Toyota Finance Australia Ltd v Dennis; Tekitu Pty Ltd v Dennis

Case •

[2002] NSWCA 369

•

19 November 2002

No judgment structure available for this case.

Reported Decision:

 58 NSWLR 101

New South Wales


Court of Appeal

CITATION: TOYOTA FINANCE AUSTRALIA LTD v DENNIS & ORS; TEKITU PTY LTD v DENNIS & ANOR [2002] NSWCA 369
FILE NUMBER(S): CA 40807/00; 40809/00
HEARING DATE(S): 14 March 2002
JUDGMENT DATE:
19 November 2002

PARTIES :
Toyota Finance Australia Ltd
Tekitu Pty Ltd
Noelene Dennis
Paul Toweel
Petzat Pty Ltd
JUDGMENT OF: Meagher JA at 1; Handley JA at 2; Sheller JA at 95
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) : 		33/99
LOWER COURT
JUDICIAL OFFICER :		 Delaney DCJ
COUNSEL: J T Gleeson SC/J Stoljar (Toyota)
M L D Einfeld QC/S Rouben (Tekitu)
C J Stevens QC/A Porthouse (Dennis)
SOLICITORS: Clayton Utz (Toyota)
Neil O'Connor & Associates (Tekitu)
Herbert Weller (Dennis)
CATCHWORDS: TORT - recaption of chattel - hire purchase agreement - repossession of vehicle - assault - reasonable force - VICARIOUS LIABILITY - collection of arrears - recaption of chattel - independent contractors - no authorisation to assault
LEGISLATION CITED: Consumer Credit (NSW) Act 1995
Consumer Credit Code
Commercial Agents and Private Inquiry Agents Act 1963
Hire Purchase Act 1960 (NSW)
Tasmanian Criminal Code
Queensland Criminal Code
Western Australia Criminal Code
CASES CITED:
 Abbott v New South Wales Mont de Piete Company (1904) 4 SR (NSW) 336
Blades v Higgs (1861) 10 CB (NS) 713; 142 ER 634
Cantberbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Tort Reports 81-246
Chambers v Miller (1862) 13 CB NS 125; 143 ER 50
Clement v Jones (1909) 8 CLR 133
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41
De Lambert v Ongley [1924] NZLR 430
Devoe v Long & Long [1951] 1 DLR 203
Dyer v Munday [1895] 1 QB 742
Fitzgerald v Kellion Estates Pty Ltd (1977) 2 BPR 9181
Harvey v Brydges (1845) 14 M&W 442; 153 ER 546
Hemmings v Stoke Poges Golf Club [1920] 1 KB 720
Hollis v Vabu Pty Ltd (1999) Aust Torts Rep 81-535
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Housing Commission of NSW v Allen (1967) 69 SR (NSW) 190
Hyde v Graham (1862) 1 H&C 593; 158 ER 1020
Jones v Chapman (1849) 2 Ex 803; 154 ER 717
Lee v Atkinson (1609) Yelverton 172; 80 ER 114
Lows v Telford (1876) 1 App Cas 414
Macintosh v Lobel (1993) 30 NSWLR 441
Mackay v Dick (1881) 6 App Cas 251
Mutual Life and Citizens Assurance Co Ltd v Evatt [1971] AC 793
Newton v Harland (1840) 1 Man & G 644; 133 ER 490
NMFM Property Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558
O'Connor v Isaacs [1956] 2 QB 288
Ramsay v Margrett [1894] 2 QB 18
R v Doucette [1960 25 DLR (2d) 380
R v Mitton (1827) 3 C&P 30; 172 ER 309
Scott v Davis (2000) 204 CLR 333
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Stoneman v Lyons (1975) 133 CLR 550
Swan v Rawsthorne (1908) 5 CLR 765
Torette House Pty Ltd v Berkman (1939) 39 SR (NSW) 156
Wickham v Rice (1887) 4 WN (NSW) 9
Ziade v NSW Ministerial Insurance Corp (CA 25 March 1993, unreported)
Zimmler v Manning (1863) 2 SCR (NSW) 235
DECISION: 1 Leave granted to Toyota, Tekitu, Mr Toweel and Petzat to appeal subject to the filing of notices of appeal within 14 days; 2 Leave to Mrs Dennis to cross-appeal refused with costs; 3 Appeals by Toyota and Tekitu allowed with costs; 4 Set aside the judgments in the District Court against Toyota and Tekitu and in lieu thereof order that judgments be entered in their favour with costs; 5 Appeals by Mr Toweel and Petzat dismissed with costs; 6 Mrs Dennis to have certificates under the Suitors' Fund Act 1951 in respect of the costs of the appeals by Toyota and Tekitu.




                          CA 40807/00
                          CA 40809/00
                          DC 33/99 (Parramatta)

                          MEAGHER JA
                          HANDLEY JA
                          SHELLER JA

TOYOTA FINANCE AUSTRALIA LIMITED v DENNIS


and


TEKITU PTY LIMITED v DENNIS

The two appeals were from a decision given by Judge Delaney in the District Court on 14 September 2000. The proceedings followed an incident in 1997 where the plaintiff, the driver of the Toyota wagon, was approached by Mr Toweel (first defendant), who had been engaged to repossess the vehicle. When attempting to seize the keys to the vehicle, Mr Toweel was found to have assaulted the plaintiff.

The vehicle was the subject of a hire purchase agreement between the plaintiff's husband and Toyota Finance Australia Ltd (Toyota), the second defendant. It was accepted that the plaintiff's husband was in default on his loan repayments and Toyota was entitled to repossess the vehicle. Toyota authorised and empowered Nanpay Pty Ltd (Nanpay) to take possession of the vehicle. Nanpay requested Petzat Pty Ltd (Petzat) (the fourth defendant), a company controlled by Mr Toweel, to collect arrears or repossess the vehicle. The evidence suggested that Tekitu Pty Ltd (Tekitu), the third defendant in the proceedings, was not involved in the repossession.

At first instance it was found that Mr Toweel had assaulted the plaintiff. It was held that as he was an agent of the second, third and fourth defendants, these companies were vicariously liable for the tortious conduct.

A verdict and judgment was given against each defendant jointly and severally for $30,000. On damages, the trial Judge found that the plaintiff suffered from tenosynovitis and carpal tunnel syndrome causatively related to the assault. The trial Judge preferred the plaintiff's medical expert to the defendant's medical expert.

One of the primary issues on appeal was that the trial Judge had erred in failing to find that Mr Toweel had used no more force than reasonably necessary to obtain possession of the vehicle. Further, the vicarious liability of Toyota and Tekitu was also challenged.

The plaintiff cross-appealed on the ground that the trial Judge had erred in failing to find that Toyota owed her a duty of care and breached that duty of care.

HELD

Vicarious Responsibility (per Sheller JA, Meagher JA and Handley JA concurring):

1. The trial Judge's findings that Toyota was vicariously liable for the conduct of Toweel were erroneous. The relationship between Toyota and the other defendants could not be characterised as one of employment. The factors identified in Hollis v Vabu (2001) 207 CLR 21 which indicate the existence of an employment relationship were not present here. This was evidenced from the fact that the other defendants had complete control over the manner in which they performed their work and they were not presented to the public as emanations of Toyota.

