Waldron v Baz - [2005] WADC 187

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WALDRON & ANOR -v- BAZ & ANOR [2005] WADC 187

CORAM: DEANE DCJ

HEARD: 11-14 JANUARY 2005

DELIVERED : 5 OCTOBER 2005

FILE NO/S: CIV 3079 of 2002

BETWEEN: GARRY FRANK WALDRON
ELIZABETH KATHLEEN WALDRON
Plaintiffs
AND
DOMINGO BAZ
BAZ INDUSTRIES PTY LTD
Defendants

Catchwords:

Bailment - Whether defendants sub-bailees of plaintiffs' goods - Whether it an implied term of bailment that goods would be at risk of defendants - Whether goods damaged or destroyed whilst at premises of defendants - Whether defendants liable in negligence - Whether plaintiffs entitled to damages for loss or destruction of goods - Method of assessment of damages if applicable

Legislation:

Nil

Result:

Sub-bailment relationship between plaintiffs and defendants proved
Breach of duty of care by defendants
Damages assessed

Representation:

Counsel:

Plaintiffs: Mr P A Monaco
Defendants: Ms R Cosentino

Solicitors:

Plaintiffs: Godfrey Virtue & Co
Defendants: Gibson & Gibson

Case(s) referred to in judgment(s):

Bowes v Super‑Service Stations Ltd [1955] 3 DLR 193
Building & Civil Engineering Holidays Scheme Management Ltd v Post Office [1966] 1 QB 247
Consentino v Dominion Express Co (1906) 4 WLR 498
Dominion Mosaics & Tile Co Ltd v Trafalga Trucking Co [1990] 2 All ER 246
Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd [1970] 3 All ER 825
Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220
Houghland v R R Low (Luxury Coaches) Ltd [1962] 1 QB 694
Liesbosch Dredger v Edison [1933] AC 449
Maritime Coastal Containers Ltd v Shelburne Marine Ltd (1982) 52 NSR (2d) 51
Mitchell v Ealing London Borough Council [1979] QB 1
Morris v C W Martin & Sons Ltd [1966] 1 QB 716
Moukataff v British Overseas Airways Corporation [1967] 1 Lloyd's Rep 396
Nibali v Sweeting & Denney (WA) Pty Ltd (1989) A Tort Rep 80‑258
Palmer v Toronto Medical Arts Building [1960] OR 60 (CA)
The Pioneer Container (1994) 2 All ER 250
Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) A Tort Rep 81‑292
Uctkos v Mazzetta [1956] 1 Lloyd's Rep 209

Case(s) also cited:

Awad v Pillai [1982] RTR 266
British Colombia Sawmill v Nettleship [1866] 3 CP 499
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Degrace v Central Sales & Service Ltd (1979) 24 NRB (2d) 557
Donoghue v Stevenson [1932] AC 562 HL
Dorico Investments Ltd v Weyerhaeuser Canada Ltd (1999) ABQB 561
Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1933) 40 NSWLR 206
Lindores Plant & Equipment Pty Ltd v Jacap Low Loaders Pty Ltd [2004] NSWSC 867
McComb v Martin Box Marine Holdings Pty Ltd (1992) 8 SR (WA) 193
Roman Catholic Archbishop of Perth v John Bishop, unreported; SCt of WA; Library No 950470; 7 September 1995
Gerrard v Slamar & Anor [2004] WASCA 253
The Argentino (1888) 13 PD 191
WD & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338

