N11708
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 30 OF 2020 (COMM)

BETWEEN:
DANIEL KOIAM
Plaintiff

V

FRONTIER EQUITIES LIMITED
First Defendant

FRANCIS MICHAEL KRAMER in his capacity as a Director and Chairman of the Board of Directors of Frontier Equities Limited
Second Defendant

ADAM KRAMER in his capacity as a Director of Frontier Equities Limited
Third Defendant

WAIGANI: ANIS J
2 JULY 2025; 20 FEBRUARY 2026

ASSESSMENT OF QUANTUM FOR BREACH OF CONTRACT – whether plaintiff entitled to damages in regard to his first employment with the defendants from 2013 to 2015 – whether plaintiff entitled to damages that were outside of the Court’s findings on liability – whether defendants may seek set-off on claims that had not been pleaded – seeking damages for breach of provision of employment contract as opposed to seeking damages premised on assumptions or predictions on the matters that were at the discretion of the employer and where the discretion was not exercised – calculations of plaintiff’s final entitlements as per his employment contract premised on his 2013 written contract - whether a nominal sum for pain and suffering should be awarded – whether the actions of the defendants warrant exemplary damage to be awarded – whether the actions of the defendants warrant cost to be ordered on solicitor/client basis – consideration – ruling

Cases cited

Daniel Koiam v. Frontier Equities Ltd and Ors (2024) N11120
Hadley v Baxendale (1854) 9 Exch 341
Irafawe v Riwong (1996) N1915
Laki v Alaluku (2002) N2001
Leo Katel v. SGT. Christopher Wash and Ors (2025) N11403
Nambis v. Ling (2023) N10582
Nivini Ltd v. Coconut Products Ltd (2016) N6582
Pako F&C Holding (PNG) Ltd v. Cloudy Bay Sustainable Forestry Ltd (2021) N9141
Rokobada Ltd and 1 Or v. Jiamin Yan and 1 Or (2025) N11342
Samson Kisa v. James Talok and Ors (2017) SC1650
Serah Muingepe Kani v. Barrick Niugini Limited (2024) SC2557
The Administration of Papua New Guinea v. Carroll [1974] PNGLR 265
Toap v The State [2004] 1 PNGLR 191
Yakasa v Piso (2014) SC1330

Counsel:

N Kopunye, for the plaintiff
B Sinen, for the defendants

JUDGMENT ON ASSESSMENT OF QUANTUM

1.	ANIS J: This was a trial on assessment of damages for breach of contract.

2.	The plaintiff was aggrieved after he resigned from employment with the 1st defendant that not all his final entitlements and benefits were fully settled.  He filed this court proceeding on 21 August 2020.  He later amended his Statement of Claim on 28 December 2022 (ASoC).  The plaintiff asserted that according to the terms and conditions of his employment contracts, that he should have been paid accordingly when he resigned in May of 2020.  He also claimed that he suffered damages for breach of contract.  He claimed that the defendants had repudiated his employment contract when they no longer wanted to be bound by its terms and conditions but instead made a new offer of employment to him which were outside his then existing contract.  The plaintiff responded by tendering in his resignation and sued for breach of contract.

3.	On 20 December 2024, this Court ruled in his favour.  In an unreported judgment in Daniel Koiam v. Frontier Equities Ltd and Ors (2024) N11120, the Court’s final orders were as follows:

1.	The first defendant is liable for breach of contract.

2.	The matter shall be returned at 9:30 on 6 February 2025 for directions for parties to prepare for hearing on assessment of damages or for the matter to proceed to mediation.

3.	The first defendant shall pay the plaintiff’s cost of the proceeding on liability on a party/party basis to be taxed if not agreed.

4.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

4.	Assessment of damages hearing was heard on 2 July 2025 before I reserved my ruling to a date to be advised.

RELIEF

5.	I refer to pp.19 of the ASoC.  The plaintiff seeks the following relief:

(1)	An order that the Defendants pay K14,166.67 being for damages for unlawful demotion of employment;

(2)	An order that the Defendants pay K55,725.00 being for damages for failure to provide professional subscription and social club membership.

(3)	An order that the Defendants pay K54,476.57 for unpaid CPI adjustments.

(4)	An order that the Defendants pay K24,791.68 for outstanding annual leave credits.

(5)	An order that the Defendants pay K30,821.53 for outstanding final long serve (sic) entitlements.

(6)	An order that the Defendants pay K14,166.67 for unpaid salaries during the 1 months’ (sic) notice period of termination.

(7)	An order that the 1st Defendant pays for the costs of repatriation.

(8)	An order that the Defendants pay the following damages suffered in relation to loss of the Vehicle (sic):

(i)	K314,166.67 for differences in salaries between KCH and the 1st Defendant;

(ii)	K60,900.00 for loss of superannuation contribution from KCH.

(9)	Pursuant to Judicial Proceedings (Interest on Debts and Damages) Act 2015 interest at a rate of 8% per annum (to accrue daily) on the total of all the monetary relief claimed from the date of termination of employment being 2nd May 2020 until the date of judgment and at a rate of 10% per annum (to accrue daily) on the total of all the monetary relief claimed from date of judgment to settlement of all the judgement debt in full.

(10)	General Damages for pain and suffering.

(11)	Exemplary Damages.

(12)	A declaration in the nature of Specific Performance that the Plaintiff is entitled to 2% of all shares issued by the 1st Defendant.

(13)	An order in the nature of Specific Performance that the Defendants forthwith take steps as are stipulated by the Companies Act 1997 to register with the Registrar of Companies the Plaintiff as the owner of 2 % of all shares issued by the 1st Defendant.

(14)	The Defendants (either by themselves and or through their servant/s and or agent/s) be restrained from taking steps or omitting to take steps that will adversely affect and or dilute the quality, quantity and value of the shares of the 1st Defendant.

(15)	Costs on a Solicitor/Client basis.

