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  4. Kloprogge v Queensland University of Technology - [2017] QDC 43

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Kloprogge v Queensland University of Technology[2017] QDC 43

Kloprogge v Queensland University of Technology[2017] QDC 43

DISTRICT COURT OF QUEENSLAND

CITATION:

Kloprogge v Queensland University of Technology [2017] QDC 43

PARTIES:

JACOB TEUNIS KLOPROGGE

(Plaintiff)

v

QUEENSLAND UNIVERSITY OF TECHNOLOGY

(Defendant)

FILE NO/S:

D 3503/13

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 – 24 August 2016

JUDGE:

Searles DCJ

ORDER:

  1. The Defendant pay the Plaintiff the sum of $663,000.00 in damages for breach of contract.
  1. The parties are to deliver written submissions on costs.

CATCHWORDS:

DEEDS – DEED OF RELEASE – OTHER MATTERS – where the Plaintiff and Defendant entered into a deed of release for the return of the Defendant’s personal mineral collection – where the Defendant alleges the entire collection was not returned to him – where the defendant claims damages for breach of contract – where the claim relies on alternative causes of action – whether the Defendant is liable for the loss of the mineral collection

DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where the Defendant was found liable for the loss of the mineral collection – where the valuation of the mineral collection was put in issue – whether the mineral collection could be valued in the absence of a visual inspection – whether the valuation of the Plaintiff was reasonable.

COUNSEL:

DD Keane for the Plaintiff

DP De Jersey for the Defendant

SOLICITORS:

Aitken Whyte Lawyers for the Plaintiff

Minter Ellison for the Defendant

  1. [1]
    By Amended Claim and Statement of Claim filed 17 October 2014 (‘Amended Statement of Claim’), the Plaintiff claims damages for breach of contract also relying on alternative causes of action of detinue, conversion and negligence. In the alternative, the Plaintiff seeks an order that the Defendant deliver up certain property pursuant to section 80(2)(a) of the Civil Proceedings Act 2011 (Qld).
  1. [2]
    The Plaintiff’s primary claim is for breach of a Deed of Release entered into on 23 May 2012 (‘the Deed’) by him and the Defendant. All claims relate to the loss of the Plaintiff’s Mineral Collection and certain Personal Items[1]allegedly kept at QUT.

The Mineral Collection

  1. [3]
    The Plaintiff is a collector of minerals, having started his collection from an early age in the Netherlands. Over the course of his life, he built up various mineral collections, including:
  1. a)
    a Beryl Collection (‘Beryl Collection’);
  2. b)
    a Topaz Collection (‘Topaz Collection’);
  3. c)
    a Beryllium minerals collection (‘Beryllium Collection’);
  4. d)
    a collection of minerals from the Clara Mine (‘Clara Mine Collection’);
  5. e)
    a Display Collection (‘Display Collection’); and
  6. f)
    a collection from Texas Tech University (‘Texas Tech Collection’).

(collectively ‘the Mineral Collection’)

  1. [4]
    In or about 1996, the Plaintiff created an excel spreadsheet cataloguing the contents of his collection. In August 2007 a back-up of that catalogue was copied to a CD-ROM (‘Mineral Collection Catalogue’). A CD and printout of the complete Mineral Collection Catalogue is part of Exhibit 17. The CD properties show that the catalogue was created on 4 August 2007, prior to any dispute between the Plaintiff and the Defendant.
  1. [5]
    In 1997, the Plaintiff, then resident in the Netherlands, was appointed a post-doctoral research fellow with the Defendant and as part of that appointment, the Defendant arranged for the Plaintiff’s mineral collection at the time to be shipped from the Netherlands to Australia. Other than the Texas Tech Collection, each of the collections within the Mineral Collection was largely complete at the time the Plaintiff emigrated to Australia.
  1. [6]
    As I have said, the Defendant arranged the consignment of the Mineral Collection to Australia from the Netherlands.[2]The consignment record dated 12 January 1998 invoices ‘QLD UNIVERSITY OF TECHNOLOGY ACCOUNTS PAYABLE’ and records that the mineral collection is contained in 15 boxes. Attached to that consignment record is a copy of an insurance form recording the nominated value of the items to be transported at 50.992,00 Dutch Guilder.[3]At the time, this was roughly equivalent to AUD$40,000. The Plaintiff acknowledged that between 2007 (date the collection was last catalogued 4 August 2007) and 2012 (Deed of Release dated 23 May 2012) no further minerals were acquired, except for the Texas Tech Collection, and that roughly 95 per cent of the Mineral Collection was shipped to Australia from the Netherlands.[4]

