Gazzard v Metro Finance Pty Ltd

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-19-05421

VERA GAZZARD	Plaintiff
V
METRO FINANCE PTY LTD (ACN 600 674 093)	Defendant

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JUDGE:	His Honour Judge Palmer
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2025 – 11 April 2025
DATE OF JUDGMENT:	16 May 2025
CASE MAY BE CITED AS:	Gazzard v Metro Finance Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VCC 592

REASONS FOR JUDGMENT
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Subject:TORT
Catchwords: Tort – conversion – whether plaintiff had immediate right to possession – right to possession made out - damages – value of goods at time of conversion
Legislation Cited: Evidence Act 2008 (Vic)
Cases Cited:R v Ceylan [2020] VCC 1644; Gollan v Nugent (1988) 166 CLR 18; Furness v Adrium Industries Pty Ltd [1996] 1 VR 668; ACN 116 746 859 v Lunapas Pty Ltd [2017] NSWSC 1583; Bunnings Group Ply Ltd v Chep Australian Ltd (2011) 82 NSWLR 420; Jones v Dunkel (1959) 101 CLR 298

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms N Tyson	Challenge Legal
For the Defendant	Ms A Carruthers	Hilton Bradley Lawyers Pty Ltd

HIS HONOUR:

Introduction[1]

[1] The abbreviation CB refers to the Court Book, Exhibit P1; SCB refers to the Supplementary Court Book, Exhibit P2.

On 4 July 2018, the defendant, Metro Finance Pty Ltd entered into a finance agreement with SOC Enterprises Pty Ltd for the purchase of an unregistered 2014 Porsche Cayenne.[2]
[2] Commercial Finance Agreement Schedule (4 July 2018), CB244-6; and Commercial Finance Agreement Approval (4 July 2018), CB208 – 211. The vehicle identification number (VIN) of the Porsche is WP1ZZZ92ZELA87336.
As part of the agreement, Metro was given a security over the Porsche, including a right of repossession in the event of default.[3] Metro searched the Personal Property Security Register (PPSR) for any pre-existing securities,[4] and then registered its interest.[5]
[3] Metro, Standard Conditions of Commercial Finance Agreement (July 2017), CB218 at 220 [3.1] and 228 [25]; and CB354 at 356 [3.1] and 364 [25].
[4] PPSR Serial Number Search Certificate (4 August 2018), CB215-6.
[5] PPSR Serial Number Search Certificate (7 August 2018), CB244-6.
On 5 July 2018, Metro paid the loan money into a bank account in the name of the car dealer that had apparently sold the car to SOC.[6] That company was Lambo International Pty Ltd, trading as Platinum Car Centre.[7]
[6] Metro Settlement Advice (4 July 2018), CB209 – 211; Bank Statement of Lambo International Pty Ltd (4 July 2018), Exhibit D1, page 12.
[7] ASIC Current and Historical Company Extract for Lambo International Pty Ltd (22 February 2023), CB724-7.
SOC made several payments under the finance agreement before defaulting in March 2019.[8]
[8] Joshua Campbell, T470.1-19. Metro Finance Loan Statement for SOC (20 December 2023), CB752-3.
As Metro began to take steps to repossess the Porsche, it was contacted by the plaintiff, Vera Gazzard.[9] She claimed that the Porsche actually belonged to her.[10]
[9] Joshua Campbell, T465.2 - 466.15; Email from Vera Gazzard to Metro Finance (1 April 2019), CB394.
[10] Vera Gazzard, T165.22 – 166.3.
Metro engaged a private investigator to locate the Porsche.[11] He confirmed that the Porsche was located in the car park of Ms Gazzard’s apartment building.[12] On 27 March 2019, Metro seized the Porsche.[13]
[11] Adrian Peeters, T435.28 - 436.2; Metro, Repossession Authority (18 March 2019), CB 310.
[12] Adrian Peeters, T439.14-19.
[13] Adrian Peeters, T435.28 - 435.6.
Ms Gazzard sued in conversion, claiming that she was the owner of the Porsche and that Metro had no right to seize it.[14] Metro’s defence alleges that Platinum sold the Porsche to SOC on 29 June 2018, that SOC entered into a loan agreement with Metro, and that Metro was therefore entitled to seize the Porsche when SOC defaulted on the agreement. [15] In order to succeed, Ms Gazzard must prove that:
a.As at 27 March 2019, she had the right to immediate possession of the Porsche;[16] and
b.Metro dealt with the Porsche in a manner that was inconsistent with that right.
[14] Writ and Statement of Claim (14 November 2019), [1] and [3].
[15] Second Further Amended Defence (13 February 2025), [3].
[16] During the course of the trial, Ms Gazzard applied for leave to amend her statement of claim to include an alternative basis of recovery, namely that she was in actual possession of the Porsche at the time it was taken from her home. For various reasons, I did not rule on the application at the time it was made. Given my finding that Ms Gazzard owned the Porsche, there is no need for that amendment.
There is no dispute that Metro seized the Porsche on 27 March 2019, and that by doing so it acted in a manner that was inconsistent with the rights of anyone who had a right to immediate possession of the Porsche. The primary issue for me to determine, therefore, is whether Ms Gazzard had a right to immediate possession of the Porsche because she owned it. For the reasons that follow, I find that she was the owner. Following on from that finding, I must determine the quantum of damages owed to her.

