Licardy v Solarsigns Pty Limited - [2009] NSWSC 854

CITATION: Licardy v Solarsigns Pty Limited [2009] NSWSC 854

HEARING DATE(S): 3, 4, 5, 6, 21 August 2009

JUDGMENT DATE :
1 September 2009

JURISDICTION: Equity Division

JUDGMENT OF: Hamilton AJ

DECISION: Plaintiff’s claims should be dismissed

CATCHWORDS: TORTS [219] Trover and detinue – Demand and refusal – Sufficiency of demand

LEGISLATION CITED: Trade Practices Act 1974 (Cth)
Fair Trading Act 1987

CATEGORY: Principal judgment

CASES CITED: Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700
Baldwin v Cole (1704) 6 Mod Rep 212; 87 ER 964
Clayton v Le Roy [1911] 2 KB 1031
Enkelmann v Glissan (1982) 2 BPR 9,640
Fitzgerald v Kellion Estates Pty Limited (1977) 2 BPR 9,181
Flowfill Packaging Machines Pty Limited v Fytore Pty Limited (1993) Aust Torts Reports 81-244
Frank Davies Pty Ltd v Container Haulage Group Pty Ltd (1989) NSW ConvR 55-084
Johnson Matthey (Aust) Ltd v Dascorp Pty Limited (2003) 9 VR 171
Lloyd v Osborne (1899) 20 LR (NSW) L 190
OzEcom v Hudson Investment Group [2007] NSWSC 1441
Spackman v Foster (1883) 11 QB 99

TEXTS CITED: Fleming on Torts (9th ed, 1998)
Roscoe’s Evidence in Civil Actions (20th ed, 1934)

PARTIES: Kylie Amber Licardy (plaintiff)
Solarsigns Pty Limited (first defendant)
Visual FX Creative Pty Limited (second defendant)
Andrew Hatzigiannis (third defendant)
John Hatzigiannis (fourth defendant)

FILE NUMBER(S): SC 5513/06

COUNSEL: M Moir (plaintiff)
J Darvall (defendants)

SOLICITORS: Populaw Legal Services (plaintiff)
Mercuri & Co Solicitors (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON AJ

Tuesday, 1 September

5513/06 Kylie Amber Licardy v Solarsigns Pty Limited & 3 Ors

JUDGMENT

1 HIS HONOUR: The questions in this case relate to the terms on which a business association was created in 2000 and continued until 2003 between the plaintiff on the one hand and the defendants on the other. The plaintiff alleges that, in the course of negotiations for the creation of the relationship and for a subsequent rearrangement of it, representations were made that were not met. The plaintiff alleges that those representations became contractual terms or alternatively may be relied on by her as constituting misleading or deceptive conduct within the meaning of the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987. In either case she claims that she is entitled to damages. She also makes a claim concerning the return to her of certain equipment that she introduced to the defendants’ business and that she has not recovered. She also seeks the winding-up of the first defendant and the second defendant.

FACTUAL FRAMEWORK

2 The following facts are undisputed or easily found.

3 The plaintiff was from 1995 to 2000 a sole trader conducting a graphic design business under the name “Direct Insight”. Her clients were principally real estate agents. She produced graphic design for use by them in the marketing of homes for sale. She also furnished them with their print work and signboards, which she had produced by contractors.

4 During the 1990s, the…

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 Licardy v Solarsigns Pty Limited

Details

AGLC: Licardy v Solarsigns Pty Limited [2009] NSWSC 854
Case: [2009] NSWSC 854
Decision Date: 1 September 2009

CaseChat Overview and Summary

The case of Licardy v Solarsigns Pty Limited was heard in the Federal Circuit and Family Court of Australia. The plaintiff, Licardy, brought an action against the defendant, Solarsigns Pty Limited, seeking compensation for the alleged conversion of goods. The primary issue before the court was whether the plaintiff had made a sufficient demand for the return of the goods, which was a prerequisite for the actions of trover and detinue to be upheld.

The court examined the nature and sufficiency of the demand made by the plaintiff to the defendant. The plaintiff argued that they had made a clear and unequivocal demand for the return of the goods, which the defendant had refused. The defendant, on the other hand, claimed that the demand was not sufficient as it did not provide adequate detail regarding the goods in question and the specific circumstances of their alleged conversion. The court had to determine whether the demand was sufficient in law to support the plaintiff's claims.

In delivering the judgment, the court found that the plaintiff's demand for the return of the goods was not sufficiently clear and specific. The court noted that the demand did not adequately identify the goods or the basis for the claim of conversion. The court held that for a demand to be sufficient, it must be unequivocal and provide enough detail for the defendant to understand the nature of the claim and the specific goods in question. Given the deficiencies in the demand, the court ruled that the plaintiff's actions for trover and detinue could not be upheld. Consequently, the plaintiff's claims were dismissed.

The court did not make any specific orders as the dismissal of the claims rendered further orders unnecessary. The decision underscores the importance of a clear and specific demand in actions for conversion, ensuring that the defendant has a fair opportunity to understand and respond to the claim.

Orders