2. Given that the other defendants were independent contractors and not employees, it followed that Toyota could not be vicariously liable for their tortious conduct unless it authorised or directed that conduct to be undertaken: Stoneman v Lyons (1975) 133 CLR 550. There was no basis in the evidence for finding that Toyota authorised the assault on the plaintiff; contrast with Canterbury Bankstown Rugby League Football Club Limited v Rogers (1993) Aust Torts Reports 81-246.

3. While it is generally recognised that the owner or bailee of a motor vehicle may incur vicarious liability arising out of the negligent driving of a motor vehicle apparently on the basis of agency, the decisions which established that principle can be distinguished on the facts from the present case; compare NMFM Property Pty Ltd v Citibank Limited (No 10) [2000] FCA 1558; Scott v Davis (2000) 204 CLR 333.

Assault (per Sheller JA, Meagher JA concurring):

4. The right of seizure of chattels using reasonable force is limited to situations of wrongful appropriation.

5. Blades v Higgs (1861) 10 CB (NS) 713; 142 ER 634 expressed the view that the plaintiff's wrongful detention of chattels against the request of the defendant would be the same violation of the right of property as the taking of the chattels out of the actual possession of the owner. Blades v Higgs was subsequently endorsed in Zimmler v Manning (1863) 2 SCR (NSW) 235 and Abbott v New South Wales Mont de Piete Company (1904) 4 SR (NSW) 336.

6. Wickham v Rice (1887) 4 WN (NSW) 9 drew no distinction between peaceable and forcible recaption of a chattel from a person who had lawfully obtained possession of it, and therefore has no application in this case. Similarly, De Lambert v Ongley [1924] NZLR 430 is not an authority for the situation where the defendant is seeking to recover from a plaintiff a chattel which came lawfully into the plaintiff's possession.

7. Blades v Higgs is an unconvincing decision which is not based on precedent. Despite the approval of the Full Court in Abbott, Blades v Higgs should not be followed, particularly as it encourages forcible redress for no satisfactory reason: see the comments of Pollock CB in Hyde v Graham (1862) 1 H & C 593 at 598.

8. Toweel had no right to seek forcibly to seize the vehicle and in the course of doing so assault the plaintiff. It is undesirable that the law should contemplate that where the hirer of a chattel refuses to hand it back, a person seeking to repossess it may do so by exerting force.

Per Handley JA dissenting:

9. Blades v Higgs establishes that the right of recaption extends to any case where the owner has an immediate right to possession of the goods and its exercise does not involve a trespass on private property. The decision is supported by R v Mitton (1827) 3 C & P 30; Chambers v Miller (1862) CB NS 125; Zimmler v Manning; Abbott v New South Wales Monte de Piete Company and De Lambert v Ongley.

10. Toyota had an immediate right to possession and when Toweel requested delivery up, the result was that Toyota in law would have possession. The use of force would thus be justified: see Jones v Chapman (1849) 2 Ex 803; 154 ER 717 and Ramsey v Margrett [1894] 2 QB 18.

11. In Blades v Higgs the right of recaption relied upon was that conferred by the general law. Toyota was in a stronger position because it also had an express contractual right to retake possession under the lease: see Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607. The conduct of the plaintiff in preventing Toweel from obtaining the keys to the vehicle was also wrongful because it was a tortious interference with Toyota's contractual right to repossess the vehicle.

12. The law should not make it more difficult to repossess motor vehicles on land open to the public, and should not encourage defaulting hirers to defy the rights of an owner who is entitled to immediate possession in order to obtain further use of the vehicle without payment.

13. In order to find a verdict for the plaintiff the trial Judge had to find that Mr Toweel used more force than was reasonably necessary and proportionate. However he did not address that issue and made no such finding. The defendants had the onus of proving justification but the plaintiff's evidence taken at its highest, and the findings the Judge did make, establish that the force used by Mr Toweel was not unreasonable or disproportionate.

Damages (per Sheller JA, Meagher JA concurring):

14. It was open to the trial Judge to prefer the medical opinion of one expert over another. The case that the plaintiff should be compensated for both tenosynovitis and carpal tunnel syndrome was not compelling. But the parties were content to leave it to the trial Judge to make what he could of the medical reports tendered: Ziade v NSW Ministerial Insurance (Court of Appeal, 26 March 1993, unreported).

15. The Court would not interfere with the trial Judge's conclusion nor with the amount of damages awarded, although one might regard them as generous in the circumstances.

Per Handley JA dissenting:

16. The trial Judge misunderstood an expert medical report which was highly relevant to the question of damages. The injury caused by the assault aggravated a problem which had been troubling the plaintiff for many years before the incident. Because of this error in understanding the medical report the trial Judge's assessment cannot stand and this Court must intervene and reassess.


      Legislation:
      Consumer Credit (NSW) Act 1995
      Consumer Credit Code
      Commercial Agents and Private Inquiry Agents Act 1963
      Hire Purchase Act 1960 (NSW)
      Tasmanian Criminal Code
      Queensland Criminal Code
      Western Australian Criminal Code

      Cases cited:
      Abbott v New South Wales Mont de Piete Company (1904) 4 SR (NSW) 336
      Blades v Higgs (1861) 10 CB (NS) 713; 142 ER 634
      Cantberbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Tort Reports 81-246
      Chambers v Miller (1862) 13 CB NS 125; 143 ER 50
      Clement v Jones (1909) 8 CLR 133
      Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41
      De Lambert v Ongley [1924] NZLR 430
      Devoe v Long & Long [1951] 1 DLR 203
      Dyer v Munday [1895] 1 QB 742
      Fitzgerald v Kellion Estates Pty Ltd (1977) 2 BPR 9181
      Harvey v Brydges (1845) 14 M&W 442; 153 ER 546
      Hemmings v Stoke Poges Golf Club [1920] 1 KB 720
      Hollis v Vabu Pty Ltd (1999) Aust Torts Rep 81-535
      Hollis v Vabu Pty Ltd (2001) 207 CLR 21
      Housing Commission of NSW v Allen (1967) 69 SR (NSW) 190
      Hyde v Graham (1862) 1 H&C 593; 158 ER 1020
      Jones v Chapman (1849) 2 Ex 803; 154 ER 717
      Lee v Atkinson (1609) Yelverton 172; 80 ER 114
      Lows v Telford (1876) 1 App Cas 414
      Macintosh v Lobel (1993) 30 NSWLR 441
      Mackay v Dick (1881) 6 App Cas 251
      Mutual Life and Citizens Assurance Co Ltd v Evatt [1971] AC 793
      Newton v Harland (1840) 1 Man & G 644; 133 ER 490
      NMFM Property Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558
      O’Connor v Isaacs [1956] 2 QB 288
      Ramsay v Margrett [1894] 2 QB 18
      R v Doucette [1960] 25 DLR (2d) 380
      R v Mitton (1827) 3 C&P 30; 172 ER 309
      Scott v Davis (2000) 204 CLR 333
      Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
      Stoneman v Lyons (1975) 133 CLR 550
      Swan v Rawsthorne (1908) 5 CLR 765
      Torette House Pty Ltd v Berkman (1939) 39 SR (NSW) 156
      Wickham v Rice (1887) 4 WN (NSW) 9
      Ziade v NSW Ministerial Insurance Corp (CA 25 March 1993, unreported)
      Zimmler v Manning (1863) 2 SCR (NSW) 235

      The orders, by majority, are:
      ORDERS
          1. Leave granted to Toyota, Tekitu, Mr Toweel and Petzat to appeal subject to the filing of notices of appeal within 14 days;
          2. Leave to Mrs Dennis to cross-appeal refused with costs;
          3. Appeals by Toyota and Tekitu allowed with costs;
          4. Set aside the judgments in the District Court against Toyota and Tekitu and in lieu thereof order that judgments be entered in their favour with costs;
          5. Appeals by Mr Toweel and Petzat dismissed with costs;
          6. Mrs Dennis to have certificates under the Suitors’ Fund Act 1951 in respect of the costs of the appeals by Toyota and Tekitu.