Who Owned the Porsche?

Metro contends that Platinum sold the Porsche to SOC on 29 June 2018; that it entered into a loan agreement with SOC to finance that purchase; and that it thereby acquired a security interest in the Porsche which it duly registered. However, Platinum could not sell what it did not own. Therefore, in order for Platinum to have sold the Porsche to SOC and for Metro to have acquired a security interest, Platinum would have to have owned the Porsche as at 29 June 2018. To determine whether Platinum owned the Porsche it is necessary to start with the sale by auction of the Porsche in July 2017.

Who purchased the Porsche?

Metro contends that the Ms Gazzard was never the owner (or, alternatively, never the sole owner) of the Porsche. In relation to sole ownership, Metro contends that Ms Gazzard’s friend,[17] Sedat Ceylan, had an interest in the vehicle.
[17] Sentencing remarks in a case involving Mr Ceylan described Ms Gazzard as Mr Ceylan’s girlfriend or partner: R v Ceylan [2020] VCC 1644, Exhibit D3 at [24] and [55]. These descriptions were presumably derived from submissions made on Mr Ceylan’s behalf. Mr Ceylan testified that the submissions made by his lawyers, and the information he provided to them, were true: T369.29-31 – 370.16. Ms Gazzard denies she was in an intimate relationship with Sedat Ceylan: Vera Gazzard, T191.13-19 and T235.18-25. In my view, nothing turns on this issue, and I do not need to resolve it.
In July 2017, the Porsche was listed for sale on the website of Pickles Auctions in Townsville.[18] The Porsche had been in a collision and was being sold unregistered. Photos taken by Pickles show damage to the front of the car, consistent with impact.[19]
[18] Vera Gazzard, T76.2-15; Sedat Ceylan, T348.23-25.
[19] Pickles Auctions, Condition and Valuation Report (undated), CB713 at 715 (with colour versions of CB789 - 793).
Ms Gazzard says that Mr Ceylan saw the Porsche on the Pickles website and suggested that it would be a good car to buy, because it could be repaired and resold at a profit.[20] Mr Ceylan confirmed that he had said this.[21]
[20] Vera Gazzard, T75.26 - 76.21.
[21] Sedat Ceylan, T348.23 - 349.26.
Mr Ceylan created an account with Pickles, which enabled him to bid in the online auction on 4 July 2017.[22] Ms Gazzard and Mr Ceylan testified that although the bid was placed using Mr Ceylan’s account, they were both present when the bid was placed, and the intention was that Ms Gazzard would be the purchaser.[23]
[22] Sedat Ceylan, T349.31 - 350.27; Subpoena to Pickles (2 September 2020), CB704-723.
[23] Vera Gazzard, T76.22-77.24; Sedat Ceylan, T351.5-8.
The bid was successful, and Pickles issued an invoice in Mr Ceylan’s name and address in Roxburgh Park, showing a purchase price of $88,718.50 (including GST and other fees), and the payment of a deposit of $1000.[24] The deposit was paid from one of Ms Gazzard’s bank accounts.[25]
[24] Pickles Invoice for Porsche Cayenne addressed to Sedat Ceylan (4 July 2017), CB142; Commonwealth Bank Statements Vera Gazzard (18 December 2017), Exhibit P4 Page 2 and Commonwealth Bank record of payment (4 July 2017) CB136, T77.15-25, T172.13-18, T197.3-4; Lisa Holland, T337.16-19, T338.3-23; Sedat Ceylan, T351.10-19, T352.15-19 and T368.6-12; Jesse Mengotti, T497.23-24.
[25] Vera Gazzard, T71.22 - 72.29, T77.20 - 78.3, T172.13-31, T197.5-9; Sedat Ceylan, T352.15-18 and 368.6-12; Email showing $1000 deposit paid by Vera Gazzard to Pickles Auctions (4 July 2017), CB140; Screenshot from Commonwealth Bank of Australia application (4 July 2017), CB136; NetBank Email Notification from Commonwealth Bank of Australia to Vera Gazzard (4 July 2017), CB140; Bank Statement of Vera Gazzard (19 June 2017 to 18 December 2017), Exhibit P4, page 2, entry for 4 July 2017.
Sometime later – probably on 11 July 2017 – the purchaser details were changed from Mr Ceylan to one of Ms Gazzard’s registered business names, “Vergazz & S.O Equities”.[26] Pickles issued a new invoice, using Ms Gazzard’s Moonee Ponds address.[27] There was conflicting evidence about how this change came about.[28] I do not need to resolve this conflict. However, I note that Lisa Holland, Pickles’ Townsville Branch Manager, did testify that she had several phone calls with Ms Gazzard about the Porsche; there was also an exchange of emails between them.[29]
