Van Graff v Proximate Galleries- Defence & Counterclaim- Contract PDF

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This defence and counterclaim is based on a contractual dispute- detailing the terms of the agreement, express and implied terms, the issue with the goods and/or services, amount owed, particular of breach and particulars of loss and damage. A defence and counterclaim admits, deny and disputes the p...

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IN THE COUNTY COURT

Claim No. GYJ2412

BETWEEN MISS NOOMI VAN GRAFF

Claimant

and PROXIMATE GALLERIES LIMITED

Defendant

And MARCUS WANG T/A MARCUS WANG GALLERIES Third Party

_______________________________ DEFENCE AND COUNTERCLAIM _______________________________

1. Paragraph 1 of the Particulars of Claim is admitted. The Defendant also purchases works of art from artists.

2. Paragraph 2 of the Particulars of Claim is admitted except that the agreement was oral. The First Agreement was an oral agreement, made at the Defendant's premises, 47 High Road, Boggle between the Claimant and Mr Daniel Logan acting on behalf of the Defendant. 3. As regards to Paragraph 3 of the Particular of Claim, it is admitted except that: (a) By oral agreement on 4th September 2019, it was expressly agreed between the Claimant and Defendant that the Claimant would produce 12 Paintings depicting different species of flowers and with the same oil on board medium for a year. (b) It is denied that the Defendant would pay the Claimant one half of all sale proceeds in respect of the Paintings. The Defendant had made outright payment for her paintings and there was no profit sharing arrangement made. (c) It is denied that all unsold paintings under the Second Agreement (or Purchase Agreement) would be returned to the Claimant, should the parties decide not to renew the Second Agreement. The agreement was founded upon the salary system hence the Defendant rightfully owns the Paintings after the purchase.

4. Except that it is admitted that the Defendant would take due and proper care of the Watercolours, Paragraph 4 is denied. There was no implied term for the Paintings as

the Paintings had already been sold to the Defendant, with the consideration of £400 per month. Therefore, the Defendant owed no duty towards the Claimant to take due and proper care of them or to return any unsold Paintings to the Claimant in good condition afterwards. 5. Paragraphs 5 of the Particulars of Claim is admitted.

6. Except that it is admitted that the Defendant made a total of 12 payments of £400 to the Claimant, Paragraph 6 is denied. The Claimant failed to provide July and August paintings thus only provided 10 paintings in total between the period of 4th September 2019 to 19th August 2020. 7. Paragraph 7 is of the Particulars of Claim is admitted. 8. Except that it is admitted that the Watercolours were delivered to the Claimant in a damaged condition, Paragraph 8 is denied. In particular, it is denied that the Defendant was in breach of the First Agreement as alleged for failing to take proper care of the Watercolours, and caused or permitted them to become damaged. The damage was caused by a third party, Marcus Wang of Marcus Wang Galleries, whom the Defendant passed the Watercolours to for a better chance of selling them. The damage occurred whilst in the control of the third party, Marcus Wang thus the Defendant is not responsible for the damage caused to the Watercolours. By the First Agreement made on or about 4th September 2019, the Defendant had made clear that the responsibility for insuring the Watercolours rested with the Claimant. The Claimant had also reassured the Defendant that the Watercolours were “insured for years”.

9. Except that it is admitted that the Defendant has failed to deliver up to the Claimant any of the Paintings that remained unsold at the end of the period, Paragraph 9 is denied. The Paintings were sold to the Defendant by the Claimant as part of the Second Agreement. The Defendant agreed to pay £400 each moth for a period of one year, in exchange for 12 paintings from the Claimant. Thus, none of the Paintings delivered It is denied that the Defendant was in breach of the Second Agreement and the Claimant was not entitled to one half of the sale price of such Paintings as were sold. The Claimant was only entitled to 50% commission for the Walter Van Graff Watercolours, should these paintings have been sold. The Second Agreement made between the Claimant and the Defendant was made under the salary system, instead of the profit share system. Thus, the Claimant was not entitled to half or any such

amount of the sale price beyond the monthly payment of £400.

10. Paragraph 10 of the Particulars of Claim is denied. The Paintings were lawfully purchased by the Defendant under the Second Agreement and were thereafter, rightfully owned by the Defendant. 11. As to Paragraphs 11 and 12 of the Particulars of Claim, the Claimant is required to prove that she has suffered the loss and damage as alleged.

12. Further, it is denied that any loss and damage which the Claimant may establish was caused by any breach of the Agreement and/or conversion by the Defendant for reasons set out above. 13. Any such loss or damage to the paintings, to the extent that it may be proved, was caused by the fault of the Claimant and/or by her own failure to take reasonable steps to mitigate her loss, in that she failed to insure the Watercolours on her own. COUNTERCLAIM 14. The Defendant repeats paragraphs 1, 4, 5 and 9 of its Defence. 15. In accordance with the express terms set out in Paragraph 4 of this Defence, 12 paintings were to be provided by the Claimant to the Defendant as part of the Second Agreement. 16. In breach of the Second Agreement, the Claimant had failed to supply the 11 th and 12th Paintings by the end of August when the Defendant had already paid in advance for oil on board Paintings. 17. The Defendant claims for the £800 for the undelivered paintings or alternatively, for the 11th and 12th pictures to be delivered as per the Second Agreement. 18. Further or alternatively, as a result of the Claimant’s breach of the Purchase Agreement, the Defendant has suffered loss and damage. PARTICULARS The Defendant has sold 4 Paintings produced by the Claimant under the Purchase Agreement for £2,500 each. On this basis the Defendant estimates that the painting “Daisy Petals” and “Giant Larkspur” or similar paintings, which the Claimant failed to deliver, would have been sold for not less than £2,500 each. 19. The Defendant claims interest on such sums as may be awarded to it under the

Counterclaim, at such rate and for such period as the Court shall deem fit, pursuant to section 69 of the County Courts Act 1984. AND the Defendant counterclaims: (1) Delivery of the paintings owed, namely the “Giant Larkspur” and the “Daisy Petals” (2) Alternatively, delivery up of 2 other paintings painted by the Claimant, pursuant to and in accordance with the terms of the Purchase Agreement. (3) Further or alternatively, damages for breach of contract. (4) Interest under section 69 of the County Courts Act 1984 to be assessed.

ALICIA BARRISTER STATEMENT OF TRUTH etc Dated etc...