Earthpro Pty Ltd v Ritchie Bros Auctioneers Pty Ltd

[2005] QDC 310

[2005] QDC 310

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3634 of 2005

EARTHPRO PTY LTD (ACN 077375207)	Plaintiff
and
RITCHIE BROS AUCTIONEERS PTY LTD (ABN 21 080 895 898)	Defendant

BRISBANE

..DATE 14/10/2005

ORDER

CATCHWORDS: Supreme Court Act 1995 s 246 Uniform Civil Procedure Rules r 267, r 268, r 269, r 925 ff plaintiff: solicitor appointed receiver of a tractor which the plaintiff claimed to have purchased upon auction by the defendant - injunction previously granted against defendant, whose counsel told the court the tractor had gone back to the "consignor" and was en route to Goondiwindi - unclear who should be made the subject of an injunction - contempt proceedings brought on against defendant's Area Manager on short notice adjourned - costs reserved

HIS HONOUR:  On the extension of the undertaking given yesterday by the plaintiff and Mr Roy Davis, its Director:

(1)Leave to the plaintiff to read and file a consent to act as receiver of Rosalind Obial under Rule 267.

(2)Order that Rosalind Obial, solicitor, be appointed receiver under Section 246 of the Supreme Court Act 1995 of CAT D9N crawler tractor, serial number IJDO1243 custom fitted with a 4 BBLSS ripper and a hydraulic pin puller, the subject of the action; such appointment to be without security.

(3)Order that the receiver's remuneration over and above proper expenses be at the hourly rate charged by her for work as a solicitor and that, without further order of the Court, she not have recourse against the said tractor in respect of her remuneration.

...

HIS HONOUR: 

(4)  Order that the receiver do such things as

are necessary (including by engaging agents) to take under her control and preserve said tractor until determination in this action or agreement of the parties and others asserting an interest in the tractor, including Esanda Finance Limited and John Marshall (should an interest be asserted by them) as to the person entitled to it.

(5)Adjourn the plaintiff's application filed today to the 20th of October 2005.

(6)  Liberty to apply.

(7)  Costs reserved.

...

HIS HONOUR:  This is an application filed only today by the plaintiff seeking that Simon Ross be committed to prison or fined for contempt of Court in failing to comply with an order made yesterday.  See Rules 925, 926 and 930.  The application and supporting material may have been communicated by electronic or like means not long before 10 o'clock this morning to the defendant which, of course, is not Mr Ross; he is apparently the defendant's Area Manager. 

The application, it seems, was not even filed then.  When the Associate mentioned to me before Court today that such application was desired to be brought, it struck me as a bold one in the circumstances.  My instructions were that I would be willing to deal with it as a special application once the relevant documents were available. 

Mr Kidston, representing the defendant, was first to Court today and, at a time before the plaintiff's legal representatives arrived, the application, on filing, having been made returnable at 2.00 p.m. rather than 10.00 a.m. Discussion occurred between Mr Kidston and the Court in the absence of the plaintiff when, rightly or wrongly, I thought it appropriate to provide him with some explanation of the stage matters had got to.  The discussion can be transcribed and the plaintiff informed of what happened behind its back. 

Reasons were given yesterday for orders which the Court made restraining the defendant by directors, agents et cetera from dealing with an identified D9 tractor or from parting with possession of it.

After the making of that order, Mr Davis, the plaintiff's principal has, according to his latest and third affidavit, been told things to the effect that the defendant may still be directing what happens to the tractor which he last saw "parked hard-up against the rear of the shed" at a cane farm.

The person Mr Davis spoke to is called Target; he supposedly said "Ritchie Ross" was in control of the D9 and that he was working for them. 

Miss Obial, the plaintiff's solicitor, deposes that she had direct telephone contact with Mr Ross who told her at 3.40 p.m. yesterday after Court "We haven't got the machine, I don't know what you're talking about, we're just an agent, it's nothing to do with me, the machine is gone."  A similar statement to the effect that "It is nothing to do with me" was made in another phone call about noon today when Miss Obial says she told Mr Ross of the application at 2 p.m. and that he should respond to it.  He effectively repeated the same words.

Mr Kidston has returned representing the defendant after lunch and at a later stage in proceedings he indicated he appeared for Mr Ross as well.  He presented no material to the Court and of course there's been no time to prepare any. 

Mr Redmond, for the plaintiff, agreed that Mr Kidston's request for an adjournment of the new application ought to be granted.  It is convenient to adjourn it to next Thursday when the application dealt with yesterday has been adjourned to.  There was a strong submission by Mr Kidston to the effect that costs of the adjournment ought to be awarded to his clients. Presumably he referred to both of them although, as things developed, costs attributable to Mr Ross, in particular, may be rather limited. 