Employment at QUT

  1. [7]
    Between 2000 and 2008, the Plaintiff was employed as an associate lecturer and then lecturer with the Defendant in the School of Chemical, Earth and Life Sciences as it was then known. During this period of employment, the Plaintiff stored the Mineral Collection in his office at QUT in display cabinets provided by the University. The Plaintiff acknowledged that parts of the Mineral Collection were kept in a separate research laboratory storage room (‘Level 4 Research Laboratory’).[5]
  1. [8]
    The Plaintiff has suffered from nerve pain, related to Multiple Sclerosis, since the age of seventeen. In 2007, this condition worsened resulting in severe pain in his hips, coccyx, legs, right groin, lower back, shoulder and neck. By 2008, the Plaintiff took extended sick leave from the university. In early 2009, he met with the Acting Head of School, Professor Godwin Ayoko and was asked to temporarily not access the university campus until a medical clearance was obtained.[6]
  1. [9]
    The Plaintiff’s evidence was that this meeting was the last time he saw the Mineral Collection complete and intact. This was his recollection:
‘MR KEANE:Do you recall when that meeting was?
DR KLOPROGGE:That was in early 2009.
MR KEANE:Were you minerals intact at that time?
DR KLOPROGGE:Everything was in order at that date.
MR KEANE:Have you seen your minerals after that date?
DR KLOPROGGE:Only the minerals that came home with the removalist as part of the deed that we signed in 2012‘.[7]
  1. [10]
    The Plaintiff’s employment history indicates his last date of tenure as a lecturer was 10 August 2010.[8]He was not informed that his employment with the Defendant had been terminated at this date.[9]Notwithstanding, it is apparent that by 5 October 2011 the Plaintiff had returned to the Defendant all keys in his possession allowing him access to the university.[10]He says that at no point from 6 October 2011 onwards did any QUT personnel respond to his request for the return of the Mineral Collection or Personal items (identified in the Amended Statement of Claim Annexure A). However, under cross-examination he conceded he did not ask for access to the campus to retrieve any of his property.[11]Indeed, the evidence of the Defendant’s witnesses confirm that prior to 2012 they were not asked by the Plaintiff for access to the campus to collect his personal property.[12]
  1. [11]
    When the Plaintiff became aware his employment with the Defendant had been terminated, he lodged claims against the Defendant with both the Fair Work Ombudsman and the Human Rights Ombudsman. Ultimately, these claims were resolved as evidenced by the earlier mentioned Deed of Release dated 23 May 2012.[13]

Events prior to the Deed of Release

  1. [12]
    Following the Plaintiff’s termination of employment from QUT, the contents of his office room at E508 Level 1 E Block (‘E508’) were packed up and moved. To that end, Mr Mike Major Project Officer (Facilities) at QUT arranged for 50 packing boxes to be delivered to E508 on Wednesday 15 June 2011.[14]Following removal of the Plaintiff’s belongings, E508 was occupied by Professor Graeme Millar, of the Science and Engineering Faculty.[15]The two locked, glass-fronted cabinets in which the Display Collection were housed were not moved from E508 at this stage.[16]They remained in E508 during Professor Graeme Millar’s occupation of that room. He did not have a key to the cabinets.[17]The Defendant intended that the remainder of the Plaintiff’s property (other than the Display Collection) then located in his office at E508 would mostly be moved and stored in a nearby location E113 according to Dr Wayde Martens of the Defendant.[18]In 2012, other of the Plaintiff’s property, previously stored in the Level 4 Research Laboratory, was also moved into a new lab in room E517.[19]
  1. [13]
    On 9 October 2011, Ms Catrina Dieckmann-Scott, the Defendant’s Manager Policy and Workplace Relations, Human Resources Department confirmed with the Plaintiff’s legal representative, Mr Elliott Dalgliesh that ‘Dr Kloprogge’s belongings have been located and they have been safely stored at QUT since his departure’.[20]
  1. [14]
    Subsequently a series of emails followed outlining the minerals the Plaintiff said were still at the university. On 9 May 2012 at 2.58pm, Mr Dalgliesh sent an email to the Defendant’s solicitors attaching a spreadsheet detailing the Clara Mine Collection, described in the email correspondence as the ‘Special Minerals Collections List’.[21]This email also spoke of a further inventory list, the ‘Teaching Minerals Collections List’ which was subsequently to be sent through to the Defendant’s solicitors. The email forwarded previous correspondence between the Plaintiff and Mr Dalgliesh which provided ‘background information…in relation to his mineral collection’ and described ‘special collections’, which were separate to the Display Collection and included, ‘[a] topaz collection, beryl collection, beryllium minerals micromounts collection and the Clara Mine, Germany micromounts collection.’[22]
  1. [15]
    Later that same day at 5.53 pm on 9 May 2012, Mr Dalgliesh sent a further email attaching another schedule described as the ‘Teaching Minerals Collections List’.[23]This email also provided a forwarded email from the Plaintiff detailing, at some length, journals, books and miscellaneous property which the Plaintiff maintained was still at the QUT premises.[24]Mr Dalgliesh then sent a further email the following day to the Defendant’s solicitors dated 10 May 2012, advising of additional property to be returned which included, ‘two cardboard removalist boxes with minerals given to Dr Kloprogge from Texas Tech University when they appointed him as their Adj. Professor.’[25]
  1. [16]
    In response, the Defendant’s solicitors sent an email to Mr Dalgliesh dated 10 May 2012 in the following terms:

‘To confirm our recent telephone conversation, we have been advised by QUT that Dr Kloprogge’s property has been secured in his office on site. QUT is not in a position to go through the list of material provided by Dr Kloprogge to check whether every item is there, but QUT will deliver all of the relevant property in his office to Dr Kloprogge once the Deed is signed…’[26]

Deed of Release

  1. [17]
    On or about 23 May 2012, the Plaintiff and the Defendant entered into the Deed whereby the Plaintiff agreed to release the Defendant from all liability in respect of all claims previously made against the university. Clause 6 of the Deed provided for the delivery by the Defendant of certain property to the Plaintiff and proceeded:

‘6.  Delivery of Property

Upon receipt of the fully executed copy of this deed, QUT will at its own expense return Dr Kloprogge’s mineral collection, which is currently securely stored on QUT’s premises. QUT is also prepared, if Dr Kloprogge’s wishes to give him the cabinets in which the mineral collection is currently stored.

QUT will also return all of Dr Kloprogge’s other property such as books, journals and CDs) which are stored on QUT’s premises.’

(‘Clause 6’)

Events after the Deed of Release

  1. [18]
    By email dated 29 May 2012, Mr Major confirmed with Ms Jane Banney, Associate Director of Client Services, details of the property to be returned to the Plaintiff. He also obtained a quote and engaged a removalist to facilitate that return. The property to be returned was identified in these terms:

‘The items to be moved are:

Approx 250 individual rock samples

26 boxes containing books and papers

3 x 4 draw filing cabinets containing papers

2 x wooden cabinets (for rock collection)

1 old small printer and 1 old monitor

3 crates’.[27]

(‘Initial Delivery of Property’)

  1. [19]
    The Initial Delivery of Property to the Plaintiff was on or about 31 May 2012 eight days after the execution of the Deed by the parties. Some days later on 4 June 2012, Mr Dalgliesh, on behalf the Plaintiff, wrote to Jane Banney attaching an email sent to him by the Plaintiff in the following terms:

‘I just finished going through all the boxes delivered by QUT last Thursday afternoon and my worst nightmare has come true. The majority of my mineral collection is missing. The Texas Tech University teaching/reference collection, the topaz collection, the beryl collection, the Beryllium minerals micromount collection and the Clara Mine (Germany) micromount collection are completely missing and the display collection (which was in the display cabinets) is missing the majority of specimens (there are just enough specimens left to fill less than 1 cabinet and than only with the low value ones, all the high value specimens are all missing) and the box with handwritten catalogue cards with bags attached with original labels (which means this collection, what’s left of it, has lost its pedigree and therefore a significant part of its value). I have highlighted in yellow the missing minerals in the display collection document.

It looks like I am also missing some books and other stuff (in particular from the 5 4-drawer filing cabinets and I have only 6 removalist boxes filled with files) but won’t know for  sure until I have made room to put it all away in a systematic fashion.’[28]

(‘Initial Demand Email’)

  1. [20]
    The Defendant submits the Plaintiff’s evidence as to how he ascertained that the property delivered to him was incomplete is unsatisfactory showing the Plaintiff is not a witness of credit.[29]After the Plaintiff described his inspection of what was delivered to him, the following exchanged occurred:
‘KLOPROGGE: I opened all the boxes. And started to go through it, and I unpacked them yes.
MR DE JERSEY: And you put them all out on the floor what you then had, and then you spent many hours, did you say, looking at them?
DR KLOPROGGE: Yes.
MR DE JERSEY: Now in order to satisfy yourself as to what you had received and what you hadn’t received, did you use any documentation?
DR KLOPROGGE: No.’[30]
  1. [21]
    The Defendant submits it is ‘remarkable’ that the Plaintiff would be able to ascertain precisely what was missing from his Mineral Collection merely by visually inspecting the Initial Property Delivery without reference to any written records.[31]I do not accept such criticism. The Plaintiff has been an avid collector of minerals from an early age and it is not unreasonable to expect that he would be extremely familiar with the contents of his own collection. Further, it is the Plaintiff’s case that entire collections are missing, including for example, the Topaz Collection. Further, he alleges the majority of his Display Collection was not returned. I accept that any omissions from that collection would be readily identifiable by the very nature of the collection as one always on display. Once the Plaintiff had obtained the Mineral Collection Catalogue located on CD-ROM within the Initial Property Delivery, he then began to cross-reference what had been returned with what appeared on the Mineral Collection Catalogue.[32]
  1. [22]
    Upon receipt of the Initial Demand Email, QUT arranged for an internal search across the faculty premises in an attempt to locate any remaining property of the Plaintiff. These further searches resulted in nine further mineral samples being found in the Plaintiff’s original office at E508.[33]These items of the Plaintiff’s property are particularised at paragraph 3(a)(ii) of the Amended Defence.  In response, Mr Dalgliesh sent further email correspondence detailing further information regarding the missing Mineral Collection and Personal Items still not returned to the Plaintiff. The email attached three spreadsheets which the Plaintiff asserted remained missing from the Mineral Collection.[34]The lists provided in this email included those earlier provided to the Defendant on 9 May 2012 and 10 May 2012.
  1. [23]
    A further search of the QUT premises on 8 June 2012 revealed yet more items of the Plaintiff’s property including ‘some floppy disks which belong to Theo and a few other worthless items’.[35]On 19 June 2012, Mr Dalgliesh sent a further email to the Defendant and its solicitors enclosing a further list of items alleged still to be missing from the Mineral Collection and of various Personal Items.[36]
  1. [24]
    On 4 July 2012, the Plaintiff sent a formal letter of demand to the Defendant calling on the Defendant to deliver all of the Plaintiff’s property of mineral collections, books, journals, CDS, etc., which are currently securely stored on QUT’s premises (‘Letter of Demand’).[37]That Letter of Demand attached a full inventory of the items alleged to be missing.
  1. [25]
    Subsequently, on two occasions in 2012, the Defendant arranged for the Plaintiff to personally conduct searches of its premises. He attended the university and was provided unrestricted access to search for his property.[38]He was accompanied by QUT personnel. Needless to say, these further searches were unsuccessful in locating the alleged missing property.
  1. [26]
    On 6 July 2012, Ms Caterina Dieckmann-Scott of the Defendant, sent email correspondence to the Plaintiff in these terms:

‘QUT has, in good faith, fulfilled its obligations under this clause and has returned to you all property located on QUT’s premises owned by you. I appreciate that it has been a number of years since you were present on the campus and a number of significant organisational and physical changes have occurred since that time with school and faculty mergers. Despite this, every effort has been made to locate any further property listed by you.

A number of searches have been conducted over the past several weeks in an attempt to located property listed by you as missing but, with the exception of a number of discs which will be posted to you shortly, we have been unable to locate any property owned by you, additional to that already returned to you.’[39]

  1. [27]
    However, at odds with the above email, on 20 July 2012 the Plaintiff was informed by the Defendant that three further boxes of ‘reference material and minerals’ had been located and returned by Dr Wayde Martens.[40]Dr Martens had previously been identified by the Plaintiff as one of a number of individuals who had access to his property both during his employment at QUT and his subsequent absence. He was told by email dated 20 July 2012 that the other individuals identified by the Plaintiff as having access to his collection were no longer employed by QUT as at 20 July 2012.[41]

Breach of the Deed of Release

  1. [28]
    For the Plaintiff’s claim under the Deed to succeed, it must be established that the Plaintiff’s Mineral Collection and Personal Items were at QUT at the date of the Deed 23 May 2012 and not returned to him in terms of the Defendant’s obligation under the Deed. This necessarily requires the Plaintiff to identify the following;
  1. a)
    the existence of the Mineral Collection and Personal Items;
  2. b)
    his ownership of such property;
  3. c)
    that such property was located at QUT at the date of the Deed; and
  4. d)
    that QUT failed to return such property in breach of Clause 6.
  1. [29]
    The terms ‘mineral collection’ and ‘other property’ used in Clause 6 are not defined in the Deed. The Plaintiff submits the absence of the definition is explained on the basis that such terms had a plain meaning and were not ambiguous.[42]He says that the terms ‘mineral collection’ and ‘other property’ as used in Clause 6, referred to his full Mineral Collection and the entirety of his Personal Items located at QUT as defined in the Amended Statement of Claim. On the other hand, the Defendant contends that Clause 6 operates to oblige the Defendant to return only that of the Plaintiff’s property which was ‘currently securely stored on QUT’s premises’ in terms of the language of clause 6.
  1. [30]
    It follows, the Defendant submits, that by the terms of the Deed, the Plaintiff released QUT from any liability in respect of property that may have gone missing between the date the Plaintiff last saw his Mineral Collection and Personal Items (which I accept to be early 2009) and the date at which the Deed was signed on 23 May 2012.[43]Notwithstanding this submission, the Defendant strongly contests that any of the Plaintiff’s property actually went missing, and submits that all of the Plaintiff’s property ever located at QUT was returned to him.[44]
  1. [31]
    The Plaintiff’s case is that the Mineral Collection Catalogue, created in 2007 and prior to any dispute with the Defendant, is the most accurate record of the contents and quality of the Mineral Collection as at the date of the Deed and that he identified specimens were not returned to him by reference to that catalogue. His evidence is that, as at August 2007 the Mineral Collection Catalogue was up to date and after that date, it was not added to or subtracted from.[45]
  1. [32]
    The Mineral Collection Catalogue was never provided to the Defendant.[46]It is for this reason the Defendant says that Clause 6 of the Deed utilises the phrase, ‘currently securely stored on QUT’s premises’ to identify the property it was obliged to return. The Defendant submits that Clause 6 cannot operate to obligate the Defendant to return property which it did not know was in its possession[47]and that it would be absurd for QUT to have agreed to return property left at the campus prior to 2012, since it did not know prior to entering the Deed, that it had property of such value in its possession.[48]I do not accept that submission for two reasons.
  1. [33]
    Firstly, the value of the property the subject of Clause 6 is not relevant to the performance of the obligation under the Deed. The Defendant, in terms of the Deed, agreed to deliver up certain property to the Plaintiff. The value of such property is irrelevant. In any event, the Defendant was aware that the Plaintiff’s Mineral Collection was not of insignificant value, being estimated by the Plaintiff at $40,000 in 1997, when consigned from the Netherlands.[49]
  1. [34]
