C&a Computer Training Rooms v Bellside Nominees No. DCCIV-03-34

C&A COMPUTER TRAINING ROOMS PTY LTD
v
BELLSIDE NOMINEES PTY LTD
[2004] SADC 38
Judge Lunn
Civil

The plaintiff is a company which specialises in leasing premises, fitting them out as computer training rooms and then hiring them out to computer companies which use them to instruct their customers in their products. It is based in Sydney but it operates computer training rooms throughout Australia and New Zealand. Its managing director is Andrew Cameron and at the relevant times its general manager was Alexander Pallis.
The plaintiff commenced operations in Adelaide in June 2000. One of its initial employees in its Adelaide operation was Andrew Ratcliffe but he left the plaintiff in about March 2002.
On 13 March 2001 the plaintiff executed a written lease for part of the ninth floor (“the premises”) of a building at 108 King William Street, Adelaide (“the building”) from its then owner, QBE Insurance International Ltd, for a term expiring on 31 May 2001. The plaintiff installed partitions, additional airconditioning, a sophisticated security system and special cabling in the premises and fitted it out with other moveable chattels to make it suitable for use as a computer training facility. Also on 13 March 2001 an extension of this lease was executed for a further year to expire on 31 May 2002.
Before the expiration of the extension of the lease the reversion in the whole building at 108 King William Street was sold to the defendant. The defendant is a company controlled by Zizzis Ginos. It employed Jones Lang LaSalle (“JLL”) as its managing agent for the building. Paul Mooney was the director of JLL who ran the management of the building. At all relevant times a substantial part of the building remained untenanted. In about mid 2002 the defendant employed Colliers International as its leasing agent to obtain new tenants for the building.
By late 2001 the plaintiff was hiring out the whole of its training facility in the building to one client, Compaq. However, in early 2002 it was announced that Compaq was to merge with another computer company, Hewlett Packard. This meant that Compaq ceased hiring the plaintiff’s facility as from the termination of the extended lease on 31 May 2002 and it was unknown whether the successor to Compaq would again want to use this facility. In any event there was to be a substantial hiatus between when Compaq ceased occupation in May 2002 and when any further arrangement with its successor might commence. In early 2002 the plaintiff’s business in Adelaide was expanding and it was about to commission new training facilities in 80 King William Street, Adelaide. However, without a further contract with Compaq, or other new clients, it did not also need to continue its lease of the premises.
In late 2001 and early 2002 there were negotiations between Pallis and Mooney about the future of the plaintiff’s lease but they came to nothing. On 21 April 2002 there was a meeting between Cameron and Pallis for the plaintiff and Mooney for the defendant in which the plaintiff proposed that after 31 May it should rent the premises on an ad hoc casual basis on days when it had a use for them for a training facility. It was suggested there was the possibility of the plaintiff taking a further lease at a later date when it became known whether the plaintiff could itself enter into further contracts with Compaq or other computer companies for which it would require full time use of the premises. Implicit in the plaintiff’s proposal was that it would leave its fit–out in the premises in place so that it could be utilised in any ad hoc renting, or future leasing, by it. However, Mooney would not agree to any proposal for ad hoc use. Following this meeting Pallis wrote to Mooney on 30 April 2002 in the following terms:
“I hereby give notice of our intention to terminate our lease at 108 King William Street effective 31 May 2002. We will meet our make good obligations.
As discussed, we have an opportunity to use the space effective from January 2003. We would prefer to take an option for a new lease from that date. In the meantime, we would propose to make use of the space on an ad-hoc basis, on a pay as used basis. …”
On 1 May Mooney sent a fax to Ginos which contained the following:
“C&A Computers – finally confirmation of their position. However, they do not really want to reinstate because they ‘might’ need to lease some or all of the space later! …”
On an unknown date, which may well have been after 9 May, Ginos replied to this fax in terms of “Vacate and reinstate”.
