Vieira v O'Shea [2012] NSWCA 21

Vieira v O'Shea [2012] NSWCA 21

The contractual arrangement required the first respondent to recommend only horses free of veterinary problems which would inhibit racing capacity. Dashere was assessed as 'low risk with time 6 months', had a stifle condition, and could not be broken in or trained for six months, so it was not free of relevant veterinary issues. The recommendation to purchase was therefore a breach of contract. Had the contract been performed, no recommendation would have been made and the appellant would not have purchased the interest. Because the appellant did not know of the condition until July 2007, the horse was undergoing surgery, and he was effectively locked in until its condition settled,...

Jurisdiction
Australia
Judgment Date
05 March 2012
Procedural Posture
Civil Appeal Concerning Breach of Contract, Negligence, Misleading or Deceptive Conduct and Damages Arising From Advice to Purchase an Interest in a Racehorse / Appeal From District Court Judgment Dismissing the Appellant's Claim; First Respondent's Cross Appeal Not Heard at This Stage
Outcome
Appeal allowed; judgment entered for the appellant against the first respondent; cross-appellant and cross-respondents granted leave to approach the Registrar for a hearing date for the cross-appeal.
Legal Topics
['construction of Contract' 'identifying Contract Terms' 'contract for Advice Prior to Purchase' 'appellate Review of Credibility Findings' 'causation in Breach of Contract' 'assessment Date for Contractual Damages' 'mitigation of Loss' 'misleading or Deceptive Conduct']
['contract Law' 'damages' 'evidence' 'fair Trading' 'negligence' 'civil Procedure'] ['construction of Contract' 'identifying Contract Terms' 'contract for Advice Prior to Purchase' 'appellate Review of Credibility Findings' 'causation in Breach of Contract' 'assessment Date for Contractual Damages' 'mitigation of Loss' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Civil Appeal Concerning Breach of Contract, Negligence, Misleading or Deceptive Conduct and Damages Arising From Advice to Purchase an Interest in a Racehorse / Appeal From District Court Judgment Dismissing the Appellant's Claim; First Respondent's Cross Appeal Not Heard at This Stage

Legal Issues

  1. 1 ['Whether the first respondent should have informed the appellant of the precise terms of the veterinary assessment, warned that the horse was not without issues, or made no recommendation to purchase.' 'Whether the appellant would have purchased the horse in the absence of a recommendation or in the face of full advice as to the veterinary assessment.' 'Whether the recommendation to purchase the horse was a breach of the contractual arrangement between the appellant and the first respondent.' 'Whether damages should be assessed by reference to the price paid, the value at the time of purchase, the value when the appellant became aware of the condition, or the value when the appellant should reasonably have sold the horse.' 'Whether the appellant failed to mitigate his loss.']

Ratio Decidendi

The contractual arrangement required the first respondent to recommend only horses free of veterinary problems which would inhibit racing capacity. Dashere was assessed as 'low risk with time 6 months', had a stifle condition, and could not be broken in or trained for six months, so it was not free of relevant veterinary issues. The recommendation to purchase was therefore a breach of contract. Had the contract been performed, no recommendation would have been made and the appellant would not have purchased the interest. Because the appellant did not know of the condition until July 2007, the horse was undergoing surgery, and he was effectively locked in until its condition settled,...

Court Disposition

Appeal allowed; judgment entered for the appellant against the first respondent; cross-appellant and cross-respondents granted leave to approach the Registrar for a hearing date for the cross-appeal.

Orders

  • ['Allow the appeal.' 'Set aside order (1) made by the trial judge on 8 December 2010.' 'Judgment for the appellant against the first respondent for $255,248 plus interest at the prescribed rates from 31 March 2009 to the date of judgment.' "Order that the first respondent pay the appellant's costs of the trial in...