Gamble v Wilson [2011] NSWDC 240

Gamble v Wilson [2011] NSWDC 240

Defendants lawfully retook possession under the lease due to outstanding rent and notified outgoings, but their subsequent act of locking out the plaintiffs and denying access to goods, prior to any third party claims, amounted to conversion. Damages for conversion were assessed not at full retail value but as the diminution in value between the time of conversion and return, based on compensatory principles and on evidence of actual realisation at auction, with allowance for failure to mitigate. On the cross-claim, defendants were entitled to outstanding rent with GST, interest, specified notified outgoings, and repainting costs, but not for certain other claimed damages which were not...

Parties
First Plaintiff: Godfrey Gamble; Second Plaintiff: Karen Gamble; First Defendant: Robert Leo Wilson; Second Defendant: Claude Stanley Wilson
Jurisdiction
Australia
Judgment Date
03 June 2011
Procedural Posture
Civil / Final Judgment After Trial
Outcome
Judgment for the plaintiffs against the defendants on the claim; judgment for the defendants/cross-claimants against the plaintiffs/cross-defendants on the cross-claim; net amount payable by the plaintiffs/cross-defendants to the defendants/cross-claimants.
Legal Topics
Landlord and Tenant, Lease Termination, Conversion, Damages Assessment, Cross Claim, Mitigation of Loss
Contract Torts Landlord and Tenant Lease Termination Conversion Damages Assessment Cross Claim Mitigation of Loss

Case Brief

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Parties

Godfrey Gamble

First Plaintiff

Karen Gamble

Second Plaintiff

Robert Leo Wilson

First Defendant

Claude Stanley Wilson

Second Defendant

Procedural Posture

Civil / Final Judgment After Trial

Legal Issues

  1. 1 Whether the defendants lawfully terminated the lease and had a right of re-entry
  2. 2 Whether the lockout and withholding of goods amounted to conversion
  3. 3 Whether the plaintiffs or third parties were entitled to stock and goods

Ratio Decidendi

Defendants lawfully retook possession under the lease due to outstanding rent and notified outgoings, but their subsequent act of locking out the plaintiffs and denying access to goods, prior to any third party claims, amounted to conversion. Damages for conversion were assessed not at full retail value but as the diminution in value between the time of conversion and return, based on compensatory principles and on evidence of actual realisation at auction, with allowance for failure to mitigate. On the cross-claim, defendants were entitled to outstanding rent with GST, interest, specified notified outgoings, and repainting costs, but not for certain other claimed damages which were not...

Court Disposition

Judgment for the plaintiffs against the defendants on the claim; judgment for the defendants/cross-claimants against the plaintiffs/cross-defendants on the cross-claim; net amount payable by the plaintiffs/cross-defendants to the defendants/cross-claimants.

Orders

  • Judgment for the plaintiffs against the defendants on the claim in the sum of $24,438 inclusive of pre-judgment interest.
  • Judgment for the defendants/cross-claimants against the plaintiffs/cross-defendants on the cross-claim in the sum of $32,001.52 inclusive of pre-judgment interest.