Chubb Cash Ltd v John Crilley & Son
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX,MR. JUSTICE BUSH |
| Judgment Date | 20 January 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0120-2 |
| Docket Number | 83/0053 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 January 1983 |
[1983] EWCA Civ J0120-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(His Honour Judge Wilson)
Royal Courts of Justice
Lord Justice Fox
and
Mr. Justice Bush
83/0053
8073813
MR. JOHN J. WAIT (instructed by Messrs Sharpe, Pritchard & Co., agents for Messrs Bosworth Bailey Cox & Co., Birmingham) appeared on behalf of the Appellants (Defendants).
MR. JEREMY V. COUSINS (instructed by Messrs Kent, Jones, Done & Co., Stoke-on-Trent) appeared on behalf of the Respondents (Plaintiffs).
This is a claim for damages for conversion. A hire-purchase agreement was made on 21st October 1977. The plaintiffs let to the purchaser (I will call him the "debtor" for convenience) a cash register. The period of payment was six months. The hire-purchase price was £1,755 plus VAT, the monthly instalments were £27.29. The property in the cash register did not pass to the debtor under the agreement until the final instalment was paid.
In November 1977 the plaintiffs entered into an agreement (which I will call "the assignment") with Barclay Masterloan Ltd., whereby the hire-purchase instalments were assigned to Masterloan in consideration of payments by them to the plaintiffs of a cash sum. It was provided by the assignment that, if the debtor defaulted upon payment of an instalment, the plaintiffs would repay Masterloan the amount of the cash sum paid by Masterloan less any payments made by the debtor to Masterloan. The plaintiffs retained the property in the goods under the assignment.
The plaintiffs manufacture cash registers and they have no difficulty in meeting the demand for them. There is a large profit element in the sale price, though we have not been told precisely what it is, nor is there any evidence of the cost of manufacture.
The defendants are bailiffs. On 30th July 1979, they acted on behalf of the Commissioners of Customs and Excise to execute a judgment obtained by the Commissioners against the debtor, and for that purpose they executed a distraint warrant against the debtor's goods. The debtor assured the defendants that the cash register was his and they distrained upon it. They removed it to their own premises where they stored it until it was auctioned in September, as I will mention in a moment.
The defendants put the cash register into a public auction sale on 11th September 1979 at Clare's Auction Rooms in Birmingham. Cash registers were regularly sold there. On 11th September 1979 other cash registers were being offered. Clare's, it seems, had a weekly auction of up to 500 lots. The attendance was about 50 to 100 dealers and members of the public. The cash register was sold at the auction for £155 plus VAT. The defendants received net £126.50 which they duly paid over to the Customs and Excise.
Under the terms of the assignment, the plaintiffs paid Masterloan £951.55 by reason of the default of the debtor to pay instalments.
This action was commenced by the plaintiffs in the Birmingham County Court where they sought damages for the conversion. At the trial the defendants submitted to judgment for damages for conversion of the cash register, so the only question was and is the amount of damages.
The judge assessed the damages at £951.55, which was the amount the plaintiffs had to pay Masterloan under the assignment by reason of the debtor's default in paying the instalments.
The defendants appeal. They say that the proper measure of damages is £178 being, it is said, the value of the goods at the time of the conversion.
Prima facie, the measure of damages for conversion is the value of the goods at the date of the conversion. I refer, for example, to the observations of Lord Denning in Wickham Holdings -v- Brookhouse Motors (1967) 1 WLR, 295 at p.299. The judge, however, was influenced by two decisions of this court, namely the Wickham Holding case, to which I have just referred, and the later decision in Belvoir Finance -v-Stapleton (1971) 1 QB, 210. In both of those cases the measure of damages permitted was held to be the actual loss to the plaintiffs which, on the facts, was the amount still owing under the hire-purchase agreement at the date of conversion.
I do not think those cases are of assistance here. The object of the court in those decisions was not to give the plaintiff more than the value of the chattel at the date of the conversion, but less. The court regarded it as unjust that, if the hire-purchase owner had only a limited interest in the goods (i.e. the outstanding instalments), he should recover their full value. The damage, therefore, was limited to the actual amount of the loss, that is to say the amount still outstanding under the hire-purchase agreement.
The plaintiffs assert in the present case, on evidence that I will mention in a moment, that the value of this property to them was £875. That, however, is less than the amount which they are claiming as damages.
At this point I should mention the evidence that was relied upon by the plaintiffs as to the value of the chattel. First of all, in the agreed statement of facts, it is stated that, on 30th July 1979, "the plaintiffs had the right to repossess the register. If they had done so they would have put a new case on it at a cost of £25 and would have offered it for sale at a price of approximately £900." It appears from the judge's notes of evidence that Mr. Carey, on behalf of the plaintiffs, gave evidence to this effect: "On repossession, either sell as it stood or put new case on and re-sell. We do sell secondhand. £900 with new case costing £25, net £875". He then produced an agreement in relation to a transaction in December 1979. The judge's note continued: "950, discount £50 = £900. Identical machine."
In those circumstances the contention of the plaintiffs is that, on the basis of the decisions in Wickham Holdings and Belvoir, and the principles there annunciated in relation to the right of the plaintiffs to recover what they had in fact lost, the amount which they had lost is the amount which they had failed to recover from the debtor which is about £12,000 or alternatively it must be the £951.55 which they had to pay to Masterloan under the assignment in consequence of the default by the debtor (which was the sum actually awarded by the judge). I do not think that that can be correct. The Wickham case and the Belvoir case are quite different as they are concerned solely with the problem which arises where the hire-purchase company seeks to recover in respect of the conversion an amount which is more than the amount still outstanding under the hire-purchase agreement, which the court in those cases thought to be unfair. The cases are not authorities for the proposition that the hire-purchase company can recover the value of the chattel at the date of conversion or the outstanding instalments, whichever is the greater. Their purpose was to limit the damages.
In my opinion, in the present case, the ordinary rule applies and the measure of damages is the value of the cash register at the date of conversion which, it is common ground, was 30th July 1979. I see no reason for displacing that rule here.
I therefore approach the matter to consider what, on the evidence before the court, was the value of this chattel at the date of conversion (30th July 1979). In approaching that, I observe that the chattel was sold at a public auction in rooms which hold...
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