Murphy v Doman & Ors [2004] NSWCA 419 (11 November 2004)

Last Updated: 18 November 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Murphy v. Doman & Ors. [2004] NSWCA 419

FILE NUMBER(S):

40149/04

HEARING DATE(S): 11 November 2004

JUDGMENT DATE: 11/11/2004

PARTIES:

David Murphy - claimant

Ronald Peter Doman as representative of the Estate of the Late Minnie Jessie Simpson - 1st opponent

Ronald Peter Doman - 2nd opponent

JUDGMENT OF: Hodgson JA Bryson JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 8149/98

LOWER COURT JUDICIAL OFFICER: Knight DCJ

COUNSEL:

Claimant appeared in person

Mr. M. Barno for opponent

SOLICITORS:

Boyd House & Partners, Sydney for opponent

CATCHWORDS:

DAMAGES - Conversion - Value of memorabilia

LEGISLATION CITED:

DECISION:

Application for leave to appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40149/04

HODGSON JA

BRYSON JA

Thursday 11 November 2004

MURPHY V. DOMAN & ORS.

Judgment

1 HODGSON JA: This is an application for leave to appeal from a decision of Knight DCJ, the ultimate effect of which was a verdict in relation to conversion in the sum of $8,950.00, and consequent costs orders made against the claimant because this sum was less than a settlement offer of $30,000 which had previously been made by the opponents.

2 A large part of the submissions advanced by the claimant seek to advance the proposition that damages should have been awarded on a contract rather than a tort basis, or alternatively there should have been an award on the basis that the converted goods should be treated as goods sold to the defendants in respect of which the claimant was an unpaid seller.

3 In my opinion there is no legal basis for that proposition whatsoever. The only matter which it seemed to me raised the possibility of a challenge to the primary judge's decision was the possibility that the judge had not given sufficient weight to the Armory v Delamirie principle, and had not adequately addressed the question of the value to the claimant of memorabilia collected by the claimant over a long period of time. In relation to the latter, the judge assessed a market value and then went on to award an additional sum of $3000 for what he referred to as the loss of sentimental value and distress and inconvenience. I would add that in his final judgment on the matter the judge did refer to the case of Armory v Delamirie.

4 In my opinion there is insufficient doubt concerning the primary judge's judgment to justify the grant of leave to appeal. As I have said, the judge did refer to Armory v Delamirie, and he did in substance address the question I have indicated of the particular value to the claimant of his memorabilia collected over a long period of time. Another judge may have put a higher value on that, but this is a matter as to which there are no clear standards which can be applied, and in such matters appeal courts are very hesitant in intervening in the decision of a primary judge.

5 I would add that it does seem to be most unlikely in any event that any different assessment would result in a verdict which would affect the substantial matter of costs by bringing the total verdict to something in excess of $30,000.

6 For those reasons in my opinion a case for the grant of leave to appeal has not been made out and in my opinion leave should be refused.

7 BRYSON JA: I agree.

8 HODGSON JA: The order of the Court is the application for leave to appeal is dismissed with costs.

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LAST UPDATED: 16/11/2004