Gwinnett v Day

[2012] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

GWINNETT v DAY & ANOR

[2012] SASC 43

Reasons for Decision of The Honourable Justice Stanley

22 March 2012

TORTS - TROVER AND DETINUE - WHAT CONSTITUTES CONVERSION - GENERALLY

PARTNERSHIP - PARTNERSHIP PROPERTY - DOCTRINE OF CONVERSION

Plaintiff’s application seeking orders from the Court for return of 57 head of cattle to his property known as Warwick Hills – defendants removed the cattle and transported to property near Kingston – plaintiff and second defendant in share-farming arrangement where second defendant entitled to one third and the plaintiff two thirds – defendant sought to terminate the share-farming arrangement and subsequently removed one third of the cattle from Warwick Hills.

Plaintiff brings action in detinue on basis defendants are guilty of conversion for removing cattle and failing to deliver them up on demand – plaintiff claims entitlement to order for return of cattle as a right at common law – alternatively plaintiff seeks equitable relief – whether removal of cattle evidenced exercise of right of exclusive control over cattle by the defendants – whether that exercise of exclusive right is inconsistent with the plaintiff’s co-extensive right to immediate possession – whether there is a discretion to exercise the power to order delivery of the cattle.

Held:  Defendants are not guilty of conversion – defendants have not dealt with the cattle in a manner inconsistent with the plaintiff’s rights – power to order delivery of the cattle or provide equitable remedy is discretionary – not in interests of justice or balance of convenience to make order for delivery of cattle.

Partnership Act 1891 (SA) s 44; Common Law Procedure Act 1854 (UK) s 78; General Rules of Procedure in Civil Proceedings 1996 (Vic) O 21, r 3, O 66, r 4; Supreme Court (General Civil Procedure) Rules 2005 (Vic) I 21.03(1)(d), I 66.04(2); Supreme Court Civil Rules 2006 (SA) r 229(1)(c), referred to.
Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342; Hill & Anor v Reglon Pty Ltd [2007] NSWCA 295; Kitano v Commonwealth (1974) 129 CLR 151, discussed.
Baker v Barclays Bank Ltd (1955) 2 All ER 571; Coleman v Harvey [1989] 1 NZLR 723; Connell v Bond Corporation Pty Ltd (1992) 8 WAR 352; Howard E Perry & Co Ltd v British Railways Board [1980] 1 WLR 1375; Jacobs v Seward (1872) LR 5 HL 464; Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 & 5) [2002] 2 AC 883; Nash v Barnes [1922] NZLR 303; Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, considered.

GWINNETT v DAY & ANOR
[2012] SASC 43

Civil

STANLEY J:

Introduction

1. By summons the plaintiff sought orders from the Court for the return of 57 head of cattle to a property owned by him in the south-east of South Australia, near Yumali, and between Coonalpyn and Meningie.  The property is known as “Warwick Hills”.  The cattle were removed from the Warwick Hills property by the defendants, who are father and son, on 7 February 2012 and transported to a property in the south-east of the State located approximately 1.5 kilometres from Kingston, on the Kingston to Millicent Road.  This latter property is owned by Mr Brian Howe.  The distance between the two properties is approximately 179 kilometres.[1]

   [1] Affidavit of Daniel Patrick Moloney, sworn 20 February 2012 at [12].

2. On 10 February 2012 I made certain interim preservation orders on an ex parte application by the plaintiff. 

3. The defendants oppose the orders sought.  The matter proceeded to trial by consent on affidavits, in the absence of pleadings. 

   Background

4. It appears that somewhere around 1968 the second defendant (Malcolm Day) approached the plaintiff’s father (Bill Gwinnett), about agisting a mixed cattle herd on the Warwick Hills property.  I understand that Bill Gwinnett was the registered proprietor of Warwick Hills at that time. 

5. Bill Gwinnett and Malcolm Day agreed to breed cattle on the Warwick Hills property.  Malcolm Day had a small number of mixed-breed cattle at that time.  Bill Gwinnett purchased some cattle, and over many years, Malcolm Day bred from the mixed herd a Murray Grey herd.  The arrangement between Bill Gwinnett and Malcolm Day was described by the parties as a share-farming arrangement.  Under that arrangement, Bill Gwinnett, in addition to the cattle he purchased originally, supplied the land, the feed and water, while Malcolm Day, in addition to the small number of mixed-breed cattle he supplied originally, supplied the labour.[2] 

   [2] Affidavit of Nigel Day, sworn 14 February 2012 at [11].

6. This arrangement continued when the plaintiff inherited the Warwick Hills property from his father, and more recently when Malcolm Day transferred his interest in performing the share-farming agreement to his son, Nigel Day.

