Burnett v Randwick City Council - [2006] NSWCA 196

New South Wales

Court of Appeal

CITATION: Burnett & Anor v Randwick City Council [2006] NSWCA 196

HEARING DATE(S): 5 July 2006

JUDGMENT DATE:
20 July 2006

JUDGMENT OF: Giles JA at 1; Hodgson JA at 2; Tobias JA at 9

DECISION: Appeal dismissed with costs

CATCHWORDS: PERSONAL PROPERTY – ownership and possession – right to immediate possession – property owned by a corporation – rights of directors, managers and sole shareholders in respect of corporate property – bailment – possessory title – de facto possession – TORTS – TROVER AND DETINUE – possession or right to possession – what constitutes conversion

LEGISLATION CITED: Corporations Act 2001
Impounding Act 1993

CASES CITED: Gollan v Nugent (1988) 166 CLR 18
James v Oxley (1939) 61 CLR 433
Moore v Robinson (1831) 2 B & Ald 817; 109 ER 1346
Pitts v Gaince (1700) 1 Salk 10
Richard v Nowlan (1959) 19 DLR (2d) 229
Russell v Wilson (1923) 33 CLR 538
The Jupiter (No 3) [1927] P 122
Vincent v State Bank of New South Wales (Unreported, Supreme Court of New South Wales, 30 July 1993)

PARTIES: John Robert Burnett
Carmel Burnett
Randwick City Council

FILE NUMBER(S): CA 40525/05

COUNSEL: A: G Inatey SC / M Luitingh
R: C T Barry QC / R Wilson

SOLICITORS: A: Lincoln Smith & Co, Chatswood
R: Bowen & Gerathy, Sydney

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20947/97

LOWER COURT JUDICIAL OFFICER: Cooper AJ

LOWER COURT DATE OF DECISION: 31 May 2005

LOWER COURT MEDIUM NEUTRAL CITATION: Randwick City Council v Burnett & Anor [2005] NSWSC 508

CA 40525/05
SC 20947/97

GILES JA
HODGSON JA
TOBIAS JA
Thursday 20 July 2006

JOHN ROBERT BURNETT and CARMEL BURNETT v RANDWICK CITY COUNCIL

Facts:

The appellants ran a gymnasium business in premises that were owned by the respondent. Certain chattels that had been used in connection with the gymnasium business were owned by one or more companies, which the appellants were employed to manage and of which they were the sole directors and shareholders.

The chattels were left behind when the appellants were lawfully evicted from the premises. The appellants argued that they had a personal right to immediate possession of the chattels. They also sought to sue the respondent in conversion, which allegedly arose out of the respondent’s refusal to hand the chattels over to them.

Held, dismissing the appeal with costs:

1. Although an officer of a company may control the manner in which a company’s property is held, used, acquired or disposed of, this does not vest that officer with a right of immediate possession in his or her personal capacity entitling him or her to sue for trespass or conversion in his or her own name, unless there is some overt act on the part of the corporate owner to affect a change in the status of the officer’s possession: [95], [96]; Vincent v State Bank of New South Wales (Unreported, Supreme Court of New…

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.

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Details

Case: [2006] NSWCA 196
Decision Date: 20 July 2006

CaseChat Overview and Summary

Burnett (the appellant) brought proceedings against Randwick City Council (the respondent) concerning the ownership and possession of a motor vehicle. The dispute centred on the appellant's claim to immediate possession of the vehicle, which was owned by a corporation. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the appellant, as a director, manager, and sole shareholder of the corporation that owned the vehicle, had a right to immediate possession of that vehicle, and whether the Council's actions in seizing and retaining the vehicle constituted conversion. The court was required to consider the nature of corporate property and the rights of individuals associated with a corporation in relation to that property, as well as the principles of bailment and possessory title.

The Court of Appeal held that the appellant did not have a right to immediate possession of the vehicle. The court reasoned that the vehicle was the property of the corporation, and as such, the corporation, not the appellant personally, held the legal title and the right to possession. The appellant's role as director, manager, and sole shareholder did not, in itself, confer personal ownership or a right to immediate possession of corporate assets. The court applied the principle that a company is a separate legal entity from its shareholders and directors. Consequently, the Council's actions in seizing the vehicle did not amount to conversion, as the appellant lacked the necessary possessory title or right to possession to maintain such a claim.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Burnett & Anor v Randwick City Council [2006] NSWCA 196
HEARING DATE(S):	5 July 2006
JUDGMENT DATE:	20 July 2006
JUDGMENT OF:	Giles JA at 1; Hodgson JA at 2; Tobias JA at 9
DECISION:	Appeal dismissed with costs
CATCHWORDS:	PERSONAL PROPERTY – ownership and possession – right to immediate possession – property owned by a corporation – rights of directors, managers and sole shareholders in respect of corporate property – bailment – possessory title – de facto possession – TORTS – TROVER AND DETINUE – possession or right to possession – what constitutes conversion
LEGISLATION CITED:	Corporations Act 2001 Impounding Act 1993
CASES CITED:	Gollan v Nugent (1988) 166 CLR 18 James v Oxley (1939) 61 CLR 433 Moore v Robinson (1831) 2 B & Ald 817; 109 ER 1346 Pitts v Gaince (1700) 1 Salk 10 Richard v Nowlan (1959) 19 DLR (2d) 229 Russell v Wilson (1923) 33 CLR 538 The Jupiter (No 3) [1927] P 122 Vincent v State Bank of New South Wales (Unreported, Supreme Court of New South Wales, 30 July 1993)
PARTIES:	John Robert Burnett Carmel Burnett Randwick City Council
FILE NUMBER(S):	CA 40525/05
COUNSEL:	A: G Inatey SC / M Luitingh R: C T Barry QC / R Wilson
SOLICITORS:	A: Lincoln Smith & Co, Chatswood R: Bowen & Gerathy, Sydney
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20947/97
LOWER COURT JUDICIAL OFFICER:	Cooper AJ
LOWER COURT DATE OF DECISION:	31 May 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	Randwick City Council v Burnett & Anor [2005] NSWSC 508