DEANE DCJ: In this matter the plaintiffs, who reside in Broome, allege that in March or April 1999 they purchased items of jarrah furniture as well as kitchen fittings and appliances from a residence in City Beach. It is alleged that the goods purchased were of extremely high and in some cases unique quality. In June 2000 the plaintiff engaged Covington Removals ("Covingtons") to pack, store and transport the goods purchased from the residence in City Beach to the plaintiffs' residence in Broome. It is alleged that after July 2000 on a date unknown to the plaintiffs, the goods were delivered to the defendants' premises in Broome, where the defendants carried on a transport and storage business "Kimberley Freightlines". It is alleged that the goods were delivered to the defendants as bailees for the goods which were then stored at the defendants' Broome depot.
Moreover the plaintiffs say that when the goods were delivered by Covingtons to their residence in Broome on or about 8 July 2001 in a sealed container, they were severely damaged and destroyed. The plaintiffs claim that the defendants were under a duty to keep the goods safe and free from damage and to deliver them to the plaintiffs in the same order and condition as when the goods were deposited at the depot. As that did not happen the plaintiffs allege they have suffered loss and damage and that the defendants as bailees failed to exercise due care in the storage of the goods the subject of the bailment. As a consequence of the alleged breach of duty of care and the defendants' negligence it is claimed the goods were damaged and destroyed by water and white ant infestation. It was an implied term of the bailment that the goods would be at the risk of the defendants. It is to be noted that it emerged in evidence at trial that on legal advice the plaintiffs did not pursue a claim against Covingtons or their insurer.
Save for admitting that the defendants carried on business as "Kimberley Freightlines" no admissions are made. The defendants further deny that they were bailees for the goods stored at their Broome depot and assert that on about 7 August 2000 Covingtons and Baz Industries Pty Ltd agreed that Covingtons would store the container at the defendants' premises pursuant to the particular terms of an agreement reached between them. This storage was to be for a period of four weeks in relation to which Covingtons would pay the second defendant weekly storage fees and would also reimburse them for any crane hire charges.
The plaintiffs' case is that a bailment relationship existed whereby the defendants were obliged to take good care of the goods but were negligent in doing so, as a consequence of which the plaintiffs are entitled to compensation for the damage they have suffered. The defendants claim that Kimberley Freightlines were in the business of transport not storage and that whilst there was a casual or temporary relationship between the defendants and Covingtons to store the goods for a month no bailment arose out of that relationship and therefore no obligation was owed by the defendants to the plaintiffs and they owed them no duty of care.
Halsbury's Laws of England 4^th ed par 1801 says:
"A bailment, traditionally defined, is a delivery of personal chattels on trust, usually on a contract express or implied that the trust shall be duly executed and the chattels redelivered in either their original or an altered form as soon as the time or use for or condition on which they were bailed shall have elapsed or been performed. Under modern law, bailment arises whenever one person, the bailee (here alleged to be the defendants) is voluntarily in possession of goods belonging to another person, the bailor (here alleged to be the plaintiffs). The legal relationship of bailor and bailee can exist independently of any contract, and is created by the voluntary taking into custody of goods which are the property of another, as in cases of sub‑bailment or of bailment by findings. The element common to all types of bailment is the imposition of an obligation, because the taking of possession in the circumstances involves an assumption of responsibility for the safekeeping of the goods. An action against a bailee can be regarded as an action on its own, sui generis, arising out of the possession had by the bailee of the goods."
Paragraph 1803 goes on to address the degree of care and diligence required of the bailee in various classes of bailment;
"That degree has, from the time of the Roman Empire until fairly recent times, been held to vary according to the benefits derived from the bailment by the bailor and the bailee respectively. Thus, an ordinary degree of care and skill was traditionally required where both benefited from the transaction; slighter diligence, perhaps, where the benefit was wholly that of the bailor … and greater diligence where the benefit accrued only to the bailee … . More recently, however, it has been recognised that the common law duty of every bailee is to take reasonable care of his bailor's goods, and not to convert them. The standard of care required is therefore the standard demanded by the circumstances of each particular case. To try to put a bailment into a watertight compartment, such as gratuitous bailment or bailment for reward, can be misleading. It must be remembered, however, that bailment is frequently a contract, and the parties may always vary the incidents by the terms of the contract."
The plaintiffs contend that their relationship with the defendants was not one of gratuitous bailment but nonetheless it is worth noting the bailee's obligations pursuant to a gratuitous bailment which are addressed at par 1815 which states:
"In order that an action may be maintained in the case of a gratuitous deposit the defendant must have been guilty of either fraud, breach of orders, or negligence. In negligence the standard of care required of a gratuitous bailee is that demanded by the circumstances of the particular case: thus the measure of diligence demanded of a gratuitous depository is as a rule that degree of diligence which men of common prudence generally exercise about their own affairs, but if the bailee is notoriously dissipated, negligent or imprudent, and the bailor was aware of the fact, a presumption might perhaps be raised that the bailor expected of him only such amount of care as the bailee was in the habit of bestowing on his own chattels of a similar nature. The fact that the bailee keeps chattels deposited with him in the same manner as he keeps his own may be, but is not necessarily, sufficient to exempt a gratuitous bailee from liability."
Paragraph 1819 deals with the consequences of a breach of duty in a gratuitous bailment situation and affairs:
"If a bailee deals with the chattels entrusted to him in a way not authorised by the bailor, he takes upon himself the risk of so doing. If, therefore, the bailee without necessity, and without the bailor's permission, fails to keep the chattel entrusted to him in the place where he has undertaken to keep it, that is to say, in the absence of express agreement, in the place where he himself usually keeps his own chattels of a similar description, he becomes by reason of his breach of duty and insurer of the chattel, and is liable to the bailor for any loss or damage caused, unless he can show that the loss of damage did not arise out of his breach of duty, but must have taken place as inevitably at the one place as at the other. Similarly, a bailee by way of deposit who undertakes to redeliver the goods to the bailor at a particular time, and fails to do so, becomes thereafter an insurer of the goods."
Relevant to this, counsel for the plaintiffs argues that even if the relationship was categorised as one of gratuitous bailment the defendants were still under an obligation to take as good a care of the goods as if they were the defendants' own goods. With reference to par 1822 the gratuitous bailee's liability where he has failed to discharge his obligations "renders him liable to be sued for negligence if it causes damage to the bailor". In that sense the plaintiffs say the case against the defendants would be one of negligence (see par 1822).
Paragraph 1839 deals with the care and diligence required where there is bailment for valuable consideration which the plaintiffs allege applies in this case:
"A custodian for reward must exercise reasonable care for the safety of the article entrusted to him. The standard of care and diligence imposed on the custodian is that demanded by the circumstances of the particular case. The precautions required of him may therefore be more exacting than those required of a gratuitous depository."
It further states:
"The custodian is therefore bound to take reasonable care to see that the place in which the chattel is kept, and the tackle used in connection with it, are fit and proper for the purpose, to see that the chattel is in proper custody, to protect it against unexpected danger should that arise, to recover it if it is stolen, and to safeguard the bailor's interest against adverse claims. If the chattel is injured through his negligence, he will be excused on the ground that it has been subsequently destroyed by inevitable mischance."
The plaintiffs contend that a sub‑bailment situation existed between the plaintiffs and defendants and this is discussed in par 1841:
"A sub‑bailee (alleged to be the defendants) is a person to whom the actual possession of goods is transferred by someone who is not himself the owner of the goods (alleged to be Covingtons) but has a present right to possession of them as bailee of the owner. When the sub‑bailee accepts possession of the goods he thereby assumes the obligations of a bailee towards the original bailor. The nature of these obligations will, as in the case of ordinary bailment, vary according to the circumstances in which and the purposes for which the goods are delivered. Thus, if the sub‑bailment is for reward, the sub‑bailee will owe to the bailor all the duties of a bailee for reward. The bailor has a right of action against the sub‑bailee for breach of any of his duties either if the bailor has the right to immediate possession of the goods or if they are permanently injured or lost. The sub‑bailee also owes, concurrently, the same duties to the original bailee, whose obligations to the bailor are not extinguished by the sub‑bailment. The relationship between the bailor and the sub‑bailee exists independently of any contract between them, or of any attornment."
Paragraph 1843 deals with the onus of proof and states:
"When a chattel entrusted to a custodian (alleged to be the defendants) is lost, injured or destroyed the onus of proof is on the custodian to show that the injury did not happen in consequence of any neglect on the part of himself, or on the part of his servants acting within the course of their employment, to use such care and diligence as a prudent or careful man would exercise in relation to the property."
The defendants argue that this was not a bailment or indeed a sub‑bailment situation. Relevant to the question of general negligence it is pointed out that there are no particulars pleaded and therefore it is for the plaintiffs to demonstrate that the conduct of the defendants breaches any duty of care which might be proved was owed to the plaintiffs. Were the Court to be satisfied that a bailment or sub‑bailment relationship existed, it is accepted that the onus is on the defendants to demonstrate that any damage to the goods stored at the defendants' premises was not the result of neglect or negligence on the part of the defendants. In the event that the Court were not to be persuaded that it was a bailment or sub‑bailment relationship it is still necessary to determine whether or not there has been any negligence for breach of duty of care on the part of the defendants towards the plaintiffs.
The defendants' counsel conceded that if the Court were to find a bailment situation existed it would properly be categorised as relationship of sub‑bailment. It is common ground that the plaintiffs had no direct dealings with the defendants and therefore did not grant the defendants possession of the goods directly, but in any event it is said that either category of bailment requires knowledge of the goods and consent to possession of the goods. In a sub‑bailment relationship counsel for the defendants argues that pursuant to The Pioneer Container (1994) 2 All ER 250 the sub‑bailee must be aware of the identity of the principal bailor and further that if a sub‑bailee does not have the requisite knowledge they cannot assume a duty of care towards a person to whom the sub‑bailor has never voluntarily taken possession of goods nor voluntarily assumed a duty of care towards those goods. In this case it is contended that with respect to both the relationship of bailment and sub‑bailment the defendants did not have knowledge of the goods or knowledge as to the identity of the ultimate owner of the goods being the plaintiffs. For this reason the defendants contend that in this case neither a bailment or sub‑bailment relationship existed and therefore the plaintiffs have only a case in negligence in relation to which they must prove negligence on the part of the defendants which in turn led to loss and damage to the plaintiffs.
At the commencement of the trial counsel for the plaintiffs pointed out there was an admission by the defendants that Kimberley Freightlines owned or were in possession of a forklift which had the capacity to lift certain containers, depending on their dimensions, up to 2.5 tons in weight. Further it was submitted the defendants admitted that in or about 2001 Pearl Coast Crane Hire relocated in the Kimberley Freightlines' depot the container which had been delivered to them by Covingtons. The significance of the admission was said to be that the defendants therefore had two opportunities to know or become aware that the container delivered to them by Covingtons and containing the plaintiffs' goods was in fact full, in that sense not an empty container.
Counsel for the defendants responded that whilst it was admitted Kimberley Freightlines owned or were in possession of the particular forklift described, it was not admitted that the forklift was located at the defendants' Broome depot at any particular time.