Early in May 2002 Cameron spoke with Mooney about the future of the premises. On 9 May Pallis sent a fax to Mooney in the following terms:
“Further to our recent communications and your conversation with Andrew Cameron last week, I confirm the following:
1) We may leave our fit-out and furniture in place for possible future use
2) We have the option for future use of the facility
3)No payment for the option will be due by us for the premises after the last payment date of the existing lease agreement …”
This fax over-stated the position as there had been no agreement for any option. Later that day Mooney wrote to Cameron a letter which most likely sets out the true position. It stated:
“We refer to your fax of 9 May.
The matters detailed therein are not our understanding of the current position.
We advised Andrew Cameron that the matters raised in your previous fax were with the Lessor for a decision. It was quite possible that the existing fitout might be permitted to remain.
Andrew requested that if you were to be required to make good the premises that you be provided with a reasonable period to do so.
This is the current status.
We will advise you as to the Lessor’s requirements as soon as possible.”
There was no further communication on the topic. The extended lease expired by effluxion of time on 31 May. The plaintiff’s regular activities on the premises ceased, but it did not remove its fit-out or chattels. The defendant did not tell it to do so and I infer that both parties were content to await developments and see if the plaintiff would offer to take up a new lease at some time in the future and thus thereby utilise the contents of the premises.
On at least one occasion in June 2002, and possibly on other occasions, the plaintiff, without the defendant’s permission, did utilise the training facilities in the premises for a few days, but it did not pay, or offer to pay, any rent to the defendant for such use. The plaintiff retained the keys to the premises. In about mid August 2002 JLL programmed the lifts in the building to bar entry to the ninth floor which stopped the plaintiff having any further access to the premises. On 16 August an employee of the plaintiff rang JLL requesting casual use of the premises for a training session but JLL refused.
As a result of this refusal Cameron came to Adelaide and there was a meeting on 21 August between him and Pallis for the plaintiff and Mooney. Mooney again rejected the plaintiff’s request for ad hoc use of the premises and intimated that the defendant wanted a new lease or the removal of the plaintiff’s fixtures. The plaintiff spoke of it taking up a new lease commencing on 1 January 2003 at a rental of $175 per square metre and said it would decide on this within a few weeks. Mooney intimated he would get instructions from Ginos. It was implicit in what was discussed that the plaintiff was to be permitted to leave its fit-out and chattels in the premises pending a decision whether any new lease was to be entered into, and if it was decided that no new lease could be entered into, then it was to have a reasonable time after that to remove them.
Later that day Mooney sent a fax to Ginos reporting on the meeting and seeking instructions. In that fax he accurately summarised what had occurred. It read:
“2.     C&A Computers – Part Floor 9
We have advised the tenant to reinstate the tenancy without further delay.
They have asked whether they can take a 1 year lease from 1 January 2003 and leave the fitout in situ until then. They seek the terms for such a deal and would give a commitment within two weeks, otherwise reinstate.
Their previous lease, for the 246.2 square metres, was at a rental of $175/m² gross.
If a lease for a 1 year term is acceptable to you we suggest seeking a rental of $185-190/m² gross, with no incentive.
In addition, if they occupy prior to 1 January 2003 then rental would commence from that date. They say they are about to sign a contract for 2003 with the State Government and could use this facility.”
Ginos promptly gave instructions to Mooney and on 22 August Mooney wrote to Cameron in the following terms:
“i)     The Lessor would agree to a new lease on the following general terms:
Term  :       1 year from 1 January 2003.
Rental:       $46,778 per annum (ie 246.2 square metres @ $190 per square metre gross) paid monthly.
…...
Lease:       Generally in format of previous lease, as prepared by Lessor’s Solicitors.
Other:       Until 1 January 2003 you would be permitted to leave the existing fitout in the premises, at your continuing risk.
:Access would be provided from, say, 15 December 2001 to allow re-establishment of your onsite operations.
:If you wished to occupy earlier than 1 January 2003 the rental would commence from such date.
ii)     If you do not accept the above proposal by, say, 15 September (which provides the time period you indicated) then you will be required to promptly carry out the outstanding reinstatement under your expired lease.