7. The herd was self-replacing.  From time to time, a replacement bull was purchased.  The arrangements between what I will call the Gwinnett interests and the Day interests were that costs were to be shared on the basis that Gwinnett would meet two thirds of any capital costs, and Day would meet one third of such costs.  Net proceeds from the sale of stock were divided between the Gwinnett interests and the Day interests on the basis of a two thirds / one third share.[3] 

   [3] Affidavit of Nigel Day, sworn 14 February 2012 at [13].

8. Later, the parties entered into a further share-farming arrangement concerned with cropping on the Warwick Hills property.  Under this arrangement, the Gwinnett interests provided the land and the base fertiliser, and the Day interests provided the labour and equipment.  The chemical and urea fertiliser costs were shared on an equal basis.  The net proceeds from the sale of the crop were divided on an equal basis.[4]

   [4] Affidavit of Nigel Day, sworn 14 February 2012 at [15].

9. The plaintiff, Andrew Gwinnett, inherited his father’s interest in the share-farming arrangement some years ago.  Nigel Day assumed his father’s interest in the share-farming arrangement in June 2011.

10. At no time was the share-farming arrangement or arrangements ever reduced to writing. 

11. At certain times, the herd was agisted on other property when there was insufficient feed available on the Warwick Hills property to maintain the herd.[5] 

    [5] Affidavit of Malcolm Day, sworn 22 February 2012 at [12].

12. After the transfer or assignment of Malcolm Day’s interest in the share-farming arrangement to Nigel Day on 25 June 2011, the relationship between Andrew Gwinnett and Nigel Day deteriorated over a number of matters.  It appears that in December 2011, Nigel Day gave notice of his intention to terminate the share-farming arrangement.  Certainly on 20 December 2011 Andrew Gwinnett’s executive assistant, Ms Jean Tamiaans, sent an email to Nigel Day which included the following:[6]

    Andrew would like to discuss ongoing arrangements with you in the New Year to see if there is any room for sensible accommodation, otherwise he feels we should agree to an amicable termination of the share farming arrangement.

    [6]    Affidavit of Nigel Day, sworn 22 February 2012, Exhibit ND2.

13. On the same day, Nigel Day replied by email:[7]

    Dear Andrew, Yes I agree to an amicable termination of the share farming arrangement.  I will go on with normal sales of yearlings throughout January and try to have my share of cows removed.  Also will not be continuing with any stone works. Thanks Nigel.

    [7]    Affidavit of Nigel Day, sworn 22 February 2012, Exhibit ND2.

14. On 21 December 2011 Ms Tamiaans responded as follows:[8]

    Dear Nigel
    Andrew is away overseas until 18^th January. An amicable termination does not mean immediate termination but termination at an agreed time – we would suggest by end of April 2012 - which allows us time to put other arrangements in place. Please do not remove any cows until Andrew is available to come and see what is happening with his representative, probably late January. Please confirm your understanding of the above.  We are copying this correspondence to our lawyer for his information.
    Kind regards

    Joan Tamiaans

    [8]    Affidavit of Nigel Day, sworn 22 February 2012, Exhibit ND2.

15. Nigel Day did not respond to this email from Ms Tamiaans of 21 December 2011. 

16. On 16 January 2012, she again emailed Nigel Day as follows:[9]

    Dear Nigel
    We do require your immediate response to our emails of 21 December 2011 and 3 January 2012 in which we set out our suggested timeframe for the termination of the share farming arrangement and the removal of cattle.  Please confirm that you agree with these arrangements.[10]

    Kind regards

    [9]    Affidavit of Anthony Charles Hurren, sworn 10 February 2012, Exhibit ACH-2.

    [10] If there was an email of 3 January 2012 it was not in evidence.

17. On 19 January 2012 Ms Tamiaans emailed Nigel Day and Malcolm Day in the following terms:[11]

    Dear Malcolm & Nigel
    Thank you for your phone call on Tuesday Malcolm.  I am attaching notes of our conversation and will discuss with Andrew as soon as he is back in the office next week. 

    Kind regards

    [11] Affidavit of Anthony Charles Hurren, sworn 10 February 2012, Exhibit ACH-2.

18. The attached notes are as follows:

    JT NOTES ON TELEPHONE CONVERSATION WITH MALCOLM DAY 17 JANUARY 2012.

    Malcolm advised that:

    -He was responding on Nigel’s behalf to my three emails dated 21 December, 3 January and 16 January.

    -Nigel is on holidays in Kingston and will return at the end of the month.