The evidence called on behalf of the plaintiffs

Mr and Mrs Waldron

Mr Waldron is a teacher who has been based in the Kimberleys since 1986. He has taught woodwork over the years and has a particular admiration for the qualities of jarrah wood. He and his wife owned a 1.2 hectare lot in Broome which they intended to develop as a family residence. With this in view they purchased for relocation on to the lot an office building containing jarrah floors. It was restumped on steel stumps to avoid white ant infestation and damage when it was transferred to their property. The plaintiffs intended to construct and live in a large shed on the property while the office building was renovated into a family home. They also intended as part of the renovations to build a kitchen in jarrah on to the office building. The plaintiffs saw an advertisement in the West Australian newspaper for a kitchen that was for sale by a Mr and Mrs Millane who were living at 17 Welara Road in City Beach.
In March or April 1999 the plaintiffs came to Perth to view the kitchen, which was being removed from the Weelara Road residence because Mr and Mrs Millane were renovating their home, including the kitchen, to introduce a more contemporary design into the premises. With reference to Exhibit 1(1-8) a series of photographs, Mr Waldron described all of the kitchen cupboards, solid timber doors some with leadlight insets and bookcases as well as associated fittings including many drawers with hardwearing melamine interiors. The bench tops and splash backs were of an expensive and high quality Corian material. The workmanship and quality of the jarrah timber used was exceptional in Mr Waldron's view.
The plaintiffs also purchased a number of white goods that were part of the kitchen including a microwave, insinkerator, sink bowls, a dishwasher, a cook top and wall oven as well as a hand beaten copper rangehood and an extraction fan. In addition they purchased a refrigerator, an intercom valet system and a Robin Hood ironing cupboard in jarrah. All the kitchen furniture and white goods though not new, were in pristine condition and in Mr Waldron's view it was a fully working kitchen. The total purchase price paid by the plaintiffs for these items was $13,000.
As the plaintiffs could not take immediate delivery of the items purchased at their premises in Broome, Mr Millane offered to store the goods, once removed from the kitchen, in his very large 14 car garage for as long as the plaintiffs required or until Mr Millane needed to use the garage space for other purposes. To ensure that the furniture and associated white goods had not been damaged after they were removed from the kitchen in the renovation process, Mr Waldron visited the Millane residence again on 25 November 1999 and took a series of photos, Exhibit 2 (1-4), showing various items in situ in the garage after they had been removed and in some cases dismantled. Once again upon viewing the items Mr Waldron was extremely impressed with the quality and workmanship of the items he had purchased.