[26] The business name Vergazz & S.O Equities, appears to have been a registered business name of Ms Gazzard between 27 March 2017 and 8 August 2019: ABN Lookup: Historical details for ABN 52 836 773 879 (1 February 2025), CB780 at 782. Ms Gazzard then appears to have registered the business name Vergazz & S.O Equities (without any full stops after the S or O), on 21 February 2023. Both versions of the business name appear to have been registered by Ms Gazzard, rather than by Ms Gazzard and Mr Ceylan jointly. Historical Details for ABN 52836 773 879 Vera Gazzard (1 February 2025), CB782; ASIC Current and historical business name extract Vergazz & S.O Equities (27 March 2025), SCB 112 - 113.
[27] Vera Gazzard, T196.24-31; Sedat Ceylan, T352.20 - 353.9; Jesse Mengotti, T497.25 - 498.7; Invoice of Pickles Auctions to Vergazz & S.O Equities (4 July 2017), CB143.
[28] Vera Gazzard, T77.4-17, T196.24-31; Lisa Holland, T333.7-27, T334.7-31; Sedat Ceylan, T353.2-9; Jesse Mengotti, T496.27-498.17, T503.18-23; Email from Lisa Holland of Pickles to Plaintiff with attached photographs (19 July 2017), CB154 – 157; Screenshot of Pickles login, showing that the buyer account was updated on 11 July 2017 (Undated), CB 720.
[29] Lisa Holland, T333.7-13.
The balance of the purchase price was paid on 14 July 2017, again from one of Ms Gazzard’s bank accounts.[30] Pickles issued an invoice showing payment in full.[31]
[30] Vera Gazzard, T77.23 - 79.27, T178.1 - 181.18; Sedat Ceylan, T352.15 - 353.16 and 368.19 - 30; Bankwest Statement of Vera Gazzard (14 September 2017), CB137; NetBank Email Notification from Commonwealth Bank of Australia to plaintiff (4 July 2017), CB 140; Pickles Invoice to Vergara & S.O Equities (4 July 2017), CB145; Email from Ryan Clegg of Bankwest to plaintiff with attachment (4 July 2017), CB146 – 150; ANZ Statement for purchase of Motor Vehicle (14 July 2017), CB 722; Bankwest Statement of Vera Gazzard (14 September 2017), Exhibit P3, page 2, entry for 13 June 2017.
[31] Pickles receipt and invoice (dated 4 July 2017, but showing payment on 14 July 2017), CB144.
Ms Gazzard arranged for the Porsche to be transported from Townsville to Brisbane.[32] It was then collected from Brisbane by a friend of Ms Gazzard, Murray McCulloch, using his tilt tray truck.[33] Mr Ceylan flew up from Melbourne and drove down with Mr McCulloch.[34] They took the Porsche to Mr Ceylan’s home in Roxburgh Park.[35]
[32] Vera Gazzard, T81.29-82.20; Invoice of Dynamic Car Carrying (18 July 2017), CB152 -153; Delivery docket issued to Vergazz S.O Equities noting collection of the Porsche (14 July 2017), CB 723.
[33] Murray McCulloch, T321.30 - 322.5.
[34] Vera Gazzard, T82.21-29, T83.8-29, T199.8-20; Murry McCulloch, T322.8-29; Sedat Ceylan, T354.30 - 355.18, T369.7-9. Flight Booking Documents (23 July 2017), CB164-6.
[35] Vera Gazzard, T.84.2-11, T197.23-28, T199.17-23; Murray McCulloch, T322.8 - 324.1, T327.10-12; Sedat Ceylan, T345.18-30, T354.31 - 356.3.
Ms Gazzard and Mr Ceylan say that this was to give Ms Gazzard time to arrange for a space for it to be parked at her Moonee Ponds apartment building.[36] Sometime later, the Porsche was transported there.[37]
[36] Vera Gazzard, T84.4-22, Sedat Ceylan, T355.17-31.
[37] Sedat Ceylan, T355.19 - 2; Photographs taken at the Moonee Ponds address, Exhibit P5.
Both Ms Gazzard and Mr Ceylan were adamant that the intention had always been that Ms Gazzard would be the owner of the Porsche, and that she was indeed its owner.[38]
[38] Vera Gazzard, T76.22-26, T181.7-13, T187.8-9, T213.7-8; Sedat Ceylan, T351.7-9, T352.15 - 353.1, T353.10-18, T356.15-18, T365.5-8 and T.368.11-12.
However, Metro argued that it may instead have been Mr Ceylan, or Ms Gazzard and Mr Ceylan together, who bought the Porsche from Pickles. Metro relied on the following evidence:

a.The fact that the bid was placed using Mr Ceylan’s Pickles account and the initial invoice was issued to him.[39] It was also Mr Ceylan who obtained an insurance quote for the Porsche (in Ms Gazzard’s name, but with his birth date).[40]
b.Mr Ceylan gave evidence that the “S.O” in the business name to which the Pickles invoice was issued – Vergazz & S.O Equities – stood for “Sedat Ozer”, a name that Mr Ceylan had changed to in 1999.[41] Ms Gazzard denied this, and claimed that the SO in Vergazz & S.O Equities stood for “Sundry Others”.[42] I find Mr Ceylan’s evidence more plausible.[43]
c.Between June 2021 and August 2022, Mr Ceylan (under the name Sedat Ozer) was listed as a director for a company owned by Ms Gazzard, Gazzard & Co Pty Ltd.[44] Both Ms Gazzard and Mr Ceylan testified that he had little actual involvement in the company, and Ms Gazzard denied that she had ever operated a company with Mr Ceylan.[45] In any event, I note that Mr Ceylan started being a director of that company more than two years after the Porsche had been repossessed. It is therefore difficult to see the relevance of this fact to the question of whether Mr Ceylan had been the purchaser of the Porsche four years earlier. [46]
d.Mr Ceylan had, on other occasions, “flipped” cars, where Ms Gazzard put in the money and he put in the work.[47] However, this does not prove that he was the owner of any of those other cars, let alone the Porsche.
e.Ms Gazzard had also previously lent money to other people, including Mr Ceylan’s nephew, Burak Ceylan,[48] for the purchase of vehicles.[49] Again, in my view, this seems irrelevant to the question of whether Sedat Ceylan had an ownership interest in the Porsche.
f.Mr Ceylan had helped in transporting the Porsche from Brisbane to Melbourne, and had spent a considerable amount of time preparing the Porsche for sale.[50] He had not been paid for any of that work. Mr Ceylan hoped that he would share in any profit from the sale of the Porsche (or that, if not, he would share in the profit from any future endeavours of a similar nature with Ms Gazzard).[51] However, Mr Ceylan testified that he did not have any agreement to that fact; and that Ms Gazzard had supported him in numerous ways over many years, and he was happy to help her (without payment) in return.[52] I do not find this explanation so implausible (particularly in light of their personal relationship) as to warrant a finding that Mr Ceylan thereby became a part-owner of the Porsche, particularly in the absence of any positive evidence to that effect.
[39] Pickles Auctions Tax invoice addressed to Sedat Ceylan (4 July 2017), CB142.
[40] Quotation from Porsche Insurance (20 July 2017) CB158-163; Vera Gazzard, T181.20 - 182.25; Sedat Ceylan, T353.30 - 354.8.
[41] Sedat Ceylan, T367.7-8; Historical Details for ABN 52 836 773 879 Vera Gazzard (1 February 2025), CB782, ASIC Current and historical business name extract Vergazz & S.O Equities (27 March 2025), SCB112-3.
[42] Vera Gazzard, T70.3-16, T186.19-23.
[43] Counsel for Ms Gazzard agreed that I should prefer Mr Ceylan’s evidence on this point: T517.24 - 518.14.
[44] ASIC Current & Historical Company Extract (1 February 2025), CB776-9.
[45] Vera Gazzard, T185.23 – 186.23; Sedat Ceylan, T361.14-23 and T366.20-21; Current & Historical Company Extract (1 February 2025), CB776-9.
[46] The court book contains details of numerous companies and business names associated with Ms Gazzard. Gazzard & Co Pty Ltd is the only one in which those details include reference to Mr Ceylan.
[47] Sedat Ceylan, T366.15-367.1.
[48] Mr Burak Ceylan now appears to be living in Turkey, and was not called to give evidence.
[49] Vera Gazzard, T137.28 -139.31, T141.21-28, T142.12- 143.30, T146.1-29 and T244.11 - 245.20.
[50] Sedat Ceylan T355.1-18 and T357.11-24.
[51] Sedat Ceylan, T369.7-12.
[52] Sedat Ceylan, T357.29 - 358.23, T367.23 - 368.1 and T370.21.

