Lawson v Shire of Yarriambiack
[2010] VCC 1066
•18 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL – GENERAL DIVISION
Case No. CI-09-01303
| MARK LEON LAWSON | Plaintiff |
| v | |
| SHIRE OF YARRIAMBIACK | Defendant |
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| JUDGE: | HIS HONOUR JUDGE GINNANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21- 22, 27 and 28 April 2010 |
| DATE OF JUDGMENT: | 18 August 2010 |
| CASE MAY BE CITED AS: | Lawson v Shire of Yarriambiack |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1066 |
REASONS FOR JUDGMENT
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Catchwords: LOCAL GOVERNMENT – Shire acting under Local Law removing motor vehicles stored on property – whether removal lawful – impounding of vehicles – damage to vehicles – liability of Shire – damages – Shire’s claim for removal charges.
LOCAL LAWS – whether retrospective operation – service of notice to comply – whether validly served – Local Government Act 1989 s. 234.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Finkelstein | FLA Partners |
| For the Defendant | Ms C Kirton | Minter Ellison |
| HIS HONOUR: |
1 Mr Mark Lawson, the plaintiff, has a passion for Toyota motorcars, particularly Toyota Coronas and Crowns manufactured in Japan between 1962 and 1967. For more than twenty-five years he has pursued this passion by purchasing many of those cars second-hand with the intention ultimately to restore and re-sell them. By 1991, he had purchased a large number. He lives in suburban Melbourne and needed to consider where to store them. In 1991, he purchased a property in Woomelang, which is a town of about 200 people in the Mallee situated in the Shire of Yarriambiack. The property consisted of a house built on a substantial piece of land.
2 The events that subsequently unfolded have led to this proceeding, in which Mr Lawson sues the Shire, claiming damages and other relief including the return of the motor vehicles. The Shire counterclaims for expenses of $7,672.50 associated with impounding the Toyota motor vehicles.
The Issues in the Proceeding
3 Mr Lawson’s claims fall into two categories. First are those associated with the Shire’s removal of the Toyotas from his property on 4 August 2008 and their impounding at the Woomelang Transfer Station, where they remain. Mr Lawson claims that the vehicles were unlawfully removed and that in the course of, or because of, their removal two Toyotas have been unaccounted for. He also alleges that a number of other Toyotas were damaged and claims damages in respect of some of them.
4 Mr Lawson also alleges that shortly after the relocation of the Toyotas to the Transfer Station, the Shire authorised, or allowed, members of the local State Emergency Service, to carry out a “Jaws of Life” training exercise on his 1966 Crown De Luxe sedan, thereby damaging it considerably. The Shire in essence accepts that because the Toyota was in its custody it must pay damages to Mr Lawson for this incident, even though its case is that this action was taken without its authority. It is necessary to fix the quantum of the damages suffered by Mr Lawson.
5 The second category of Mr Lawson’s claims is that on 4 August 2008 during the course of the removal of the Toyotas, that the persons engaged by the Shire to remove the cars from his property unlawfully broke open the front door of his house and removed household chattels from his home.
The Events Leading up to the Issuing of the Shire’s Notice to Comply
6 By 2003, Mr Lawson had relocated more than fifty cars on the property. His intention was to re-build them and sell them, particularly to the Japanese market, where the cars have a particular status.
7 He was assisted in transporting the motor vehicles to the Woomelang property by his friend, Mr Nelson, who gave evidence.
8 Mr Lawson also owns a large number of other Toyota cars which he keeps in Melbourne. All of his Toyotas were unregistered and had been purchased without a roadworthy certificate.
9 Mr Lawson visited Japan, where supplies of old cars such as Toyota Crowns are in very small numbers because of a focus on new cars. Australia is one of the few right-hand drive countries where there are Toyotas available to export to Japan.
10 From 2000, the Shire had received complaints about the number of cars on Mr Lawson’s property at Woomelang.[1] Mr Lawson understood that there may well be complaints. When asked about whether Mr Wilson had requested that he erect a four-foot high fence, Mr Lawson said:
“No.
