Beaven v Fink - [2009] NSWDC 218

CITATION: Beaven & Ors v Fink & Ors [2009] NSWDC 218

HEARING DATE(S): 10/02/2009-13/02/2009, 16/02/2009-17/02/2009

JUDGMENT DATE:
19 August 2009

JURISDICTION: District Court - Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1) Verdict and judgment for the plaintiffs against Mr Fink and Mr Rietveld in the action for conversion and trespass in the sum of $21,571.
2) Verdict and judgment for the plaintiffs against Mr Fink in the action for slander in the sum of $2,500.
3) Verdict for Thomas Fink on the claims against him in trespass and conversion.
4) The proceedings are listed at 9.30 on 25 August 2009 to hear argument on the question of costs.
5) Exhibits are returned.

CATCHWORDS: Conversion: Onus of Proof of Ownership - Property removed from plaintiff's land - Evidence of Identifying features provided at late stage in proceedings - Slander - Claim of liability - General, aggravated and exemplary damages

LEGISLATION CITED: Crimes Act 1900
Defamation Act 2005

CASES CITED: Holmes v Fraser [2008] NSWSC 570
Gatward v Alley (1940) 40 SR(NSW) 174
Jerome v Bentley [1952] 2 All.ER 114

TEXTS CITED: Cross on Evidence, D M Byrne QC and J D Heydon, 3rd Aus Edition
Law of Torts, Fleming, 7th Edition
Law of Torts, R P Balkin & J L R Davis, 2nd Edition
Torts, Commentary and Materials, W L Morison & C Sappideen, 7th edition

PARTIES: Robin Newton Beaven (First Plaintiff)
Mildred Josephine Beaven (Second Plaintiff)
Alexander Edward Beaven (Third Plaintiff)
Andre Fink (Second Defendant)
William Bertrand Rietveld (Third Defendant)
Thomas Fink (Fourth Defendant)

FILE NUMBER(S): 406/07

COUNSEL: Mr M. Preece (for First, Second and Third Plaintiffs)
Mr P Sternberg (for First Defendant)
Mr J Keesing (for Second, Third and Fourth Defendants)

SOLICITORS: Hunt & Hunt (for First, Second and Third Plaintiffs)
The Crown Solicitor (First Defendant)
Makinson & d'Apice Lawyers (for Second, Third and Fourth Defendants)

JUDGMENT

1 The plaintiffs in these proceedings are Robin Beaven, his wife Mildred Beaven, and his son, Alexander Beaven. The defendants are Andre Fink, his son, Thomas Fink, and William Rietveld. Proceedings against the State of New South Wales were settled prior to the commencement of the hearing.

2 Mr and Mrs Beaven owned the land at Lot 352 Wallis Island and occupied it primarily at weekends with their sons Alexander and Matthew. Mr Andre Fink owned the land at Lots 1 and 2 Wallis Island and, at the time of the events that are the subject of this litigation, occupied it primarily at weekends with his family.

3 The parcels of land were on the south western side of Wallis Island and they shared one common boundary. Each parcel had frontage to a public reserve that bordered Wallis Lake. There were no other properties on the south western side of Wallis Island.

4 Mr Andre Fink built on his land a substantial house and a large shed. He landscaped the grounds with shrubs and fruit trees. On the Beaven land was a more modest, renovated dwelling and a building comprising a garden…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beaven v Fink

Details

AGLC: Beaven v Fink [2009] NSWDC 218
Case: [2009] NSWDC 218
Decision Date: 19 August 2009

CaseChat Overview and Summary

In the case of Beaven v Fink, the plaintiffs, the Beavens, sought relief against the defendants, Fink and Rietveld, for conversion and trespass related to property removed from their land. The Beavens also claimed damages for slander against Fink. The dispute was heard in the Supreme Court of South Australia. The court was tasked with determining whether the Beavens had established ownership of the property, and if Fink had defamed them, warranting damages. The court also had to consider the appropriate quantum of damages for both conversion and slander.

The primary legal issues revolved around the proof of ownership and the timing of the provision of identifying features of the property. The Beavens argued that Fink and Rietveld had wrongfully removed property from their land, while Fink denied the slander allegations. The court had to weigh the evidence presented, including the late provision of identifying features of the property, to establish whether the Beavens had proved their ownership. Furthermore, the court needed to assess if Fink's words constituted slander and, if so, the appropriate level of damages to award.

The court held that the Beavens had successfully demonstrated ownership of the property, despite the late provision of identifying features, by presenting sufficient evidence of the property's distinctive characteristics. The court found Fink liable for slander and assessed the damages for conversion and slander at $21,571 and $2,500 respectively. Thomas Fink was acquitted of the charges against him. The court ordered judgment in favour of the Beavens against Fink and Rietveld for conversion and trespass, and against Fink for slander. Additionally, the court scheduled a hearing for 25 August 2009 to discuss costs and ordered the return of exhibits.

Orders

Orders of the court

1) Verdict and judgment for the plaintiffs against Mr Fink and Mr Rietveld in the action for conversion and trespass in the sum of $21,571. 2) Verdict and judgment for the plaintiffs against Mr Fink in the action for slander in the sum of $2,500. 3) Verdict for Thomas Fink on the claims against him in trespass and conversion. 4) The proceedings are listed at 9.30 on 25 August 2009 to hear argument on the question of costs. 5) Exhibits are returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Beaven & Ors v Fink & Ors [2009] NSWDC 218
HEARING DATE(S):	10/02/2009-13/02/2009, 16/02/2009-17/02/2009
JUDGMENT DATE:	19 August 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1) Verdict and judgment for the plaintiffs against Mr Fink and Mr Rietveld in the action for conversion and trespass in the sum of $21,571. 2) Verdict and judgment for the plaintiffs against Mr Fink in the action for slander in the sum of $2,500. 3) Verdict for Thomas Fink on the claims against him in trespass and conversion. 4) The proceedings are listed at 9.30 on 25 August 2009 to hear argument on the question of costs. 5) Exhibits are returned.
CATCHWORDS:	Conversion: Onus of Proof of Ownership - Property removed from plaintiff's land - Evidence of Identifying features provided at late stage in proceedings - Slander - Claim of liability - General, aggravated and exemplary damages
LEGISLATION CITED:	Crimes Act 1900 Defamation Act 2005
CASES CITED:	Holmes v Fraser [2008] NSWSC 570 Gatward v Alley (1940) 40 SR(NSW) 174 Jerome v Bentley [1952] 2 All.ER 114
TEXTS CITED:	Cross on Evidence, D M Byrne QC and J D Heydon, 3rd Aus Edition Law of Torts, Fleming, 7th Edition Law of Torts, R P Balkin & J L R Davis, 2nd Edition Torts, Commentary and Materials, W L Morison & C Sappideen, 7th edition
PARTIES:	Robin Newton Beaven (First Plaintiff) Mildred Josephine Beaven (Second Plaintiff) Alexander Edward Beaven (Third Plaintiff) Andre Fink (Second Defendant) William Bertrand Rietveld (Third Defendant) Thomas Fink (Fourth Defendant)
FILE NUMBER(S):	406/07
COUNSEL:	Mr M. Preece (for First, Second and Third Plaintiffs) Mr P Sternberg (for First Defendant) Mr J Keesing (for Second, Third and Fourth Defendants)
SOLICITORS:	Hunt & Hunt (for First, Second and Third Plaintiffs) The Crown Solicitor (First Defendant) Makinson & d'Apice Lawyers (for Second, Third and Fourth Defendants)