B and L Seedgraders v Cusack

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

B & L Seedgraders v Cusack [2007] QMC 11

PARTIES:

B & L SEEDGRADERS

(plaintiff)

v

CLAYTON CUSACK

(defendant)

FILE NO/S:

M65/06

DIVISION:

Magistrates Courts

PROCEEDING:

Claim

ORIGINATING COURT:

Magistrates Court at Dalby

DELIVERED ON:

2 July 2007

DELIVERED AT:

Dalby

HEARING DATE:

20 February 2007

MAGISTRATE:

Stjernqvist H

ORDER:

Judgment for the Plaintiff against the defendant in the amount of $6 317.20 for the claim, plus costs and interest pursuant to the Supreme Court Act 1995 (as amended).

CATCHWORDS:

CONTRACTS — BREACH OF CONTRACT — implied terms of contract in accordance with custom or trade usage — contract for the sale of wheat – whether silence can show acceptance of contract

COUNSEL:

Lippett for plaintiff

Hogan for defendant

SOLICITORS:

Carvosso & Winship for plaintiff

Sheehan & Co for defendant

The Claim.

1. This is a Claim heard in the Magistrates Court at Dalby on 20 February 2007 wherein the Plaintiff claims by way of its Claim and Statement of Claim the following relief:

1.          Damages for breach of the agreement being the difference between the value of the wheat the Defendant had agreed to sell to Plaintiff and the value of general purpose wheat Plaintiff had to buy in, in order to honour its contractual obligations namely, $6 317.20.

2. Interest pursuant to section 47 of the Supreme Court Act.

3.          Costs.

1. The pleadings in the Claim and Statement of Claim set out the matters and allegations relied on by the Plaintiff. Relevantly the Statement of Claim pleads loss and damages as:

50 metric tonnes of general purpose

wheat @ $170.00 per metric tonne             $ 8500.00

54.880 metric tonnes of general purpose          

wheat @ $180.00 per metric tonne  $ 9878.40

Total  $18378.40

Less original contract price 104.800 metric tonne

general purpose wheat @ $115.00 per metric tonne                 $12061.20

Total Loss suffered$ 6317.20  

1. The admissions and the disclaimers to the Claim are set out in the Defence filed by the Defendant.

1. The onus of proving the Claim is upon the Plaintiff to the requisite standard, that standard being on the balance of probabilities.

1. I have had the opportunity of listening to and observing the demeanour of each of the witnesses whilst they gave their evidence and this has assisted me in arriving at my determination.

Evidence.

1. Tobin Cherry is a qualified agronomist with degrees in Agribusiness and Crop in Agronomy. He is employed by the plaintiff to buy and sell grain.

1. He gave evidence that he was given the name of the defendant as a person who might have some wheat to sell. First contact he states would have been on 8 November 2005 – further that he recalls the quantity of 300 tonnes was discussed as an estimate.

1. He recalls that a person, Rick Sams was discussed as the harvester and that harvesting would take place in the days after 8 November 2005.

1. His evidence is that he next talked to Mr Cusack on 10 November 2005 when an agreement was reached to purchase from…