    -Nigel is not keen for an April termination of the share farming arrangement and would prefer mid February.  The reason for this is that labour is in short supply and not readily available on a short term basis.  I advised Malcolm that this would be too early to allow you to put other arrangements in place.  He said that this may be negotiable and suggested that Andrew call him to discuss.

    -Planned sale of Yearlings will go ahead on Thursday and Friday of this week (19 & 20 January), and he also advised that Nigel will not move any cows / cattle from the property until this has been agreed with Andrew. 

    -He further advised that they have arranged for an agent to come in and appraise the remaining cattle.

    -Malcolm enquired whether the cheque referred to in our email of 21 December had been posted and I undertook to check on whether it had been sent or not.

19. On 27 January 2012 Ms Tamiaans again emailed Malcolm Day in the following terms:[12]

    Andrew mentioned that he saw you in North Adelaide the other day and that you were in town for the cricket… Andrew has asked me to convey to you the following:

    He will be available to visit Warwick Hills on 8^th or 9^th February and would like to reach an agreement for the disposition of the cattle. Would you please confirm which day is convenient. Andrew could be interested in acquiring the one-third of the herd owned by you / Nigel.  A stock agent can be used to help determine the values involved.  Andrew will discuss a cut-off date for the share farming agreement which is dependent on making alternative arrangements.  At this point in time April is preferred but an earlier termination may be mutually agreeable.  If there are other issues which need to be settled would you and Nigel notify them now so they can be discussed during the meeting. I look forward to hearing from you.

    Kind regards

    [12] Affidavit of Anthony Charles Hurren, sworn 10 February 2012, Exhibit ACH-2.

20. Subsequently, Nigel Day spoke on the telephone to Ms Tamiaans, and it was agreed that he would meet with the plaintiff at Warwick Hills on 8 February 2012.  The plaintiff attended at Warwick Hills on 8 February 2012 with a veterinary consultant retained by him, Mr Ian Parish, to meet the defendants for the purposes of reaching an agreement for the disposition of the cattle, and to negotiate with him in relation to determination of the value of the cattle. 

21. The plaintiff was informed by the defendants during the course of that meeting, that on the previous day, 54 of the herd had been removed and transported to another location.  The defendants refused to disclose the location. 

22. In fact, 57 head of cattle had been removed from Warwick Hills and transported to Mr Howe’s property near Kingston on 7 February 2012.

23. Nigel Day said he had selected the cattle on a basis that did not involve taking the better quality beasts.  He says he took mostly the dark grey cows and left the silver cows.  It is the silver cows which he asserts are usually associated with the Murray-Grey bloodline.[13] 

    [13] Affidavit of Nigel Day, sworn 14 February 2012 at [32].

24. The plaintiff demanded the return of the cattle to Warwick Hills in writing on 8, 9 and 10 February 2012.[14]  The cattle have not been returned.

    [14] Affidavit of Anthony Charles Hurren, sworn 10 February 2012, Exhibits ACH-3, ACH-4 and ACH-6.

25. Nigel Day swore an affidavit on 22 February 2012 wherein he deposed to his wish to keep his one-third entitlement in the cattle.  The cattle he refers to are the cattle the subject of the share-farming arrangement between himself and the plaintiff.

26. He deposes to the fact that the 57 cattle removed from the Warwick Hills property are now being agisted on Mr Howe’s property near Kingston. 

27. Some of the cattle from Warwick Hills agisted on Mr Howe’s property since 7 February 2012 include cows in calf.  It is unclear precisely how many cows are in calf.  Exhibited to Nigel Day’s affidavit of 22 February is a letter from a veterinary surgeon, L G Schinckel, to the following effect:[15]

    Today at the request of Mr Nigel Day, of Benbullen Farms, Cooke Plains, South Australia, I examined a mob of Murray Grey cattle. 

    The cattle, 56 cows and 1 bull, are agisted on property owned by Mr Brian Howe of Kingston, South Australia, and, according to Mr Day, bulls had been put with the cows in May / June 2011. 

    My examination found the cows to be in good to very good condition (estimated body condition score 3.0 – 4.5) and, in my opinion, a number of these cows are close to calving, consistent with mating in late May 2011. 

    According to “Land Transport of Cattle” (1), 5.4.1 …. “cattle which are more than eight months pregnant should not be transported”.  These cattle, in my opinion, should not be transported until they have finished calving and their calves at foot are capable of being mustered, loaded and transported safely and humanely within the guidelines outlined in the Code of Practice for the Welfare of Animals, “Land Transport of Cattle” (1). 

    [15] Affidavit of Nigel Day, sworn 22 February 2012, Exhibit ND5.