EVIDENCE

6.	Evidence were tendered by consent of the parties.  

7.	The plaintiff tendered 2 affidavits, that is, both were his affidavits filed 18 February 2025 (Document No. 36, Exhibit P1) and 14 April 2025 (Document No. 40, Exhibit P2) respectively.  The defendants tendered 4 affidavits as follows:

•	Affidavit of Francis Michael Kramer filed 17 February 2021, Document No. 9, Exhibit D1;
•	Affidavit of Francis Michael Kramer filed 7 April 2021, Document No. 13, Exhibit D2;
•	Affidavit of Francis Michael Kramer filed 12 January 2023, Document No. 21, Exhibit D3;
•	Affidavit of Francis Michael Kramer filed 24 March 2025, Document No. 38, Exhibit D4.

ISSUES

8.	The main issues are, (i), whether the plaintiff can claim compensation in regard to all the reliefs that are pleaded in the ASoC, and subject to the Court’s findings on the first issue, (ii), whether the plaintiff has established causes or entitlement for compensation in regard to the established reliefs, and, (iii), how much or what sort of compensation should the Court award for each relief that is proven?

UNLAWFUL DEMOTON OF EMPLOYMENT

9.	Before I deal with the first pleaded relief, I remind myself that the claim was for breach of contract, and that I have found the 1st defendant liable in that regard, that is, for breaching the plaintiff’s employment contract (Employment Contract).

10.	In regard to the relief unlawful demotion, I note the submissions of the parties on the matter.  However, I observe and find this claim ambiguous.  It suggests to me as a cause of action or tort for damages for unlawful demotion of employment which, in my view, is contrary to the premise of the main claim which was for breach of contract.  Also, and based on the submission of counsel for the plaintiff, it appears similar to relief 6 which is the relief or compensation that the plaintiff seeks for the one month’s notice period before resigning from the company.  Also, I note that the allegation of demotion had been relied upon by the plaintiff to argue that the 1st defendant had, by offering a lower position to him, repudiated the Employment Contract.  Further, the undisputed facts show that plaintiff did not wait around to suffer “any unlawful demotion” but rather, he proceeded to tender his resignation and sued the defendants for breach of contract.

11.	For these reasons, I also reject the claim for this relief.

PROFESSIONAL SUBSCRIPTION & SOCIAL CLUB MEMBERSHIP

12.	The second relief (professional subscription and social club membership fees) sought is based on clause 7.5 and Item 24 (in the Schedule) of the Employment Contract.  These clauses read:

7.0  UTILITIES AND OTHER BENEFITS
……
7.4  The Employer will pay for two social club memberships, being the Royal Papua Yacht Club and Royal Port Moresby Golf Club.
…..
SCHEDULE
…..
Item 24:	Professional Subscriptions and two (2) Social Club Membership

13.	I note the submissions of the parties on this matter.

14.	I make the following observations:

•	I note that the plaintiff is seeking compensation for breach of the said provision;
•	The plaintiff is not making an express claim under this head of damage for loss of benefit or enjoyment that it had not enjoyed due to the failure on the part of the 1st defendant to pay the 2 subscription fees;
•	Based on his pleadings in the ASoC and his oral and written submissions to the Court, he is seeking reimbursements of the subscription fees to be awarded to him as compensation for breach of contract;
•	According to the terms of the contract, it is not expressly clear as to how payment may be made, that is, whether the 1st defendant will make the payment directly to the 2 social clubs, or whether it will pay the monies to the plaintiff to make the payments to the 2 social clubs, or whether the plaintiff will make the payments directly and seek reimbursements from the 1st defendant;
•	However, what was certain from this arrangement or the intention of the clause of the contract in my view was that the money was to be paid to and received directly by the 2 service providers by the 1st defendant;
•	What is also certain from the facts of this case which is not disputed is that Clause 7.4 had been breached in that the 1st defendant had not made any subscription fee payments to the 2 social clubs;
•	It is also not disputed that the plaintiff did not make any direct subscription fee payments to the 2 social clubs and had provided invoices to the 1st defendant for reimbursements;
•	Does breaching the said clause therefore entitles the plaintiff to receive the full subscription fees for each year?;
•	I am inclined to answer this question in favour of the 1st defendant;
•	I am also inclined to accept the 1st defendant’s submission that the social club membership benefit was a non-cash benefit and that it was incapable of being redeemed in cash at the end of the plaintiff’s employment tenure in 2020;
•	But should the 1st defendant be held liable for compensation for breaching the said provision?;
•	I am inclined to answer the second question in favour of the plaintiff.

15.	The Employment Contract stipulates that the subscription and social club fees shall be paid by the 1st defendant to these service providers.  They were to have been paid by the 1st defendant and received by the 2 social clubs and not the plaintiff, which, and in my view, makes the relief as pleaded, unattainable or baseless.  Considering it at a different perspective, if the clause of the contract was to be enforced and request made to the Court in that regard, to grant an order for payment of the subscription or social club fees to the plaintiff would contravene Clause. 7.4, not to mention the fact that the contract has ended, thus makes the clause obsolete in terms of enforcement.

16.	Premised on my observations as a whole, I am also of the view that because clause 7.4 was breached, that compensation for a lesser sum may be assessed and awarded to the plaintiff.  It would be unfair or unjust if no award at all is made by this Court for the said breaches which were recurrent from 2015 to 2020.

17.	I will award a sum of K2,000 for breach of clause 7.4.  I will also calculate the breach committed for each year, that is, from the date of re-employment on 5 June 2015 to the date of resignation on 2 May 2020.  I multiply K2,000 by 5 years and get K10,000.00.  

18.	I award K10,000 for breach of clause 7.4 of the Employment Contract, that is, for failure by the 1st defendant to pay the 2 social club membership fees of the plaintiff during his tenure as its employee.

