N11711
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 556 OF 2021

PETER WAINE
Plaintiff

v

BEN PASISI – former Chairman, Moroa Incorporated Land Group
First Defendant

VICTOR VAREO – former Secretary, Moroa Incorporated Land Group
Second Defendant

LESLIE GAH – Chairman, Moroa Incorporated Land Group
Third Defendant

QUINTEN WEIBEAWA – Treasurer, Moroa Incorporated Land Group
Fourth Defendant

MOROA INCORPORATED LAND GROUP
Fifth Defendant

KIMBE: ANDELMAN J
28 NOVEMBER 2025; 13FEBRUARY 2026

DAMAGES – assessment – after entry of default judgement – breach of oral contract – use of vehicle

The plaintiff entered into an oral contract with the defendants in September 2008. The agreement was that he would use his truck to transport members of the fifth defendant and others involved with the Moroa Incorporated Land Group to court hearings in Kimbe on 16 occasions and when they win their case, they would pay him K23,000.

Held:

(1)	The court declines to award any damages.

Cases cited

Oil Search Ltd v Mineral Resource Development Corporation Ltd (2010) SC1022
Thomas Wapi v Sergeant Koga Ialy (2014) SC1370
William Mel v Coleman Pakalia & Ors (2005) SC790

Counsel
 
Mr P Mokae, for the plaintiff
Ms J Waiwai, for the third, fourth and fifth defendants 

1.	ANDELMAN J: This is a decision on assessment of damages. On 1 September 2022 this court entered default judgement in respect of the matters pleaded in the plaintiffs’ writ of summons and statement of claim filed on 9 September 2021.

Pleadings

2.	The plaintiff pleaded the following matters in the statement of claim:

a.	The plaintiff was the owner of a green Toyota Dyna truck trading as Gunax Transport registered as a PMV P540Y. 
b.	The first defendant was a former chairman of Moroa Incorporated Land Group (ILG) and the second defendant was a former Secretary of the ILG.
c.	On or about in September 2008 the plaintiff entered into a verbal agreement with the first and second defendant for the use of the plaintiff’s truck to be used by the defendants for transporting them and members of the fifth defendant from Tarobi, Sisimi and Kae villages to attend the National Court proceedings in Kimbe in relation to a dispute between two factions of the fifth defendant. 
d.	The truck made sixteen runs. The terms of the agreement were that the fifth defendant was to pay K23,000 as charges for the use of the plaintiff’s truck when the first and second defendants clans win the case.
e.	After the conclusion of the case, no payments were made and this dragged over for two years.
f.	 On 25 May 2011 the plaintiff filed a Writ of Summons WS No 556 of 2011 against the second and fourth defendants for the outstanding sum of K23,000.
g.	 When the Writ of Summons was listed for first mention the fourth defendant Quinton Weibeawa contacted the plaintiff urging him to withdraw proceedings and to settle the matter out of court, which he did but no payment was made and as such the defendants are in breach of contract.

3.	The plaintiff made three claims:

a.	Specific performance K23,000;
b.	Interest K18,000; and
c.	Transport costs K18,000.

The Evidence

4.	The plaintiff relied on three affidavits sworn by himself. The defendant relied on the affidavit of the third defendant and two affidavits of the fourth defendant. 

5.	The plaintiff’s evidence in exhibit 1 at paragraph [4] was that the agreement was made ‘on or about September 2008’. It provided that the ILG would pay him K23,000 for the use of his truck to transport persons to and from Kimbe National Court and that ‘when the case was fully determined’ he would receive payment.

6.	He filed proceedings in 2011. He was contacted by the defendants who asked him to withdraw the matter and provide them with his bank account details. Despite numerous letters and requests for payment, nothing eventuated. The plaintiff paid large amount of money to lawyers to progress his claim.

7.	Mr Gah’s evidence was that the persons with whom the plaintiff is alleged to have made the agreement had passed away and that there were no records of the agreement.
8.	Mr Wibeawa denied that he told Mr Waine in 2011 that he would settle the claim and that he was not part of the ILG executive in 2017.

Submissions

9.	The plaintiff submitted that interest should flow from the first time the plaintiff commenced proceedings in 2011 until the date of the trial.

10.	The plaintiff sought special damages for legal costs.

11.	The transport costs were not supported by any evidence but it was submitted that they should be granted as the plaintiff was required to travel from his village to Kimbe to deal with court documents and proceedings.

12.	The plaintiff submitted that his claim is ‘specific performance’ and not for breach of contract and therefore no time bar applies; s 18 Frauds and Limitations Act 1988.

