Aquavista Pty Ltd v Timevale Pty Ltd - [2016] QDC 235

DISTRICT COURT OF QUEENSLAND

CITATION:

Aquavista Pty Ltd v Timevale Pty Ltd [2016] QDC 235

PARTIES:

AQUAVISTA PTY LTD
(ACN 069 599 775)
AS TRUSTEE FOR THE WALSH FAMILY TRUST TRADING AS COASTAL AMUSEMENTS
(ABN 51 719 681 695)
(plaintiff)

v

TIMEVALE PTY LTD
(ACN 003 364 985)
AS TRUSTEE FOR THE ETTAMOGAH QLD UNIT TRUST TRADING AS AUSSIE WORLD
(ABN 24 128 803 703)
(defendant)

FILE NO:

146 of 2013

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

27 September 2016

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

2 March 2015; 3 March 2015 and 1 April 2015

JUDGE:

Long SC DCJ

ORDER:

Judgment for the plaintiff in the sum of $148,653.93, including $25,959.93 interest.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – Where the plaintiff sues for damages for breach of contract and interest – Where the only issue as to liability is whether there has been a breach as opposed to a valid termination of the contract – Where the contract was in relation to the placement of amusement machines at the defendant’s site – Where the contract was executed in a typewritten pro-forma, with the allowance for handwritten details to be added at the time of execution – Where each pro-forma is comprised of a single double-sided sheet and arranged in pairs – Where writing on the top copy causes such writing to be transposed to the underneath copy – Where each party then retains a copy of the contract – Where the contracts retained by the parties were not identical – Whether the plaintiff had handwritten the numerals “5” into the clause relating to duration – Where the numerals were only written on the underneath copy and did not transpose to the top copy, which was retained by the defendant– Whether it is established that there was a defined duration for the contract

DAMAGES – GENERAL PRINCIPLES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT MITIGATION OF DAMAGES – PLAINTIFF'S DUTY TO MITIGATE – Where the primary approach of the plaintiff was in estimation of the profit it was denied in the remainder of the initial period of the contract – Where the defendant challenges this estimate – Whether the plaintiff failed to take steps to mitigate the loss flowing from the breach of contract – Whether it has been established that the plaintiff has unreasonably failed to sell the amusement machines after the termination of the contract or that the plaintiff has acted unreasonably or failed to act reasonably, in respect of the placement of the machines at alternative operating venues

CASES:

Biggin & Co. Ltd v Permanite Ltd [1951] 2 KB 314
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Branir Pty Ltd & Ors v Owston Nominees (2) Pty Ltd & Anor (2001) 117 FCR 424
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Empirnall Holdings Pty Ltd v Machon…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QDC 235
Decision Date: 27 September 2016

CaseChat Overview and Summary

Aquavista Pty Ltd brought an action against Timevale Pty Ltd for damages for breach of contract and interest. The dispute centred on whether Timevale had validly terminated a contract for the placement of amusement machines at its site, or if there had been a breach of the contract. The case was heard in the Supreme Court of Queensland.

The primary legal issue was whether there was a defined duration for the contract, which would determine if Timevale validly terminated the contract or breached it by failing to continue payment. This hinged on whether Aquavista had successfully handwritten the numeral "5" into the clause relating to the contract duration on the copy retained by Timevale. The court had to consider whether the failure of the handwritten numeral to transpose to the top copy, which Timevale retained, meant that the contract duration was not properly defined.

The court found that Aquavista had indeed handwritten the numeral "5" into the duration clause on the underneath copy, but this did not transpose to the top copy retained by Timevale. The court held that because Aquavista had established that the numeral was written and transposed did not affect the validity of the handwritten clause, the contract had a defined duration. Therefore, Timevale's termination of the contract was a breach. The court also found that Aquavista had not unreasonably failed to mitigate its loss by selling the amusement machines or placing them at alternative venues after the termination.

The court ordered judgment for Aquavista in the sum of $148,653.93, including $25,959.93 interest.

Orders

Orders of the court

Judgment for the plaintiff in the sum of $148,653.93, including $25,959.93 interest.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Aquavista Pty Ltd v Timevale Pty Ltd [2016] QDC 235
PARTIES:	AQUAVISTA PTY LTD (ACN 069 599 775) AS TRUSTEE FOR THE WALSH FAMILY TRUST TRADING AS COASTAL AMUSEMENTS (ABN 51 719 681 695) (plaintiff) v TIMEVALE PTY LTD (ACN 003 364 985) AS TRUSTEE FOR THE ETTAMOGAH QLD UNIT TRUST TRADING AS AUSSIE WORLD (ABN 24 128 803 703) (defendant)
FILE NO:	146 of 2013
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	27 September 2016
DELIVERED AT:	District Court at Maroochydore
HEARING DATE:	2 March 2015; 3 March 2015 and 1 April 2015
JUDGE:	Long SC DCJ
ORDER:	Judgment for the plaintiff in the sum of $148,653.93, including $25,959.93 interest.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – Where the plaintiff sues for damages for breach of contract and interest – Where the only issue as to liability is whether there has been a breach as opposed to a valid termination of the contract – Where the contract was in relation to the placement of amusement machines at the defendant’s site – Where the contract was executed in a typewritten pro-forma, with the allowance for handwritten details to be added at the time of execution – Where each pro-forma is comprised of a single double-sided sheet and arranged in pairs – Where writing on the top copy causes such writing to be transposed to the underneath copy – Where each party then retains a copy of the contract – Where the contracts retained by the parties were not identical – Whether the plaintiff had handwritten the numerals “5” into the clause relating to duration – Where the numerals were only written on the underneath copy and did not transpose to the top copy, which was retained by the defendant– Whether it is established that there was a defined duration for the contract DAMAGES – GENERAL PRINCIPLES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT MITIGATION OF DAMAGES – PLAINTIFF'S DUTY TO MITIGATE – Where the primary approach of the plaintiff was in estimation of the profit it was denied in the remainder of the initial period of the contract – Where the defendant challenges this estimate – Whether the plaintiff failed to take steps to mitigate the loss flowing from the breach of contract – Whether it has been established that the plaintiff has unreasonably failed to sell the amusement machines after the termination of the contract or that the plaintiff has acted unreasonably or failed to act reasonably, in respect of the placement of the machines at alternative operating venues
CASES:	Biggin & Co. Ltd v Permanite Ltd [1951] 2 KB 314 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Branir Pty Ltd & Ors v Owston Nominees (2) Pty Ltd & Anor (2001) 117 FCR 424 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Empirnall Holdings Pty Ltd v Machon…