount of K42,850.

Cases cited
Alfred Alan Daniel v Pak Domoi Ltd (2009) SC970
Naki v AGC (Pacific) Ltd [2006] N5015
MVIT v Tabanto [1995] PNGLR 214
Severinus Ampaoi v. James Tauriko & 1 Or [2012] PGSC 3; SC1166
Yakasa v Piso (2014) SC1330
Yange Lagan and Others v The State (1995) N1369

Counsel
Mr J. Goava for the plaintiff
No Appearance for the defendants

JUDGMENT

1.	CARMODY J: On 12 December 2022 the plaintiff filed a writ of summons. His claim was with respect to an oral agreement whereby he paid K20,000 to the first defendant on behalf of the second defendant for a Toyota. The Toyota was to be transferred into the plaintiff’s name. After paying for the Toyota the plaintiff claimed he spent K47,000 in repair costs to restore the vehicle to a roadworthy state and legal fees. Once the plaintiff had paid the purchase price and had it restored the defendants retrieved the vehicle for their own use. 

2.	The plaintiff’s Statement of Claim described the cause of action as “the unlawful removal of the motor vehicle”. The cause of action was not pleaded as well as it might be. It appears to me that although the claim was more in the nature of a breach of contract, “moneys had and received” and “unjust enrichment” claim, it was sufficiently clear so that the defendants were not in any way uncertain as to the nature of the claim. See Yakasa v Piso (2014) SC1330.

3.	After a number of court appearances, at which neither defendant appeared despite having filed (but not served) a defence and counter-claim and despite having notice, on 13 February 2025 I made orders entering judgment with respect to liability in default of appearance. This is the judgment with respect to an assessment of damages.

BACKGROUND

4.	The plaintiff entered into an oral agreement on 7 September 2022 with the first defendant, on behalf of the second defendant (his father), to purchase a Toyota Land Cruiser 10-Seater (“the Toyota”) registered under the name of the second defendant. The second defendant authorised the transaction and gave his consent via telephone to the first defendant to arrange the sale. 

5.	The second defendant, who was not in Port Moresby at the time of the transaction, was to transfer the ownership of the car to the plaintiff upon his return from Simbu. He failed to do so.

6.	The Toyota was not roadworthy. The purchase price of K20,000 reflected its poor condition. The plaintiff paid the K20,000 and took possession of the Toyota. He bought spare parts and accessories and retained a mechanic and claimed that he paid K47,000 for the repairs pending the second defendant transferring the ownership to him. After the plaintiff had paid for the repairs and the Toyota was again roadworthy the defendants enlisted the police to retrieve the Toyota. The police did so, I have presumed, on the basis of proof of ownership by the second defendant.

7.	The plaintiff commenced proceedings on 12 December 2022 claiming a total of K67,000 being the purchase price, the costs of spare parts and accessories, the  mechanic’s labour costs and legal fees.

8.	The defendants filed a defence and counter-claim on 10 January 2023 but did not serve it. 

9.	The matter was listed for 10 September 2024 however the defendants failed to appear. They were ordered to serve the defence and counter-claim on the plaintiff by 30 September 2024. They did not. They were also ordered to file their respective affidavits of service by 4 October 2024. They did not. The matter was returnable on 14 October 2024.

10.	On 11 September 2024 the plaintiff’s lawyers wrote to the defendants advising them of the orders of 10 September 2024 and of the 14 October 2024 court date and suggested they retain lawyers. The letter was hand delivered to the first defendant who signed it in acknowledgement of its receipt on 6 October 2025.

11.	 On 14 October 2024 the defendants again failed to appear. They were ordered to comply with the orders of 10 September 2024 and serve their defence and counter-claim by the new date of 4 November 2024. They did not. An additional order was made that if a party failed to comply with the orders of 14 October 2024 or failed to appear that judgment may be entered for the plaintiff or the proceedings dismissed, depending upon the defaulting party. 

12.	 On 13 February 2025 the defendants failed to appear. The defence and counter-claim had not been served. Default judgment with respect to liability was entered with damages to be assessed. 

13.	Assessment of damages was to proceed on the papers with the plaintiff to file and serve an affidavit with respect to receipts for work undertaken. The plaintiff did. The defendants were to file and serve any affidavits upon which they intended to rely with respect to damages. They did not. 

Plaintiff’s Claim

14.	In his claim for unlawful removal of the Toyota the plaintiff sought the return of the K20,000 purchase price and K47,000 restoration costs. The Plaintiff particularised his claim as follows:

A.	K20, 000.00 being money rightfully belonging to the plaintiff except paid over to the first defendant who received the same on his own behalf as well as on behalf of the second defendant in exchange for the motor vehicle.

