Hannaford v Stewart - [2011] NSWSC 448

Supreme Court

New South Wales

Medium Neutral Citation: HANNAFORD v STEWART & ANOR [2011] NSWSC 448
Hearing dates: 7, 8, 9, 10, 11, 15, 17, 18 and 24 February 2011
Decision date: 19 May 2011
Jurisdiction: Common Law
Before: Hall J
Decision:
That the defendants are liable to deliver up to the plaintiff, the property of the plaintiff, namely, the series of 10 portrait paintings and their frames (being the portraits listed in paragraph 7 of the Agreed Statement of Facts - Exhibit A)

Catchwords: TORTS - DETINUE - plaintiff as a professional artist agreed for no remuneration (other than expenses) to paint 10 portraits of indigenous women for the promotion and assistance of a project - permission given by plaintiff to defendants to use images of the paintings in a forthcoming publication Black Chicks Talking - defence pleaded a binding agreement whereby the second defendant, a production company, would hold the property in or the ownership of the paintings - onus of proof on elements of the cause of action in detinue discharged
CONTRACT - whether defendants discharged the evidentiary burden on them to prove a binding agreement as pleaded - defendants failed to discharge that onus - relief as sought in paragraph 1 of the Further Amended Statement of Claim to be granted - first defendant liable both as director of the second defendant and as the person who was responsible for obtaining and holding possession of the paintings - proposed order that defendants deliver up possession of the paintings to the plaintiff as the rightful owner of them - direction that parties prepare short minutes of order to give effect to the judgment.
Cases Cited: Bellinger v Autoland Pty Limited [1962] VR 514
Evans & Sons v Spritebrand Limited [1985] 1 WLR 317
Performing Right Society v Ciryl Theatrical Syndicate [1924] 1 KB 1 at 14
Private Parking Services (Vic) Pty Limited v Huggard (1996) Aust Torts R 81-397
Texts Cited: The Laws of Australia: Torts
Category: Principal judgment
Parties: Robert HANNAFORD v Bain STEWART & ANOR
Representation: Counsel:
P: G M Gregg
1/2D: R T Beech-Jones SC/A L McAvoy
Solicitors:
P: Gilchrist Connell
1/2D: Ridge & Associates Pty Limited

File Number(s): 09/297992

Judgment

HALL J:

Introduction

The plaintiff, Mr Robert Hannaford, is a professional artist. In late 1999, the first defendant, Mr Bain Stewart, inquired if he would be prepared to paint the portraits of 10 indigenous women for a project that became known as Black Chicks Talking . Each of the women was said to have been successful in their respective fields of endeavour.

These proceedings involve a question as to the ownership of the paintings.

In circumstances detailed in this judgment, the paintings completed by Mr Hannaford were delivered by him into the possession of Mr Stewart. Mr Stewart is the executive director of a media and production company, Bungabura Productions Pty Limited ( "Bungabura" ). The company is the second defendant to the proceedings.

Bungabura was set up in 1995. It was the…

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.

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Details

Case: [2011] NSWSC 448
Decision Date: 19 May 2011

CaseChat Overview and Summary

In the matter of Hannaford v Stewart, the plaintiff, a professional artist, sought the return of ten portraits of indigenous women that she had painted without remuneration, other than for expenses, for the promotion and assistance of a project. The defendants, who had permission to use the images of the paintings in a publication, argued that a binding agreement existed whereby the second defendant, a production company, would hold the property in or the ownership of the paintings. The court was required to determine whether the defendants had discharged the burden of proving a binding agreement as pleaded and whether the plaintiff had discharged the onus of proof on the elements of the cause of action in detinue.

The court found that the defendants had failed to discharge the onus of proving a binding agreement as pleaded. The court held that the plaintiff had discharged the onus of proof on the elements of the cause of action in detinue, including the plaintiff's ownership of the paintings, the defendants' wrongful detention of the paintings, and the plaintiff's demand for the return of the paintings. The court found that the first defendant was liable both as the director of the second defendant and as the person who was responsible for obtaining and holding possession of the paintings. The court proposed an order that the defendants deliver up possession of the paintings to the plaintiff as the rightful owner of them and directed the parties to prepare short minutes of order to give effect to the judgment.

Orders