None of this evidence, in my view, is sufficient to negate the obvious inference to be drawn from the fact that the Pickles buyer details were changed to one of Ms Gazzard’s business names, and it was Ms Gazzard who actually paid for the Porsche.
Metro also relied on the fact that the name of the bank account from which Ms Gazzard paid the $1000 deposit indicates that she held that account as trustee for one “Shelby Austin”.[53] This raised doubt, Metro argued, as to whether the money in that account was Ms Gazzard’s. Ms Gazzard testified that “Shelby Austin” was a made-up name and denied that she held the account on trust for any such person.[54] Although her explanation for the account name was convoluted and a little implausible, there is no positive evidence on which I could find that the money in that account belonged to anyone other than Ms Gazzard.
[53] Commonwealth Bank Statement of Vera Gazzard (18 December 2018), CB285.
[54] Vera Gazzard, T71.22 - 72.29 and T197.5-9.
Metro also raises numerous well-founded objections to the credibility of both Ms Gazzard and Mr Ceylan. Mr Ceylan has spent time in prison for dishonesty offences, attempting to pervert the course of justice by trying to get a witness to change their statement, and obtaining financial advantage by a deception that involved getting finance for a car owned by someone else.[55] That said, as a witness he seemed reasonably open and candid, and several times gave answers that contradicted Ms Gazzard’s testimony, suggesting that they had not colluded in their evidence.
[55] R v Ceylan [2020] VCC 1644 at [10]-[11], Exhibit D3.
Ms Gazzard’s testimony included non-responsive, evasive and sometimes demonstrably false answers. She had also engaged in various dubious schemes. For example:
a.She insisted that the primer that was clearly visible on the left front wheel arch of the Porsche in numerous photos, taken on different days and in different settings, was in fact a shadow or a reflection of light on the photograph.[56]
b.She admitted that information she had provided in a loan application was a lie.[57]
c.She had permitted others, including both Sedat and Burak Ceylan, to complete documents or make representations on her behalf, relating to obtaining finance and insurance.[58]
d.She also submitted, or acquiesced to documents being submitted, in her name, which included false information.[59]
e.According to Mr Ceylan’s sentencing remarks, in July 2018 she had also been involved in an attempt by Mr Ceylan to pervert the course of justice.[60]
[56] Vera Gazzard, T265.26 - 266.30.
[57] Vera Gazzard, T210.27 - 211.27.
[58] Vera Gazzard, T135.17-25, T136.1-8, T151.7-19, T151.20 - 157.29, T159.4 - 160.5, T182.2-25, T207.26 - 208.12 and T209.26 - 211.27; Email from Plaintiff to Gareth Sawers (15 August 2018), CB247 - 252; Phone Screenshots of Text messages between Gareth Sawyers and Vera Gazzard (15 August 2018), CB253; Email chain culminating in an email from Gareth Sawyers to Plaintiff titled 're car finance' with attachments (17 August 2018), CB256-9; Email from Plaintiff to Gareth and Corey with attachments (17 August 2018), CB260 - 277; Bundle of email chains between Plaintiff and Gareth Sawers (22 August 2018), CB278 - 282; Undated Business card of Burak Akin (undated), CB855.
[59] Vera Gazzard, T185.26 - 186.10, T201.29-31, T202.26-30, T211.7-27, T213.28-31 and T.273.29 - 275.31; Pepper Money Loan Application containing incorrect date of birth (10 April 2018), CB272-7; Email from Vera Gazzard to Metro denying any criminal record (2 April 2019), CB399 - 401; Police Brief relating to charges of the plaintiff making a false report (6 February 2020), CB562 - 588; ASIC Personal Name Extract - Vera Gazzard (1 February 2025), CB764-6; ASIC Personal Name Extract - Vera Kamay (1 February 2025), CB767 - 771; ASIC Current and Historical Extract - Vergazz Property Investments Pty Ltd (1 February 2025), CB772 - 775; ASIC Current and Historical Extract - Gazzard & Co Pty Ltd (1 February 2025), CB776 - 779; ASIC Historical Business Name Extract - Vergazz & S.O Equities (1 February 2025), CB780 - 781; Historical Details for ABN 52 836 773 879 Vera Gazzard (1 February 2025), CB782; Undated or Date Disputed Photographs of Porsche Cayenne (Undated), CB789 - 844; Text Message from plaintiff to Corey Scamarcio (10 February 2024), SCB46; ASIC Current and historical business name extract Eastview Forge Pty Ltd (1 February 2025), SCB47 - 52; ASIC Current and historical business name extract JPH Bell Partnership BTC Pty Ltd (1 February 2025), SCB53 - 51; ASIC Current and historical business name extract Pegasus Management Group Pty Ltd (1 February 2025), SCB62-7; ASIC Current and historical business name extract V.L. Marketing Pty Ltd (1 February 2025), SCB 69 - 71.
[60] R v Ceylan [2020] VCC 1644 at [20]-[26], Exhibit D3.

