#15448 - Defence Counterclaim Contract 2 - BPC Drafting

IN THE COUNTY COURT

BETWEEN

Claim No. CYJ2412

MISS NOOMI VAN GRAFF

Claimant

and

PROXIMATE GALLERIES LIMITED

Defendant

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DEFENCE AND COUNTERCLAIM

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1. Paragraph 1 of the Particulars of Claim is admitted.

2. Paragraph 2 of the Particulars of Claim is admitted.

3. Further, it was an express term of the First Agreement, made orally, that:

   1. Proprietary ownership of the Watercolours remained with the Claimant; and

   2. The Defendant would not accept liability for any loss or damage caused to the Watercolours where such damage was beyond its control or caused by a third party.

4. Except that it is admitted that the Defendant agreed to exhibit the Paintings for a period of 1 year and that the Defendant would pay the Claimant 400 per month for 1 year, paragraph 3 of the Particulars of Claim is denied. By the Second Agreement, the Claimant agreed:

   1. To produce a total of 12 paintings over the course of the year, at an approximate rate of 1 painting each month;

   2. That remuneration for the Paintings would be exclusively by way of monthly salary at 400 per month for 1 year; and

   3. In exchange for a salaried income, the Paintings would become the property of the Defendant thereby terminating the Claimant’s proprietary interest in them.

5. Further, it was an express term of the Second Agreement that the Claimant would produce all paintings in the oil on board medium.

6. Paragraph 4 of the Particulars of Claim is denied, save that it is admitted that the Defendant would return any unsold Watercolours to the Claimant. The implied term to take reasonable care of the Watercolours was limited to the extent set out in paragraph 3(b) above. There was no such implied term operating on the Second Agreement, as the Claimant’s proprietary interest in the Paintings had transferred to the Defendant in accordance with the terms of the Second Agreement.

7. Paragraph 5 of the Particulars of Claim is admitted.

8. Except that it is denied that the Claimant acted in accordance with the Agreement, paragraph 6 of the Particulars of Claim is admitted.

9. The Claimant has acted in breach of the express terms of the Second Agreement set out in paragraphs 4 and 5 above.

PARTICULARS

1. On or about 1^st July 2016, the Claimant delivered a painting to the Defendant at its place of business which was produced in watercolours on paper rather than the agreed oil on board medium;

2. The Claimant failed to deliver the painting due for the month of August between 1^st and 31^st August 2016 or at all;

3. Despite assurances to the Defendant on 18^th August 2016 by telephone that 2 replacement Paintings titled ‘GIANT LARKSPUR’ and ‘DAISY PETALS’ for July and August would be produced and delivered before 31^st August 2016, none were delivered during that period or at all.

10. Paragraph 7 of the Particulars of Claim is admitted.

11. Paragraph 8 of the Particulars of Claim is denied for reasons set out at paragraph 3(b) above, save that it is admitted that the Watercolours were delivered up to the Claimant in a damaged condition. In May 2016, the Defendant agreed, by an oral agreement made over the telephone, to sub-contract the sale of the Watercolours to a third party, Marcus Wang of ‘The Marcus Wang Gallery’, the subject of a third party additional claim in these proceedings. During the intervening months from May to 1^st September 2016, the third party allowed the Watercolours to become damaged.

12. Except that it is denied that the Defendant acted in breach of the Second Agreement, paragraph 9 of the Particulars of Claim is admitted. The Paintings had become the property of the Defendant for reasons set out at paragraphs 4(b) and (c) above and the Claimant had no right to their return on account or otherwise.

13. Paragraph 10 of the Particulars of Claim is denied for reasons set out above.

14. The Claimant...