Aymara Pty Ltd v Kalibow Pty Ltd

[1999] QDC 282

DISTRICT COURT OF QUEENSLAND

[Aymara Pty Ltd v Kalibow Pty Ltd]

REGISTRY:      MACKAY
  NUMBER:         9 OF 1998

Plaintiff:  

AYMARA PTY LTD

AND

Defendant:  

KALIBOW PTY LTD trading as “MANDALAY BOAT CHARTERS

JUDGMENT - McGILL S.C. D.C.J.

Judgment Delivered:  5 November 1999

Catchwords:  DAMAGES - assessment of - loss of vessel

Counsel for the Plaintiff:  S.J. Keim

Solicitors for the Plaintiff:   Macrossans Lawyers

Hearing Dates:  18 May 1999

DISTRICT COURT OF QUEENSLAND

REGISTRY:      MACKAY
  NUMBER:       9 OF 1998
Plaintiff:  
  AYMARA PTY LTD

AND
Defendant:  

KALIBOW PTY LTD trading as “MANDALAY BOAT CHARTERS

JUDGMENT - McGILL S.C. D.C.J.

Delivered the 5th day of November 1999

This action was commenced by writ issued out of the Brisbane Registry of the Supreme Court on 27 November 1996. Following an exchange of pleadings, by a consent order on 28 January 1998 the action was remitted to the District Court held at Mackay. On 5 August 1998 His Honour Judge McLauchlan dispensed with the Certificate of Readiness for Trial and ordered that the action be set down in a callover pursuant to r.149(6) of the District Court Rules. On 4 February 1999, His Honour Judge Noud made a referring order for case appraisal under r.404(4) of the District Court Rules, but the case appraiser was unable to complete his task because of a failure on the part of the defendant to co-operate. The matter was listed for trial in the District Court at Mackay in the sittings due to commence on 15 June 1999.

Prior to that date however on an application made to me in Chambers in Brisbane, at which the defendant did not appear, I ordered that the defence of the defendant be struck out pursuant to s.98 of the District Court Act and pursuant to that section I gave judgment for the plaintiff to recover against the defendant damages to be assessed.  I directed the assessment to be by affidavit, but said that it would not occur until after the date on which the matter had been set down for trial, to give the defendant the opportunity to appear in the court at Mackay on that date.  I conducted that sittings in Mackay but the defendant did not appear.  There was some delay in filing the necessary affidavit, and then some delay before the affidavit was forwarded to me, but I am now in a position to assess damages pursuant to the judgement.

The plaintiff’s case is that, during a period when the plaintiff’s catamaran was in the possession of the defendant pursuant to an agreement between the parties, the mooring system failed, causing the vessel to drift until it ran aground, as a result of which it was damaged and destroyed on 25 August 1995.  It is alleged that this occurred because of the negligence of the defendant, or in the alternative in breach of an express or implied term in the agreement between the parties under which the defendant had possession of  the vessel.  The measure of the plaintiff’s damages will be the extent of the loss suffered by the plaintiff as a result of such negligence or breach of contract;  for the purposes of this assessment I assume that there was negligence or breach of contract as alleged. 

The Statement of Claim alleges that the vessel was damaged and destroyed when it ran aground, and claims by way of damages the value of the vessel as at 25 August 1995.  In order to prove this loss the plaintiff relies on evidence that the vessel lost, “Red Famida” was nearly identical with a vessel “Green Famida” built at the same time, and also owned by the plaintiff.  There is an affidavit from the principal of Maurice Drent Boating Services Whitsunday, giving a valuation for “Green Famida” in August 1995 of approximately $116,000.  This was the price for which that vessel was sold in 1994, and is based on an inspection in 1998 and an estimation that the market value at that time of $112,000 to $122,000. This evidence is not as good as it could be but it is some evidence of the market value of Red Famida at the time when it was lost was $116,000.  The market value of the vessel is the only amount claimed by way of damages, and I find that that amount is the amount to which the plaintiff is entitled. 

Interest is also claimed, and prima facie the plaintiff is entitled to interest on that amount from the date of the loss, 25 August 1995 until the date of the judgment, and I will allow interest at 10% per annum for 4.2 years on $116,000, an amount of $48,720.  There should be judgment therefore for $164,720.  I have already made an order for costs in the plaintiff’s favour.

Counsel for the plaintiff:            S.J. Keim

Solicitors for the plaintiff:  Macrossans Lawyers