We look forward to your consideration of the above, which we trust is a basis which properly addresses and accommodates the requirements you outlined. Please let us know if any aspects require discussion.
We await your response.”
Although it was disputed, I find that the plaintiff made no response to this letter of 22 August. It never agreed to pay rent at the rate of $190 per square metre. It did not enter into any new contracts with its clients which would have required its use of the premises.
Shortly before 23 September 2002 Mooney instructed Thomas, an employee of JLL, in a handwritten memo which read:
“Follow up letter to C&A when answer due on lease offer/make good.”
As a result of this instruction Thomas prepared a letter dated 23 September 2002 addressed to Cameron in the following terms:
“We refer to our letter dated 22 August 2002 regarding your expired lease for premises in the building.
It appears we have not received a response.
Assuming you are not taking up the lease offer, please contact Andy Tornet, Building Services Manager from our office to promptly arrange the outstanding reinstatement under your expired lease.”
The plaintiff denies receiving that letter. I will deal with that issue later in these reasons. At the end of September 2002 Mooney left JLL and in October his role was taken over by Michael Trott. The plaintiff continued to do nothing about either continuing negotiations for a new lease or removing its property from the premises.
In late October 2002 Colliers negotiated with Ratcliffe, the former employee of the plaintiff, for him to lease from the defendant part of the premises which had previously been leased to the plaintiff. The written offer for lease dated 1 November 2002 between Ratcliffe and Colliers contained a term that Ratcliffe would be allowed to use the fit-out and loose furniture in the premises. This meant the fixtures and chattels of the plaintiff. On 6 November 2002 Ginos accepted Ratcliffe’s proposal and took the position that the plaintiff had abandoned the contents of the premises. The proposal from Ratcliffe was for a lease to commence on 1 December 2002, but this was later put back to 1 January 2003. Ratcliffe never signed a formal lease. Correspondence indicates that he was anxious that the plaintiff did not learn of his intention to go into competition with it by taking over its former premises. Ginos seems to have facilitated this and did not advise JLL until 16 December 2002 of the agreement to lease part of the premises to Ratcliffe.
For reasons which are not entirely clear, but which do not particularly matter, Cameron came to Adelaide on 17 December 2002 for purposes connected with the premises. His request to JLL for access to the ninth floor, and to the premises, was refused on the grounds that the defendant had taken the position that the plaintiff had abandoned the fit-out and contents of the premises. In a heated conversation with Trott on that day Cameron was told that part of the premises had been leased to Ratcliffe. It is unclear whether that was the first time that he learnt this. The plaintiff did not want a competitor to have the benefit of its fit-out of the premises.
On 18 December Cameron, from Sydney, sent a fax to Trott containing the following:
“Further to our conversation on 17^th December, I confirm I require access to the tenancy to remove our equipment and make good the tenancy.
Your advice that the owner is contemplating a course of action contrary to this is of serious concern. The tenancy and our equipment were left as were by express arrangement with your previous Managing Director, Paul Mooney.
Our arrangement with Paul was made at the end of 2002 following the expiry of our lease. It came about after Paul wrote to us in August or September 2002 with an offer to lease the property. This offer was not taken up at the time and your office then wrote to us requesting that we make good the tenancy and remove our equipment. I then telephoned Paul and discussed with him a potential contract that we were working on, commencing in February 2003, that would use the tenancy as were. I noted that it was in the buildings best interest to leave the tenancy as were as this would guarantee our return to the property to make use of the specialised fit out.
Paul Mooney agreed to this on the basis that if another tenant required the tenancy, we would then make good and remove our equipment. He qualified this, stating that there was abundant other space available in the building that would be let first. I asked Paul Mooney to contact me directly if this were the case to ensure that we were able to meet our obligations.