28. In his affidavit sworn 14 February 2012, Nigel Day sets out various arguments which he suggests represent practical obstacles to the return to Warwick Hills of the 57 cattle now at the Howe property.  Essentially, five matters are raised.  All concern risks to the wellbeing of the cattle, should an order be made for their return to Warwick Hills.  The five matters concern the condition of the loading ramp at Warwick Hills, problems with the loading yard at the Howe property which is said not to be structurally sound and not designed for the whole herd, risks to the cows, particularly those which are in calf, in safely negotiating the loading ramp on to any B-double transport for the return trip, the risk to the health of the cows in calf in being transported this close to calving, and the risk posed to new calves from the necessity to separate them from their mothers for the purposes of transportation on a B-double.  In addition, it was suggested that a laden B-double transport would have difficulty accessing the Warwick Hills property.

29. The plaintiff addresses some of these concerns by adducing evidence from Mr Parish.  As mentioned earlier, he is a veterinarian.  He deposes to his considerable experience with dairy and beef cattle.  He has not had the opportunity to inspect the cattle agisted on the Howe property.  He has inspected the balance of the herd at Warwick Hills.  He considers that there is no risk to calves from the temporary separation of a calf from its mother for transportation.  In his opinion, this would not result in permanent separation or any harm to the calf.  He has never experienced this occurring in relation to the yarding and transportation of such animals.[16] 

    [16] Affidavit of Ian George Winter Parish, sworn 23 February 2012 at [12]-[13].

30. In addition, the plaintiff has proffered an undertaking to the Court that before any of the cattle on the Howe property are returned to Warwick Hills, the plaintiff will effect repairs to the loading ramp at Warwick Hills to ensure it is in good repair.[17]  Work in that regard has already commenced.

    [17] Affidavit of Anthony Charles Hurren, sworn 23 February 2012.

31. Finally, the orders now sought by the plaintiff do not seek the immediate return of any cow which is in calf.  Instead, it proposes that an order be made that there be delivery back in two separate trips.  The first trip will be for those cattle which are not pregnant.  The second trip would be for those cows and their calves subsequent to calving.

32. Nigel Day also suggests that there is utility in leaving the cows at the Howe property on the basis that, if ultimately the herd has to be sold, those cows are closer to the market at Naracoorte.  On the other hand, the plaintiff submits that the cattle could be sold at market at Strathalbyn, which is much closer to Warwick Hills.

    The parties’ submissions

33. The plaintiff brings an action in detinue on the basis that the defendants are guilty of conversion of the cattle removed from Warwick Hills, and have failed to deliver them up on demand.  He alleges that the defendants’ conduct in removing part of the herd of cattle from Warwick Hills constituted the unlawful removal of the cattle by the defendants with the intention that dominion would be exercised over them by Nigel Day.  He submits that the defendants, and Nigel Day in particular, had no right of ownership in the particular cattle they removed from the Warwick Hills property.  On the contrary, the herd of cattle pastured at Warwick Hills is joint property, analogous to partnership property, although he contends it is unnecessary for the Court to decide this question specifically.  The herd being in the nature of partnership property, no individual partner can assert a right to control any particular asset of the partnership.  He relies on the principle enunciated by Malcolm CJ in Connell v Bond Corporation Pty Ltd:[18]

    A partner has a proprietary interest in all the partnership property for the time being in the same way as the unit holder in the unit trust.  A partner also has a proprietary interest in each and every asset of the partnership in the same way as the unit holder.  Neither of them has a specific title in any individual asset.  Neither of them can claim to have any particular asset appropriate to his share or transferred to him.

    [18] (1992) 8 WAR 352 at 374.

34. Accordingly, at no time prior to the removal of the cattle by the defendants, nor at any subsequent time, could they sensibly assert ownership adverse to the interests of the plaintiff in the cattle which were removed.  Therefore, the defendants, not having any lawful justification for the removal of the cattle from Warwick Hills, were guilty of conversion in exercising dominion over them in a manner adverse to the “partnership’s” ownership of the cattle.  As the plaintiff, on behalf of the partnership, has made a demand for the return of the cattle by the defendants, which demand has been rejected by them, an action in detinue lies against them.  

35. The plaintiff claims an entitlement to an order for the return of the cattle.  He says the entitlement is a matter of right at common law.  He contends it does not involve a discretion.  Accordingly, the practical obstacles raised by the defendants to the return of the cattle are irrelevant.  In the alternative, the plaintiff claims an entitlement to equitable relief.  He meets the discretionary arguments raised against him by the defendants by submitting that the Court should make orders for a two-stage return of the cattle after repairs have been effected to the ramp at Warwick Hills, which he undertakes to do.  The two-stage return of the cattle would permit those cows in calf to remain on the Howe property until they have calved and it is safe for the cows and the calves to be returned to Warwick Hills.

