Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Bunnings Group Limited v CHEP Australia Limited [2011] NSWCA 342 Hearing dates: 20 & 21 September 2011 Decision date: 10 November 2011 Before: Allsop P at 1
Giles JA at 193
Macfarlan JA at 206Decision: 1.Grant leave to the parties to file within 14 days draft orders and submissions in support thereof of no more than 10 pages that each submits should flow from these reasons.
2.Proceedings stood over to a date to be fixed for making of orders and any further argument.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - intentional - conversion; elements of - mere possession not conversion in commercial context of fungible goods released into market on terms contemplating sub-bailment and transfer of possession - conversion established by refusal to make available or deliver-up goods in response to unconditional demand.
TORTS - intentional - conversion - user principle - whether nature of use of goods repugnant to rights of true owner - necessary to assess use considering all circumstances of case - Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; 74 CLR 204 considered.
CORPORATIONS - attribution of knowledge of agent - relevant factors.
DAMAGES - conversion - proper measure of damages - compensation - fee for hire - Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 and Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 considered.Legislation Cited: International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, signed at Brussels, 25 August 1924, Art IV, rule 2(b) and (q)
International Convention relating to the Limitation of Liability of Owners of Sea-Going Ships, signed at Brussels, 10 October 1957, Art 1
Merchant Shipping Act 1894 (UK), s 502Cases Cited: Abington v Lipscomb (1841) 1 QB 776; 113 ER 1328
Aitken Agencies Ltd v Richardson [1967] NZLR 65
Armory v Delamirie (1722) 1 Strange 505; 93 ER 664
Attorney-General v Blake; [2001] UKHL 45; [2001] 1 AC 268
Barclay's Mercantile Business Finance Ltd v Sibec Developments Ltd [1992] 1 WLR 1253
Baud Corp, NV v Brook (1973) 40 DLR (3d) 418
BBMB Finance (Hong Kong) Ltd v EDA Holdings Ltd [1990] 1 WLR 409
Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465
Blackburn Law & Co v Vigors (1887) LR 12 App Cas 531
Bracewell v Appleby [1975] Ch 408
Brambles Australia Ltd v Tatale Pty Ltd [2004] NSWCA 232; Aust Torts Reports 81-759
Brambles Holdings Ltd v Carey (1976) 15 SASR 270
Butler v Egg…
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- Case
- [2011] NSWCA 342
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether Bunnings' conduct constituted conversion of CHEP's pallets. Specifically, the court considered whether mere possession of fungible goods, released into the market on terms contemplating sub-bailment and transfer of possession, could amount to conversion. It also had to assess whether Bunnings' use of the pallets was repugnant to CHEP's rights as the true owner, considering the commercial context and the terms of the bailment. Furthermore, the court examined the principles for attributing knowledge of an agent to a corporation and the proper measure of damages for conversion in such circumstances, including the potential for a fee for hire.
The Court of Appeal reasoned that in the commercial context of fungible goods like pallets, which are intended to be used and transferred, mere possession does not automatically constitute conversion. However, conversion can be established by a refusal to make available or deliver up the goods in response to an unconditional demand from the owner. The court applied the principles from *Penfolds Wines Pty Ltd v Elliott* regarding the user principle, emphasizing the need to assess the nature of the use in light of all the circumstances. The court also considered the principles for attributing knowledge to a corporation and the measure of damages for conversion, referencing authorities such as *Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd* and *Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd* concerning the recovery of hire fees.
The Court of Appeal granted leave to the parties to file draft orders and submissions within 14 days, not exceeding 10 pages each, outlining the orders they believed should flow from the court's reasons. The proceedings were then stood over to a date to be fixed for the making of orders and any further argument.
Orders
Orders of the court
1.Grant leave to the parties to file within 14 days draft orders and submissions in support thereof of no more than 10 pages that each submits should flow from these reasons.
2.Proceedings stood over to a date to be fixed for making of orders and any further argument.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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