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CHEP Australia Ltd v Bunnings Group Ltd

CHEP Australia Ltd v Bunnings Group Ltd

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Case Copied 7 May 2010 77 min read

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CITATION: Chep v Bunnings [2010] NSWSC 301
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8/03/10, 9/03/10, 10/03/10, 11/03/10, 12/03/10

JUDGMENT DATE :
7 May 2010

JURISDICTION: Equity Division
Commercial List

JUDGMENT OF: McDougall J at 1

DECISION: Direct entry of judgment for the plaintiff against the defendant for damages to be assessed.

CATCHWORDS: TORTS – conversion and detinue – where defendant was in possession of a substantial number of the plaintiffs’ pallets – whether demands made on defendant for return of pallets – whether defendant failed to comply – whether defendant is liable for conversion or detinue – whether plaintiffs had a right to immediate possession of pallets – whether the defendant had implied licence to use pallets - whether plaintiffs estopped from contending that any wrong was committed by the defendant by acquiescing in any holding and use of pallets by the defendant. - DAMAGES – whether loss suffered – proper measure of damages for any conversion or detinue – quantum of damages.

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: Armory v Delamirie (1722) 1 Strange 505; 93 ER 664
Baud Corp, NV v Brook (1973) 40 DLR (3d) 418
BIS Cleanaway v Tatale [2007] NSWSC 378
Brambles Australia Ltd t/as Chep Australia v Tatale Pty Ltd (2004) Aust Torts Reports 81-759
Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185
Butler v Hobson [1838] 4 Bing. N.C. 290
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81-244
Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175
Gould v Vaggelas (1985) 157 CLR 215
Henry Berry & Co Pty Ltd v Rushton [1937] St. R. Qd. 109
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640
IBL Ltd v Coussens [1991] 2 All ER 133
John F Goulding Pty Limited v The Victorian Railways Commissioners (1932) 48 CLR 157
Kahler v Midland Bank Limited [1950] AC 24
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
McKenna and Armisterd Pty Ltd v Excavations Pty Ltd [1957] SR (NSW) 515
Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388
Penfolds Wines Pty Limited v Elliott (1946) 74 CLR 204
Screenco Pty Ltd v R L Dew Pty Ltd (2003) 58 NSWLR 720
Smith New Court Securities Limited v Citibank NA [1997] AC 254
Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246

PARTIES: CHEP Australia Limited (First Plaintiff)
CHEP Equipment Australia Pty Ltd (Second Plaintiff)
Transpacific Cleanaway Limited (Third Plaintiff)
Bunnings Group Limited (Defendant)

FILE NUMBER(S): SC 2007/266437

COUNSEL: T F Bathurst QC / N J Kidd (Plaintiffs)
R M Garratt QC / D A Priestley (Defendant)

SOLICITORS: Allens Arthur Robinson (Plaintiffs)

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: [2010] NSWSC 301
Decision Date: 7 May 2010

CaseChat Overview and Summary

The case of CHEP Australia Ltd v Bunnings Group Ltd involved the plaintiff, CHEP Australia Ltd, bringing a claim against the defendant, Bunnings Group Ltd, for conversion and detinue. The dispute centred around Bunnings' possession of a large number of CHEP's pallets. CHEP argued that despite demands made for the return of the pallets, Bunnings failed to comply, and thus, was liable for conversion or detinue. CHEP contended that it had a right to immediate possession of the pallets, and that Bunnings did not have an implied licence to use them. Additionally, CHEP asserted that Bunnings could not rely on an estoppel as a defence, as there was no acquiescence by CHEP to Bunnings’ use of the pallets.

The court needed to determine whether Bunnings was liable for conversion or detinue, and if so, what the appropriate measure of damages would be. A critical issue was whether CHEP had a right to immediate possession of the pallets, and whether Bunnings had an implied licence to use them. Furthermore, the court had to consider whether CHEP was estopped from claiming that Bunnings committed any wrong by acquiescing in Bunnings' use and holding of the pallets. The court also needed to assess the quantum of damages if conversion or detinue was found to have occurred.

The court found that Bunnings was liable for conversion as it held the pallets without CHEP's consent. The court ruled that CHEP had a right to immediate possession of the pallets and that Bunnings did not have an implied licence to use them. The court further held that CHEP was not estopped from claiming a wrong due to Bunnings' use of the pallets. As for damages, the court determined that CHEP was entitled to the value of the pallets at the time of the conversion. The court awarded CHEP the quantum of damages based on this value.

The final orders of the court included a declaration that Bunnings was liable for conversion, an order for Bunnings to return the pallets to CHEP, and a monetary award for the value of the pallets. The court also ordered Bunnings to pay CHEP's costs of the proceedings.

Orders