Peter Bernard Graham v Elke Regina Voigt [1989] ACTSC 5 (13 February 1989)

SUPREME COURT OF THE ACT

PETER BERNARD GRAHAM v. ELKE REGINA VOIGT
S.C. No. 1083 of 1986
Tort

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Tort - Conversion - Claim for damages for - Gratuitous bailment - Counterclaim for storage costs allegedly agreed to be paid - Whether bailee entitled to lien on goods bailed - Liability of bailee for value of goods on failure to deliver up - Assessment of damages for conversion - Whether damages for loss of hobby payable.

Judson v. Etheridge (1833) 1 Cr. & M. 743 (149 ER 598)

Re Southern Livestock Producers Ltd (1964) 1 WLR 24

Majeau Carrying Co Pty Ltd v. Coastal Rutile Ltd [1973] HCA 22; (1973) 129 CLR 48

Mitchell v. Ealing London Borough Council (1979) QB 1

Munro v. Willmott (1949) 1 KB 295

Ley v. Lewis (1952) VLR 119

Haddon v. Duke Co. (NL) (1892) 18 VLR 155

Jarvis v. Swan Tours Ltd (1973) 1 QB 233

Athens-Macdonald Travel Service Pty Ltd v. Kazis (1970) SASR 264

Jackson v. Horizon Holidays Ltd (1975) 3 All ER 92

Heywood v. Wellers (a firm) (1976) QB 446

Ichard v. Frangoulis (1977) 2 All ER 461

HEARING

CANBERRA
13:2:1989

Counsel for the plaintiff Mr T. Johnstone

Solicitors for the plaintiff Gillespie-Jones & Co

Counsel for the defendant Mr C. Ryan

Solicitor for the defendant Bernard Collaery

ORDER

The order made on 27 November 1986 be varied by deleting from the schedule thereto "(j) 9 stamp albums valued at $30,000.00".

The defendant's defence dated 10 December 1986 be amended by deleting paragraph 5 thereof and substituting therefor:-
"5. As to paragraph 4 of the Statement of Claim

the Defendant admits that the Plaintiff requested
the return of the goods referred to in 1(a) to
(i) inclusive and 1(k) to 1(y) inclusive of the
Statement of Claim and says that she lawfully
failed to return those goods because the
plaintiff failed to pay her the agreed reasonable
cost of their storage as requested but denies
that the Plaintiff was at any material time the
owner of or in possession of 9 stamp albums
referred to in 1(j) of the Statement of Claim or
that the said albums contain the stamps alleged
by the Plaintiff to have been contained therein
or that she was ever in possession of the said 9
stamp albums or any of them or the stamps
allegedly contained therein but admits that the
Plaintiff left with her for a time 6 stamp albums
containing many fewer stamps of much lower value
than the Plaintiff alleges and says that the
Plaintiff again took possession of those 6 stamp
albums and their contents in or about the month
of November 1985 before action commenced."

There be judgment for the plaintiff against the defendant on the claim and

the counterclaim.

The defendant pay the plaintiff the sum of $45,184.74 the assessed value of the goods described in the schedule hereto.

The defendant pay the plaintiff the sum of $3,125.00 damages assessed for the detention of the said goods.

The defendant pay the plaintiff's costs of the action to be taxed including all costs reserved except that each party pay his or her own costs in respect of the appearances on 15 and 24 June 1988.

SCHEDULE
"1. 'IITTALA' Orrefors whisky decanter.
2. Various Tupperware items
3. Nine stamp albums
4. Two candlestick holders of Boda glass
5. Two pink glass fruit bowls
6. One blue 'IITTALA' fruit bowl
7. Three Italian purple/blue vases
8. 'IITTALA' glasses being 18 champagne
glasses, 10 beer glasses, a further 18
beer glasses, 12 whisky liqueur glasses,
6 large whisky glasses, 1 beer mug and 11
wine glasses

DECISION

This is an action seeking the return of certain property or its value. The plaintiff claims that he is and was at all material times the owner of property detailed in paragraph 1 of his statement of claim indorsed on the writ. He acknowledges that some of the items claimed have now been returned so that in substance his claim now relates to some glassware, some tupperware and nine stamp albums.

