Kino v Prestige Philately - [2014] VSC 469

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. S CI 2014 02003

MARILYN LEONIE KINO	Plaintiff
v
PRESTIGE PHILATELY PTY LTD (ACN 106 078 148)	First Defendant
and
BRIAN DAVID KINO	Second Defendant
and
SIR RONALD ALFRED BRIERLEY	Third Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23, 24, 25 JUNE and 4 AUGUST 2014
DATE OF JUDGMENT:	24 SEPTEMBER 2014
CASE MAY BE CITED AS:	KINO v PRESTIGE PHILATELY & ORS
MEDIUM NEUTRAL CITATION:	[2014] VSC 469

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CONVERSION - Defence of estoppel by omission – Alleged negligence by owner - Whether sufficient to found estoppel - Ambit and application of s 27 Goods Act 1958. – Estoppel not established – No actual knowledge of relevant circumstances – Other grounds not made out.

SALE OF GOODS - Defence of estoppel by omission – Alleged negligence by owner - Whether sufficient to found estoppel - Ambit and application of s 27 Goods Act 1958 – Estoppel not established - No actual knowledge of relevant circumstances and other grounds not made out – Claim by innocent purchaser against wrongdoer established.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Senathirajah	Lawson Hughes Peter Walsh
For First & Third Defendants	Mr T McEvoy	Corrs Chambers Westgarth

HIS HONOUR:

Background and Issues

This matter arose initially from an application for an injunction sought by the Plaintiff before this Court sitting in the Practice Court on 1 May 2014. The application sought to restrain an auction of sale of a valuable collection of rare Australian postage stamps and accompanying certificates. The stamps and certificates were purportedly owned by the Third Defendant Sir Ronald Brierley (‘Sir Ronald’). They were to be offered for sale through the First Defendant, which is a stamp auctioneer known as Prestige Philately (‘Prestige’) at an auction to be conducted on 2 May 2014 (the ‘Auction’).

The ownership of the stamps and accompanying certificates is in dispute in this proceeding.

On 1 May 2014, the day before the Auction, the Court ordered that Prestige and Sir Ronald be restrained from selling, disposing, encumbering or otherwise dealing with any of the stamps and certificates, which were the subject of the application, until the trial and determination of the substantive issue in the proceeding, namely the question of ownership of the property.

On 2 May 2014 the Auction continued, but was confined to the sale of stamps and certificates which were not the subject of the injunction.

The Plaintiff, Marilyn Kino (‘Mrs Kino’), is a Trustee and Executor of the Estate of her father, the late Julian Sterling (‘Mr Sterling’), who died on 6 June 2012. Mrs Kino is the sole residual beneficiary and one of two executors of Mr Sterling’s Estate. Mr Sterling’s Will dated 16 April 2010 provided for his collection of valuable stamps and philatelic items (‘the Sterling Collection’) to form part of his residual estate. On 6 August 2013, the Sterling Collection was distributed to Mrs Kino as…

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.

Continue reading Kino v Prestige Philately

Details

AGLC: Kino v Prestige Philately [2014] VSC 469
Case: [2014] VSC 469
Decision Date: 24 SEPTEMBER 2014

CaseChat Overview and Summary

In the case of Kino v Prestige Philately, the plaintiff, Kino, sought damages for conversion from the defendant, Prestige Philately, claiming that Prestige wrongfully sold stamps that belonged to Kino. The dispute was heard and determined in the Supreme Court of Victoria. Kino argued that Prestige, by selling the stamps, had converted the goods without Kino's consent, thereby infringing on Kino's ownership rights.

The central legal issues before the court were whether the defence of estoppel by omission could be successfully invoked by Prestige and whether the alleged negligence by the owner was sufficient to found such an estoppel. The court also needed to determine the scope and application of section 27 of the Goods Act 1958, which pertains to the rights of a buyer in the absence of a sale by the owner. Furthermore, the court had to ascertain if the other grounds for estoppel were met.

The court found that Prestige could not establish the defence of estoppel by omission. The evidence did not demonstrate that Kino had actual knowledge of the circumstances that would have led to estoppel. The court held that the mere negligence of the owner was insufficient to found an estoppel. Additionally, the court concluded that the other grounds for estoppel were not satisfied. Consequently, the court rejected the defence and ruled in favour of Kino, recognising the claim by the innocent purchaser against the wrongdoer. This decision affirmed Kino's right to seek damages from Prestige for the conversion of the stamps.

Orders