Allan Chrara v Evaton Cosmetics Pty Limited [2006] NSWDC 120

New South Wales District Court

CITATION: Allan Chrara v Evaton Cosmetics Pty Limited [2006] NSWDC 120

HEARING DATE(S): 31/10/06, 1/11/06, 2/11/06, 23/11/06

JUDGMENT DATE: 15 December 2006

JUDGMENT OF: Murrell SC DCJ

DECISION: Verdict for the defendant

CATCHWORDS: Bailment - Conversion - Ostensible Authority

PARTIES: Allan Chrara (Plaintiff) EvatonCosmetics Pty Limited (Defendant)

FILE NUMBER(S): 3111/05

COUNSEL: Mr T O Bland (Plaintiff) Mr P W J Gray SC (Defendant)

JUDGMENT

Overview 1 Allan Chrara was a friend and business acquaintance of Tony Wyndham, the former husband of Eva Cheung. Ms Cheung was the sole director and shareholder of Evaton Cosmetics Pty Limited, which sold cosmetics through wholesale and retail outlets. On 1 March, 2002, Mr Chrara purchased 32 pallets of nail polish (480,000 individual items) for $20,000. Tony Wyndham agreed to store the nail polish at a Kingswood warehouse which was leased by Evaton. Subsequently, some of the pallets were moved to a warehouse which Evaton leased at North Parramatta. In June/July 2002, Mr Wyndham and Ms Cheung separated. Mr Chrara claims that Evaton, as bailee, has failed to take reasonable care of his goods and has converted them.

Issues 2 1. Did Tony Wyndham have actual or ostensible authority to bind Evaton in relation to the storage arrangement? 2. Was there a bailment for reward or a gratuitous bailment? 3. Was any bailment terminated in July/August 2002? 4. Did Evaton fail to take reasonable care of the polish or convert it? 5. What damages has Mr Chrara sustained?

Tony Wyndham's Authority To Bind Evaton 3 Ms Cheung was a generally reliable witness, while Mr Wyndham was hostile, evasive and almost completely lacking in credibility. Inter alia, Mr Wyndham's evidence in relation to the agreement which was Annexure A to Mr Chrara's affidavit was a blatant attempt to distance himself from the loan said to be the subject of that document, despite the terms of the document, which include reference to a "person (sic) loan" to Mr Wyndham.