New South Wales Supreme Court CITATION : Fitz-Alan v Felton [2004] NSWSC 1118 HEARING DATE(S) : 1 November 2004 JUDGMENT DATE : 24 November 2004 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The appeal is dismissed; (2) The orders of Magistrate Evans made on 14 November 2003 are affirmed; (3) The amended summons filed 18 October 2004 is dismissed; (4) The horse Dunnoon is to be returned to Mr Felton within 28 days; (5) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS : Appeal decision of Local Court Magistrate - "Dunnoon" the horse LEGISLATION CITED : Local Courts (Civil Claims) Act 1970 (NSW) - s 28A; s 69 Supreme Court Act 1970 (NSW) - s 93 Allan v Kerr & Anor (1995) Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1995) 4 NSWLR 139 Borg v Howlett (1996) 8 BPR 15,535 CASES CITED : Carr v Neill [1999] NSWSC 1263 Devries v Australian National Railways Commission (1993) 177 CLR 472 McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588 Joan Fitz-Alan (Plaintiff) PARTIES : Robert W Felton (Defendant) FILE NUMBER(S) : SC 13163/2003 Ms J Pentelow (Plaintiff) COUNSEL : Ms J Gallagher (Defendant) Koffels (Plaintiff) SOLICITORS : Priest McCarron (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT 318/00 FILE NUMBER(S) : LOWER COURT Magistrate W H Evans JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON WEDNESDAY, 24 NOVEMBER 2004 13163/2003 - JOAN FITZ-ALAN v ROBERT W FELTON JUDGMENT (Appeal decision of Local Court Magistrate; "Dunnoon" the horse) 1 MASTER: By further amended summons filed 18 August 2004 the plaintiff seeks firstly, an order setting aside the orders made by Wayne Henry Evans, Local Court Magistrate, on 14 November 2003; secondly, an order that the defendant pay the plaintiff's costs of these proceedings including the proceedings in the Local Court; and thirdly, a declaration that the horse known as Dunnoon was given to the plaintiff and or her daughter on 8 June 1997. The plaintiff Joan Fitz-Alan relied on the affidavit of Mathew Mallos sworn 2 September 2004. For convenience, in this judgment I shall refer to the parties by name. 2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156 and two more recent cases, namely Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082. It cannot be said that the Tribunal member acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. Section 69(4) of the Act provides that the court may determine an appeal by either (a) setting the judgment or order aside or (b) by varying the terms of the judgment or order or (c) by setting the judgment or order aside and remitting the matter for determination in accordance with the court's directions or (d) by dismissing the appeal. Grounds of appeal 3 Ms Fitz-Alan appeals the whole of the decision of the Magistrate made on 14 November 2003. There are 36 grounds of appeal. The main grounds of appeal appear to be that the Magistrate erred in law in firstly, disallowing some further statements being admitted into evidence; secondly, finding that there was no evidence that the horse was lent, or given on the condition that it was to be used to any extent in equestrian related events, failing which it had to be returned to the defendant, when there was no evidence to do so; thirdly, ordering the return of a chattel in action of detinue without giving the defendant the option of retaining the goods; and fourthly, in not awarding compensation to Ms Fitz-Alan for work and expenses that were carried out in respect of the horse. Local Court proceedings 4 By statement of claim filed 14 August 2000 Felton sued Fitz-Alan seeking an order that a retired racehorse gelding called Dunnoon be returned to the plaintiff's agent Mr Shane Adkins at Port Macquarie Race Stables at Racewyn Close, Port Macquarie. Ms Fitz-Alan and her daughter, Angela have had possession of Dunnoon since 8 June 1997. On 14 November 2003 the Magistrate ordered that the horse, Dunnoon be returned to Mr Felton (t 72.55). In 1999 according to Mr Felton he became aware that Angela was no longer residing in the area and requested Ms Fitz-Alan to return Dunnoon. Dunnoon still remains in the Fitz-Alan's possession. (1) Admission of statements into evidence 5 The plaintiff submitted that the Magistrate erred in disallowing some further statements into evidence. On 5 September 2003 the Magistrate ordered that any additional statements be filed at Court on or by 26 September 2003. The statements were not filed by that date but were 6 weeks out of date. Fitz-Alan filed a notice of motion seeking to put on further evidence. The motion was opposed. Felton's solicitor received the statements 10 days prior to the hearing. As his client resided in Sydney, it was put that if the evidence was allowed in, it would prejudice his client as he did not have sufficient time to respond to it and put on counter evidence (t 13.11.03, pp 3 & 4) but that it was not in anyone's interest to have the matter adjourned. Felton's solicitor also objected on the basis that none of the deponents indicated that they were present at the time that the conversation or agreement took place. Eventually, Fitz-Alan's counsel, Ms Pentelow stated that if it was a matter of not proceeding with the hearing on that date and the evidence was not to be admitted then she would rather proceed without the evidence (t 12). 