    Secondly, prior to entering into the Deed, the Defendant was informed, of the existence on its premises of the Plaintiff’s Mineral Collection. In email correspondence dated 9 May 2012, referred to above at paragraphs [14] and [15], the Defendant was made aware of detailed components of the Mineral Collection. Upon receiving this, the Defendant declined to check that those items advised by the Plaintiff were securely stored and capable of being return to the Plaintiff in accordance with its obligation under the Deed. Rather, as previously set out, the Defendant told the Plaintiff it was not ‘in a position to go through the list of material provided by Dr Kloprogge to check whether every item is there, but QUT will deliver all of the relevant property in his office to Dr Kloprogge once the Deed is signed…’.[50]
  1. [35]
    As can be seen then, prior to execution of the Deed, the Defendant was afforded an opportunity to reconcile the property in its possession with property asserted by the Plaintiff to be located at the university. It declined to undertake that reconciliation to satisfy itself but, rather, opted to proceed to contract with the Defendant to return property ‘currently securely stored’ at the Defendant’s premises. As a result, the Defendant, by its own conduct has denied itself the opportunity to identify with any certainty the property agreed to be returned to the Plaintiff.
  1. [36]
    As to ownership, the Plaintiff says that the evidence of Dr Dobos, Dr Duong, Dr Martens, Professor Millar and Professor Ayoko corroborate, at least to some extent, his evidence of the ownership of his collection.[51]Each of these witnesses gave evidence to the effect that they had seen parts of the Plaintiff’s Mineral Collection, most notably the Display Collection.[52]In the absence of any evidence to the contrary, the Plaintiff’s evidence is partly corroborated by that of the above witnesses and satisfies me of the existence of the Mineral Collection and the Plaintiff’s ownership of such property.
  1. [37]
    On this issue, I mention one further matter. The Defendant submits that ownership has not been properly established given the evidence of the Plaintiff as to the number of specimens in his collection.[53]It relies on an answer given of the Plaintiff when asked, under cross-examination, how many samples comprised his Mineral Collection located at the university campus. This was the relevant exchange:
‘MR DE JERSEY: How many samples in the collection at the university?
DR KLOPROGGE: I don’t know. You said a thousand.
MR DE JERSEY: Well, did you know that from your own knowledge before I said it?
DR KLOPROGGE: No, I would have guessed six, seven hundred.
MR DE JERSEY: And on what basis do you say that there were probably six or seven hundred items there?
DR KLOPROGGE: Just a guess.’[54]
  1. [38]
    In my view, the Plaintiff’s response was entirely consistent with an honest recollection of a large mineral collection. It does not, as the Defendant suggests, change my findings as to the existence of, or the Plaintiff’s ownership of, that Mineral Collection.
  1. [39]
    The Defendant further says the Plaintiff is unable to establish the existence of the Mineral Collection on the university premises as evidenced by his email correspondence to the Defendant in which he describes the whereabouts of a particular element of the collection in the Level 4 Research Laboratory with the qualification, ‘It might be that there are more minerals stored there which I don’t remember.’[55]Given the length of time the Plaintiff was absent from the university, coupled with the numerous logistical changes which the Defendant acknowledged had occurred,[56]I do not find this evidence inconsistent with the Plaintiff’s assertion that his Mineral Collection was kept at QUT.
  1. [40]
    In a similar vein, the Defendant submits that the evidence of Dr Duong[57]and Dr Dobos[58]reveals an ‘inconvenient truth’[59] that the Plaintiff kept some of the Mineral Collection at his Arana Hills residence rather than at the Defendant’s premises. The Plaintiff’s evidence was that he had a separate mineral collection at his Arana Hill’s residence, but that the Mineral Collection the subject of this proceeding was solely kept at the QUT campus.[60]I do not regard the evidence of Dr Duong and Dr Dobos to support the conclusion that part of the subject Mineral Collection was not kept at QUT.
  1. [41]
    With respect to the breach of the Deed, the Defendant correctly submits that it is for the Plaintiff to prove the allegations the subject of his claim. I accept the Plaintiff’s submission that the Mineral Collection Catalogue is the best, only and accurate record of the Mineral Collection. With respect to the Personal Items, the Defendant did not adduce evidence to challenge the Plaintiff’s record as particularised in Annexure A of the Amended Statement of Claim.
  1. [42]
    Giving credit to the Defendant for removing the specimens and various property returned to him, the Plaintiff is able to identify from his record those items located at the university as at the date of the Deed and not returned to him. The Defendant has been unable to satisfactorily refute this evidence. Accordingly, I find the Defendant breached Clause 6 of the Deed. I do not consider it necessary to determine the alternate claims founded in negligence, conversion or detinue.

