Rand v Simpson

DISTRICT COURT OF QUEENSLAND

CITATION:

Rand v Simpson [2015] QDC 244

PARTIES:

CAROL ANN RAND

(Appellant)

v
PATRICIA GAY SIMPSON

(Respondent)

FILE NO/S:

968 of 2015

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

24 September 2015 ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2015

JUDGE:

Burnett DCJ

ORDER:

1.  The appeal be allowed;

2. The decision of the learned magistrate made on 12 February 2015 be set aside;

3. Judgment be entered for the plaintiff in the sum of $5000.00;

4. There be no order as to costs in respect of the proceedings before the learned magistrate;

5. There be no order as to costs in respect of the appeal;  and

6.  The parties have liberty to apply.

CATCHWORDS:

CONTRACTS – GENERAL PRINCIPLES – construction and interpretation of contracts – implied terms – liquidated damages.

ANIMAL – Ownership of progeny – lease agreement for stud purposes – subsequent birth of kittens – where defendant desexed female progeny – whether contract breached.

PROCEDURE – COSTS – Conduct of parties – where proceedings more appropriately commenced in QCAT.

Queensland Civil and Administrative TribunalAct 2009, ss 9, 13, 100.

Sale of Goods Act 1896, s 3.

AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170
BP Refinery (Westernport) Pty Ltd v Hastings Shire (1977) 180 CLR 266
Graf and Lingerel (1914) 27 WLR 707
Makita (Australia) Pty Ltd v Sprowles (2001) 25 NSWLR 705
Tucker v Farm & General Investment Trust Ltd (1966) 2 QB 421

Warren v Coombes (1979) 142 CLR 531

COUNSEL:

D Kelly for the appellant

The respondent appeared on her own behalf

SOLICITORS:

Biggs Fitzgerald Pike for the appellant

The respondent appeared on her own behalf

1. The appellant was an unsuccessful plaintiff in proceedings in the Brisbane Magistrates Court conducted in October 2014.  Judgment dismissing her claim was delivered on the 12^th of February 2015.  The plaintiff’s originating cause of action commenced in the District Court.  She sought relief by way of specific performance of a written agreement for the provision of a kitten together with damages for breach of contract in the liquidated sum of $5000.  The claim was subsequently amended to abandon the claim for specific performance but allege, in the alternative, a claim for damages for “breach of duty and/or trespass to chattels”.  Additionally she included a claim for “aggravated exemplary and punitive damages”.

1. The matter was subsequently remitted to the Magistrates Court for determination.  The trial proceeded for two full days before her Honour, in the Magistrates Court, retired to consider the matter.  Briefly, the plaintiff and the defendant had entered into an agreement referred to as a “lease agreement and notification form” whereby the plaintiff supplied her female Persian cat (“the dam”) to the defendant, who owned a male Persian cat, (“the sire”).  The reason for the supply was for stud purposes.  The written agreement purported to govern the arrangement, but as this dispute illustrates, the drafting of this agreement was poor and accordingly…