Samuels v Richardson & Wiltshire-Smith
[2006] SADC 51
•15 May 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SAMUELS v RICHARDSON & WILTSHIRE-SMITH
[2006] SADC 51
Judgment of His Honour Judge Clayton
15 May 2006
TORTS - TROVER AND DETINUE - REMEDIES - ACTION FOR CONVERSION - DAMAGES
Assessment of damages in respect of detinue and conversion.
District Court Rules rules 23.01 and 75.14, referred to.
Electricity Trust of South Australia v O'Leary (1986) 42 SASR 26; Price v Commissioner of Highways (1968) SASR 329, considered.
SAMUELS v RICHARDSON & WILTSHIRE-SMITH
[2006] SADC 51
These proceedings are consequential upon dealings between the plaintiff and the first defendant, Mrs Richardson, with respect to a property at Hallett in the mid north of South Australia. The property comprises an old shed from which a service station business had formerly been conducted.
The plaintiff initially claimed that Mrs Richardson had agreed to sell the property to her. Mrs Richardson gave the plaintiff the title to the property as an act of good faith. The claim in respect of the real estate has been resolved and no longer forms part of these proceedings. However, that transaction puts the claim for the detention and conversion of personal property into perspective.
As a consequence of the arrangement reached between the plaintiff and Mrs Richardson, whatever it was, the plaintiff entered into possession of the shed where she stored many items of personal property. She had previously conducted a furniture business from other premises. The items stored in the shed included some of the stock from that business.
The plaintiff gave evidence that it had been her intention to open a second-hand shop in the shed. She proposed to sell cheaper items than in her earlier business and to provide space for craft people in the district to display their works. She had attended auctions in the district and purchased items which she intended to sell in the shop.
The plaintiff also gave evidence that she had purchased a large old building in Terowie in which she intended to provide accommodation for people who made walking tours of the district. Her intention was to use some of the larger items of furniture, which she was storing in the shed at Hallett, in the property at Terowie.
As well as the furniture the plaintiff stored three motor vehicles on the premises at Hallett. She also stored her personal papers and business documents in a room which had been used as an office in the garage.
In December 2002 the plaintiff left Hallett and travelled to Queensland to be with her daughter who was ill. She initially intended to be away for the Christmas break only, but for reasons which it is not necessary to discuss she stayed away much longer.
The plaintiff gave evidence that during her absence in Queensland she made attempts to contact Mrs Richardson to settle on the sale and purchase of the real estate but was never successful.
In late 2003 Mrs Richardson contracted to sell the property to the second defendant, Mr Douglas Wiltshire-Smith. On Christmas Day 2003 the plaintiff received a document signed by Mrs Richardson which was dated 14 December 2003. It purports to be a notice given under the Real Property Act 1886 as amended. The document reads:
NOTICE IS HEREBY GIVEN by the Vendor as required under Special Condition of a Contract of Sale executed on 14th December 2003 to sell the property situate at corner of Richard Street and Main Road Hallett, in the State of South Australia, (also known as Old Hallett Garage), that you are required to remove all your personal belongings comprising motor vehicles, furniture and sundry items within a period of 30 days from the date hereof, and to pay rent arrears of $1,000 to the Vendor within that period after which the said premises will become the sole property of the Purchaser under the Real Property Act who will be given vacant possession on 31st December 2003, being the date of settlement. The Purchaser has agreed to allow you up to and including 14th January 2004 to remove your belongings from the said premises failing which, your belongings comprising motor vehicles, furniture and sundries will become the property of the Purchaser under the said Real Property Act and may be disposed of as he sees fit without any further notice being given, or required to be given to you.
You are required to contact the undersigned by telephone to arrange collection of a key to the said premises, and to pay all rent arrears by 5pm on 14th January 2004 and prior to collection of your belongings.
Later the claim for arrears was increased from $1,000 to $2,000.
After the Christmas break the plaintiff consulted solicitors in Queensland who wrote to Mrs Richardson on 14 January 2004 seeking a resolution of the matter. The plaintiff indicated that she would be willing to remove her belongings from the premises and to return the Title Deed on a basis which was set out in the letter. The letter requested that the new purchasers of the property not be given access until the plaintiff’s personal property had been removed or until the expiry of a four-week period.