      **********
                      CA 40807/00
                      CA 40809/00
                      DC 33/99 (Parramatta)

                          MEAGHER JA
                          HANDLEY JA
                          SHELLER JA

Tuesday, 19 November 2002

TOYOTA FINANCE AUSTRALIA LIMITED v DENNIS


and


TEKITU PTY LIMITED v DENNIS

Judgment

1 MEAGHER JA: I agree with Sheller JA.

2 HANDLEY JA:


      GENERAL

      I have had the benefit of reading the judgment of Sheller JA in draft form, and agree with his Honour’s reasons and orders except on damages and the assault issue as it affects Mr Toweel and Petzat Pty Limited [pars 121-144].

3 His Honour has set out the facts and the history of the proceedings and I need not repeat these matters. There are only a few facts which are material to the claim by Mrs Dennis that Mr Toweel assaulted her without lawful justification.

4 On the morning of 7 February 1996 Mr and Mrs Dennis were in the Toyota station wagon which Mr Dennis held on lease from Toyota Finance Australia Ltd (Toyota). The vehicle was in the Coles car park at Richmond. Mrs Dennis was in the driver’s seat and her husband in the front passenger seat.

5 As Sheller JA records [par 110], it was common ground that Mr Dennis, the lessee, was in arrears with his payments under the lease, and Toyota was entitled to repossess the vehicle. On 15 or perhaps 16 January Mr Dennis had promised Toyota that he would pay $700 by 19 January (Toyota White Book tab 12 and tab 13) but payment had not been made. At the same time he had told the company: “There was no way he would allow the vehicle to be repossessed” (tab 12). On 7 February the arrears totalled $1,743.52 (tab 12), $698.92 having accrued due that day. A notice of intention to repossess had expired on 31 January.

6 Mr Toweel approached the driver’s side of the wagon “with a white piece of paper in his hand” (T 3 2/8/00) and told Mrs Dennis, according to her evidence (T3, 16, 2/8/00), that he was acting on behalf of Toyota Finance and was there to collect the vehicle. He said: “Would you step out of the vehicle?”. Mr Dennis said: “Shut the door and wind the window up” (T3). Mrs Dennis, who knew that arrears of lease payments were owing, said she would not get out and shut the door. The driver’s window was open and Mr Toweel reached inside to remove the keys and, according to Mrs Dennis, grabbed her right arm to get it away from the keys. Mrs Dennis did not ask to see proof of Mr Toweel’s authority. It was the white piece of paper she had seen (T 18 3/8/00).

7 Mrs Dennis then said, according to her evidence: “Let go you’re not getting the car”. While Mr Toweel was trying to get the keys Mrs Dennis was scratching him (T 19 2/8/00) with her free hand. Mr Dennis got out of the passenger side of the car and came around and pushed Mr Toweel and told him to let go of his wife. Mr Toweel did so and she wound up the window (T4). Later events are not relevant.

8 The trial Judge found that the act of pulling on the plaintiff ’s arm was an assault and she was in lawful control of the vehicle although not the hirer. He was not satisfied that the actions of Mr Toweel were “justified by the terms of the requirement that the vehicle be repossessed under the Finance Contract”.

9 He referred to Devoe v Long & Long [1951] 1 DLR 203, which was cited by counsel for Toyota, but seems only to have considered it on the question of vicarious liability.

10 I have been persuaded that the actions of Mr Toweel were justified, following his demand and Mrs Dennis’s refusal, both by the right of recaption of chattels conferred on Toyota by the general law, and by its contractual right under cl 8(b) of the lease to terminate the lessee’s right to possess the vehicle and retake possession.


      THE RIGHT OF RECAPTION UNDER THE GENERAL LAW

11 The decision of the Court of Common Pleas in Blades v Higgs (1861) 10 CB NS 713 [142 ER 634] (Blades v Higgs), relied upon by the appellants, establishes that the right of recaption extends to any case where the owner has an immediate right to possession of the goods and its exercise does not involve a trespass on private land. My brethren have decided that Blades v Higgs should not be followed. I respectfully dissent. In my opinion the case was correctly decided, and is sound in principle.

12 The text writers are lined up on both sides of this issue. Clerk & Lindsell on Torts 18th Ed (2000) at p 1674 and Fleming 9th ed (1998) at pp 100-1 favour a right of recaption restricted to cases where possession of the chattel was obtained wrongfully. The contrary view is supported by Salmond & Heuston 21st Ed (1996) at pp 573-4, Trindade & Cane 3rd Ed (1999) p 130, Balkin & Davis 2nd Ed (1996) pp 158-9 and Turner “Hire Purchase and Repossession” (1973) 7 Syd LR 1, 15-17. It is also supported by Pollock & Wright “Possession in the Common Law” and by Branston (1912) 28 LQR 262.

13 The Law Reform Committee (Eng) in its 18th report “Conversion and Detinue” (1971 Cmnd 4774) par 117, cited by Sheller JA [par 123], accepted that where the chattel was taken by a trespass “there is clear authority that the owner is entitled to use such force as is reasonably necessary to wrest control of the chattel from the trespasser …”, but added “It is doubtful … whether the owner is entitled to wound or inflict serious injury in order to regain his property”. As will appear he is not so entitled.

14 The Committee continued (para 118):

          “There is less agreement as to the extent to which force may be used to recover a chattel from a person other than a trespasser . In Blades v Higgs … Erle CJ stated that there was in this context no distinction between a trespassory taking and one that did not involve a trespass, and the text book writers are agreed that the use of force may be justified, not only against a trespassory taker but even against a third party who as an innocent purchaser has acquired the chattel by an act of conversion from someone without title”. (emphasis supplied)

15 The Committee does not suggest that Blades v Higgs was wrongly decided, but they were not correct in stating that the text book writers were agreed. They were not likely to have consulted Fleming, but they were aware of Clerk & Lindsell, which they cite in a footnote.

16 Dyer v Munday [1895] 1 QB 742 CA cited by the Committee in a footnote to para 118 is not in point because the defendants had forcibly entered the plaintiff ’s land to repossess a hired bed although the chattel owner had no right of entry.

17 The Committee said in para 121 that the law was “far from clear as to the circumstances in which force may be used” and “should be clarified”. They examined the policy issues in paras 121-4 and concluded in para 125 that with exceptions in hire purchase and conditional sale cases, which are not relevant in this case, “in all other cases the rule should be that neither the use of force nor entry upon another’s premises should be permitted unless the person seeking to recover the chattel has acted reasonably. In this connection it would be very relevant that he had … taken steps reasonably open to him to determine a bailment …”. The references to bailments make it clear that they were not recommending that the right of recaption be limited to cases where there had been a trespassory taking, but they were endorsing the wider principle in Blades v Higgs.