Because if he had of told me that I would’ve happily have done it, because I followed all my fire prevention notices. I knew my backyard was unsightly to normal people that weren’t into Toyota Crowns, so I knew that I was pushing my luck, so I did try and comply with everything they said so I wouldn’t risk jeopardising any of my car collection.”[2]
[1] Court Book Tab 20
[2] Transcript (“T”) 121 L30 - T 122 L6
11 There was evidence that a compliance notice had been served on Mr Lawson in 2004, although the defendant could not locate it.[3]
[3] T 337, 340 and 342
12 On 31 August 2005, following complaints from neighbours, the Shire wrote to Mr Lawson at his Melbourne address regarding the storage of unregistered vehicles and referring to the provisions of the General Local Law No.5, which stated:
“402 Storage of Unregistered Vehicles
(1) An owner or occupier of any land must not, without a permit keep or allow to be kept on that land any more than one unregistered vehicle if the outline or any part of the vehicles is normally exposed to the view of another person. (2) This clause does not apply to land where the storage of unregistered vehicles is permitted use under the planning scheme.”
13 The letter noted that Mr Lawson did not have a storage permit, and then stated:
“It is therefore requested that within 30 days from the date of this letters issue you take all appropriate steps to either conceal the vehicles with a form of fencing which is acceptable to Council, or have them removed from the property.
Should you choose to take no action Council shall have no option but to take all necessary steps to rectify this situation. This may include seizure and removal of the vehicles, and additional costs may also be incurred by you such as infringements, impoundment fees and materials and labor costs.”
14 When Mr Lawson received this letter, he rang Mr Greg Wilson, the local laws officer with the Shire. He gave evidence that Mr Wilson told him that there had been complaints from neighbours and he asked Mr Lawson to remove the cars or conceal them out of sight. In respect of the option of concealment, Mr Wilson told him either to erect Colorbond fencing of a non-obtrusive colour or to conceal them by planting trees, so long as they could not be seen from the front or backyards.[4] This would conceal the view of the property from those passing, but not the view of the two neighbours.
[4] T 49
15 Mr Wilson’s version of the conversation was that Mr Lawson asked what he could do to keep the vehicles on the properties. Mr Wilson replied that if the vehicles were not removed, Mr Lawson needed to erect a fence completely around the whole part of the backyard where the vehicles were stored and that the fence was to be made of a steel post and rail six-foot high fence with iron all the way around.[5]
[5] T 247
16 Mr Lawson states that there was a follow-up conversation with Mr Wilson to ensure that the actions that he had taken met the Shire’s requirements. He stated that he told Mr Wilson that he had planted fast growing trees at the front and that someone had planted trees at the rear. He stated that Mr Wilson told him that “the sides were okay” and that “that’s good that you’ve done that. Providing you maintain the trees and they grow this should be the end of the matter”.[6]
[6] T 53
17 Mr Wilson denied that a conversation in those terms occurred, but that Mr Lawson rang and told him that he was having difficulty finding a contractor to move the cars. Mr Wilson said that he offered to help try and find a contractor as it was difficult to get them in the area. He evidently attempted to do this, because he gave evidence that he was unable to obtain a contractor and put the matter back into Mr Lawson’s hands, stating that it was his property and that he would have to find someone to do the work required.[7]
[7] T 247
18 Mr Lawson purchased six or seven trees at the local hardware store at a cost of about $120. He planted them on both sides of the house. He said that there was no need to plant trees at the rear boundary of the premises as a row of pine trees was planted at about the same time by a neighbour, who occupied the property on the other side of the laneway at the back of Mr Lawson’s property.
19 Mr Lawson also erected some tin sheeting on both sides of his house while the trees grew, but later removed it.
20 I do not consider that Mr Wilson told Mr Lawson that it would be sufficient if he planted trees. Both Mr Lawson and Mr Wilson were attempting to recall a conversation that occurred more than four years previously. Neither took notes and Mr Wilson was criticised by Mr Lawson for his failure to do so. Mr Lawson’s actions in purchasing and planting trees provides some basis for a conclusion that such a step may have been discussed with Mr Wilson.
21 However, it is significant that when Mr Lawson received the letter of 28 March 2008, referred to below, he did not contact Mr Wilson and refer to the discussion that he alleges that they held in 2005. Nor did he do that after Mr Taylor read the letter of 28 June 2008 to him on or about 11 September 2008, an event which is also referred to below. I am not persuaded that Mr Lawson version of the conversation with Mr Wilson in about late August or September 2005 is accurate. I consider that Mr Wilson’s version of the conversation is more probable. I do not rule out the possibility that there may have been some discussion regarding the planting of trees. However I do not accept that Mr Wilson told Mr Lawson that it would be sufficient that he plant trees or install Colorbond fencing of a non-obtrusive nature at the front and on the boundaries.