UNPAID CPI ADJUSTMENTS

19.	The next relief claimed for is Unpaid CPI adjustments.

20.	The relevant clause of the employment contract is 4.4 which states:

4.4	The Salary shall be reviewed periodically but not more than once in every calendar year.  The Salary may be increased, but not reduced, having regard to the increases in the Consumer Price Index, the responsibilities of the Employee, remuneration available in the work force outside the Employer for persons with responsibilities and experience equivalent to those of the Employee and the performance of the Employee.  Any review shall be not less than the upward movement in the Consumer Price Index since the last date upon which the salary was fixed.

21.	I note the submissions of the parties on this matter.

22.	I make the following observations:

•	There is no issue that clause 4.4 was breached by the 1st defendant from 2015 to 2020;
•	The period before that is irrelevant given my findings on liability, that is, where I found, amongst others, that the plaintiff had resigned in 2015 before he was re-employed and that the same terms and conditions of his 2013 employment contract applied until his resignation in 2020;
•	The 1st defendant does not appear to have good grounds to oppose the plaintiff’s claim for this relief;
•	The 1st defendant says it does not question the capabilities of the plaintiff in his employment;
•	However, it refers to the alleged poor performances of the company at the material time and states that premised on that, that did not think or consider that the plaintiff was entitled to CPI increases; that that was the fundamental reason why it did not implement the said clause in the Employment Contract; exhibits D1 to D4;
•	I find the 1st defendant’s arguments inconsequential to the matter at hand;
•	I observe that this is not a hearing where I am being ask to decide whether the 1st defendant should have implemented clause 4.4 or why it had not implemented clause 4.4 from 2015 to 2020; rather, this is a case where liability on breach of contract has been established and where I am conducting a hearing on assessment;
•	it was not disputed that clause 4.4 was breached because the mandatory CPI reviews that were supposed to occur at least once a year were not conducted as required;
•	and the 1st defendant was found liable for breach of clause 4.4;
•	The question now is how much compensation should be awarded to the plaintiff for this breach and what method of calculation should I adopt to make the assessment;
•	I observe that no method of calculation was provided by the 1st defendant;
•	I observe that the plaintiff has provided his method of calculation.

23.	When I turn my attention to the evidence, I make the following observations:

•	The 1st defendant addresses the matter at paras. 9 to 12 in Exhibit D4;
•	Apart from stating and interpreting clause 4.4, Mr. Kramer gives similar evidence on the financial status or cash flow issues of the 1st defendant from 2013 to 2019;
•	Mr Kramer, for the 1st defendant, did not make proposed calculations on what the Court should consider and award as CPI increases under this claim;
•	The plaintiff on the other hand gives evidence of calculations of what he says should be percentages of CPI increases to be added to his base salary of K170,000 (before tax); he also attached as Annexure A to Exhibit P1 an extracted page of CPI records which was sourced from Bank of Papua New Guinea on 17 February 2025;
•	The plaintiff’s assessment of the relief suggests that he applied 5% to 6% as his proposed CPI increase.

24.	I am minded to make a monetary award to the plaintiff under this relief.  However, let me remind myself that in my decision on liability, I found that the plaintiff had been paid his entitlements from the period 2013 to 2015, that is, premised on his original written employment contract.  As such, calculations or CPI considerations will only apply from the time the plaintiff was re-employed in 2015 to the time of his resignation or termination of employment in 2020.  The other qualification is this.  Although I may, in this case, use the plaintiff’s calculations as a guide, I cannot accept them as realistic or reasonable formats that I should adopt.  Assessment, in my view and as I have applied above, will be premised on breach of clause 4.4 itself rather than to speculate on what reasonable CPI increase rate I should apply for each of the years and how much increase I should allow for each year from 2015 to 2020.  Such a role, according to the contract, was bestowed upon the 1st defendant.  

25.	Clause 4.4 states in mandatory terms that the plaintiff’s salary must be reviewed at least once a year.  Then it goes on to say that it may be increased but that it cannot be reduced.  What this means to me is this; that upon a mandatory review of the plaintiff’s salary, the 1st defendant may decide to increase the plaintiff’s salary or it may decide against increasing it.  In the present matter, it is not disputed that no such meetings were ever had between the parties per year from 2015 to 2020.

26.	My role in this assessment, as stated, is not to implement clause 4.4 or calculate what percentage of the CPI increase on the plaintiff’s salary I should apply for each year from 2015 to 2020 and then make an award based on these assessments.  Rather, my role is to award compensation for breach of the said clause.

27.	I observe that CPI increases in PNG between 2015 to 2020 were at an average between 4% and 5%.  The sources I take into account include information obtained from the National Statistic’s Office web-page that was published on 4 November 2024, and also from information furnished in the web-page of a research platform called Macrotrends at www.macrotrends.net. 

28.	The period of breach is 5 years, that is, from 2015 to 2020 (2015 to 2016, 2016 to 2017, 2017 to 2018, 2018 to 2019 and 2019 to 2020).  I am inclined to award a sum of K8,000 as compensation for each year that clause 4.4 was breached.

29.	The final award I make is K40,000 as compensation for breach of clause 4.4 of the employment contract.

OUTSTANDING ANNUAL & LONG SERVICE-LEAVE CREDITS

30.	The next claim for relief is outstanding annual and long service leave credits.

31.	This is not difficult to assess.  It will be, in my view, a matter of cross-checking the records.  However, if the facts are contested then I will rule on them first before proceeding to calculate quantum.

32.	The relevant clauses are 10, 11, and item 11 of the Schedule, of the Employment Contract, and I set them out herein:

10.0  ANNUAL LEAVE

10.1	The Employee will be entitled to be paid leave prescribed by law as prescribed in item 11 of the Schedule for each twelve months of continuous service, at the time or times agreed to by the Employer, in addition to local public holidays of approximately eight days per year.  Where any public holiday falls within an employee’s period of paid leave and is observed on a day that, in the case of that employee, would have been an ordinary working day had he not been on leave, there shall be added to that leave period an ordinary working day, for each day of that public holiday.