1. The defendants oppose any order for the return of the cattle to Warwick Hills. They submit that no proper basis had been established for the making of such an order. The defendants’ argument is predicated upon an acknowledgment that Nigel Day does not have an entitlement to dominion or ownership over the third of the herd removed from Warwick Hills. They submit that now the share-farming arrangement has been terminated, the assets of the “partnership” must be distributed. Those assets are to be applied in accordance with the principles stipulated in s 44 of the Partnership Act 1891 (SA). Ultimately, if the plaintiff and Nigel Day cannot agree to a division of the herd in specie, then the herd will have to be sold, and the proceeds of sale divided in accordance with the two-thirds / one-third formula. In the meantime, there are practical obstacles to returning the cattle to Warwick Hills. Both the balance of convenience and the interests of justice militate against making orders for their return. Orders should be confined to the preservation of the “partnership” assets pending their final distribution. The defendants submit that there is no reason why the herd has to be pastured on the one property.

   Consideration

2. In considering the plaintiff’s claims in conversion and detinue a helpful starting point is a consideration of the issue of ownership of the cattle removed from the Warwick Hills property. 

3. Whatever might have been the understanding of the defendants at the time of the removal, it is clear that by the time the matter was argued in Court, the defendants acknowledged that the cattle they had removed from Warwick Hills are co-owned by the plaintiff and Nigel Day.  The corollary of this is that the balance of the cattle left at Warwick Hills are also co-owned by the plaintiff and Nigel Day.  So much is common ground.  It is unnecessary to decide the question of whether their rights as co-owners were those of tenants in common or joint tenancy.  By the time of the removal of the cattle from Warwick Hills on 7 February 2012 I am satisfied the share-farming agreement had been terminated, and hence, the “partnership” between the plaintiff and Nigel Day had been dissolved.

4. Relevantly, recognition of the fact of co-ownership of the cattle is important to the application of the relevant principles of the tort of conversion. The tort of conversion generally concerns a defendant’s intentional dealing with property in a manner inconsistent with or repugnant to the plaintiff’s ownership of the property.[19]  However, the common law has long recognised that co-ownership is not necessarily a defence to a claim of conversion. 

   [19] Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 per Latham CJ at 217 – 221, Dixon J (Starke J agreeing) at 228 – 230, McTiernan J at 234 – 235 and Williams J at 239 – 244; Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 & 5) [2002] 2 AC 883 at 1084, 1104 and 1106; Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342 at [124].

5. The law has traditionally stated the basic principle as being that when property is owned in common, one of the owners cannot sue another co-owner in conversion unless the act of the defendant amounts to the destruction of the property, or otherwise permanently destroys the right of the plaintiff to possession of the property, for example, by selling the property to a third party in a way which gives a good title to the property.  But a co-owner cannot be sued for conversion merely by making use of the common property in a reasonable way.  Each of the co-owners is equally entitled to the possession and use of the property, and neither commits any wrong as against the other by taking or retaining possession of it and using it for the purposes for which it is designed or intended, even if the other is thereby prevented from using it in a similar way.  But if one co-owner does an act which can be justified only by claiming a right to exclusive possession, then he is guilty of conversion.[20]

   [20] Baker v Barclays Bank Ltd (1955) 2 All ER 571; Jacobs v Seward (1872) LR 5 HL 464; Balkin and Davies, Laws of Torts, 4^th ed, p 84; Salmonds and Heuston on the Law of Torts, 18^th ed, p 105.

6. Recently, there has been a refinement of these principles. 

7. In Kitano v Commonwealth[21] Mason J (as he then was) formulated the principle pursuant to which conversion may be brought at the instance of a co-owner.  In Kitano the High Court ruled that a claim in conversion might be brought at the instance of a co-owner of property, and, in particular, at the suit of a co-owner of a ship sent to sea by one owner without the consent of the other, and subsequently sunk.  Mason J held this would constitute a dealing with the ship in a manner inconsistent with the rights of the plaintiff as co-owner by excluding the plaintiff from possession and preventing the exercise of the plaintiff’s rights.[22] 

   [21] (1974) 129 CLR 151.

   [22] (1996) 70 FCR 254 at 257.

8. Kitano more recently has been considered by the New South Wales Court of Appeal in Hill & Anor v Reglon Pty Ltd.[23]In that case, Beazley JA, with whom Spigelman CJ and Ipp JA agreed, adopted, as a correct statement of principle, the test set out by the New Zealand Court of Appeal in Coleman v Harvey[24] as follows:[25]

   Conversion is the wrongful act of dealing with goods in a manner inconsistent with the owner’s rights with the intention of denying the owner’s rights or asserting a right inconsistent with them.  One of those rights is possession or the immediate claim to it. 