B.	K47,000 being the reasonable costs of mechanical and body repairs including all necessary accessories for the motor vehicle restoration, 

C.	Special Damages;

Defendants’ Defence and Counter-Claim

15.	The defendants’ defence and counter-claim was filed but not served in breach of both O. 8 r. 4 of the National Court Rules (“NCR”) and various court orders. It was not, therefore, before this Court and I pay no regard to it.

16.	Similarly, the counter-claim is not before this Court having not been served. However, out of an abundance of caution, and to clarify that the proceedings are now finalised, I formally dismiss the counter-claim. 

Plaintiff’s Evidence of the Agreement

17.	The Plaintiff relied on the following affidavits: 

(1)	Affidavit by the plaintiff filed 13 of February 2025;
(2)	Further affidavit by the plaintiff filed 24 of February 2025; and
(3)	Affidavit in support by Andrew Goii filed 24 of February 2025.

18.	The plaintiff deposes in his affidavit filed 13 February 2025, at paragraph 4, to having paid K20,000 in “hard cash” on 7 September 2022. He says he paid the K20,000 to the first defendant on behalf of the second defendant at the defendants’ family’s home in the presence of their family members and gives the street address. It is the same address to which the plaintiff’s lawyer’s letter was addressed (being also the address on the defence and counter-claim). 

19.	He goes on to state that prior to the purchase there were telephone calls between the first and second defendants “respectively on their agreement to sell the vehicle to me without delay”. He says it was also agreed that the second defendant was going to transfer ownership to him when the second defendant returned from Simbu to Port Moresby. The second defendant returned but did not transfer the ownership to the plaintiff. 

20.	The plaintiff says significant work was done on the Toyota and items purchased totaling K47,000 while he waited for ownership of the vehicle to be transferred to him. He says he was shocked when on 1 October 2022 the first defendant visited him at his local Church and asked him to return the Toyota. He refused to do so. The defendants then reported him to the police who took the Toyota and returned it to the defendants.

21.	He notes that on 6 October 2022 his lawyers wrote a letter to the first defendant, which the plaintiff hand delivered, demanding payment of K67,500 (I note the claim is for K67,000 only). In paragraph 14 the plaintiff deposes to an acknowledgment by the first defendant of the debt and an undertaking to pay it on 29 October 2022:

14. Acting on such verbal instructions, Mr. Goava of Sannel Lawyers caused a letter dated 06 October 2022 to be forwarded to the First Defendant, demanding amongst others, full payment within 14 days of receipt of the letter. The letter was personally delivered by me on the same date as the letter (6.10.22) to the First Defendant and he acknowledged receipt of the same by signing it with his handwritten comments…. “I Gabriel U. Umba, I received on 6.10.22 at Boroko Police Station Motor S/Office. I will pay back on 29.10.22, Thank you.”

22.	Annexure “A” to that affidavit is the letter. The letter specifies that the amount to be repaid is K67,500 and states that it attaches copies of invoices and receipts (the affidavit on the court file has only one attachment). The letter refers to the demand for the defendants to repay the funds “to fully settle our client [sic] and such directions for your settlement was given to you by the Motor Squad Police Officers when you all attended at their office at Boroko Police Station on Wednesday 5th October 2022.” The letter bears the handwritten notation referred to in the plaintiff’s affidavit. There is, therefore, if I accept the notation was written by the first defendant, an admission with respect to the total debt claimed.

23.	Order 9 rule 30 (1) of the NCR states: 

30. Judgement on admissions
(1) Where admissions are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, direct the entry of any judgement or make any order to which the applicant is entitled on admissions.

24.	In Severinus Ampaoi v. James Tauriko & 1 or [2012] PG SC 3; SC1166 the Court stated that:

68. According to Sub-rule 1 of Rule 30, there are two situations by which judgments by admissions may be entered against an opposite party. The first situation is where admissions are made in pleadings of a party, for example, a defendant makes an admission in its defence to owing a sum of money to the plaintiff. The second situation is where admissions are made in other circumstances by virtue of the expression “otherwise”. In our view, the expression “otherwise” would cover situations where admissions are made in a party’s witness’s affidavit, answers to interrogatories etc: see Alfred Alan Daniel’s case (supra), John Kul-v-The State (2010) N3898 and TNA Limited-v-Paul Kua & Konga Coffee Limited (2011) N4225.

