Trespass - Trespass to goods - Damages - What damages recoverable - Depreciation in value - Damages in the nature of interest - Loss of use of goods - Exemplary damages. Supreme Court Civil Procedure Act 1932 (Tas), s35(1)(a). The Mediana (1900) AC 113; Williams v The Peel River Land and Mineral Company Limited (1886) 55 LT 689, explained.

ZEEMAN J The plaintiff's action concerns the yacht Salatu. Whilst it was in the possession of the plaintiff, the defendant, by his agent, took it from its mooring at Kettering and sailed it to Sydney. The plaintiff demanded the return of the yacht but the defendant refused to comply with the demand, claiming to be the owner of the yacht and to be entitled to possession. The plaintiff commenced his action whereby he sought the return of the yacht and damages for trespass.

2. On 23 October 1987, which was shortly after the action was commenced, the plaintiff obtained an order from Neasey J, made in the exercise of the jurisdiction conferred by the Rules of the Supreme Court, O56, r4, whereby the defendant was required to forthwith deposit the yacht with the Marshal in Admiralty of the Supreme Court of New South Wales. That order was complied with and the Marshal took possession of the yacht and kept it in safe custody at a facility at Goat Island in Sydney Harbour. The action was tried before Nettlefold J who, on 9 November 1988, ordered that the plaintiff have the return of the yacht and that the hearing of his claim for damages be adjourned sine die. At the time that judgment was given, the yacht remained at Goat Island in the custody of the Marshal.

3. On 12 December 1989 the plaintiff filed an application whereby, inter alia, he sought an order that "judgment in the cause of action in trespass be entered for the plaintiff against the first named defendant for damages to be assessed". That application came before Cox J, who treated it as being an application made pursuant to O43, r1. His Honour took the view that he had before him sufficient material to determine the issue whether the plaintiff was entitled to succeed in his action insofar as it concerned a claim for damages for trespass, but insufficient material to pronounce final judgment. Accordingly, on 9 April 1990 his Honour made an order pursuant to O43, r6 that the application stand over for further consideration and that the issue of damages, ie the quantum thereof, be tried by a judge sitting without a jury. The matter is before me for the purpose of assessing damages in accordance with the order of Cox J.

4. The damages which the plaintiff seeks to recover were categorised by him as follows:

1 The depreciation in value of the yacht during the period

that it was out of the possession of the plaintiff which he

quantified as being the cost of repairs of $20,000 and fees

of $5,020 for mooring and the like incurred before and

during the carrying out of repairs.

2 The value of items in the yacht at the time that it was

taken by the defendant and which have not been returned to

the plaintiff in the sum of $1,960.

3 Damages in the nature of interest pursuant to the Supreme

Court Civil Procedure Act 1932, s35(1)(a) or, alternatively,

on the basis of the principles enunciated in Hungerfords v

Walker [1989] HCA 8; (1988-1989) 171 CLR 125.

4 Damages by way of compensation for the inconvenience and

loss of use and enjoyment of the yacht until the completion

of repairs.

5 Exemplary damages.

5. A claim for damages falling into the second of those categories effectively was abandoned by the plaintiff. It is unnecessary to consider the possible legal bases upon which the plaintiff might be able to recover such damages because I am not satisfied that the factual basis for such a claim has been made out. The likelihood is that the items in question were handed by the defendant to an officer of the Sheriff of the Supreme Court of New South Wales, that such officer handed them to the plaintiff's agent, Stannard Bros Slipway and Engineering Pty Ltd (the company retained by the plaintiff to carry out repairs to the yacht) and that they were lost or mislaid whilst in that company's possession.

6. I am concerned with assessing those damages which are recoverable by the plaintiff in trespass, not in detinue or conversion. Counsel for the plaintiff submitted that this has no relevant consequences because the principles upon which damages for the wrongful deprivation of chattels are to be assessed are the same, no matter what the cause of action. For that proposition he cited The Mediana (1900) AC 113 at 117-118. However a distinction must be drawn between the categories of damages which may be recovered in respect of a particular cause of action and the principles according to which damages of a particular category are to be assessed. The Mediana was a collision case. As a result of the damage done to a vessel in the collision the ship owner was deprived of the use thereof, for which it was entitled to be compensated by way of damages. It is beyond question that a plaintiff in an action for detinue, in addition to claiming the return of the relevant chattel, may recover damages for its detention. Both in a case where damage caused in a collision temporarily deprives an owner of the use of a vessel and in a case where, by reason of the wrongful detention of a chattel, the owner is deprived of the use thereof, is the owner entitled to be compensated for that deprivation. The Mediana is authority for the proposition that in each case the method of assessing damages is the same. It is not authority for the wide proposition for which it was cited by the plaintiff, namely the same categories of damages are recoverable whether the action is brought in trespass, detinue or conversion. Such a proposition must be rejected.

