GJG Importers Australia Pty Ltd v Bluegame

[2005] QDC 107

DISTRICT COURT OF QUEENSLAND

CITATION:

GJG Importers Australia Pty Ltd v Bluegame & Ors [2005] QDC 107

PARTIES:

GJG IMPORTERS AUSTRALIA PTY LTD

Plaintiff

BLUEGAME PTY LTD

First Defendant

COLIN RONALD BLOOMER

Second Defendant

DARREN RONALD BLOOMER

Third Defendant

FILE NO/S:

D4556 of 2002

DIVISION:

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

12 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2005

JUDGE:

Samios DCJ

ORDER:

Judgment for the Plaintiff against the First Defendant, Second Defendant and Third Defendant for $50,892.03

CATCHWORDS:

CONTRACT – BAILMENT –

Jackson v Cochrane (1989) 2 QdR 23 CON

J & E Hall Ltd v Barclay (1937) 3 All E.R. 620 CON

Furness v Adruim Industries Pty Ltd (1993) Aust Torts Reports 81-245 CON

COUNSEL:

Mr Fryberg for the Plaintiff

Self represented by Mr C Bloomer for the First Defendant and Second Defendant

No appearance on behalf of the Third Defendant

SOLICITORS:

Martells Lawyers for the Plaintiff

Self represented by Mr C Bloomer for the First Defendant and Second Defendant

No appearance on behalf of the Third Defendant

1. The plaintiff and the first defendant are duly incorporated companies.

1. The plaintiff conducted a business of distribution and sales of Elenka Granita Frozen Drink products in New South Wales.  The plaintiff’s director and duly authorised agent was John De Souza (Mr De Souza).

1. The first defendant conducted a business of sale of hospitality equipment under the name of LTS Supplies at Paradise Point in Queensland. The second defendant (Mr C Bloomer) and the third defendant (Mr D Bloomer) were the first defendant’s directors and duly authorised agents acting within the scope of such authority. 

1. There is no dispute between the parties that on or about 16 January 2000 an agreement was made between the plaintiff and all the defendants.  Further, this agreement was partly written and partly oral and in so far as it was written it was contained in or evidenced by a letter dated 16 January 2000 from the plaintiff to the first defendant.

1. What is in dispute is the plaintiff’s claim its standard terms and conditions on the supply of Slush Ice machines were part of the agreement between the parties.

1. Nevertheless the defendants admit the plaintiff appointed the first defendant as the plaintiff’s sole agent for the distribution and sale of Elenka Granita frozen drink products in Queensland.  Further, that the plaintiff would sell and deliver and the first defendant would buy Elenka Products for resale to the first defendant’s customers in Queensland at a profit. 

1. There is also no dispute between the parties that pursuant to the agreement, on or about 5 February 2000, the plaintiff delivered to the first defendant at Paradise Point Queensland two three bowl SPM Slush Ice machines.  Further, on or about 17 February 2000 the Plaintiff delivered to the first defendant at Paradise Point, Queensland four three bowl SPM Slush Ice machines.  Finally, on or about 16 March 2000 the plaintiff delivered to the first defendant at Paradise Point Queensland four three bowl SPM Slush Ice machines and one one bowl SPM Slush Ice machine (the machines).

1. The defendants admit that as at each of the dates just referred to the defendants were in possession of the machines with the consent of the plaintiff, as bailees pursuant to the agreement.

1. Mr De Souza gave evidence on behalf of the plaintiff.  In relation to the allegation of a written agreement between the parties he produced four pages of documents which became exhibit 6.  He said this represented the written agreement between the parties.

1. In so far as liability of the second and third defendant is concerned this document provides:

“Upon agreement being reached by the director/s of GJG Importers (Aust) Pty Ltd and LTS Supplies Pty Ltd the directors of LTS Supplies are responsible for the machines and products supplied.”