25.	It is my view that the “admission” falls within O. 9 r. 30 (1). The provision extends to documents other than pleadings by the words “whether by his pleading or otherwise”. Unlike the circumstances described in Re. Severinus Ampaoi (supra) the admission in the case before me is contained in the plaintiff’s affidavit and not in a defendant’s affidavit. However, the acknowledgment is handwritten by the first defendant. Consistent with the principles espoused in cases such as Alfred Alan Daniel v Pak Domoi Ltd (2009) SC970 the meaning of the admission is clear and unambiguous, provides a date by which the debt will be repaid, and is signed by the first defendant. The signature appears the same as that on the letter of 11 September 2024.

26.	In the absence of any material filed by the defendants by way of rebuttal the plaintiff’s evidence remains unchallenged with respect to the admission and I am entitled to rely on it – which I do.

27.	In the event that I am incorrect in finding that the notation is an “admission”, I, quite separately, exercise my judicial discretion and accept the plaintiff’s evidence with respect to the payment of the K20,000 to the first defendant (the K47,000 for repairs will be discussed separately). That is so for the following reasons. First, his various affidavits deposing to the events are comprehensive and detailed and correspond with the contemporaneous letter sent by his lawyers prior to the commencement of proceedings. Second, the 6 October 2022 letter states that there was an agreement by the first defendant to pay the debt made in the presence of Motor Squad Police Officers at Boroko Police Station. The plaintiff would have known that if his version of events was false there is a risk that police officers might be called to rebut his evidence. That is not a risk that, in my view, a plaintiff would entertain unless what he deposed to was true. For those reasons I accept that the plaintiff paid K20,000 to the first defendant for the Toyota.

28.	However, the admission with respect to the K20,000 purchase price is one thing – the admission with respect to the K47,000 is quite another. That is because the K47,000 relates to moneys expended returning the Toyota to a roadworthy state. For that aspect of the claim evidence is required which satisfies this Court that the money was spent. That is so because an award of damages is discretionary and dependent on a Court being satisfied as to the damages or loss suffered. The requirement for credible evidence remains even in cases of default judgment:

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. (1995) N1369, Injia J. Yange Lagan and Others v The State 

29.	 I turn now to consider the plaintiff’s evidence with respect to the work done on the Toyota.

Plaintiff’s Claim – Inconsistencies in Evidence or Errors in Calculation

30.	There are a number of inconsistencies and inaccuracies in the plaintiff’s claim – some of which I have not been able to clarify. For example the claim is referred to in affidavits in amounts of, variously, K47,000, K47,900, K67,000 and K67,500. 

31.	The Statement of Claim (“SoC”) is for a total of K67,000 being the purchase price of K20,000 plus the repair costs of K47,000.

32.	The Plaintiff’s affidavit filed on 13th February 2025, has as annexure “B” which is an “invoice” prepared by the plaintiff of the amounts the plaintiff alleges he has spent. The total is for K67,500 being the purchase price of K20,000 and K47,500 for replacement parts and repairs.

33.	In contrast there is another annexure “B” to the plaintiff’s affidavit filed 24 February 2025 containing a table produced by the plaintiff. The table is headed “Summary of Total Estimated Amount Paid or Incurred as Reasonable Costs for the Plaintiff” and sets out the total loss as K47,900 including the K20,000 purchase price.

NO	DESCRIPTION OF ITEM		
			
01	Principal Amount (K20,000) Paid by the
Plaintiff to the first defendant	20,000.00	
			
02	Mechanic Payment	4,000.00	
			
03	Panel Beating & Spray Painting Costs	9,150.00-annexure A	

			
04	E.F.T Workshop Limited	9,750.00-annexure B	
			
05	Legal Fees for Sannel Lawyers	5,000.00-annexure C	

06	Total Estimate Costs for the Plaintiff	47,900.00	

34.	It is apparent that the claim for K67,000 “double dips”, so to speak, the K20,000 purchase price. It is my view that this is either an inconsistency in the claim or an arithmetical error. The evidence discussed below in this judgment does not amount to a K67,000 claim. For that reason I have disregarded the claim in the SoC for K67,000 but am prepared to proceed on the basis the claim is for K47,900.

Evidence of Expenses Incurred by the Plaintiff

Evidence of the Mechanic

35.	Mr Andrew Goii, in his affidavit filed 24 February 2025, swears to being a “mechanic by trade” with a client base extending from around his community at 8 Mile to a wider community of friends and customers in the National Capital District. He attached a photo of his licence. He says that he agreed to repair the Toyota for “a reasonable labour cost of K4,000”.  He sets out the payments he received from the plaintiff and the dates on which he received the various payments. 

