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Levy v Watt

Levy v Watt

Case [2012] VSC 539 14 November 2012

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2010 05278

FRANK ERNEST WILLIAM LEVY	Plaintiff
v
MAXWELL JAMES WATT AND MICHAEL IAN WATT	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	18-20 OCTOBER 2011
DATE OF JUDGMENT:	14 NOVEMBER 2012
CASE MAY BE CITED AS:	LEVY v WATT
MEDIUM NEUTRAL CITATION:	[2012] VSC 539

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Limitation of Action – Valuable painting stolen in 1991 – Identity of thief not known – Defendants the executors and residuary beneficiaries of owner’s estate – Painting left by R to the plaintiff, his solicitor, in his will – Defendants did not learn whereabouts of the painting until 2010 when police seized the painting – Application to Magistrates’ Court for order under s 125 of the Police Regulation Act 1958 – Order that the painting be returned to the defendants pending determination of ownership – Plaintiff claimed his possessory title was superior to defendants’ documentary title which had been extinguished by expiration of limitation period – Whether right of action concealed by fraud if identity of thief not known – Whether plaintiff proved that R acquired the painting as a bona fide purchaser for value without notice – Limitation of Actions Act 1958, ss 3(4), 5(1), 6, 27.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr DA Klempfner with Mr ST Pitt	Sackville Wilks Pty Ltd
For the Defendants	Mr MA Robins	Rigby Cooke Lawyers

HIS HONOUR:

Introduction

This proceeding concerns the ownership of a painting known as “Girl in Sunlight” by the well-known Australian artist, Rupert Bunny (“the Painting”). The parties to the proceeding are innocent of any wrongdoing and unfortunately one side has to lose. On the one hand, the plaintiff, Frank Ernest William Levy, a solicitor, was left the Painting by a grateful client in his will. On the other hand, the defendants, Maxwell James Watt and Michael Ian Watt, are the executors and residuary beneficiaries of their uncle, Albert James Watt, from whom the Painting was stolen in April 1991. (Both Maxwell James Watt and his uncle used the name “James” or “Jim” rather than their first given name. I shall refer to the former as “Mr Jim Watt” and his uncle as “Mr James Watt” in order to distinguish between them.) Mr Jim Watt is the older brother of Mr Michael Watt.

The Factual Background

On 18 November 1953, Mr James Watt purchased the Painting from a Melbourne auction house, Decoration Co, for the sum of 26 pounds 5 shillings. The receipt, kept by Mr James Watt, bore the description “White Umbrella” in his handwriting. However, the handwritten words “Girl in Sunlight” appear faintly on the back of the Painting. Although Mr Jim Watt said that his uncle normally referred to the Painting as “Girl in Sunlight”, it appears that Mr James Watt did use both titles as alternatives.

Nevertheless, in a book published in 1970 on Rupert Bunny by David Thomas, then the Director of the Newcastle…

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 [2012] VSC 539
Case: [2012] VSC 539
Decision Date: 14 NOVEMBER 2012

CaseChat Overview and Summary

In the matter of Levy v Watt, the dispute centred on the rightful ownership of a valuable painting stolen in 1991. The defendants were the executors and residuary beneficiaries of the estate of the painting's owner, who had bequeathed the painting to the plaintiff, his solicitor, in his will. The defendants only learned of the painting's whereabouts in 2010 when it was seized by the police. The plaintiff applied to the Magistrates’ Court for an order under section 125 of the Police Regulation Act 1958, seeking an order that the painting be returned to the defendants pending a determination of ownership. The plaintiff argued that his possessory title was superior to the defendants’ documentary title, which had been extinguished by the expiration of the limitation period.

The central legal issues before the court were whether the right of action was concealed by fraud if the identity of the thief was unknown and whether the plaintiff could prove that the owner acquired the painting as a bona fide purchaser for value without notice. The court had to consider provisions of the Limitation of Actions Act 1958, including sections 3(4), 5(1), 6, and 27, to determine whether the plaintiff's possessory title had priority over the defendants' documentary title. The court also needed to examine whether the limitation period was tolled due to the concealment of the plaintiff's right of action.

The court found that the plaintiff had established a possessory title to the painting, which was superior to the defendants' documentary title. The identity of the thief was not known, and the court held that the right of action was not concealed by fraud in these circumstances. The court also concluded that the plaintiff had not proven that the owner acquired the painting as a bona fide purchaser for value without notice. Consequently, the limitation period did not apply, and the plaintiff's possessory title remained valid. The court ordered the painting to be returned to the plaintiff pending a final determination of ownership.

Orders