Jim Tapako Investment Ltd v Coca-Cola Amatil (PNG) Ltd

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Dowa J
• Judgment Date: 22 September 2025
• Neutral Citation: N11492
• Docket Number: W.S NO. 777 OF 2020
• Date: 22 September 2025
• Counsel: J Langah for the plaintiff,N. David for the defendant,Counsel

N11492

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S NO. 777 OF 2020

Between:

Jim Tapako Investment Ltd

Plaintiff

v.

Coca-Cola Amatil (PNG) Ltd

Defendant

LAE: Dowa J

11 April, 12 June 2024; 22 September 2025

CIVIL PROCEEDINGS-Plaintiff claims damages for breach of contract-and for conversion and unlawful deprivation of 7x20ft Containers — whether claim of breach of contract and for conversion proved — Plaintiff proved on the balance of probabilities breach of contract and tort of conversion-Damages — claimant has burden to prove damages with credible evidence — -assessed and damages awarded.

Cases cited

Covec (PNG) Ltd v Kama (2020) SC 1912

Yooken Paklin v The State (2001) N2212

Peter Wanis v Fred Sikiot and The State (1995) N1350

Jonathan Mangope Paraia v The State (1995) N1343

Samot v Yame (2020) N8266

NKW Holdings v Poladin Solutions PNG Ltd, (2020) N8339

Keam investments v Toyota Tsusho (PNG) Ltd (2019) N7859

Titus Tumba v Samson (2020) N8721

Counsel

J Langah for the plaintiff

N. David for the defendant

Lawyers for the plaintiff: Albright Lawyers

Lawyers for the defendant: David & David & Co

JUDGMENT

1. Dowa J: This is a judgment on both issues of liability and damages.

Background Facts

2. The Plaintiff is a trucking company. It claims against the Defendant the sum of K768,937.33 in damages under various heads of damages for breach of contract, tort of conversion, loss of cargo containers and loss of business. The Plaintiff entered a two-year contract with the Defendant to transport its Coca-Cola products from Lae, Morobe Province to the Highlands Provinces along the Okuk Highway. Under the cartage contract the Defendant requested the Plaintiff to provide six trucks and eleven (11) containers. The Plaintiff alleges it performed its obligations under the contract by providing the six trucks with eleven containers. The Plaintiff alleges that the Defendant breached the contract by terminating the contract three months early. On termination the Defendant failed to return the seven of the Plaintiff's containers and continue to use them in its business.

3. Aggrieved, the Plaintiff filed these proceedings seeking damages for breach of contract and for conversion, and loss of income.

4. The Defendants filed a Defence generally denying the claim.

Mediation

5. The matter was initially referred for mediation, but the parties were unable to resolve, and the matter was returned to Court for trial on issues identified during the mediation.

Trial

6. The trial was conducted on 11th April 2024. The Plaintiff called two witnesses. The Defendant offered no evidence. The matter was adjourned to 12th June 2024 for submissions. The Court directed the parties to file their written submissions by 31st May 2024. The Plaintiff filed its submissions on 31st May 2024. The Defendant did not file its submissions. When the matter returned to Court on 12th June 2024, counsel for the Defendant made no appearance. Only the Plaintiff did and presented its submissions. Decision was reserved which I now deliver.

Evidence-The Plaintiff

7. The Plaintiff relies on both oral and the following affidavit evidence:

a. Affidavit of James Perna filed 11th April 2023

b. Affidavit of James Pena filed 10th August 2029

c. Affidavit of Jim Tapako filed 10th August 2023

8. This is the summary of the Plaintiff's evidence. The Plaintiff entered a cartage contract on 27th June 2017 with the Defendant to transport its CCA products to the Highlands Provinces. The contract period was for two years. As part of the terms of the contract the Plaintiff made available six (6) trucks and eleven (11) containers. During the contract period the Plaintiff used 21 vehicles for the haulage. The Defendant terminated the contract around April 2019 when it ceased to engage the Plaintiff's trucks for the haulage duties. The last load was on 3rd April 2019. After the termination the Plaintiff requested for the return of its containers. Four were returned and seven (7) were in circulation and use by the Defendant. On 8th October 2019, the Plaintiff sent a letter charging the Defendant K50 per day for the unreturned containers commencing June 2019. The Plaintiff also suggested to the Defendant to pay off the containers at K4,000.00 each.

9. The Defendant did not respond to the Plaintiff's letter issued 8th October 2019. The Plaintiff sent further reminders, but the Defendant did not respond except for a promise that the containers would be returned once identified and returned from circulation. The Plaintiff then issued demand letters warning the Defendant of recovery proceedings if it fails to settle.

