Sarah Nickolls v Noakes Rigging Pty LtdPeter Bush v Noakes Rigging Pty Ltd [2008] NSWDC 299

New South Wales District Court

CITATION: Sarah Nickolls v Noakes Rigging Pty LtdPeter Bush v Noakes Rigging Pty Ltd [2008] NSWDC 299

HEARING DATE(S): 20, 21, 22 August, and 13 October 2008

JUDGMENT DATE: 23 December 2008

JURISDICTION: District Court - Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Verdict for the Defendant in each case. 2. Plaintiff to pay the Defendant's costs in each case.

CATCHWORDS: BAILMENT – duty of bailee for reward – yachts propped up on dry stands in boatyard – yachts blown over and damaged during storm involving gale force southerly winds – whether Defendant bailee discharged onus of establishing damage was not due to negligence on its part – DAMAGES – whether marine survey fees incurred by an insurer claimable as damages

Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206 Califf v Danvers (1792) Peake 155; 170 ER 112 Jacap Low Loaders v Lindores Plant and Equipment [2004] NSWCA 5 CASES CITED: Simpson v Thomson [1877] 3 App Cas 279 Florida Hotels Pty Ltd v Mayo & Anor (1969) 113 CLR 588 Redken Laboratories (Aust) Pty Ltd v Docker & Anor [2000] NSWCA 100 Fox v Percy [2003] 214 CLR 118

Sarah Nickolls (Plaintiff) PARTIES: Noakes Rigging Pty Ltd (Defendant) Peter Bush (Plaintiff) Noakes Rigging Pty Ltd (Defendant)

FILE NUMBER(S): 0702 of 2006; 2269 of 2006

COUNSEL: Mr JG Stewart (Plaintiffs) Mr MG McHugh (Defendant)

SOLICITORS: McCulloch & Buggy (Plaintiffs) Piper Alderman (Defendant)

JUDGMENT

Introduction

1. These two cases were heard together. They involve subrogated claims for liquidated damages brought by one insurer against another in respect of damage sustained to two yachts that were owned by the respective Plaintiffs. These yachts were resting on hard stands within the Defendant's boatyard when they were blown over during a storm involving gale force southerly winds in the early hours of 23 March 2005.