10.2	Leave is to be taken at such times as agreed with the Employer.  When the Employee leave, the leave periods start from the time of leaving the office on leave and finishes at the end of the leave period.

10.3	The Employer will provide the Employee with return economy air tickets between the place of employment as per item 16 of the schedule and the place of recruitment annually specified in item 12 of the schedule in respect of this annual leave.  These amounts are not payable in cash.

10.4	At the end of the term of this Contract or on the earlier retirement or termination of the Employee by the Employer all accrued leave of the Employee shall be calculated and the Employer shall pay the amount of such leave to the Employee in addition to all other amounts payable to him.

11.0  LONG SERVICE LEAVE

11.1	The Employee is entitled to 6 months paid long service leave after 15 years of continuous employment with the Employer.  Accrued pro rata entitlement arises after three years continuous service which is payable on termination of employment.

11.2	If the Employee decides to spend the whole or part of his long service leave at the place of employment he is still entitled to the conditions applicable under this Contract in respect of, accommodation, a home telephone, utilities, motor vehicle school fees and other employment related benefits.

11.3	If the employee continues to be employed after taking long service leave, or has continued to be employed after the 15th anniversary of his employment, such continuity of employment shall not in any way affect his employment benefits that are prescribed for under this contract.
……

SCHEDULE
……

Item 11:	Number of Annual Leave Weeks – Three (3) weeks.

33.	I note the submissions of the parties on the 2 matters.

34.	In regard to accrued annual leave, I make the following observations:

•	Although this matter was not specifically addressed in detail by counsel, the 1st defendant opposes any payment of this relief, which is captured in the 1st defendant’s submission as well as in its adduced evidence under Exhibit D4;
•	The plaintiff deposes his evidence on the matter in exhibits P1 and P2; Exhibit P2 was filed in response to Exhibit D4;
•	This is a matter where I will observe the burden of proof requirements and, first, consider and determine whether the burden was discharged by the plaintiff.  If the burden of proof has been discharged by the plaintiff on the matter, I will proceed to consider whether the 1st defendant has satisfactorily established its defence on the matter.  If I am satisfied that the defendants have satisfactorily established their defence on the matter, I will consider whether the burden of proof shall shift back to the plaintiff to disprove the evidence of the defendants thereby sustaining his claim for accrued annual leave credits;
•	The plaintiff pleads this relief at paras. 71 to 81 of the ASoC and claims a total of 7 weeks accrued annual leave which adds to a total sum of K24,791.68;
•	In support of that claim, the plaintiff relies firstly on his depositions contained in paras. 32 to 40 in Exhibit P1;
•	The depositions appear strikingly similar to his pleadings on the matter in his ASoC;
•	At this juncture, I am satisfied that the plaintiff, being entitled to accrued annual leave has made out a case where the burden of proof shall now shift to the defendants to disprove by evidence;
•	Having considered Exhibit D4, I observe that Mr. Kramer has provided detailed evidence of the company’s records and annual leave that had been taken by the plaintiff at the mater time (from 2015 to 2020); I observe that relevant correspondences and email records are also attached as Annexure A to Exhibit D4 to support the 1st defendant’s defence, which is that the plaintiff had taken more or in excess of his allocated annual leave credits as per the terms and conditions of the Employment Contract;
•	I observe the defendants’ evidence as credible; I do not see how the records could have been manipulated or changed for any sinister motive; the 1st defendant appears upfront in producing its records of the plaintiff’s annual leave; it appears to have provided all the information on the matter that it has and within its knowledge, as evidence to the Court to support its contention;
•	I observe and find that the burden of proof, given that the defendants have sufficiently provided evidence to defend themselves, shall shift back to the plaintiff to disprove or discredit, that is, in regard to the defendants’ evidence;
•	I observe that the plaintiff has provided his response in Exhibit P2; the plaintiff disputes the veracity of the supporting documentations that were attached to Mr. Kramer’s affidavit; the plaintiff also alleges inconsistencies in Mr. Kramer’s depositions on the matter by referring to an earlier letter dated 17 February 2021 which is marked as Annexure K to Exhibit D1;  
•	Regarding the letter of 17 February 2021, I observe that the letter was sent on a “without prejudice” basis, thus, the argument concerning inconsistencies raised by the plaintiff, in my view, has no valid basis;
•	In regard to plaintiff’s complaint that the 1st defendant’s evidence were insufficient to show that he actually took those leave dates, I am not convinced that the defendants’ has any more evidence than what it has provided to the Court; I also find these evidence sufficient; the leave dates that were taken informally through verbal notifications cannot be proven in any other way; I also observe that if the plaintiff had not taken leave on those dates as shown in the evidence of the defendants, he has that burden to prove that which he as not;
•	I also observe from the plaintiff’s evidence in Exhibit P2 that he does not expressly deny taking leave on those informal leave dates; having not denied taking annual leave on those respective dates that were already proven by the defendants and then expecting the defendants to prove that he actually did take those annual leave, in my view, runs contrary to the burden of proof which rests on the plaintiff to establish;
•	The plaintiff has not provided any independent information to support his assertion except what he has deposed to in his evidence;
•	In conclusion, I find that the plaintiff has failed to discharge the burden of proof for this relief.

35.	I therefore find, as a matter of fact, that the plaintiff had used up all his accrued annual leave credits that he was entitled to under the Employment Contract and therefore the relief is denied.  

36.	In passing, I observe that the fact that the defendants may have permitted the plaintiff to take annual leave beyond what he was entitled to in the Employment Contract is inconsequential to this hearing and the material issue that this Court is being asked to consider.  Thus, any submissions made in that regard are not relevant and I refuse to deal with them.

37.	I turn my attention now to the next relief which is pro-rata long service leave.  I note the submissions made by the parties for this relief.

38.	The defendants agree that the plaintiff should be paid his pro-rata long service leave credits which they submit totals 42.44 days.  The caveat or qualification to the concession, as submitted, is that the period of accrual should be confined from 2015 to 2020.