1. The second defendant who appeared on his own behalf and on behalf of the first defendant also gave evidence.  Consistent with the defendants’ notice of intention to defend he denied that two of the four pages containing terms and conditions were ever part of the agreement.  Further, the second defendant claimed the plaintiff through Mr De Souza terminated the agreement in August 2000 and therefore the defendants no longer had any obligation to the plaintiff in respect of the machines.  The second defendant claimed that a report in writing (exhibit 12) was all the plaintiff required to recover its machines.  Mr De Souza said that the report did not permit the plaintiff to recover its machines.  However, through its own resources the plaintiff recovered three of the machines leaving the plaintiff’s claim against the defendants in these proceedings to be one in respect of seven three bowl machines and one one bowl machine. 

1. I was favourably impressed with Mr De Souza when he gave evidence.  I do not accept Mr C Bloomer’s claim that as the distributor he had no obligations to the plaintiff once a machine had been distributed to a customer.  That is Mr C Bloomer claimed once the machine was distributed to a customer his relationship with the plaintiff was only to purchase products to supply to the end user of the machine.  It occurred to me it was odd that he would not be seeking to make some profit from the machine itself.  As he said himself there was no profit in purchasing the product itself and reselling that product to the end user of the machine.  I was not favourably impressed by Mr C Bloomer. 

1. I am satisfied the first defendant, second defendant and third defendant were bailees of the machines.  They have admitted this in their notice of intention to defend.

1. The primary legal duty of the bailee is to redeliver the chattel bailed to the bailor or as the bailor may direct.  While the chattel is in his possession the bailee is bound to take reasonable care of it (Jackson v Cochrane (1989) 2 Qd.R.23).

1. Further, the written terms of the agreement provides the second and third defendant are responsible for the machines.  I am satisfied the plaintiff was justified in terminating the agreement between the plaintiff and the defendants.  Therefore, I am satisfied the defendants were obliged to redeliver the machines to the plaintiff.  I am satisfied the defendants have failed to do so and are therefore liable to the plaintiff for damages for breach of the bailment of the machines.  I am satisfied the defendants have converted the machines to their own use or have unlawfully detained the machines.  Therefore, the defendants are liable to the plaintiff for damages. 

1. There is evidence in the form of exhibit 17 and exhibit 18 indicating the value to replace the machines.  I accept the plaintiff is entitled as damages the cost to replace the machines in the market but where there is no market the measure of damages is the cost of replacement.  (J & E Hall Ltd v Barclay (1937) 3 All E.R. 620; Furness v Adruim Industries Pty Ltd (1993) Aust Torts Reports 81-245). I am satisfied there was no market where these machines could be purchased by the plaintiff and therefore the plaintiff is entitled to the cost of replacement of these machines.

1. I am satisfied that seven of the three bowl machines would cost $3,942.00 each to replace and the one bowl machine would cost $1,782.00 to replace making a total of $29,376.00 for damages.

1. I accept Mr De Souza’s evidence that the plaintiff has supplied to the first defendant goods for which there is due by the defendants to the plaintiff $5,356.23. 

1. I accept Mr De Souza’s evidence that the cost the plaintiff has been put to in recovering three of the machines is the sum of $896.50.  I accept this is a reasonable sum for that cost to the plaintiff and the plaintiff is entitled to recover that sum from the defendants. 

1. Finally, the plaintiff claims an account.  There is evidence which I accept that Mr C Bloomer has sold one of the machines to a Mr Greenwood for $1,800.00.  Further, it appeared to me that Mr C Bloomer took the view that he had no obligation to assist the plaintiff recovering its machines contrary to what I accept was the contractual agreement between the plaintiff and the defendants.  I consider it would be unlikely the defendants would not seek some benefit from the end users of the machines. 

1. I am disposed to make an order for an account.  I will hear the parties further upon delivering judgment on the other claims made by the plaintiff against the defendants.

1. I dismiss the defendants’ counter claim as I am satisfied the responsibility for servicing the machines fell upon the first defendant.  Further, no evidence was led by the defendants regarding the claim for loss of profits.

1. Therefore, I give judgment for the plaintiff against the defendants for the sum of $35,628.70.

1. I also allow the plaintiff interest on the judgment at the rate of 9% per annum from 6 August 2000 to date 4.76 years which is the sum of $15,263.33.

1. The total judgment inclusive of interest is $50,892.03.

1. I will hear the parties on the question of costs.