Sinclair v Haynes

[2000] NSWSC 642

CITATION:	Sinclair v Haynes [2000] NSWSC 642
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 12793/98
HEARING DATE(S):	5 July 2000
JUDGMENT DATE:	5 July 2000
PARTIES :	Julia Ann Sinclair (Appellant) Stanley Haynes (Respondent)
JUDGMENT OF:	Hamilton J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	305/97
LOWER COURT JUDICIAL OFFICER :	Magistrate Crews

COUNSEL :	C F Hodgson (Appellant) S Singh-Panwar, Solicitor (Respondent)
SOLICITORS:	Ferrys Law Firm (Appellant) Aubrey Brown Partners (Respondent)
CATCHWORDS:	TORTS [227] - Trover and detinue - Remedies - Action for conversion - Damages - Value at time of conversion - Circumstances in which cost of replacement by manufacturer may be taken as value.
CASES CITED:	Furness v Adrium Industries Pty Ltd (1993) Aust Tort Reports 81-245 Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 J & E Hall Ltd v Barclay [1937] 3 All ER 620 McGregor on Damages (16th Ed 1997) [357]
DECISION:	Magistrate's determination affirmed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HAMILTON J

WEDNESDAY, 5 JULY 2000

12793/98 JULIA ANN SINCLAIR v STANLEY HAYNES

JUDGMENT

HIS HONOUR:

1    Before me is a stated case in an action for conversion in the Local Court. The item converted was a horse float or trailer fitted out for use by a horse dentist. The plaintiff's family had been in horse dentistry for some hundred years and reference was made in the evidence to at least two other horse dentists in Australia. There is no dispute before me that the trailer was converted by the defendant. The point brought to this Court relates solely to the assessment of damages. Those damages were assessed on 20 February 1998 by Magistrate Crews at $12,000. In her judgment her Worship said only this relating to the quantum of damages:

“As to the measure of damages, on the basis of the line of authority cited by Mr Pearce, together with Mr Cupit's evidence as to the value of the trailer in November, 1995, which I accept, I have determined that it is proper to award damages in the amount [of $12,000].”

2    The questions raised by the stated case arise out of the following contentions by the appellant:

“The Appellant contends that my determination was erroneous in point of law upon the grounds:

(1) That I was in error in law in holding that the trailer converted by Miss Sinclair was valued at $12,000.00.

(2) That there was no appropriate or proper evidence of the value of the trailer to enable me to find that the trailer was valued at $12,000.00.”

The question posed for answer is whether her Worship’s determination was erroneous in point of law. The point being, in effect, a no evidence point, the evidence before her Worship was admissible in evidence and was tendered before me.

3 The appellant's point was put in a succinct and helpful outline of submissions by Mr Hodgson of counsel, supplemented by oral submissions. It was in short that the appropriate damages in conversion are the value of the goods at the date of conversion; that prima facie the measure of those damages where there is a market in the goods is the price at which replacement goods can be bought in that market; and that it is only where it is established that there was no such market that the plaintiff can go to some other method of establishing value, for example, the price at which a manufacturer would manufacture and supply replacement goods: see J & E Hall Ltd v Barclay [1937] 3 All ER 620; Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175; Furness v Adrium Industries Pty Ltd (1993) Aust Tort Reports 81-245. Mr Hodgson reminded the Court that the onus of proof is on the plaintiff in respect of damages as well as other matters and that, to establish her damages, the plaintiff must establish on the balance of probabilities the existence of each of the elements necessary to recover those damages: see McGregor on Damages (16th ed 1997) [357]. These principles are unexceptionable. Mr Hodgson submitted that it would have been easy for the plaintiff to establish whether or not there was a market in which trailers of the type converted could be bought and that the plaintiff, having failed to prove that there was no such market, she was unable to, and the Magistrate ought not to, resort to evidence of “value” which was in reality evidence of a manufacturing cost rather than of the price at which a replacement chattel could be bought in the market.

4    The evidence, in my view, shows that Mr Hodgson was right in his submission that $12,000 represented a replacement manufacturing cost rather than a purchase price in a market. The evidence was given by Mr Arthur Cupit, a boiler maker/welder who had long experience in the construction of trailers. He said that he was familiar with the subject trailer and described it as “a unique trailer in that it is purpose built.” In his original statement he “valued” the trailer at not less than $14,500 - $15,000, the figure depending on the price of materials and clearly being a manufacturing cost. That value was assigned as at the date his evidence was given in January 1998. Asked in re-examination to estimate the value of the item in December 1995 (which question was not objected to), that being the date of the conversion, he said it would probably have been about $12,500. In the whole context of Mr Cupit's evidence, I agree with Mr Hodgson that the figure of $12,500 was intended to represent the price at which a manufacturer would supply a replacement.

5    However, for the appellant to succeed upon this stated case, she must succeed in persuading me that there was no evidentiary basis on which the learned Magistrate could have taken the manufacturer’s price at the time of conversion as representing the value of the trailer for the purpose of assessing damages. Mr Hodgson said that the evidence just does not establish whether or not there was a market in such trailers at that time, which would have been easy to establish. His contention that it was not shown whether or not there was a market I do not accept upon an examination of the evidence. Whilst no one spoke specifically of the existence or non existence of a market, it was plain that this was a one off item specially manufactured. The plaintiff's evidence was that he had had one trailer such as this before the subject trailer and had had one in America too. The subject trailer he had originally acquired by having it built in the sense that he bought an ordinary horse trailer for some $6,000 and then spent some $6,000 in having it converted. This involved some strengthening, the fitting of a crush, the fitting of an instrument chest, and various other specialised additions to allow for the fact that it had to contain horses which were undergoing the pain or discomfort of dentistry and might become “wild”. Evidence was also given by a Mr Trurin, a panel beater who had had a specialised line in panel beating horse floats, as well as himself being interested in horses and floats and having attended many events involving horses. His evidence was that he had panel beaten 200 horse floats without ever having seen one like this and, indeed, that he had not seen one like it among the many more horse floats which he had observed on attending horse events.

6    While the existence of a market was not specifically asserted or denied in the evidence and not discussed expressly by her Worship in her judgment, I am of the view that it was entirely open to her Worship to come to the conclusion on the evidence that there was no market in floats of this type and that the appropriate course to ascertain the value of the converted float was to go to the cost of having a replacement float manufactured. In those circumstances it cannot be said that her Worship was in error in holding that the trailer converted by the defendant was valued at $12,000 and it is not correct to say that there was no appropriate or proper evidence of the value of the trailer to enable her Worship to find that the trailer was valued at $12,000.

7    Mr Hodgson contended that, there being no basis of evidence upon which her Worship could have made her findings, the question in the stated case should be answered, Yes. He contended that what should flow from that was that either (his first preference) this Court should enter judgment for the plaintiff in the Local Court proceedings in a nominal sum, damage not being of the essence of the action of conversion, or that the matter ought be remitted to the Magistrate for further hearing in accordance with this determination. The result of my conclusion is that the question in the stated case is answered, No. I affirm the determination in respect of which the case was stated. I order that the appellant pay the respondent’s costs of the stated case.

…oOo…

Last Modified: 09/26/2000