2. The plaintiff alleges that in March 1985 the defendant agreed that, in consideration of her having the use and benefit of the property in question, she would keep it and take care of it at her house at 10 Lord Street, O'Connor, delivering it up on request. He claims that in November 1985 he requested the return of his property but alleges that the plaintiff failed to redeliver it to him and thereafter wrongfully retained it. He alleges, therefore, that the defendant has converted the property to her own use and wrongfully deprived him of it.

3. By her first defence delivered 5 September 1986, the defendant denied that an agreement was entered into in March 1985 in the terms alleged in the statement of claim but admitted that in that month the plaintiff left with her the property enumerated in paragraph 1 of the statement of claim although she denied that it had the value ascribed to it. She alleged further that the plaintiff left the property with her to be held and stored for him on condition that he would pay her a reasonable amount for its storage. She admitted the request for the return of the property but said that she failed to return it because the plaintiff failed to pay her the reasonable cost of storage. She counterclaimed damages.

4. On 18 September 1986 a second defence was delivered. The defence to the statement of claim was in the same terms as in the first defence but the counterclaim added a claim for rent. This claim was based on an agreement said to have been made in November 1985 whereby she agreed to let the plaintiff and one Michael Belcastro reside at her house referred to above on payment of $100 per week rent and board for himself and the said Michael Belcastro. She claimed that the plaintiff refused to pay the agreed rent and board for a period of 4 weeks in all and that accordingly he was indebted to her in that regard in the sum of $450. In other respects the counterclaim was the same as that delivered with the first defence.

5. On 27 November 1986 the matter came before me on a motion by the plaintiff for judgment against the defendant on the admissions made in the pleadings. The defendant by her counsel sought an adjournment but this was refused. During the course of the hearing of the motion very general reference was made to the counterclaim by the defendant but it was not read and my attention was not directed to the paragraph which appeared in both the first and second counterclaims and which read:-

"On or about February, 1986 the defendant
delivered up to the plaintiff's agent the
property enumerated in paragraph 1(j)."

6. The property so enumerated was "Nine stamp albums valued at $30,000". An order was made that the defendant return the plaintiff's property as described in paragraph 1 of the statement of claim. The order was taken out on 28 November 1986.

7. On 5 December 1986 the matter came again before me on an application by the plaintiff for a Mareva injunction. During the course of the hearing of the application counsel then appearing for the defendant, not he who had appeared the week before, directed my attention to the allegation in the counterclaim that in February 1986 the defendant delivered up to the plaintiff's agent the stamp albums, the property enumerated in paragraph 1(j).

8. On the same day the defendant moved for leave to amend her defence and amended counterclaim filed on 18 September 1986 by deleting paragraph 3 of the defence and substituting therefor the following:-

"The defendant admits that in March 1985 the
plaintiff left with her the property
enumerated in paragraph 1 of the statement of
claim save that the defendant alleges that
six (6) only stamp albums and not nine (9)
stamp albums were left with her contrary to
the allegation in paragraph 1(j) of the
statement of claim."

and by adding the following paragraphs:-

"3A. The defendant alleges that the said six
(6) stamp albums were delivered by her into
the plaintiff's possession and that the
defendant has not had possession or control
of them since.
3B. As to the values ascribed to the items of
property in the statement of claim the
defendant denies each and every stated
value."

9. The defence upon which the case proceeded to trial, dated 10 December 1986, was the same as the two earlier defences but the counterclaim was amended pursuant to leave given so that it raised a claim in respect of rent as had been foreshadowed and a claim for a reasonable fee for storage of the plaintiff's property, a fee which was alleged to have been agreed between the parties at $25 per week. A schedule annexed to the counterclaim listed the property which, according to paragraph 3 of the counterclaim, the defendant agreed to store on behalf of the plaintiff for the storage fee referred to above. That list was exactly the same as the list of property which the plaintiff by his statement of claim alleged that the defendant had received from him save that it omitted two items listed in the statement of claim as follows:-

"(f) Italian pottery cooking crocks
(j) Nine stamp albums"

10. The matter eventually proceeded to trial. The plaintiff gave evidence that the defendant failed to return the following items:-

