and Investec Bank (Australia) Ltd(ACN 071 292 594) v Gadens Lawyers (A Firm) and Sutherland Farrelly Pty Ltd(ACN 004 601 469)

[2014] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0053
INVESTEC BANK (AUSTRALIA) LTD (ACN 071 292 594)	Appellant
v
GADENS LAWYERS (A FIRM)	First Respondent
and
SUTHERLAND FARRELLY PTY LTD (ACN 004 601 469)	Second Respondent

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JUDGES	NETTLE, BEACH JJA and McMILLAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 March 2014
DATE OF JUDGMENT	13 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 40
JUDGMENT APPEALED FROM	[2012] VCC 2020 (Judge Kings)

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BAILMENT – Gratuitous – What constitutes – Shipping containers left on occupier’s land for limited period with occupier’s consent – Whether arrangement amounting to bailment of containers or merely licence – Whether bailment extending to contents of containers –Whether sufficient notification to occupier of general quality and value of contents – Ashby v Tolhurst [1937] 2 KB 242, considered; Coopers & Lybrand v Sterling Circuits Inc and Sun Life Assurance of Canada (1988) 47 DLR (4^th) 614, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P D Crutchfield SC with Dr Oren Bigos	Arnold Bloch Leibler
For the First Respondent	Mr D V Aghion	Colin Biggers & Paisley
For the Second Respondent	Mr A T Strahan	DLA Piper

NETTLE JA

BEACH JA
McMILLAN AJA:

1. These appeals were contingent on the outcome of the appeal of James Geoffrey Rolfe against the refusal of his claim against Investec Bank (Australia) Ltd (‘Investec’) for damages for breach of bailment.[1]

   [1](2014) VSCA 38.

1. Investec contended that, if Mr Rolfe’s appeal were upheld, we should allow Investec’s appeal against the judge’s dismissal of Investec’s cross-claims against Gadens and Sutherland Farrelly Pty Ltd (‘Sutherland Farrelly’),

1. For the reasons which we have published this day, Mr Rolfe’s appeal against Investec will be dismissed.  It follows that Investec’s appeals against Gadens and Sutherland Farrelly should also be dismissed.

1. In case it matters, however, we add that, ultimately, Investec put its appeals against Gadens and Sutherland Farrelly on the sole basis that they failed to warn Investec of its obligations as bailee.

1. Since that claim was not made below, and may well have affected the way in which the proceeding was conducted, we consider that it is too late now for Investec to raise the claim on appeal.

1. Hence, even if we had not dismissed Mr Rolfe’s appeal as we have done, we should nonetheless have dismissed these appeals with costs.

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