De Vries & Anor v Rapid Metal Developments (Australia) Pty Ltd [2011] NSWCA 100

De Vries & Anor v Rapid Metal Developments (Australia) Pty Ltd [2011] NSWCA 100

RMD, as plaintiff, bore the onus of proving on the balance of probabilities that all goods it supplied to Rildean and which were not directly returned were in Rildean's possession at the time of the controllers' appointment. The evidence established that Rildean's stock control was poor, scaffolding from various...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
28 April 2011
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed
Legal Topics
['mortgagee in Possession' 'corporation as Hirer of Chattels' 'liability of Controllers Under S 419 a of Corporations Act' 'conversion' 'assessment of Damages' 'burden of Proof' 'costs']
['corporations Law' 'torts' 'civil Procedure'] ['mortgagee in Possession' 'corporation as Hirer of Chattels' 'liability of Controllers Under S 419 a of Corporations Act' 'conversion' 'assessment of Damages' 'burden of Proof' 'costs']

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Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether controllers (appointed as agents of a mortgagee in possession) were liable under s 419A(2) of the Corporations Act 2001 (Cth) for rent and other amounts for scaffolding hired to the corporation and not returned' "Whether RMD proved that its scaffolding was in the possession of the corporation at the date of the controllers' appointment" 'Whether sale or licensing by controllers of third-party scaffolding constituted conversion' "How damages should be assessed for conversion, including assessment by reference to owner's list prices"]

Ratio Decidendi

RMD, as plaintiff, bore the onus of proving on the balance of probabilities that all goods it supplied to Rildean and which were not directly returned were in Rildean's possession at the time of the controllers' appointment. The evidence established that Rildean's stock control was poor, scaffolding from various suppliers was mixed and returned to whoever required it without regard to ownership, and a significant proportion of RMD's goods had likely been lost, stolen or returned to other suppliers. In these circumstances, RMD failed to discharge its burden of proof, as required, on the essential issue of possession. Accordingly, the foundation of its causes of action failed and the appeal...

Court Disposition

Appeal allowed

Orders

  • ['Set aside the orders made by RA Hulme J on 10 February 2010 and 9 March 2010.' 'In lieu thereof, order that the proceedings be dismissed.' "The Respondent (RMD) to pay the Appellants' costs of the proceedings, other than any costs incurred as the result of the adjournment of 3 March 2008." "The Appellants to pay...