ACN 116 746 859 (formerly known as Palermo Seafoods Pty Ltd) v Lunapas Pty Ltd & Anor [2017] NSWSC 1583

ACN 116 746 859 (formerly known as Palermo Seafoods Pty Ltd) v Lunapas Pty Ltd & Anor [2017] NSWSC 1583

Both Lunapas Pty Ltd and its director Mr Menniti were liable in conversion for depriving Palermo of possession and use of its stock, plant and equipment upon wrongful re-entry and for subsequent acts inconsistent with Palermo's rights; Palermo had not abandoned the goods nor failed to mitigate loss; the appropriate measure of damages was the market value of the goods on a going concern basis at the time of conversion.

Parties
Plaintiff: ACN 116 746 859 (formerly Palermo Seafoods Pty Ltd); First Defendant: Lunapas Pty Ltd; Second Defendant: Luciano Menniti
Jurisdiction
Australia
Judgment Date
14 December 2017
Procedural Posture
Civil / Re Trial Following Appellate Remitter for Assessment of Conversion Damages
Outcome
Plaintiff successful in claim for conversion; judgment for the plaintiff.
Legal Topics
Conversion, Detinue, Abandonment of Goods, Measure of Damages, Landlord and Tenant, Breach of Lease, Remedies for Wrongful Eviction, Constructive Trust (raised But Not Determined), Assessment of Market Value
Torts Civil Procedure Equity Conversion Detinue Abandonment of Goods Measure of Damages Landlord and Tenant +4 more

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Parties

ACN 116 746 859 (formerly Palermo Seafoods Pty Ltd)

Plaintiff

Lunapas Pty Ltd

First Defendant

Luciano Menniti

Second Defendant

Procedural Posture

Civil / Re Trial Following Appellate Remitter for Assessment of Conversion Damages

Legal Issues

  1. 1 Whether the defendants Lunapas Pty Ltd and Luciano Menniti are liable in the tort of conversion for dealing with the plaintiff's stock, plant and equipment after wrongful eviction
  2. 2 Whether the plaintiff abandoned its goods
  3. 3 Whether the plant and equipment should be valued on a going concern basis or on a liquidation sale basis

Ratio Decidendi

Both Lunapas Pty Ltd and its director Mr Menniti were liable in conversion for depriving Palermo of possession and use of its stock, plant and equipment upon wrongful re-entry and for subsequent acts inconsistent with Palermo's rights; Palermo had not abandoned the goods nor failed to mitigate loss; the appropriate measure of damages was the market value of the goods on a going concern basis at the time of conversion.

Court Disposition

Plaintiff successful in claim for conversion; judgment for the plaintiff.

Orders

  • Judgment for plaintiff against both defendants for $250,000 representing market value of converted stock, plant and equipment (excluding pre-judgment interest)
  • Parties to bring in calculations of interest under Civil Procedure Act 2005, s 100, from 8 May 2013 to date of judgment