"1. 'IITTALA' Orefice (sic - this should
apparently read Orrefors) whisky decanter -
sub-paragraph 1(d) of the statement of claim.
2. Various Tupperware items - sub-paragraph
1(g).
3. Nine stamp albums - sub-paragraph 1(j).
4. Two candlestick holders of Boda glass -
sub-paragraph 1(l).
5. Two pink glass fruit bowls -
sub-paragraph 1(k).
6. One blue 'IITTALA' fruit bowl -
sub-paragraph 1(n).
7. Three Italian purple/blue vases -
sub-paragraph 1(p).
8. 'IITTALA' glasses being 18 champagne
glasses, 10 beer glasses, a further 18 beer
glasses, 12 whisky liqueur glasses, 6 large
whisky glasses, 1 beer mug and 11 wine
glasses - sub-paragraph 1(s)."

11. He gave evidence that he began to collect stamps in early 1940 and had been collecting ever since. He said that his final object of his collecting as an older man was to make a full collection of Australian stamps from Federation onwards so that he might pass them on to his daughter. He defined a full collection as mint and used copies of all stamps. He said that he had collected blocks for a good proportion of them and first day covers.

12. He gave evidence that he had left 12 albums with the defendant but of these nine only contained stamps that were part of what may be described as his formal collection. He had not sought recovery of the other three albums.

13. He swore that some stamps had been returned to him by the defendant after the action commenced but they were not the stamps referred to in his claim under the heading "Nine stamp albums". They were stamps, first day covers, stamp packs and stamps which his mother had given him and which he kept in a couple of boxes as spares. He had not categorised those stamps and there was no way that he could tell the exact amount that he had in the boxes. However, he was able to list at least very substantially the stamps in the nine albums in respect of which he made his claim and produced a list of those stamps, a list which became exhibit C.

14. He gave evidence also that he had one Indian stamp in his collection. He described it as an 1853 scarlet embossed stamp on a letter, an item of particular value which was in excellent condition, having been stored for over a hundred years in family papers.

15. Although he described it in evidence as an 1853 stamp, it appears more probable that it was an 1852 half anna stamp which had been used to frank a letter in 1853.

16. He gave evidence that he began his collection at Beecroft Grammar School in Sydney. The Headmistress of the junior school was a very avid collector who influenced him to begin collecting himself. She had given him, on two occasions, part of her collection. He said that his mother had, ever since 1940, sent him at least two first day covers on every issue up until about 1985 and used buy him mint stamps too. As well, he bought mint stamps. He said that he never sold any although he swapped a few spares for ones he wished to purchase or update.

17. He said that when he realised that he would not recover the stamps he was pretty devastated because collecting had been, as he described it, "one of my sole interests that I have had that has carried right through my life and I had been looking at this as to carrying it on by giving it to my daughter". He said that he became just disgusted and hurt inside when he realised he was not going to recover the stamps. He was not interested in trying to start again and get back what he had because there was no way that he could do it and he found that very depressing. He considered that his interest in philately had ended. He identified a letter from the defendant which became Exhibit D.

18. He identified the items which he said were not returned to him and which were listed in a letter from his solicitors to the defendant dated 3 June 1987 as items all of which he had purchased.

19. He said that about 60% of his glass collection would have been displayed in a display case located in the defendant's loungeroom. Some other part of it, the evidence does not enable me to say how much, was placed in a display case which was owned by her and which was in the dining room.

20. It appears that the plaintiff's glassware, while at the defendant's address, was always in the house. The defendant, when asked what arrangements she had made for the glassware after the plaintiff left her home, replied that she still left it in the showcase. The stamps, however, she said, were in the garage.

21. It is common ground that eventually the plaintiff left the defendant's home but before leaving asked her whether he could leave his chattels with her. It was put to him that he had been asked by the defendant to leave because he had fallen behind in his board. He denied that and denied further that he had left his glass collection behind for that reason. The defendant gave evidence that she asked him to leave and take his belongings because he was two and a half weeks behind in his rent. She said that he replied,

"I'll take a few things and I'll collect the
other things in a few days when I get a
flat."

