Hesketh v Joltham P/L

[2000] QCA 44

SUPREME COURT OF QUEENSLAND

CITATION:

Hesketh v Joltham P/L & Anor [2000] QCA 44

PARTIES:

LOUISE HESKETH
(plaintiff/appellant)
v
JOLTHAM PTY LTD ACN 010 747 832 TRADING AS FAMILY REMOVALS AND RAYMOND BREED
(first defendants/first respondents)
and
ALEXANDER WITTEN TRADING AS GODWIN WITTEN REAL ESTATE
(second defendants/second respondents)

FILE NO/S:

Appeal No 10437 of 1998
DC No 54 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

29 February 2000

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 1999

JUDGES:

McMurdo P, Pincus JA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

TORTS – TROVER AND DETINUE – REMEDIES – ACTION FOR CONVERSION – DAMAGES – VALUE AT TIME OF CONVERSION – whether trial judge erred in refusing to accept the appellant’s evidence of estimated value of converted items –whether evidence was opinion evidence – admissibility of evidence of purchase price

DAMAGES – GENERAL PRINCIPLES – EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES – whether aggravated damages should be awarded – distinction between aggravated and exemplary damages

Armory v Delamirie (1772) 1 Strange 905; 93 ER 664, considered
Ley v Lewis [1952] VLR 119, applied
The Clyde (1856) 166 ER 998; (1856) Swab 23, considered
The Harmonides [1903] P 1, considered
The Iron-Master (1959) 166 ER 1206; (1959) Swab 441, considered
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, applied
Wise v Musolino [1936] SASR 447, applied

COUNSEL:

Mr M P Sumner-Potts, with him Mr J C Dufficy, for the appellant
Dr C G S L Jensen, with him Mr T Hancock for the respondents

SOLICITORS:

Philip Bovey & Co for the appellant
Quinlan Miller & Treston for the respondents

1. McMURDO P:  The respondents were each found to have unlawfully converted the appellant's property when, in February 1997, they sold the appellant's belongings which were being stored by the first respondents after the appellant had vacated rented premises managed by the second respondent.  There is no appeal in respect of those findings, this appeal turning solely on the question of the quantum of awarded damages.

1. The appellant's first ground of appeal is that the learned trial judge erred in law in not accepting the appellant's evidence as to which chattels were taken possession of and converted by the respondents.  This ground was not developed in the appellant's oral argument or in the appellant's written outline relied upon at the appeal.  In any case, the learned primary judge gave sufficient reasons to justify his preference for the evidence of  the first respondents' employees and their contemporaneous inventories of goods originally taken for storage and those later returned to the appellant.

1. The appellant's primary submission is that the learned trial judge erred in refusing to accept the appellant's evidence as to the value of items taken.  This evidence was largely given by way of a schedule to her affidavit in…