COMBINED FORMWORK PTY LTD v HAMILTON [1989] NSWCA 41

COMBINED FORMWORK PTY LTD v HAMILTON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Hope AP, SAMUELS and CLARKE JJA 28 June 1989

[1989] NSWCA 41

TROVER & DETINUE — conversion by taking bill of sale in circumstances amounting to denial of plaintiff's title.

Spackman v Foster [1883) 11 QED 99, distinguished.

Samuels JA. Ex tempore

By an amended statement of claim the Liquidator of a company called Malfen and Saruman Pty Ltd sought certain declarations and orders in respect of a quantity of chattels which were formwork and ancillary equipment, the property of the company or to which the company was entitled, or to immediate possession of which the company was entitled.

The defendants, to whom I will turn in a little more detail in a moment, were two companies and two individuals who, it was asserted, had some connection with the chattels. In the event, Kearney J made an order for delivery up of the chattels, directed an enquiry into damages and made other declarations and orders which it is unnecessary to note.

The facts have been dealt with very fully in the judgment under appeal and it is unnecessary to recapitulate them. The only appellant still in the field is a gentleman called Italiano Olivieri, whose participation, as the respondents allege, I will shortly describe in a moment.

The critical facts may be stated in this way. In Jane 1985 Mr Olivieri, whom I will call the appellant, and Mr Bruno Nesci, now dead, entered into an arrangement which involved their becoming directors of two companies; Combined Formwork Pty Ltd which was the first defendant and Itsel Pty Ltd which was the third defendant.

The basis of the arrangement was that Mr Bruno Nesci, who had access to a quantity of formwork and ancillary equipment, should bring that into the enterprise which Mr Olivieri would fund. The mechanics chosen were that Itsel should hire the formwork to Combined Formwork which would then let it to builders for use on building sites in construction let it to builders for use on building sites in construction operations.