7. It is common ground that no damage was occasioned to the yacht before it was taken into the custody of the Marshal and that thereafter there was damage in the nature of wear and tear, accentuated by the exposed position in which it was moored at Goat Island. No damage was inflicted directly by the defendant or his agent. This raises the question whether such damages are recoverable in trespass. If they are not, then the question whether such damages are recoverable by way of damages for wrongful detention, ie in detinue, is of no concern to me because I am not required to assess such damages.

8. Trespass to chattels is a wrong to possession (Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204 at 224) committed by an act of the defendant and as a direct consequence thereof (Hutchins v Maughan [1947] VicLawRp 18; (1947) VLR 131). The essence of the tort of detinue is the wrongful detention of a chattel to which the plaintiff has the right to immediate possession which requires that there be a demand and a wrongful refusal to comply with that demand. On one set of facts both torts may be established although there may be a trespass without detinue or detinue without a trespass.

9. The different elements of the two torts assist in defining the nature of the damage which may flow from each. Damages in trespass are by way of compensation for the injury done to the chattel by reason of the wilful interference with it, although nominal damages may be awarded where no actual damage occurs (Kirk v Gregory (1876) 1 Ex D 55). Damages in detinue are by way of compensation to the plaintiff for being deprived of possession. On that basis, where an action is brought in trespass and the chattel is restored to the plaintiff but in a damaged state, the measure of damages to which the plaintiff is entitled is the extent to which it has depreciated in value. Where an action is brought in detinue and the chattel is restored to the plaintiff, the measure of damages for detention is the losses suffered by the plaintiff by reason of having been deprived of the chattel.

10. In a case of detinue, where the plaintiff hires out the chattel to users as part of his business, the normal measure of damages for the detention of the chattel is the market rate at which it could have been hired, and that principle may extend to other chattels as well (Stand Electric and Engineering Co Ltd v Brisford Entertainments Ltd (1952) 2 QB 246 at 252 and 253-254). Reasonable costs incurred by way of hiring a replacement chattel during the period of wrongful detention would appear to be recoverable on the same basis. There are some authorities, dealing with share certificates and the like, which suggest that depreciation in value may be recoverable by way of damages in detinue. However, close examination of those cases establishes that they were truly cases of damage caused by the deprivation of possession in that if the plaintiff had not been deprived of possession he would have realised on the securities and thereby minimised losses. In such a case damages are not to be assessed on the basis of the depreciation in value but on the basis of the loss suffered by the plaintiff by reason of not having been able to dispose of the securities when he would have done had it not been for the defendant keeping him out of possession.

11. In Williams v Archer [1846] EngR 3; (1847) 5 CB 318; 136 ER 899 the plaintiff had delivered to the defendant share certificates on terms that the defendant would return them to him upon request. Such a request was made, but the defendant wrongfully detained the certificates and declined to return them. The plaintiff bought an action in detinue, claiming the return of the certificates and damages for their detention. The trial judge directed the jury that, in estimating those damages which concerned certificates relating to shares which might be expected to have been acquired for the purpose of resale on the market at a profit, they might take into consideration the difference in value at the time of demand and the time of delivery to the plaintiff.

12. That case was explained in Williams v The Peel River Land and Mineral Company Limited (1886) 55 LT 689 which also concerned an action in detinue in which the plaintiff sought the return of share certificates and damages for their detention, quantified upon the basis of the depreciation in the value of the shares. Bowen LJ, in a passage subsequently approved in Brandeis Ltd v Western Transport Ltd (1981) 1 QB 864, explained the basis upon which such damages might be allowed in detinue when he said, at 692-693:

"This is an action for the wrongful detention of the

stock in question, and we have to consider what damages

(the wrong being admitted) ought to be given. If, in

an action for wrongful detention by one man of that

which belongs to another, there be no substantial loss

at all sustained, but the mere denial of the right,

which right is vindicated in the course of the action,

in such a case, there being no pecuniary damage

sustained, no pecuniary compensation is given, and

nominal damages will be enough; but, if a substantial

loss has been suffered in consequence of the wrongful

act, what those who have to redress the wrong ought to

do is to give compensation for the loss. You do not

give damages in an action for detention in poenam; it

is not a paternal correction inflicted by the court,

but simply compensation for the loss. Now, Sir Horace

Davey was inclined, I thought at one time, to argue the

question as if there were some legal crystallised rule

as to damages for the detention of stock of this sort

that the law created a kind of definition which we must

adhere to, whether there was a loss or not. I cannot

think that the law could really lay down anything so

ridiculous as that a man should be compensated whether

he suffered damages or not. The case of Williams v

Archer which he first cited, and which seemed to be

cited for that purpose, really proves nothing of the

sort. Williams v Archer was a case in which, it being

assumed throughout apparently upon the trial that the

plaintiff, who was the owner, would have sold if he

could, although he had not made an actual contract for

a sale with any particular person, the judge directed

the jury that they might take into consideration, as a

measure of damages, the difference between the market

price at the date of refusal to give up and the

subsequent date. That was taken by a bill of

exceptions to the Exchequer Chamber, and the Exchequer

Chamber held that that was not a wrong direction. I

think the alternative contention would be, that he

ought to have directed nominal damages, and that would

be ridiculous, because it would be laying down the law

that you might detain a man's goods for ever without

paying him anything at all except the costs of the

action which he brought. The true view is, that the

law lays down limits, beyond which you cannot wander

either in the direction of recouping yourself for

imaginary profits which you might have made, the limits

in one direction being that, and the limits in the

other direction being that, if you have suffered

nothing except a mere bare denial of a right which has

been sufficiently vindicated by your triumph on the

issue, then nominal damages will be enough. Within

those limits, if you want to know what the wrong-doer

has to pay, you first must ask yourself what the person

who is in the right has suffered. Therefore it is that

in this case we have simply to decide something which

turns upon the question, Would the owner of the stock

have sold his stock during the period which intervened

between the refusal to give it up and the trial? Now,

the market rose during a portion of the time, and the

market fell during the latter part. Would the owner of

the stock have sold? That is not exactly the same

question as whether at any moment he desired to sell,

because he might have desired it at one moment, and not

desired it at another; or, even if he did not desire it

when he had not got the stock in his own hands and it

was in the hands of the bank, he might still have

desired, and might have sold if the bank had not been

wrong-doers and kept it from him. The issue,

therefore, is, Would the owners have sold if the bank

had not interfered with their right?"

13. The share certificate cases may be explained on the following further basis. The chattels involved in those cases were the certificates and not the shares which they represented. No injury was done to the certificates as chattels so that only nominal damages were recoverable in trespass. The wrongful detention of the certificates prevented the plaintiffs from dealing with the shares to which the certificates related. Losses flowing from an inability to deal with the shares, which themselves are not chattels, were losses suffered because the plaintiffs had been kept out of possession of the certificates. Accordingly such losses were recoverable by way of damages in detinue

14. The actions of the defendant in taking the plaintiff's yacht from Margate, sailing it to Sydney and thereafter keeping the plaintiff out of possession all amounted to trespass. The initial taking was a wilful direct interference with the plaintiff's possession of the yacht. That interference continued until the plaintiff obtained possession when judgment was given in his favour by Nettlefold J. The delivery of the yacht to the Marshal did not terminate the defendant's trespass. The Marshal held the yacht by way of preserving the subject matter of this action but the direct invasion of the plaintiff's possession by the act of the defendant was not interrupted by his receipt of it. The immediate cause of the damage to the yacht is of no relevance. The defendant's trespass was a continuing trespass and upon it coming to an end, the plaintiff was entitled to be compensated for the depreciation in the value of the yacht from the time that it was taken by the defendant.

15. The assessment of those damages presents a number of difficulties. I am concerned with the depreciation in the value of the yacht between October 1987, when it was taken by the defendant, and 9 November 1988, when it was restored to the plaintiff. The normal way of assessing the amount of such depreciation is taken to be the reasonable cost of repairs if it is reasonable in the circumstances that the plaintiff effect repair (Davidson v J S Gilbert Fabrications Pty Ltd (1986) 1 Qd R 1; Darbishire v Warren [1963] EWCA Civ 2; (1963) 1 WLR 1067). The normal method of assessment is appropriate in this case and no submission to the contrary was made. The difficulties which arise relate to the assessment of the quantum of the reasonable cost of repairs. This requires consideration of some of the relevant evidence.