18 In para 126 they dealt with the degree of force which could be justified:

          “… we do not contemplate that, wherever the use of some degree of force would be reasonable, it would be lawful to use unlimited force, irrespective of the circumstances. In other situations in which the common law permits a man to use force to defend his rights … the degree of force that may be lawfully used depends upon what is reasonable in all the circumstances … While we would not suggest that recovery of a man’s goods is on a par with the defence of his life, the same principle appears to us to be equally applicable when one is considering the recaption of chattels and we think that the rule should be that, where force may be used to recover a chattel, it should be such force as is reasonable in all the circumstances. It would not be either practicable or desirable to attempt to set out an exhaustive list of the relevant circumstances … we are confident that the courts would not have any difficulty in deciding, in the circumstances of each case, whether the amount of force actually used went beyond what was reasonable”.

19 Blades v Higgs was decided on a demurrer to a plea. The plaintiff ’s declaration charged the defendants with assault and the forcible taking of some dead rabbits. The defendants pleaded that at the time of the assault the plaintiff was in possession of rabbits belonging to their employer, that they asked the plaintiff to deliver up the rabbits but he refused, whereupon they gently laid their hands upon him and took the rabbits using no more force than necessary. The plaintiff ’s demurrer asserted that this plea did not answer the cause of action pleaded in the declaration. The Court of Common Pleas sustained the plea. Erle CJ, who delivered the judgment of the Court, said (1861) 10 CB NS 713 [142 ER 634] at 720-1 [636-7]:

          “[The plaintiff] contends that the defendants are not justified in using necessary force, on account of the danger to the public peace: but he adduces no authority to support his contention. The defendants likewise have failed to adduce any case where the justification was supported without an allegation to explain how the plaintiff took the property of the defendant and became the holder thereof. But the principles of law are in our judgment decisive to show that the plea is good, although that allegation is not made.
          If the defendants had actual possession of the chattels, and the plaintiff took them … against their will, it is not disputed that the defendants might justify using the force sufficient to defend their right and re-take the chattels; and we think there is no substantial distinction between that case and the present; for if the defendants were the owners of the chattels, and entitled to the possession of them, and the plaintiff wrongfully detained them … after request, the defendants in law would have the possession , and the plaintiff ’s wrongful detention against the request of the defendants would be the same violation of the right of property as the taking of the chattels out of the actual possession of the owner.
          It has been decided that the owner of land entitled to the possession may enter thereon and use force sufficient to remove a wrong-doer therefrom. In respect of land, as well as chattels, the wrong-doers have argued that they ought to be allowed to keep what they are wrongfully holding, and that the owner cannot use force to defend his property, but must bring his action, lest the peace should be endangered if force was justified see Newton v Harland … But in respect of land, that argument has been overruled in Harvey v Brydges … In our opinion all that is so said of the right of property in land, applies in principle to a right of property in a chattel, and supports the present justification. If the owner was compellable by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the injury instead of redressing it”. (emphasis supplied)

20 The case went to trial on the issues of fact. The subsequent proceedings in the Court of Common Pleas, the Court of Exchequer Chamber, and the House of Lords are reported in (1862) 12 CB NS 501 [142 ER 1238], (1863) 13 CB NS 843 [143 ER 333] and (1865) 11 HLC 621 [11 ER 1474], but the only issue was the right of a land owner to the ownership of wild game killed on his property without his authority.

21 It has been suggested that the statements of Erle CJ were unnecessary for the decision because the plaintiff obtained the rabbits from a poacher whose possession was wrongful at the outset. However those facts were not pleaded in the declaration or the plea, and this very point was made by Erle CJ when he said (720) [637]:

          “The defendants … have failed to adduce any case where the justification was supported without an allegation to explain how the plaintiff took the property of the defendant and became the holder thereof. But the principles of law are in our judgment decisive to show that the plea is good, although that allegation is not made”.

22 The facts relating to the acquisition of the rabbits which only emerged at the trial were irrelevant to the question of law decided in Blades v Higgs. This was whether proof of the facts alleged in the plea, without any additional facts, would, as a matter of law, answer the cause of action pleaded in the declaration. See Bullen & Leake “Precedents of Pleadings” 3rd Ed (1868) pp 437, 820 and Mutual Life and Citizens Assurance Co Ltd v Evatt [1971] AC 793, 801.

23 Blades v Higgs was treated at the time as settling the question. The plea is set out in the Third Edition of Bullen & Leake 1868 at pp 793-4 which cites the decision and Chambers v Miller (para 25). As Diplock J said in O’Connor v Isaacs [1956] 2 QB 288, 308:

          “When one is considering the common law position it is always a good rule to fly first to the Third Edition of Bullen & Leake on Precedents of Pleadings”.

24 It was also cited with approval in Smith’s Leading Cases 9th Ed 1887 at pp 151-2, and in Pollock & Wright “Possession in the Common Law” 1888 (see paras 45-7).

25 Blades v Higgs is supported by R v Mitton (1827) 3 C & P 30, 31 [172 ER 309, 310] which was cited by counsel. Excise officers handed their warrant to the defendant and when he refused to return it, they used force to get it back. Lord Tenterden CJ directed the jury:

          “… the defendant had no right to keep the warrant; and that being so, the officers had a right to take it from him, and even to coerce his person to obtain the possession of it, provided that, in so doing, they use no more violence than was necessary”.

26 In Chambers v Miller (1862) 13 CB NS 125 [143 ER 50] a bank teller who had cashed a customer’s cheque for a third party in ignorance of the state of the customer’s account, discovered his mistake, and immediately demanded the money back. When this was refused he recovered it by force. It was common ground that the assault would have been justified if the property was in the bank. See at 137 [54].

27 Blades v Higgs has twice been followed by the Full Court of our Supreme Court. In Zimmler v Manning (1863) 2 SCR 235, 240 Stephen CJ, delivering the judgment of the Court, said:

          “So, in Blades v Higgs, the owner of a chattel in the manual possession of another may, after demand and refusal, take it from the latter by force. For, in such cases, as explained in the judgment of Erle CJ, the legal possession of the chattel demanded is in its rightful owner; who, therefore, in effect, uses the force in defence of that possession ”. (emphasis supplied)

28 Stephen CJ is not to be taken as endorsing the use of any more force than was reasonably necessary and proportionate to the wrong addressed by the party with the right of possession.

29 In Abbott v New South Wales Monte de Piete Company (1904) 4 SR (NSW) 336 (Abbott), the grantor of a bill of sale sued the holder for trespass to land and the seizure and conversion of the subject goods. The holder justified under the bill of sale which gave it leave, on default by the grantor, to enter the latter’s premises and take possession of the goods. Darley CJ, delivering the judgment of the Court, said at 339-40:

          “… it appears to me that the defendants were justified in entering and seizing their goods, notwithstanding that they may have used ‘force and violence and a strong hand’. The case of Blades v Higgs … seems to me to set this matter completely at rest. There it was held that the owner of goods that are wrongfully in the possession of another may justify an assault or a breach of the peace in order to repossess himself of them … Here the defendants have the leave and licence of the plaintiff to enter and take their goods, using no more violence than is necessary. If more violence than was necessary has been used the plaintiff must new assign for it”.