Credit of Witnesses
22 Counsel for the plaintiff made an attack on the truthfulness of at least some aspects of Mr Wilson’s evidence.[8] He also suggested that because of the similarity in wording between evidence given by Mr Wilson and the Shire’s Director of Infrastructure and Planning, Mr J Magee, that “we get close to a question or a possibility of collusion between the two men”.[9]
[8] T441
[9] T 442
23 I do not accept this submission and I find that both Mr Wilson and Mr Magee were attempting to give accurate answers.
Events in 2008 – the Notice to Comply
24 Mr Wilson stated that Mr Lawson did not erect any concealment fencing and that by 2008 something more substantial needed to be done by the Shire. By letter of 28 March 2008, Mr Wilson on behalf of the Shire wrote to Mr Lawson. The letter bore the heading “Unsightly Property”. It recited the presence of vehicles on the property, the terms of the Local Law and the fact that the vehicles were creating a problem in the warmer months from a fire hazard perspective and from the fact that snakes inhabited and lived under the vehicles. That letter stated, inter alia:
“As a consequence of the large number of vehicles and parts that are required to be removed, Council has determined to provide you with a time frame of three months to completely tidy up and rectify the existing situation. The three month period is effective as of Friday March 28, 2008.
I also wish to inform you that these particular vehicles and parts must not be moved within any of the township areas of the Yarriambiak Shire Council.”
25 On the following day, 29 March 2008, the Shire issued a Notice to Comply pursuant to Clause 801 of the General Local Law. This Notice to Comply specified breaches by Mr Lawson of Clause 401-1, 401-2 A, B and E, and 402-1 of the General Local Law .[10] The date of the breaches was specified to be 28 March 2008. The breaches were to be rectified within a period of three months, by 28 June 2008.
[10] The relevant provisions were clause 401 (2) (a), (b) and (e) and 402(1).
26 The Notice to Comply required the following works to be undertaken:
“Remove all cars, car parts, panels, engines, diffs & gearboxes from the
property and mow & slash all grass and weeds on the block. All cars
must not be re-housed in any township within the Shire of Yarriambiack.”
27 The Notice to Comply was sent by registered post to Mr Lawson[11], but he says he did not receive it[12]. However, I am satisfied on the evidence of Mr Wilson that it was posted to his residential address in suburban Melbourne and was therefore validly served. Section 234 of the Local Government Act 1989 permits service of anything to be served on or given to a person under a local law by sending the document by post addressed to the person at his or her last known place of residence or business.
[11] T249
[12] T56
28 Mr Lawson agreed that he received the Shire’s letter of 28 March 2008.[13]
[13] T55
29 Mr Wilson gave evidence that Mr Lawson rang him regarding the fact that the cars were about to be removed and wanting to know what he could do to put a halt to proceedings. Mr Wilson told him that he would need to put such a request in writing to Council as soon as possible.
Mr Lawson’s Response to the Notice to Comply
30 Mr Lawson responded to the Notice to Comply by letter dated 20 June 2008, which was actually written by his uncle, in which he stated:
“Dear Greg,
In reference to my property at 6 Carr Street, Woomelang, I appreciate your concern regarding vehicles and parts at this address and for bringing these issues to my attention.
May I propose the following action for your consideration:
1. I will fence my property to a height that will obscure any outside view.
2. All the vehicles (except for one) have had their petrol tanks drained of fuel. The one exception I will drain also.
3. I will remove all vegetation from under and around the vehicle and
parts and will continue to spray on a regular basis.
I have been a rate payer for over 15 years and was wondering if the laws have changed re the above issues.
I ask that you please consider all the above options and notify me of your decision.”
31 The Shire responded by letter dated 30 June 2008. The key paragraph of that letter stated:
“I wish to inform you that your proposal is not acceptable to Yarriambiak Shire Council and as a consequence Council has no alternative but to proceed with the removal of the cars and car parts immediately. These items will be transferred directly to an approved and secured Council impound facility.
