Whijohn Pty Ltd v Coastzone Pty Ltd (No. 2)
[2014] VCC 1402
•5 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
COMMERCIAL LIST
EXPEDITED CASES DIVISION
Case No. CI-13-00795
| WHIJOHN PTY LTD | First Plaintiff |
| AND | |
| ALAN KIMBER WHITE | Second Plaintiff |
| v | |
| COASTZONE PTY LTD (TRADING AS WIRRAWAY MOTOR HOMES PTY LTD ) | Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 29 August 2014 | |
DATE OF JUDGMENT: | 5 September 2014 | |
CASE MAY BE CITED AS: | Whijohn Pty Ltd & Anor v Coastzone Pty Ltd (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1402 | |
REASONS FOR JUDGMENT
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Subject:DAMAGES
Catchwords: DAMAGES – Measure of damages – Valuation of property – Comparison of salvage value with costs of repair.
Judgment:Damages and interest awarded to the plaintiffs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr R E T Wodak | Foster Nicholson Jones Lawyers |
| For the Defendant | No appearance |
HIS HONOUR:
Introduction
1 On 20 June 2014, I gave judgment for the plaintiffs in this proceeding in relation to their claim against the defendant for breach of contract and breach of various statutory provisions regarding the purchase of a motorhome. I dismissed the defendant’s counterclaim. The factual background to the dispute and the reasons for my decision are set out in that judgment.[1]
[1]Whijohn Pty Ltd & Anor v Coastzone Pty Ltd [2014] VCC 242
2 In my reasons, I referred to the fact that, during the trial, I ruled that the issue of liability on the claim and counterclaim was to be determined first and that, if the plaintiffs were successful, then the issue of quantum would be addressed in a later hearing. Given the judgment with respect to the former, I now turn to a determination of the latter.
The plaintiffs’ claim for relief
3 In their Further Amended Statement of Claim filed 4 September 2013, the plaintiffs sought relief in the proceeding in the form of:
(a) possession of the Kenworth T408 and motorhome;
(b) damages;
(c) interest; and
(d) costs.
4 By the affidavit of Alan Foster of the plaintiff’s solicitors sworn on 19 June 2014, the plaintiffs adduced evidence that:
· on 20 April 2014, the motorhome and Kenworth vehicle were the subject of a fire at the premises where they were being stored pending determination of the proceeding; and
· on the basis of damage sustained to the vehicle and motorhome, the plaintiffs sought to amend the relief sought in the proceeding.
5 By email dated 18 July 2014, the solicitors for the plaintiffs informed the Court that the plaintiffs sought to be heard in open court about the appropriate form of orders in the proceeding. The plaintiffs proposed orders that:
(a) the defendant pay to the second plaintiff the sum of $275,000;
(b) the defendant indemnify the second plaintiff in respect of reasonable costs of removal of the motorhome from the Kenworth T408 Prime Mover;
(c) the defendant pay the plaintiffs’ costs of the proceeding on a standard basis until commencement of the trial (being 24 February 2014) and thereafter on an indemnity basis; and
(d) such further order as the Court considered appropriate.
6 On 8 August 2014, counsel for the plaintiffs attended Court to make submissions about the quantum of damages and the proposed form of orders.[2]
[2]There was no appearance for the defendant at this hearing. The solicitor for the defendant was granted leave to file and serve a Notice of Ceasing to Act for the defendant on 22 July 2014. Orders granting leave stipulated that a copy of the orders were to be sent to the defendant, and included a warning that the trial could proceed in the absence of the defendant.
Evidence
7 In anticipation of the hearing of 8 August 2014, the second plaintiff filed an affidavit of Alan Foster sworn 5 August 2014.[3] The affidavit cited events which had occurred since the hearing of the trial (insofar as determination of the claim and counterclaim was concerned), specifically in relation to damage which had been sustained by the vehicle on 20 April 2014.
