Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 Hearing dates: 25 October 2012 Decision date: 09 November 2012 Before: McColl JA at [1];
Basten JA at [65];
Tobias AJA at [98]Decision: Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - conversion and detinue - action to recover sheep - where tortfeasor bred progeny from sheep - where plaintiffs' title extinguished by operation of Limitation Act 1969, s 65 - whether plaintiffs' title to progeny also extinguished
LIMITATION OF ACTIONS - conversion and detinue - whether claim statute barred - where title to sheep extinguished pursuant to Limitation Act, s 65 - whether cause of action to recover progeny a further cause of action for the conversion or detention of the original sheep and not maintainable by operation of Limitation Act, s 21
LIMITATION OF ACTIONS - conversion and detinue - burden of proof in respect of limitation defence - where defendant pleads proceedings not maintainable by operation of Limitation Act, s 14(1)(b) and plaintiffs' title to goods extinguished by operation of Limitation Act, s 65Legislation Cited: Criminal Code Act 1995 (Cth), s 270.3
Limitation Act 1969 (NSW), ss 14, 21, 65, 68A
Personal Property Securities Act 2009 (Cth), ss 10, 31
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 14.27Cases Cited: Big Top Hereford Pty Ltd v Gavin Thomas as Trustee of the Bankrupt Estate of Douglas Keith Tyler [2006] NSWSC 1159
Borg v Howlett [1996] NSWSC 153; (1996) 8 BPR 15,535
Buckley v Buckley, Administratrix of the Estate of Henry A Buckley, deceased 12 Nev. 423, 1877 WL 4371 (Nev.)
Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342
Case of Swans [1572] EngR 403; (1572) 7 Co Rep 15b; 77 ER 435
CHEP Australia Limited v Bunnings Group Limited [2010] NSWSC 301
Clayton v Le Roy [1911] 2 KB
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Forbes v Cochrane (1824) 107 ER 450
Gaba Formwork Contractors Pty Ltd v Turner Corp Ltd (1991) 32 NSWLR 175
Greenwood v Bennett [1973] 1 QB 195
Hill v Reglon Pty Ltd [2007] NSWCA 295
John F Goulding Pty Ltd v Victorian Railways Commissioners [1932] HCA 37; (1932) 48 CLR 157
Jones v De Marchant (1916) 28 DLR 561
Lloyd v Osborne (1899) 20 LR (NSW) 190
Mabo v Queensland (No 2) [1992] HCA; 175 CLR 1
McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303
Miller v Dell [1891] 1 QB 468
Pearne v Lisle (1749) Amb 75 (at 76…
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- Case
- [2012] NSWCA 360
- Decision Date
CaseChat Overview and Summary
The Court was required to determine two primary legal issues. Firstly, whether the plaintiffs' title to the original sheep, having been extinguished under section 65 of the *Limitation Act 1969*, also extinguished their title to any progeny subsequently bred from those sheep. Secondly, the Court had to consider whether a claim to recover the progeny constituted a further cause of action for the conversion or detention of the original sheep, and if so, whether such a claim was maintainable under section 21 of the *Limitation Act 1969*. The defendant bore the burden of proof in establishing its defence that the proceedings were not maintainable under section 14(1)(b) and that the plaintiffs' title to the goods was extinguished under section 65.
The Court of Appeal upheld the primary judge's decision, reasoning that once the plaintiffs' title to the original sheep was extinguished by the operation of section 65 of the *Limitation Act 1969*, they no longer had any proprietary interest in those sheep. Consequently, they could not claim title to any progeny subsequently bred from them, as the progeny were considered to be the property of the owner of the ewes at the time of their birth. The Court found that the claim to the progeny was not a new cause of action but rather an assertion of title derived from the original sheep, which had already been extinguished. Therefore, the plaintiffs' claim was statute-barred.
The appeal was dismissed, and the plaintiffs were ordered to pay the defendant's costs.
Orders
Orders of the court
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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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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