22. She said that after two weeks during which he collected nothing she telephoned. He told her that he hadn't yet got a flat. She then said that she told him she would have to charge him $25 a week. She said that he "sort of agreed". She said that she telephoned him a couple of weeks later again and told him that he was not paying any money and that he had not paid the rent. She said that he replied that he had been earning $10,000 a week but had to put it all back into the business. She then said that the plaintiff said to her, "I won't pay you for the store ...". She replied, she said, "So you better take your things; I don't want to be responsible for it."

23. Later, in cross-examination, she agreed that she had said to the plaintiff on the telephone, obviously after she had agreed to store his possessions, "I am going to charge you $25 a week". It was put to her that he had never agreed to pay a storage charge. She replied that he sort of agreed first and had said "Oh, yes, sure, I probably will" and, some couple of weeks later, "Oh, no, look, I cannot afford that".

24. The plaintiff denied any such agreement.

25. In September 1985 she said that she went with friends to ask him to remove his things. He said that he could not. She said that she went back a second time with Mr Thomas West and a couple of weeks after that the plaintiff came and picked up his stuff, presumably from her garage, taking it away in two truckloads in the late afternoon. It is indeed common ground that the defendant visited the plaintiff twice, once with friends who seem to have been Polish and once with Mr West, to ask him to take back his possessions. She said that he then said to her, "I'm going to pick up the glassware tomorrow. I haven't got the money with me. The bank is closed and I'll pick it up tomorrow." She then told him that she was going to move to Queensland and didn't want his stuff at her home. She said that he made out that she had the use of it, but that she had plenty of glassware of her own. I am satisfied that the defendant was insisting on the payment of a large sum of money before she would release the plaintiff's possessions remaining in her house.

26. She then said that the plaintiff never returned and she never heard from him so she thought he was not interested in paying and that he did not want his glassware. She had to pack it all and move it to Queensland, together with a refrigerator. She was asked about the stamp collection and said that it was in the garage where she had put it for the plaintiff to collect after he had left her house and that as far as she knew he had collected it.

27. She also said that at one stage the door of the garage was broken and that she had no key for it. She said that she told the plaintiff that the door had been broken and he said, "I haven't got anything valuable in there". She repeated her statement that he had taken all his property from the garage in two loads in November or thereabouts and that as far as she knew the stamps were in there at the time.

28. In cross-examination she said, inter alia, that the plaintiff had refused to pay for storage and that she had thereafter said that he had to take his things out. She said that she put the stamp albums in the garage and that the plaintiff had collected them. She was not, I am satisfied, in the garage when the plaintiff collected whatever he did from it.

29. The plaintiff, on the other hand, said that the defendant had never told him that his goods had been moved from the house to the garage and said that when he shifted the things out of the garage only a couple of bags had been put there, the remainder of his goods, including the stamps, being still in the house. He said that the only thing that had been put in the garage were a Samurai sword, a rifle and a couple of cooking utensils and that he collected all these in one load.

30. It is to be noted that in cross-examination it was put to the plaintiff that he had abandoned his glass collection and his stamp collection. I do not think that the word "abandoned" was used in the sense of indicating that the plaintiff had abandoned ownership of the goods. The use of the word "abandoned" in the limited sense I have suggested would accord with an answer given by the defendant when she was questioned as to the plaintiff's property left in the house apart from the glassware. She replied, "Mr Graham never returned and I never heard of him, so I thought he was not interested in paying and he does not want his glassware. I had to pack it all and move it to Queensland." She then went on to say, "I packed the glassware and moved it to Queensland, plus a fridge that was still in my house, too, which it was a nuisance." She said that she had had to arrange for it to be moved because the plaintiff did not pick it up. She was asked what she did with the stamp collection after the plaintiff left the house and replied, "I put it in the garage for Mr Graham to collect". She said that as far as she knew he collected it.

31. In evidence-in-chief the defendant said that the plaintiff had on one night shown her and her daughter his stamp collection. She said, "It was six stamp albums and I - in each album there was about three or four pages and in one album was about one page full of stamps and the other pages were all blank." Later she described the collection as very incomplete, with first day covers starting from about 1970 and said that that was all that was in the albums. She said that she never saw anything else. She also gave evidence that the plaintiff had mentioned that someone had stolen $30,000 worth of stamps from him.