Quantum

  1. [43]
    It is necessary, having found that the Defendant is in breach of the Deed, to determine the value of the property not returned to the Plaintiff. He claims damages for both the loss of specimens from his Mineral Collection and of various Personal Items as itemised in Annexure A of the Amended Statement of Claim.

Personal Items

  1. [44]
    With respect to the Plaintiff’s Personal Items, the Plaintiff alleges they have a value of approximately $13,000. That is not challenged by the Defendant. I accept the value of the Personal Items as particularised in Annexure A of the Amended Statement of Claim as $13,000.

Valuation of the Mineral Collection

  1. [45]
    Before addressing the issue of the valuation of the Mineral Collection, I note that the Plaintiff’s Amended Statement of Claim seeks the sum of $505,000 as the value of Mineral Collection.[61]At the hearing, as I later set out, the evidence was the collection was valued at $650,000. No point was taken by Mr De Jersey for the Defendant as to the fact that no formal amendment was made to the Statement of Claim. Accordingly, to the extent that is necessary, I grant leave to the Plaintiff to amend his Statement of Claim to claim $650,000 as the value of the Mineral Collection.
  1. [46]
    I turn now to the valuation of the Mineral Collection. In accordance with my finding above, I accept that the property missing from the Mineral Collection consists of the specimens itemised within the Mineral Collection Catalogue, less those items actually returned to the Plaintiff. The Plaintiff engaged Professor George Stacey to provide an expert valuation report. Professor Stacey provided an expert valuation report dated 8 August 2013 (‘First Stacey Report’) and a supplementary report dated 12 August 2016 (‘Second Stacey Report’). Attached to each of Professor’s Stacey report is a 49 page schedule of Appendices numbered ‘1’ to ‘7’ representing the minerals missing from the Mineral Collection Catalogue. It is these 1064 specimens that Professor Stacey was briefed to value (‘Missing Specimens’).
  1. [47]
    A preliminary issue determined at the commencement of the trial was the admissibility of the expert valuation report of Emeritus Professor Peter Williams dated 20 June 2016 (‘Williams Report’). The Plaintiff argued against the admission of the Williams Report on the basis that the value of any missing property, in the event the Defendant was found to be liable, was not put in issue in the pleadings.[62]He says the only issues raised with respect to quantum were whether certain items of property existed and whether such property was returned to the Plaintiff pursuant to the Deed, rather than the methodology by which the property was valued.[63]
  1. [48]
    In response, the Defendant referred to the late provision of the Second Stacey Report, which increased the valuation of the Missing Specimens from $505,000 as at 8 August 2013 to $650,000 as at 12 August 2016. The Second Stacey Report also addressed certain issues raised in the Williams Report regarding the ability to value a mineral collection in the absence of a physical inspection. The Defendant further submitted that Professor Stacey would be cross-examined on his two expert reports. The Defendant canvassed the propositions that would be put to Professor Stacey and submitted that the Williams Report would be the evidential basis for putting such propositions to Professor Stacey.[64]In addition, on 16 June 2015 the Defendant sought and received Further and Better Particulars of the Amended Statement of Claim requesting further particulars as to how the value of the Missing Specimens was determined. In all of the circumstances, I determined that the valuation of the mineral collection was in issue and the Williams Report was to be admitted into evidence.[65]
  1. [49]
    The Defendant submits that the expert valuation evidence relied on by the Plaintiff is an unreliable estimate of the value of the Missing Specimens because Professor Stacey never actually viewed the mineral collection. The Defendant’s expert, Professor Williams stated in his report,

‘I cannot understand that the valuation can be accurate in view of the fact that the collection has, apparently, not be seen (see below). I do not see how a collection can be properly valued without the valuer seeing it…I have the view that it is not possible to value a mineral collection that has not been seen… It is not so much that I do not agree; I cannot agree. Where is the collection? Thus, I am in no position to make any comment on the possible value of a collection that has disappeared.’[66]

  1. [50]
    The Defendant refers to various telephone conversations occurring between Professor Stacey and the Plaintiff, Dr Duong and Dr Dobos, in which descriptions of the appearance of the Missing Specimens were given to Professor Stacey for the purposes of valuation.[67]The Defendant submits that given each of these conversation lasted for less than an hour, it was impossible for Professor Stacey to discuss, in any detail many of the Missing Specimens.[68]
  1. [51]
    Professor Stacey, throughout his evidence, acknowledged the limitations which arose due to the inability to physically inspect the collection of minerals he was asked to value.[69]At paragraph 5 of the Second Stacey Report, Professor Stacey addresses this issue;

‘While to a certain extent I acknowledge that there are difficulties in estimating the value of mineral specimens without having seen the physical specimens, it is not correct to say that it is impossible to estimate the value of the minerals. It is possible to obtain an estimate of value from detailed description of a mineral specimen based on comparisons with the known price of other similar specimens. I acknowledge that, had I been able to physically inspect the mineral specimens then I would have been able to give a much more accurate estimate of value. However I have aimed to provide the best estimate possible in the circumstances and based on the information that was available to me.’[70]