   [23] [2007] NSWCA 295.

   [24] [1989] 1 NZLR 723.

   [25] [2007] NSWCA 295 at [122] - [123].

9. Her Honour considered that this statement of principle accords with what fell from Mason J in Kitano and demonstrated that an action in conversion lies against a co-owner, even in circumstances where the co-owned property has not been destroyed or subject to some act akin to destruction, such as a sale to a third party conferring good title to the property.

10. In Re Gillie: Ex parte Cornell[26] Finn J held that notwithstanding the justifiable criticism made of the longstanding body of authority in this area, since Kitano the rule to be applied is that a co-owner will only be guilty of conversion of co-owned property if he deals with the property “in a manner inconsistent with the rights of the [other] co-owner by excluding him from possession and preventing him from exercising his rights.”

    [26] (1996) 70 FCR 254.

11. Re Gillie[27] is a similar case factually to this matter.  In 1995 the respondent’s husband, as a member of a family partnership which had managed a herd of dairy cattle, entered into deeds of arrangement and a chattel mortgage in favour of the trustee in bankruptcy, Cornell.  In 1996 Gillie, claiming to be a co-owner with her husband of a portion of the herd, removed some 125 cows and 35 yearlings from the herd.  The cattle were said to have formed part of a gift to Gillie and her husband by his parents 10 years earlier.  Gillie did not seek the consent of Cornell nor an order of the court before removing the cattle.  Cornell applied for an order for the delivery up of the surviving cattle removed by, or on behalf of, Gillie from his lawful possession, and their offspring.  Finn J, following the dictum of Mason J in Kitano, held that a co-owner of personal property is guilty of conversion of that property if he or she deals with it in a manner inconsistent with the rights of the other co-owners either by excluding them from possession or preventing them from exercising their rights of possession.  Gillie asserted a right to exclusive possession of the cattle and dealt with them accordingly.  Gillie, by removing the cattle, had wrongfully dispossessed Cornell, committing the tort of conversion and, having failed to return them on demand, committed the tort of detinue. 

    [27] (1996) 70 FCR 254.

12. Accordingly, the Days would be guilty of conversion if they had wrongfully dealt with the cattle in a manner inconsistent with Andrew Gwinnett’s rights, with the intention of denying his rights or asserting a right inconsistent with them by excluding him from possession or denying his immediate claim to the cattle. 

13. I do not understand that to be the defendants’ position.

14. As I have said, whatever might have been the position at the time of the removal of the cattle from Warwick Hills, the defendants now acknowledge the plaintiff’s co-ownership of the 57 beasts they have agisted on the Howe property near Kingston.  They merely object to an order requiring them to return the cattle to Warwick Hills.  I do not understand them to deny the plaintiff the right to access the cattle, on the contrary, I understand them to invite him to do so.  The defendants’ argument, as I understand it, merely is that in the context where the partnership has been dissolved, and the assets of the partnership are to be distributed, there is no proper basis for an order that they should return the cattle to Warwick Hills.

15. In my view, this is the correct position.  The plaintiff’s claim in detinue depends upon him making good a claim in conversion against the defendants.  That is so because the claim in detinue flows from the refusal to return property in the face of a demand by the owner of the property which has been converted.

16. In my view, the plaintiff has not made out a claim in conversion.  As Dixon J observed in Penfolds Wines Pty Ltd v Elliott,[28] use of a chattel or transfer of possession is not, in every circumstance, conversion.  The defendants are not now dealing with the cattle in a manner inconsistent with the rights of co-ownership of the plaintiff, nor are they dealing with them with the intention of denying the plaintiffs rights to co-ownership, or asserting a right inconsistent with the right of co-ownership.  They are not denying him possession of the cattle or the immediate claim to it.  They are merely refusing to return the cattle to Warwick Hills.  They acknowledge the plaintiff’s right to access the cattle, to inspect them and to share in the proceeds of any sale of them if it comes to that.  In this context, considerations of possession must be understood by reference to the essential elements of the tort and the nature of the use of the property by the defendants.  The claim to possession is not inextricably linked to the pasturing of the cattle at Warwick Hills.  So much is obvious from the fact that in the past the herd has been pastured elsewhere.  In Bunnings Group Ltd v CHEP Australia Ltd[29] Allsop P (with whom Giles and Macfarlan JJA agreed), undertook an extensive analysis of the principles applicable to the tort of conversion.  His Honour noted that the principles establish that proof of conversion requires not only evidence of dealing with property in a manner inconsistent with the right of the true owner, but also proof that there was on the part of the defendant, an intention in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right.[30]  The proviso identified by Allsop P focuses attention on the character of the use of the property by the defendant so as to determine whether there exists an intention on the defendant’s part to exercise dominion over the property inconsistent with the true owner’s rights.  As his Honour notes,[31] this directs attention to the question of the sufficiency of the act or dealing i.e. the qualitative act of interference.  His Honour considered that the assessment of the quality and character of the acts of interference in Penfolds Wines[32] explained the difference between the judges in that case rather than the expression of any operative legal principle.[33]  His Honour concluded that the underlying principle as to possession and use was:[34]