30 New assignment is explained in Bullen & Leake at 653-4. Because of the generality permitted in declarations a plea could treat the cause of action relied on as narrower than the plaintiff intended. The proper course in that situation was for the plaintiff to new assign or restate his cause of action.

31 In Wickham v Rice (1887) 4 W.N. (NSW) 9, a case of forcible entry to recover possession of land, Darley CJ referred during argument to Harvey v Brydges and Blades v Higgs, and said in his judgment (10):

          “It is clear from the case of Harvey v Brydges … that a man has a right to enter upon his own land and to use force necessary to thrust out any person in wrongful possession. That case overruled, on this point, Newton v Harland … and was followed in Blades v Higgs”.

32 These decisions, which have stood for a very long time, have never been overruled or previously criticised.

33 Blades v Higgs was followed in New Zealand in De Lambert v Ongley [1924] NZLR 430, where Sim J noted some criticisms, but preferred the views of Sir John Salmond who supported the decision. Sheller JA states [par 132] that it is not clear that this case has any application where the defendant sought to recover a chattel which came lawfully into the plaintiff ’s possession. However that was the situation in that case because the defendant was attempting to recover a receipt he had given the plaintiff who then refused to hand over the relevant cheque.

34 Devoe v Long [1951] 1 DLR 203, which Sheller JA accepts [par 137] is not a persuasive authority, was relied upon by counsel for the respondent. It was a decision of the Appeal Division of the Supreme Court of New Brunswick comprising Richards CJ, Harrison and Hughes JJ. It was correctly decided on its facts, because the defendants had no right to forcibly enter the plaintiff ’s house to recover their chattel. Blades v Higgs does not support such a right and there was no occasion for the Court to consider it.

35 Harrison J, who was the only Judge to refer to Blades v Higgs, said (217) that the decision was “cited as an authority to justify the defendant” and that “the language of the … Court of Common Pleas is broad enough to cover the case” without apparently realising that the decision did not cover the case or justify the actions of the defendants. He said mistakenly (218), that the plaintiff in Blades v Higgs was a poacher who killed the rabbits on the land of the defendants’ employer, but he was a licensed dealer in game who purchased them from the poacher. See (1862) 12 CB NS at 502-3 [142 ER at 1239].

36 Harrison J distinguished R v Mitton on the ground that “this was a case of original wrongful possession by the defendant. It was also a fresh pursuit” (218) but was again mistaken. The excise officers handed their warrant to the defendant at his request, and asked him to return it (par 24). There was no fresh pursuit.

37 When he came to deal with the defendants’ trespass to the plaintiff ’s land, Harrison J said (219): “the reasons given by the Court of Common Pleas in Blades v Higgs … go far beyond what was necessary for the decision of that case” making it clear that he did not understand the case or the principles of common law pleading. Erle CJ said expressly that the validity of the plea did not depend on the circumstances in which the rabbits came to be in the plaintiff ’s possession (see para 18).

38 Hughes J held that the defendants’ trespass on the plaintiff ’s land was not justified.

39 Sheller JA refers to the citation by Hughes J (225) from the 18th Edition of Blackstone’s Commentaries that “the natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society”, but it is now settled that there are a number of situations, apart from that covered by Blades v Higgs, where the use of reasonable force is justified in defending or recovering possession of land or chattels.

40 All Richards CJ said was “I concur” (217), and since the other judgments conflict this presumably means that he merely agreed with the orders.

41 Thus only one Judge in Devoe v Long considered Blades v Higgs, his remarks were dicta, and his reasoning seriously flawed. Devoe v Long was mentioned by this Court in passing in Fitzgerald v Kellion Estates Pty Ltd (1977) 2 BPR 9181 at 9183. The case concerned the rights of an owner of horses to recover damages from a landowner who refused to allow him to enter and round them up. Blades v Higgs was not referred to, but at 9183 Hutley JA, who wrote the principal judgment, cited but distinguished the following statement from Salmond on Torts 16th Ed at 625:

          “Any person entitled to possession of a chattel may retake the chattel either peaceably or by the use of reasonable force from any person who has wrongfully taken or detained it from him ”. (emphasis supplied)
      Blades v Higgs was cited on the same page of Salmond in the discussion that followed.

42 Clerk & Lindsell on Torts (18th Ed 2000) at p 164 cites Devoe v Long as authority for the proposition that the right of recaption only exists where the possession against the true owner was wrongful in its inception. Blades v Higgs is referred to, but not the New South Wales and New Zealand decisions which have followed it. Fleming (9th Ed 1998) pp 100-1 cites Devoe v Long as authority for “the better opinion”, and claims, incorrectly, that the contrary decision in De Lambert v Ongley is not supported by authority (see para 32). He does not cite the New South Wales’ decisions which have followed Blades v Higgs, and he repeats the mistakes (101) of Harrison J in Devoe v Long that Blades v Higgs “went beyond the facts of the case whence it originated” (see paras 18, 19), and that the statements of Erle CJ were dicta. As Sheller JA records [par 135], he states that force is not normally justified until there had been a demand to yield up possession peaceably, but there were such demands in Blades v Higgs and here.

43 Thus the limited textbook authority which rejects Blades v Higgs is itself flawed and is based substantially on the erroneous dicta of one Judge in Devoe v Long.

44 Branston “Forcible Recaption of Chattels” (1912) 28 LQR 262 cited Blades v Higgs with apparent approval (267, 271, 272-3, 275) although he noted the comment by Sir Frederick Pollock that Blades v Higgs was contrary to the common law of the 13th century (273), not, one would think, a particularly cogent criticism. The author reviewed the right of entry to recover chattels (273) and stated that there was no such right where possession had been obtained lawfully (274). Some commentators have read this as a statement that Blades v Higgs should be limited in the same way but the context and the rest of the article make it clear that the author was referring to the right of entry on the land of another to recover chattels. He cited Coke on Littleton (1628) and Brooke’s Abridgement (1576) as the English authority for this proposition but these dealt with rights of entry.

45 In his concluding paragraph the author stated (275):

          “There remains the necessity of reconciling, if possible, the decisions of the 19th century [footnote “R v Mitton and more especially Blades v Higgs”] with the common law of the 13th … When recaption finally made its appearance in the course of the 19th century, it did so released from all the restrictions of former times”.

46 Although, as Branston noted (273), Sir Frederick Pollock commented in his book on Torts that Blades v Higgs was contrary to 13th century authority, in Pollock & Wright “Possession in the Common Law” 1888 he referred to the decision without criticism. He wrote (81) citing Blades v Higgs:

          “There does not appear to be any rule of law, statutory or otherwise, to prevent the true owner of goods from using whatever amount of force is reasonably necessary for their recapture, even as against a third person who has acquired them innocently with colour of title”.

47 He wrote (115) again citing Blades v Higgs:

          “… the use of force could be justified only after demand of the goods and refusal to deliver them”.

48 This is the work which Meagher JA said in his foreword to the 1990 reprint contained “magisterial analysis”, and was “pure scholarship, it has unqualified excellence”.