39.	Premised on my decision on liability, I will uphold the defendants’ submission in that regard.  My assessment on pro-rata long service leave will be premised on the period from 5 June 2015 to 2 June 2020.  The calculation method applied by the defendants (Annexure B to Exhibit D4) on this matter appears to be in order with slight variations that I will make.  I will accept the total number of accrued days which is 42.44 days.  I will round that to 4 fortnights and 2 days.  I divide K170,000 by 26 and get K6,538.46 which is the net salary per fortnight.  I multiply K6,538.46 by 4 fortnights and get K26,153.85.  And finally, I multiply K465.75 (which is the per day salary rate) by 2 days and get K931.50.  Finally, I add K26,153.85 with K931.50 and get K27,085.35.

40.	I will award K27,085.35 to the plaintiff as his outstanding accrued long service leave benefits that remains to be paid by the 1st defendant.

41.	I note the defendants’ submission that the Court should discount the sum from the ‘over-payment of annual leave’ that the defendants claim had been paid and received by the plaintiff at the material time.  I, however, reject this submission for the same reason as stated earlier, which is that the issue of overpayment of annual leave is not (has never been) properly before this Court to consider and rule on; no crossclaim or pleading was made in that regard.  cases: Samson Kisa v. James Talok and Ors (2017) SC1650, Irafawe v Riwong (1996) N1915, Laki v Alaluku (2002) N2001, Toap v The State [2004] 1 PNGLR 191, Yakasa v Piso (2014) SC1330 and Serah Muingepe Kani v. Barrick Niugini Limited (2024) SC2557. 

1 MONTH NOTICE

42.	The plaintiff also claims that he was not paid his salary for the 1 month notice period that he gave to the defendants notifying them of his intention to resign or terminate the Employment Contract.

43.	The requirement to give 1 month notice to terminate the Employment Contract by the plaintiff and to receive salary for the duration of the notice period is stipulated under clauses 19.2 and 20.1(a)(i) of the Employment Contract.

44.	The defendants do not deny that they did not pay the plaintiff’s salary for the duration of the month.  However, they argue that the reason why they did not pay the plaintiff was because he never turned up for work during the notice period.  They also argue that he never performed any services for the defendants at the material time.

45.	The plaintiff argues that it was during the covid period, and that premised on directions that had been issued by the government, that he had to work from his residence at the material time or during the notice period.

46.	I note the submissions of the parties on the matter.

47.	I observe that the defendants do not strenuously oppose this claim.  Regardless, I am satisfied that the plaintiff has discharged his burden of proof.  He deposes evidence of that at paras. 48 to 55 under Exhibit P1 and 44 to 55 under Exhibit P2.  The main considerations I take into account to arrive at this decision are:

•	the fact that the 1 notice period was issued during the time of the covid pandemic;
•	the plaintiff has attested to this fact;
•	in support of that, he also attaches a copy of a letter dated 16 March 2020 from Employers’ Federation of Papua New Guinea which was sent by the Federation to its members informing them to observe and practice health and safety measures against the virus at their work places;
•	the fact that the plaintiff had expressly stated in his 1 month notice letter that due to the corona virus pandemic, that he was going to work at home during the notice period but that if they required him to attend work then they should let him know;
•	the fact that the defendants did not adduce any evidence that shows that they had responded immediately or soon after his letter, which I should therefore assume for this purpose that they did not require him to be physically present at the office at the time.

48.	I am therefore minded to make orders for payment of the plaintiff’s salary for the 1 month notice period as required under the Employment Contract.  I will apply the similar method of calculation, that is, I will make the assessment premised on the K170,000 let salary per annum of the plaintiff.  I multiply K465.75 (which is the per day salary rate) by 30 days (which is the estimated month) and get K13,972.50.

49.	I award K13,972.50 as the sum that is payable by the 1st defendant to the plaintiff for the 1 month notice period.

COST OF REPATRIATION

50.	The next relief sough is repatriation.

51.	This expense is included under clause 17 of the plaintiff’s employment contract.  Clause 17.2(a) states as follows:

17.2  The Employer shall provide for the following expenses for repatriation:

(a)	One-way economy air tickets to the place of recruitment specified in item 12 of the Schedule for the employee and any dependents.

52.	The Defendants have in their oral and written submissions conceded to this relief.  However, they submit that they are minded to pay K3,258 which would cover the repatriation cost of the plaintiff and his 4 dependents as declared in his Salary and Wages Tax Declaration Form S3.

53.	The plaintiff claims a total sum of K6,090.00 under this relief.  His claim includes airfares of 6 dependents, bus fares per person from Mt. Hagen to Minj, and expenses for food and beverages.  

54.	I note the submissions of the parties on the matter.

55.	I observe that the plaintiff did not produce any evidence to substantiate his deposition that he has 6 dependents.  Mr. Kramer’s evidence on the other hand and in my view appears as credible where he deposes in Exhibit D4 that the plaintiff’s dependents as recorded with the 1st defendant is 4 and not 6.  He bases his deposition on the company’s record.  For purposes of this assessment, I am minded to accept the total number of the plaintiff’s dependents as 4 and not 6.

56.	Because of the practical difficulty in making a quantified assessment on one-way tickets for the plaintiff and his 4 dependents, not to mention that I do not know whether the dependents are all children or not or whether some are and some are not, their names and also the exact cost for each of the tickets, I prefer to and will follow the terms of the contract on the matter.  Without determining a figure, I will make an order for the plaintiff to submit the names of his 4 dependents to the 1st defendant and I will order the 1st defendant to issue one-way economy class open tickets to them, including the plaintiff, from Port Moresby to Mt. Hagen.

57.	Clause 17.2(c) also states that reasonable rations are to be provided for the duration of the journey.  I am minded to allow K50 per person including the plaintiff which will be a total of K250.00.  Bus fare fee is not included in the clause of the contract so I will discard this item to be included.

