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| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7366 of 2001
| JOHNSON MATTHEY (AUST) LTD | Plaintiff |
| v | |
| DASCORP PTY LTD | First Defendant |
| DAVID ANTHONY SECCHI | Second Defendant |
| JULIETTE SECCHI | Third Defendant |
| STONEPACK PTY LTD | Fourth Defendant |
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JUDGE: | REDLICH J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13, 14, 15, 18, 19 and 20 November 2002 | |
DATE OF JUDGMENT: | 8 August 2003 | |
CASE MAY BE CITED AS: | Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd and Others | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 291 | |
CATCHWORDS Conversion – Defence of estoppel by omission - Negligence by owner – Whether sufficient to found estoppel - Ambit of s.27 Sale of Goods Act;
Liability of directors for tortious conduct of corporation or primary or secondary liability - Express or implied direction as to unlawful acts; Whether knowledge of unlawfulness or assumption of responsibility by director necessary - Scope of doctrine of limited liability – Limitation of rule in Said v Butt;
Rule in Brown v Dunne – Case management and procedural orders;
Time of conversion –Acquisition of plaintiff’s property in different condition to that when stolen - Value of goods converted – Measure of damages.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Clarke | Mills Oakley |
| For the Defendants | Mr S. Horgan | Best Hooper |
TABLE [L1]OF CONTENTS
The facts________________________________________________________________________ 3
The defendants' reliance upon s. 27 Sale of Goods Act 1958______________________________ 5
(a) Contributory negligence by the plaintiff_______________________________________ 6
(b) Stock control procedures___________________________________________________ 6
(c) The plaintiff's security system_______________________________________________ 8
(d) Extent to which public had access to gold lost in the plaintiff's processing_________ 10
(e) Failure of the plaintiff to notify AGE of the lost gold___________________________ 11
The defence of estoppel by omission/negligence________________________________________ 12
(a) Inadequate stock control procedures_________________________________________ 12
(b) Failure to take adequate measures to prevent theft_____________________________ 12
(c) Failure to notify gold dealers that its gold may be offered for sale_________________ 13
Ambit of the estoppel in s. 27 Goods Act 1958_________________________________________ 14
Was the plaintiff's conduct such as to preclude it from denying Mr Knight's authority to sell?__ 23
The Directors of AGE____________________________________________________________ 26
The company liable for conversion__________________________________________________ 29
Second and thirdnamed defendants sued as joint or primary tortfeasors or as Directors liable for the tortious wrong of the company____________________________________________________________ 30
The defences of the Directors_______________________________________________________ 31
Concurrent liability of company and director where the director performs the tortious acts____ 31
Conclusion as to primary liability of Directors________________________________________ 34
The state of mind of the Directors prior to October 1996________________________________ 34
State of mind of Directors from October 1996_________________________________________ 36
Failure to comply with the rule in Browne v Dunn in attacking the directors' credit_________ 37
When are Directors liable for the corporation's tortious acts?____________________________ 38
Where a Director induces breach of their companies contract____________________________ 41
Make the tort their own___________________________________________________________ 44
Direct or procure test_____________________________________________________________ 46
Where the tort involves mens rea____________________________________________________ 55
Conversion – a tort of strict liability_________________________________________________ 55
The assumption of responsibility test________________________________________________ 57
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- Case
- [2003] VSC 291
- Decision Date
CaseChat Overview and Summary
The court examined whether the defendant could rely on the defence of estoppel by omission given the negligence of the owner of the property. It was determined that negligence alone was insufficient to found a claim of estoppel by omission. The court also addressed the scope of section 27 of the Sale of Goods Act and the extent to which the directors could be held liable for the tortious conduct of the corporation. The court found that neither an express or implied direction by a director nor knowledge of the unlawfulness was necessary to establish secondary liability under the doctrine of limited liability. Additionally, the court considered the rule in Brown v Dunne in relation to case management and procedural orders, the timing of conversion, and the value of goods converted in determining the appropriate measure of damages.
The court held that the defendant could not rely on the defence of estoppel by omission. The directors of the defendant corporation were held liable for the tortious conduct of the corporation under the doctrine of limited liability. The court awarded damages to the plaintiff for the conversion of goods, taking into account the condition of the property at the time of conversion. The court ordered the defendant to pay the plaintiff's costs of the proceedings.
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