Abel Metal Polishing Service (Reg) v The State of South Australia

[2011] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

ABEL METAL POLISHING SERVICE (REG) v THE STATE OF SOUTH AUSTRALIA

[2011] SADC 23

Judgment of His Honour Judge Cuthbertson

2 March 2011

TORTS

CONVERSION - LIABILITY OF COURTS FOR WRONGFUL RETENTION AND DELIVERY OF EXHIBITS POST TRIAL

MINOR CIVIL REVIEW

Extension of time to file application.

The applicant had successfully conducted litigation against a third party for non payment for work performed by the applicant to four  motor vehicle wheels of that party.

The third party went bankrupt and the applicant sought to recover from the Court two of the wheels which had been the subject of the litigation with the third party and were exhibits at that trial – the court wrongly returned one of the wheels to the third party and allegedly damaged this wheel before returning it finally to the applicant.

The applicant proceeded against the respondent for wrongful detention and conversion of the two wheels and failed in the decision in respect of which review is sought.

HELD: Extension of time to file Notice of Review refused as proceedings must inevitably fail.

Dismissal of the claim against the respondent by the Magistrate is correct on the basis that any lien the applicant had over the wheels did not permit him to sell the wheels and keep the proceeds and thus no damage to the plaintiff had been established.

ABEL METAL POLISHING SERVICE (REG) v THE STATE OF SOUTH AUSTRALIA
[2011] SADC 23

1. This is an application by the applicant / plaintiff to review a minor civil decision in the Small Claims Division of the Magistrates Court.  The applicant claimed for conversion of wheel centres (mag wheels) by the Courts Authority of South Australia.

   Background

2. In order to understand the issues it is necessary to traverse some of the background of the matter.

3. The applicant carried on a business as a metal polisher.  Sometime in 2004 one Nomikos brought four Porsche wheel centres to the applicant for polishing.  The wheels were expensive and somewhat rare, being specifically fitted to a Porsche motor vehicle.  A wheel centre is essentially a wheel without the tyre.

4. The applicant performed metal polishing work on the wheels and charged an amount of approximately $3,000.  The respondent did not pay for the work performed on the wheels so the applicant retained them.

5. In due course the applicant lodged a claim in the Magistrates Court claiming an amount of $3,235 for work performed on the wheels.

6. The matter went to trial and on 17 February 2005 Mr Fahey SM gave judgment, by default, for the applicant for a total amount of $3,747.  His Honour made a further order that the applicant retain the respondent’s property pending payment by the respondent and that upon receipt of payment such property was to be returned to the respondent.

7. On 19 July, 2005 a Judge of this Court quashed the judgment and gave leave to the respondent to file an amended defence and counter claim, the previous judgment having been signed by default.

8. In due course the matter went to trial again before Ms P Eldridge SM, again as a small claim.  Again the applicant was successful and judgment was entered on 22 June 2006 for $3,694.  No mention was made as to the retention or otherwise of the four wheel centres.

9. The applicant thereupon made various efforts to execute judgment but was unable to do so as the respondent became bankrupt.

10. Prior to the hearing of the first trial before Mr Fahey SM, an order was made by Ms Eldridge SM as follows:

    The applicant is to make available to the respondent on Thursday 13 January 2005 between the hours of 7.00 and 7.30 pm at 10 Main Street, Beverly, two wheel centres to enable the respondent to refer them for inspection to an expert for him to provide a report.  I make an order that the respondent provide the applicant with a copy of the experts report within 14 days from the date of collection of the wheel centres, and I adjourn the matter for trial to 17 February, 2005 at 10.00 am.

11. Mr Ward SM found further in the proceedings, the subject of this review, that:

    ‘On 11 January 2005, after the hearing of the application before Ms Eldridge SM, the plaintiff and the defendant had further discussions.  The plaintiff then gave the mag wheel, which he had brought to Court for the application, to the defendant “as a goodwill gesture” affidavit of Mazzeo sworn 10 February 2005 in Exhibit p1).’[1]

    [1]    See judgment of Mr Ward SM (TP6)

12. The applicant did not see the wheel centre again until the trial before Magistrate Ms Eldridge SM on 22 June 2006. 

13. I disagree with the conclusion that the learned Magistrate reached that the giving of the wheel by the applicant to the respondent destroyed the applicant’s lien, but as will be seen, it is of no consequence for the review.

    The Review

14. The applicant has filed a Notice of Review claiming a number of defects in the trial before Mr Ward SM and asserting that the learned Magistrate should have found that the applicant did not relinquish his artificer’s lien by handing over a wheel centre to the respondent on the order of a Magistrate for its inspection by an expert witness.

15. The applicant claims damages because of the wrongful retention of the wheel centres by the Court Registry and the wrongful forwarding of one of them after the trial to the Solicitors for the Respondent and damage to it while in the custody of the Court Registry or the Respondent’s Solicitor.

16. In my view it would not assist the applicant to overturn the findings of the Court in these matters.  This is because the lien gives no right of sale to the applicant.

17. As it is put in Elliot, “The Artificer’s Lien” 1967:

    At common law a workman’s lien is purely a right to retain possession of goods, until he is paid for his work and the materials he has used or expended in it.  He has no right to sell or dispose of the goods in any way.  If he does sell them or if he attempts to sell them or if he concurs in their sale or if he causes them to be taken by the Sheriff and sold under an execution under his own suit not only will his lien be lost but he will be liable to the owner for the full value of the goods, and he will not be entitled to set off his own claim for the work and materials against that full value.

    (Chapter 4, page 64)

18. It follows that after the trial before Ms Eldridge SM, even if the Court Registry had returned promptly the wheel centres to the applicant on the basis that he held an artificer’s lien over them, the only use the applicant could have made of them would have been to retain them until such time as Nomikos paid the applicant what he owed for them.

19. It is true that a lien holder has certain advantages occurring by virtue of the lien.  In particular a repairer’s lien on prescribed goods has priority over a security interest in the goods.  (s12 Goods Securities Act, 1986)  Yet “prescribed goods” currently may comprise motor vehicles but not wheels.

20. The applicant has suffered no damage because he had no right to sell the wheel centres even if he had possession of them.  He was never going to get paid by Nomikos because Nomikos went bankrupt.

21. There is no evidence that the trustee in bankruptcy wanted to receive them and would have paid out the debt of Nomikos’ to the applicant to receive them and no evidence therefore that the applicant has lost anything of value by virtue of the Court having retained one of the wheel centres.

22. As there is no prospect of the Review succeeding there is no point in giving the extension of time sought.

23. Accordingly the application to extend time to file the Review application is refused.

24. There will be no order as to costs.