Judge: Mediation provides solutions

A JUDGE has described the mediation process as the best method of solving problems.
Judge David Cannings opted for this when ruling on a case between Enfi Company Ltd and Kurumbukari Ltd over contract variation payments.
Enfi Company Ltd had engaged Kurumbukari Ltd  in a fixed price contract to strengthen bridges and build road diversions so as to allow them to transport heavy machinery along a highway to a mine site.
Kurumbukari Ltd performed the work and was paid the contract price. It claimed that it incurred the extra amount because of a change in the scope of work at the request of Enfi.
Enfi refused to pay an additional sum of K1,490,850 for the work carried out along the Madang highway from Kurumbukari minesite, Watarais and Usino junction.
The  fixed price was K1, 509,154.
Of the three options available, Cannings opted  for mediation saying it  will not result in prejudice to the rights of either party and is reasonable within the ability and power of both parties to comply with a mediation order.
 “It is in the interests of justice to attempt mediation as a method of resolving such disputes,” said Cannings.
Cannings said there was no agreement to vary the contract but an oral agreement was reached to bring in a mobile foldable bridge from China which would be appropriate for all river crossings.
The mobile foldable bridge has been deployed to the mine-site and certain wet crossings and has been used.
“A contract even a written one that makes no provision for variations may be varied by agreement between parties, it may be express or implied. An implied contract can arise by virtue of the conduct of parties.
“I find that the scope of works of the contract was materially changed when it became apparent to both that additional works involving the deployment of a mobile bridge were carried out with the defendants knowledge and consent. There were implied instructions to carry out these works”, he said.