Williamson v Schutz

[2000] QCA 453

[2000] QCA 453

COURT OF APPEAL

McMURDO P
MACKENZIE J
BYRNE J

Appeal No 3015 of 2000
         3774 of 2000

PETER NOEL WILLIAMSON  Plaintiff

and

ANTHONY JOHN SCHUTZ  First Defendant

and

DREDGECORP INTERNATIONAL PTY LTD         Second Defendant
(ACN 050 408 930)

and

BRAMBLES AUSTRALIA LIMITED      Appellant/Third Defendant
(ACN 000 164 938)

and

NATIONAL AUSTRALIA BANK
LIMITED  Respondent/Fourth Defendant
(ACN 004 044 937)

BRISBANE

..DATE 31/10/2000

JUDGMENT

THE PRESIDENT:  Justice Byrne will deliver his reasons first.

BYRNE J:  The essential facts germane to this appeal may be shortly stated. 

The applicant, "Brambles", was one of several defendants in District Court proceedings commenced by Peter Williamson.  By his pleading Williamson claimed that:  (a) he was the owner, or entitled to possession, of certain chattels;
(b) he agreed with Brambles that Brambles would store those chattels; (c) later, and without Williamson's consent, Brambles delivered the chattels to the first defendant,
Mr Schutz, or to his company, Dredgecorp International Pty Ltd, the second defendant; (d) Brambles thereby breached the terms of the bailment with Williamson; and (e) in the events, Schutz or Dredgecorp International (or both of them) converted the chattels.

Schutz and Dredgecorp defended primarily on the basis that Williamson had no interest in the goods.  Those defendants contended that:  (1) the goods had once belonged to Williamson's company, Dredging and Offshore Drilling Pty Ltd; (2) in March 1995 Dredging and Offshore Drilling Pty Ltd sold the goods to Dredgecorp International pursuant to a written agreement executed by Williamson for Dredging and Offshore Drilling; (3) Brambles had lawfully delivered the chattels to Dredgecorp International which at that time was the party entitled to them against all others. 

Brambles issued third party proceedings against the respondent bank. 

By its third party notice and statement of claim, Brambles claimed "In the event of its being held liable to" Williamson (see para 3, third party statement of claim) "an indemnity in respect of" Williamson's claims against it, including for interest and costs.  Making much the same claim in different words, that notice also sought damages for (1) breach of contract; (2) contravention of section 52 of the Trade Practices Act, and (3) for negligence, with the compensation to be "assessed in a sum equivalent" to the amount of any damages awarded to Williamson. 

Brambles's third party claim was founded on Bank correspondence:  two letters that Brambles received shortly before delivery of the goods to Dredgecorp International.  Brambles claim to have relied on those letters in deciding to give the chattels to Dredgecorp International.  The first letter asserted, accurately enough, that Dredgecorp International had granted a bill of sale to the Bank over its chattels, including, it seems, those Williamson asserted were his.  The second letter authorised Brambles to deliver containers thought to contain the chattels to Dredgecorp International. 

Williamson lost against Schutz, Dredgecorp International and Brambles.  The Judge found that Williamson had no material interest in the chattels, they having been sold by his company to Dredgecorp International.  So Williamson recovered nothing against those three defendants. 

Because Brambles had claimed against the Bank only "in the event of" Brambles's being held liable to Williamson, it followed, as the Judge found, that those third party proceedings, as pleaded, necessarily failed.

Conventionally, the Judge ordered Brambles to pay the Bank's costs of the third party proceedings, and ordered Williamson to pay Brambles's costs, including those costs that Brambles had to pay the Bank. 

Even though the only claim Brambles had made against the Bank by the third party notice was that, if Williamson's claims against Brambles succeeded, Brambles should recover from the Bank compensation calculated as the amount of any such damages, interest and costs as Williamson recovered, nonetheless at the end of the case, Brambles sought to develop a different claim in argument before the judge.  This was, in effect, that Brambles - the loser - should recover from the Bank - the winner in the litigation between them - all the expense that Brambles had incurred in defending Williamson's proceedings, including its costs of prosecuting the third party proceedings against the Bank.  This different case is founded on the notion that, had the Bank not encouraged Brambles to deliver the chattels to Dredgecorp International, Brambles would not have been sued by Williamson. 

Now, this new contention was never pleaded.  Secondly, and more importantly, the factual contention which underlies the new case - that Williamson would not have sued Brambles had Brambles not parted with possession of the chattels to Dredgecorp - is by no means self-evident.  And at the trial, consistently with the case Brambles pleaded against the Bank, there was no investigation of such issues as whether (1) Brambles would have parted with the goods even if the Bank had not sent the correspondence; or (2) Williamson would nonetheless have sued Brambles in tort had Brambles retained the chattels.

Plainly such matters required investigation before the essential factual foundation for the new claim could be adjudicated.  That was not done, consistently with Brambles's pleading against the Bank, which is enough to dispose of the appeals.

There may be another flaw in Brambles's contention that it has suffered loss by acting on (what it contends to be) the Bank's advice to give the goods to Dredgecorp International: Williamson might have sued Brambles unless Brambles had surrendered the chattels to him.   And if Brambles had done that, as Williamson never had a right to their possession, Brambles would have been exposed to a liability to compensate Dredgecorp International in tort:  for Dredgecorp was entitled to possession of the chattels against all others except, possibly, the Bank; and the Bank, as grantee of the bill of sale, was content that Dredgecorp International, the grantor, should have them.  So, if Brambles had given the goods to Williamson, which may have been the only way in which Brambles could have been sure of not being sued by Williamson, Brambles would then have been exposed to the prospect of a liability in damages to Dredgecorp International.  But this is by the way.  For  reasons already given, I would dismiss both appeals.

THE PRESIDENT:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  The order is both appeals are dismissed with costs to be assessed.

MR BOWDEN:  Your Honours, can I say that there was evidence that - this was at page 802 lines one to 25 - that had they not received the letter of 17 October Mr Fisher did say it would have stayed, the containers would have stayed there until we had received someone telling us they are declaring ownership.

BYRNE J:  Well, it would have been an interesting item of evidence had the issue ever been litigated.

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