I do not consider either Ms Gazzard or Mr Ceylan to be witnesses of good credit.[61] Nevertheless, just because a witness is untrustworthy does not mean that everything they say is a lie. In this case, the objective evidence – in particular, the invoices issued by Pickles, and, most importantly, the fact that the Porsche was paid for with money from Ms Gazzard’s bank accounts – is consistent with their testimony that it was Ms Gazzard who bought the Porsche from Pickles. There is no objective evidence that is inconsistent with that conclusion. I therefore find that Ms Gazzard became the sole owner of the Porsche on or around 14 July 2017.

Did Platinum own the Porsche on 29 June 2018 (such that it could sell it to SOC)?

[61] Where their evidence was in conflict, I have generally preferred the evidence of Mr Ceylan, particularly when Ms Gazzard’s version appeared to be consistent with what she perceived to be her interest.

Metro contends that Platinum sold the Porsche to SOC in June 2018. In order to have done so, it would have to have owned the car at that time. In the alternative Metro contends that the purported Platinum sale was a fraud perpetrated on Metro, from which Ms Gazzard benefitted.
As will become apparent, I do consider that Metro has been the victim of a fraud, and that the sale was not a legitimate one. However, the fact that Metro may have been the victim of fraud, and Ms Gazzard may have been involved in that fraud, does not necessarily mean that Platinum was the owner of the Porsche. [62] Indeed, as will be seen, any fraud is most likely to have involved Platinum not having legitimately sold the Porsche to SOC.
[62] Metro’s defence is based entirely on the proposition that Platinum transferred ownership of the Porsche to SOC: there is no counterclaim alleging unjust enrichment or fraud.
SOC’s application for finance with Metro was lodged by Gareth Sawyers, an insurance broker with Creditline Australia Pty Ltd. The application included a tax invoice dated 29 June 2018, which purported to record the sale of the Porsche by Platinum to SOC.[63] The invoice shows a purchase price of $148,990, and the payment of a $50,000 deposit.
[63] Platinum invoice (29 June 2018), CB182.
The description of the Porsche (including its vehicle identification number (or VIN) and options) is accurate, save for one detail. That detail is the odometer reading of 89,475 km: the actual reading must have been somewhere between 28,111 km (the reading when the car was sold by Pickles in July 2017) and 28,320 km (the reading when it was repossessed by Metro in March 2019).
The Porsche’s VIN was on the Pickles paperwork. It was also visible from the exterior through the windscreen (as apparently all VINs are). There was evidence that all of the other details in the Platinum invoice – apart from the odometer reading – could have been obtained by means of an internet search for that model of Porsche, or using the VIN.[64] The fact that the invoice details are accurate does not necessarily mean, therefore, that the person completing the invoice was, or had been, in possession of the Porsche. All they would have needed to do is to obtain the VIN by looking through the windscreen or examining the Pickles invoice. Sedat Ceylan had that opportunity. There was evidence that Burak Ceylan would also have had that opportunity.
[64] Vera Gazzard, T133.10 - 134.22; Sedat Ceylan, T359.19 - 360.16.
Platinum was the trading name of Lambo International Pty Ltd. Lambo had two directors: John Lambas, and his father, Anastasios Lambas. John Lambas testified that he managed and operated the company on his own and that his father was a silent investor.[65] Lambo’s business was buying and selling cars, and it held a Licenced Motor Car Trader (LMCT) Certificate for that purpose.[66]
[65] John Lambas, T40.17-24.
[66] Registration/Licence Search (12 December 2017), CB181.
Mr Lambas denied any knowledge of the Porsche, or its sale. He said that he would never buy a car from a private citizen such as Ms Gazzard (as opposed to an LMCT dealer), or sell it, without taking it into his possession; and that he had never seen or possessed the Porsche.[67] He said he had not heard of Ms Gazzard until she issued proceedings against him at VCAT.[68] Ms Gazzard also denied that she had sold the car to Platinum.[69]