58.	I will make orders in that manner including an order for a cash payment of K250.00.

DAMAGE FOR LOST OPPORTUNITIES

59.	The plaintiff also seeks this relief lost opportunities under these two headings:

(i)	K314,166.67 for differences in salaries between KCH and the 1st Defendant;

(ii)	K60,900.00 for loss of superannuation contribution from KCH.

60.	I note the submissions of the parties on this matter.

61.	Having considered the detailed pleadings for these reliefs in the ASoC, I observe that both reliefs are directly associated with a separate purported oral contract which I have ruled out in my decision on liability.  I will therefore dismiss these reliefs for this reason alone.

62.	The question of remoteness of damage was also raised by the defendants, thus requires attention.  In this leading case Hadley v Baxendale (1854) 9 Exch 341, the Court sets 2 tests that should be applied when a court is considering whether a relief may be regarded as too remote to grant.  The Court stated in part:

We think the proper rule in such a case as the present is this: where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.

63.	Carmody J in Leo Katel v. SGT. Christopher Wash and Ors (2025) N11403 summarises them at para. 36 of her decision as follows:

36.  As a result Courts must consider whether the damages suffered by the plaintiff are too remote as they are not a natural consequence of the breach or were not the type of damages the parties considered would arise at the time of entering into the contract.

64.	If we apply the 2 tests, first, the 2 relief sought (i.e., differences in salaries between KCH and the 1st Defendant and loss of superannuation contribution from KCH) cannot be regarded as damages that may be suffered or would arise as natural consequences for breaching the Employment Contract, and second, when the parties, by their conduct adopted the Employment Contract, they did not contemplate or it was not foreseeable that these 2 damages would arise if the Employment Contract was breached by the 1st defendant.

65.	For these reasons, I refused to grant the reliefs that are sought herein.

GENERAL DAMAGE FOR PAIN & SUFFERING

66.	The plaintiff also seeks general damages for pain and suffering.

67.	I note the submissions of the parties on this relief.

68.	This relief may or may not be sought, and the National Court has in some cases granted the relief and in other cases refused especially in claims for breach of contract or where commercial transactions are concerned; where monetary value or a wrong could easily be calculated and awarded as compensation.  Damages for pain and suffering are more associated with non-pecuniary relief or losses such as personal injuries, tort or battery.  See cases:  Nambis v. Ling (2023) N10582 at para. 34, Pako F&C Holding (PNG) Ltd v. Cloudy Bay Sustainable Forestry Ltd (2021) N9141 at para. 36, The Administration of Papua New Guinea v. Carroll [1974] PNGLR 265, Nivini Ltd v. Coconut Products Ltd (2016) N6582 and Rokobada Ltd and 1 Or v. Jiamin Yan and 1 Or (2025) N11342.

69.	In Rokobada Ltd and 1 Or v. Jiamin Yan and 1 Or (supra), the National Court stated, which I adopt herein, the following:

34.  The plaintiffs also seek general damages, that is, for the duration of the Stated Period.

35. The first question I ask is this.  Can the plaintiff seek such damage in a claim that is premise on breach of contract?  The answer to that is this.  If damages suffered in a claim for breach of contract are quantifiable (pecuniary losses), then that is how a party may be compensated or be awarded damages.  If it is difficult to quantify damages or assess quantum (non-pecuniary losses), then Courts may consider and award general damages.  See cases:  Nambis v. Ling (2023) N10582 at para. 34, Pako F&C Holding (PNG) Ltd v. Cloudy Bay Sustainable Forestry Ltd (2021) N9141 at para. 36, The Administration of Papua New Guinea v. Carroll [1974] PNGLR 265 and Nivini Ltd v. Coconut Products Ltd (2016) N6582.  

36.  I also adopt what Chitty on Contracts, Volume 1 - General Principles, 26th Edition (1989) has stated on application of general damages by the Court.  I quote in part at page 1117 as follows:

General damages are given in respect of such damages as the law presumes to result from the infringement of a legal right or duty: damage must be proved but the claimant cannot quantify exactly and any particular items in it.  (Underlining is mine)

37.	 In the present matter, various damages, compensations and awards for breach of contract have been quantified and made or considered in favour of the plaintiffs.  It was not difficult to quantity the damages that were suffered by the plaintiff in their claim for breach of contract.  A substantial sum has already been awarded totaling about K1.5 million.

38.	 As the plaintiffs’ claim for breach of contract was quantifiable and assessments had been made in that regard, I decline to make a general award for general damages for the Stated Period.

70.	The damages sought for breach of contract in this matter, except for the claim of stress and anxiety which is pleaded, are quantifiable, and I have and am considering them herein.

71.	Let to turn to the claim for mental anguish, stress and anxiety which is pleaded at para. 125 of the ASoC, and in so doing, make the following observations:

•	the plaintiff gives evidence of these at paras. 71 to 73 in Exhibit P1 and paras. 50 in Exhibit P2;
•	he attaches as part of his evidence a copy of a summary report of visitations that he obtained from Paradise Private Hospital dated 12 February 2025;
•	It appears as a summary report;
•	There are no direct evidence of specific or specialist treatments received in regard to the matters that the plaintiff had complained of;
•	Records of high-blood pressure and related symptoms as recorded are just that, and I could merely speculate with this evidence as to what the said entry could mean or relate to without the necessary qualifications or specificities;
•	However, without considering this summary report, the Court does have a discretion to make an award based on proper or reasonable considerations;
•	In this case, it is safe to assume, premised on the fact that the defendants had caused the termination of employment of the plaintiff (when they repudiated his Employment Contract by their conduct in unilaterally offering him a new contract to sign), that the plaintiff has or would have suffered some form of stress or mental anguish;
•	The adduced evidence at the trial on liability, as well as the adduced evidence of the parties that are now before this Court, showed or shows that the defendants may have forced or applied pressure on the plaintiff to sign a new contract without his approval or agreement or without properly consulting him, which had resulted in his resignation;
•	The Court also noted that at para. 30 of its decision on liability where it said:

30.  I uphold the submissions of the plaintiff that clause 3.2, which was a fundamental clause of the 2013 Contract, had been breached by the defendants.  The parties were bound by the 2013 Contract and its terms and conditions.  According to the contract, the plaintiff’s substantive position was Chief Investment Manager.  The plaintiff, as revealed in the evidence and which is also not disputed, also held the position of Acting Chief Executive Officer of the first defendant from time to time, premised on the same terms and conditions of the 2013 Contract.  The correct process, had the defendants wanted to offer the plaintiff the position Senior Analyst, was to terminate the 2013 Contract before making a fresh offer to the plaintiff, or they could have re-negotiated the terms and conditions of employment with the plaintiff on mutual terms.  In this case, evidence adduced shows that the defendants had made unilateral decisions on the matter.  Evidence of that or for one to make this presumption, is where the defendants, without appreciation or regard to the terms and conditions of the 2013 Contract, prepared and forwarded the new draft employment contract for the position of Senior Analyst to the plaintiff to sign.  That, in my view, constituted one of the acts of repudiation of the 2013 Contract by the defendants; they no longer wished to be bound by the 2013 Contract but to move on to a new one; they also did not recognize the full terms and conditions of the 2013 Contract.

72.	I am therefore minded to make a nominal award for pain and suffering in favour of the plaintiff.  

73.	I award of K8,000 as damages for pain and suffering.

EXEMPLARY DAMAGE

74.	The next relief sought is exemplary damage.  It is pleaded at para. 127 of the ASoC.

75.	I note the submissions of the parties on this matter.

76.	This issue is not a difficult one, and on that note, I must say that I am not minded to make any award in that regard in favour of the plaintiff.  The matter is complex in the sense that it was not clear from day one what the terms and conditions of employment were given the precarious facts and circumstances of the case.  The plaintiff was initially employed under a written employment contract, which I described in my earlier decision as the 2013 contract.  Before the contract expired in 2016, the plaintiff resigned in 2015, received his final entitlements, and left for further studies.  However, he returned shortly afterwards, and without the parties discussing his employment terms or entering into a new one, the plaintiff was re-employed where he continued to work with the 1st defendant under his earlier position where he was paid and where he received benefits, in similar terms like his 2013 contract.  In 2017, the plaintiff received offers from this company Kumul Consolidated Holdings Ltd and negotiated or attempted negotiations with the defendants to increase or better his terms and conditions of employment with the defendants.  The plaintiff, despite these 2 offers, remained and continued to work with the 1st defendant.  Then in 2019, the defendants offered him a new position with a new proposed written employment contract.  The plaintiff refused to sign or part-take in offer and so he resigned and sued for breach of contract.

77.	All these facts made it complicated when the parties tried to settle out of court.  Each party interpreted the facts and law according to their own terms or understanding based on advice received from their lawyers.  Had this been a straightforward employment contract that was terminated without any twisted factual background or situations like in this case, I could have ruled otherwise and perhaps consider making an award for exemplary damage.

78.	This was a matter that had to come before a National Court for proper consideration and determination of liability.  It was not a straightforward matter.  The same can be said for this assessment hearing.

79.	I also consider the fact that the plaintiff is not totally successful in this proceeding.  Some of his claims were dismissed including the relief that he seeks in this assessment hearing.  These are evidence or factors that show or prove that the defendants were not unreasonable in their arguments, counter offers or discussions with the plaintiff throughout the course of this proceeding.

80.	I therefore dismiss this relief.

2% SHARE CLAIM

81.	The next relief claimed for is a sum equivalent to 2% of the shares of the 1st defendant.  It is pleaded at paras. 37(a), 41, 42, 43 and 44 of the ASoC.

82.	I note the submissions of the parties on this matter.

83.	I make the following observations:

•	The 2% share offer was initially made to the plaintiff in the 1st defendant’s offer letter dated 25 March 2013 (Annexure D2 of Exhibit D1).  The letter reads in part:

“In addition, at no cost to you, the Board has set aside two percent of the total current shares of FEL to be made available to you for your contributions in setting up of Frontier Equities Limited subject to performance.  Besides that, there are options available for senior management to purchasing more shares into the company once we have established the value of the company in the first 12 months.”

•	The plaintiff’s employment contract was signed the following month on 2 April 2013;
•	The 2% share offer was reflected under clause 4.6 and Item 17 of the Schedule, in the plaintiff’s 2013 contract; they read:

4.6	The employee may be paid a performance bonus by the Employer at the discretion of the Board calculated in accordance with item 17 of the Schedule.
…….

Item 17:	Staff Share Scheme (SSS) entitlement of up to 2% equity in the company subject to performance and SSS Policy to be drawn up.

•	I observe (and as I have also ruled in my earlier decision regarding clause 38.3) that the offer letter did not or could not have formed part of the 2013 contract; 
•	Mr. Kramer also acknowledged that fact and law at para. 16 in Exhibit D4 where he said:

“16.	The provision of the free share interest in FEL was based on the terms of the Written Contract and no other additional verbal or written correspondence that preceded the written agreement.”

•	I observe that this performance bonus, according to the express terms of the Employment Contract, was entirely within the discretion of the Board of the 1st defendant; therefore, this Court, in my view, cannot assume or pretend to perform the role of the Board and proceed to assess and award compensation in that regard;
•	clause 4.6 is express, and if I can paraphrase it this way, that even if the plaintiff had performed extremely well during each of the 5 years that he served, it would not have automatically caused the Board to pay him a performance bonus (i.e., offering him 2% shares in the company) or invoke clause 4.6; in other words, the Board could have also decided against invoking clause 4.6 under such favourable circumstances;
•	I observe that the plaintiff, for this relief, is seeking declaratory orders and orders for specific performance of clause 4.6;
•	Premised on my reasonings, I am not minded to grant this relief;
•	Other arguments that were raised at length by the parties, including the performance of the 1st defendant at the material time, are, in my view, inconsequent to the central issue and reasonings of this Court.

