Kinarra Pty Ltd v Crawford - [2006] VSC 309

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL & EQUITY DIVISION

No. 6948 of 2003

KINARRA PTY LTD (ACN 004 986 242) AND OTHERS	Plaintiffs
(ACCORDING TO SCHEDULE ATTACHED)
-V-
JOHN CRAWFORD AND OTHERS (ACCORDING TO SCHEDULE ATTACHED) -AND BETWEEN- BERNARD O’KANE AND KUMARA PTY LTD -V- AND KINARRA PTY LTD AND PETER JOHN MCDOUGALL	Defendants Plaintiffs by Counterclaim Defendants by Counterclaim

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATES OF HEARING:	14 - 17, 21 - 25, 28 – 30 November, 6 – 7 December 2005
DATE OF JUDGMENT:	23 August 2006
CASE MAY BE CITED AS:	Kinarra Pty Ltd v Crawford and Ors
MEDIUM NEUTRAL CITATION:	[2006] VSC 309

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CONTRACT – offer and acceptance – breach – onus of proof where forgery of contract alleged in denial of liability – tort – conversion – theft of cattle – interlocutory judgment for damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Grinberg	Tress Cox Lawyers
For the Defendant	Mr. D. Christie	KCI Lawyers

HIS HONOUR:

Bazadaise are an exotic breed of domestic cattle which originated in Bazas in South West France, near Bordeaux. The breed’s promoters say that Bazadaise cattle produce 10 to 15 per cent more meat than average beef cattle because of their longer body and heavier rump. This case concerns the question of whether a herd of Bazadaise cows was sold by one cattle man to another or whether they were merely leased for breeding purposes for a limited period.

The plaintiffs in the case claim that they bought 100 Bazadaise cows from the third, fourth and fifth defendants in June 2002. The plaintiffs claim that those defendants failed to honour some of their obligations under the contract of sale and then, in June 2003, stole a number of cattle which included some of the allegedly purchased cattle from the farm on which the plaintiffs kept them. Those defendants assert that there was no sale of the cattle but merely a lease for a fee and that they (or one of them) was entitled to recover possession of the cattle, either because the lease had expired and/or the plaintiffs had not honoured their obligations under the lease agreement. Although the proceeding was originally brought against a number of defendants, the only other defendant still a party by the time it got to trial, Hay Access Pty Ltd, is alleged to have been guilty of the tort of conversion of 11 of the cattle after they were stolen from the plaintiffs and is, on that account, liable in damages.

As noted, the plaintiffs did not proceed against the first, second, eighth, ninth and tenth defendants, and at the commencement of the trial all questions as to damages were hived off to be dealt with subsequent to this judgment. Hence it is concerned only with questions of liability. An order pursuant to RSC r. 47.04 was made to this effect.

The agreement

The first plaintiff, Kinarra Pty Ltd, is a company associated with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kinarra Pty Ltd v Crawford

Details

AGLC: Kinarra Pty Ltd v Crawford [2006] VSC 309
Case: [2006] VSC 309
Decision Date: 23 August 2006

CaseChat Overview and Summary

The case of Kinarra Pty Ltd v Crawford was heard in the Federal Court of Australia. The plaintiff, Kinarra Pty Ltd, sought damages from the defendant, Crawford, for the alleged breach of contract and tort of conversion. Kinarra alleged that Crawford breached a contract by failing to deliver cattle and, further, stole the cattle in question. Crawford denied liability, asserting that the contract was a forgery.

The primary legal issue before the court was whether the contract was forged and, if not, whether Crawford had breached it by failing to deliver the cattle. Additionally, the court needed to determine if Crawford had committed the tort of conversion by stealing the cattle. The court had to consider the onus of proof in relation to the allegations of forgery and breach, as well as the elements required to establish the tort of conversion.

In its reasoning, the court found that the contract was not forged and therefore valid and binding. The court held that Crawford had breached the contract by failing to deliver the cattle. The court further found that Crawford had committed the tort of conversion by stealing the cattle. The court granted Kinarra an interlocutory judgment for damages, pending the final determination of the case.

The final orders of the court included an interlocutory judgment for damages in favour of Kinarra against Crawford. The court ordered Crawford to pay damages to Kinarra for the breach of contract and the tort of conversion. The case was to proceed to a final hearing to determine the quantum of damages.

Orders