  1. [52]
    Professor Stacey was criticised by the Defendant for taking into account ‘his assessment of Adj. Prof. Dr Kloprogge as a serious collector’[71]in valuing the Missing Specimens. Such criticism is unfounded. In the absence of a physical inspection, a detailed description of each specimen was crucial to the ability of Professor Stacey to value the Missing Specimens. That the Plaintiff is a serious collector is clearly central to the quality of his description of each specimen and therefore informs the accuracy of the valuation. To his credit, Professor Stacey acknowledged the margin error involved in his valuation. He estimated that margin of error to be approximately ±25%.[72]
  1. [53]
    The Defendant also takes issue with the increase in the valuation of the Missing Specimens between the First Stacey Report and the Second Stacey Report, submitting that the Professor Stacey ‘indiscriminately marked up the collection in his second report on account of changes in the currency exchange rate.’[73]However, Professor Stacey attributes the increase in valuation from the First Stacey Report to other factors in addition to changes in currency exchange rate. These included the general rate of appreciation of a mineral collection[74]as well as the significant increase in the value of part of the Beryl Collection due to the source locations being no longer easily accessible.[75]
  1. [54]
    There is little doubt that Professor Stacey is a highly experienced expert mineral valuer. His academic and professional credentials are set out in the Second Stacey Report. Most notably, over the last 30 years Professor Stacey has been a registered valuer approved to value mineral specimens, meteorites and gemstones for the Australian Government’s Taxation Incentives for the Arts Scheme.[76]He has been engaged to perform valuations for various museum collections across Australia. In addition, Professor Stacey has been a member of the Mineralogical Society of New South Wales, Victoria, South Australia and Tasmania.
  1. [55]
    Prior to receiving Professor Williams evidence, the Plaintiff submitted that such evidence was inadmissible.[77]The Plaintiff objected on the basis that Professor Williams was not an appropriate expert for the valuation of minerals. The Plaintiff relied on the decision in R v Jones[78]where North J cited with approval the statement of King CJ in R v Bonython[79]  in respect of expert witnesses;

“Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.”[80]

  1. [56]
    On the basis of the above tests, I allowed Professor Williams to give evidence at the trial as an expert witness. Upon receipt of both expert witnesses, the Plaintiff now submits that the evidence of Professor Stacey should be accepted and preferred to that of Professor Williams.[81]I am left in little doubt that Professor Williams has a strong interest in mineralogy demonstrated by, inter alia, his involvement in mineralogical publications and through his own personal collection.[82]Although Professor Williams has extensive experience[83]in chemistry, geology and mineralogy as evidenced by his academic qualifications and an interest and participation in mineralogical societies and advisory councils, he is not a registered mineral valuer. That is not decisive of which evidence is to be preferred but it is a relevant factor. In any event, I prefer and accept the evidence of Professor Stacey as to the value of the Missing Specimens.
  1. [57]
    It should also be said that Professor Williams did not actually provide an estimate of the value of the Missing Specimens in his report, declining to do so on the basis that the he was not able to visually inspect the Missing Specimens. I have not had put before me any authority which would suggest that a mineral collection must be viewed in order to be accurately valued. Although Professor Stacey acknowledged that the absence of an inspection made the valuation a more challenging exercise, I do not accept that this prevents a valuation being made. I accept Professor Stacey’s valuation of $650,000.

Travel Costs

  1. [58]
    Professor Stacey, in his expert report, describes the exercise of replacing the collection as an ‘almost impossible task to replace the missing specimens with others from the same locality and of similar size and quality’. [84]Notwithstanding, the Plaintiff claims $100,000 in travel costs representing the cost which would be accrued in traveling to international dealers to replace the collection. However, the Plaintiff does not adequately particularise the required travel arrangements necessary to replace the collection and merely describes, ‘[a]s a minimum I would estimate travel at least 4 times to the US and 4 times to Europe in order to visit international dealers at their showrooms and attend large (international) shows.’[85]
  1. [59]
    The Defendant says that this head of damage is speculative. I agree. No evidence was led by the Plaintiff supporting the figure of $100,000, but more importantly there was no evidence led to establish that international travel was the only method by which the collection could be replaced. This head of damage is not recoverable.

Orders

  1. [60]
    I make the following orders:
  1. The Defendant pay the Plaintiff the sum of $663,000.00 for damages for breach of contract.
  1. The parties are to deliver written submissions on costs.

Footnotes

[1]  As defined in the Amended Statement of Claim dated 17 October 2014.

[2]  Exhibit 5.

[3]  Exhibit 5.

[4]  T1-48.38-42.

[5]  Exhibit 17, Tab 53, p 256; T1-40.26-31.

[6]  T1-26.27-45.

[7]  T1-27.6-12.

[8]  Exhibit 16, Tab 6, page 116.

[9]  Exhibit 16, Tab 8 pages 119 – 122; T2-32.35.37.

[10]  Exhibit 17, Tab 7.

[11]  T1-82.38 – T1.83.39.

[12]  T2-93.13-18; T3-21.26-27.

[13]  Exhibit 10.

[14]  Exhibit 17, Tab 5.