The application for those costs was based on the ambushing nature of today's proceeding and the contention that it never could have got anywhere.  I do not mind revealing my own reaction that the relief sought seems excessively dramatic or Draconian.  Other Judges might differ, perhaps.  On the other hand, the application seems to me a useful way (as an alternative to relying on the liberty to apply reserved in yesterday's order) of bringing to the Court's attention the concerning developments which followed upon other concerning developments the day before, which preceded the making of the Court's order. 

Accepting that an order for costs of the adjournment is no windfall to the defendant or to Mr Ross, since it would merely protect them (and probably only as to part) in respect of costs that will have to be paid.  However, I think it would not be appropriate to make even that costs order in circumstances where the precise role of Mr Ross is yet to be clarified.

As a matter of logic it might turn out that the circumstances are such that he ought to have been more forthcoming with the Court than he would have been able to be today, and perhaps even to the point of informing the Court of erroneous judgments or misunderstandings on his part - on the theory, which may have nothing in it, that there happened something of that kind.

The transcript will show that Mr Kidston's instructions have led him to providing the Court with some surprising information which Mr Davis, who has been very active himself, was unaware of.

The first piece of such information was that the tractor had been moved from the cane farm - which Mr Davis thought impossible given the effect of recent rain.  His subsequent inquiries reveal it has gone.  The next piece of information from Mr Kidston was that the tractor was on the way to, if not in, Goondiwindi.  Mr Davis apparently does not think it could have got very far, given observations of the state of the ground on the cane farm.  There are lots of intriguing matters to be looked into.  (Mr Kidston also told the Court his instructions were that the tractor was now with the "consignor".  It is troubling that, although problems with the plaintiff's purchase at auction of the D9 emerged well before the end of September, it was taken out of the defendant's yard only yesterday more or less when Mr Redmond was asking that yesterday's application be entertained.)

My view is that costs of today ought to be reserved to preserve the defendant's entitlement to be awarded them, if that is considered appropriate by whichever Judge deals with costs.

Mr Kidston asserts that his clients have no further interest in the tractor, and no ability to control or influence what happens to it, therefore they are not particularly concerned with orders that the Court might make, except against the possibility that somehow the outcome of the proceeding might be that the defendant ends up being ordered to pay costs.  (A similar concern had been expressed about Ms Obial's incurring expense in returning the tractor to a yard adjacent to the defendant's at Yatala, where free storage is said to be available.)

The particular concern expressed by Mr Kidston concerned a suggestion that a nominated liquidator, Mr McIntosh, be appointed receiver of the tractor following upon the Court's suggestion, that appointment of a receiver may be the appropriate way of protecting the tractor until it is determined who ought to have it.

There seems to be little utility about yesterday's orders, if Mr Kidston is correct that the defendant is not involved anymore in any way.  He has indicated, as I understand him, that this client really has no interest in any orders that might be made about the tractor except from the point of view I just mentioned.

I am firmly of the view that it is appropriate for some action to be taken today,  lest the beneficial effect sought to be achieved by yesterday's orders be lost.  It is not clear who are the persons to whom an injunction is appropriately directed.  Miss Obial has furnished a signed consent to act as receiver.  She is entitled to charge for her time as she would as a solicitor.  Hopefully, the expense will be much less than that of bringing in a stranger, such as Mr McIntosh.  She will be armed with the authority of the Court in seeking to take control of the tractor.

The Court does not wish to infringe the rights of others who, so far as the Court knows who they might be, are acknowledged by name in the order.  One of them is Mr Marshall who both Mr Davis and the defendant say was "the consignor" who sent the tractor off for auction by the defendant.  The other party which has an interest is Esanda Finance Limited which is the owner of it.  The Court is told that Mr Marshall, assuming he is the appropriate entity, is not in default and that Esanda has no particular interest to pursue at the moment.  Mr Marshall and Esanda and any other person will be obliged to respect the order that the Court makes in relation to the D9, in other words to respect the receivership in which Miss Obial will be representing the Court.

It is their right, of course, to approach the Court to have different orders made which would appropriately recognise their interests but they must not resort to self-help or interfere with the intent of the Court's order.

I have indicated already the terms of the order which I shall not read out again.  I was reading from a very rough draft in my own handwriting which I will initial; making an order in terms of that draft.  It records an extension of undertakings as to damages given yesterday by the plaintiff and Mr Davis personally.

The only difficult aspect emerging from the submissions, which I invited, concerned costs of the adjournment.  That has been dealt with by me at length above.

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