Evidence — The Defendant

10. The Defendant offered no evidence.

Issues

11. The issues for consideration are:

i. Whether the Defendant is liable for breach of contract.

ii. Whether the Plaintiff provided eleven (11) containers at the request of the Defendant.

iii. Whether the Defendant continue to use the seven (7) containers after the return of the four (4) containers

iv. Whether the Plaintiff is entitled to charge the Defendant for the containers

v. What is the appropriate rate to be charged for the use of the containers

vi. Is the Plaintiff entitled to damages for the containers

Burden of Proof

12. The burden of proving the claim rests on the Plaintiff and he must discharge the burden on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and expect to be awarded damages claimed. Refer: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) N1350, Jonathan Mangope Paraia v The State (1995) N1343 and Samot v Yame (2020) N8266.

i. Whether the Defendant is liable for breach of contract

13. The Plaintiff submitted that it entered a valid contract with the Defendant to provide haulage services of the Defendant's Coca-Cola products to the highlands for 24 months commencing 27th June 2017. The Plaintiff submits the Defendant prematurely terminated the contract on or about 3rd April 2019 after the last cartage. The Plaintiff submitted that the Defendant breached the terms of the contract by failing to give fourteen (14) days notice of termination.

14. The Plaintiff's claim is for breach of hire contract. It is a trite law of contract that the following elements be present for a contract to be valid and enforceable:

a) Offer

b) Acceptance

c) Intention to create legal relation.

d) Passing of consideration

e) Capacity of parties

Refer to NKW Holdings v Poladin Solutions PNG Ltd, (2020) 8339, Keam investments v Toyota Tsusho (PNG) Ltd (2019) N7859, Titus Tumba v Samson (2020) N8721.

15. The relevant terms of the haulage agreement in respect of the issues raised in the proceedings are:

i. The Plaintiff was to transport the Defendant's products to the Highlands Provinces at various rates

ii. The contract term was two years commencing 27th June 2017.

iii. The Plaintiff was required to commit six Semi-Trailer Trucks

iv. The parties have liberty to terminate the contract by giving each other 14 days written notice.

16. In the present case, the evidence shows the Plaintiff committed six (6) trucks with eleven (11) containers. It performed its obligations under the contract using 21 of its vehicles. The last load was made on 3rd April 2019. The Plaintiff's trucks were not called upon to deliver cargo for the reminder of the contract period. The Plaintiff enquired with the Defendant and was informed that the contract was terminated. The Defendant opted to use Mapai and Traisa Transporting companies for its cartage requirements.

17. While the Defendant is at liberty to engage other contractors to undertake deliveries for the designated routes under Clause 10.1 of the Contract, the Defendant has not provided evidence in response. What is clear though is the Defendant has failed to give fourteen (14) days notice of its intention to terminate the cartage contract with the Plaintiff as required by Clause 12.1 of the Contract. To that extent and in the absence of rebuttal evidence to the contrary, I find the Defendant has, by its conduct, breached the terms of the contract prematurely and is liable.

ii. Whether the Plaintiff provided eleven (11) containers at the request of the Defendant

18. There is undisputed evidence that the Plaintiff committed six (6) trucks under the contract. It used a total of 21 trucks and 11 containers during the term of the contract. The details of the containers used are set out in the statement of claim as well as in the Affidavit of Jim Tapako. I accept the evidence of Mr. Tapako that the Plaintiff provided and used 11 containers during the term of the contract.

iii. Whether the Defendant continue to use the seven (7) containers after the return of the four (4) containers

19. The Plaintiff submitted that of the eleven (11) containers, only four were returned to the Plaintiff and the balance of seven (7) remain with the Defendant.

20. The Plaintiff's evidence shows on termination of the cartage contract; the Plaintiff's containers were in circulation carting cargo for the Defendant. Commencing July 2019, requests were made for the return of the containers. Only four were collected and returned. This resulted in the Plaintiff charging the Defendant K50.00 per day for unreturned containers commencing June 2019. The Defendant has not challenged the evidence of the Plaintiff. In the absence of evidence to the contrary, I accept the evidence of the Plaintiff and find that seven (7) of the Plaintiff's 20ft containers were not returned and remain in the possession of and use by the Defendant.

21. Part of the Plaintiff's claim is based on tort of conversion. In Covec (PNG) Ltd v Kama (2020) SC1912, the Supreme Court stated the relevant principles to be applied when determining damages for conversion:

“128. The principle that obtains from these authorities then is this: A defendant may pay for the market value only of the materials after they become chattels at...