Costa Asset Management Pty Ltd v Mansour
[2020] NSWSC 449
•24 April 2020
Supreme Court
New South Wales
Medium Neutral Citation: Costa Asset Management Pty Ltd v Mansour [2020] NSWSC 449 Hearing dates: 24 April 2020 Decision date: 24 April 2020 Jurisdiction: Common Law Before: R A Hulme J Decision: 1. The Plaintiff by itself, staff, employees, agents, solicitors or otherwise be restrained until 1 May 2020 from disposing of or dealing with in any manner whatsoever any of the personal property, motor vehicles and other equipment of the First Defendant and the Second Defendant ("the Defendants") situated on the property at 11 Knights Road, Galston, NSW, 2159, being that land contained in Folio identifier 1/1198850 ("the Galston Property").
2. The Defendants are to remove all of their personal property, motor vehicles and other equipment from the Galston Property on or before 30 April 2020, subject to Order 4.
3. For the purpose of enabling Order 2, the Plaintiff is to permit the Defendants and their servants and agents access to the Galston Property on each day up to and including 30 April 2020 between the hours of 8am and 4pm, or such other eight-hour period per day as may be agreed.
4. In the performance of the removal referred to in Order 2, the four Bentley sedans and the one Chevrolet Corvette that are on the Galston Property are not to be removed until all of the Defendants' other personal property, motor vehicles and other equipment have been removed.
5. There is no order as to costs.Catchwords: MORTGAGES AND SECURITIES – mortgagee in possession – dispute as to removal of personal items of mortgagor – no question of principle Category: Principal judgment Parties: Costa Asset Management Pty Ltd (Plaintiff)
Ashraf Mansour (First defendant)
Mary Mansour (Second defendant)Representation: Counsel:
Solicitors:
Ms M Daniels (Plaintiff)
Mr R Phair (Defendants)
Elliott May Lawyers
Proctor Phair Lawyers
File Number(s): 2018/256518
Judgment
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HIS HONOUR: This matter came before me as duty judge on 21 April 2020. It culminated in the parties agreeing to negotiate about the defendants' removal of their personal items, including 48 motor vehicles, from a property at Galston; with the plaintiff undertaking not to remove, dispose of or otherwise deal with that property in the meantime. The matter was thereupon stood over to the duty list on 27 April 2020. The negotiations have broken down and the matter has returned for resolution.
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By way of background, the plaintiff lent money to the defendants in March 2018 at a high rate of interest (30 per cent per annum) over a short term (3 months). With various fees and charges, the total indebtedness was in the order of $700,000. The loan was secured by way of second-ranking mortgage over a property at Galston and mortgages over two other properties.
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According to the plaintiff, a clause in a memorandum incorporated in the mortgage granted the plaintiff a security interest over all of the defendants' personal property. The defendants dispute this. It does not matter.
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The defendants defaulted in repayment of the loan. Proceedings were instituted in August 2018. On 15 January 2019, the defendants consented to judgment being entered for the plaintiff whereby they were granted possession of the Galston and other properties. A writ of possession was issued in April 2019. The Galston property was sold. Contracts were exchanged on 21 March 2020 and settlement is scheduled for 4 May 2020.
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There is a substantial quantity of personal possessions of the defendants on the Galston property. The plaintiff has evidence that the auction value of the items is in the order of $46,000. Forty-eight motor vehicles, including four Bentley sedans and a Chevrolet Corvette, all unregistered and of 1980s vintage, are included. They comprise $29,000 of the total valuation. How accurate or perhaps conservative the valuation is I am unable to say. The defendants want to remove all of these personal possessions. Notwithstanding the plaintiff's claimed security interest mentioned earlier, it is willing for the defendants to remove all of the items, including the motor vehicles.
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There are three matters in dispute:
a deadline for the defendants to have the items removed;
how many days and hours should be allowed for the removal; and
whether the defendants should leave the five vehicles of the greatest value for removal last.
Deadline for removal
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The timing question relates to the scheduled settlement date of 4 May 2020. The defendants have proposed a timetable that would have the removal carried out on a daily basis from tomorrow (25 April 2020) until 6 May 2020, except for 28 April when one of the defendants has a medical appointment.
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It is unreasonable for the defendants to delay the removal of the personal property in this fashion. The removal should be completed before the settlement date and also so as to allow time for the Galston property to be put in a proper state for handover to the new owner on that date. The plaintiff asks that it all be removed by 30 April 2020. That is reasonable.
Hours per day for removal
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The defendants' proposal involves removal over 10 hours per day for the 11 days sought.
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The plaintiff says that 8 hours per day for 2 days is reasonable. It is concerned that it will be necessary to hire two security guards at $8,000 per day, a total expense of $88,000 over the 11 days proposed.
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The defendants say that $8,000 per day for security is exorbitant. It certainly seems to be. They also say that a mortgagee in possession requiring security for supervision of the removal of personal possessions is not unusual. I expect that is so. However, it is a matter for the plaintiff if security is necessary in this case.
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Having regard to the amount of personal property involved, and the logistics of removing 48 motor vehicles, an appropriate compromise between the parties is 6 days for the removal to occur. The defendants should be allowed 8 hours per day.
Leaving the five most valuable cars until last
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The question of leaving the five more valuable motor vehicles until all of the other items have been removed arises in this way. The defendants want to remove the items in an order of their own choosing. The plaintiff is concerned that all items of value will be removed but items of little or no value will be left behind. The plaintiff's valuation indicates that a reasonable proportion of the items could be of little or no value. There is no real incentive for the defendants to remove such items unless any of them have some sentimental value. If that were to occur, the plaintiff would be put to the trouble and expense of removing a significant quantity of what essentially will be worthless rubbish.
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The defendants' response is that the five more valuable motor vehicles do not belong to them and they have no authority to offer them as a form of security. They are also concerned that they might remove all of the other property only to find that the plaintiff will take action to prevent them removing the five vehicles.
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There is no substance to this. If the plaintiff was minded to pursue what the defendants fear, it might have acted similarly at any time in the more than one year that it has been in possession of the property upon which the items have been left. Moreover, what is proposed by the plaintiff is not that the five vehicles be a form of security in any formal sense; it is simply that they just be left for collection until the end of the process.
Costs
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In written submissions, the legal representatives of each party has contended that an order for costs should be made in favour of their client. In my view, the outcome for each party is something of a mixed success and I think the fairest result is that they should each pay their own costs.
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The orders I make are these:
The Plaintiff by itself, staff, employees, agents, solicitors or otherwise be restrained until 1 May 2020 from disposing of or dealing with in any manner whatsoever any of the personal property, motor vehicles and other equipment of the First Defendant and the Second Defendant ("the Defendants") situated on the property at 11 Knights Road, Galston, NSW, 2159, being that land contained in Folio identifier 1/1198850 ("the Galston Property").
The Defendants are to remove all of their personal property, motor vehicles and other equipment from the Galston Property on or before 30 April 2020, subject to Order 4.
For the purpose of enabling Order 2, the Plaintiff is to permit the Defendants and their servants and agents access to the Galston Property on each day up to and including 30 April 2020 between the hours of 8am and 4pm, or such other eight-hour period per day as may be agreed.
In the performance of the removal referred to in Order 2, the four Bentley sedans and the one Chevrolet Corvette that are on the Galston Property are not to be removed until all of the Defendants' other personal property, motor vehicles and equipment have been removed.
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Decision last updated: 27 April 2020
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