If you wish the impounded items to be returned to you it will be necessary for you to reimburse Council the entire costs associated with the removal of these items. Then if you decide to reclaim the stated items you will not be permitted to rehouse them within the Yarriambiack Shire municipality.
I will advise you directly when Council has removed the stated items from your property. I will also identify the costs associated with this process. ”
32 Mr Lawson gave evidence that he received that letter. Despite this evidence, the letter was ultimately returned to the Shire as an unclaimed letter on or about 14 August 2008. Mr R Taylor, a relieving local laws officer with the Shire, gave evidence that after the letter was returned to the Shire as undelivered mail on or about 11 September 2008, he rang Mr Lawson to check his address. Mr Lawson asked him to open the letter and read it to him and he did so. Mr Lawson asked him if he would need a solicitor but Mr Taylor said that he did not know enough about the case to answer that question.
33 By the date of the conversation on 11 September 2008, the Toyotas had already been impounded.
The Impounding of the Toyotas on 4 August 2008
34 Clause 802.2 of the General Local Law provided:
“If anything is required to be done by a Notice to Comply is not done within the required time, the Council may itself or have another person do the required thing in accordance with s.225 of the Act and recover the costs from the person who failed to do so.”
35 Clause 803(1) provided:
“If any animal of thing required to be removed by a Notice to Comply is not removed within the required time, an authorised officer may impound that animal or thing in accordance with clause 804.”
36 Clause 804(1) provided:
“As soon as practicable after impounding the animal or thing under clause 803(1) the authorised officer must serve the Notice of Impoundment generally in the form of Schedule 3 on the owner or to the person to whom the Notice to Comply was issued.”
37 On 4 August 2008, the Toyota vehicles on Mr Lawson’s property were impounded and removed to the local Transfer Station or tip.
38 Mr Wilson stated that he had to find someone to move the cars. The engagement of commercial removers would have cost $15,000 to $20,000. He enquired locally and contacted a member of the local SES, who in turn organized a group of local residents associated with the Woomelang & District Development Association, who had the necessary equipment to do the job. He discussed their suitability with Mr J Magee. The removal of the Toyotas took place between 9.00 am and 5.00 pm. Mr Wilson was in attendance at the property for most of the day, but was absent for about two hours. Some vehicles were transferred on the back of a tray truck or trailer. A forklift had to be used to shift some vehicles as not all could be easily carried away.
39 The price for the removal was ultimately fixed at $125.50 per car for 50 cars plus door and panel loads, truck load motors/parts, fuel for the forklift and the truck and lunch costs which totalled $7,672.50, including $697.50 GST. They were all transferred to the Woomelang Transfer Station. Mr Wilson counted fifty one cars on Mr Lawson’s property.
40 On 4 August 2008, the Transfer Station was surrounded by a short perimeter fence. Mr Wilson stated that with the advantage of hindsight the new fence should have been there in the first place when the cars were first brought to the Transfer Station. Mr Magee agreed that this fencing was inadequate. In August 2009, an additional compound fence was erected around the Toyotas.
41 Mr Wilson, on behalf of the Shire, issued a Notice of Impoundment to Mr Lawson dated 14 August 2008, stating that the impoundment had occurred because of a failure to comply with a Council notice to remove vehicles from the property. The impounded items were described as fifty cars plus an assortment of car doors, panels and motor parts, gearboxes and motors.
42 The Notice of Impoundment was sent by registered post to Mr Lawson’s residential address in Melbourne. The letter containing it was later returned to the Shire as unclaimed on or about 4 September 2008. Mr Lawson gave evidence that he only found out about the impoundment of the Toyotas in October or November 2008 following a conversation he had with a Woomelang neighbour. I accept this evidence. He had read an article in the Age of 17 October 2008 about fundraising in Woomelang through the Development Association moving fifty cars to the tip for $7000, but had not associated it with his Toyotas.
43 Clause 804(2) of the General Local Law provides:
“The authorised officer may refuse to release an animal or thing impounded under Clause 803(1) until the appropriate fee or charge for its release has been paid to Council.”
44 The Notice of Impoundment claimed the sum of $7,712.50 as the impound release fee. This sum included a $40 administration fee.