6 Over the luncheon adjournment, the Magistrate read the statements. He admitted some portions and annexures into evidence and also ruled that some evidence was irrelevant and should have been on the record beforehand. In particular, he stated: "The document – the statement of Joan Fitz-Allan dated 27 October 2003 is not admitted, nor the annexure. It is merely an attempt to rebut evidence that was in evidence prior to the 5 September hearing, the document entitled 'Muddles Farm Centre Proprietary Limited' and with the red 'AF-Z' is rejected. It does not arise out of anything on the hearing date and is a matter that ought to have been before the Court beforehand. The statement Carol Anne Hodges 28 October 2003, if relevant, ought to have been before the Court before, it does not arise out of the aspects that were raised at the hearing, loan, gift or use and rejected. The document of Michelle Tout, purports to be a document prepared before the hearing but not filed- - … If it was admissible and/or she was qualified to say it and there's some doubt as to that, but it's certainly a document that ought to have been on the record beforehand, it's rejected. Affidavit of Sharon Anne Flanigan, if relevant ought to have been on the record beforehand and is rejected. It doesn't take the case any further. Statement of Nyree Reynolds, if relevant ought to have been on the record beforehand and doesn't relate to the matters that I referred to on the hearing. Statement of Kenneth George Forbes, if relevant, doesn't take the case any further and ought to have been on the record beforehand, doesn't arise out of those issues. The statement of Porter, if relevant ought to have been on the record beforehand and doesn't raise anything in relation to the issues and rejected. … The statement of Tamara Thurling, dated 26 September was not subject to the same Notice of Motion and I was dealing with a Notice of Motion, but in relation to that statement it is relevant, at least paras (3) onwards in relation to use, current, past and future. It seems that the horse is in the area and it's alleged by the plaintiff that it's not being used for the purpose that the plaintiff allege a loan existed and residence and statement will be permitted and it was within – filed and served within the time." 7 In the circumstances, the decision to be made by the Magistrate was whether or not further statements should have been admitted and if so what portions were open to the Magistrate. The Magistrate allowed some portions and annexures of the further statements into evidence. There is no error of law. (2) No evidence that the horse was lent or given on condition that it was to be used to any extent in equestrian related events, failing which it had to be returned to the defendant 8 The plaintiff submitted that the Magistrate erred in finding that there was no evidence that the horse was lent or given on condition that it was to be used to any extent in equestrian related events, failing which it had to be returned to the defendant. 9 There was an agreement between Mr Adkins on behalf of Mr Felton and Ms Fitz-Alan. The terms of the oral agreement are in dispute. The evidence of Mr Adkins was that on 15 May 1997 Ms Fitz-Alan approached him and his wife and said words to the effect "I am getting my daughter Angela into showing horses at various events and wonder if you are interested in loaning Dunnoon to me for Angela to show." Mr Adkins replied words to effect of "I think that will be OK. I will have to check with the owner, Bob Felton." Ms Fitz-Alan replied words to the effect of "That would be excellent if you could. I know Dunnoon would be a really good horse for Angela to show and we would look after it carefully at our property". 10 According to Ms Fitz-Alan, in about June 1997 she went to Mr Adkins' stables with her daughter Angela. Angela took Dunnoon for a ride and felt that she would be able to use him. Mr Adkins then spoke with Ms Fitz-Alan and said words to the effect "Take him and try him. If he is not suitable bring him back, otherwise bring him back when Angela is finished with him. Ms Fitz-Alan then said words to the effect of "Do you want some money for him?" Mr Adkins then said words to the effect of "No, provided he is looked after and returned when you are finished with him, I am happy for Angela to use him". It was common ground that when Ms Fitz-Alan offered money for the horse, Mr Adkins rejected the offer. 11 The Magistrate defined that the main issues to be determined by him were "Was this a loan that was conditional? Was it a gift?" 12 In his reasons (66.1-10) the Magistrate concluded that on the evidence it was not a gift. According to the Magistrate, the horse was on loan. That the loan was conditional was brought out by Ms Fitz-Alan and by witnesses for the defence who discussed in one way or another, Adkins' emphasis on the use of the horse. 