Irwin v Mules - [2020] NZHC 748

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-000115

[2020] NZHC 748

UNDER The District Court Act 2016

IN THE MATTER OF

An appeal against a decision of Judge Cameron in the District Court at Tauranga dated 11 October 2019

BETWEEN

BRETT RAYMOND IRWIN

Appellant

AND

PHILLIPA JANE MULES

First Respondent

AND

ROSS FITCHES

Second Respondent

Hearing:
4 February 2020

Further Submissions from the Appellant 13 February 2020 Further Submissions from the Respondents 18 February 2020

Appearances:

R Mark for the Appellant

D Hayes for the Respondents

Judgment:

20 April 2020

JUDGMENT OF HINTON J

This judgment was delivered by me on 20 April 2020 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
R Mark, Barrister & Solicitor, Kerikeri Stace Hammond Lawyers, Hamilton
D Hayes, Barrister, Hamilton

IRWIN v MULES [2020] NZHC 748 [20 April 2020]

Introduction

[1] This appeal relates to issues over conversion of a classic car, a 1974 Ford Falcon GT, owned and lovingly restored to a high standard by the appellant, Mr Brett Irwin, between 2009 and 2015.

[2] Mr Irwin alleged that the first respondent, Ms Mules, by the actions of her agent the second respondent, Mr Fitches, had unlawfully converted the vehicle to her use.

[3] In a reserved decision of 20 July 2018, Judge Cameron found Ms Mules was liable to Mr Irwin in conversion. He reserved the question of liability on the part of Mr Fitches and also damages.1

[4] In a further reserved decision of 11 October 2018, the Judge effectively reversed that finding, holding that Mr Irwin had no equity in the vehicle at the time Mr Fitches took it, such that Mr Irwin had suffered no loss, and therefore could not claim in conversion. The Judge entered judgment in favour of Ms Mules and Mr Fitches.2 Mr Irwin now appeals against this second judgment.3

Background

[5] Ms Mules and her ex-husband Mr Mules had previously owned the Ford Falcon. Ownership of the vehicle vested in Ms Mules pursuant to a Family Court order made on 20 June 2003 following the dissolution of her relationship with Mr Mules. Ms Mules’ evidence before Judge Cameron was that Mr Mules hid the vehicle from her, and that she had no knowledge of its whereabouts until 2016, when she instructed Mr Fitches to repossess it.

[6] It is not disputed that in February 2006 Mr Mules had changed the vehicle’s registration plates and then in February 2007 sold it to a Mr King. The vehicle then passed to a Mr Thomas, and then a Mr Bradley, who sold it to Mr Irwin (as a third-

1      Irwin v Mules [2018] NZDC 11829.
2      Irwin v Mules [2019] NZDC 20003.
3      Ms Mules had brought an appeal in respect of the first judgment. As that judgment was overtaken by the second judgment, Ms Mules did not pursue that appeal before me.

party bona fide purchaser for…

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.

Keep reading for free

Create a free CaseChat account to read Irwin v Mules and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZHC 748
Decision Date: 20 April 2020

CaseChat Overview and Summary

Irwin v Mules concerns a dispute over the ownership and conversion of a classic car, a 1974 Ford Falcon GT, owned by Brett Irwin. Irwin alleged that Phillipa Mules, through her agent Ross Fitches, unlawfully converted the vehicle. The case proceeded through the District Court, where Judge Cameron initially found Mules liable for conversion but later reversed that finding, ruling Irwin had no equity in the vehicle when it was taken, and thus no loss. Irwin appealed this decision to the High Court.

The legal issues in this case centred on whether loss is an element of the tort of conversion, the validity of the assignment of Mr Alexander’s causes of action to Irwin, and the liability of Mules and Fitches for conversion and detinue. The appeal focused on whether the District Court Judge correctly found that Irwin had no loss and thus no claim in conversion, and whether the assignment of Alexander’s causes of action to Irwin was valid.

The High Court found that loss is not an element of the tort of conversion, and that at least from the time Irwin retook ownership from Alexander, Mules was liable to him in conversion for deliberately retaining possession of the vehicle. The Court also found that Alexander’s causes of action against Mules and Fitches were properly assignable and were in fact assigned to Irwin. The Court held that Fitches was liable for the repossession of the vehicle, and Mules was liable both for the repossession and for her retention of the vehicle. Mules was also found liable in detinue. The question of damages and the validity of the second security interest was remitted to the District Court for determination.

The Court entered judgment in favour of Irwin against both Mules and Fitches for conversion, and against Mules for detinue. The question of damages was not decided and was remitted to the District Court. Irwin was awarded costs on a 2B basis in the High Court, plus disbursements.

Orders