On 19 January 2004 the second defendant replied to the plaintiff’s solicitors on behalf of Mrs Richardson. The letterhead described him as Douglas Wiltshire, Chartered Management Consultant. The rather lengthy letter advised that he had done various things on behalf of Mrs Richardson and stated:
As advised in the Notice dated 14th December 2003, settlement for sale of the property occurred on 31st December 2003 when access and freehold possession was given, and that your client does not have permission to enter upon the said premises without consent of the purchaser, but in any case, the failure by your client to respond to the Notice dated 14th December 2003 is reasonable evidence that your client has neglected and abandoned ownership of any goods and chattels that remain on the premises after 14th January 2004, and legal advice indicates that the purchaser has every right to dispose of those items as he deems fit under the Real Property Act, and I am advised that the Police have been notified accordingly.
Douglas Wiltshire signed the letter for and on behalf of Mrs H Richardson of Hallett SA. The letter did not advise that Mr Wiltshire was the purchaser of the old garage himself.
The plaintiff’s solicitors lodged a caveat on the title to the property. On 3 February 2004 Mr Wiltshire wrote to the solicitors advising that he had been instructed to lodge an application to remove the caveat and to issue a summons with respect to the return of the Certificate of Title and to claim costs. The capacity in which Mr Wiltshire was threatening to lodge the application is not made clear. He was neither a legal practitioner nor a registered conveyancer.
The summons in this action was issued on 4 March 2004. Initially, Mrs Richardson was named as the first defendant and Mr Wiltshire-Smith the second defendant. As against Mrs Richardson an order was sought for specific performance of the agreement for the sale of the Hallett property to the plaintiff. As against both defendants orders were sought for the delivery up of the items of personal property which were listed in Exhibit “B” to an affidavit of the plaintiff sworn on 4 March 2004. The plaintiff also claimed damages for the wrongful detention and/or conversion of the plaintiff’s personal property. The claim against Mrs Richardson has been resolved. The plaintiff now pursues the claim in detinue and conversion in respect of her personal property against Mr Wiltshire-Smith alone.
The action was listed for hearing on Monday, 1 May 2006. On 24 April 2006 the Registry received a letter dated 21 April 2006 from Mr Wiltshire-Smith in which he advised that he would not be able to attend on 1 May because of business commitments in Queensland. He had formerly instructed solicitors and counsel, but did not instruct them to appear at the trial. His letter stated:
I ask that you please do not adjourn the case but determine a finding based on the facts currently before the Court bearing in mind that the issue is now one of minor civil action and should not be before this court once the question of ownership of the real estate was determined by Simpson J in March 2004.
It is unnecessary to comment on the accuracy of those statements or with respect to any determination of Her Honour Judge Simpson. The letter also stated that Mr Wiltshire-Smith was prepared to withdraw his counterclaim and that he only claimed costs.
This is a case of a plaintiff attending a trial but not the defendant. By reason of the defendant’s default the plaintiff is entitled to judgment under rule 75.14 and rule 23.01.
The plaintiff had travelled from Queensland for the purposes of the trial. If the trial had proceeded the court would have embarked upon an assessment of the plaintiff’s damages. Rather than enter interlocutory judgment and order the assessment of the plaintiff’s claim for damages for detention and/or conversion, I determined to proceed to assess damages as would have occurred if the contested trial, which was listed for hearing on 1 May 2006, had taken place.
In these circumstances, it is unnecessary to determine the circumstances in which the plaintiff was in possession of the premises. By reason of the defendant’s default all that is now necessary is to assess the plaintiff’s claim for damages for the detention and/or conversion of her goods.
In an affidavit of the defendant, Douglas Wiltshire-Smith, sworn on 8 March 2004 in response to an application by the plaintiff, which was admitted in evidence on the assessment, Mr Wiltshire-Smith deposed that:
5.4Upon expiration of the 60 day period for the plaintiff to remove all personal belongings, being 14 February 2004 the plaintiff’s belongings were removed from the property by the second named defendant.
By 14 February 2004 Mr Wiltshire-Smith had received the letter from the plaintiff’s solicitors dated 14 January 2004 and was therefore aware that the plaintiff had not abandoned the items of personal property.
