Shoalhaven Sand Pty Ltd v Kennedy - [2019] NSWDC 494

District Court

New South Wales

Medium Neutral Citation: Shoalhaven Sand Pty Ltd v Kennedy & Ors [2019] NSWDC 494
Hearing dates: 4 – 6 & 9 September 2019
Date of orders: 13 September 2019
Decision date: 13 September 2019
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 239

Catchwords:
CONTRACT – alleged oral agreement for shared ownership of vehicular ferry – first and second defendants owned the vehicular ferry that was replaced – plaintiff contributed to purchase price for replacement ferry – whether plaintiff acquired possessory interest pursuant to agreement - significance of ‘post contractual’ conduct in proof of verbal agreement.

TORTS – conversion – sale of ferry by first and second defendants – whether infringement of plaintiff’s possessory interest – whether conversion by auctioneer, acting on instructions of first and second defendants.

TRADE PRACTICES – misleading or deceptive conduct – sale of island – island used for residence of first and second defendants in conjunction with operational dairy farm – representation by second defendant to third defendant (real estate agent) that ferry was an inclusion in sale – whether representation “in trade or commerce.”
AGENCY – whether conduct constituting conversion engaged in by corporate agent gives rise only to vicarious liability of corporation – whether agent/employee personally liable in tort.
Legislation Cited: Australian Consumer Law, s 18
Evidence Act 1995 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Cases Cited: Ashby v Tolhurst [1937] 2 KB 242
BH Australia Constructions v Kapeller [2019] NSWSC 1086
Gordon v Harper (1796) 101 ER 828
Manchester Airport Plc v Dutton [2000] 1 QB 133
Mears v Safecar Security [1983] QB 54
Northam v Bowden (1855) 11 Exch 70
O’Brien v Dawson (1942) 55 CLR 18
Penfold Wines Pty Ltd v Elliott (1946) 74 CLR 204
Watson v Foxman (1995) 49 NSWLR 315
Western Australia v Ward (2002) 213 CLR1
Williams v Pisano (2015) 90 NSWLR 342
Wilton & Anor v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644
Texts Cited: G. Dal Pont, Law of Agency, (3rd ed, 2014)
J Carter & Ors, Helmore Commercial Law and Personal Property in New South Wales (10th ed, 1992)
J.D. Heydon, Heydon on Contract (2019)
J.G. Fleming, Law of Torts (7th ed, 1987 )
R. Austin, H. Ford & P. Ramsay, Company Directors: Law and Corporate Governance (2005)
Category: Principal judgment
Parties: Shoalhaven Sand Pty Ltd (Plaintiff)
Mr Kennedy (Estate) (First Defendant)
Ms Kennedy (Second Defendant)
Mr Campbell (Third Defendant)
Representation:
Counsel:
Ms E Windsor (Plaintiff)
Mr Fernandes (First and Second Defendants)
Mr J de Jonge (Third Defendant)
Solicitors:
Palmers Solicitors (Plaintiff)
Foxs & Staniland Lawyers (First and Second Defendant)
Carter & Ferguson (Third Defendant)

File Number(s): 2017/127592
Publication restriction: Nil

Judgment

INTRODUCTION

This is a case about disputed ownership to a vehicular ferry that had been purchased in the middle of 2010 and which was used to convey vehicles from land to Burraga Island (locally known as ‘Pig Island’), at the Shoalhaven River at Terara along the south coast, near Nowra. That…

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.

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Details

Case: [2019] NSWDC 494
Decision Date: 13 September 2019

CaseChat Overview and Summary

The case of Shoalhaven Sand Pty Ltd v Kennedy involved a dispute over the ownership and sale of a vehicular ferry. The plaintiff, Shoalhaven Sand, claimed an interest in the ferry through an alleged oral agreement with the first and second defendants, who were the registered owners. The plaintiff argued that it had contributed to the purchase price of a replacement ferry and thus had a possessory interest in the ferry. The first and second defendants sold the ferry, prompting the plaintiff to seek relief for conversion and misleading or deceptive conduct. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether an oral agreement existed that gave the plaintiff a possessory interest in the ferry, whether the sale of the ferry by the first and second defendants constituted conversion of the plaintiff's interest, and whether the representation by the second defendant to the real estate agent constituted misleading or deceptive conduct. Additionally, the court had to determine whether the conduct of the first and second defendants could be attributed to their corporate entity and whether an employee acting on their instructions could be held personally liable.

