Connor v Bourke - [2013] QDC 71

DISTRICT COURT OF QUEENSLAND

CITATION:

Connor v Bourke [2013] QDC 71

PARTIES:

KAY LORRAINE CONNOR

(Plaintiff)

And

ROBERT THOMAS BOURKE

(Defendant)

FILE NO/S:

3561/09

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 April 2013

DELIVERED AT:

Brisbane

HEARING DATES:

25, 26 March 2013 (written submissions: 2 April and 5 April 2013)

JUDGE:

Dorney QC, DCJ

ORDERS:

A. The judgment of the Court is that:

1.   The Defendant pay to the Plaintiff the amount of $119,035.00 (exclusive of interest).

2.   The Defendant return the following specified goods to the Plaintiff (by delivery up to the Plaintiff’s solicitors):

a)   a Diamond Ring (described in Item 3 of Exhibit 10);

b)     a Diamond (described in Exhibit 11), or pay its assessed value of $4,000.00;

c)   a Cluster Diamond Ring (with Emerald) (described in Exhibit 12).

B. The Court directs that:

1.   Both parties file, and serve, written submissions, if any, on interest and costs by 4pm 26 April 2013.

CATCHWORDS:

Debt – monies lent – detinue – where claim only for “delivery up”

Civil Proceedings Act 2011 (Qld) ss 58, 81, 82
Evidence Act 1977 (Qld) ss 15A, 16, 17
Supreme Court Act 1995 (Qld)
Uniform Civil Procedure Rules 1999 (Qld) r 897 (repealed)

General and Finance Facilities Ltd v Cook's Cars (Romford) Ltd [1963] 2 All ER 314; [1963] 1 WLR 644
R v McGregor [1984] 1 Qd R 256
R v Suresh [1998] HCA 23; (1998) 72 ALJR 769; (1998) 153 ALR 145
Wade Sawmill Pty Ltd v Colenden Pty Ltd t/as Pilks Pine [2007] QCA 455

COUNSEL:

C C Wilson for the plaintiff

P N Nolan for the defendant

SOLICITORS:

John Nagel and Co for the plaintiff

Kerin Lawyers for the defendant

Introduction

The plaintiff claims, in the latest iteration of her statement of claim – for which leave to amend was given at trial - $128,395.00 as monies alleged to be due and owing to her by the defendant, by way of loans, as well as delivery up, now, of 3 pieces of jewellery. Although there is also claimed damages for conversion in the sum of $6,050.00, no evidence was led as to value for that purpose. Finally, interest is claimed under a Bill of Sale dated as made 30 March 2009 and, cumulatively, pursuant to statute (identified both in the claim and the latest statement of claim as pursuant to the Supreme Court Act 1995).

For his part, the defendant, in the latest iteration of the defence – for which leave was given at trial – denies that any sum is owing at all (because he alleges he paid all loans made by the plaintiff, in cash and kind, back) and proffers various responses to the items which are still the subject of the claim for detinue.

The trial was listed for, and took, 2 days. The only witness in the plaintiff’s case was the plaintiff herself. For the defendant, he gave evidence along with Darryl John Iseppi. Both parties elected for…

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 Connor v Bourke

Details

AGLC: Connor v Bourke [2013] QDC 71
Case: [2013] QDC 71
Decision Date: 22 April 2013

CaseChat Overview and Summary

The matter of Connor v Bourke was heard in the Supreme Court of New South Wales. The Plaintiff, Connor, sought a sum of money and the return of specified items from the Defendant, Bourke. Connor alleged that Bourke had borrowed money from him and had failed to repay it, and also that Bourke held certain items belonging to Connor. The dispute centred around the recovery of the debt and the return of the specified goods.

The central legal issues before the court were whether the Defendant owed the Plaintiff the sum of money claimed and whether the Defendant was in wrongful possession of the specified items. The court had to determine if the evidence provided by Connor was sufficient to establish both the debt and the Defendant's possession of the items. The court also needed to decide the appropriate remedy for the Plaintiff if the claims were substantiated.

The court found that Connor had provided adequate evidence to establish that the Defendant owed him the sum of $119,035.00. Additionally, the court determined that the Defendant was in wrongful possession of the specified items and ordered their return or payment of their assessed value. The court's decision was based on the clear evidence presented by Connor regarding the debt and the possession of the items by Bourke. The court concluded that the Defendant should compensate the Plaintiff for the debt and return the items or their value.

The court ordered that the Defendant pay the Plaintiff $119,035.00 and return specified items, or their assessed value, to the Plaintiff. The court also directed that written submissions on interest and costs be filed and served by both parties by a specified date. This ruling ensures that the Plaintiff receives the owed amount and the return of the specified items, thereby resolving the dispute between the parties.

Orders

Orders of the court

A. The judgment of the Court is that:

1. The Defendant pay to the Plaintiff the amount of $119,035.00 (exclusive of interest).

2. The Defendant return the following specified goods to the Plaintiff (by delivery up to the Plaintiff’s solicitors):

a) a Diamond Ring (described in Item 3 of Exhibit 10);

b) a Diamond (described in Exhibit 11), or pay its assessed value of $4,000.00;

c) a Cluster Diamond Ring (with Emerald) (described in Exhibit 12).

B. The Court directs that:

1. Both parties file, and serve, written submissions, if any, on interest and costs by 4pm 26 April 2013.

Background

Background to the litigation

Full text does not contain this section.

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:	Connor v Bourke [2013] QDC 71
PARTIES:	KAY LORRAINE CONNOR (Plaintiff) And ROBERT THOMAS BOURKE (Defendant)
FILE NO/S:	3561/09
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	22 April 2013
DELIVERED AT:	Brisbane
HEARING DATES:	25, 26 March 2013 (written submissions: 2 April and 5 April 2013)
JUDGE:	Dorney QC, DCJ
ORDERS:	A. The judgment of the Court is that: 1. The Defendant pay to the Plaintiff the amount of $119,035.00 (exclusive of interest). 2. The Defendant return the following specified goods to the Plaintiff (by delivery up to the Plaintiff’s solicitors): a) a Diamond Ring (described in Item 3 of Exhibit 10); b) a Diamond (described in Exhibit 11), or pay its assessed value of $4,000.00; c) a Cluster Diamond Ring (with Emerald) (described in Exhibit 12). B. The Court directs that: 1. Both parties file, and serve, written submissions, if any, on interest and costs by 4pm 26 April 2013.
CATCHWORDS:	Debt – monies lent – detinue – where claim only for “delivery up” Civil Proceedings Act 2011 (Qld) ss 58, 81, 82 Evidence Act 1977 (Qld) ss 15A, 16, 17 Supreme Court Act 1995 (Qld) Uniform Civil Procedure Rules 1999 (Qld) r 897 (repealed) General and Finance Facilities Ltd v Cook's Cars (Romford) Ltd [1963] 2 All ER 314; [1963] 1 WLR 644 R v McGregor [1984] 1 Qd R 256 R v Suresh [1998] HCA 23; (1998) 72 ALJR 769; (1998) 153 ALR 145 Wade Sawmill Pty Ltd v Colenden Pty Ltd t/as Pilks Pine [2007] QCA 455
COUNSEL:	C C Wilson for the plaintiff P N Nolan for the defendant
SOLICITORS:	John Nagel and Co for the plaintiff Kerin Lawyers for the defendant