As advised to you, it transpires that we no longer require the tenancy to meet the requirement of our contract and it is therefore appropriate that we proceed to finalise matters with the tenancy. To this end I arranged an inspection of the tenancy with your office to organise the make good and removal of our equipment. The equipment has definitely not been abandoned or relinquished, it remains the property of Clifton & Associates, and the building owner has no right to deal with it. …..”
Later that day Trott faxed to Cameron the following:
“We refer to your facsimile today.
As per correspondence from Paul Mooney on 22 August 2002 you were advised certain conditions for which the fitout may be left in situ if a new lease agreement was not entered into. You were advised that reinstatement and removal was required by 15 September 2002 if you did not accept that lease offer. No response has been received from you to this letter or our letter of 23 September 2002 requesting prompt reinstatement. ….”
On 19 December Cameron responded as follows:
“Thank you for your facsimile of 18^th December 2002 and the attached correspondence. As I noted on the phone, we did not receive this fax until after I contacted you today, despite your fax log showing receipt. We note that the number shown on that log is our main reception, and no fax machine is attached to it.
To the correspondence attached, we have not been in receipt of your letter dated 23^rd September 2002 from your Rick Thomas. I note that this correspondence contradicts our earlier advice of around the same time from your then MD Paul Mooney.
Thank you for acknowledging that the fit out and good are indeed our property, but you are wrong when you say that we have been reticent in removing it. Our fitout was left there by arrangement with your office and the owner has no right to lease the tenancy with the fit out in situ. …”
The plaintiff commenced this action on 13 January 2003. On 16 January another Judge of this Court granted an injunction requiring the defendant to allow the plaintiff access to the premises to remove its tenant’s fixtures and chattels. However, on 13 February that order was stayed by the Supreme Court. Ratcliffe went into occupation of the premises early in 2003, but left after a short time without paying any rent. After a time the defendant relented on its stand that the plaintiff had abandoned the chattels in the premises and said it would allow it to collect them. The premises remain untenanted.
In this action, as it was fought at trial, the plaintiff sought an order allowing it to enter the premises to remove its tenant’s fixtures, consisting principally of three supplementary airconditioning units, a security system including door strikers, some signage and various cabling or damages for these items. In addition it sought orders for either the return of, or damages for, some chattels which it had left in the premises which it alleged it had not been able to recover. These were a Cisco router, a hard drive disc and a remote control. The defendant did not bring any counterclaim.
The contemporaneous documents are by far the best evidence of what occurred in the dealings between the parties and I accept their contents in preference to any contrary oral evidence by the witnesses. Cameron, Pallis and Mooney were each vague and imprecise about what had been discussed. Other than by reference to contemporaneous documents they were generally unable to say what was said in particular conversations and when they occurred. None of them impressed me as having particularly reliable memories. Of the three Mooney was probably the best.
I reject Cameron’s evidence that shortly after 22 August he had a telephone discussion with Mooney in which Mooney said something to the effect of “there was no pressure in terms of time” to respond to the landlord’s offer of a new lease. Although Cameron’s letters of 18 and 19 December, quoted above, were written in haste and in the heat of the moment, they are not particularly consistent with his present version of this telephone call. Rather the letters allege a more extensive agreement with Mooney allowing the premises to remain in tact until the further negotiations, apparently with Compaq, were completed. The effect of Cameron’s version in these letters is that Mooney by telephone had agreed to what had been previously proposed by the plaintiff for a new lease in the future in the negotiations in May and August, but had at those times been consistently rejected by the defendant. I cannot accept this. The likelihood of the matter, as appears particularly from the evidence of Pallis, is that the plaintiff relied on it being economic sense and business reality for the defendant to allow the plaintiff’s fit-out and chattels to remain in the premises while there was any prospect of the plaintiff possibly utilising that fit-out through a future lease of the premises. Therefore, the plaintiff called the defendant’s bluff and did nothing in response to the letter of 22 August. However, the plaintiff failed to take into account the possibility that the defendant might lease the premises, including its fit-out, to a competitor of the plaintiff.