    The mere detention by A of B’s goods will not necessarily amount to conversion, nor will the mere handling of them.  But once the degree of user amounts to employing the goods as if they were one’s own then a conversion is established.

    [28] (1946) 74 CLR 204 at 229. Although Dixon J was in dissent his statement of principle accords with the views of the majority.

    [29] [2011] NSWCA 342.

    [30] [2011] NSWCA 342 at [139] citing Lancashire & Yorkshire Railway Co v MacNicoll (1919) 88 LJ (KB) 601 per Atkin J at 605.

    [31] [2011] NSWCA 342 at [124] and [141].

    [32] (1946) 74 CLR 204.

    [33] (1946) 74 CLR 204 at [142] – [143].

    [34] (1946) 74 CLR 204 at [146] citing, with approval, Young J in Flowfill Packaging Machines Pty Ltd  v Fytore Pty Ltd  (1993) Australian Torts Reports 81 – 244 at 62,520.

17. Accordingly, the removal of the cattle from Warwick Hills would constitute conversion only in circumstances where the removal evidenced the exercise of a right of exclusive control over the cattle by the defendants, or specifically Nigel Day, inconsistent with the plaintiff’s co-extensive right to immediate possession.  That right is to be understood against a background where the partnership has been dissolved and is being wound up leading to ultimate distribution of the assets, including, in particular, the cattle.  It is not self evident that in these circumstances the cattle have to be delivered up to Warwick Hills. 

18. Re Gillie[35] is distinguishable from this case as Gillie was found to have asserted at all relevant times a right to exclusive possession of the cattle she had taken.  On that basis she was found to have wrongfully converted them.  In contrast, the defendants do not now assert any right to exclusive possession of the cattle removed from Warwick Hills.  Indeed, they acknowledge that the herd, whether pastured at Warwick Hills or on the Howe property, is co-owned by the plaintiff and Nigel Day. 

    [35] (1996) 70 FCR 254.

19. Accordingly, even on the modern formulation of the principles applicable to conversion by a co-owner, I do not consider the defendants are guilty of conversion.  Certainly, they are not guilty of conversion in accordance with the older formulation of the principle.  The cattle have not been destroyed nor have the defendants dealt with them in a manner akin to destruction, for example, by selling them so as to pass good title in the cattle as against the plaintiff. 

20. Even if I am wrong in this regard, and the defendants are guilty of conversion of the cattle removed from Warwick Hills, I would decline to make the orders sought by the plaintiff.

21. At common law, an action in detinue did not entitle a plaintiff as of right to specific restitution of the property detained.  Even where recovery of the goods was sought, the defendant had the election to pay the assessed value of the goods rather than return them.  The common law position was first ameliorated by the specific restitution jurisdiction developed in courts of equity:  see generally, Meagher, Gummow and Lehane, Equity Doctrines and Remedies (4^th ed 2002), chapter 22; and was subsequently modified in England by the Common Law Procedure Act 1854 (UK), s 78, which empowered the Court after judgment in detinue to order execution by way of specific delivery:  on the rule and its statutory modification see Nash v Barnes [1922] NZLR 303.[36]

    [36] Re Gillie & Ors:  Ex parte Cornell (1996) 70 FCR 254 at 258.

22. In Re Gillie[37] Finn J considered the statutory modification effected by the Common Law Procedure Act 1854 (UK) in England has been replicated in Australia.  In that case, his Honour was concerned with the position in Victoria.  Finn J found that the statutory modification effected in England by the Common Law Procedure Act 1854 (UK) formed part of the law of Victoria in consequence of inferences drawn from the Supreme Court’s General Rules of Procedure in Civil Proceedings 1996 (Vic) O 21, r 3 and O 66, r 4 (now Supreme Court (General Civil Procedure) Rules 2005 (Vic) I 21.03(1)(d) and I 66.04(2)).

