Shoalhaven Sand Pty Ltd v Kennedy & Ors [2019] NSWDC 494

District Court New South Wales

Medium Neutral Citation: Shoalhaven Sand Pty Ltd v Kennedy & Ors [2019] NSWDC 494 Hearing dates: 4 – 6 & 9 September 2019 Date of orders: 13 September 2019 Decision date: 13 September 2019 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 239 Catchwords: CONTRACT – alleged oral agreement for shared ownership of vehicular ferry – first and second defendants owned the vehicular ferry that was replaced – plaintiff contributed to purchase price for replacement ferry – whether plaintiff acquired possessory interest pursuant to agreement - significance of 'post contractual' conduct in proof of verbal agreement.

TORTS – conversion – sale of ferry by first and second defendants – whether infringement of plaintiff's possessory interest – whether conversion by auctioneer, acting on instructions of first and second defendants.

TRADE PRACTICES – misleading or deceptive conduct – sale of island – island used for residence of first and second defendants in conjunction with operational dairy farm – representation by second defendant to third defendant (real estate agent) that ferry was an inclusion in sale – whether representation "in trade or commerce."

AGENCY – whether conduct constituting conversion engaged in by corporate agent gives rise only to vicarious liability of corporation – whether agent/employee personally liable in tort. Legislation Cited: Australian Consumer Law, s 18 Evidence Act 1995 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Cases Cited: Ashby v Tolhurst [1937] 2 KB 242 BH Australia Constructions v Kapeller [2019] NSWSC 1086 Gordon v Harper (1796) 101 ER 828 Manchester Airport Plc v Dutton [2000] 1 QB 133 Mears v Safecar Security [1983] QB 54 Northam v Bowden (1855) 11 Exch 70 O'Brien v Dawson (1942) 55 CLR 18 Penfold Wines Pty Ltd v Elliott (1946) 74 CLR 204 Watson v Foxman (1995) 49 NSWLR 315 Western Australia v Ward (2002) 213 CLR1 Williams v Pisano (2015) 90 NSWLR 342 Wilton & Anor v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644 Texts Cited: G. Dal Pont, Law of Agency, (3rd ed, 2014) J Carter & Ors, Helmore Commercial Law and Personal Property in New South Wales (10th ed, 1992) J.D. Heydon, Heydon on Contract (2019) J.G. Fleming, Law of Torts (7th ed, 1987 ) R. Austin, H. Ford & P. Ramsay, Company Directors: Law and Corporate Governance (2005) Category: Principal judgment Parties: Shoalhaven Sand Pty Ltd (Plaintiff) Mr Kennedy (Estate) (First Defendant) Ms Kennedy (Second Defendant) Mr Campbell (Third Defendant) Representation: Counsel: Ms E Windsor (Plaintiff) Mr Fernandes (First and Second Defendants) Mr J de Jonge (Third Defendant)