Hibernian Contracting Pty Ltd v Christopher Kennedy - [2022] NSWDC 5

District Court

New South Wales

Medium Neutral Citation: Hibernian Contracting Pty Ltd v Christopher Kennedy [2022] NSWDC 5
Hearing dates: 6 October 2021
7 October 2021
8 October 2021
12 October 2021
13 October 2021
14 October 2021
15 October 2021
19 October 2021
20 October 2021
4 February 2022
Date of orders: 4 February 2022
Decision date: 04 February 2022
Jurisdiction: Civil
Before: Montgomery DCJ
Decision:
(1) Judgment for the defendant against the plaintiff
(2) Plaintiff to pay the defendant’s costs of the proceedings

Catchwords:
TORTS — Interference with goods — Detinue
TORTS — Interference with goods — Conversion

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 100
Evidence Act 1995 (NSW) s 140(2)

Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Browne v Dunn (1893) 6 R 67
Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342
EFFEM Foods Pty Ltd (t/as Uncle Ben’s of Australia) v Lake Cumbeline Pty Ltd (1999) 161 ALR 599
Hofer v the Queen [2021] HCA 36
Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11
Musa v Alzreaiawi [2021] NSWCA 12
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 ALJR 170; (1992) 110 ALR 449; [1992] HCA 66
Nguyen v Tran [2018] NSWCA 215
R v Birks (1990) 19 NSWLR 677
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362

Category: Principal judgment
Parties: Hibernian Contracting Pty Ltd, Plaintiff
Christopher Kennedy, Defendant
Representation:
Counsel:
Mr Chrysostomou, Counsel for the Plaintiff
Mr Young SC, Counsel for the Defendant
Solicitors:
Mills Oakley, Solicitors for the Plaintiff
Gavin Parsons and Associates, Solicitors for the Defendant

File Number(s): 2020/00207736

JUDGMENT

INTRODUCTION

The plaintiff sues for the loss of a 2007 FY700 Hino flatbed truck (‘Truck’), a Palfinger crane (‘Crane’) attached to the truck and a E-Z concrete drilling machine (‘Drill’). Until the close of business on 9 June 2017 the Truck, Crane and Drill were used in the business of the plaintiff. Until the preceding day, 8 June 2017, the Truck was registered to Hibernian Holdings Pty Ltd. On 8 June 2017 the defendant attended a Roads and Maritime Services office and achieved transfer of registration of the Truck into his own name. At all times the Crane was affixed to the Truck. The plaintiff says that at some time after close of business on 9 June 2017 the Truck, with the Crane and whilst carrying the Drill was stolen from its secured storage yard at 1 Grand Avenue, Camellia, Sydney (‘Storage’), someone having broken and entered into that facility by cutting of the lug which secured the lock to the gate and by break and enter of a side gate. The plaintiff alleges the defendant performed or organised that break, enter and larceny.
The defendant denies that he broke, entered and stole the Truck and Crane or organised any person to do that. The defendant says that he has no knowledge of…

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.

Keep reading for free

Create a free CaseChat account to read Hibernian Contracting Pty Ltd v Christopher Kennedy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWDC 5
Decision Date: 04 February 2022

CaseChat Overview and Summary

The case of Hibernian Contracting Pty Ltd v Christopher Kennedy involved a dispute between the plaintiff, a contracting company, and the defendant, an individual, regarding the ownership and possession of certain goods. The plaintiff sought to recover the goods or their value from the defendant, alleging that the defendant had wrongfully detained and converted the goods. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the defendant had committed the torts of detinue and conversion by interfering with the plaintiff's goods. Detinue involves the wrongful detention of goods by a person who is not entitled to possess them, while conversion refers to the act of treating the goods as one's own, inconsistent with the rights of another person. The court had to determine if the defendant's actions constituted these torts and, if so, what remedies were available to the plaintiff.

The court found that the defendant had not committed the torts of detinue or conversion. It held that the defendant had a legitimate claim to the goods in question, either through ownership or an entitlement to possession. As a result, the defendant was not liable for the torts alleged by the plaintiff. The court ordered judgment in favour of the defendant and directed that the plaintiff pay the defendant's costs of the proceedings.

Orders

Orders of the court

(1) Judgment for the defendant against the plaintiff

(2) Plaintiff to pay the defendant’s costs of the proceedings

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hibernian Contracting Pty Ltd v Christopher Kennedy [2022] NSWDC 5
Hearing dates:	6 October 2021 7 October 2021 8 October 2021 12 October 2021 13 October 2021 14 October 2021 15 October 2021 19 October 2021 20 October 2021 4 February 2022
Date of orders:	4 February 2022
Decision date:	04 February 2022
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	(1) Judgment for the defendant against the plaintiff (2) Plaintiff to pay the defendant’s costs of the proceedings
Catchwords:	TORTS — Interference with goods — Detinue TORTS — Interference with goods — Conversion
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 100 Evidence Act 1995 (NSW) s 140(2)
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R 67 Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342 EFFEM Foods Pty Ltd (t/as Uncle Ben’s of Australia) v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 Hofer v the Queen [2021] HCA 36 Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11 Musa v Alzreaiawi [2021] NSWCA 12 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 ALJR 170; (1992) 110 ALR 449; [1992] HCA 66 Nguyen v Tran [2018] NSWCA 215 R v Birks (1990) 19 NSWLR 677 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Category:	Principal judgment
Parties:	Hibernian Contracting Pty Ltd, Plaintiff Christopher Kennedy, Defendant
Representation:	Counsel: Mr Chrysostomou, Counsel for the Plaintiff Mr Young SC, Counsel for the Defendant Solicitors: Mills Oakley, Solicitors for the Plaintiff Gavin Parsons and Associates, Solicitors for the Defendant
File Number(s):	2020/00207736