49 Sheller JA refers [par 126] to the views of Professor Palmer in “Title to Goods and Occupation of Land: A Conflict of Interests” in the 1980 Anglo-American Law Review 279, 298. The author cited Fleming, Branston (1912) 28 LQR 262 and Lee v Atkinson (1609) Yelverton 172 [80 ER 114] for the view that Blades v Higgs should be confined to cases where possession of the chattels was obtained wrongfully in the first instance. The author misread Branston who accepted Blades v Higgs (pars 43-4), the passage in Fleming is flawed (par 41), and Lee v Atkinson is not relevant and was not referred to by Branston, or Pollock & Wright. The defendant failed in that case because he was not entitled to immediate possession of the horse, and the Court did not consider the right of recaption. The report states (172, 115):

          “… and it was adjudg’d for the plaintiff, for the battery is confessed, and to arise on ill usage from the defendants, for by their own bar it appears that the plaintiff had hired the gelding for two days, and that they within the two days disturbed him in the possession of the gelding, and thrust him off his back, which is not lawful, for the plaintiff had a good special property for the two days against all the world; and although the defendants pretend that the plaintiff misbehaved himself in riding to another place than was intended: yet that is to be punished by an action on the case, but not to seize the gelding”.

50 Thus although, as Sheller JA points out [para 126], this decision was not cited by counsel in Blades v Higgs there was no occasion for them to do so.

51 Hemmings v Stoke Poges Golf Club [1920] 1 KB 720 (Hemmings) is important because the Court of Appeal held that a land owner entitled to possession was not liable for the forcible dispossession of the occupiers and the Judges considered the degree of force which was justified in such a case. The Court overruled Newton v Harland (1840) 1 Man & G 644 [133 ER 490] and approved Harvey v Brydges (1845) 14 M & W 442 [153 ER 546] which had been applied by Erle CJ in Blades v Higgs. Hemmings was applied by this Court in Housing Commission of NSW v Allen (1967) 69 SR (NSW) 190 and MacIntosh v Lobel (1993) 30 NSWLR 441, 461-4.

52 Bankes LJ referred to Blades v Higgs with approval at 736 and at 737 said:

          “Assuming … that the entry by the defendants was a forcible entry, the right to possession was in the defendants, and the acts which are alleged as giving the plaintiffs a right of action were done in defence of their right of possession: Blades v Higgs; and of the possession which they acquired by the alleged forcible entry . I have no fear that the present decision will encourage lawlessness as was suggested for the respondent. A person who makes a forcible entry on land … exposes himself … to the civil liability to pay damages in the event of more force being used than was necessary to remove the occupant … . If the view of the law expressed in Newton v Harland is correct it must follow that the law confers upon the lawless trespasser a right of occupancy the length of which is determined only by the law’s delay. For the reasons I have stated I do not believe that this is a true view of the law”. (emphasis supplied)

53 Scrutton LJ referred to Blades v Higgs with approval at 739, and added at 747:

          “It will still remain the law that a person who replies to a claim for trespass and assault that he ejected a trespasser on his property with no more force than was necessary may be successfully met by the reply that he used more force than was necessary if the jury can be induced to find it. The risk of paying damages and costs on this finding … may well deter people from exercising this remedy … But I see no reason to add to the existing privileges of trespassers on property which does not belong to them by allowing them to recover damages against the true owner entitled to possession who uses a reasonable amount of force to turn them out”.

54 Toyota had an immediate right to possession and when Mr Toweel, with its authority, requested delivery up, the result, as Erle CJ held in Blades v Higgs, was that Toyota “in law would have the possession” (passages emphasised in paras 18, 26 and 51), so that, as Pollock & Wright accepted (par 46): “The use of force could be justified”.


      This is supported by a related principle. In Jones v Chapman (1849) 2 Ex 803 [154 ER 717] at 821, 724 Maule J said:
          “… as soon as a person is entitled to possession, and enters in the assertion of that possession, or, which is exactly the same thing, any other person enters by command of that lawful owner, so entitled to possession, the law immediately vests the actual possession in the person who has so entered . If there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is, which of those two is in actual possession, I answer, the person who has the title is in actual possession, and the other person is a trespasser … The question as to which of the two really is in possession, is determined by the fact of the possession following the title, – that is, by the law, which makes it follow the title”. (emphasis supplied)

55 In Lows v Telford (1876) 1 App Cas 414, 426 Lord Selborne said that this passage accurately stated the law (see also Swan v Rawsthorne (1908) 5 CLR 765, 787 and Clement v Jones (1909) 8 CLR 133, 144-5 per Isaacs J) and continued:

          “And in Harvey v Brydges it is pointed out that so far as relates to the fact of possession and its legal consequences it makes no difference whether it has been taken by the legal owner forcibly or not”.
      Jones v Chapman and Lows v Telford were followed by Sugerman JA, who wrote the principal judgment for this Court in Housing Commission of NSW v Allen at 193.

56 In Ramsay v Margrett [1894] 2 QB 18 at 27 Davey LJ applied this principle to chattels:

          “How does the question of possession stand upon principle? … A passage has been read from a very learned work on possession (Pollock & Wright on Possession) in which the rule is thus stated (at p 24): ‘Where possession in fact is undetermined, possession in law follows the right to possess’ and the following dictum of Maule J in Jones v Chapman is cited [his Lordship quoted the passage cited above and continued] Mr Lawrence says that rule applies only to real estate. I can see no reason why the same principle should not be applied to personal chattels, the situation of which is consistent with there being in the possession of either of two persons”.

57 Sheller JA states [par 138] that in Devoe v Long Harrison J thought (217) that the language of Erle CJ in Blades v Higgs “was broad enough to cover the case. If so it covers the threat of extreme violence”. Although Harrison J did say this the defendants’ plea in Blades v Higgs alleged (par 18) that they asked the plaintiff to deliver up the rabbits but he refused “whereupon they gently laid their hands upon him and took the rabbits using no more force than necessary”.

58 The language of Erle CJ in relation to that plea, where the plaintiff had not new assigned, could not cover the use or threat of extreme violence. Apart altogether from the fact that the defendants in Devoe v Long had no right of entry, the language of Erle CJ was not broad enough to cover the actual and threatened violence used by those defendants. The chattel in question was a letter which the plaintiff had promised to return in a few days and the violence used to recover it could not be said on any view to be reasonable, or reasonable and proportionate to the wrong suffered by the defendants in being deprived of possession of the letter.

59 Sheller JA states [para 141] that Blades v Higgs was not based on precedent, but counsel referred to R v Mitton (par 24) which supported the decision, and Erle CJ relied on the analogy of Harvey v Brydges which dealt with land. Moreover there is no lack of subsequent authority, judicial and non judicial, which supports the decision and the reasoning.


      THE ISSUE OF REASONABLE FORCE

60 I cannot, with respect, agree with Sheller JA [par 141] that Blades v Higgs encourages “violent redress”, or that “forcible redress” may not be required in cases such as this, or that Erle CJ did not give satisfactory reasons for allowing the reasonable use of force. Erle CJ concluded his judgment by saying (par 18):

          “If the owner was compellable by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the injury instead of redressing it”.