In his amended defence and counterclaim Mr Wiltshire-Smith alleged in paragraph 5 of the amended counterclaim that the plaintiff failed to comply with the final notice served on her by Mrs Richardson and “after the 15th day of January 2004 the defendant commenced all steps necessary to dispose of the shed full of chattels...” A number of steps which he had taken were described.
In the affidavit sworn on 8 March 2004 Mr Wiltshire-Smith acknowledged that it was he who was the purchaser of the property. The sale contract was annexed. Item F in the schedule excludes from the sale “various chattels belonging to third parties stored in shed unless unclaimed within 30 days from date hereof”. A further special condition to the contract provides:
Chattels belonging to third parties stored on premises to be forfeited to purchaser after a period of 30 days from date of forwarding notice by certified mail to last known address. Period to include mail delivery by normal post. Vendor to notify.
The contract between Mrs Richardson and Mr Wiltshire-Smith, the purported notice under the Real Property Act 1886 and the letter from Mr Wiltshire-Smith to the plaintiff’s solicitors dated 19 January 2004 all indicate that Mr Wiltshire-Smith had an eye to obtaining the plaintiff’s personal property from the outset.
As a result of the defendant’s default in attending at the trial it is unnecessary to enquire into any suggestion that the defendant was entitled to take possession of and deal with the plaintiff’s property. Such issues must be determined against Mr Wiltshire-Smith by reason of his default in attending the trial.
The assessment of damages must be made in accordance with the evidence at the trial. The only witness was the plaintiff. She confirmed the contents of her affidavit sworn 4 March 2004. In particular, she confirmed that she was the owner of the items of personal property listed in Exhibit “B” to the affidavit. I find that the plaintiff was the owner of the items of property which form the basis for her claim.
The plaintiff gave evidence of the circumstances in which she had acquired the items of property. As I have mentioned, she had intended to start a second-hand furniture business in the garage at Hallett and also an accommodation business at Terowie. I mention those matters because the purpose for which the plaintiff was holding the various items of furniture may be relevant to the assessment of damages. For example, in the case of items purchased for use in the plaintiff’s business at Terowie the proper measure of damages may be the plaintiff’s cost price. In the case of items which the plaintiff was holding to be used as stock in the proposed second hand furniture shop other considerations may apply.
I have not had the benefit of submissions from counsel on these issues. I do not wish to make the assessment of damages more complicated than it need be, but there are some principles which I must apply. As a starting point I have had regard to Electricity Trust of South Australia v O’Leary[1] where King CJ said:
The basic principle of the law of damages for the destruction of a chattel is restitutio in integrum. The principle is that the owner of the chattel is to be restored as far as possible to the position in which he would have been if the chattel had not been destroyed. The way in which that principle is worked out depends upon the facts of each particular case. No hard and fast rule can be laid down which is applicable to the facts of every case.
[1] (1986) 42 SASR 26
In that case the court was assessing damages for the loss of a thoroughbred racehorse which had suffered fatal injuries after coming into contact with an electricity power line. The Chief Justice said (at page 29):
The chattel which was destroyed had a certain market value at the date of destruction. That means that the respondent, if he had so desired, could have sold the chattel for the market price. It seems to me that his loss cannot be less than that market price. The use to which he actually intended to put the chattel cannot operate to reduce the value of the chattel so determined. The wrongdoer is not concerned with the use to which the owner of the destroyed chattel might have put it. The ‘Mediana’ [1900] A.C. 113, per Lord Halsbury at p. 117.
But for the actions of the defendant which have given rise to this case the probabilities are that the plaintiff would have opened both her shop in Hallett and the other business in Terowie. Her loss must be assessed at the time of the detention or conversion of the goods. At that time the plaintiff had an intention to start the businesses. The fact that she did not commence the businesses is inconsequential. In any event, the failure to open the businesses was itself a consequence of the defendant’s actions. The plaintiff now has no intention of replacing the items. There is no reason for her to do that. Accordingly, the cost of purchasing replacement items would not be appropriate.
Although there is no evidence on the topic I think some allowance should be made for the costs that the plaintiff would have incurred in selling the goods and for contingencies. Accordingly, in the case of those items which were earmarked to be stock in the Hallett shop I have in some cases made an arbitrary deduction of 10% from the plaintiff’s selling price (which I have treated as the market value) to take into account the costs of achieving a sale and contingencies.
