Euro Automotive Pty Limited v Metlef

[2006] NSWSC 416

CITATION:	Euro Automotive Pty Limited & anor v Metlef & anor [2006] NSWSC 416
HEARING DATE(S):	9 May 2006
JUDGMENT DATE :	9 May 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
EX TEMPORE JUDGMENT DATE:	05/09/2006
DECISION:	ADJOURNMENT GRANTED ON CONDITIONS
CATCHWORDS:	CONTRACT - PURCHASE OF EXPENSIVE MOTOR CAR - RESOLUTION BY CONSENT OF DISPUTES BETWEEN DEALER AND FINANCIER - SOLICITOR CEASING TO ACT FOR PURCHASER - ADJOURNMENT APPLICATION CONCERNING BALANCE OF ISSUES
PARTIES:	Euro Automotive Pty Limited and Lamborghini Sydney Pty Limited v Ali Metlef and BMW Finance Limited
FILE NUMBER(S):	SC 13186/05
COUNSEL:	C. Freeman (Plaintiff) J. O'Connor (First Defendant)
SOLICITORS:	Galilee Solicitors (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 9 May 2006

13186/05 - EURO AUTOMOTIVE PTY LIMITED & ANOR v ALI METLEF & ANOR

JUDGMENT

1 HIS HONOUR: The action listed today involves claims by plaintiffs concerning the sale to the first defendant of a Lamborghini motor vehicle which was financed by the second defendant on a leasing agreement and was to be further financed by the trade-in of a Ferrari motor vehicle and a balance amount. This morning I am informed that minutes of an agreement have been handed to the Registrar resolving the differences between the plaintiffs and the second defendant.

2 The first defendant was, until Friday last, represented by solicitors. On that date, the solicitor filed a notice of ceasing to act. Counsel has appeared this morning (retained directly) for the purpose of seeking an adjournment of what now amounts to the balance of the litigation.

3 It is said that the reason for his non-representation is the unavailability of funds by reason of some matters which are currently in the Family Court. Although there is no evidence of this before the Court, for the purpose of this application I am prepared to act on the assumption that this is so. I am also informed by counsel for the plaintiffs that a notice has been given by the second defendant in respect of default on lease payments due under the agreement between the first and second defendant.

4 I invited the parties to consider what terms should be applied in the event that any adjournment was granted. On behalf of the first defendant an offer was made to pay $10,000 into Court within 14 days and a further $10,000 within 6 weeks to be held pending the outcome of the proceedings. It should be noted that as matters currently stand, the outstanding claim of the plaintiffs is for judgment in the sum of $56,161.70. It is likely that the matter are will remain in this Court because a cross-claim by the first defendant involves relief which may be beyond the jurisdiction of the District Court to grant.

5 Be that as may, the plaintiffs submit that a condition of any adjournment should be that the vehicle, that is to say the Lamborghini, should be delivered to the plaintiffs by 5.00pm today and undertakings be given by them that the vehicle not be disposed of pending the outcome of proceedings. I leave to one side the question of the costs which, in the event of adjournment, inevitably will have to be paid by the first defendant.

6 The pleadings show that the original cash price of the vehicle in 2004 was some $360,000. For present purposes, I am prepared to make a further assumption that vehicles of this nature are likely to depreciate significantly as they age. However, as I have indicated, the outstanding claim of the plaintiffs is essentially for an amount which is some $56,000 odd as I have mentioned.

7 A fear was expressed concerning information that the first defendant may have been using the vehicle without proper insurance. That is a matter of concern although it is said that insurance now has been taken out.

8 Bearing in mind the purchase price of the vehicle, the very recent settlement between the defendants and the circumstance that realistically the first defendant is unable to be adequately represented today - and this is no criticism of Mr O'Connor who has only just been retained - it does not seem to me that the ends of justice can be met by forcing the matter to proceed.

9 I have considered the option of adjourning the cross-claim and proceeding with the hearing of the plaintiffs' claim. It might be anticipated that it is highly likely then that the plaintiffs would acquire a judgment for the amount that they seek. It is pointed out by Mr O'Connor that such a procedure would, in effect, devalue whatever relief the first defendant is seeking by way of a cross-claim. That is not necessarily so as the first defendant could proceed with his cross-claim and could have proceeded with his claim as an independent action in any event.

10 I observe from the pleadings that a written contract is said to contain provisions including a provision that, until the full purchase price is paid, the first defendant is a bailee of the vehicle. The cross-claim and the defence as filed says in relation to paragraph 5 of the statement of claim (which sets out the various relevant clauses) that the contract was subsequently varied in circumstances pleaded in the cross-claim although the particulars do not, at a cursory examination, suggest that the status of the first defendant as a bailee has been varied by what is asserted in the cross-claim.

11 I am conscious that the plaintiffs have made extensive arrangements for the presence of witnesses here today. Despite the undoubted inconvenience to the plaintiffs, I have come to the conclusion that the balance of justice requires the first defendant's application to succeed but there will be conditions, those offered in relation to payments and also a condition that he provide by way of affidavit before 5.00pm today suitable evidence that the vehicle is appropriately insured. What happens in relation to the notice give by the second defendant which has been mentioned will, of course, resolve itself in accordance with what payments are or are not made in the interim.

12 In the event that the matter be adjourned I will hear counsel as to suitable orders for further listing and it follows I will necessarily grant liberty to apply in case the conditions are not met. That liberty to apply would be on very short notice.

13 The orders that I make are as follows. On the application of the first defendant the hearing today is adjourned and the matter is stood out of the list upon conditions:

1) that the first defendant pay into court on or before 23 May 2006 the sum of $10,000 and a further sum of $10,000 on or before 30 June 2006, such amounts to await the outcome of the proceedings or further order.

2) It is a further condition of the granting of adjournment that by 5.00pm today the first defendant supply to the solicitors for the plaintiffs details of current insurance in respect of the motor vehicle, such to be verified by affidavit served on them on are before 5.00pm, Thursday 11 May instant.

3) The first defendant is ordered to pay the costs of the plaintiffs thrown away as a result of the adjournment on an indemnity basis. Leave is granted to the plaintiffs to assess those costs forthwith.

14 I direct the matter be listed in the next Registrar's call-up.

15 Liberty to apply to the Duty Judge on 24 hours notice.

16 Those orders may be taken out forthwith.

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