16. The plaintiff gave evidence that before the yacht was taken by the defendant the hull and the fixtures and fittings of the vessel were in good condition and had been well maintained. The first time that the plaintiff saw the yacht after it had been taken was in August 1988 when he visited Goat Island. He said that the yacht had been "virtually stripped of all the provisions and gear which had been in it" but gave no other evidence of its condition beyond saying that in general it had not been maintained as well as it might have been and had suffered some minor impact damage. Having as yet not taken steps to effect repairs to the yacht beyond having had it moved to Stannard Bros' yard in North Sydney on 20 April 1989, a considerable period of time after Nettlefold J had given judgment, the plaintiff arranged for a marine surveyor, J F Swanson, to prepare a report on the state of the vessel. Such a report was provided on 5 June 1989.

17. Other than having had the hull cleaned and washed, nothing had been done by the plaintiff by way of having repairs effected when, on 14 December 1989, Stannard Bros provided the plaintiff's solicitors with an estimate of the cost of repairs in the total sum of $12,252 (excluding the cost of uphaul). Ultimately Stannard Bros rendered an account for $24,439.50 (which did not include separate accounts rendered for mooring and the like) which, after negotiations, was reduced to $20,000. Mr Robertson, Stannard Bros' manager, explained the discrepancy to some extent by his evidence that the need to carry out certain additional repairs became apparent as work progressed. Such additional repairs include electrical work and painting.

18. When providing its estimate, Stannard Bros pointed out that outstanding accounts for mooring, towing and cleaning had not been paid and that they required those to be paid before work commenced. The failure to pay those accounts was not the fault of the plaintiff. He had entrusted the matter to solicitors who appear to have overlooked making payment out of funds provided by him. Those accounts were paid in about December 1989 when work commenced. The work was completed in about September 1990. This is to be considered in the light of Mr Robertson's evidence that by making a reasonable effort the work could have been completed in a period of between 6 weeks and 2 months.

19. To be contrasted with the evidence of what actually happened is the evidence of two shipwrights called by the defendant. Each was shown a copy of the survey report and asked to give his estimate of the cost of doing the work indicated by the report as being required and the period of time within which such work could be completed. The first, Mr Humphrey who carries on business in Sydney, estimated that he could do the work in a period of two to three weeks at a cost of $3,500. The second, Mr Stewart who carries on business in Hobart, estimated that he could do the work in a period of three to four weeks at a cost of between $3,500 and $4,000. Each conceded that his price would vary if additional work proved to be necessary and accepted that it is not unusual for the need for such work to become apparent once repairs are commenced.

20. The damages to which the plaintiff is entitled are equal to the expense reasonably incurred to restore the yacht from the state it was in when the plaintiff regained possession to the state it was in when he was deprived of possession by the defendant. I am not able to accept that actual cost of repairs incurred by the plaintiff represents such expense. In particular I have regard to the following matters:

1 There was an inordinate delay of more than a year before

repairs commenced during which time further deterioration in

the vessel would have occurred, even though it was moored in

a somewhat more satisfactory location.

2 The repairs took an inordinate period of time which in

itself would have accounted for some ongoing deterioration.

3 There is insufficient evidence that all the work done by

Stannard Bros actually was by way of restoring the yacht to

its previous condition. The evidence about this is vague.

In at least one instance there is positive evidence to the

contrary. Mr Robertson accepted that when the survey was

done the upholstery was in good condition, yet it was

replaced at considerable cost.

4 The differences in the estimates provided by the

shipwrights called by the defendant and the actual cost

appears to be incapable of being explained solely by the

requirement to do work, the need of which was not apparent

until repairs commenced or by work of a nature not

appropriate for mention in a survey report.

5 I am satisfied that at least to some extent the plaintiff

took the opportunity of having work done which went beyond

restoring the yacht to its previous condition.

21. The evidence about the repairs required to restore the yacht to its earlier state is quite deficient. No attempt was made to relate costs actually incurred to items mentioned in the survey report. There was no cross-examination of the shipwrights called by the defendant with a view to obtaining their estimates as to particular categories of work so that some real comparison might be made. There was no endeavour to have Mr Robertson dissect the costs as between items the subject of the survey report and other items, or to lead from the plaintiff evidence as to items not the subject of the survey report, and in particular as to why it could be said that the carrying out the work the subject of those items was necessary to restore the yacht to its earlier state.