It is necessary to consider each of the items separately. As I have indicated the items are listed in Exhibit “B” to the plaintiff’s affidavit sworn 4 March 2004. I deal with them separately.
Item 1 - four 3 metre - 2.700 hand carved very large mahogany mantelpieces and over mirrors.
In respect of each of these items the plaintiff has claimed $4,995.
The plaintiff gave evidence that she acquired the items from Indonesia. The amount claimed is the amount for which the items would have been sold in the plaintiff’s shop. The cost to the plaintiff was “maybe $2,000 or something, then plus tax, then plus import duty, plus 20% for the top piece because it contains a mirror and probably 12% for the bottom piece because it doesn’t stop”. These items had been purchased in 1998/99. The plaintiff gave evidence that “now it would probably cost more than that”. A mantelpiece of the type is depicted in photographs. The mantelpieces had been made in Indonesia to the plaintiff’s order. They were replicas of a mantelpiece in a soap opera called “The Bold and the Beautiful”. I accept the plaintiff’s evidence. The defendant has deprived the plaintiff of the items. There is no suggestion that they are capable of being returned. The plaintiff’s last knowledge of the items was that they had been held, presumably on behalf of the defendant, in a wholesale truck yard in Adelaide. In any event, the defendant has not returned them.
If the defendant had not misappropriated the items, the plaintiff would have utilised those items in her shop and they could have been sold for the price that the plaintiff had placed upon them. In Price v Commissioner of Highways[2] it was held that where a chattel is a profit earning one the plaintiff’s loss should include loss of profits.
[2] (1968) SASR 329
As I have mentioned, I think some deduction should be made to reflect the cost of achieving a sale. I have not heard submissions on this matter and there is no evidence. An alternative would be to attempt to calculate the plaintiff’s purchase price as a starting point but that is not now possible because the defendant deprived the plaintiff of her records. In any event, I think the proper basis for calculating the plaintiff’s loss in this case is the market value, being the price that the plaintiff would have obtained for the items if she had sold them from her shop, less the expenses associated with the sale. Doing the best that I can I allow 10% for the cost of achieving the sale and other contingencies. I find that the value of item 1 was four mantelpieces valued at $4,995 each, that is $19,980, less 10% ($1,998) or $17,982.
Item 2 - 3 metre long teak dining table and ten fiddleback teak chairs
It is common ground that there were only eight chairs.
The suite of furniture is depicted in photographs. It was new furniture which had been made for the plaintiff’s business and had been imported from Indonesia for the purpose of resale. The price placed upon the chairs by the plaintiff was $289 each. The price for the table and eight chairs was $3,900. I adopt a similar approach to item 1 and reduce the selling price by 10% to arrive at a figure of $3,510.
Item 3 - one very large French mahogany bed with carved overhead canopy and 10” thick carved posts.
The selling price for this item was $5,885. The plaintiff said that the bed was another special order. She said it was enormous, elaborately carved and had an over mantel and canopy. It was taller than 3 metres. The plaintiff intended to use the bed at Terowie. Even though the business in Terowie was never opened the value of the item is its value at the time and place of the loss. See Electricity Trust of South Australia v O’Leary (supra).
Evidence of the plaintiff’s purchase price was amongst the papers detained by the defendant. Even though this item was to be used at Terowie, rather than as stock in the shop, I find that the market price was its selling price, namely $5,885. As it was not to be sold in the shop there is no reason to deduct 10% for the cost of achieving a sale. I assess the loss at $5,885.
Item 4 - teak opium table
This item was furniture purchased from Indonesia. The selling price was $585. It was intended for sale in the shop. Using the approach referred to above, I assess the loss at $527.
Item 5 - three sets of half round drawers - mahogany - one tall - two small
These items are shown in Exhibits 6 and 7. The selling prices were $595 for the tall set and $475 for each of the small sets. Using the same approach I assess damages in respect of these items at $1,391.
Item 6 - three mahogany three seater porch bench sets
In fact, there was only one three seater and two single chairs. The selling price for the three seater was $450. For the single seater the price was $199. The items are shown in photographs.
