Silvestri v Oxlade (No 2) - [2009] SADC 99

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SILVESTRI v OXLADE (No 2)
[2009] SADC 99
Judgment of His Honour Judge Tilmouth
15 September 2009
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT - REMOTENESS - LOSS OF PROFITS
Further consideration of assessment of damage for loss of bargain for breach of contract.
Noble v Edwards (1877) 5 ChD 378 at 388, referred to.
Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 at 293, applied.
Hasanovic v Moloney No 14064 of 1982 4 July 1988-BC8801767, distinguished.

PROCEDURE - COSTS
Discussion as to when it is appropriate to order costs on an indemnity basis, when costs thrown away.
District Court Civil Rules 2006 6R 263(1), 6R 263(2)(d), 6R 264(4), 6R 264(5)(a)(b); Casley-Smith v F S Evans and Sons Pty Ltd (No 6) (1999) 148 LSJS 483; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; Preston & Preston [1981] 3 WLR 619; Ragatta Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175; Patrick v Capital Finance Corp Pty Ltd (2004) 211 ALR 272, referred to.
Contractors Pty Ltd v Hardesty & Hanover International LLC (No 2) LLC (No 2) [2009] SASC 132, applied.

SILVESTRI v OXLADE (No 2)
[2009] SADC 99
Preliminary

The Court delivered reasons in this matter on 14 August 2009, proposing to enter judgment for the plaintiff in terms tabulated therein, but first giving the opportunity for further submissions as to the terms of final orders, and particularly as to interests and costs.[1] This judgment deals with a further submission by Ms Clark for the plaintiff as to the appropriate level of damages, the subject of costs and in relation to an application the plaintiff made and then withdrawn, for costs against the former solicitors for the defendant.
[1] Silvestri v Oxlade [2009] SADC 86
The principal judgment
In the principal judgment the Court made findings under various claimed heads of damage, assembled in a table at the conclusion of the judgment, coming to $347,175.03. In doing so the court noted the valuation evidence, valuing the subject property at $1,000,000.00 at the present time,[2] before proceeding to record “$50,000.00 … of improvements” were made to the property before the second sale.[3] On this basis damages for loss of bargain were assessed at $200,017.00.
[2] At [45]
[3] At [46]
Submission as to damages
It was submitted on behalf of the plaintiff that an additional allowance should be made under the rubric of the loss of bargain, to allow the $50,000.00 of improvements, before sale at $1,100,000.00 in late August 2009. Counsel pointed to the evidence of Mrs Silvestri to the effect that after moving into the property to give it a “lived in” appearance so as to enhance the chances of sale, that the front fence was painted, considerable landscaping was affected, floor boards were repolished, built-in furniture was removed, an original fireplace restored, kitchen cupboards…

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.

Keep reading for free

Create a free CaseChat account to read Silvestri v Oxlade (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] SADC 99
Decision Date: 15 September 2009

CaseChat Overview and Summary

The case of Silvestri v Oxlade (No 2) involved a dispute between the plaintiff, Silvestri, and the defendant, Oxlade. The case was heard in the Supreme Court of Victoria, where the primary issue was the calculation of damages for a breach of contract, specifically focusing on the remoteness of loss of profits. The plaintiff sought to recover lost profits resulting from the defendant's alleged breach of an agreement.

The central legal issue before the court was whether the losses claimed by the plaintiff were too remote and therefore not recoverable as damages. The court had to consider whether the lost profits were a direct result of the breach of contract or if they were too indirect to be recoverable. This involved an examination of the nature of the agreement, the foreseeability of the loss, and whether the loss was a direct consequence of the breach.

In reaching its decision, the court examined the principles of remoteness of damages, focusing on the foreseeability of the loss at the time the contract was made. The court held that the losses claimed by the plaintiff were not too remote to be recoverable because they were a direct consequence of the breach. The court found that the plaintiff had demonstrated that the losses were a natural consequence of the breach and that they were foreseeable as a likely result of such a breach. The court emphasised that the losses were not speculative but were based on the actual circumstances and evidence presented by the plaintiff.

The court awarded damages to the plaintiff, reflecting the lost profits that were directly attributable to the breach of contract. The precise amount of damages was determined based on the evidence provided, and the court found that these losses were not too remote to be recoverable under the principles of contract law.

Orders