22. Despite those difficulties, I must do the best I can with the evidence which I have. I do not consider that it is appropriate to allow much more than that indicated by the defendant's witnesses as being appropriate for the cost of repairs, together with an allowance for the additional items which Mr Robertson said were found to require attention, but with some discount against the contingency that some of the electrical work only became necessary after the plaintiff had regained possession. The survey report indicates that that may have been the position. Doing the best I can I assess the cost of repairs at $10,000. In addition, under the first head of damage the plaintiff is entitled to recover a reasonable amount for the other fees claimed, for mooring and the like. Such fees necessarily had to be paid so that the repairs might be carried out. However, the amount of the fees incurred by the plaintiff greatly exceeded what was reasonably required for this purpose. He unreasonably delayed the commencement of repairs and the repairs took an unreasonable length of time. Whilst the plaintiff may not have been personally at fault for these delays, at least as to part thereof, there is no basis for requiring the defendant to compensate him for them. I allow mooring fees for four months at $49.50 per week, a total of $841.50, together with the fees charged for towing, uphaul, cleaning, washing, application of coatings and the survey report, a total of $1,654. In the result the damages under the first head are assessed at $12,495.50 which I round off the $12,500.

23. It is appropriate that the plaintiff recover interest pursuant to the Supreme Court Civil Procedure Act, s35(1) on the sum of $12,500 from the date of payment so as to provide restitutio in integrum (see The Hebe [1847] EngR 285; (1847) 2 W Rob 530; 166 ER 855) to the extent that there is a proved loss arising from the loss of the use of those moneys from that date (Walker v FAI Insurance Ltd [1991] TASSC 86; (1991) Tas R 258 at 271). As to the sum of $2,500 I take the payment to have been made in December 1989 and as to the sum of $10,000 in December 1990. I accept the evidence from the plaintiff that the moneys paid by him to Stannard Bros came from his own moneys standing to the credit of current accounts and that his established practice was to transfer moneys from those accounts to interest bearing accounts periodically. Had the plaintiff not paid the repairer the relevant moneys would have been transferred to such an interest bearing account. I have evidence as to the interest paid on accounts of this type of various categories during the relevant period. Taking a reasonably broad brush approach I find that on average the plaintiff would have earned in the region of 8.5 per cent per annum. On this basis I assess damages in the nature of interest in the sum of $5,000.

24. I do not consider that the plaintiff can recover damages of the fourth category in trespass. On the basis of the principles which I have expressed such damages do not flow from any trespass but from the wrongful detention. If recoverable, they are recoverable by way of damages for detention which I am not required to assess.

25. Finally I deal with the question of exemplary damages. It is necessary to have some reference to the evidence before me relevant to this issue. The plaintiff purchased the yacht from one Leslie Alexander, the defendant's brother, for $79,000. The defendant took the view that the yacht belonged to him. In fact, he still maintains that position, telling me so in evidence. Having purchased the yacht, the plaintiff took possession of it and arranged for work to be done on it by a shipwright at Kettering. Whilst it was at Kettering in November 1985 two persons, acting at the behest of the defendant, removed the yacht. The plaintiff took legal action against the defendant for the yacht's return. In late 1985 the defendant consented to judgment for possession to be entered in favour of the plaintiff who thereupon regained possession. In October 1987 the yacht again was at its mooring at Kettering when the plaintiff discovered that it had disappeared. He instigated a search and it was located at Lakes Entrance, its name having been changed. The defendant had caused the yacht to be taken and had arranged for the change of name. Eventually it was found in Sydney and the plaintiff took the present proceedings and obtained the order from Neasey J to which I have earlier referred. The defendant defended the action, seeking to maintain his claim to the yacht, which was entirely rejected by Nettlefold J.

26. In my view, the defendant's actions may truly be described as high- handed. He had previously consented to judgment for the return of the yacht to the plaintiff, but nevertheless thereafter took it once again and took steps which were calculated to ensure that the plaintiff would not be able to locate it and would be permanently deprived of it. The defendant must have been aware that the plaintiff had purchased the yacht and had paid a substantial amount of money for it.

27. In those circumstances, I consider it appropriate to mark the Court's strong disapprobation of the defendant's outrageous conduct by an award of exemplary damages. The defendant's conduct was particularly outrageous because it was done in the face of a judgment which vindicated the plaintiff's right to possession as against the defendant, being a judgment which had been entered with the consent of the defendant. I assess exemplary damages at $5,000.

28. Accordingly I assess the plaintiff's damages at $22,500 and will certify accordingly.