[3]In addition, an affidavit of Kate Baxter of the plaintiffs’ solicitors’ office sworn 6 August 2014 evidenced service of the affidavit of 5 August 2014 on the defendant by fax, email and express post.
8 In the affidavit, the deponent stated that the second plaintiff’s insurer had advised that it treated the vehicle, as a result of damage sustained, as a “total loss” for insurance purposes.
9 The deponent also stated that he had been informed by the second plaintiff, and believed, that:
(a) the vehicle and motorhome were worth only their salvage value;
(b) there would be no utility in removing the motorhome from the vehicle, given that the costs in doing so would exceed the salvage value of the motorhome; and
(c) there would be no utility in undertaking work, upon removal of the motorhome from the vehicle, to “make good” the modifications which the defendant had made to the vehicle, since such costs would exceed the salvage value of the vehicle and motorhome.
10 The affidavit also included a calculation of interest payable on the principal debt of $275,000 owing (being the total amount paid to the defendant for the motorhome).
11 At the hearing on 8 August 2014, I informed the plaintiffs that they would need to provide the Court with further evidence in order to justify the orders sought. I made an order permitting the plaintiffs to adduce evidence by way of affidavit and made on the basis of information and belief.
12 Later that same day, the solicitors for the plaintiffs filed with the court an additional affidavit sworn on 8 August 2014 by Alan Foster. An exhibit to that affidavit was a copy of the loss assessor’s report provided by Northern Victorian Assessors to Ken Tame & Associates, dated 15 May 2014 (“the assessor’s report”).
13 The assessor’s report:
· stated that the motorhome body was a “total loss” and the vehicle itself possibly reparable (though not without potential “ongoing issues … due to the effect of heat and smoke”);
· agreed with the insured value of the vehicle and motorhome, being $590,000; and
· cited salvage estimates with ranges of $55,000–$60,000 (Manheim Auctions) and $45,000–$50,000 (Pickles Auctions), and a salvage tender of $70,000 (Universal Truck Wreckers).
14 In addition to the affidavit, the plaintiffs’ solicitors provided a draft form of order which included, relevant to the relief sought orders, that:
“The defendant pay the second plaintiff $275,000.
The defendant pay the second plaintiff interest of $109,908.10.
The defendant pay the plaintiffs’ costs on a party and party basis.”
15 Having reviewed the further material, I determined that there was insufficient evidence to prove all of the matters raised with respect to the difference between the salvage value and the costs of removal of the motorhome and/or making good the vehicle. The plaintiffs were notified of this determination and given the opportunity to file more evidence.
16 The plaintiffs subsequently filed an additional affidavit sworn 26 August 2014 by Stephen O’Hare, managing director of Rambler Transport Industries Pty Ltd. Mr O’Hare’s experience in the special vehicle design and manufacturing industry was detailed in an earlier expert report he provided to the plaintiffs’ solicitors on 10 February 2014 (which was annexed as an exhibit to the 26 August 2014 affidavit).
17 That affidavit satisfied me as to the evidentiary basis upon which the plaintiffs had claimed the excess of the costs of removal and/or making good over and beyond the salvage value. This was due both to the expertise I considered the deponent had in relation to his opinion, and to the conclusion he reached in his assessment of the costs associated with the vehicle and motorhome, which totalled (at its most conservative) $90,310.00 plus GST. Such costs would exceed by a significant margin the highest of the salvage values cited in the assessor’s report.
Conclusion
18 On the basis of the evidence before the Court, I consider that the plaintiffs have established their case for the orders sought regarding quantum (including interest).
19 Consequently, I make the following orders:
(a)The second plaintiff is entitled to possession of the Kenworth truck with registration number SB8 3D0, together with the motorhome constructed on it by the defendant.
(b)The defendant pay the second plaintiff $275,000.
(c)The defendant pay the second plaintiff interest of $120,563.02.
(d)The defendant pay the plaintiffs’ costs of the proceeding, including reserved costs, to be taxed in default of agreement.
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