Thomas Brown & Sons Ltd v Fazal Deen [1962] HCA 59

High Court of Australia Kitto Windeyer and Owen JJ. Thomas Brown & Sons Ltd v Fazal Deen [1962] HCA 59

ORDER Appeal allowed in part. Judgment of Supreme Court varied by (a) omitting so much thereof as relates to the value of the gold assessed at £29,000; (b) in lieu thereof entering judgment for the defendant company on the plaintiff's claim to recover the value of the said gold; (c) omitting so much of the said judgment as orders the defendant company to pay the plaintiff's costs of the action; and (d) in lieu thereof ordering that the defendant company pay four-fifths of the plaintiff's said costs. Otherwise appeal dismissed. Order that respondent Fazal Deen pay to the appellant company two-thirds of the company's costs of the appeal including the reserved costs and that the appellant company pay to the respondent Busch his costs of the appeal including the reserved costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 30 Kitto Windeyer and Owen JJ.

This is an appeal from the decision of Hanger J. in an action in the Supreme Court of Queensland in which the respondent, Fazal Deen, was the plaintiff and the appellant company was originally the sole defendant. The action related to nineteen bars of gold, a quantity of gems and an iron safe, all of which, so the plaintiff alleged, had been placed by him in the custody of the company in June 1943. In the course of the proceedings the company gave a third party notice to a Mr. Harden who was one of its directors and its general manager at the time of the alleged deposit and the officer of the company whom the plaintiff had known and with whom he had dealt for many years. Later Harden was joined as a defendant by the plaintiff. By his statement of claim the plaintiff alleged a contract of bailment made by him with the company acting through its agent Harden, by which the company had undertaken to take due care of the chattels bailed and to redeliver them to the plaintiff on demand. In the alternative, he claimed that if Harden was not acting in the transaction as agent for the company the bailment was made with him personally. The statement of claim alleged that in 1959 the plaintiff had demanded the return of the articles deposited and that the defendants had refused or failed to comply with that demand. It concluded by claiming the return of the chattels or their value and damages for their detention. Alternatively the plaintiff claimed damages for breach of the contract of bailment and for conversion. The writ was issued in January 1960 and in September 1961, before the case was heard, Harden died and his executor, Mr. Busch, was appointed to represent his estate for the purpose of the action. After a hearing extending over nine days, the learned trial judge found in favour of the plaintiff and against the company on the claim in detinue. The safe, which his Honour found to have been still in the possession of the company, was ordered to be returned or its value, assessed at £25, paid. As to the gold which his Honour found to have disappeared while in the possession of the company, he ordered that the plaintiff recover its value, assessed at £29,000; and as to the gems which were also found to have disappeared while in the company's custody, he ordered that the plaintiff recover their value which he assessed at £13,000. His Honour found that Harden had acted as agent for the company in the transaction and accordingly dismissed the action against him. By the notice of appeal, Mr. Busch, representing Harden's estate, was made a respondent and counsel representing him was heard by us on such aspects of the appeal as might affect his client. In some respects the interests of the company and of Harden's estate coincided, but in others there was a conflict. For example, counsel for both these parties joined in attacking the findings of fact that the plaintiff had made a deposit of gold and gems, and both submitted that if he had it was under an arrangement which contravened the law and that for this reason the action must fail. Another contention of the company was that, if its attack on the finding that there had been a bailment was unsuccessful, his Honour should have found that the bailment was with Harden personally and not as agent for the company, while counsel for Harden's estate submitted that, if there had been a bailment, the finding that Harden acted as agent for the company should stand.