Mather v Abbott - [2011] WADC 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MATHER -v- ABBOTT [2011] WADC 107

CORAM: REGISTRAR KINGSLEY

HEARD: 2 MAY 2011

DELIVERED : 11 JULY 2011

FILE NO/S: CIV 2534 of 2010

BETWEEN: AARON MATHER
Plaintiff
AND
DAVID ABBOTT
Defendant

Catchwords:

Practice - Application to deliver up goods - Turns on facts

Legislation:

Nil

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr B Wheatley
Defendant: Mr J D'Angelo

Solicitors:

Plaintiff: Mossensons
Defendant: D'Angelo Legal

Case(s) referred to in judgment(s):

Renowden v McMullin (1970) 123 CLR 584

REGISTRAR KINGSLEY: By an indorsement of claim filed 23 August 2010 the plaintiff (Mather) stated he was the owner of various goods. The goods number 55 and are valued at $93,810. Mather states that he was the tenant of leased premises and was conducting a motorcycle business on the premises. The defendant (Abbott) was the landlord of the premises.
The indorsement goes on to state that Abbott took possession of the leased premises in or about 9 June 2010 and has wrongfully refused to permit the plaintiff to remove the goods.
By a statement of claim dated 3 November 2010 Mather pleads, pursuant to a commercial property lease made around June 2009, he was the tenant of the leased premises. The lease was for a period of two years. Mather pleads he was conducting a motorcycle business on the premises.
Mather pleads Abbott purported to terminate the lease in or about 9 June 2010, and refused Mather entry onto the leased premises to collect his goods. At par 10 of the statement of claim, Mather particularises the goods which now number 54 and are valued at $81,810 (the pleaded goods). A Suzuki motorcycle VINJFCAG 133400 was deleted.
In the meantime there were proceedings in the Magistrates Court relating to an application by Abbott, as claimant against Mather, as defendant, under the Disposal of Uncollected Goods Act 1970. Abbott was seeking an order to dispose of goods in possession otherwise than under a bailment in the course of a business. Some of the goods in the schedule to the uncollected goods application are also the goods particularised at par 10 of Mather's statement of claim. Abbott brought an application dated 12 January 2011 in this court seeking orders that the uncollected goods application be transferred to this court.
Abbott filed a defence dated 21 February 2011 admitting Mather was a tenant of the leased premises and was conducting a motorcycle business on the premises. Abbott pleads there was a valid termination of the lease, pleads negligence on the part of Mather and brings a counterclaim in damages.
On 16 February 2011 Mather brought an application on his part seeking orders that Abbott deliver up the goods specified in par 10 of the statement of claim. The application included a Suzuki motorcycle VINJFCAG 133400, the one which had been deleted from the statement of claim dated 3 November 2010.
Mather supported the application by an affidavit sworn 10 February 2011. In that affidavit, Mather deposes at par 1 that he is the plaintiff and that he is authorised to swear the affidavit on behalf of Thermoplastic Engineering Perth Pty Ltd (Thermoplastic). Mather also deposes that he is a director of Thermoplastic t/as Rilusi Motorcycles. Mather goes on to depose that Rilusi carried on the business of the repair of motorcycles and the sale of accessories from the premises. At par 8, Mather deposes that on or about 9 June 2010, Abbott locked the premises and refused to allow him (Mather) to enter the premises to collect goods and tenants' fixtures owned by Rilusi and clients of Rilusi.
There was then an obvious problem with the summons for delivery of goods dated 16 February 2011. Ultimately the hearing on 12 April 2011 was adjourned to enable Mather's solicitor to consider the application and the state of the pleadings.
Subsequently, on 18 April 2011, Mather's solicitor filed a minute of proposed amended writ of summons whereby Thermoplastic was joined as second plaintiff, a minute of proposed amended statement of claim and a minute of proposed amended chamber summons for delivery of specific goods. The Suzuki motorcycle is still shown in the indorsement but again has been deleted from the minute of proposed amended statement of claim.
Abbott's solicitor has concerns about the proposed amended statement of claim and the proposed amended writ. The indorsement of claim now states that Thermoplastic is the owner of the goods, other than the motorcycles, but the proposed amended statement of claim simply pleads Thermoplastic was conducting a motorcycle business on the premises.
