Richard Puara v Larry Andagali and Others

• Jurisdiction: Papua New Guinea
• Judge: Shepherd J
• Judgment Date: 26 April 2024
• Neutral Citation: N10761
• Docket Number: WS NO: 1402 of 2019 (CC2)
• Date: 26 April 2024
• Counsel: Mr Nemo Yalo, for the Plaintiff/First Cross-Defendant,Counsel:,Mr Aaron Benny, for the First & Second Defendants,Mr Peter Hai Pato, for the Third & Fourth Defendants/Cross-Claimants
• Citation: N10761, 2024-04-26
• Hearing Date: 07 February 2024,26 April 2024
• Court: National Court

N10761

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO: 1402 of 2019 (CC2)

Between:

Richard Puara

Plaintiff/First Cross-Defendant

v.

Larry Andagali

First Defendant

and

Trans Wonderland Ltd

Second Defendant

and

Nou Nou

Third Defendant/First Cross-Claimant

and

Kaevaga Incorporated Land Group

Fourth Defendant/Second Cross-Claimant

and

Land Titles Commission of Papua New Guinea

Second Cross-Defendant

and

Independent State of Papua New Guinea

Third Cross-Defendant

Waigani: Shepherd J

2024: 7 February

2024: 26 April

DAMAGES — assessment of damages — principles for assessment of damages — claim for general damages for trespass and interference with land — general damages allowed for estimated cost of re-survey, remediation and fencing of land damaged by wrongful conduct of defendants — general damages for mental anguish — interest on general damages allowed at 8% per annum.

Cases Cited:

Aigilo v Morauta, Prime Minister (No. 2) (2001) N2103

Angoman v Independent Public Business Corporation of Papua New Guinea (2011) N4363

Central Bank of Papua New Guinea v Tugiau (2009) SC 1013

Cheong Supermarket Pty Ltd v Muro [1987] PNGLR 24

Coecon v National Fisheries Authority (2002) N2182

Harding v Teperoi Timbers Pty Ltd [1988] PNGLR 128

Hodson v Independent State of Papua New Guinea [1985] PNGLR 303

Kinsim Business Group Inc. v Hompwafi (1997) N1634

Likui Trading Ltd v Selma (2011) N4530

Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144

Nambawan Super Ltd v Petra Management Ltd (2017) N6748

Opi v Telikom PNG Limited (2020) N8290

Paklin v The State (2001) N2212

Papua New Guinea Banking Corporation v Tole (2002) SC694

Paraia v The State (1995) N1343

PNG Ports Corporation Ltd v Canopus No. 71 Ltd (2010) N4288

Puara v Andagali, Trans Wonderland Ltd & Ors (2021) N9210

Puara v Andagali, Trans Wonderland Ltd & Ors (2023) N10569

Rimbunan Hijau (PNG) Ltd v Enei (2017) SC1605

Samot v Yame (2020) N8246

Sorowa v Taison (2021) N9299

Vali v Motor Vehicles Insurance Ltd (2022) N9661

Wereh v Independent State of Papua New Guinea (2023) SC2487

Counsel:

Mr Nemo Yalo, for the Plaintiff/First Cross-Defendant

Mr Aaron Benny, for the First & Second Defendants

Mr Peter Hai Pato, for the Third & Fourth Defendants/Cross-Claimants

Nemo Yalo Lawyers: Lawyers for the Plaintiff/First Cross-Defendant

Niuage Lawyers: Lawyers for the First Defendant and Second Defendant

Parker Legal: Lawyers for the Third and Fourth Defendants/First and Second Cross-Claimants

DECISION

26 April 2024

1. Shepherd J: This is a decision on assessment of damages for the plaintiff. The defendants' liability was determined by the Court's decision delivered on 25 October 2023, at which time the case was adjourned for submissions to be made by all parties on the quantum of damages to be awarded to the plaintiff. The hearing on assessment of damages was held on 7 February 2024.

BACKGROUND

2. This case relates to a portion of freehold land comprising an area of 2.03 hectares known as Portion 3959C, Milinch of Granville, Fourmil of Port Moresby, National Capital District being all the land described in Certificate of Title Volume 37 Folio 248 (the land).

3. The land is situated near the Napanapa Oil Refinery at Motukea, not far from Port Moresby. It previously formed part of a larger block of customary land known as ‘Begadaha’, ownership of which is claimed by the fourth defendant (Kaevaga ILG).

