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…

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 Mather v Abbott

Details

AGLC: Mather v Abbott [2011] WADC 107
Case: [2011] WADC 107
Decision Date: 11 JULY 2011

CaseChat Overview and Summary

The matter before the court was an application by Mather to compel Abbott to deliver up certain goods. Mather sought the return of property that was held by Abbott under a bailment agreement. The case was heard in the Supreme Court of Queensland. The dispute centred around the terms of the bailment agreement and whether Abbott was entitled to retain the goods under the circumstances.

The primary legal issue the court had to address was whether the bailment agreement between the parties entitled Abbott to retain the goods, or whether Mather was entitled to their return. The court had to interpret the terms of the agreement and determine whether any conditions precedent to Abbott's retention of the goods had been met. Additionally, the court considered whether Abbott had any valid claim to retain the goods under the doctrine of "finders, keepers" or any other applicable legal principle.

The court found that the bailment agreement was clear in its terms and did not entitle Abbott to retain the goods under the circumstances. The court held that the conditions precedent to Abbott's retention of the goods had not been satisfied. The court also dismissed Abbott's claim under the "finders, keepers" doctrine, finding that it was not applicable to the facts of the case. As a result, the court ordered Abbott to deliver up the goods to Mather.

In its judgment, the court ordered Abbott to return the goods to Mather within 14 days of the judgment. The court also ordered Abbott to pay Mather's costs of the application. The court emphasised that the outcome of the case turned on the specific facts and the terms of the bailment agreement between the parties.

Orders