Abbott's counsel submits that this omission amounts to an abandonment as it does not plead what is contained in the indorsement of claim. Abbott's counsel cites Renowden v McMullin (1970) 123 CLR 584. In that case all the judges were of the opinion that it is the statement of claim which identifies the case upon which a defendant is called upon to answer. Barwick CJ and McTiernan J (the dissenting judges) were of the opinion that the indorsement marks out the perimeter or range of the area within which the plaintiff may express his claim in a formal fashion in his statement of claim, whether as originally filed or as sought to be amended. Owen J (with whom Kitto J and Menzies J concurred) commented that a statement of claim identifies the case that the defendant is called upon to answer. The defendant is entitled to assume that any other and different claim which is not included in the plaintiff's pleading, of which the writ is wide enough to cover, has been dropped from the action.
In this case the indorsement provides that Thermoplastic is the owner and entitled to possession of the goods, but the minute of proposed amended statement of claim does not plead the ownership of the goods by Thermoplastic. The plea is only that Thermoplastic was conducting a motorcycle business on the premises.
Mather's solicitors sought to overcome that deficiency by filing a further minute of proposed amended statement of claim dated 2 May 2011 where at par 6 is the plea that the goods were owned by Thermoplastic, including motorcycles owned by Thermoplastic's customers.
The defendant's counsel submits that there are inconsistencies between the minute of proposed amended chamber summons and the minute of proposed amended statement of claim. I am of the opinion that the minute of proposed amended statement of claim dated 2 May 2011 as between Thermoplastic and Abbott, whilst not elegant, identifies Thermoplastic as the owner of the goods particularised in par 10 of that minute. I will allow the minute to stand as the amended statement of claim as between Thermoplastic and Abbott. I also allow the minute of proposed amended indorsement to stand.
Abbott's counsel goes on to submit that if Thermoplastic is the owner of the goods, that a subbailment relationship arises. Abbott's counsel submits that Mather seems to be asserting some right to the goods because in par 4 of the amended writ, it is stated that the plaintiff has been wrongly deprived of the chattels and the use and enjoyment thereof. Abbott's counsel submits that, at least, a bailment relationship exists with Mather and Thermoplastic as joint bailors.
Broadly, a subbailee is a person to whom the actual possession of goods is transferred by someone who is not themselves the owner of goods but has the present right to possession of them as bailee of the owner. The subbailee, on acceptance of possession, assumes the obligations of a bailee towards the original bailor.
There is no evidence that a subbailment relationship exists, nor that Mather and Thermoplastic are joint bailors. Mather in his affidavit swears that it is Thermoplastic t/as Rilusi that owns the goods and that Mather as a director of Thermoplastic is authorised to take action to recover its assets. I am of the opinion that no issue of bailment arises and this does not afford a defence to Mather's application.
Whilst not pressed, there was an argument that the Magistrates Court proceedings are to be taken into consideration having regard to the potential for inconsistent decisions. However, the claim by Abbott against Mather is for some of the goods referred to in the amended statement of claim. Those goods on the evidence are not owned by Mather and, accordingly, the application to sell or otherwise dispose of the goods must fail as it is not Mather's goods that are sought to be disposed of.
The real issue in dispute is between Abbott, as landlord, and Mather, as tenant. Thermoplastic has been drawn in as an innocent bystander. In my opinion Thermoplastic is entitled to recover the goods it owns, or is entitled to possession.
Accordingly, Abbott is to deliver up within 14 days of the date of these reasons to Thermoplastic those goods particularised in par 10 of the amended statement of claim dated 2 May 2011 other than those goods already delivered up.
As to costs I will hear counsel on that issue.