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Levy v Watt

Levy v Watt

Case [2014] VSCA 60 14 May 2014

Admissibility of Evidence

Tort Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2012 0234

FRANK ERNEST WILLIAM LEVY	Appellant
	v
MAXWELL JAMES WATT & MICHAEL IAN WATT	Respondents

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JUDGES	WARREN CJ, TATE and SANTAMARIA JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 October 2013
DATE OF JUDGMENT	14 May 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 60
JUDGMENT APPEALED FROM	[2012] VSC 539 (Habersberger J)

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LIMITATION OF ACTION – Limitation period – Actions founded on tort – Cause of action in respect of conversion – Postponement of limitation periods in case of fraud or mistake – Whether action based on the fraud of the defendant or his agent or any person through whom he claims or his agent – Whether right of action concealed by fraud of any such person as aforesaid – Valuable painting stolen in 1991 – Fact of theft known but identity of thief not known – Painting searched for by owner and, after his death, by his executors – Painting comes into possession of third party – Painting transmitted to appellant under the will of third party – Painting seized by police in 2010 – Respondents are the executors and residuary beneficiaries of owner – Respondents did not learn of whereabouts of the painting until police seized the painting – Police initiate interpleader under s 125 of the Police Regulation Act 1958 – Order that the painting be returned to the respondents pending determination of ownership – Appellant claimed his possessory title was superior to respondents’ documentary title – Appellant claimed that title of respondents had been extinguished by expiration of limitation period – Whether right of action for conversion concealed by fraud – Whether appellant proved that third party acquired the painting as a bona fide purchaser for value without notice – Limitation of Actions Act 1958 (Vic) ss 3(4), 5(1), 5(1AAA), 6, 23B, 27(a) and 27(b) – Bulli Coal Mining Co v Osborne [1899] AC 351 – Beaman v A.R.T.S. Limited [1949] 1 KB 550 – RB Policies at Lloyd’s v Butler [1950] 1 KB 76 – Kitchen v Royal Air Force Association [1958] 1 WLR 563 – Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Klempfner with Mr S T Pitt	Sackville Wilks Lawyers
For the Respondents	Mr M A Robins QC	Rigby Cooke Lawyers

WARREN CJ:

I have had the benefit of reading in draft form the reasons for judgment of Santamaria JA. Essentially for the reasons given by his Honour, I agree that the appeal should be dismissed.

TATE JA:

I agree with Santamaria JA, for the reasons his Honour gives, that the appeal should be dismissed.

SANTAMARIA JA:

Summary

The appellant, who was the plaintiff below, is a solicitor who had been left a painting by a grateful client. He was unaware that the painting had been stolen some years previously, and had been searched for by the previous owner and, after that owner’s death, by his executors,…

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 Levy v Watt

Details

AGLC: Levy v Watt [2014] VSCA 60
Case: [2014] VSCA 60
Decision Date: 14 May 2014

CaseChat Overview and Summary

In the matter of Levy v Watt, the Supreme Court of Victoria was tasked with resolving a dispute over the ownership of a valuable painting. The respondents, as executors and residuary beneficiaries of the deceased owner, claimed ownership of the painting which was stolen in 1991 and remained unknown until the police seized it in 2010. The appellant, who received the painting under the will of a third party, argued that his possessory title was superior and that the respondents' claim was barred by the Limitation of Actions Act 1958 (Vic). The central legal issues were whether the right of action for conversion was concealed by fraud, and if the appellant could prove that the third party acquired the painting as a bona fide purchaser for value without notice, thereby postponing the limitation period.

The court examined the relevant provisions of the Limitation of Actions Act 1958 (Vic) and case law, including Bulli Coal Mining Co v Osborne, Beaman v A.R.T.S. Limited, RB Policies at Lloyd’s v Butler, Kitchen v Royal Air Force Association, and Bartlett v Barclays Bank Trust Co Ltd (No 1). The court found that the right of action for conversion was not concealed by fraud because the owner and his executors were aware of the theft but not the identity of the thief. The court also found that the appellant did not prove that the third party acquired the painting as a bona fide purchaser for value without notice. Consequently, the court held that the limitation period for the respondents' action had not expired. The court ordered the painting to be returned to the respondents pending the determination of ownership.

In conclusion, the court ruled in favour of the respondents, determining that the appellant's possessory title was not superior to the respondents' documentary title and that the limitation period had not expired. The court ordered the painting to be returned to the respondents, allowing them to pursue their claim for ownership. The court's decision was grounded in the principles of limitation of actions and the specific facts of the case, including the respondents' diligent search for the painting and their lack of knowledge of its whereabouts until the police seizure.

Orders