When the plaintiffs were informed in approximately May 2000, that the Millanes required their garage space, the goods they had stored there had to be removed. As a consequence the plaintiffs contacted a friend seeking advice as to a reputable entity which could collect and store the goods until the plaintiffs were ready to receive them. They were given the name of Covington Removals as a result of which Mr Waldron contacted that firm and spoke to Mr Wayne Covington to discuss the plaintiffs' requirements. The firm specialises in packing and removing furniture.
Mr Waldron was informed that to avoid moving the goods twice when they were packed and collected it would be advisable to place them into a container immediately. The plaintiffs would be responsible through Covingtons for the hire of that container but Mr Covington was to arrange the details. Mr Waldron supplied Covingtons with particulars as to where the goods were located at the Millanes' and said in evidence that he assumed that the goods would be stored in the container in Perth at the Canning Vale Depot of Covington Removals.
It was only in May 2001 when Mr Waldron was visiting Perth and contacted Covingtons by telephone to advise that the plaintiffs were in a position to take delivery of the goods, that he was informed by Mr Covington after going to the Canning Vale Depot that the goods were in fact in Broome. He was not, however, advised of the exact location in Broome. At that time he recalled he wrote out a cheque Exhibit 5, for $3,610 to Covingtons to cover what he believed was the costs of the collection of the goods and their subsequent storage, as well as the delivery of the goods to their final destination in Broome.
He did not recall receiving an invoice from Covingtons although he did recognise such an invoice addressed to himself dated 24 May 2001. He said that he did not see that document until 4 January 2005. That invoice, Exhibit 6, reads: "Pick up of goods in store in container" for a sum of $2,456 which amount Mr Waldron said he did not pay to Covingtons. There is a further charge for container hire of $1,254 making a total of $3,710 although the cheque butt reflects a payment of only $3,610. Mr Waldron believed that the additional $100 may have been for payment to a crane driver from Pearl Coast Crane Hire in Broome but said he personally was not asked to pay that $100 to Covingtons.
Shortly after Mr Waldron had returned to Broome, the plaintiffs were contacted and advised it was possible to have the goods delivered to them at their premises in Broome. By this time Mr Waldron knew the container with the goods was in Broome but was still unaware of the exact location. Nonetheless delivery of the container to the Waldrons was convenient and that was arranged to occur on Sunday 8 July 2001. After speaking to a crane driver from Pearl Coast Crane Hire, Mr Waldron was able to make himself available to assist with the delivery. Whilst Mr Waldron ensured there was sufficient space in the shed to receive and store the goods to be delivered, his wife attended the depot of the defendants in Broome to meet and pay the crane driver and to direct the driver of the Covington's truck with the container to follow her to the plaintiffs' property.
The container which was secure and padlocked was transported on the back of the truck. The truck driver collected keys from the cab and unlocked the padlock of the container. He then opened the doors at the back of the container and it was at that point Mr Waldron said he became aware of a very dank smell within the dark interior of the container. On further investigation Mr Waldron said everything inside the container appeared to be very wet and he could not believe so much water could be inside the container. The packing blankets were sodden and when he reached in and touched some of the wood it was so friable it broke away in his hands. He was shocked and distressed. He noted an inventory pad within the container which was so damp it was almost unreadable. He also noted white ant tracks and trails within the interior of the container and formed the view that much of the damage he could see was as a result of white ant activity. This was confirmed when he saw that there were white ants in the door ledges so that on opening the doors white ants actually fell onto the flat bed of the truck beneath. He described these white ants as mastotermae, a species found in Broome but not Perth. The white ant trails appeared to be constructed of a combination of sawdust, saliva and red pindan soil. It was at this point that the plaintiffs took photographs of the interior of the container and the damaged goods as well as the underneath of the container, Exhibit 3 (1-15). Exhibit 3A, or CD of photographs depicts the same damage.
Mr Waldron explained the contents of these photographs in some detail in his evidence. With reference to one photograph showing the underside of the container taken from the righthand side of the truck, he pointed out that one could see on the lefthand side, evidence of grass and other plant matter as well as the red line of the pindan dirt adhering to the floor of the container. He indicated that the base of the container is essentially constructed of timber, but he was unsure if it was plywood or solid timber.
Despite their distress and shock the plaintiffs realised there was no point in the goods remaining in Broome where there were no repair facilities, even if repairs could be effected. The goods remained in the container which was closed up and driven away on the back of the delivery truck. The plaintiffs have not seen the damaged goods since and do not know what happened to them.
After speaking with Mr Stillitano at International Cabinets, Mr Waldron said that he was seeking replacement of the timber furniture and items, the cost of which would exceed $60,000. After speaking with Mr Urban of Richards Electrical, Mr Waldron obtained quotes for the replacement of white goods which would be in excess of $17,000. In addition he was seeking reimbursement of transport, packing and storage costs as well as crane hire in the sum of $3,710. He told the Court that he had never had any dealings with Kimberley Freightlines with respect to the storage of the goods in the container at any time.
Mr Waldron believed that the cook top was a Miele brand but after the passage of time he did not recall the particular details such as the age of this item or indeed the oven or dishwasher. Similarly he was unsure of the exact details of the sink including its brand and age, the tapware or the capacity of the insinkerator. He denied that he initially engaged Covingtons to transport the kitchen in the container to Broome, because Mr Waldron said he knew full well that the items would have to be stored for some time prior to delivery, although he agreed that he did not specify where he wanted the items in the container stored and left that to Covingtons. These initial arrangements were made by telephone and he did not believe he was given a quote relevant to the cost of transport. In fact he said was not interested in individual costings but had a ball park figure in his mind whereby the $3,610 he paid Covingtons was at the upper end of that range.
He said that the address of 7 Keaney Street, City Beach, which he gave to Mr Hendle, a Covington's truck driver, for collection of the goods by way of e‑mail was a mistake, as the address meant nothing to him. Whilst Mr Waldron gave no specific instructions or directions to Covingtons and indeed did not receive any invoices from them during the period of storage, he said he was told by Mr Covington that his firm was happy to arrange storage and was also told the goods would be stored in Perth until such time as they were required to be transported to Broome.
Mr Waldron expected at the time he made the arrangements that part of the costs incurred would relate to container hire and believed that the container used would actually belong to Covingtons. In the end result he did not know who owned the container. He assumed the container would be stored in Covington's yard at Perth in the conditions which Covingtons considered most appropriate.
Mr Waldron said he was aware that Kimberley Freightlines operate a freight transport business between Perth and the Kimberley. He did not know what the market rate for storage was, although he had stored goods in the past through the Education Department. Nonetheless he denied that the $3,610 he paid to Covingtons was for hire of the container and storage of the goods rather than for transport of them from Perth to Broome. Relevant to Exhibit 6, which states: "Pick up goods in store in container" for $2,456 he agreed that there was no item on it which was directed at freight or transport to Broome. He could not say freight alone on the current market rate would be in the vicinity of $2,500 and denied he paid for transportation of the goods before 24 May 2001. He maintained that the $3,610 he paid Covingtons was the only time he had paid them money.
He agreed that when the container was opened at his residence in Broome, he did not test any of the electrical appliances contained in it to see whether they were working but based his description of the damage on his observations at the time. He admitted that the plaintiffs had made a claim against Covingtons but had received no compensation from either them or their insurers and so did not pursue the matter.
In relation to the damages claimed Mr Waldron said that they reflected the cost incurred in building the kitchen that the plaintiffs now have, and in fact they had incurred even greater costs taking into account purchasing goods to be placed into the kitchen. An order for the replacement kitchen excluding appliances, however, had not yet been placed although a pricing of $40,000 based on the plan had been quoted. Whilst the plaintiffs had investigated the cost of replacing their kitchen it has not yet been done albeit the plaintiffs have purchased some appliances for the kitchen including a refrigerator and a cook top. Mr Waldron could not specify the prices of those items.
In an affidavit, Exhibit 10, sworn on 14 April 2003 Mr Waldron confirmed that he said "had I known of the container being stored in Broome, I would not have authorised or sanctioned the storage of the container in the open and/or on the ground" explaining that this was because of the possible white ant damage and heavy rains in the region which might penetrate the seals of a container. In his experience if a container was stored poorly in an open area in Broome it would be at risk of damage from both of these sources. He said poor storage referred to the container being stored directly on the ground where it would be susceptible in particular to white ant damage.