Exhibit 4 is a document which the plaintiff printed from the Internet. It is a real estate advertisement for the sale of the defendant’s home in Burra. One of the single chairs is depicted in a photograph of one of the rooms in the defendant’s home. Adopting the same approach I assess the loss for this item at $764.
Item 7 - two mahogany bedside cabinets
The cabinets were also depicted in the photographs of the defendant’s home. The selling price was $299 each. Adopting the same approach I assess the loss at $538.
Item 8 - two teak bedside cabinets
These items are also depicted in the photographs of the defendant’s home. The selling price for each of the items was $295. Adopting the same approach I assess the loss in respect of those items at $531.
Item 9 - mirror mahogany carved
The selling price was $285. I assess the loss as $257.
Item 10 - mirror teak carved square
This item is shown in Exhibit 10. The selling price was $310. Using the same approach I assess the loss at $279.
Item 11 - tribal pieces
These items were largely statues. Some of them are shown in the photographs. The plaintiff described them as numerous with a value of $20 to $30 each. Some of the tribal items were returned. Some of the items are shown in Exhibit 12. The evidence is not sufficiently clear for me to place any figure on these items. I make no allowance under this head.
Item 12 - set of drawers
This item was returned.
The plaintiff complains that the defendant had placed the item in an outbuilding which was exposed to the weather. It is not clear whether deterioration could have been prevented by more diligence on the part of the plaintiff. Because the drawers were returned and because of the uncertainty of the evidence as to value I am unable to assess any loss under this head.
Item 13 - wine rack
This item is shown in photographs. The selling price was $95. I assess the loss at $86.
Item 14 - two tables
These items were returned in pieces. The evidence does not enable me to assess any monetary loss.
Item 15 - electric saw workbench
This item was a gift to the plaintiff. It was in a box unopened. The cost of the item was $355. I assess the damages at $355.
Item 16 - pay phone
This item had been purchased for use in the proposed business at Terowie. The plaintiff had purchased the phone at a cost of $989. I assess the loss at that amount.
Item 17 - three boxes of children’s toys
This item was returned and the plaintiff makes no claim.
Item 18 - two boxed electric towel rails - white
One of these items was returned in pieces. The plaintiff claims $125 in respect of the other. I assess damages at that amount.
Item 19 - two hand carved teak turtles
These items were not for sale. They were pieces from an Indonesian artist. The plaintiff paid $300 for them. I assess damages at $300.
Item 20 - lamps and shades
There is no evidence which enables damages to be assessed under this head.
Item 21 - shop fittings, stands and shelving
The evidence does not establish the quantum of any loss under this head.
Item 22 - small items
The plaintiff’s schedule refers to boxes of sheet gift paper, boxes of greetings cards, assorted wooden vases plus ornaments, display items, flowers, prints, covers, boxes of dream catchers, boxes of Indian key rings, boxes of small cassette racks and display board of leather necklaces. The plaintiff said that the total selling price for all the items was $9,310. The plaintiff was able to calculate the total price of these items with some precision because they had previously been the subject of a sale to a business at Port Pirie which fell through.
Many of these items may have been valueless to a person who did not have a means of disposing of them such as a shop. Even though the realisation of the value would not be achieved in the short term there was a value to be realised and the loss of the items has caused a loss to the plaintiff.
Because of the nature of these items the costs of realising the value is likely to have been greater than the 10% which I have assumed in the case of larger items. As I have mentioned the total selling price for these items was $9,310. I assess the loss at $7,500 which allows a reduction of a little over 20% for the costs of realisation.
Item 23 - air compressor, two nail guns, paint sprayer
This equipment was returned and there is no claim.
Item 24 - numerous work tools plus car tools
No claim is made for this item.
Item 25 - tins of paint for renovating
No claim is made for this item.
Item 26 - kitchen equipment
The schedule lists a Bain Marie large, a Bain Marie small, a Bain Marie hot sauces four tubs, boxes of cups and other fast food cartons plus cutlery and a small deep fryer.
Initially, the plaintiff claimed $5,000 to $6,000 for these items. The plaintiff had purchased the equipment for use in a service station. She reduced the claim to $3,600. I assess the loss at that amount.
