Fink v Beaven

[2010] NSWCA 92

New South Wales

Court of Appeal

CITATION:	Fink v Beaven [2010] NSWCA 92
JUDGMENT OF:	Macfarlan JA at 1; Handley AJA at 13
EX TEMPORE JUDGMENT DATE:	27 April 2010
DECISION:	Orders: (1) That the application for extension of time be granted with costs of that application being payable by the applicants. (2) That the application for leave to appeal be dismissed with costs.
CATCHWORDS:	PROCEDURE - leave to appeal to Court of Appeal - small amount of money involved, no issue of principle or general public importance and no obvious injustice - leave refused
CATEGORY:	Procedural and other rulings
CASES CITED:	Banque Commerciale SA (In Liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Carolan v AMF Bowling Pty Limited trading as Bennetts Green Bowl [1995] NSWCA 69 Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 Johnston v McGrath [2007] NSWCA 231
PARTIES:	Andre Fink (First Applicant) William Bertram Rietveld (Second Applicant) Robin Newton Beaven (First Respondent) Mildred Josephine Beaven (Second Respondent) Alexander Edward Beaven (Third Respondent)
FILE NUMBER(S):	CA 2009/00298560
COUNSEL:	J Keesing (Applicants) T F Robertson SC/J Lazarus (Respondents)
SOLICITORS:	Makinson & d'Apice Lawyers (Applicants) Hunt & Hunt (Respondents)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 406/2007
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ
LOWER COURT DATE OF DECISION:	19 August 2009

CA 2009/00298560

MACFARLAN JA
HANDLEY AJA

TUESDAY 27 APRIL 2010

FINK v BEAVEN

Judgment

1 MACFARLAN JA: This is an application for leave to appeal from two judgments of Judge Sidis. The first judgment was delivered on 19 August 2009 and the second, which related to costs, was delivered on 25 August 2009.

2 The application for leave to appeal was filed out of time but only by a short period. An application for extension of time was filed. That has now been consented to and accordingly it is appropriate that an extension of time be granted. Nevertheless, it is also appropriate that the applicant pay the costs of that application for extension of time.

3 The proceedings below arose out of a dispute between owners of neighbouring holiday homes on Wallis Island, New South Wales. The present respondents, members of the Beaven family, commenced proceedings against two members of the Fink family and a contractor of it. The respondents claimed damages in respect of alleged trespasses by the applicants upon the property owned by two of the respondents, the conversion of property owned by the respondents and slander by one of the applicants of the respondents.

4 The primary judge dealt carefully with the issues presented to her, found most of the allegations proved and awarded to the respondents damages of $1,571 for conversion, $20,000 for trespass and $2,500 for slander.

5 Subject to consideration of two matters to which I will refer later, the issues sought to be raised by the applicants on appeal are unexceptional issues of fact, or mixed fact and law, of a detailed nature. Having considered the applicant’s submissions, I have formed the view that none of the issues sought to be raised involve a matter of principle or general public importance. The matters relied upon suggest that there may be arguable issues but do not suggest that there is any obvious injustice embodied in the decision below: see in this respect Carolan v AMF Bowling PtyLimited trading as Bennetts Green Bowl [1995] NSWCA 69.

6 The first of the matters referred to earlier is that the primary judge took into account a trespass that had not been pleaded. It is apparent however that, although unpleaded, this trespass was nevertheless litigated after disclosure of it by one of the applicants in his cross examination (or it is perhaps the case that it was disclosed earlier). The respondents asserted in their written submissions that the event concerned was a trespass and the applicants did not complain of a lack of pleading of the point.

7 In these circumstances it was in my view open to the primary judge to find that the relevant event constituted a trespass and to award damages upon the basis of it, notwithstanding that that trespass had not been pleaded. As to the principles involved in this area, see generally Banque Commerciale SA (In Liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-7 and Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658.

8 The other matter to mention is that the applicants allege that there was an error of principle by the primary judge in concluding that the applicants committed a conversion following an occasion when the second applicant received goods, not from the respondents’ possession but from police who had taken the goods into their custody. The issue raised was however again essentially one of fact. The primary judge held that the property was given by the police to the second applicant on the basis that he claimed ownership of it on behalf of the first applicant and that at no stage did the police claim a right to possession of the property.

9 Her Honour further held that the subsequent actions of the applicants in relation to the property constituted conversion as, on the primary judge’s findings, when the police gave the goods to the second applicant they were disclaiming any wish or right to continuing possession of them. It is not obvious that at that time the respondents did not have a right to immediate possession, giving them title to sue the applicants for conversion.

10 In Johnston v McGrath [2007] NSWCA 231, Young CJ in Eq, with the concurrence of Giles JA and Handley AJA, referred to the reluctance of this Court to grant leave to appeal where relatively small amounts on money are involved. His Honour referred to Carolan v AMF Bowling in which Kirby P set out a number of reasons why parliament chose to limit the appeals that may be brought as of right from the District Court.

11 In light of the absence of any issue raised by the applicants which clearly requires the attention of this Court and of the fact that the amount in issue on this appeal, $24,071, is nowhere near the point, that is $100,000, at which the applicants would have been entitled to appeal as of right, my view is that whilst the application for extension of time for leave to appeal should be granted, the application for leave to appeal should be dismissed with costs.

12 The orders I propose therefore are first that the application for extension of time be granted with costs of that application being payable by the applicants and secondly that the application for leave to appeal be dismissed with costs.

13 HANDLEY AJA: I agree.

: The orders of the Court are accordingly as I proposed.

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