Paul Hendle

In 2000 Mr Hendle was employed by Covingtons as their operations manager and in July 2000 he attended the Millanes' address in City Beach in order to inventory, pack and load an entire large heavy kitchen from the home. The items were loaded into a 20 ft long shipping container with a wooden floor. He supervised the loading and packing of all of the timber items, ensuring that they were securely wrapped and padded. Drawers, bench tops and about 10 internal doors, some containing leadlights, were also packed according to the usual appropriate methods. He confirmed that the timber items were in extremely good condition which he noted for the inventory.
On the same occasion, white goods including a fridge, microwave and copper rangehood as well as a dishwasher, oven and oven top, all of which were in very good condition were packed and loaded into the container. He explained in some detail the process whereby an inventory was prepared by Covingtons, which he followed completing an original and three copies. He confirmed his recollection of the description of the items of furniture and white goods with reference to Exhibits 1 and 2.
Once the container was loaded on to the Covington's truck it was driven to a storage yard in Kewdale and stacked on top of two other containers where it remained its contents undisturbed, until it was placed on a trailer a couple of weeks later and sent to Broome. This occurred because Covingtons sent a triple road train to Darwin once a fortnight from Perth and back again. Efforts were made to try and ensure that each way the road train was fully loaded. The plaintiffs' container was sent to Broome at the particular time because there was a vacant space on the back of a Covington's trailer travelling to Darwin. Mr Hendle believed it was sent there at Wayne Covington's convenience. Prior to being despatched to Broome a padlock was placed on the container and the keys given to the driver who with a co‑driver left for Broome. These padlocks were of such a nature that one key fitted all so as to avoid supplying different drivers with a number of different keys for different types of padlocks. Mr Hendle was adamant no one other than each of the two drivers of the truck and Wayne Covington had access to the keys to the containers. In order to keep on schedule the driver, Mr Rick Prudham, requested of Mr Hendle that he be allowed to deposit the container for storage in Broome until Mr Waldron was ready to receive it. The driver told Mr Hendle that he had a key to the yard to allow him access to Kimberley Freightlines' premises if they were not open, to deliver or collect freight. Mr Hendle agreed to the request, although he had no idea where the container could be stored in Broome until contact could be made with Mr Waldron.
As Mr Hendle knew very little about Kimberley Freightlines it was left to Mr Wayne Covington who had a good relationship with them to organise the matter. The following day Mr Hendle spoke to a male at Kimberley Freightlines, although he could not now recall his name. The trailer with the container had been left at their premises the previous evening. The male person enquired of Mr Hendle what the weight of the container was because Kimberley Freightlines had a forklift which could only lift up to a certain weight. Mr Hendle responded that the weight would have been around 6 tonne at the most and he informed the man that the container had the contents of a client's freight, though he did not specify the nature of the contents. Mr Hendle claimed the man informed him storage charges would be incurred and further that Covingtons would have to pay for the cost of a crane to come in and lift the container off the trailer or truck. That was to be arranged with Wayne Covington but Mr Hendle supplied the man with Covington's address details for the storage bill to be sent.
Some time later Mr Hendle said Mr Waldron attended at Covington Removals Depot to pay his bill and speak to Wayne Covington. Mr Hendle's recollection was Mr Waldron was under the impression that the container was still in Covington's yard and it was Mr Hendle who advised him that the container was in Broome.
When Mr Waldron was advised of the damage to the contents of the container Wayne Covington directed that it be returned immediately to Perth and Mr Hendle was given the task of cleaning out the container. He confirmed that the interior of the container smelled horrible and the unused furniture pads were very damp. There were drips of moisture all over the roof. There were red dirt trails of about an inch and a half in height all over the floor of the container and the furniture inside it was friable, whilst the padding and hessian were disintegrating. The white goods he described as being in an absolutely disgusting condition and mouldy to the point where absolutely nothing inside the container was salvageable. Even using a high pressure fire hose Mr Hendle could not remove the ant trails from the floor of the container so he resorted to chiselling it off using a shovel. There were ant trails underneath the container when it was lifted off the trailer.
The container was the property of Royal Wolf which had hired it to Covingtons and it needed to be returned. Although Mr Hendle did not tell the man from Kimberley Freightlines that the container did not belong to Covingtons, nonetheless it had Royal Wolf written on the side of it. When a representative of Royal Wolf learnt of the damage to the floor of the container they took the view that Covingtons would have to pay for replacing the wooden floor.
Mr Hendle was astounded at the damage he noted to the container because he said he had not seen white ants attack a container or its contents in that way before and in fact it was usual to treat containers against white ant damage. Containers are checked by Covingtons before they hire them to exclude the possibility of holes or damage and those hired from Royal Wolf had to be treated by pest control. When he saw the container before he supervised the loading of the contents into it, Mr Hendle noticed nothing unusual about the container. It was taken from the Millanes' residence by Covingtons to Ansett Ridgeways Depot in Perth because that is where Covingtons took their freight from Perth to Darwin and picked up their Darwin freight and brought it back to that same depot in Perth. Ansett Ridgeways, however, did not have a storage depot in Broome at the relevant time.
Relevant to the cost of furniture removal for a load of this size Mr Hendle said that he believed Covingtons charged about $120 per cubic metre and he thought this load was in the vicinity of 26 cubic metres but this is not the quote that Mr Waldron would have been given. Rather he would have received a total cost quote by volume as distinct from an hourly rate. The quote was given to uplift and deliver the goods being door to door. Mr Hendle gave this quote to Mr Waldron and it was accepted, but it did not include storage which would be additional. This was for Wayne Covington to deal with and so Mr Hendle informed Mr Waldron that the quote he gave him was simply to uplift the goods from the address in City Beach and to deliver them to an address in Broome.
When Mr Hendle gave approval for the container to be delivered to the depot of Kimberley Freightlines he considered it to be a freight yard and thought they would have their own machinery to remove the container from the trailer or truck. It was his understanding that no matter the weight or dimension of a container it could be lifted by a forklift provided the forklift was adequate for that type of job and container. A freight yard would be expected to have a forklift as well as a large shed and yard for storing containers and associated items. In his experience a container could be stored undercover but containers can also be stored in the open and not necessarily on a sealed surface. Mr Hendle could not tell the man to whom he spoke at Kimberley Freightlines how long the container would be left at their depot because Covingtons themselves did not know. For that reason he said he would not have told the person it would be two weeks because Mr Waldron had not been contacted to give the necessary information. In Mr Hendle's opinion the sooner delivery to Mr Waldron occurred the better because Covingtons were paying rental on the container.

Mrs Waldron

Mrs Waldron, a primary school teacher, gave similar evidence to her husband regarding the time they had spent in the Kimberley Region of Western Australia and how eventually they came to plan and develop a family home to be built on their property in Broome. She explained the circumstances that led to the couple purchasing the kitchen furniture, doors and white goods from Mr and Mrs Millane. Prior to purchasing the kitchen the plaintiffs had not done a budget as such but simply wanted to get a kitchen that represented value. For that reason price was not discussed when they initially responded to the ad in the paper. She too was extremely impressed with the quality of the jarrah in the kitchen and said that the kitchen was "just splendid", that is was "absolutely a dream kitchen", "it was everything that you could ever hope for" and also that "everything was beautiful and clean". In her view there would be no difficulty in laying out the kitchen in their storage shed and having architects and designers plan the house around the kitchen in order to show it off to the greatest advantage.