Item 27 - 15 to 20 new tins of lacquer stain and hardener, fillers and repair products
These items had been sent from overseas with the furniture purchased by the plaintiff so that any damage could be repaired. Some of the items were returned and others had deteriorated as a consequence of being opened. The plaintiff now claims $50 per tin for six tins. I assess damages under this head at $300.
Item 28 - Toyota Dyna five berth mobile home with fridge, oven, TV and microwave
The plaintiff had purchased this vehicle on 21 June 2000 for $3,800.
The plaintiff said the vehicle was in good condition and that she had painted the inside and installed new curtains. The plaintiff claims its value to have been $4,500. She had spent money installing a new windscreen and carrying out other repairs. I am not satisfied that the value of the vehicle should be increased by the amount expended.
The keys to the vehicle had been left in the office of the old service station in Hallett. The defendant was asked to produce the keys but he never did so. I find that the keys were left by the plaintiff in the office. There is some evidence that while in the possession of the defendant, the van had been locked and unlocked and had been driven. From those facts and from the fact that the plaintiff had left the keys in the office of the building it can be inferred and I find that the defendant had the keys to the vehicle.
I accept that the plaintiff’s agents Mr and Mrs Tippet attempted to collect the van on two occasions but were unsuccessful.
The vehicle was recovered in about April 2004. At that time it had suffered deterioration. The microwave, colour television and van stove were missing. Three new back seats which had been removed from the inside of the vehicle had been ruined by the weather. Further deterioration has occurred to the vehicle since its return. The plaintiff described the vehicle as dilapidated. She received a quote of $5,000 to transport the vehicle to Queensland. Because the defendant failed to return the keys the plaintiff has been unable to move the van.
The claim in respect of the campervan, therefore, is for damages for the detention of the vehicle.
I find that the vehicle was valued at $3,800 being the price paid by the plaintiff.
I find that this is a case where repairs to the vehicle would be uneconomic in that they would cost more than the market value of the vehicle. Accordingly, I treat the vehicle as a constructive total loss. I assess the plaintiff’s loss under this head at $3,800.
Item 29 - Kawasaki cruiser 650cc motorcycle
The claim made for this item was not pursued.
Item 30 - 1992 Ford utility
The plaintiff had purchased this vehicle for $800. The defendant claims that he sold the vehicle and received the sum of $400. That claim has not been substantiated and the defendant has not accounted to the plaintiff for the proceeds of sale. I find that the value of the vehicle was $800 and assess damages for the conversion of the vehicle in that sum.
Item 31 - 3-tonne Pantech truck
The plaintiff purchased the truck by trading furniture to the value of $2,500. Repairs costing about $500 had been carried out. Again I assess the value of the truck on the basis that the expenditure on repairs would not have added to its value. I assess the value of the truck at $2,500.
The truck had been parked in the shed. Like the other vehicles the keys had been left in the office. The vehicle was collected by the plaintiff’s agent and towed to a property which the plaintiff formerly owned. When the vehicle was recovered it was not capable of being used. The plaintiff had no keys. The front mudguard and front radiator panel were missing and the lights were smashed. Again the defendant failed to deliver up the keys. There is evidence that the vehicle had been locked and unlocked whilst in the possession of the defendant from which an inference can be drawn that the defendant did have the keys. Also, the plaintiff’s evidence that the keys had been left in the office is sufficient for such an inference to be drawn.
There is no evidence that the wreck has any value in situ at Hallett. The plaintiff said she was not able to sell the vehicle because of its location. I treat the vehicle as a constructive total loss. I assess damages under this head at $2,500.
Item 32 - one original art deco lounge suite
The defendant returned this item, but prior to return it had been stored outside and was useless. It had been exposed to rain and was infested with animals. Chickens had used it for nesting. The plaintiff said the lounge suite was just rubbish at the time it was returned.
The intention of the plaintiff had been to use the lounge suite at Terowie. She paid $2,000 for the lounge suite. I treat the item as a total loss. I assess the loss under this head at $2,000.
Item 33 - one original art deco chrome drinks trolley
This was a personal item to be used at Terowie. The plaintiff had paid $300 for the item. I assess damages at $300.
Item 34 - three very old baptismal fonts pillars
These items were returned. The plaintiff has abandoned this claim.
Item 35 - several paintings - personal items
No claim is now made for these items.