84.	I therefore reject this relief.

INTEREST

85.	Awarding interest in this assessment hearing is discretionary.

86.	The applicable legislation is Judicial Proceedings (Interest on Debt and Damages) Act 2015.

87.	I am minded to award interest following the commonly applied rate which is 8% per annum.  This rate is also conceded to by the parties.  I will award interest at 8% per annum to apply and accrue from the date of filing the proceeding to the date of judgment.  I am minded to and will also order interest to re-accrue 30 days after the date of service of the judgment order if the judgment remains unsettled in full.  See s.6(3) & (4), Judicial Proceedings (Interest on Debt and Damages) Act 2015.

PROPOSED SUMMARY OF QUANTUM

88.	I summarise the quantum awards as follows:

Relief
	Amount awarded	Comment	
1. Unlawful demotion of employment 	Nil 		
2. Professional Subscription and Social Club Membership 	K10,000		
3. Unpaid CPI Adjustments	K40,000		
4. Unpaid annual leave credits	Nil		
5. Unpaid Pro-rata long service leave credits	K27,085.35		
6. One month notice period	K13,972.50		
7.  Repatriation 	K250	Plus 5 one-way economy class open tickets to be issued by the 1st defendant in the names of the plaintiff and the 4 dependents (whose names will be identified and forwarded by the plaintiff to the 1st defendant )
	
8. Lost opportunities	Nil		
9. Pain and Suffering	K8,000		
10. Exemplary/Punitive	Nil		
11. 2% Share	Nil		
			
Total:	K99,307.85		

AWARD OF INTEREST ON QUANTUM

89.	Let me now apply interest to the assessed quantum.

90.	I observe and rule that interest will not initially apply to the repatriation costs as ordered by the Court.  However, if payment for the K250 is not made within 30 days after receipt of this Court Order, then interest will also accrue for the said sum to the date that it is fully settled.

91.	I calculate interest as follows.  The final calculated quantum, which is K99,307.85 (Judgment Sum) less K250 is K99,057.85.  The claim was filed on 21 August 2020.  This decision is delivered on 20 February 2026.  Therefore, the total period is 5 years, 5 months (i.e., up to 21 January 2026) and 29 days (the date of the order is excluded from computation).  Eight (8) percent of K99,057.85 equals K7,924.63.  I begin by dividing K7,924.63 by 365 days and get K21.71 which is the estimated interest per day.  I multiply K7,924.63 by 5 years and get K39,623.15.  For purposes of calculating interest per month, I will estimate the days per month as 30 days.  So, I multiply 5 months by 30 days and get 150 days.  With that, I multiply 150 days by K21.71 and get K3,256.50.  Then I multiply K21.71 by 29 days and get K629.59.  

92.	And finally, and to obtain the final total interest sum, I add K39,623.15 with K3,256.50 and K629.59 and get K43,509.24.

93.	The total interest I award in relation to the Judgment Sum (less the interest for the sum K250 awarded for repatriation costs) is K43,509.24.

94.	So, in summary, the Judgment Sum of K99,307.85 plus interest, which is K43,509.24, add to K142,817.09.  This sum and the order for payment of 5 one-way tickets are now due and owing to the plaintiff by the 1st Defendant as the judgment of this Court.

COST

95.	An order for cost is discretionary.

96.	The plaintiff seeks cost for this assessment hearing to be assessed on solicitor/client basis.  Its main argument is that although the matter was mediated after entry of the judgment on liability, the defendants were unreasonable and did not settle, which was why assessment had to be heard and decided by the Court.  The defendants on the other hand submit that each party should be ordered to pay their own costs for this assessment hearing.  They argue that the plaintiff has exercised his right to ask the Court to consider and make an assessment on quantum.  The defendants submit that bulk of the relief sought were unreasonable or speculative which was why they refused to settle and which was why the matter was properly brought to the National Court to resolve.

97.	I note the submissions of the parties on this matter.

98.	I am minded to award cost for this assessment hearing in favour of the plaintiff.  I am also minded to apply the party/party cost scale for taxation purposes.

99.	The main considerations I take into account to reach this decision include the following:

•	The complex nature of the matter;
•	My earlier ruling on liability where I awarded cost in favour of the plaintiff on a party/party basis to be taxed if not agreed;
•	The substantial reduction of quantum from more than 1 million kina sought by the plaintiff to a final sum less than K150,000.00.

ORDER OF THE COURT:

100.	I make the following orders:

1.	Judgment is entered in favour of the plaintiff against the 1st Defendant in the sum of K99,307.85 (Judgement Sum).

2.	Interest is calculated at the rate of 8% per annum on the judgment sum less K250 (repatriation expenses) from the date of filing this proceeding on 21 August 2020 to the date before the date of this judgment, which is assessed in the sum of K43,509.24.

3.	The Judgment Sum inclusive of interest that is due and payable is K142,817.09.

4.	The K142,817.09 is due and payable by 1st defendant to the plaintiff within 30 days from the date of pronouncement of this decision if the defendants are present or within 30 days after the date of service of this order upon the 1st defendant, whichever first occurs.

5.	If the K142,817.09 is not paid in full by the 1st defendant within the required period as ordered by this Court, interest at 8% per annum shall accrue on the Judgment Sum after the expiry of the 30th day within which the 1st defendant is required to pay the Judgment Sum and interest until the Judgment Sum is settled in full.

6.	The 1st defendant is ordered to pay 5 one-way open economy class tickets for the plaintiff and 4 of his dependents from Port Moresby to Mt Hagen.

7.	The 1st defendant shall pay the plaintiff’s cost for this assessment hearing on a party/party basis which may be taxed if not agreed.

8.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly

________________________________________________________________
Lawyers for the plaintiff: Kopunye Lawyers	
Lawyers for the first, second and third defendants: Leahy Lewin Lowing Sullivan