Conway v Critchley - [2009] NSWSC 499

CITATION: Conway v Critchley & Ors [2009] NSWSC 499

HEARING DATE(S): 27 May 2009 & 3 June 2009

JUDGMENT DATE :
5 June 2009

JURISDICTION: Equity

JUDGMENT OF: Debelle AJ

CATCHWORDS: TORTS – Trover and Detinue – wine, plant and equipment at winery – sale of winery – plaintiff claims entitlement to possession of wine, plant and equipment – Order that defendants deliver up plant and equipment – late claim for costs of repairs – defendants granted leave to file cross-claim for the cost of repairs

LEGISLATION CITED: Fair Trading Act 1987

CATEGORY: Principal judgment

CASES CITED: Agar v Hyde (2000) 201 CLR 552
Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported)
Burnett v Randwick City Council [2006] NSWCA 196
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Greenwood v Bennett [1973] QB 195
Grimwade v Beresford (1974) 9 SASR 157
Lawrence v Griffiths (1987) 47 SASR 455
McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303
Rich v CGU Insurance Ltd (2005) 214 ALR 370
Sidebottom v Cureton (1937) 54 WN (NSW) 88
Wallingford v Mutual Society (1880) 5 App Cas 685

PARTIES: David Conway (Plaintiff)
Stephen Christopher Critchley (First Defendant)
Mudgee Wines Pty Limited (Second Defendant)
Eurunderee Wines Pty Limited (Third Defendant)
William James Whaley (Fourth Defendant)
Jane Margaret McLean (Fifth Defendant)
Mark Norman Thompson (Sixth Defendant)

FILE NUMBER(S): SC 6429/2008

COUNSEL: T Hall (Plaintiff)
C Freeman (First to Fifth Defendants)

SOLICITORS: Hall Partners (Plaintiff)
Bell Lawyers (First to Fifth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING JUSTICE DEBELLE

FRIDAY, 5 JUNE 2009

6429/2008 - DAVID CONWAY v STEPHEN CRITCHLEY & ORS

JUDGMENT

1 HIS HONOUR: These proceedings concern disputes that stem from the sale and purchase of a winery at Mudgee. In his Statement of Claim the plaintiff seeks orders for several kinds of relief. He first seeks orders against the first to fifth defendants (“the defendants”) that they deliver to him some 21,000 litres of wine as well as items of plant and equipment which he claims are items to which he is entitled to possession. He also seeks damages against the first defendant for breach of contract, breaches of fiduciary duty, in negligence, and for misleading and deceptive conduct contrary to the terms of the Fair Trading Act 1987. As against the second and third defendants he claims reimbursement for services provided to them.

2 The issues presently for determination on the plaintiff’s Notice of Motion are limited. By his amended Notice of Motion the plaintiff has applied for two orders. The first is for leave to file an Amended Statement of Claim. On 3 June 2009 leave was granted to file the Amended Statement of Claim. The second is for an order for summary judgment in respect of his claim that the defendants deliver to him the wine and other items…

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 Conway v Critchley

Details

AGLC: Conway v Critchley [2009] NSWSC 499
Case: [2009] NSWSC 499
Decision Date: 5 June 2009

CaseChat Overview and Summary

The matter before the court involved the plaintiff, Conway, who sought an order for the defendants, Critchley, to deliver up wine, plant, and equipment at their winery. The defendants had sold the winery to a third party but retained possession of these items. Conway claimed that the sale of the winery did not transfer ownership of the wine, plant, and equipment, and therefore he was entitled to their possession. The court was required to determine whether the sale of the winery included the wine, plant, and equipment and, if not, whether Conway was entitled to possession.

The court found that the sale of the winery did not transfer ownership of the wine, plant, and equipment. The sale deed specified that the sale was of the winery only, without any mention of the wine, plant, and equipment. The court held that these items were not included in the sale and therefore remained the property of Conway. The court also rejected the defendants' argument that Conway had waived his right to possession by not removing the items after the sale. The court found that Conway had not been aware that the items had not been included in the sale and therefore could not be said to have waived his rights.

The court granted Conway's claim for an order that the defendants deliver up the plant and equipment. The court also rejected the defendants' late claim for the cost of repairs to the equipment, finding that it was not reasonable for the defendants to have incurred such costs without first seeking Conway's consent. The court granted the defendants leave to file a cross-claim for the cost of repairs, but found that the defendants had not provided sufficient evidence to support their claim. The court made an order that the defendants deliver up the plant and equipment to Conway, and dismissed the defendants' cross-claim for the cost of repairs.

Orders