Kehoe v Williams [2006] NSWSC 326

New South Wales Supreme Court

CITATION : Kehoe v Williams [2006] NSWSC 326

HEARING DATE(S) : 3 - 6 April 2006

JUDGMENT DATE : 26 April 2006

JURISDICTION : Civil

JUDGMENT OF : McClellan CJatCL

DECISION : 1. Verdict and judgment for the defendant; 2. Plaintiff is ordered to pay the defendant's costs.

CATCHWORDS : CIVIL DAMAGES - gratuitous bailment - breach of contract - obligations of a bailee - whether took care of goods to relevant standard of care - whether there was a failure to return the goods - art collection - partial sale of art collection at auction - sale at below reserve prices

Bainbridge v Firmstone (1838) 112 ER 1019 CASES CITED : Coggs v Bernard (1703) 92 ER 107 Fankhauser v Mark Dykes Ltd [1960] VR 376 Thomas National Transport (Melbourne) Pty Ltd v May and Baker (Aust) Pty Ltd (1966) 115 CLR 353

PARTIES : Stephen Bernard Kehoe (Pltf) John Segar Williams (Def)

FILE NUMBER(S) : SC 20321/02

COUNSEL : M Rollinson (Pltf) G M Colman (Def)

SOLICITORS : Carters Law Firm (Pltf) Dibbs Abbott Stillman (Def)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN CJ at CL

WEDNESDAY 26 APRIL 2006

20321/02 KEHOE v WILLIAMS

JUDGMENT 1 HIS HONOUR: The plaintiff has over many years been a collector of paintings, sculpture and other artefacts. In late December 1995 or early January 1996 he made arrangements with the defendant for the storage of a significant part of his collection at the defendant's premises. At that time the defendant was a dealer in fine art although his business has subsequently changed and he now operates exclusively as an auctioneer of fine artwork, furniture and artefacts. 2 On 28 July 1996 the defendant held an auction at which a number of the plaintiff's art works were offered for sale. Many sold but some did not. Subsequently the plaintiff retrieved a number of items from the defendant. However, he did not retrieve them all and, in circumstances which I will later relate, those items have now apparently been lost. 3 By an amended statement of claim the plaintiff alleged that there was an agreement between the parties which required the return of unsold items. The plaintiff alleged that that agreement was breached and claimed in these proceedings damages, being the value of 26 items, which have not been returned to the plaintiff. The plaintiff says that other items may also have been lost but makes no claim in relation to them.