Mrs Waldron said that the appliances looked brand new and one particular and useful feature was that the cook top was both gas and electric which would be useful in Broome. She considered that the insinkerator would be useful for recycling and she was particularly impressed with the fact that all of the appliances and white goods were identical and appeared to be part of a set. The interior of the drawers were pristine and the unusual beaten copper rangehood had been lacquered so it would not mark.
Approximately 10 solid jarrah doors, some with leadlight features, were included in the purchase price of $13,000. With reference to various photographs Mrs Waldron pointed out the extraordinarily high standard of the workmanship associated with the various jarrah components comprising the kitchen.
Mrs Waldron was not personally involved in making any arrangements for the collection, storage or transportation of the kitchen and white goods to Broome once the Millanes could no longer store them in their garage. She said that the only paperwork she had seen from Covingtons was on 4 January 2005 when she was shown an invoice at the office of the plaintiffs' solicitors. She was not told where the goods were stored until at a later date she and her husband were advised that the goods were in Broome. She confirmed the goods needed to be stored because she and her husband were not ready to receive them as the shed on their own property in Broome had not been completed (this did not occur until May 2001) and for that reason she thought they were being stored by Covingtons in a container.
Her husband happened to be travelling to Perth at one point and so he was able to pay Covingtons and arrange for the goods to be delivered to Broome. On his return Mr Waldron informed her that he paid the account and the goods were actually being stored in Broome although neither of them knew the exact location. Following this, through Covingtons Mrs Waldron learned that the goods were stored in an industrial estate area in Archer Street in Broome. She and her husband were advised they would need to engage a crane driver to assist lifting the container on to a truck for transport out to the Waldrons' property.
A man called Manan from Pearl Coast Crane Hire was hired for this purpose and Mrs Waldron made arrangements to meet him at the industrial estate, so she could pay him and guide the person driving the truck with the container to the Waldrons' property in Lullfitz Drive, Broome.
On her arrival at the Archer Street premises Mrs Waldron observed a large Covington's truck parked outside and noted that the driver was using keys to unlock the padlock to the gate. The crane driver arrived and Mrs Waldron was a little surprised to see the container which was to be transported sitting out in the open. The container was sitting directly on hard red pindan dirt although there were tufts of grass around it. Manan placed chains on to various portions and corners of the container before using the crane to lift it. That was when Mrs Waldron observed clumps of dirt falling away from the bottom of the container as it was lifted and placed on the bed of the truck. She paid Manan $100 and then proceeded to drive back to her property. The truck driver followed her after locking the gates to the premises.
On arrival at Lullfitz Drive Mr Waldron and their children were waiting. The truck driver put a steel ramp in place leading up to the doors of the container before unlocking a padlock which had been placed through the bars in the middle of the two large doors of the container. As soon as the doors were opened she detected a mildewy odour and saw a virtually unreadable invoice which contained a list of items in the container. There were bundles inside the container which had obviously been eaten and various wrappings were disturbed and simply falling away. She and members of her family were extremely distressed, but nonetheless had the presence of mind to take photographs of the container, its interior and its damaged contents.
The ceiling of the container and its interior walls were wet and mildewy and she noted white ant trails going alongside pieces of the furniture resting on the container walls and over the top of it leading to the next piece of furniture. There were white ant trails inside the doors and pindan dirt stuck to the doors and along the grooves where the doors actually shut. She observed large white ants crawling amongst the items inside the container. They were of a species found in the Broome region and apparently have voracious appetites particularly in relation to wooden products.
Mrs Waldron explained that white ant activity is a particular problem in the Kimberley region and that is one reason why buildings are often placed on metal stumping which is then capped with an ant cap. This assists in deterring white ants and also makes detecting their presence easier because it allows greater visibility on inspection. With reference to the photographs Mrs Waldron's evidence, like that of her husband, made it plain that there was considerable moisture and white ant damage to all of the contents of the container, which was simply relocked and returned to Perth.
Mrs Waldron told the Court that she and her husband had received a quote of $40,000 to build a kitchen taking into account dimensions and location of appliances but it was not of jarrah construction and in her view it had none of the character of the kitchen purchased from the Millanes. Given the unique quality of the kitchen it was in her view irreplaceable. Mrs Waldron had also investigated the replacement cost of various white goods and appliances and in this regard had spoken to Mr Stillitano and Mr Urban. The $20,000 estimate she referred to in her evidence relevant to the cost of purchasing replacement white goods was based on her observations from shop and catalogue prices, although it was within the price range estimated by Mr Urban. In the interim the plaintiffs have had to purchase a fridge as their previous fridge ceased working. They also purchased a microwave oven before taking delivery of the container.
She accepted that at the Broome property there was no gas connection and for that reason they needed to operate from gas cylinders. She did not know whether the cook top and oven which they purchased were adaptable for gas cylinders but pointed out that as the cook top also worked on electricity it would be serviceable in any event. It was not necessary for her to enquire as to age of the kitchen or appliances because they were in pristine condition and state of the art in her opinion. She was not able to specifically describe what she believed was the double oven because she had never owned one but assumed from its size that it fitted this description. She could not recall the age, brand or model of the fridge/freezer purchased from the Millanes although she did believe that the oven and microwave were of an exclusive brand such as Miele. The dishwasher was of a similar brand but she was unable to give details of the rangehood exhaust fan other than it was in working order within the copper canopy. She could not recall the brand of the sink or taps other than that they were flick mixer taps nor could she say what the capacity of the insinkerator was.
When she went to meet the crane driver and truck driver at Kimberley Freightlines Mrs Waldron did not recall seeing anybody else at the premises including a Mr Graham Thompson. She could not recall anything specific about the yard including whether there were other containers or a shed on it. She agreed that reference to a photo in Exhibit 3 that the container collected from the yard appeared to have feet on the base for the purpose of lifting it off the ground and preventing direct contact with the ground if the ground was level. Nonetheless her recollection was when she saw the container in the yard it had settled on to the ground and she did not observe any feet for that reason.

Mr Millane

Mr Millane explained in his evidence that he and his wife decided to advertise their kitchen and associated white goods for sale in 1999 because they were renovating their very large residence in Weelara Road, City Beach, and favoured a more contemporary look for their kitchen. He estimated the kitchen and appliances were in the vicinity of 11 to 13 years old but said that the kitchen was in full working order as were the appliances when they were removed. He described all of the items the subject of the sale as being of high quality and he believed many of the white goods were of a Miele or similar brand but could not be precise about this or exactly what white goods were sold. He supplied information to enable an inventory of the items, which were sold to the Waldrons for a total of $13,000 to be prepared. He was prepared to accept this purchase price although he believed on advice given to him that the kitchen and white goods were worth more in the order of $20,000.