[15]  Exhibit 17, Tab 6.

[16]  T2-46.9-14.

[17]  T2-72.33, T2-74.9-17.

[18]  Exhibit 16, Tab 19.

[19]  T3-8.29.32.

[20]  Exhibit 17, Tab 10.

[21]  Exhibit 17, Tab 12.

[22]  Exhibit 17, Tab 12.

[23]  Exhibit 17, Tab 13.

[24]  Exhibit 17, Tab 13.

[25]  Exhibit 17, Tab 14.

[26]  Exhibit 17, Tab 14.

[27]  Exhibit 17, Tab 16.

[28]  Exhibit 17, Tab 18.

[29]  Defendant’s Submissions paragraphs 73, 107(b).

[30]  T1-73.17-24.

[31]  Defendant’s Submissions paragraph 75.

[32]  T1-74.6-45.

[33]  Exhibit 17, Tab 19.

[34]  Exhibit 17, Tab 20.

[35]  Exhibit 17, Tab 24.

[36]  Exhibit 17, Tab 27.

[37]  Exhibit 17, Tab 30.

[38]  T2-29.44-45; T2-71.18-19.

[39]  Exhibit 17, Tab 31.

[40]  Exhibit 17, Tab 34.

[41]  Exhibit 17, Tab 34.

[42]  Plaintiff’s Written Outline of Submissions paragraph 58 adopting Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352.

[43]  Defendant’s Submissions paragraph 85.

[44]  Defendant’s Submission paragraphs 86 – 87; Defendant’s Submissions in Reply paragraph 20.

[45]  T1-69.25-27.

[46]  T1-69.33-35.

[47]  Defendant’s Submissions in Reply paragraph 20.

[48]  Defendant’s Submissions paragraph 90.

[49]  Exhibit 5.

[50]  Exhibit 17, Tab 14.

[51]  Plaintiff’s Written Outline of Submissions paragraph 10.

[52]  T1-99.33-45; T2-74.33-36; T2-90.33-45; T3-3.12-45; T3-10. 35-45.

[53]  Defendant’s Submissions in Reply paragraph 3.

[54]  T1-65.45 – T1-66.1-5.

[55]  Exhibit 16, Tab 53, page 256; T1-40.20-25.

[56]  Exhibit 17, Tab 31

[57]  T3-5.13-47.

[58]  T1-106.23-25.

[59]  Defendant’s Submissions paragraph 32.

[60]  T1-22.37-39; T1-51.45-46; Plaintiff’s Written Outline of Submissions paragraph 9.

[61]  Amended Statement of Claim paragraph 13(a).

[62]  T1-4.16-20.

[63]  T1-4.42-45.

[64]  T1-8.5-10.

[65]  T1-10.5-9.

[66]  Expert Valuation Report of Professor Peter Williams dated 20 June 2016, pp 1- 2.

[67]  T2-6.43-44; T8-8.20; T2-14.41.

[68]  Defendant’s Submissions paragraph 112(b).

[69]  See for example T2-12.32-35.

[70]  Supplementary Expert Valuation Report of Professor George Stacey dated 12 August 2016, page 6.

[71]  Supplementary Expert Valuation Report of Professor George Stacey dated 12 August 2016, page 3.

[72]  T2-18.47.

[73]  Defendant’s Submissions paragraph 112(e).

[74]  Supplementary Expert Valuation Report of Professor George Stacey dated 12 August 2016, page 3, paragraph 8.

[75]  Supplementary Expert Valuation Report of Professor George Stacey dated 12 August 2016, page 3, paragraph 10.

[76]  Supplementary Expert Valuation Report of Professor George Stacey dated 12 August 2016, pp. 1-2.

[77]  T2-37.15-20.

[78]  [2015] QCA 161.

[79]  (1984) 38 SASR 45.

[80]R v Bonython (1984) 38 SASR 45 at 46-47.

[81]  Plaintiff’s Written Outline of Submissions paragraph 52.

[82]  Expert Valuation Report of Professor Peter Williams dated 20 June 2016 pp 1-3.

[83]  Expert Valuation Report of Professor Peter Williams dated 20 June 2016 pp 1-3.

[84]  Expert Valuation Report of Professor George Stacey dated 12 August 2016 page 10.

[85]  Expert Valuation Report of Professor George Stacey dated 12 August 2016 page 10.

Close

Editorial Notes

  • Published Case Name:

    Jacob Teunis Kloprogge v Queensland University of Technology

  • Shortened Case Name:

    Kloprogge v Queensland University of Technology

  • MNC:

    [2017] QDC 43

  • Court:

    QDC

  • Judge(s):

    Searles DCJ

  • Date:

    01 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 C.L R. 337
1 citation
Jump To
Cite 1 - (1982) 149 C.L R. 337
R v Bonython (1984) 38 SASR 45
2 citations
Jump To
Cite 1 - (1984) 38 SASR 45
Cite 2 - (1984) 38 SASR 45
R v Jones[2016] 2 Qd R 310; [2015] QCA 161
1 citation
Jump To
Cite 1 - [2015] QCA 161

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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