[67] John Lambas, T41.19-24 and T43.24 - 44.3.
[68] John Lambas, T52.22-26.
[69] Vera Gazzard, T131.13 - 132.29, T260.11-13 and T261.10-18.
Mr Lambas testified that sometime prior to June 2018, he had been approached by a group of men he referred to collectively as “the boys”. They comprised a man called Arthur Gonzales; a man called Frederick; and, most importantly, Burak Ceylan. Mr Lambas testified that “the boys” had approached him with various business ideas,[70] and that he had given them various personal details including details of his bank accounts.[71] More specifically, Mr Lambas said that:
a.They had set up a website for Platinum, to which he did not have access.[72]
b.The Platinum invoice was not one that he had ever used for sales.[73] The contact and other details were accurate, save as to the email address in his name, which he said had never heard of or used.[74] The Platinum logo appeared to be based on a business card design that Burak Ceylan had prepared for him.[75]
c.He knew nothing about the ANZ bank account in Lambo’s name, into which Metro had paid the loan monies.[76] He had never banked with ANZ. Although it was his signature on various ANZ bank account applications, he did not recall ever signing those applications.[77] ANZ had been provided with photographs of his birth certificate, credit card construction white card.; he did not explain how this had happened.[78]
d.He had not made the payments that were made out of that bank account after the receipt of the Metro money, including to Ms Gazzard.[79]
e.His involvement with “the boys” had led to him being raided by the Australian Federal Police; he had since “done [his] time”; and he had lost his business and everything else.[80]
[70] John Lambas, T45.14 - 47.27.
[71] John Lambas, T48.11-15.
[72] John Lambas, T54.7-11; see extract from website (4 July 2018), CB212-4.
[73] John Lambas, T43.19-21 and T44.23 - 45.5.
[74] John Lambas, T51.8-13; referring to Email from John Lambas to Gareth Sawers (16 August 2018), CB254.
[75] John Lambas, T60.13 - 61.11.
[76] Joshua Campbell, T452.6-15; email from Gareth Sawers to Metro with attached Lambo deposit slip (4 July 2018), CB205-7.
[77] John Lambas, T55.31 - 56.31; ANZ Documents Part 2_XIE, Exhibit D2, pages 91-3.
[78] John Lambas, T55.13 - 56.24; ANZ Documents Part 2_XIE, Exhibit D2, page 96.
[79] John Lambas, T61.13 - 62.14; ANZ Documents Part 1_Z4D, Exhibit D1, page 12.
[80] John Lambas, T51.14-31 and T53.2-20.
I am mindful of the fact that the burden of proof on this issue rests on Ms Gazzard: that is, the onus is on her to prove that she owned the Porsche. Nevertheless, there is an absence of evidence which would provide a proper basis for me to find that – sometime between 14 July 2017 and 29 June 2018 – Platinum became the owner of the Porsche.
There is evidence – in the form of the transfer of $37,000 from Lambo’s account to Ms Gazzard’s account on 6 July 2018 – to suggest that Ms Gazzard received some of the Metro money.[81] However, there is no evidence on which I could properly find that this represented the belated consideration for an earlier sale of the Porsche by Ms Gazzard to Platinum.
[81] ANZ Documents Part 1_Z4D, Exhibit D1, page 12.
There is also evidence that after the purported sale of the Porsche by Platinum to SOC, Ms Gazzard received money from both SOC and its director Corey Scamarcio, who was a friend of Burak Ceylan.[82] However, it is difficult to see how those payments could represent the payment by Platinum of any money it may have owed Ms Gazzard for the purchase of the Porsche.
[82] Vera Gazzard, T144.7 - 145.12, T145.13 -146.4, T146.28-29, T147.5 - 148.30, T165.13-18, T191.13-21, T257.24 - 258.24 and T259.8 - 260.12; Sedat Ceylan, T376.30 - 377.7. The payments are summarised in the Defendant’s Aide Memoire: Tracing Payments.
Although it was not pleaded by any of the parties, and is therefore unnecessary for my decision, what all of this suggests to me is that a fraud was perpetrated on Metro. That fraud appears to have involved an application for finance for a vehicle that belonged to another person. The dealer, or someone purporting to be the dealer, must have been a party to that fraud.