36.	He states that he “started preliminary inspections on the motor vehicle and then prepared a list of items including parts and accessories for the motor vehicle repair works”. He goes on to state that he worked on the “motor vehicle engine repairs including associated interior refurbishments” and attaches photographs of the Toyota. The photographs demonstrate that the Toyota was in a complete state of disrepair. Broken and corroded and damaged items and surfaces are apparent throughout the photographs. The work required to restore theToyota to a roadworthy state was clearly extensive and comprehensive. 

37.	In conclusion Mr Goii swears to “All the repair works including refurbishment of the interior was completed and after the motor vehicle was given a road test, I was satisfied and so was the Plaintiff on the successful outcome of our labour and efforts.”

38.	Mr Goii’s evidence corresponds with a number of aspects of the plaintiff’s evidence which I discuss below. Given the fact that he attached his licence and is therefore willing to be formally identified and, in addition, given the extent of the state of disrepair demonstrated in the photographs, I accept Mr Goii’s evidence unreservedly. 

Plaintiff’s Evidence of Expenses Incurred – Mechanic’s Fees

39.	The plaintiff deposes, in his affidavit filed 24 February 2025, to part-payment to Mr Goii on various dates, of a total of K4,000. His evidence corresponds with that of Mr Goii. I accept the K4,000 payment was made and accept the claim for that amount.

Plaintiff’s Evidence re Legal Fees

40.	The plaintiff deposes, in his affidavit filed 24 February 2025, to paying legal fees in the amount of K5,000 and attaches, as Annexure “C”, copies of those receipts. I accept those fees have been paid by the plaintiff. I note the final receipt is dated 14 February 2025 and that further work was done after that date. However legal fees are not normally recoverable as part of a claim. Instead, they are accounted for in the form of a costs order. A costs order to that effect will be made in these proceedings. 

Plaintiff’s Evidence – Equipment for Repairs - Panel Beating & Spray Painting 

41.	With respect to panel beating and spray painting the plaintiff states, in his affidavit filed 24 February 2025, that he bought various parts and accessories for panel beating and spray painting with the assistance of Mr Andrew Goii. This is consistent with Mr Goii explaining that he made out a list of items needed for the repair works. The plaintiff produced a number of receipts evidencing the purchase of these items but explained that there were some for which he had no receipts. He explained their absence as follows:

6.I did not expect to face a situation such as the one I am going through, wherein the owners of the Motor Vehicle have seen fit to come back to purportedly reclaim the Motor Vehicle it had agreed to sell to me on a ‘as is where is’ basis after it was mutually delivered to me in its ‘un roadworthy condition’ in exchange for the amount of K20,000.00 cash. I was in a state of rush to attend to a complete repair of the Motor Vehicle hence most of the Motor Vehicle parts including accessories were purchased at the wreckers and or small auto repair outlets operating on the streets, etc.…

8.I verily believe that I have spent an estimated amount of about K9,150.00 cash or thereabout being for payments for the various parts and accessories for Panel Beating and Spray Painting for the following items:

1.	Bodywork & Painting			K3,200.00
2.	Floor Repairs				K1,500.00
3.	Rear Bumper Repairs			K0,500.00
4.	Front Bumper Repairs 			K0,850.00
5.	Removal & Replacing Windscreen		K1,200.00
6.	Replacing new headlamp			K1,200.00
7.	Wiring					K0,700.00
TOTAL	K9,150.00

42.	The latter figure of an estimated K9,150 is the only amount for which the plaintiff does not have some form of evidence of payment from an independent source. I note here the well established principle that:
 
Corroboration of a claim is usually required and the corroboration must come from an independent source. Albert Baine v The State (1995) N1335, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, Lenalia AJ.

43.	Often, in situations such as this, Courts adopt the practice of either denying the claim or, in the event the plaintiff’s statement is to some degree credible, reducing the estimated amount by a percentage to allow for exaggeration or lack of precision in recollections. However, in this case the photographs annexed to the affidavit of Andrew Goii demonstrate that a very substantial amount of work needed to be done in the way of panel beating, spray painting and wiring in addition to replacing the windscreen, a headlamp and other body repairs. For that reason I take no issue with the estimated figure of K9,150.00. That figure is accepted.

Plaintiff’s Evidence – Replacement Parts

44.	At paragraph 7 of the plaintiff’s 24 February 2025 affidavit he states:

7.I am not in a position to provide all receipts of my various payments for parts accessories for the repairs on the Motor Vehicle, except for the 4 separate payments to E.F.T. Workshop Ltd made between 24 August 2022 and 25 September 2022 inclusive. A total amount from the 4 payments was K9,700.00. Annexed and marked “A” is a true schedule of payments showing 4 payments and the various motor vehicle parts with the respective payment receipts.