I accept the evidence of Mooney, in preference to Cameron’s denials, that at the meeting of 21 August the plaintiff did say something to the effect that by 15 September it would be in a position to state whether it would agree to enter into a new lease commencing on 1 January 2003. I accept that Mooney’s memorandum to Ginos of 21 August, and paragraph ii) of the letter of 22 August, both quoted above, correctly record the general effect of what was said by the plaintiff on 21 August on this topic.

I accept the evidence of Thomas that he wrote and signed the letter of 23 September and put it in a mail tray for posting. In accordance with the usual system of JLL it is likely that it was posted. There was some vague, and uncorroborated evidence, of Cameron that at about this time there was a loss of some mail by the plaintiff which had been stolen. However, on the balance of probabilities it is likely that this letter was received by the plaintiff. Cameron’s evidence that a search of the plaintiff’s records by its staff failed to locate it was not substantiated by evidence from the employees of the plaintiff who actually made the search. The defendant’s counsel submitted that the sentences in the letter of 18 December 2002 from Cameron, as set out above, which read,
“It came about after Paul wrote to us in August or September 2002 with an offer to lease the property. This offer was not taken up at the time and your office then wrote to us requesting that we make good the tenancy and remove our equipment.”
was inconsistent with Cameron’s evidence that he did not first see that letter of 23 September until 19 December. Cameron’s evidence was that the letter of 18 December was not compiled by him, but by other members of the plaintiff’s staff as he was out of the office at the time, and its contents were read to him over the phone before it was sent. There is a reasonable possibility that whoever composed that letter had seen the letter of 23 September as it is the only correspondence from JLL which refers to a request to make good the tenancy and remove the equipment. I do not need to make any findings about whether that letter was ever seen by Cameron personally, or as to what may have happened to it after 18 December, as it is sufficient to find that it was received by the plaintiff.
I now deal with the plaintiff’s claim in relation to its tenant’s fixtures being the three supplementary airconditioning units, the security system including the door strikers, the signage and the cabling. It was common ground that these items were all properly categorised as tenant’s fixtures.
The relevant provisions of the lease relating to the removal of tenant’s fixtures were as follows:
“8.4Unless otherwise agreed in writing between the parties, all partitioning equipment and fixtures installed by the Lessee shall be removed by the Lessee immediately prior to the expiration or sooner determination of the Lease; in default the Lessor may at any time remove and dispose of the same in accordance with the provisions of the Landlord and Tenant Act 1936. The Lessee shall make good all damage occasioned by such removal and shall reinstate the Premises to the condition existing prior to the installation or alteration.
……
12.    If at any time during the occupation of the Premises by the Lessee:
…
(b)    the Lessee fails to perform or observe any covenant on the part of the Lessee expressed or implied in this Lease; or
…
then notwithstanding any prior waiver or failure to take action by the Lessor or indulgence granted by the Lessor to the Lessee in respect of any such matter whether past or continuing and without prejudice to any other claim which the Lessor may have against the Lessee in respect of the breach of the covenants it shall be lawful for the Lessor to;
…
(iii)   remove or otherwise deal with as provided in sub-clause 8.4 hereof all fittings, fixtures and effects found on the Premises;
and thereafter the Lessor shall be freed and discharged from any claim by or obligation to the Lessee under or by virtue of this Lease. …”
(There are no relevant provisions in the Landlord and Tenant Act 1936 relating to the removal and disposal of tenant’s fixtures. There are such provisions in s28 of the Victorian Landlord and Tenant Act 1958, but they do not apply to this lease.)
Under clause 8.4 the plaintiff was obliged to remove its tenant’s fixtures on or before 31 May 2002 and if it did not do so under clause 12(e)(iii) the defendant was entitled to deal with those items as its own property. It was not disputed that what occurred between the parties in May 2002 extended the time in which the plaintiff could remove its tenant’s fixtures beyond the expiration of the lease on 31 May 2002. The central issue on this point is whether what occurred in August and September 2002 effectually limited the extended time within which the plaintiff could remove its tenant’s fixtures so that that time had expired by when it first sought to do so on 17 December 2002.
