Araz Investments Pty Limited v Auto Motori Pty Limited and S. Wakim
[2013] NSWSC 1045
•02 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: Araz Investments Pty Limited v Auto Motori Pty Limited and S. Wakim [2013] NSWSC 1045 Hearing dates: 31 July 2013, 1 & 2 August 2013 Decision date: 02 August 2013 Before: Kunc J Decision: No further order required
Catchwords: JUDGMENTS AND ORDERS - General matters - Defendant required to explain non-compliance with earlier orders - Cross-examination permitted Category: Procedural and other rulings Parties: Araz Invesments Pty Limited (Plaintiff)
Auto Motori Pty Limited (First Defendant)
Simon Wakim (Second Defendant)Representation: Counsel: G. Lucarelli of Counsel (Plaintiff)
D. Deutsch, Solicitor (Defendant)
Solicitors: Deutsch Partners
File Number(s): 2013/189715 Publication restriction: No
EX TEMPORE Judgment
HIS HONOUR: These proceedings are in the Expedition List of this division. They are next before the Expedition Judge on 9 August 2013 when, I am informed by counsel for the plaintiff, it is expected that his Honour will allocate a hearing date for the matter.
On 30 July 2013 the solicitors for the plaintiff contacted the Associate to the Expedition Judge by email, copied to the defendants' solicitor, enclosing a notice of motion and two affidavits in support "relating to matters which have come to light".
Because of the apparently urgent nature of the matters raised in the notice of motion, the Expedition Judge referred the matter to me sitting in the Duty List.
On 31 July the matter came before me and I granted leave to the plaintiff to file in court a notice of motion which sought relief including:
1. Upon the plaintiff by its Counsel proffering to the Court the usual undertaking as to damages, an order that the defendants deliver up the Motor Vehicle (as defined in the Schedule) to the plaintiff together with all keys, registration papers, log books and all other accessories or documentation, to be held securely by the plaintiff pending determination of these proceedings or further order.
2. In the alternative, an order the second defendant serve an affidavit deposing to the following matters:
(a) whether the Motor Vehicle has come into his possession or the possession of any third party on his behalf or with his consent or authority since commencement of these proceedings;
(b) if so:
(i) particulars of the date or dates upon which the Motor Vehicle came into his possession or the possession of the said third party (and the identity of the third party);
(ii) what he or the said third party have done with the Motor Vehicle;
(iii) the physical location of the Motor Vehicle together with the location of all keys to the Motor Vehicle.
(c) if not, whether the second defendant nevertheless knows the whereabouts or the physical location of the Motor Vehicle.
These proceedings concern dealings between two motor dealerships in relation to a white Lamborghini Gallardo Super Trofeo Stradale (the "vehicle") valued at nearly $500,000. By an order of this Court made on 25 June 2013 the defendants were ordered to provide certain information in relation to the whereabouts of the vehicle. By affidavit of 27 June 2013 the second defendant, Mr Simon Wakim, deposed:
Order 2(a)
3. The Defendants are no longer in possession of the Motor Vehicle that is referred to in the Orders entered by the Court on 25 June (the vehicle). The vehicle was given by me to Mr Jim Mavris on or about 27 May 2013.
4. I am informed by Mr Mavris that the vehicle is in the possession of an Asian client of his. I do not know the name of this client.
5. I gave the vehicle to Mr Mavris for sale by him as he gave me another motor vehicle in exchange for the vehicle. I do not know how much Mr Mavris has sold the vehicle for and whether it has in fact been sold.
Order 2(b)
6. I refer to my comments above and say that I do not know where the vehicle is located and I do not have the keys for the vehicle.
The "matters which have come to light" referred to in the email from the plaintiff's solicitor to the Associate to the Expedition Judge were set out in two affidavits which were filed in support of the motion which came before me on 31 July 2013. Those affidavits gave rise to a real concern that, whatever the position may have been as at 27 June 2013 in relation to the whereabouts of the Vehicle, in recent days the situation may have changed and the vehicle had come back into the possession, custody or control of the defendants.
While the plaintiff originally approached me seeking only short service of its motion, in the course of argument it became apparent that the material before me was sufficient to warrant the making of Order 1 in that motion ex parte and I proceeded to do so, with the variation that the vehicle be delivered to the Sheriff (rather than the plaintiff) by 3.00pm on 1 August 2013 ("Order 1"). However, I made a further order to deal with the situation of the defendants not being able to comply with Order 1. That further order was ("Order 2"):
2. If for any reason the defendants are unable to comply with order 1, then they are to explain either by affidavit or through their director or in person as the case may be the circumstances as to why they are unable to comply with order 1, such affidavit to be filed and served before 2.30pm on Thursday 1 August 2013 or, if a personal explanation is to be made, by attending before the Duty Judge at 3.00pm on Thursday 1 August 2013.
The matter then came before me at 3pm yesterday, 1 August 2013. The vehicle had not been delivered to the sheriff in accordance with Order 1. However, it was of considerable concern to the Court that Order 2 had not been complied with. The solicitor for the defendants, Mr Deutsch, appeared before me and sought to give an explanation on his clients' behalf from the bar table in purported compliance with Order 2. I did not, and do not, regard that course as having been in compliance with Order 2.
I therefore made an order in the following terms:
2. The Second Defendant is to attend before the Duty Judge at 2.00pm on Friday 2 August to give evidence explaining the reasons for the inability of the Defendants to comply with Order 1 made by Kunc J on 31 July 2013.
The matter has come back before me today and, in accordance with the order I made yesterday, Mr Wakim has filed a further affidavit, attended the Court and has been cross-examined on that affidavit by Mr G Lucarelli, Counsel for the plaintiff.
The purpose of today's inquiry was to elucidate the reason why, notwithstanding the evidence that had been adduced before me in support of the motion, the defendants had been unable to produce the vehicle in accordance with Order 1. The nature of what was being done was also to provide an opportunity to the defendants to cure their non-compliance with Order 2. I am of the view that non-compliance has now been cured.
While I permitted Mr Lucarelli some degree of latitude in the scope of his cross-examination, I accepted Mr Deutsch's submission for the defendants that what was to occur today was not to become a dress rehearsal of any cross-examination of the issues that may fall for determination at the ultimate hearing of these proceedings. Nevertheless, I was of the view that it was important to establish the factual basis as to what had occurred to the vehicle, and why the defendants say they were unable to produce the vehicle to the Court. That has now been done and the answers given by Mr Wakim have been recorded in the transcript.
The matters raised by the plaintiffs' Notice of Motion filed on 31 July 2013 have therefore been dealt with and the motion is spent.
The plaintiffs did not apply for any costs. The defendants applied for their costs from after yesterday's appearance. I understood this really to be an application for their costs of today. However, as today was necessitated by their non-compliance with Order 2, I declined that application for costs. The appropriate result is that each party bear their own costs of and incidental to the plaintiff's Notice of Motion filed on 31 July 2013.
The only order I will make is to confirm that the proceedings are listed in the Expedition List on Friday 9 August 2013.
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Decision last updated: 05 August 2013
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