13.	The defendants submitted that the pleading and evidence regarding the contract is too vague and uncertain and no claim for specific performance can be made. The defendants also relied on ss 15 and 16 of the Frauds and Limitations Act 1988.

Consideration

14.	In regard to dealing with issues of liability after the entry of default judgement, in William Mel v Coleman Pakalia & Ors (2005) SC790 Los, Jalina and Cannings JJ stated that a trial judge assessing damages following default judgement should:

make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity;

 if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven;

only if 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.

15.	In Thomas Wapi v Sergeant Koga Ialy (2014) SC1370 Batari, Hartshorn and Sawong JJ stated at [12] that:
... we are of the view that where a judgment, be it default or otherwise, has been entered, and a primary judge determines, after concluding a hearing to assess damages, that the plaintiff has not sufficiently proved his loss or that no cause of action is disclosed in the statement of claim or that the pleadings are defective or that the claim is frivolous or vexatious or is an abuse of process, he is entitled to refuse to make an award of damages. This is in accord with him being able to consider the question of liability for the damages claimed. To dismiss the entire proceeding however, in the absence of any application to set aside, as in this case, the effect of which is to review the decision to enter judgment and to set such judgment aside, is in our respectful view, to fall into error.

16.	On an assessment of damages, the court does need to consider whether the plaintiff has sufficiently pleaded his claim, whether there is a cause of action and whether he has proved his loss. 

17.	This exercise by the court is not a further opportunity for the defendants to file evidence denying liability but the defendants may make submissions as to whether the plaintiff’s claim can be sustained based on the pleadings and evidence before the court.

18.	I consider first whether the claim is time barred. If it is a breach of contract claim, it clearly is time barred by a significant period of time. 

19.	It is pleaded that the contract was entered into around September 2008 but there is no pleading or evidence as to when the payment of K23,000 was due. The statement of claim pleads that the agreement was that the payment would be made when the defendants ‘win the case’. The affidavit states that it was agreed that the payment would be made ‘when the case is fully determined’. However, there is no pleading or evidence as to when the proceedings were finalized and whether the defendants were successful in the proceedings.

20.	The plaintiff has failed to plead or lead evidence as to ‘the date on which the cause of action accrued’; s 16(1)(a) of the Frauds and Limitations Act 1988. The plaintiff filed the first proceeding on 25 May 2011. Even if I assume that this is the date the contract was breached, it would still be outside the six year period if the claim was a breach of contract claim.
21.	The plaintiff submitted that the claim was not a breach of contract but was a claim for ‘specific performance’ pursuant to s 18 of the Frauds and Limitations Act 1988.

22.	Assessment must be made of the essence of the cause of action; Oil Search Ltd v Mineral Resource Development Corporation Ltd (2010) SC1022. In this proceeding the claim is for the unpaid debt of K23,000 based on an oral agreement. 

23.	I do not consider this to be a claim for specific performance, pleading it as specific performance does not make it so as much as calling a cow a pig would make the cow a pig. 

24.	Specific performance is an equitable remedy. It is a remedy which is usually non-monetary based on fairness. Specific performance of a contract usually compels a person to perform an obligation in the contract rather than paying monetary damages. It is usually sought where there is a uniqueness to the contract such as property or a custom made good or service and compensation would be inadequate. This a claim for the unpaid debt of K23,000 pursuant to the oral contract. I consider the cause of action to be a breach of contract.

25.	I am not able to identify the date on which the cause of action accrued but it was sometime before May 2011.

26.	I categorise the cause of action as one ‘founded on simple contract’ and not a ‘claim for specific performance’.

27.	On this basis there is no cause of action; s16(2) Frauds and Limitations Act 1988.

28.	I would also add here that there is no evidence as to why the plaintiff waited for some 10 years before filing the current claim in September 2021. I accept that he may have waited for a year or so in the hope that the matter would be settled once he filed the proceedings in 2011 but there is a complete absence of evidence as to why such a long period ensued.

29.	Turning next to the defendant’s next submission that the contract is unenforceable for lack of clarity. There is no evidence that the defendants were successful in their proceedings which is pleaded as the condition precedent for the payment of K23,000 at [10] of the statement of claim. As such there is an incomplete pleading to make out the breach of contract claim.
30.	This is most unfortunate for the plaintiff, given that he has filed evidence that he has paid large amount of money to four different law firms. Despite this regrettable situation, I have no discretion but to refuse to order any damages.

Orders

1.	The court declines to award any damages.
________________________________________________________________
Lawyers for the plaintiff: Mokae & Associates
Lawyers for the first respondent and the fourth respondent: Emam Lawyers