61 Similar justifications were given by Bankes LJ and Scrutton LJ in Hemmings in the passages cited (pars 51, 52). The policy reasons for allowing the use of reasonable force in this context were considered by the Law Reform Committee in para 121 of its 1971 report:

          “… the memoranda submitted to us show a wide difference of view as to what the law should be and have involved consideration of the grounds upon which the right of resort to self-help may be said to be based. It may, we think, be said to be justified on the following grounds: first, it avoids the trouble and expense of litigation. Secondly, it avoids the delay normally attendant on legal proceedings, and thus minimises the risk of damage to the owner which may occur as the result of the depreciation, loss or destruction of the chattel … Thirdly it enables the owner to recover the chattel itself, which, if the opportunity be lost, he may be unable to trace, and as to which the court may in its discretion refuse an order for specific delivery. Fourthly, it confers upon the owner a more certain remedy than an action for damages, where a judgment in his favour may be wholly or partially unsatisfied”.

62 They then reviewed the policy reasons why resort to self-help should be discouraged and concluded, as already mentioned (par 16-7), that the use of reasonable force, in circumstances such as the present, should be allowed where the person seeking to recover the chattel has acted reasonably.

63 Mr Toweel told Mrs Dennis that he was there to repossess the vehicle, and asked her to step out of the vehicle. After she refused (para 5) he reached for the keys and so took possession of the vehicle for Toyota in accordance with the principles referred to above. Thus when Mrs Dennis acted to prevent Mr Toweel obtaining the keys she was a trespasser who was attempting by force to eject the agent of the lawful owner in possession. This is supported by a decision in 1334, cited by Scrutton LJ in Hemmings [1920] 1 KB 720, 742, who said:

          “… the law [is] as stated by Maule J in Jones v Chapman that if a person has a right to possess and enters peaceably, his actual possession plus his right outweighs the actual possession of a person on whom he enters, who becomes a trespasser, and can be expelled … Indeed in one old case cited in Challis on Real Property Third Edition 1911 page 236, a person with a right to enter made entry and got seisin in deed by getting half through a window and being thrown out, and no judge took the view that he lost his seisin in deed because [of] his struggles to avoid being thrown out …”.

64 The situations in which self-help may be justified are dealt with in standard texts. Salmond & Heuston 21st Edition 1996 deals with the topics at 128-130, and 572-4. The author states at 128:

          “Force is not reasonable if it is either (i) unnecessary – i.e. greater than is requisite for the purpose – or (ii) disproportionate to the evil to be prevented. In order that it may be deemed reasonable … it is not enough that the force was no more than was necessary for the purpose in hand. For even though not more than necessary it may be unreasonably disproportionate”.

65 The author deals (129) with the use of reasonable force to prevent the entry of a trespasser or to eject him after entry and added “presumably any person entitled to the possession of a chattel may also defend his possession by the use of reasonable force”, a proposition directly supported by Blades v Higgs (par 18). At 572-3 the author deals with re-entry on land and cites Hemmings. He adds: “It is uncertain how far these rules are still law”, but this refers to the possible effect of United Kingdom statutes passed in 1977 (see 572). The author deals with the recaption of chattels (573-4) and states:

          “As to the amount of force which is permissible, and as to the necessity of a precedent request, the defence and recaption of chattels is presumably governed by the same rules as the ejectment of trespassers upon land”.
      This proposition is also directly supported by Blades v Higgs.

66 Fleming 9th Edition 1998 refers to these topics at 94-6 and 98-102. He dealt with the question of reasonable force as follows (95):

          “The amount of force that one may use to exclude or expel a trespasser varies with the nature of the intrusion and the resistance encountered. Ordinarily no force at all is justified until he has first been requested to leave and given a reasonable opportunity to comply … If the intrusion threatens no harm to the physical condition of the property or the security of the possessor, the latter is privileged to use only the mildest of force – such as was expressed in the old form of pleading ‘mollitur manus imposuit’ [as pleaded in Blades v Higgs]. This clearly excludes any force calculated to cause grievous bodily harm … But the requirement of ‘gentleness’ need not be taken too literally: the occupier may lead, carry, pull or push but must not use deliberately damaging force ”. (emphasis supplied)

67 He dealt with the use of reasonable force in the present context as follows (100-1):

          “There is no doubt about the privilege of retaking a chattel from one who has appropriated it by trespass, including the use of whatever force is reasonably necessary to wrest control from him … No force is justified until there has first been a demand to yield up possession peaceably … Moreover the owner may not use more violence than is reasonably necessary for recapture … On the other hand unlawful resistance to a reasonable mode of recapture may be countered by stronger force” . (emphasis supplied)
      THE EFFECT OF STATUTES

68 The recaption of chattels has received the attention of State Parliaments. As Sheller JA records [par 144] the Criminal Codes of Tasmania, Queensland and Western Australia authorise the use of necessary force for the recaption of chattels in situations covered by Blades v Higgs provided the adverse possessor does not hold under a claim of right and the party entitled does not inflict bodily harm. These provisions codified the common law, as declared in Blades v Higgs, subject to a qualification where the possessor has a claim of right. Those States had to include provisions dealing with the right of recaption because they were codifying their criminal law. The absence of similar legislation in the other States, including New South Wales, is not significant because their Parliaments, which did not codify their criminal law, had no occasion to address the issue at that time.

69 At the present time the common law and statute law in Australia on this topic is broadly the same. The criminal codes referred to have been in force for a very long time and we were not referred to any decision from a code State which suggests that these provisions have been abused or led to violence. The decisions of our Full Court have also stood for a very long time without leading to such undesirable consequences.

70 However in more recent years this topic has received the attention of Parliament. The Hire Purchase Act 1960 NSW s 36(1)(g) avoided any provision in a hire purchase agreement whereby “the owner … or any person acting on his behalf is authorised to enter upon any premises for the purpose of taking possession of goods comprised in the hire purchase agreement or is relieved from liability for any such entry”. Parliament did not think it necessary to otherwise alter the common law rights of an owner to repossess a chattel, including the right upheld in Blades v Higgs and the Full Court decisions which followed it.

71 The right to repossess chattels covered by consumer transactions is now governed by the Consumer Credit (NSW) Act 1995 and the Consumer Credit Code. See as to Chattel Mortgages Division 2 of Part 5 of the Code (ss 80, 83, 88, 91, 92, 93). Section 91(1) of the Code provides that a credit provider, or an agent of a credit provider, must not enter any part of premises used for residential purposes for the purpose of taking possession of mortgaged goods unless the court has authorised the entry, or the occupier has consented. The rights of a credit provider to enforce the security by court proceedings, repossession or otherwise, is regulated but if the right to repossess the goods becomes exercisable, the only restriction is that imposed by s 91(1). Thus there are no restrictions on the right of entry onto land, except residential premises, or on repossession on land open to the public, such as the Coles car park at Richmond.

72 The Code (s10) converts hire purchase agreements into contracts for the sale of goods by instalments under which the property passes on delivery or on the making of the contract whichever is the later. In such cases the credit provider has no security interest in the goods and no right to repossess them on default (see also Code s129).

73 Part 10 of the Code regulates consumer leases which are defined by s147 as contracts for the hire of goods by a natural person or strata corporation under which the hirer does not have a right or obligation to purchase the goods. Parliament has only regulated such leases where, relevantly for present purposes, “the goods are hired wholly or predominantly for personal, domestic or household purposes” (s148 (1)(b)). Section 150 (2) provides that goods hired under a lease are presumed not to be hired wholly or predominantly for personal domestic or household purposes if the lessee declares, before hiring the goods, that they are hired wholly or predominantly for business purposes.

