Wake Goi v First Investment Finance Limited (2019) N7865

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 17 May 2019
• Court: National Court
• Citation: (2019) N7865
• Docket Number: WS NO. 1108 OF 2016
• Year: 2019
• Judgement Number: N7865

Full Title: WS NO. 1108 OF 2016; Wake Goi v First Investment Finance Limited (2019) N7865

National Court: David, J

Judgment Delivered: 17 May 2019

N7865

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1108 OF 2016

BETWEEN:

WAKE GOI

Plaintiff

AND:

FIRST INVESTMENT FINANCE LIMITED

Defendant

Waigani: David, J

2018: 13 September & 11 October

2019: 17 May

CONTRACTS – breach of commercial loan chattel mortgage – plaintiff assisted by defendant to purchase PMV bus – bus repossessed – assessment of damages – loss of investment – loss of income – general damages for distress, frustration and humiliation - liability established after trial.

Cases Cited:

Papua New Guinea Cases

Brian Hodson v The Independent State of Papua New Guinea (1985) PNGLR 303

The Independent State of Papua New Guinea v Hodson (1987) PNGLR 241

Cheong Supermarket Pty Ltd v Pery Muro (1987) PNGLR 24

Harding v Teperoi Timbers Pty Ltd (1988) PNGLR 128

Joe Naguwean v The Independent State of Papua New Guinea (1992) PNGLR 367

Graham Mappa v PNG Electricity Commission (1995) PNGLR 170

Kerekal Farming and Trading Pty Ltd v Queensland Insurance (PNG) Limited (1995) PNGLR 401

Jonathan Mangope Paraia v The State (1995) N1343

Peter Na’al v Michael Debege (2000) N1958

Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102

Paulus Kei v Tony Hasu (2004) PNGLR 50

William Mel v Coleman Pakalia (2005) SC790

William Patitts v The State (2006) N3088

Steven Naki v AGC (Pacific) Ltd (2006) N5015

Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485

Andrew Kewa v Johnny Lus & Securimax Security Limited, WS No.415 of 2003, Unreported Judgment of Manuhu, J delivered on 14 March 2007

James Liwa v Markis Vanimo (2008) N3486

Maktol Oke v Jeffery Kera (2010) N3850

Likui Trading Ltd v Joseph Selna (2011) N4530

Fred Angoman & Papaco No.1 Limited v Independent Public Business Corporation of Papua New Guinea & Glen Blake as the Managing Director of the Independent Public Business Corporation of Papua New Guinea (2011) N4363

Komasa v Jossy (2012) N4863

Overseas Cases cited:

Livingstone v Rawyards Coal Co (1880) App Cas 25

Counsel:

Peter Hai Pato, for the Plaintiff

Grace Waide, for the Defendant

JUDGMENT

17th May, 2019

1. DAVID, J: INTRODUCTION: This case is about a breach of a contract known as the commercial loan chattel mortgage executed by the parties on 29 November 2012 (the contract). The plaintiff entered into the contract with the defendant, a licensed financial institution for the defendant to provide finance for the purchase of a brand new white lavender Toyota Coaster, 26 seater bus, engine number 14B-1867479, chassis number JTGFY418502014224 and bearing registration number P1181J (the bus) for the plaintiff to operate a Public Motor Vehicle (PMV) business. The defendant breached the contract when it repossessed the bus without issuing any default notice, sold it and as a result the plaintiff lost income from the PMV business. This is the Court’s decision on assessment of damages, liability having been established following the entry of judgment in favour of the plaintiff on 22 November 2017 after trial (Wake Goi v First Investment Finance Ltd (2017) N7059).

DAMAGES CLAIMED

2. In the statement of claim endorsed on the writ of summons filed on 8 September 2016, the plaintiff claims:

1. K100,000.00 for loss of investment;

2. K25,000.00 per month for loss of income for 8 years from July 2013 to 2021;

3. General damages; and

4. Interest at 8% pursuant to the Judicial Proceedings (Interest on Debts & Damages) Act.

EVIDENCE

3. The plaintiff’s evidence consists of oral and documentary evidence.

4. The plaintiff and Joseph Otto gave oral evidence.

5. The documentary evidence consists of the following documents:

1. Affidavit of Wake Goi sworn and filed on 28 March 2018 (Exhibit A);

2. State Lease in respect of Allotment 100 Section 482 Hohola, Port Moresby, National Capital District (Exhibit B);

3. State Lease in respect of Allotment 100 Section 148 Hohola, Port Moresby, National Capital District (Exhibit C);

4. State Lease in respect of Allotment 21 Section 80 Goroka, Eastern Highlands Province (Exhibit D);

5. Affidavit of Joseph Otto sworn on 28 February 2018 and filed on 28 March 2018 (Exhibit E);

6. Affidavit of Rex Yape Parim sworn and filed on 28 March 2018 (Exhibit F).

6. The plaintiff and Joseph Otto were subjected to cross-examination.

7. The defendant relied on the oral and affidavit evidence of its sole witness, Michael O’Rourke whose affidavit was sworn and filed on 17 May 2018 (Exhibit 1). Mr O’Rourke was cross-examined.