The Destruction of the Toyota Crown
45 Soon after the impoundment, a local SES representative contacted Mr Wilson asking if they could obtain a couple of cars to cut up as part of a “Jaws of Life” training exercise, once the Shire had decided what it was going to do with them. Mr Wilson’s evidence, which I accept, was that he replied that once the Shire did have ownership of the vehicles and was proposing to destroy or sell, or otherwise dispose of the Toyotas, the SES request might be possible, but until further notice they were not allowed to touch any of the vehicles.
46 Despite this response, representatives of the Woomelang SES used a Toyota Crown impounded at the Transfer Station to test its “Jaws of Life” equipment and caused substantial damage to the vehicle. Mr Lawson gave evidence that he rang a representative of the SES who told him that they had received permission to use the Toyota from the Council.
47 The message that Mr Wilson conveyed had not been comprehended or communicated to the persons who carried out this destruction of property. I consider that it is unlikely that the local SES deliberately disobeyed Mr Wilson’s instructions.
48 The Shire concedes that it must pay damages to Mr Lawson in respect of that action. Whether or not it had possession of the vehicles pursuant to some form of bailment,[14] I consider that the Shire had a duty to take reasonable care of the Toyota Crown and that this duty was breached by allowing the SES to damage the vehicle or by failing to prevent such damage.
[14] See Palmer ‘Bailment’ (2nd ed.) p.705
The Operation of the Planning Scheme
49 Mr Lawson admitted that he did not hold any Planning Permit under the current Yarriambiack Planning Scheme or the preceding Karkarooc Planning Scheme that permitted the storage of the vehicles on his property.
50 The Yarriambiack Planning Scheme commenced on 25 November 1999. Mr Young, a town planner, gave evidence that under the Yarriambiack Planning Scheme the only relevant permitted use applicable to Mr Lawson’s property was as a store. However, that use required a permit and none had been obtained.
51 Under the previous Karkarooc Planning Scheme, the only possible characterisation of Mr Lawson’s use of his property was as a junkyard. However, that was a prohibited use. There were no existing use right provisions.
The Operation of the Shire’s Local Laws
52 Mr Lawson’s case is that prior to the commencement of the Environment Local Law No. 3 on 3 February 1998, he had transported a total of fifty motorcar bodies to the property. He transported only three more vehicles’ bodies, being Corona Coupes, after the commencement of Local Law No.3.
53 All the Toyota motorcars, bar one, had been stored on the property prior to the commencement of General Local Law No. 5 on 6 August 2003. Under clause 402(1) of the General Local Law No.5, Mr Lawson was permitted to retain one unregistered motor vehicle on his property.
54 The steps taken by the Shire to issue the Notice to Comply and impound the motorcars occurred under General Local Law No. 5. Mr Lawson alleged that General Local Law No. 5 could not be given a retrospective operation.
55 In response to a question I raised as to the applicability of any provision of the Charter of Human Rights and Responsibilities to the proceeding, counsel for Mr Lawson referred to s.27(1) which provides that a person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in. He submitted that the steps that the Shire had taken had to be considered in light of the possibility that the Shire might commence criminal proceedings against Mr Lawson for failing to observe the Notice to Comply.
56 The first response to this submission is the obvious one that Mr Lawson has not been charged with a criminal offence and therefore no question arises in this proceeding about the application of s 27(1) of the Charter or with respect to the interpretation of a statutory provision in accordance with the Charter.
57 The more general response to Mr Lawson’s retrospectivity argument is that a construction of General Local Law No 5 so as to permit the impoundment of the vehicles is not to give it retrospective operation. Rather, it is to permit the Shire to regulate unsightly properties from the date of the Local Law’s commencement on 6 August 2003. I do not consider that the Local Law had retrospective operation but applied prospectively from the date of its enactment, namely 6 August 2003: see Robertson v City of Nunawading [15] and s.14 (2)(e) of the Interpretation of Legislation Act 1984.
[15] [1973] VR 819 at 823, and Pearce and Geddes ‘Statutory Interpretation in Australia’ (6th ed.) pps 309-311
58 In addition, Mr Lawson did not have any right to store the vehicles under the Shire’s planning scheme. No right that he possessed to store the Toyotas has been affected by the steps taken by the Shire under General Local Law No. 5.
Mr Lawson’s Estoppel Argument
59 Mr Lawson argued that the Shire was estopped from serving the Notice to Comply because of representations by Mr Wilson said to have been made in the conversation occurring about 31 August 2005 about what action might be taken to satisfy the Shire about concealing the view of the cars. He argues that he acted on those representations by incurring costs, including by planting the trees and erecting fencing.[16]
[16] Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, at 428-429
60 The representations have not been established on the evidence and I do not consider that any action in reliance on them has been established. The cars were still visible in 2008.
