Colin Graham Kimber and Lynette Mary Manwaring v Susan and John McNair [2008] NSWDC 114

New South Wales District Court

CITATION: Colin Graham Kimber and Lynette Mary Manwaring v Susan and John McNair [2008] NSWDC 114

HEARING DATE(S): 17/06/08 - 19/06/08

JUDGMENT DATE: 4 July 2008

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: See paragraph 60 of Judgment

CATCHWORDS: Racehorse - Agreement for Training and Co-ownership - Sale of horse by one co-owner without the other's consent - Breach of contract - Conversion of horse - Calculation of damages - Lost opportunity to win prize money - Lost opportunity to place successful bets

LEGISLATION CITED: Partnership Act 1992 (NSW) Civil Procedure Act 2005 (NSW)

Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 229 Hill v Reglon Pty Limited (2007) NSW CA 295 at (90) CASES CITED: The Anderson Group Pty Limited v Tynan Motors Pty Limited (2006) 65 NSW LR 400 Scarfe v Morgan (1838) 150 ER 1430 at 1436 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332

Colin Graham Kimber (1st Plaintiff) PARTIES: Lynette Mary Manwaring (2nd Plaintiff) Susan McNair (1st Defendant) John McNair (2nd Defendant)

FILE NUMBER(S): 133/07

COUNSEL: M Condon with L Gorham for the Plaintiffs M Maxwell for the Defendants

JUDGMENT

1 The plaintiffs have been involved in race horses as a hobby for some time. The First plaintiff, Colin Graham Kimber, bred the racehorse "Mindreader" with Bernadette Nutman, the owner of the brood mare. The horse's sire was "Mind Games", a champion sprinter. Mindreader was a thoroughbred brown gelding foaled on 6 October 2000.

2 On 11 February 2002 Mr Kimber purchased Ms Nutman's share in the horse and sometime thereafter sold a 20% interest in it to the Second plaintiff, Lynette Mary Manwaring.