Giuseppe (Joe) Stillitano

After some preliminary argument the Court rejected the submission on behalf of the defendants that this witness was in the nature of an expert. He gave opinion evidence based on experience and long time involvement in the relevant industry as to the estimated cost of attempting to replace the jarrah kitchen, taking into account current market rates. His statement was read into evidence and stood as his evidence‑in‑chief. As a director of International Cabinets Pty Ltd and a cabinet maker himself for 25 years he was involved in the design and construction of a kitchen for a home being built at Weelara Way, City Beach. This involved kitchen work as well as woodwork for the doors and skirting boards using solid premium grade jarrah. This involved additional expense because wide panels needed to be sourced to minimise the number of joints in the furniture.
Further as there was to be no staining in order to colour match the timber there was a significant waste factor, making it a more expensive process. He said it would be extremely difficult to rebuild such a kitchen today in view of the scarcity of jarrah and restrictions on harvesting from old growth forests. The cabinet work in the many drawers was also more expensive than usual because standard melamine interior finish could not be used, rather white laminate a superior and far more durable product was specified. As this was rarely done it incurred about four times the expense of doing it in the usual way and it necessitated heavy duty German hardware to be used for rollers and hinges in the drawers again adding to the expense. Solid timber radius corner posts rather than medium density fibre board was used and this too was more expensive. The timber detail in relation to the edges of bench tops, also added considerably to the cost as did the fact that the bench tops were Corian, a top of the range material.
Although he was not involved in supplying the white goods Mr Stillitano believed they were Miele products although he did not have a specific recollection of this. His opinion was based on his understanding that the builder concerned always used Miele products in his projects. The copper canopy rangehood was a special order requiring it to be purpose made. His evidence was that it is difficult to place a value on the manufacturing process because the date of manufacture was approximately 1988. In the end result he believed that today's costs to manufacture the kitchen would cost in excess of $60,000.
He gave some detail as to how that estimate was reached. He viewed some colour photographs of the kitchen, Exhibit 8(1)-(6), which his firm had retained for customer display purposes, and using these calculated the normal widths required to manufacture the drawers in 1988. He then multiplied the number of doors by the width to calculate the length of the cabinet work. From those measurements he calculated cabinet lengths, kickboard lengths, finger rails, bench top sizes, lengths of the up stand, width of the tops from standard sizes and width of the cabinets as well as height of the splash backs from standard sizes. Calculations were done regarding the number of drawers and the materials needed to manufacture the drawers taking into account width, depth and height.
He also calculated the amount of door panels at a rate per door, based on select grade jarrah, raised panel, filled moulds door type and then estimated how many hours it would take to manufacture the kitchen in question based on the same principles as he ordinarily employs in providing an estimate which then may be converted into a quote.
The witness also took into account current labour rates at $65 an hour for 480 hours and said that based on everything he took into account, to replace the kitchen exactly would cost $82,500, in the sense that this is what he would quote. The wall unit and timber doors were not included in the quote. He also commented that even so, given the exceptional quality of the kitchen and cabinet work it would be very difficult to replicate today given the scarcity of solid jarrah timber. In his opinion this particular kitchen was built to last a lifetime, irrespective of whether it was dismantled and rebuilt in the same form.
Although his firm received an e‑mail from the Waldrons on 7 November 2001 regarding supplying a costing for cabinet work he could not specifically recall sending them a reply e‑mail. He conceded, however, that he did, giving a general estimate of $65,000 replacement cost, not based on plans or diagrams. It was only after 26 November 2004 that he looked much more closely at estimating the replacement cost of the kitchen, taking into account Exhibit 8 and certain industry standards to calculate dimensions.

John Urban

As director of Richard Nominees Pty Ltd trading as Richards Electrical, a retrovision store, Mr Urban had dealings with Mr Sarich for whom the kitchen in question was originally built and fitted. He was familiar with the white goods purchased at the time which were of the best quality. He was requested by the plaintiffs to provide costing in relation to various white goods at current prices (if those same items were available) or to cost a similar and equivalent item. As a result he produced Exhibit 9, a quote in e‑mail form relevant to a cook top, wall oven, microwave, rangehood, dishwasher, ironing board, sink, taps and plumbing. As his firm did not supply a valet system he was unable to quote for that particular item. The microwave pictured in Exhibit 8 was top of the line at the time of original purchase but was no longer available so he quoted $1,599 for that current Miele brand of microwave. He noted that one could currently purchase a more expensive microwave if one wished.
The wall oven in Exhibit 8 in his view was top of the range at the time of original purchase and for a comparable brand the current replacement price he gave was $5,599. The cook top in the photograph was top of the range available at the time and he provided a current quote for a model below that by today's standard. He quoted for a comparable rangehood in the Miele brand based on models then available, but did not allow for it being manufactured in beaten copper as it was handmade such a product is no longer available. The quote for the insinkerator related to the quietest and therefore most expensive item of that type.
He provided a quote for twin basin sinks based on the less expensive stainless steel rather than ceramic product because the latter is not widely available. He quoted $2,599 for a replacement integrated dishwasher which reflected a product towards the more expensive end of the market.
The quote was provided by him in 2001 and also referred to a Miele stainless steel double wall oven. He said that the models on which he quoted in view of the model numbers supplied to him by the plaintiffs were generally only available in stainless steel which is about 10 per cent more expensive than the same item or model in white. He noted in red on the quote the changed model number where that had occurred. In essence he was given specific model numbers and he inserted the prices relevant to those models available in 2001.
Mr Urban pointed out in 1988 the Miele range though available, was much more limited than today. It is a very good quality brand but is not necessarily regarded as being top of the range in the sense that Gaggenau products enjoy that reputation. None of the products he could see in the photographs were Miele products. The lifetime of kitchen appliances of the type under consideration was somewhere between 15 and 20 years depending on usage and how it is looked after but he could not comment on the value or market for secondhand white goods.

Peter Ford

Between 15 June and late November 2000 Mr Ford was employed by Baz Industries Pty Ltd operating as Kimberley Freightlines at their Broome depot and was responsible for the day to day running of their office as well as sourcing new business for them.
Mr Ford confirmed that while working for them he lived on their premises in Archer Street, Broome, in accommodation next to the office. He told the Court it was a relatively large yard, fenced on all sides and locked at the main entrance gates through which road trains would enter and leave the yard generally twice a week. The warehouse on site was a large cyclone proof steel and corrugated sheeting structure containing pallets of goods such as cement and tyres. Freight which was deposited at the yard would then be distributed to various traders throughout the region. The traders would collect the freight themselves or on occasions Kimberley Freightlines would deliver it to traders.
On his observation there was a considerable amount of old equipment in the yard. At the rear there were pallets of paving brick and associated building materials as well as an old caravan. There were at least two containers at the yard near the house which Kimberley Freightlines used to store items such as truck tyres. The yard consisted mainly of Kimberley pindan dirt.
As part of his job Mr Ford was responsible for opening the gates early each morning and then closing them around 5.00 or 5.30 pm each day. He said there were two intertwined padlocks to secure the gates and he had one key whilst the other key was held by the TNT Car Carrying people who needed to access the yard outside normal business hours to unload cars for clients in Broome. He believed the owner of the yard had a key when he stayed at the yard but no one else did. There were two guard dogs on duty and this also assisted with security.
Mr Ford recalled receiving a phone call from a truck driver called Mick on about 7 August 2000 requesting that a Covington's container be unloaded and deposited at the yard. Mr Ford telephoned Mr Baz in Halls Creek to enquire if this was acceptable but he was unavailable so he left a message to be passed on to him to return the call. In the meantime Mr Wayne Covington telephoned Mr Ford advising him that they had a container which would need to be stored for a maximum of three or four weeks at the premises. Mr Ford denied that he ever spoke to or dealt with Mr Hendle from Covingtons. After contacting Mr Baz again that same day Mr Ford advised Mr Covington that if it was just for that short amount of time Mr Baz would agree to it. Mr Ford's evidence that Covingtons did not deal with Kimberley Freightlines in the general course of business was in stark contrast to Mr Hendle's evidence that Wayne Covington had a good relationship with them and "knew the man himself".
Mr Ford then contacted the truck driver Mick telling him to deliver the container. However, a mobile crane was needed to assist in the process because there was no facility in the yard to offload the container from the delivery truck. Mr Ford contacted Manan at Pearl Coast Crane Hire, with whom he had previously dealt and arranged for them to position the container in the yard area on or about 7 August.