SUMMARY OF PLAINTIFF’S EVIDENCE

Wake Goi

8. He currently is the Member of Parliament for the Jimi Open Electorate in the Jiwaka Province. He is also an experienced businessman.

9. The defendant assisted him with K73,040.10 pursuant to the contract to purchase the bus from Ela Motors, Goroka which was sold to him for K147,422.00 to operate a PMV business. He paid to the defendant the balance of the purchase price of K100,000.00 by a cheque No.000448 dated 10 October 2012 drawn in favour of the defendant from his personal account operated at the Bank South Pacific Limited, Goroka Branch. True copies of the cheque and receipt number 004062 issued by the defendant on 10 October 2012 are annexed to the plaintiff’s affidavit as annexures “C” and “D” respectively.

10. The bus was registered as a PMV thereafter. True copies of the Certificate of Registration and CTP Insurance issued on 27 November 2012 and PMV Licence No.0376 dated 19 November 2012 are annexed to the plaintiff’s affidavit as annexures “A” and “B” respectively.

11. He effectively commenced the PMV business on 18 January 2013 as the bus was in service at Ela Motors Goroka for the whole of December 2012. The PMV operations were conducted between Goroka, Eastern Highlands Province and Lae, Morobe Province.

12. He operated a PMV business along the same route before becoming the Member of Parliament for Jimi Open after the July 2007 elections. From 2000 to 2007, he had a fleet of three 15 seater Toyota Hiace buses and a Mazda “dyna” truck. He sold all the vehicles after becoming a Member of Parliament. He decided to recommence the PMV business and bought the bus when he lost his seat.

13. Without the defendant giving him any notice of repossession nor providing any good reasons, the defendant engaged the Goroka police to seize the bus which they did at a road block on 9 July 2013 and impounded it effectively causing his PMV business operations to cease. The bus was only six months old when it was repossessed.

14. As a result of the repossession of the bus, he lost his K100,000.00 investment in the bus and lost income for 8 years from 8 July 2013 to 9 July 2021. From his experience as a PMV operator from 2000 to 2007, he knows that the bus could have operated for 8 years. He therefore claims K100,000.00.

15. The PMV fare for the Goroka-Lae route is K30.00. This fare has been maintained since 2000 when he started his PMV business. One trip to Lae and back in one day fetched a total of K1,500.00 at K750.00 each way. About K300.00 was used for refuelling and K50.00 allowed for lunch for the driver and the offsider. The bus did not operate on Sundays. So the income received for a day’s operation was K1,150.00. As the bus did not operate on Sundays, in one week the total income was K6,900.00. In a month, the total income received was K27,600.00.

16. He maintained and serviced the bus every two months @ K500.00. Every fortnight, he paid; the driver K400.00 and the offsider K300.00 as their salaries; and an allowance of K475.00 to his family. In a month, he spent a total of K2,600.00. His net income in a month was therefore K25,000.00. Asked in cross-examination as to how many personnel he employed, he said he had two drivers and two offsiders rotating on his roster.

17. He was not able to save the income received as he had to make the loan repayments to the defendant and used the balance to fund his trips with his lawyer to and from Port Moresby to attend to a criminal case processed through the District (Committal) Court and National Court in which he was charged for misappropriation of K13.1 million based on a complaint laid by the person who unseated him during the 2012 National Elections and also to attend to an election petition case. Annexure E are true copies of the Information laid on 18 March 2013 and Summary of Facts. Whatever money that was left was used to pay the services of Pilisa Lawyers of Goroka. His personal BSP account statements from January 2013 to July 2013, true copies of which are annexed to his affidavit as annexure F, do not show the monthly income of K25,000.00 for those reasons.

18. The projected net income he could have received over 8 years from 9 July 2013 to 9 July 2012 is K2,400,000.00, i.e., K25,000.00 per month multiplied by 96 months. Contingencies such as depreciation, wear and tear of the bus resulting in the bus operating only in Goroka and not able to travel long distances like Lae, road blocks by landslides, tribal fights, increased costs of maintenance and service and other disturbances etc, could have reduced the projected...