Greenridge Botanicals (Aust) P/L v Nevin

SUPREME COURT OF QUEENSLAND

CITATION:

Greenridge Botanicals (Aust) P/L v Nevin & Anor
[2000] QCA 498

PARTIES:

GREENRIDGE BOTANICALS (AUSTRALIA) PTY LTD
ACN 010 633 100
(plaintiff/appellant)
v
JAY NEVIN and JUSTINE NEVIN
(defendants/respondents)

FILE NO/S:

Appeal No 9113 of 1999
DC No 52 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

8 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2000

JUDGES:

Pincus and Davies JJA and Mackenzie J
Judgment of the Court

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – GENERAL

DAMAGES – GENERAL PRINCIPLES – DIFFICULTY OF ASSESSING DAMAGES – where appellant failed to give sufficient notice for termination of oral exclusive distribution agreement – where appellant in breach of implied term – consideration of the correct measure of damages for breach of contract – whether the evidence was sufficient to enable an assessment of the nett loss to be made – whether the damages awarded was a reasonable reflection of the nett loss suffered

Hadoplane Pty Ltd v Edward Rushton Pty Ltd [1996] 1 QdR 156, applied

Ray Teese Pty Ltd v Syntex Australia Limited [1998] 1 QdR 104, considered

COUNSEL:

C E K Hampson QC with S D Rapoport for the appellant
R J Douglas SC for the respondents

SOLICITORS:

Davidson & Sullivan (Toowoomba) for the appellant
Aitken McLachlan & Thorpe (Sydney) for the respondents

1. THE COURT:  This is an appeal from a judgment given in the District Court on 21 September 1999.  The appellant was the plaintiff in that action but the only issue in the action concerned the defendants' counter-claim it being admitted by the defendants that the plaintiff was entitled on its claim to $69,835.00.  The respondents' counter-claim was one for breach of an alleged implied term of an exclusive distribution agreement between the parties that the respondents were entitled to six months notice of termination of the agreement.  The existence of that term was not contested in this appeal, the only question being the measure of damages for its breach.  The learned trial judge awarded $62,095.33 being the lesser of two alternative amounts contended for by the respondents ($69,835.90) less some commission which should have been allowed for.

1. The appellant seeks a judgment in its favour on the respondents' counter-claim on two bases.  The first involves contentions that the learned trial judge awarded damages on the basis of gross loss of profits (that is, commission) whereas the correct measure of damages was nett loss of profits (that is, commission less the expenses of earning that commission);  that there was no evidence from which nett profits could have been inferred;  and that consequently this Court is unable to assess damages on the correct basis.  Secondly it is submitted that no credit was given by the learned trial judge for the respondents' earning capacity after termination of the agreement by the appellant.  Alternatively, on the same bases the appellant seeks…