Should the replacement cost be more than the market value, that cost is still recoverable if it is reasonable to replace. It has been said that it is not relevant that the replacement cost should exceed the amount for which the purchaser acquired the goods: Dominion Mosaics & Tile Co Ltd v Trafalgar Trucking Co [1990] 2 All ER 246. On the other hand Uctkos v Mazzetta [1956] 1 Lloyd's Rep 209 made it plain that a plaintiff will not be entitled to the cost of a replacement where it is unreasonable to demand an exact replacement. What is reasonable or not will of course vary according to the particular circumstances. In that case the defendant purchased a boat described as an Admiral's barge for £600.
Over time various work was carried out on the boat so that when it was totally destroyed the defendant who was successful in his counterclaim argued that £5,000 was the appropriate award of damages to him because the boat could not be purchased or replaced for a lesser sum than that. The defendant called an expert witness who said that the boat was irreplaceable; it was quite an unusual type of boat and it would not be possible, except by expenditure of a very large sum of money to have a replacement boat constructed which would be as seaworthy or as fast or have the type of accommodation contained on the boat which had been destroyed.
Another witness, however, who was an agent for the disposal of craft of the type in question said that a number of other boats had passed through his yard not exactly of the same type but of a comparatively similar design, construction and performance. Ormerod J said:
"I do not think here that the defendant is entitled to damages on the basis that he is entitled to the replacement of his ship. I think what he is entitled to is the reasonable cost of another craft which reasonably meets his needs as this one apparently did and which is reasonably in the same condition. If that is the test, and it seems to me that the figures which are given by Mr Bowen (who was the expert witness called on behalf of the defendant) as his estimate here are quite out of the question and that the sum of £750 which Mr Michael with his experience was able to speak to, or some sum in that region, is very much nearer the right figure."
In the end taking a number of other matters into consideration the defendant was awarded the sum of £908 by way of damages. In my view the plaintiffs are entitled to the reasonable costs of a replacement kitchen bearing in mind that the defendants are not liable for the cost of installation of such a kitchen. There was no detailed or precise evidence as to the quote that the plaintiffs have received for another kitchen they were investigating having installed. Mrs Waldron said that given the kitchen they purchased has been destroyed they have had to modify their plans for the kitchen substantially and it is her desire to have a new kitchen to go with her new home. She and her husband have received a quote for $40,000 for a kitchen incorporating dimensions and such like. It is a modern kitchen but it is not jarrah and uses laminates and materials which is her view do not give it the character that the kitchen she and her husband purchased possessed. Mr Waldron said that this was the only quote that the plaintiffs had obtained relevant to replacing the kitchen, (apart from that provided by Mr Stillitano).
In the circumstances I do not regard it as reasonable to award the sum of $82,500 to the plaintiffs for a replacement kitchen. In my view the quote they have obtained, as best as I can understand it, does cater for a reasonable kitchen in working order and one which will reasonably meet the plaintiffs' needs and of course one which will be in new condition. Based on the evidence available I therefore award $40,000 under this head of damages.
Similarly difficulties are encountered in relation to the assessment of damages with respect to the replacement of the white goods which were purchased and subsequently destroyed. In this respect the plaintiffs claim the cost of new appliances in the sum of $21,756. Mrs Waldron told the Court that the plaintiffs purchased a new fridge two or three years ago (ie in 2000 or 2003) but she was not sure of that or the price. She said that she thought the plaintiffs had purchased a microwave for about $500 perhaps after they purchased the kitchen and appliances from the Millanes but before they took delivery of the goods in the container. Neither Mr and Mrs Waldron nor Mr Millane were able to supply precise details as to the brand and models of the various electrical appliances purchased.
It is clear that Mr Urban was sent a list of model numbers and his evidence has previously been referred to in these reasons. He could confirm that generally the quality of the white goods purchased for the kitchen initially was the best or top of the range although he could not quote on the valet system and a number of the models of appliances purchased were no longer available so he had to try and give a price for the nearest equivalent to that discontinued item. Although these items may well have all been in pristine condition and excellent working order it is very relevant in my view in assessing the cost of their replacement that they were all at least 11 years old (Mr Urban thought even older). He said appliances, even expensive appliances had a life between 15 to 20 years although this was a difficult assessment to make because it had to take into account usage in the manner in which the item was cared for.
He could not assist the Court in relation to the market for or value of secondhand electrical goods stating that it is simply what someone is prepared to pay. Although the plaintiffs purchased a range of high quality electrical appliances in very good condition and working order they were nonetheless of a considerable age and this necessarily must have an impact on their monetary value.
Exhibit 4 is an inventory of the white goods sold to the plaintiffs and Exhibit 9 is the quote for similar or corresponding white goods supplied by Mr Urban. Exhibit 4 makes no mention of a refrigerator and the valet system was not quoted on by Mr Urban. In relation to Exhibit 9 I consider that the relevant quotes for the purpose of assessing damages under this head relate to the cook tops, wall oven, rangehood, dishwasher, sink and taps, insinkerator and Robin Hood ironing board. The microwave is excluded because even before the delivery of the container to the plaintiffs they had purchased a microwave. The total value of those goods mentioned in the quote is $16,660. This, however, relates to top of the range white goods which have never been used as distinct from the white goods which the plaintiffs had purchased, even though they were in very good condition. The plaintiffs did not purchase white goods that were new or even near new and the purpose of awarding damages is not to place them in a better or more advantageous position in this regard than they would otherwise have been. For that reason I consider it appropriate to discount the damages awarded for the purchase of replacement white goods by 50 per cent resulting in an award of damages under this head of $8,330. As neither the replacement kitchen nor replacement white goods have been purchased by the plaintiffs as yet I do not consider it appropriate to award interest on these damages.
The plaintiffs are entitled, however, to recover the sum of $3,610 which they paid to Covingtons for their services. This amount of the award of damages should be subject to interest at 6 per cent per annum between 1 July 2000 and the date of judgment which is approximately five years and three months.

Summary of award of damages

Replacement of kitchen $40,000.00
Replacement of white goods $ 8,330.00
Charges and fees paid to Covingtons for services $ 4,744.00
rendered with interest
Total award of damages $53,074.00