    [37] (1996) 70 FCR 254 at 258.

23. In my view, that statutory modification has been replicated in South Australia.   While the position is not quite as clear as under the Victorian Civil Procedure Rules, I am satisfied that the terms of Supreme Court Civil Rules 2006 (SA) 6R 229(1)(c)[38] which is in substantially the same terms as the Victorian rule I 21.03(1)(d)[39], leads to the same conclusion in respect of the law of the state of South Australia as Finn J formed in respect of the law of the state of Victoria.  While there is no equivalent in the Supreme Court Civil Rules 2006 (SA) to I 66.04(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), I am satisfied nonetheless of the basic proposition. In South Australia in proceedings for the detention of goods the Court may order judgment against a defendant for delivery of the goods or for the value of the goods, just as is the case in Victoria.

    [38]229—Entry of default judgment where Court's permission not required

    (1)     In the following cases, a plaintiff may enter judgment in default without first obtaining the Court's permission to do so—

    …

    (c) if a defendant does not file a defence to a claim for the detention of goods within 28 days after service of the plaintiff's statement of claim—the plaintiff may enter judgment in default of a defence against the defendant—

    (i)     for delivery of the goods; or

    (ii)      for the value of the goods to be assessed.

    [39]     21.03 Judgment for recovery of debt, damages or property

    (1)    Where a claim is made for the recovery of a debt, damages or any property, whether or not another claim is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or Rule 21.02, the plaintiff may—

    …

    (d) for the detention of goods, enter interlocutory judgment against that defendant—

    (i) either for the delivery of goods or their value to be assessed or for the value of the goods to be assessed; and

    (ii) if a claim is made for the recovery of damages for the detention of the goods, for the damages to be assessed.

24. It is this power to order delivery of the cattle that I am invited to exercise in these proceedings.  Contrary to the submission of the plaintiff, it is the case that the jurisdiction which derives from the Common Law Procedure Act 1854 (UK) and its successors is a discretionary one.[40]  So too is any claim for an equitable remedy.

    [40] Howard E Perry & Co Ltd v British Railways Board [1980] 1 WLR 1375 at 1382 – 1383; Nash v Barnes [1922] NZLR 303 at 306 – 307; Re Gillie & Ors:  Ex parte Cornell (1996) 70 FCR 254 at 258.

25. In circumstances where the “partnership” between the plaintiff and Nigel Day has been dissolved, and the parties are in the process of the winding up of the assets of the partnership, I do not consider that considerations of the balance of convenience or the interests of justice justify an order for the return of the cattle to Warwick Hills at this time.  On the contrary, I consider that it is convenient for the cattle currently being agisted on the Howe property to remain there, subject to the plaintiff having ready and convenient access to the cattle, and the defendants being under an obligation to preserve them pending the final distribution of the assets of the “partnership”, including the disposition of the cattle in question.  This may result in the cattle remaining at the Howe property, or being sent to market, or some or all of the cattle being returned to Warwick Hills in exchange for other cattle now at Warwick Hills.

26. I am reinforced in this view by the difficulty in crafting orders of the kind now sought by the plaintiff.  As I have indicated, the plaintiff seeks the return of the cattle to Warwick Hills by a two-stage order.  First, he seeks an order for the return of the cattle that are not in calf.  Secondly, he seeks an order for the return of the cattle in calf once they have calved, plus their progeny.  An obvious difficulty arises in relation to crafting such an order.  I do not know which cattle are in calf.  I do not even know how many cattle are in calf.  Furthermore, I do not know when those cattle will calve, or even when the last of them will calf.  Neither do I know when it would be safe for the calves to travel to Warwick Hills.  In these circumstances, it is not possible to craft enforceable orders which would achieve the outcome sought by the plaintiff.

1. For these reasons, I would decline to make the orders sought by the plaintiff in the exercise of my discretion, even if I was satisfied that the defendants had been guilty of conversion.

   Conclusion

2. In the circumstances, I refuse the relief sought by the plaintiff, but I make the following orders:

   1.the defendants are to take all necessary steps to preserve the 57 cattle presently removed by them from Warwick Hills on 7 February 2012 and now agisted on the Howe property near Kingston and any progeny thereof (“the 57 cattle”) until the final distribution or disposition of the cattle in accordance with the provisions of s 44 of the Partnership Act 1891 or until further order of the Court;

   2.the defendants are not to remove the 57 cattle from the Howe property without further order of the Court;

   3.the defendants are to take such steps as are necessary to permit the plaintiff and persons nominated by him to have access to the 57 cattle on reasonable notice; and

   4.Liberty to apply on short but reasonable notice.

3. I will hear the parties as to costs.