Pargiter v Alexander

[1990] TASSC 88

Serial No B11/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Pargiter v Alexander [1990] TASSC 88; B11/1990

PARTIES:  PARGITER
  v
  ALEXANDER

FILE NO/S:  1390/1987
DELIVERED ON:  Cox J
JUDGMENT OF:  9 April 1990

Judgment Number:  B11/1990
Number of paragraphs:  4

Serial No B11/1990
List "B"
File No 1390/1987

PARGITER v ALEXANDER & ANOR

REASONS FOR JUDGMENT  COX J

9 April 1990

1. The plaintiff by a motion for judgment pursuant to O43, r1 seeks to enter judgment for damages to be assessed against the first–named defendant in the action of trespass contained in the statement of claim.

1. Also pleaded in the statement of claim was an action in detinue in respect of a yacht. The plaintiff alleged that on or about 7 October 1987 at Margate in Tasmania, the second–named defendant wrongfully seized the vessel and took it away from its mooring. He also alleged that at all material times the second–named defendant was acting as the servant or agent of the first–named defendant. The latter, in his defence claimed to be the owner of and entitled to possession of the vessel and admitted that on or about 7 October 1987 he (the first–named defendant) took possession of the vessel from where it was moored at Margate.

1. After a trial lasting several days, Nettlefold J, sitting without a jury, found in favour of the plaintiff in his action in detinue and ordered that the plaintiff have the return of the vessel and "that the plaintiff's claim for damages be adjourned sine die". Formal judgment was taken out reciting those orders and adjudging that the plaintiff have the return of the yacht mentioned in the statement of claim together with costs.

1. The plaintiff having now taken possession of the vessel, claims that it is in a damaged condition and wishes to pursue his claim in trespass. Nettlefold J in his published reasons for judgment (B39/1988) found that the plaintiff obtained a good title to the yacht prior to its admitted seizure by the first–named defendant. In these circumstances, I am satisfied within the terms of O43, r6 that the court has sufficient materials to determine the issue whether or not the plaintiff is entitled to succeed in his action in trespass. Nevertheless, the materials are insufficient to enable a court to pronounce final judgment for damages in respect thereof which is, as I apprehend it, the object of this order. Accordingly, the appropriate order is that the motion stand over for further consideration and I direct in accordance with r.6 that the issue of damages be tried by a judge sitting without a jury. Upon the determination of that issue, the court will have sufficient materials to give final judgment on the motion.