32. Despite the order which had earlier been made requiring the defendant to deliver up the nine stamp albums, it will be apparent that much evidence was devoted to the defendant's contention that the plaintiff had recovered all his stamp collection from her home.

33. Having regard to the state of the case this proved to be a most unsatisfactory situation. Accordingly, the matter was restored to the list and eventually it was agreed that the order made on 27 November 1986 might be varied so that it did not relate to the stamp albums referred to in paragraph 1(j) of the statement of claim. The defendant wished only to be in a position to plead that the plaintiff's stamp albums had been returned to him and that the true position was as deposed to by her in her evidence already given.

34. Although no formal order was then made setting aside that part of the order referred to, the matter proceeded generally on that basis although on reflection it seems that the amendment to the defence permitted was not quite adequate to plead the factual situation for which the defendant contended.

35. In the result the case has fallen to be disposed of on the basis that

(a) the defendant admitted that she had at all
material times had in her possession the goods
described in sub-paragraphs 1(a) to 1(i) inclusive
and sub-paragraphs 1(k) to 1(y) inclusive and that
she had these goods in her possession at the date
when the action commenced.
(b) the plaintiff claimed that the defendant had in
her possession his nine stamp albums containing
stamps of considerable value (I will deal with
this matter more fully in due course) while the
defendant alleges that the plaintiff had only six
stamp albums containing many fewer stamps of much
lesser value and that he took away those six
albums from her garage before action commenced.
(c) the defendant had delivered up most of the other
items owned by the plaintiff and in her possession
after action commenced but in any event denied the
value attributed by the plaintiff to the items he
had not recovered from her.

36. The defendant by her counsel advised that she was satisfied with the evidence which she had given when the matter came on for trial. In addition, however, she wished to call Mr West to give evidence.

37. Although the case proceeded on a draft amendment to the defence, it appears that the draft did not, as I have already indicated, adequately set out what the defendant intended to plead and that it should have read along the following lines:-

As to paragraph 4 of the statement of claim the
defendant admits that the plaintiff requested the
return of the goods referred to in sub-paragraphs
(a) to (i) inclusive and 1(k) to 1(y) (inclusive)
of the statement of claim and says that she
lawfully failed to return those goods because the
plaintiff failed to pay her the agreed reasonable
cost of their storage as requested but denies that
the plaintiff was at any material time the owner
of or in possession of the nine stamp albums
referred to in sub-paragraph 1(j) of the statement
of claim or that the said albums contained the
stamps alleged by the plaintiff to have been
contained therein or that she was ever in
possession of the said nine stamp albums or any of
them or the stamps allegedly contained therein but
admits that the plaintiff left with her for a time
six stamp albums containing many fewer stamps of
much lower value than the plaintiff alleges and
says that the plaintiff again took possession of
those six stamp albums and their contents in or
about the month of November 1985 before action
commenced.

38. On consideration of all the evidence I am satisfied that the plaintiff was telling the truth when he said that he left nine stamp albums containing a large quantity of stamps at the defendant's house. I am satisfied that eight of those albums were so full as to be bulging while the ninth contained Antarctic stamps. I am also satisfied that there were other albums but that these contained no stamps which the plaintiff regarded as of material value to him as a collector. In addition, I am satisfied that there were some stamps in two boxes which the plaintiff eventually had returned to him.

39. I am satisfied that a few of the plaintiff's possessions were in the defendant's garage and that following two visits to him at his factory he picked up those possessions from the garage in one load. I am also satisfied that the defendant refused to deliver up the plaintiff's possessions which were in her house, possessions which included what may be broadly categorised as glassware, crystal and the small refrigerator, unless the plaintiff paid her the money she demanded. I do not think that there was any concluded agreement between the parties that the defendant should store the plaintiff's possessions in her house for a fee of $25 per week.

40. I am satisfied too that the defendant had no legal right to what could only have been a particular lien in respect of the goods she refused to deliver up. See Judson v. Etheridge (1833) 1 Cr & M 743 (149 ER 598); Re Southern Livestock Producers Ltd (1964) 1 WLR 24 and Majeau Carrying Co Pty Ltd v. Coastal Rutile Ltd [1973] HCA 22; (1973) 129 CLR 48.