Item 36 - sealed boxes of silk curtains, matching bed spreads, pillowcases
The plaintiff had imported these items. There were three different coloured sets. They were used for display purposes. When purchased they cost about $1,200 per set. A quotation from a business called “Curtain Wonderland” puts a price of $1,360 on each set. I assess the loss at $4,080 being the cost of three replacement sets from Curtain Wonderland.
Item 37 - mahogany chaise lounge
This item is depicted in photographs. The selling price was $500. I assess damages at $450.
Item 38 - mahogany plant stand
This item is depicted in photographs. The selling price was $175. I assess damages at $158.
Item 39 - four to five old wardrobes and other items
These were items the plaintiff had acquired at auction over the years. Some of the items were returned. The plaintiff did not have the records to make a reconciliation as to what was returned and what was not. As I have mentioned, the defendant had deprived the plaintiff of her records.
I am sure that the plaintiff has suffered a loss but there is no evidence on which I can make an assessment of damages under this head.
Item 40 - important items
The plaintiff gave evidence that “these are the worst things, because these things seem to be the things that he (the defendant) actually destroyed when there was no reason to...”. The items included private files, taxation returns, business information, bills of lading relating to the import of the goods, stock items, EFTPOS receipts from businesses formerly conducted by the plaintiff, medical files, old photographs, and letters from the plaintiff’s parents.
I am sure that the destruction of these items has caused real inconvenience and loss to the plaintiff. However, the evidence does not go far enough to permit me to assess damages for their loss.
Conclusion
As set out in the attached schedule, the items in respect of which I have been able to assess damages total $59,007.
The plaintiff will have interest at 4% per annum from the date on which the proceedings were commenced namely 4 March 2004. I calculate the interest to be $5,186.
On the plaintiff’s claim there will be judgment in favour of the plaintiff against the defendant, Douglas Wiltshire-Smith, for the amount of $59,007, together with interest to the date of this judgment of $5,186.
As I have mentioned, the defendant wrote to the court advising that he was prepared to withdraw his counterclaim. A withdrawal of the counterclaim was unnecessary. The counterclaim will be dismissed by reason of the defendant’s failure to attend at the trial.
There will be an order that the defendant, Douglas Wiltshire-Smith, pay the plaintiff’s costs of the action to be taxed.
SCHEDULE
Item No Description Award 1 Four 3 metre - 2,700 hand carved very large mahogany mantelpieces and over mirrors 17,982 2 3 metre long teach dining table and ten (eight) fiddleback teak chairs 3,510 3 One very large French mahogany bed with carved overhead canopy and 10” thick carved posts 5,885 4 Teak opium table 527 5 Three sets of half round drawers - mahogany - one tall - two small 1,391 6 One mahogany three seater porch bench sets and two single chairs 764 7 Two mahogany bedside cabinets 538 8 Two teak bedside cabinets 531 9 Mirror mahogany carved 257 10 Mirror teak carved square 279 11 Tribal pieces 0 12 Set of drawers 0 13 Wine rack 86 14 Two tables 0 15 Electric saw workbench 355 16 Pay phone 989 17 Three boxes of children’s toys 0 18 One boxed electric towel rails - white 125 19 Two hand carved teak turtles 300 20 Lamps and shades 0 21 Shop fittings, stands and shelving 0 22 Small items 7,500 23 Air compressor, two nail guns, paint sprayer 0 24 Numerous work tools plus car tools 0 25 Tins of paint for renovating 0 26 Kitchen equipment 3,600 27 15 to 20 new tins of lacquer stain and hardener, fillers and repair products 300 28 Toyota Dyna 5 berth mobile home with fridge, oven, TV and microwave 3,800 29 Kawasaki cruise 650cc motorcycle 0 30 1992 Ford utility 800 31 3-tonne Pantech truck 2,500 32 One original art deco lounge suite 2,000 33 One original art deco chrome drinks trolley 300 34 Three very old baptismal fonts pillars 0 35 Several paintings - personal items 0 36 Sealed boxes of silk curtains, matching bed spreads, pillowcases 4,080 37 Mahogany chaise lounge 450 38 Mahogany plant stand 158 39 Four to five old wardrobes and other items 0 40 Important items 0 TOTAL $59,007
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