61 The claim in estoppel is not made out on the evidence.
Did the Notice to Comply have a Valid Basis?
62 The next issue was whether the basis for the Notice to Comply had been made out.
63 Mr Lawson’s counsel conceded during the trial that the storage of motor vehicles and car parts in the yard of his property at Woomelang amounted to something “unsightly or detrimental to the amenity of the neighborhood” for the purposes of clause 401(1) of Local Law No.5 of the Shire of Yarriambiak. Therefore, there was a basis for the Shire to issue the Notice to Comply.
64 In addition, I am satisfied on the evidence of Mr Wilson that on 28 March 2008, the date of breach alleged in the Notice, the vehicles were “normally exposed to the view of another person” in contravention of Clause 402(1).
65 I should add that I accept the evidence that, as at 4 August 2008, the cars on the plaintiff’s land could be seen from the front of the property and by each of his neighbours on either side of his premises. I do not consider that the trees that were located on a neighbouring property at the back of Mr Lawson’s land obscured the view of the cars from the lane at the back of the premises. I base this finding on the evidence of Mr Wilson and the photographs taken by Mr Magee on 30 March 2008.
Mr Lawson’s Claim that Two Toyotas are Unaccounted For
66 The next issue relates to the alleged two missing Toyotas, which were 1964 and 1965 Crown De Luxe sedans. Mr Lawson stated that the 1965 vehicle was one of his best. He gave evidence that these vehicles had been stored at his property and that he discovered that they were missing when he attended at the Transfer Station in company with Mr Cuthbert in February 2010.
67 However, Mr Lawson had not been at his Woomelang property for a couple of months prior to 4 August 2008. On that day when the Toyotas were removed, Mr Wilson stated that there were 51 vehicles present on the property and that all were removed to the Transfer Station. Although the Shire appears to have been charged for the removal of 50 vehicles and that number appears in the Notice of Impoundment, Mr Cuthbert counted and valued 51 vehicles when he visited the Transfer Station with Mr Lawson on 10 February 2010.[17]
[17] Court Book, Tab 16
68 Mr Lawson has not established that two Toyotas were removed from his property on 4 August 2008 and cannot be accounted for.
Mr Lawson’s Case that Three Toyotas were Damaged
69 I also do not consider that the claims for damage to the three Toyota Corona Mark II Coupes has been established.
70 In final submissions, Mr Lawson did not press the claim for the damages to the particular Corona Coupe damaged through the removal of its ignition barrel.
71 In respect of the other two Corona Coupes, there was no real evidence about the manner in which they had been damaged.
Damage Alleged to have to have Occurred to Mr Lawson’s Other Toyotas
72 Mr Lawson’s evidence detailed a number of ways in which his Toyotas had been damaged whilst being removed on 4 August 2008. Mr Lawson’s evidence [18] and Mr Cuthbert’s description of the vehicles suggests that some may have been damaged whilst being removed. The Shire had a duty to take reasonable care of the Toyotas while they were being impounded as Mr Lawson was entitled to their return upon payment of the required charges. It is obvious how important the vehicles were to Mr Lawson.
[18] T 58
73 However, the Court can only decide cases on the evidence presented. On the first day of the trial, counsel for the defendant drew attention to the fact that there was no expert evidence filed and exchanged which permitted the identification of the quantum of damages caused during the removal[19]. Ultimately this argument was accepted by Mr Lawson and the case proceeded on the basis that Mr Cuthbert’s valuation of the Toyotas was of their value after removal to the Transfer Station. That valuation would be relevant only if the Shire refused to return the vehicles to Mr Lawson.[20]
[19] T 69-73
[20] T 445
Mr Lawson’s Claim concerning the Chattels
74 Mr Lawson claimed damages for trespass and conversion of chattels, being the chattels that had been unlawfully removed from his home. He gave evidence that someone had broken into his house and removed household chattels. These included items of real value to him such as table and chairs, antique items, a toaster and a washing machine. Some of the items had been gifts from his mother. The front door of the house was kicked in and a window opened. He attributed this conduct to the agents of the Shire who had removed the Toyotas.