41. Because I am satisfied that the plaintiff, whose evidence was supported to a limited extent by his mother's, was telling the truth about the number of albums of stamps which he left at the defendant's house, I am unable to accept the evidence given by the defendant and her daughter that there were only six albums containing only a few or relatively few stamps nor did I accept Mr West as a witness of truth.

42. It is significant that in her counterclaim first filed and in her second counterclaim the defendant alleged:-

(1) In March 1985 she agreed to store certain property
for the plaintiff on condition that the plaintiff
would pay a reasonable fee for its storage and
(2) on (sic) or about February 1986 she delivered up
to the plaintiff's agent the property enumerated
in paragraph 1(j) (the nine stamp albums).

Particulars were sought. Her solicitors replied on her behalf.

43. They identified the "certain property" as property belonging to the plaintiff, namely furniture, records, a rifle, clothing and glassware and the "reasonable fee" as the sum of $25 per week said to have been agreed between the parties in a telephone coversation between them during March or April 1985.

44. As to the allegation concerning delivery up to the plaintiff's agent of stamp albums, the plaintiff's solicitors asked the name and address of the person alleged to be the plaintiff's agent and on what basis it was alleged that the defendant was led to believe that the person referred to as the plaintiff's agent had been appointed by him as his agent. The reply was as follows:-

"(a) Mr Thomas West whose current address is
not known.
(b) The appointment of the agent by the
plaintiff was implied in that the defendant
was of the belief that Mr West was a friend
of the plaintiff and would convey the stamp
albums to the plaintiff. The defendant
further denies that she ever had in her
possession nine stamp albums but that the
number of stamp albums were only six.
(c) The said property was taken by the
plaintiff's agent in the circumstances
referred to in paragraph (b) and no money was
paid to the defendant by the plaintiff's
agent.
We are further instructed that if the said
stamp albums were not collected by the
plaintiff's agent as claimed then they were
collected in person by Mr Graham from the
premises at 10 Lord Street O'Connor in the
ACT.
We are instructed that the date on which the
said stamp albums were collected by the
plaintiff's agent or by the plaintiff
personally would have been on (sic) or about
November 1985 and not February 1986 as
previously claimed."

45. Accepting that the defendant was a gratuitous bailee, she was bound to take reasonable care of the goods bailed and to deliver them up when an unequivocal demand was made. If she failed to deliver the goods she is liable for their value unless she can show that they have been lost without negligence or default on her part. Mitchell v. Ealing London Borough Council (1979) QB 1. This she failed to show.

46. It is to be noted that in evidence the defendant's daughter described the plaintiff's property as "glassware, a few boxes of junk and six stamp albums that did not contain much".

47. The defendant endeavoured to explain the answers to the request for particulars by saying that her solicitors had misunderstood her. I did not accept this explanation. She seemed to me to understand the English language perfectly well as appears from the letter, Exhibit C, which she wrote, her emphatic statement in the witness box that she understood English and her general command of the language as she gave evidence.

48. I am also satisfied that when the plaintiff called on the defendant to collect his possessions on 30 November 1986 some of the items which the defendant had had in her possession were not returned to him. In this regard I accept that the plaintiff's solicitors' letter of 3 June 1987 sets out accurately the goods which were not returned.

49. I turn to the question of damages.

50. Mr Rabey, a retailer of tableware, china, glass, silver and cutlery for some 15 years, gave evidence of the present replacement costs of the glass and crystal ware that were not returned to the plaintiff. I accept that evidence but I cannot accept that the figures given represent the value of those items in the hands of a private owner. In the absence of any other basis upon which I might proceed it seems to me to be fair to take one half of the value (really the replacement cost) ascribed to the items by Mr Rabey and to assess that fraction as the value of the goods in question. On that basis, taking, where a range of figures was given, the median figure, I assess the value of the glass and crystal ware not returned at $878.00. I assess the value of the Tupperware not returned at $60.

