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Kloprogge v Queensland University of Technology [2017] QDC 43

Mineral

FACTS

The Plaintiff had been a collector of minerals and rocks since his childhood in the Netherlands. Over the years, he had amassed an enormous collection, including certain special collections of Topaz, Beryllium, minerals from the Clara Mine, and many others.

In 1997 the Plaintiff was appointed as a Doctoral research fellow with the Queensland University of Technology (the University). Consequently, the Plaintiff emigrated to Australia, and QUT arranged for his mineral collection to be shipped from the Netherlands to Australia. At the time of shipping, the collection was insured for 50.992,00 Dutch Guilder(~AUD$40,000.00). From 2000-2008 the Plaintiff was employed as a lecturer at the University, and his mineral collection was stored there – some on display in his office, and the rest in a separate storage room.

The Plaintiff had suffered with Multiple Sclerosis since he was a teenager, and in 2007 his condition worsened. As a consequence, he took extended sick leave, and ultimately ceased working for the University. The last time the Plaintiff saw his collection intact was at a meeting with the Acting Head of School in 2009.

As a result of terminating his employment, the Plaintiff complained to both the Fair Work Ombudsman and the Human Rights Ombudsman – those claims were resolved by a Deed of Release. A key component of the deed was a promise by QUT to return all the Plaintiff’s property to him – the chief concern was the mineral collection. Sadly for the Plaintiff, the bulk of the collection could not be located, including crucial records which established the provenance of the specimens.

LEGAL ISSUES

  1. Did QUT have an obligation in relation to items it could not locate;
  2. What was the value of the mineral collection;
  3. What costs was the Plaintiff entitled to recover in respect of restoring his collection.

FINDINGS AND CONCLUSION

In preparation for signing the Deed of Release, the Plaintiff’s solicitor forwarded the catalogue of the mineral collection to the University. Other lists were also sent detailing the Plaintiff’s property still in the possession of the University. By way of reply, the defendant’s solicitors said that ‘…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 relevant property…’. That exchange meant that the defendant was not allowed to claim its obligation only in respect of items it could locate – it had entered into the deed without confirming that it did in-fact have the items specified by the defendant.

There was some difficulty in calculating the loss suffered by the Plaintiff considering that the bulk of his collection was not available to be examined for value. Two experts were obtained by both the Plaintiff and the Defendant. The Defendant submitted that the valuation could not be carried out where it wasn’t possible to examine the items being valued. This was rejected because:

  • The valuer had considerable experience and reputation in valuing mineral collections;
  • The records of the collection were extensive, along with the descriptions of each specimen;
  • The descriptions were provided by a
  • The valuer provided a confidence interval for his valuation – i.e. he valued the missing items at $650,000.00 ± 25%

Crucially, the valuer provided details of how his valuation was reached, and made acknowledgement of the limitations in estimating value without seeing them.

The Plaintiff sought additional costs of $100,000.00 to cover his expenses of travelling to mineral shows and dealers in order to replace the bulk of his collection. This was rejected as he did not itemise how that expense was calculated, nor did he account for the possibility of not travelling, and instead purchasing via mail or online.

TAKEAWAYS

Valuing collections always presents difficulties; however, those can be alleviated by detailed and accurate records of the collection, especially where the collection is lost or destroyed. The style of valuation is also important, those which detail the method of valuing, and express the degree of error in the valuation will be preferred. Finally – clarify what you are agreeing to before signing anything – the University did not, and it cost them.