Both counsel accepted that the law on the time within which a tenant has to remove its tenant’s fixtures to avoid them becoming part of the realty, and thus reverting to the landlord, was generally set out in the decision of the Full Court in Wincant v South Australia (1997) 69 SASR 126. Both under clause 12 of the lease, and at common law, the plaintiff’s right to remove its tenant’s fixtures ceased at the expiration of the lease or at such later time as the defendant allowed for this purpose and here the onus is on the plaintiff to show that it was still entitled to removed its tenant’s fixtures as at 16 December 2002: Lang “Leases and Tenancies in NSW”, 20-21. (In view of the conclusions I have reached it is not necessary to go into the ancillary issue of the tenant’s obligation to make good the premises consequent upon the removal of its tenant’s fixtures.)
Even on the plaintiff’s own case the extension of time granted for the removal of its tenant’s fixtures did not extend beyond the point at which it would decide whether to take up another lease of the premises. In effect Cameron asserted the plaintiff had been given until the end of 2002 when it would know itself whether it would have a new contract with the successor of Compaq in Adelaide but I do not find that the defendant ever agreed to this, or represented that the plaintiff could have that amount of time or is estopped from denying that it gave that extension of time. As set out above, I find that at the meeting on 21 August, and in its letter of 22 August, the defendant set a time limit, in which the plaintiff concurred, of 15 September within which it had to accept the defendant’s counter offer for a new lease as from 1 January 2003. Even though paragraph ii) of that letter, as quoted above, refers to “by, say, 15 September (which provides the time period you indicated)”, it meant that the operative date was to be 15 September, although the “say” suggests it may have been negotiable to some small degree. The clear consequence of not accepting that counter offer by 15 September was that the plaintiff would then be required promptly to carry out the reinstatement which would have included any removal of its tenant’s fixtures. As the plaintiff did not accept the counter offer, and no further extension of time was granted, the extension of time for the tenant’s fixtures to remain in the premises ceased at 15 September. There was some debate about what would be a reasonable time within which to remove those tenant’s fixtures. The issue does not arise about precisely what would have been a reasonable time as clearly it had well expired by 17 December 2002. The issue of reasonable time related only to the time to carry out the works once the extension had ceased, and not to ascertain the period of the extension itself. Accordingly, I hold that the plaintiff did not remove its tenant’s fixtures within the time allowed by the defendant and thus in law it has lost its right to recover those fixtures or to obtain damages for their value.
I now turn to the plaintiff’s claims relating to the three chattels which it has allegedly not recovered from the premises being the Cisco router, the hard drive disc and the remote control. The evidence on these topics was vague and unsatisfactory, but I must do the best that I can with it. The defendant no longer suggests that these items had been abandoned by the plaintiff. It did not rely on the reference to “effects” in clause 12(e)(iii) to justify its retention of them.
On 17 December the plaintiff made an inventory of the chattels on the premises. This referred to the Cisco router, but not expressly to the hard drive disc or the remote control. The inventory was checked by Trott on 29 January and the router was still on the premises. It was put to Cameron in cross examination that someone from the plaintiff had collected the router on 29 January but he was not in Adelaide on that day and had no knowledge of it. There was no other evidence of any such collection. A handwritten list of items, bearing a fax header date of 6 February 2003, which suggests that it was in existence by that time, was tendered without explanation. That list refers to the router and a “data projector remote control”, which I presume to be the item in question, which are referred to as being stored on level 8, 108 King William Street, (although the tenancy was level 9) and are described as “immediate collection OK”. I infer that this list is the one referred to in two faxes from the plaintiff’s solicitor to the defendant’s solicitor dated 10 February 2003 and that it was written by Ratcliffe. The defendant’s solicitor replied by letter of 11 February which stated:
“We acknowledge receipt of your letter of 10^th of February 2003. As far as our client is concerned your client can take immediate possession of the personal property that it left on the premises. We have instructed the agent to co-operate. Please ignore the statement on the third page that some of the goods in question can be recovered in a week’s time.