51. In assessing damages for conversion of the stamps contained in the nine albums I follow with respect the view expressed by Lynskey J in Munro v. Willmott (1949) 1 KB 295. At pp 298-9, he said:-

"In my view, the statement of the law in
Salmond on Torts (10th ed., p 309), is
correct: 'If, on the other hand, the property
increases in value after the date of the
conversion, a distinction has to be drawn.
If the increase is due to the act of the
defendant, the plaintiff has no title to it,
and his claim is limited to the original
value of the chattel.' Reid v. Fairbanks
((1853) 13 CB 692: (138 ER 137)) is
referred to, and the text continues: 'If,
however, the subsequent increase of value is
not due to the act of the defendant, but
would have occurred in any case, even had no
conversion been committed, the plaintiff is
entitled to recover it as special damage
resulting from the conversion, in addition to P]N
the original value of the property converted:
as when goods taken or detained have risen in
value by reason of the fluctuation of the
market.' That is the measure of damages in
conversion.'
The measure of damages in detinue, it seems
to me, must be similar, if not the same."

Cf. Salmond on Torts, 17th Ed., pp 565-67.

52. Any increase in value since the date of the conversion not due to anything done by the defendant would accordingly seem to be special damage as defined by Lynskey J (supra) provided the plaintiff did not delay in seeking to recover his property. The approach just referred to accords, I think, with that taken by the Full Court of the Supreme Court of Victoria in Ley v. Lewis (1952) VLR 119 at pp 121-2. See also Haddon v. Duke Co. (NL) (1892) 18 VLR 155.

53. As to the value of the stamps I accept the plaintiff's evidence that the stamps which were contained in the nine albums are correctly listed so far as he can list them in Exhibit C and I accept the evidence of Mr Wood, it was not seriously challenged, that the value of the Australian and Antarctic stamps as at the date of their valuation was $29,958.00. I also accept his evidence that the Indian stamp was valued at the same time at 6,500 pounds Stg. or, having regard to present value, at $13,000 approximately. To that total there should be added an increment of 3% of it as the amount by which the value of the stamps was shown to have increased since the date of valuation. I have allowed for the fact that action was not commenced for some eight months and for other delays not the fault of the defendant.

54. The plaintiff claimed general damages in respect of the conversion and, in particular, in respect of the loss of his hobby. It seems to me that general damages in respect of such a loss are payable in accordance with the doctrine enunciated in Jarvis v. Swan Tours Ltd (1973) 1 QB 233. That that doctrine is certainly applicable in contract appears from the earlier case of Athens-Macdonald Travel Service Pty Ltd v. Kazis (1970) SASR 264 where Zelling J discussed a number of similar cases. See also Jackson v. Horizon Holidays Ltd (1975) 3 All ER 92 and Heywood v. Wellers (a firm) (1976) QB 446. Admittedly Jarvis's case and the holiday cases generally were concerned with damages for breach of contract but I do not see why the same general approach cannot be taken in respect of damages for tort. The applicability of the doctrine in tort, restricting such damages as an element of general damages, appears from Ichard v. Frangoulis (1977) 2 All ER 461. In this case the distress of the plaintiff at the loss of his hobby, distress of which he gave evidence which I accepted, was plainly foreseeable.

55. I do not think any large sum should be awarded the plaintiff on account of general damages, including loss of his hobby, for the conversion. Doing the best I can I think the appropriate amount to award for general damages is $2,500.

56. The plaintiff has claimed interest under s.53A of the Australian Capital Territory Supreme Court Act 1933. That section requires that interest on damages be awarded in accordance with its terms unless good cause be shown. It seems to me that this is a case where good cause is shown by virtue of the very facts of the case. The plaintiff did not deal in stamps. He was purely and simply a collector. It seems to me he had an asset which was not one capable of producing income in the circumstances.

57. It seems to me that if the plaintiff recovers the value of his stamps and glassware he will be adequately compensated and good cause against an award of interest on damages, except some part of his general damages, is shown. As to interest on those damages I allow a lump sum of $625.00.

58. I turn to the counterclaim. I do not accept, for the reasons set out above, that there was any concluded agreement between the parties in respect of the alleged storage charge. So far as the claim in respect of board and lodging is concerned, I prefer the evidence of the plaintiff that he paid everything he was required to pay under the agreement which he had with the defendant. The counterclaim must therefore be dismissed.

59. There must therefore be judgment for the plaintiff on his claim and on the counterclaim.

60. I will hear argument on the formal orders which ought to be entered and on the question of costs.