13 The Magistrate further stated that he was satisfied that it was intended that the horse go on a loan basis to Angela for as long as she was using it. The Magistrate found that the loan of the horse, for whatever period, was conditional upon it be looked after and used (t 67.25). The evidence was that Angela moved to Sydney. The Magistrate also found that the "only variation came about on the date in September when it was alleged that it was still being used, and the occasional use that I find is not use in accordance with the terms upon which it was handed over." (t 14/11/03 67.54—57). "Therefore, I find in favour of the plaintiff that in breach of the agreement, the horse was not used as directed". The plaintiff seeks to put into issue factual matters. There were facts to support the Magistrate's finding. This decision was open to the Magistrate. There is no error of law. (3) Remedy 14 The Magistrate outlined the alternatives as being either to make an order that Dunnoon be returned or to make an award for some form of compensation to be paid to Felton. Under the Local Courts (Civil Claims) Act 1970 (NSW) the remedy is a discretionary one. 15 Section 28A of the Local Courts (Civil Claims) Act states: "Judgment in an action relating to the detention of goods (1) In an action relating to the detention of goods, the court may, if it finds for the plaintiff, give judgment: (a) for delivery of the goods to the plaintiff, or (b) for delivery of the goods to the plaintiff, but giving the defendant the option of retaining the goods and paying the plaintiff the value of the goods, as assessed by the court, or (c) for payment to the plaintiff of the value of the goods, as so assessed, together with any consequential damages. (2) Subject to the rules, relief under subsection (1) (a) is at the discretion of the court, but the plaintiff may choose between the other forms of relief prescribed by subsection (1). (3) If, in an action relating to the detention of goods, judgment is given as referred to in subsection (1) (b), the court, in its discretion, may, on the application of the plaintiff, subsequently make an order for the delivery of the goods to the plaintiff without giving the defendant the option of retaining the goods and paying their assessed value. …" 16 Ms Pentelow of Counsel referred to Borg v Howlett (1996) 8 BPR 15,535 a decision of Young J (as he then was) that concerned the sale of a racehorse. In that matter Young J ordered specific performance, namely that the order that horse be returned should be granted. Young J agreed with Dr Spry's approach expressed in his article where he stated that "Whether damages are an appropriate remedy is a question of fact in each particular case, and it is unsafe to rely on decisions reached on other contracts and in other circumstances." If the decision is one of fact, the Magistrate's decision to order the return of Dunnoon is not one that can be the subject of appeal in this court. 17 Further in Fleming on Torts (9th Edition) at p 81, the learned author states that although the Court has the power to order a return of the detained chattel without giving the defendant an option to pay its value, the remedy is discretionary and not a matter of right. 18 In her submissions before this Court, the plaintiff's counsel referred to McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 per Young J to illuminate that in respect of proceedings in relation to the detention of goods, the Court has a discretion pursuant to s 93 of the Supreme Court Act 1970 (NSW) to order specific restitution of chattels in lieu of damages, but that the Court will not ordinarily exercise its discretion in favour of a plaintiff to order the return of the chattel unless the chattel has special value or is unique and damages would not be full compensation; where it might be unjust to do so; where to do so might give the plaintiff some benefit more than they were entitled or deserved; nor where there has been unreasonable delay. 19 Even if the decision as to whether damages would have been an appropriate remedy special value must be shown. This is demonstrated in that Mr Felton bred Dunnoon and Dunnoon's dam and great dam. The horse had a relatively successful racing career and the trainer Mr Adkin's lodge is known as Dunnoon Lodge, named after Dunnoon, being the first horse he trained and raced in Sydney on behalf of Mr Felton. There was evidence that Mr Felton has a number of horses with Mr Adkins and that the horse Dunnoon is an exceptional horse as it was a good racer and placid in nature, making it an excellent lead pony for the horses Mr Adkins is now training on behalf of Mr Felton. These were facts open for the Magistrate to determine that Dunnoon had special value. Thus it was open to the Magistrate to order that the horse be returned. There is no error of law. (4) Compensation 20 Ms Fitz-Alan did not raise in her pleadings that she was entitled to compensation for caring for the horse. In any event, the evidence does not establish that the agreement included any payment for the upkeep of Dunnoon. 21 It is sad that Dunnoon's future could not have been decided amicably between the parties. 22 The result is that there is no error of law. The appeal is dismissed. The orders of Magistrate Evans made on 14 November 2003 are affirmed. The amended summons filed 18 October 2004 is dismissed. The horse Dunnoon is to be returned to Mr Felton within 28 days. 23 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. The court orders (1) The appeal is dismissed. (2) The orders of Magistrate Evans made on 14 November 2003 are affirmed. (3) The amended summons filed 18 October 2004 is dismissed. (4) The horse Dunnoon is to be returned to Mr Felton within 28 days. (5) The plaintiff is to pay the defendant's costs as agreed or assessed. ********** Last Modified: 11/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.