We can only hope that the agent will comply, though we have received correspondence from the agent’s solicitors, Lynch Meyer which leaves doubt as to whether the tenant will comply.”
The “tenant” in that letter seems to refer to Ratcliffe, and suggests that he was then still in occupation.
Also on 11 February Trott again checked the inventory but did not note the router as being present. Hence I infer that it was removed prior to Trott’s visit on 11 February.
The pleadings show that representatives of the plaintiff collected some chattels from the premises on 12 February. On 12 March, a month later, the plaintiff’s solicitors wrote to the defendant’s solicitors as follows:
“We refer to previous correspondence concerning our client’s goods and in particular, to your letter dated 6 February 2003, with two attached lists, apparently prepared by Mr Ratcliffe.
We note our 2 facsimile letters dated 10^th February 2003 and further fax dated 11 February 2003 and your reply of 11 February 2003.
Your client’s stance, at least on the record, has been to wash its hands of the matter.
Our client’s agents attended the premises promptly after you sent us the lists, by arrangement, and were able to recover some items from the first list. Certain items on the list were not available, others were incomplete, and still the other items (due to be available for collection in a week, for reasons unstated) are yet to be made available for collection.
Your client will not to get away by adopting an Olympian position. Your client has a responsibility to ensure that our client recovers such of its goods as are not in dispute without delay.
Take notice, therefore, of our intention to seek aggravated damages on account of detinue unless the matter is resolved within 7 days, time being of the essence.”
On 13 March the defendant’s solicitors wrote to the plaintiff’s solicitors requesting particulars of the goods which were not available and were unable to be collected. There was no evidence that the missing chattels were ever particularised. They were not particularised in the statement of claim filed on 25 July 2003.
There is no evidence that the plaintiff made a formal demand for the return of these chattels on 17 December. Any obligation on the defendant to hand over these items does not seem to have arisen before 12 February when the plaintiff’s representatives attended to collect them. The defendant did not have the router on 12 February. It is not liable in detinue for not handing it over if it did not then have it: Fleming “The Law of Torts”, 8^th Ed 59. Accordingly, the plaintiff’s claim in detinue in respect of the router fails.
The evidence shows that the remote control was on the premises (or at least on level eight) shortly before 6 February. There is no evidence, apart from that of Cameron, who did not have personal knowledge of it, that the hard disc was on the premises. There is no evidence that the representatives of the plaintiff who attended on 12 February, or on a subsequent occasion on 13 August, sought either a remote control or the hard drive and were denied delivery of them by the defendant. Thus the plaintiff has not satisfied the onus of proof for a claim in detinue in relation to these items.
In the alternative the plaintiff has pleaded a claim for damages for the conversion of these three items through the defendant having leased them to Ratcliffe. Although Ratcliffe never executed a formal lease, he went into occupation of the premises on an agreement to lease which included a term of the defendant giving him the use of what the plaintiff had left in the premises which included the three items. This was an act inconsistent with the plaintiff’s proprietorship of those items. The handwritten lists mentioned above show that Ratcliffe was in possession of the router and the remote control. It also is an inescapable inference that he was in possession of the hard disc which was apparently in one of the computers that was not returned to the plaintiff until at least 12 February. The defendant has not mitigated its damage by obtaining the return of these items from Ratcliffe. It has had more than a reasonable opportunity to do so, but it has not obtained them. I infer that it now cannot obtain their return and therefore the plaintiff has been permanently deprived of them. Accordingly, the defendant is liable in damages for the full value of these items. The uncontradicted evidence of Cameron, which I accept, was that the router was worth $2,500, the hard drive $200 and the remote control $120. There is no evidence that the defendant or Ratcliffe converted or otherwise improperly used the data stored on the hard drive.
Accordingly, there will be judgment for the plaintiff for $3,010, being damages of $2,820 plus a lump sum in lieu of prejudgment interest fixed at $190. I will hear the parties on costs.

[2004] SADC 38

11 March 2004