75 One curious piece of evidence was that Mr Lawson later found his washing machine and toaster, which had been removed from his home, placed on or among the impounded cars at the Transfer Station.
76 However, Mr Lawson has not established that agents of the Shire trespassed into his home and removed his chattels. Mr Wilson was present on the property for a large part of the removal process on 4 August 2008 and instructed the persons carrying out the removals not to enter the house.
77 There was a significant time elapse between 4 August 2008 and November 2008 when Mr Lawson next visited his property and found that someone had entered and removed the chattels. The theft of the chattels may well have occurred during that period.
The Damage Caused to the Toyota Deluxe 1966 Crown
78 I have set out previously how the Toyota Crown Deluxe came to be damaged. Mr Lawson gave evidence that it was a very special Toyota Crown imported from Hong Kong. It had 86,262 kilometres recorded on its speedometer and appeared to be mechanically complete.
79 Both parties called evidence as to value of this Toyota in an undamaged condition. The plaintiff called Mr Cuthbert, a motor mechanic and qualified valuer, who valued it at $5,000. He stated that it had different fittings to the Australian delivery vehicles and it was fully imported. He produced an advertisement for a 1967 Toyota Crown for $15,000. When he rang the advertiser to talk about it, it had been sold. Mr Cuthbert inspected the vehicles at the Transfer Station. Prior to providing the valuation he spoke with a collector of like vehicles about a vehicle advertised for $16,500 and which had been sold for $15,000. This was a one owner, which had travelled approximately 200,000 miles. It had a reconditioned motor and was in generally quite good condition although the paintwork was not the best.
80 Mr Sexton, a motor vehicle loss assessor called on behalf of the defendant, valued the Toyota Crown at $1,850 taking the value from the Glass dealer’s guide for an above average vehicle. Another guide gave a value of $1500 for the Toyota Crown. He stated that a fully restored Toyota Crown was valued at $8,000 and he had found an advertisement for a one owner, 1964 Toyota Crown in immaculate condition for $10,000. He did not inspect the vehicles.
81 I consider that I should adopt the value given by Mr Cuthbert of $5000.00. He inspected the Toyotas and had the greater knowledge of the special features of the particular Toyota Crown.
Mr Lawson’s Claim for Punitive Damages
82 Mr Lawson claimed $100,000 punitive damages from the Shire, submitting that its behaviour had been “bullying, arrogant, unlawful and ultimately dishonest” in attempting to cover up its mistakes.
83 I have not accepted most of Mr Lawson’s claims. It has to be borne in mind that the Shire had received complaints from neighbours and enquiries from the Ombudsman. If anything, the Shire was slow to act. It gave Mr Lawson ample time to respond to its requirements.
84 Punitive damages are awarded where an action is based upon a personal wrong and the defendant has acted arrogantly, mindful only of its own interests and in “contumelious disregard” of the rights of the plaintiff.[21]
[21] Uren v John Fairfax and Sons Ltd (1966) 117 CLR 118, at 147. The plaintiff also cited Gray v Motor Accident Commission (1998) 196 CLR 1.
85 I do not consider that any aspect of the Shire’s conduct merits that description. I accept that the damage caused by the SES to the Toyota Crown has caused Mr Lawson considerable and understandable distress and that he is entitled to damages caused to it. But the findings that I have made do not support a conclusion that this conduct was deliberate. Rather, it appears to have been the result of miscommunication or misapprehension of instructions.
The Shire’s Counterclaim for Removal Costs
86 The Shire is entitled to recover the costs of removing the vehicles from Mr Lawson’s property under clause 802(2) of the General Local Law and s 225(3) of the Local Government Act. The Shire has proved these costs in the sum of $7,672.50, which is the amount paid to the Woomelang & District Development Association.
87 When that amount is paid by Mr Lawson, the Shire must give Mr Lawson possession of the Toyotas.
Conclusion
88 I propose to make the following orders:
(1) There be judgment for the plaintiff against the defendant in the sum of
$5,000.00.(2) There be judgment for the defendant against the plaintiff in the sum of
$7,672.50.(3)
There be a declaration that upon the plaintiff paying to the defendant the amount of $7,672.50, the plaintiff is entitled to possession of the Toyota vehicles held by the defendant.
89 I will hear the parties about interest and costs.
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