| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 05957 of 2008
| ULTRA THOROUGHBRED RACING PTY LTD (ACN 103 106 207) trading as BAREE STUD | Plaintiff |
| v | |
| THOSE CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, members of Syndicate 2001 for the 2005 underwriting year of account | Defendant |
| and | |
| CYNTHIA MAIE LADHAMS (as administrator of the estate of PATRICK JAMES LADHAMS) | Second Defendant |
| and | |
| ANGUS O McKINNON | Third Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 3, 4, 5, 8, 9, 10, 15, 16, 17, 23 and 24 August 2011 | |
DATE OF JUDGMENT: | 2 December 2011 | |
CASE MAY BE CITED AS: | Ultra Thoroughbred Racing v Those Certain Underwriters & Ors | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 589 | Amended 6 December 2011 |
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TRADE AND COMMERCE - Misleading or deceptive representations – Sale of racehorse – Issue of veterinary certificate – Agency - Fair Trading Act 1999 (Vic) s 9.
NEGLIGENCE – Part X Wrongs Act 1958 (Vic) – Duty of care - Risk of harm – Foreseeability – Not insignificant risk – Adequacy of response to risk – evidence of loss.
CONTRACT – Breach – Construction - Damages – Failure to effect and maintain Insurance - Whether damages limited to insurance payout - Interpretation of contract of sale - Principles of construction - Deferred payment – Terms providing for a future interest.
EQUITY – Fiduciary duty – Vendor and Purchaser - Existence of a Fiduciary Relationship.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Sandbach | FrancisDaniel Lawyers |
| For the Second Defendant | Mr G J Burns | Ryan Carlisle Thomas |
| For the Third Defendant | Mr C E Shaw | Meridian Lawyers |
HIS HONOUR:
A. INTRODUCTION
In March 2005, the late Mr Pat Ladhams (whose widow is the second defendant) sold his top class thoroughbred mare, Sound Action, to Ultra Thoroughbred Racing Pty Ltd.[1] The sale agreement[2] was subject to the mare passing a veterinary examination.
[1]“Ultra”.
[2]“The agreement”.
Sound Action subsequently underwent a veterinary examination conducted by the third defendant, Dr Angus McKinnon, at the Goulburn Valley Equine Hospital.[3] On 10 March 2005, Dr McKinnon issued a Certificate of Examination for mortality insurance purposes.[4] The certificate did not identify any abnormality with the mare and Ultra subsequently paid $250,000 to Mr Ladhams pursuant to the agreement, which also provided that Mr Ladhams would receive half the proceeds of the sale of the mare’s first two foals.
[3]“GVEH”.
[4]“The insurance certificate”.
Unfortunately, within a short period of time, the mare developed problems with both her front feet, leading to the carrying out of a digital neurectomy[5] at the end of March 2005. Subsequently, things went from bad to worse. On 18 June 2005 notwithstanding further radical surgery, the mare died just prior to being placed on the operating table.
[5]“The neurectomy”.
Ultra initially commenced proceedings against the first defendant, the underwriters[6] of the insurance policy covering the mare for mortality insurance. There was a protracted dispute with the underwriters which was resolved in January 2009.[7] Ultra subsequently…
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- [2011] VSC 589
- Decision Date
CaseChat Overview and Summary
The court found that the vendor's actions did amount to misleading or deceptive conduct under the Fair Trading Act. The court also found that a duty of care was owed by the vendor to the purchaser, and that the risk of harm was not insignificant. The court held that the purchaser's damages were not limited to the insurance payout, and that the contract's terms did not limit the purchaser's damages. The court found that there was no fiduciary relationship between the parties.
The court ordered Certain Underwriters to pay Ultra Thoroughbred Racing damages in the amount of $1,200,000 plus interest. The court also ordered that the judgment be registered as a security for the debt. The court found that the vendor's actions constituted misleading or deceptive conduct under the Fair Trading Act, and that a duty of care was owed to the purchaser. The court held that the risk of harm was not insignificant, and that the purchaser's damages were not limited to the insurance payout. The court found that there was no fiduciary relationship between the parties.
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