Turner v Mulley: C J Page Claimant - [1991] TASSC 47

Serial No 19/1991
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Turner v Mulley: C J Page Claimant [1991] TASSC 47; A19/1991

PARTIES:  TURNER
  v
  MULLEY
  PAGE, C J (Claimant)

FILE NO/S:  1005/1989
DELIVERED ON:  10 April 1991
JUDGMENT OF:  Underwood J

Judgment Number: A19/1991
Number of paragraphs: 15

Serial No 19/1991
List "A"
File No 1005/1989

TURNER v MULLEY: C J PAGE CLAIMANT

REASONS FOR JUDGMENT UNDERWOOD J

10 April 1991

In the course of proceedings brought by James George Turner against Keith Mulley an order was made by the learned Chief Justice that Mr Turner pay Mr Mulley's taxed costs of an application made on behalf of the latter to strike out the statement of claim. The costs were taxed in the sum of $1,474.20. As Mr Turner (the judgment debtor) did not pay these costs, a writ of fieri facias was issued to the sheriff.

Pursuant to the writ and the provisions of the Civil Process Act 1939, s1, a quantity of goods on the judgment debtor's property was seized on 8 March 1991. Included amongst them was an 11'6" aluminium dinghy. Cyril John Page (the claimant) of Cygnet, claimed that he was the owner of this dinghy. The judgment creditor did not respond to the notice issued in accordance with the Rules of Court, O69, r15(1) but the judgment debtor did. He took the unusual course of advising the sheriff that he ought to maintain his levy on the dinghy and sell it under the writ. The sheriff now applies for interpleader relief with respect to this dinghy.

When the matter came on for hearing, Mr Hallett appeared for the sheriff. The claimant and the judgment debtor both appeared in person. The deputy sheriff filed an affidavit which was read on the hearing of the summons. I accept its contents and find that the applicant sheriff has no interest in the dinghy other than for charges and costs and does not collude with either the claimant or the judgment debtor. See Rules of Court, O69, r2 and Rogers v Benson and Salter Burburycj 23/70.

With the consent of the parties I forthwith embarked upon a determination of the competing claims. (O69, r8). Both the claimant and the judgment debtor gave sworn evidence. There was no substantial disputed issue of fact and I find as follows.

On 18 August 1983 the claimant bought the dinghy for $1,000.00. As the claimant had another boat he often lent it to his brother, Michael Page. It was a loose arrangement. It was not uncommon for the dinghy to remain in the brother's possession for an extended period of time. It was thus in Mr Michael Page's possession on 10 July 1990. It was tied onto a trailer kept at Mr Michael Page's house, Dulcia Road, Gordon. The judgment debtor was the lessor of this property. He had sublet it to Mr Michael Page as a fortnightly tenant. By 10 July 1990 the tenant was behind in his rent…

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: [1991] TASSC 47
Decision Date: 10 April 1991

CaseChat Overview and Summary

In the case of Turner v Mulley: C J Page Claimant, the Supreme Court of Tasmania was tasked with resolving a dispute over an aluminium dinghy seized under a writ of fieri facias in execution of a judgment debt. The judgment debtor, James George Turner, had failed to pay costs to Keith Mulley, leading to the seizure of Turner's property, including the dinghy claimed by Cyril John Page. Page asserted ownership of the dinghy, which was in Turner's possession when seized. The court had to determine the rightful owner of the dinghy and whether Turner could lawfully retain possession of it.

The primary legal issue was whether Turner, as the judgment debtor, had the right to retain and sell the dinghy, which was seized from his property but claimed by Page. The court examined the statutory framework under the Landlord and Tenant Act 1935, particularly the provisions concerning distress for rent and the sale of distrained goods. The court needed to ascertain whether Turner's possession of the dinghy was lawful and if he could sell it to satisfy the judgment debt, or if Page, as the true owner, could reclaim it.

Underwood J concluded that Page was the rightful owner of the dinghy, which was lawfully in Turner's possession at the time of the seizure. Turner, as the lessor, had the right to distrain for unpaid rent but did not acquire ownership of the goods distrained. Turner's possession of the dinghy was lawful until the arrears were paid or until he exercised his statutory right of sale. Since Page did not serve a statutory declaration under the Landlord and Tenant Act, Turner could retain possession until the debt was settled or he sold the dinghy. The court ordered the sheriff to withdraw from possession of the dinghy and not to sell it, pending resolution of the underlying debt or further action by Page to reclaim the dinghy.

The court's final order was that the sheriff should withdraw from possession of the dinghy and refrain from any action to sell it. The matter would be ultimately resolved by payment of the arrears, exercise of the statutory right of sale, service of a statutory declaration by Page, or any consequential proceedings Page might bring to recover possession or claim damages for illegal distress.

Orders