The court found that no oral agreement existed that would grant the plaintiff a possessory interest in the ferry. The court held that the conduct of the first and second defendants did not amount to conversion, as the plaintiff did not have a possessory interest to be converted. Regarding misleading or deceptive conduct, the court found that the representation by the second defendant to the real estate agent did not occur in the course of trade or commerce and thus did not constitute misleading or deceptive conduct. The court also concluded that the conduct of the corporate agent did not give rise to vicarious liability on the part of the corporation, and the employee was not personally liable in tort.

The court made orders dismissing the plaintiff's claims and awarding costs to the first and second defendants. The orders included the dismissal of the plaintiff's claims for conversion and misleading or deceptive conduct, and the plaintiff was ordered to pay costs to the first and second defendants.

Orders

Orders of the court

See paragraph 239

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Shoalhaven Sand Pty Ltd v Kennedy & Ors [2019] NSWDC 494
Hearing dates:	4 – 6 & 9 September 2019
Date of orders:	13 September 2019
Decision date:	13 September 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 239
Catchwords:	CONTRACT – alleged oral agreement for shared ownership of vehicular ferry – first and second defendants owned the vehicular ferry that was replaced – plaintiff contributed to purchase price for replacement ferry – whether plaintiff acquired possessory interest pursuant to agreement - significance of ‘post contractual’ conduct in proof of verbal agreement. TORTS – conversion – sale of ferry by first and second defendants – whether infringement of plaintiff’s possessory interest – whether conversion by auctioneer, acting on instructions of first and second defendants. TRADE PRACTICES – misleading or deceptive conduct – sale of island – island used for residence of first and second defendants in conjunction with operational dairy farm – representation by second defendant to third defendant (real estate agent) that ferry was an inclusion in sale – whether representation “in trade or commerce.” AGENCY – whether conduct constituting conversion engaged in by corporate agent gives rise only to vicarious liability of corporation – whether agent/employee personally liable in tort.
Legislation Cited:	Australian Consumer Law, s 18 Evidence Act 1995 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Cases Cited:	Ashby v Tolhurst [1937] 2 KB 242 BH Australia Constructions v Kapeller [2019] NSWSC 1086 Gordon v Harper (1796) 101 ER 828 Manchester Airport Plc v Dutton [2000] 1 QB 133 Mears v Safecar Security [1983] QB 54 Northam v Bowden (1855) 11 Exch 70 O’Brien v Dawson (1942) 55 CLR 18 Penfold Wines Pty Ltd v Elliott (1946) 74 CLR 204 Watson v Foxman (1995) 49 NSWLR 315 Western Australia v Ward (2002) 213 CLR1 Williams v Pisano (2015) 90 NSWLR 342 Wilton & Anor v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644
Texts Cited:	G. Dal Pont, Law of Agency, (3rd ed, 2014) J Carter & Ors, Helmore Commercial Law and Personal Property in New South Wales (10th ed, 1992) J.D. Heydon, Heydon on Contract (2019) J.G. Fleming, Law of Torts (7th ed, 1987 ) R. Austin, H. Ford & P. Ramsay, Company Directors: Law and Corporate Governance (2005)
Category:	Principal judgment
Parties:	Shoalhaven Sand Pty Ltd (Plaintiff) Mr Kennedy (Estate) (First Defendant) Ms Kennedy (Second Defendant) Mr Campbell (Third Defendant)
Representation:	Counsel: Ms E Windsor (Plaintiff) Mr Fernandes (First and Second Defendants) Mr J de Jonge (Third Defendant) Solicitors: Palmers Solicitors (Plaintiff) Foxs & Staniland Lawyers (First and Second Defendant) Carter & Ferguson (Third Defendant)
File Number(s):	2017/127592
Publication restriction:	Nil