45.	Annexure “A” consists of 4 tables produced by the plaintiff and headed “E.F.T. WORKSHOP LIMITED”. It lists spare parts and accessories purchased by the plaintiff. It is a typed reproduction of the handwritten invoices also forming part of annexure “A”.  Those invoices bear the business stamp E.F.T. Workshop Limited and are signed and dated. The table assists the Court in the sense that it clarifies the handwriting. The total amount is of K 9,700.The tables are reproduced below:

E.F.T. WORKSHOP LIMITED

A.	RECEIPT NO.3377601 - DATE: 24.08.2022

NO	DESCRIPTION OF ITEM(S)	UNIT	AMOUNT PAID(K)	
				
01	Alternator	1	500.00	
02	Starter motor	1	700.00	
03	Radiator	1	500.00	
04	Radiator Hose	1	30.00	
05	Radiator Clamp	1	20.00	
		SUB TOTAL	1,7500.00	

B.	RECEIPT NO.3377623 - DATE: 14.09.2022

NO	DESCRIPTION OF ITEM(S)	UNIT	AMOUNT PAID(K)	
				
01	Front Torque Rod Ham	2	1,200.00	
02	Complete Rear Spring	1	800.00	

				
		SUB TOTAL	2,000.00	

C.	RECEIPT NO.3377640 - DATE: 18.09.2022

NO	DESCRIPTION OF ITEM(S)	UNIT	AMOUNT PAID(K)	
				
01	Front Door Trim’s	2	300.00	
02	Rear Door Trim’s	2	300.00	
03	Floor Mat	1	200.00	
04	Door Handles	3	150.00	
05	Front Door Glass(left/right)	2	500.00	
		SUB TOTAL	1,450.00	

D.	RECEIPT NO.3377669 - DATE: 25.09.2022

NO	DESCRIPTION OF ITEM(S)	UNIT	AMOUNT PAID(K)	
				
01	Complete 10 Seater Seats	6	4,500.00	
				
		SUB TOTAL	4,500.00	

E.	(A+B+C+D)	=	GRAND TOTAL		K9,700.00

46.	Those details correspond with the attached invoices. Although the prices seem, in certain cases, to be on the high side, this is nevertheless a ten seater vehicle so that multiples of a number of objects need to be purchased rather than the smaller numbers usually necessary for a family car. For that reason and on the basis of the combination of the signed invoices and photographs I am prepared to accept the amount claimed of K9,700.

Special Damages

47.	In the Plaintiff’s Statement of Claim, special damages were sought. The Plaintiff did not plead any particulars with respect to special damages. Nor did the plaintiff provide any evidence with respect to special damages in any of the affidavits that were filed. It may be that it was envisaged that legal fees were part of a special damages claim. However legal fees cannot usually be categorised as damages (although there are some exceptions not relevant for the determination of this case.) In any event the plaintiff is entitled to recover legal fees by a costs order. For the reason just given the special damages claim is dismissed. 

CONCLUSION

48.	 It is clear from the evidence before me that the plaintiff and defendants entered into an oral agreement that the plaintiff would purchase the Toyota for K20,000. The second defendant was required to transfer ownership of the Toyota to the plaintiff. He did not. The evidence provided by the plaintiff establishes that:

(a)	he paid K20,000 for the purchase for a 10 seater Toyota in an extremely decrepit state of disrepair; and
(b)	he spent K22,850 (deducting the K5,000 in legal costs) to restore the Toyota to a roadworthy state.

49.	Once the Toyota was restored the defendants enlisted the police to retrieve the vehicle. They have, therefore, breached the agreement, taken the Toyota into their possession, retained the moneys from the sale, and are unjustly enriched having derived a benefit from the improvements to the Toyota at the plaintiff’s expense.

50.	Given the reprehensible nature of their conduct I have exercised my discretion with respect to the date from which interest is to be calculated – it is to commence from the date on which the first defendant acknowledged the debt in writing and undertook to repay it. That date is 6 October 2022. 

ORDERS

1.	Judgment is entered in the plaintiff’s favour in the amount of K42,850.

2.	The defendants’ cross-claim is dismissed.

3.	The defendants are to pay interest at the rate of 8% calculated from 6 October 2022 until final settlement pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act 2015.

4.	The costs of this proceeding are to be paid by the defendants, to be taxed if not agreed.

5.	The time for the entry of these Orders is abridged.

6.	The file is to be closed.
________________________________________________________________
Lawyers for the plaintiff: Sannel Lawyers