Shoalhaven Sand Pty Ltd v Kennedy & Ors [2019] NSWDC 494

Shoalhaven Sand Pty Ltd v Kennedy & Ors [2019] NSWDC 494

On the balance of probabilities, the plaintiff and the Kennedys entered an oral agreement that the plaintiff would acquire a half share in Ferry No.40 in exchange for its $50,000 contribution and promised works. The plaintiff thereby had a possessory interest. The Kennedys' instruction and arrangement for the sale of the ferry with Burraga Island, without the plaintiff's permission or payment of any share of the proceeds, was conversion. The third defendant was also liable in conversion because an auctioneer/agent who sells a chattel inconsistently with another's possessory interest is strictly liable notwithstanding innocence or corporate agency. The third defendant's contract...

Jurisdiction
Australia
Judgment Date
13 September 2019
Procedural Posture
Civil Proceeding for Conversion Concerning Alleged Shared Ownership of Vehicular Ferry, With Cross Claim by the Third Defendant Against the First and Second Defendants / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against the first, second and third defendants for $56,808 plus interest and costs; cross-claim dismissed with costs; short minutes to be brought in.
Legal Topics
['oral Agreement' 'shared Ownership of Chattel' 'possessory Interest' 'conversion' 'post Contractual Conduct' 'misleading or Deceptive Conduct' 'conduct in Trade or Commerce' 'real Estate Auction' 'agent Liability in Tort' 'cross Claim']
['contract' 'torts' 'trade Practices' 'agency' 'civil Procedure'] ['oral Agreement' 'shared Ownership of Chattel' 'possessory Interest' 'conversion' 'post Contractual Conduct' 'misleading or Deceptive Conduct' 'conduct in Trade or Commerce' 'real Estate Auction' 'agent Liability in Tort' 'cross Claim']

Case Brief

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Procedural Posture

Civil Proceeding for Conversion Concerning Alleged Shared Ownership of Vehicular Ferry, With Cross Claim by the Third Defendant Against the First and Second Defendants / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiff established an oral agreement with the first and second defendants for a half share ownership interest in Ferry No.40.' "Whether the plaintiff's asserted ownership interest gave it a possessory interest capable of protection by the tort of conversion." 'Whether the sale of Ferry No.40 with Burraga Island constituted conversion by the first and second defendants.' 'Whether the third defendant auctioneer/agent was personally liable in conversion notwithstanding that he acted innocently and on instructions.' "Whether the third defendant's cross-claim against the Kennedys succeeded in contract or under s 18 of the Australian Consumer Law." 'How damages for conversion should be assessed.']

Ratio Decidendi

On the balance of probabilities, the plaintiff and the Kennedys entered an oral agreement that the plaintiff would acquire a half share in Ferry No.40 in exchange for its $50,000 contribution and promised works. The plaintiff thereby had a possessory interest. The Kennedys' instruction and arrangement for the sale of the ferry with Burraga Island, without the plaintiff's permission or payment of any share of the proceeds, was conversion. The third defendant was also liable in conversion because an auctioneer/agent who sells a chattel inconsistently with another's possessory interest is strictly liable notwithstanding innocence or corporate agency. The third defendant's contract...

Court Disposition

Judgment for the plaintiff against the first, second and third defendants for $56,808 plus interest and costs; cross-claim dismissed with costs; short minutes to be brought in.

Orders

  • ['There should be judgment for the plaintiff against the first, second and third defendants for the sum of $56,808 plus interest and costs.' 'The cross-claim should be dismissed with costs.' 'The plaintiff should bring in short minutes of order reflecting the reasons for judgment, including orders and quantification...