4. The land was sold to the plaintiff (Mr Puara) by Kaevaga ILG, represented by the third defendant (Mr Nou), under a contract for sale dated 23 December 2016. The agreed sale price was K300,000, with a 50% deposit which was paid up front and with the remaining 50% to be paid on issuance of registered title to Mr Puara. To obtain registered title, Mr Puara applied to the Land Titles Commission pursuant to the Land (Tenure Conversion) Act 1963 with the consent of Kaevaga ILG for conversion of customary ownership of the land to freehold registered title under the Land Registration Act 1981. Certificate of Title Volume 37 Folio 248 for the land was issued to Mr Puara by the Registrar of Titles on 17 October 2018. Kaevaga ILG challenged the registration of that title on the ground that Kaevaga ILG had endeavoured to revoke its contract for the sale of the land to Mr Puara because it had subsequently sold the land as part of a larger block of customary land to TWL, By this stage TWL had already entered onto the land and had carried out major earthmoving works in furtherance of its plans to develop the site. The occupation of the land by TWL and the steps taken by Kaevaga ILG and its chair Mr Nou to challenge Mr Puara's registered survey plan Catalogue No. 49/3739 and Mr Puara's title to the land are what prompted Mr Puara to seek injunctive and other relief from this Court for trespass and interference with his land.

5. Further background to this dispute is set out in this Court's earlier two decisions in connection with this proceeding, namely the Court's interlocutory ruling on 1 October 2021 reported as judgment N9210 and the Court's substantive decision on liability delivered on 25 October 2023 reported as judgment N10569, and need not be repeated here.

6. The Land Titles Commission and the State, although cited as the second and third cross-defendants in this proceeding by cross-claimants Mr Nou and Kaevaga ILG, have never been active parties in this suit. Mr Nou and Kaevaga ILG have pursued their cross-claim solely against Mr Puara as first cross-defendant. For the avoidance of doubt, references in this Decision to “the defendants” excludes any reference to the Land Titles Commission and the State.

ISSUE

7. The parties' previous issues on liability for determination by the Court were set out on page 7 of the parties' Statement of Agreed and Disputed Facts and Issues filed on 10 December 2021 (parties' Statement).¹ Those issues were substantively determined by the Court in judgment N10569 delivered on 25 October 2023.

8. The issue now before the Court is assessment of the quantum of Mr Puara's damages.

LEGAL PRINCIPLES

9. The fundamental principle which governs the whole of law of damages, in whatever area damages are awarded, is the principle of compensation. The Court must strive to award that sum of money which will compensate for a party's loss or injury. It means that the amount of money to be awarded as damages must be such an amount which, so far as money can, puts the injured party who suffered loss or damage in the same position as that party would have been had they not suffered the injury or damages for which they are being compensated: Kinsim Business Group Inc. v Hompwafi (1997) N1634 (Bidar AJ).

10. This principle, known as ‘restitutio in integrum’ derives its origin from ancient Roman law and means ‘restoration to original condition’. In practical terms it means that the amount of compensation awarded should be that amount of money as will put a successful plaintiff in the position that would have been the case if the wrongful act such as a tort or breach of contract had not been committed.

11. It was said by the Supreme Court in Rimbunan Hijau (PNG) Ltd v Enei (2017) SC1605 (Salika DCJ and Kandakasi J as they then were, Toliken J) that:

Assessing damages is not a matter of mathematical or scientific precision. It however requires a careful consideration and weighing of all evidence presented before the Court and the Court arrives at an award it considers will best compensate a plaintiff who suffers loss or damage on account of a defendant's tortious actions.

12. The ‘restitutio’ principle is not an absolute principle. It is qualified by other principles, such as:

(a) A plaintiff has the onus proving loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person's case, that person has the onus of proving the allegation: Paklin v The State (2001) N2212 (Jalina J).

(b) The principles of proof and corroboration apply even when the defendant fails to present any evidence to dispute the claim: Wanis v Sikiot (1995) N1350 (Woods J).

(c) The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of payment of damages. Where precise evidence is available the Court expects to have it. However, where it is not, the Court must do the best it can: Paraia v The State (1995) N1343 (Injia J as he then was).

(d) A plaintiff is under a duty to mitigate or lessen the consequences of the wrongful act, and damages are not available for loss which is attributable to a plaintiff's failure to mitigate, although it is the defendant as wrongdoer who has the onus of proving failure to mitigate: Coecon v National Fisheries Authority (2002) N2182 (Kandakasi J).

(e) A plaintiff is only entitled to damages which naturally arise from the wrongful act, not from loss which is too remote: Kinsim Business Group Inc. v Hompwafi (supra).

13. In any assessment of damages the Court will consider awarding compensation for direct expenses, known as special damages, such as the proven actual cost of repair of damaged property and out-of-pocket expenses. Damages can also be awarded by the Court for past and future loss of income resulting directly from the wrongful act and for loss of amenities caused by pain and suffering, both physical and mental.

14. I will apply these principles when determining each head of damages sought by Mr Puara in this instance.

DEFENDANTS' OBJECTIONS TO PLAINTIFF'S AFFIDAVIT EVIDENCE

15. On 5 February 2024, two days before the hearing on assessment of damages on 7 February 2024, the first defendant (Mr Andagali) and second defendant (TWL) gave short-served notice pursuant to s.35(2) of the Evidence Act Ch. 48 that they would object to Mr Puara's use at the hearing...