74 Sections 155 and 156 regulate, in the case of consumer leases but not otherwise, a lessor’s right to repossess the goods and incorporate for this purpose the Code provisions dealing with chattel mortgages.

75 The lease between Toyota and Mr Dennis contains on page 1 a warranty that the goods are to be used by the Lessee for the purposes of his business and he signed it for his “Gourmet Pie Shop”. Thus the lease was not regulated by statute and Toyota’s contractual right to repossess the goods took effect in accordance with its terms.

76 Thus Parliament has modified the common law rights of the lessor of a chattel, but only to a limited extent, and in circumstances which are not relevant in this case. This Court should respect that legislative decision and not change the common law as it has been settled in this State since 1863.


      TOYOTA’S CONTRACTUAL RIGHT OF REPOSSESSION

77 The right of recaption upheld in Blades v Higgs was conferred by the general law. Toyota also had a right to retake possession under cl 8(b) of the lease and the implied licence of the lessee for its exercise. The conduct of Mr Dennis when Mr Toweel attempted to obtain the keys was a breach of contract in accordance with the principle in Mackay v Dick (1881) 6 App Cas 251, 263, cited by Mason J in Secured Income RealEstate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, 607:

          “… where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, … each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect”.

78 The conduct of Mrs Dennis in preventing Mr Toweel from obtaining the keys was a tortious interference with Toyota’s contractual right to repossess the vehicle. See generally Salmond & Heuston above p 351, Trindade & Cane above pp 216-8, Balkin & Davis above pp 608-9.

79 It was the conduct of Mr and Mrs Dennis in deliberately interfering with Mr Toweel’s attempt to exercise Toyota’s right to immediate possession which was wrongful, and not the prior conduct of Mr Toweel in attempting to exercise that right. Mr and Mrs Dennis took the law into their own hands when Mrs Dennis resorted to force to prevent Mr Toweel obtaining the keys.


      THE ASSAULT

80 I do not, with respect, agree with the analysis of “the assault” by Sheller JA [pars 143 and 144]. Mr Toweel did not “seek forcibly to seize the vehicle”. He first asked Mrs Dennis to yield up possession peaceably by stepping out of the car. He then attempted peaceably to obtain possession of the keys. Mrs Dennis described the confrontation in her evidence-in-chief (2/8/00 T 3-4) as follows:

          In view of all this I feel that the tenosynovitis and the carpal tunnel syndrome were both caused by the incident. As I said previously her carpal tunnel syndrome has been effectively alleviated by surgery but she still has this tenosynovitis. As I said previously, since this is still symptomatic some four years after the incident, it is likely to be permanent and remain causing her similar sort of problems to those she is experiencing at present.”

156 Judge Delaney in his judgment quoted from Dr Whitty’s report of 30 June 2000 and said:

          “When she gave her evidence about her condition the plaintiff, I find, spoke of it, in a non-demonstrative way which indicated, I find, the true extent of her problems. I find that she did have the condition referred to and treated by Dr Whitty notwithstanding the evidence of Dr Parker tendered on behalf of the defendant.
          The out of pocket expenses claimed by the plaintiff of $1060.75 including the carpel tunnel treatment I find that that treatment was causatively connected with the injuries suffered by the plaintiff on the day referred to when Mr Toweel sought to repossess the vehicle and assaulted the plaintiff.
          I find that this has caused the plaintiff to have some interference with her everyday life. Dr Whitty said that the plaintiff had slightly stiff fingers, particularly the proximal interfangeal joint of her ring finger, which she had injured. Putting all that aside fortunately for the plaintiff she has made an excellent recovery.
          The incident was only of short duration and although the plaintiff had significant bruising which was referred to in the exhibits, particularly exhibits B and C, she had, because she had made such a good recovery generally, been left with quite a good result, even though she remains symptomatic four years [after] the event.
          In all the circumstances I consider that the plaintiff is entitled to general damages but I do not find that the claim that was made by the plaintiff for exemplary damages is made out, see Lee v Kennedy and Adams v Kennedy , unreported, July 2000 Court of Appeal.
          I assess general damages for the plaintiff as a consequence of the assault in the sum of $28,000. I assess past general damages of that figure at $20,000, and I allow interest on that figure at 2% for 4.5 years, pursuant to the principles in Gojics case, $1800.
          I have decided in this case to take into account the allowance that I have made for general damages, interest and out of pocket expenses that it is appropriate off the total damages payable to the plaintiff by the defendants jointly and severally at $30,000.”

157 With due respect, the case that Mrs Dennis should be compensated for both tenosynovitis and the carpal tunnel syndrome is not compelling. But the parties were content to leave it to the judge to make what he could of the reports tendered; see generally Ziade v NSW Ministerial Insurance Corporation (Court of Appeal, 26 March 1993, unreported) where Kirby P observed:

          “However (as we see in virtually every running list of this kind) cases are increasingly being determined in the way this case had to be determined, namely, by the evaluation of the oral evidence of the plaintiff alone and the attempt by the trial Judge to decide where the truth and justice lay as between the series of conflicting medical reports seen from the perspective of the impression which the plaintiff makes. On the face of things this is an odd way to resolve the differences of conflicting expert opinions. …. [O]n the cases presented, I agree that the Judge was cast very much back upon his impression of the appellant. Unfortunately for the appellant that impression was adverse. The adverse impression became fatal to the appellant’s aspirations. It sustains his Honour’s conclusion.”

158 It was open to the trial Judge to accept Dr Whitty’s opinion. I do not see that this Court can interfere with his conclusion nor with the amount of damages awarded although they are, in the circumstances, generous.


      Conclusion

159 I do not understand any basis upon which it could be successfully argued that Toyota or Tekitu was negligent. Accordingly, the application for leave to cross-appeal against them should be dismissed with costs.

160 Toyota’s appeal should be allowed and the judgment and order in the court below set aside and the plaintiff ordered to pay Toyota’s costs both of the hearing and of this appeal. For like reason I am of opinion that it was not open to the trial Judge to find that Tekitu was vicariously responsible for the assault by Mr Toweel. Mr Toweel was not its employee even assuming, contrary to what appears to be the evidence, that Tekitu was involved at all in the repossession.

161 According to Mr Toweel, he had an interest in and was a director of Petzat. Mr Toweel admitted that he traded in the name of Petzat and conceded Petzat’s vicarious liability for the assault. In my opinion, the appeals by Mr Toweel and Petzat should be dismissed with costs.


      Orders

162 I propose the following orders:

          1. Leave granted to Toyota, Tekitu, Mr Toweel and Petzat to appeal subject to the filing of notices of appeal within 14 days;
          2. Leave to Mrs Dennis to cross-appeal refused with costs;
          3. Appeals by Toyota and Tekitu allowed with costs;
          4. Set aside the judgments in the District Court against Toyota and Tekitu and in lieu thereof order that judgments be entered in their favour with costs;
          5. Appeals by Mr Toweel and Petzat dismissed with costs;
          6. Mrs Dennis to have certificates under the Suitors’ Fund Act 1951 in respect of the costs of the appeals by Toyota and Tekitu.
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Cases Cited

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Statutory Material Cited

7

Hollis v Vabu Pty Ltd [2001] HCA 44
Hollis v Vabu Pty Ltd [2001] HCA 44
Stoneman v Lyons [1975] HCA 59