Colvin v Eather

[2016] NSWDC 29

District Court

New South Wales

Medium Neutral Citation:

Colvin v Eather [2016] NSWDC 29

Hearing dates:

21 March 2015

Date of orders:

21 March 2016

Decision date:

21 March 2016

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff against the defendant in the sum of $284,714.46 including pre-judgment interest;

 

2. The defendant is to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered;

 

3. The exhibits are to remain with the court file;

 4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

DAMAGES – assessment of damages for breach of contract – loss of sale value of stored wine and barrels

Legislation Cited:

Civil Procedure Act 2005, s 100

Category:

Principal judgment

Parties:

John Colvin (Plaintiff)
Rhys Eather (Defendant)

Representation:

Counsel:
Mr GR Graham (Plaintiff)
No appearance for defendant

  Solicitors:
Emery Partners (Plaintiff)
No appearance for defendant

File Number(s):

2015/352020

Publication restriction:

None

Judgment

Nature of case and factual background

1. By statement of claim filed on 30 November 2015, the plaintiff, John Colvin, the proprietor of Montvalley Vineyard, situated at Mt View in the Hunter Valley in NSW, brings these proceedings against the defendant, Rhys Eather, a vigneron trading under the name Rhys Eather Contracting, claiming damages for breach of a contract that the parties had entered into on 20 December 2009.

2. That contract obliged the defendant to provide a safe and secure storage facility for the plaintiff’s grapes, grape juice, and wine in the winemaking process. The contract included an obligation on the defendant to properly store, manage and maintain the plaintiff’s oak barrels, and to ensure that wine made from the plaintiff’s shiraz grapes from the 2010 vintage would be stored in oak barrels for no longer than 20 months before being made into shiraz and rose wines.

3. The plaintiff claims that his 2010 vintage of Shiraz wine was stored in oak barrels for longer than 20 months, and was thereby spoiled and rendered unsuitable for bottling as wine, requiring that it then be sold as vinegar.

4. By the time the plaintiff came to realise the above described problems with his 2010 vintage of shiraz, his 2011 vintage was already in storage with the defendant. Subsequent testing revealed the 2011 vintage had not been protected from oxidisation, and as a result, it was unsuitable for bottling as wine, and it was therefore also sold off as vinegar.

5. The consequence of those events for the plaintiff was that he has lost his entire 2010 and 2011 vintages, and he has needed to destroy the 21 barrels that he had provided to the defendant as those barrels had become irredeemably affected by a known contaminant.

6. The plaintiff claims those losses were incurred as a result of breaches of contract on the part of the defendant, and consequently, the plaintiff claims damages for such breaches.

7. On 4 February 2016, the plaintiff obtained default judgment against the defendant, with unliquidated damages remaining to be assessed. The present hearing therefore concerns the assessment of those damages.

8. Although the defendant has not appeared at the hearing, I am satisfied that the defendant has been notified of the hearing. The assessment of the plaintiff’s damages therefore proceeded in the absence of the defendant.

Evidence overview

9. The evidence adduced by the plaintiff at the hearing comprised an affidavit sworn by the plaintiff on 16 March 2016 (Exhibit “A”) and a Statement by the plaintiff’s solicitor dated 17 March 2016 concerning his conversation with the defendant on that date: Exhibit “B”. I am satisfied that the evidence adduced by the plaintiff satisfactorily demonstrates his claimed losses.

Assessment of damages

10. The plaintiff’s claim for damages in the sum of $201,593.57, after applying reasonable offsets, but to which pre-judgment interest must be added, consists of the following elements:

(a) Loss of the value of the sale of 2011 rose wine	$50,481.00
(b) Loss of the value of the sale of 2010 shiraz wine	$73,150.00
(c) Loss of the value of the sale of 2011 shiraz wine	$113,768.00
(d) Loss of barrels	$14,194.57
Sub-total	$251,593.57
(e) Less offset amounts for credit for obviated need for bottling and marketing costs	$47,600.00
(f) Less offset for sale of vinegar	$2,400.00
Total	$201,593.57

11. I am satisfied the evidence demonstrates, reasonably, that the plaintiff’s claimed losses have been incurred in the amount of $251,593.57.

12. I am satisfied that the plaintiff has applied a proper offset credit to hose losses by a saving of the obviated costs of bottling and marketing, in the sum of $47,600.

13. I am also satisfied that the plaintiff has taken proper and reasonable steps to mitigate his claimed losses by selling the damaged remnants of his wines as vinegar in the sum of $2400.

14. After applying those offsets I assess the plaintiff’s damages against the defendant in the sum of $201,593.57.

Interest

15. The plaintiff is entitled to pre-judgment interest on the assessed sum of $201,593.57 in accordance with s 100 of the Civil Procedure Act 2005. I assess the plaintiff’s entitlement to interest, in accordance with that provision, in the sum of $83,120.89, as calculated in paragraphs [27] – [28] of Exhibit “A”.

Disposition

16. The plaintiff is entitled to a judgment in his favour against the defendant in the sum of $284,714.46 including pre-judgment interest.

Costs

17. As the plaintiff has succeeded in his claim, he is entitled to an order for his costs of the proceedings to be paid by the defendant on the ordinary basis, unless he can show an entitlement to some other order.

Orders

18. I make the following orders:

1. Verdict and judgment for the plaintiff against the defendant in the sum of $284,714.46 including pre-judgment interest;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis, unless otherwise ordered;

3. The exhibits are to remain with the court file;

4. Liberty to apply on 7 days notice if further or other orders are required.

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Decision last updated: 21 March 2016