I do not need to make a finding as to whether Mr Lambas was a participant in the fraud or an unwitting enabler of it. Sedat Ceylan pleaded guilty to perpetrating a very similar fraud in 2014.[83] He was living with Ms Gazzard (at least part time) during this period. [84] However, there is no evidence on which I could properly find that any of Sedat Ceylan, Burak Ceylan, Mr Scamarcio, Ms Gazzard, or some combination of them, was the perpetrator on this particular occasion.
[83] R v Ceylan [202] VCC 1644, Exhibit D3.
[84] Vera Gazzard, T188.13-15, said Mr Ceylan “wasn’t living with me, not full time”. Mr Ceylan said he was living at both his family in Roxburgh Park and at Ms Gazzard’s Moonee Ponds apartment: T345.27 - 346.15, T368.2-5.
Importantly, the fact that Ms Gazzard may have benefited from the fraud, or even have been in some way complicit in it, whether knowingly or otherwise, does not mean that she had transferred ownership of the Porsche to Platinum prior to its purported sale to SOC on 29 June 2018. Nor does it mean that she is barred from suing in conversion. [85]
[85] The defendant did not cite any authority to that effect, nor could I find any. However, there is authority that it is no bar to a conversion action that the plaintiff intends to use the returned chattel in the commission of a crime: Gollan v Nugent (1988) 166 CLR 18.
I therefore find that Ms Gazzard remained the owner of the Porsche on 29 June 2018; that Platinum could not sell to SOC what it did not own; and that SOC could not provide security to Metro over an asset which belonged to someone else.
I note, for completeness, that Metro did not plead that SOC gained ownership of the Porsche by any means other than by buying it from Platinum. It did not allege, for example, that Ms Gazzard sold the Porsche directly to SOC.[86] Ms Gazzard denied this.[87] Even if Metro had made such an allegation, there is a similar lack of evidential support for it.
[86] See exchange during cross-examination of Vera Gazzard, T261.14 - 263.13.
[87] Vera Gazzard, T260.11-13 and T261.10-18.
There are numerous payments from SOC and its director Mr Scamarcio to Ms Gazzard.[88] She claimed that she thought that these (and the payment from Lambo) were repayments to her of money that she had loaned to Burak Ceylan.[89] Ms Gazzard’s claim that she believed that payments from Mr Scamarcio were from Burak Ceylan depended on her claim that Burak Ceylan had told her that Corey was an “Anglo” name he used when dealing with finance brokers.[90] He had also used this name, she said, when making finance applications to Metro on her behalf.[91]
[88] For payments from Mr Scamarcio see Commonwealth Bank Statements (18 December 2018), CB285 at 288 (9 July 2018), 289 (12 July 2018), 291 (3 August 2018), 292 (13 August 2018), 294 (6 September 2018), 296 (20 and 21 September 2018), 298 (15 October 2018), 302 (15 November 2018) and 304 (12 December 2018). The payments from Lambo and SOC are summarised in the Defendant’s Aide Memoire: Tracing Payments.
[89] Vera Gazzard, T144.7 - 146.4, T147.5 - 48.27 and T258.8-26. Ms Gazzard testified that she had often lent this money using a “cardless cash” mechanism, whereby an account holder could send a code to another person’s phone, who could then use the code to withdraw the cash from an ATM: T137.18.28, T139.12-21 and T217.1128. Her bank statements do show cardless cash transfers during this period, but these do not identify the transferee. Ms Gazzard also gave evidence about specific loans for larger amount: T141.14 - 143.30, T146.5-11 and T176.11-31; Ezy Transport Tax Invoice (10 May 2017), SCB30-1 and Commonwealth banks statements (18 December 2018), CB286, entries for 27 June and Exhibit P4, page 19, entry for 14 June. Ms Gazzard also testified that Burak tended to repay her in cash: T138.14-16 and 139.21-23.
[90] Vera Gazzard, T210.3-12.
[91] Vera Gazzard, T135.17-25, T136.1-8, T151.7-19, T152.3-11, T156.12-15, 208.7-12 and T208.24 - 210.7; Mr Campbell testified that one of those applications had been refused because it triggered a fraud alert: T457.28 – 458.13 The alert was from the National Australia Bank (NAB). I do not rely on this alert as evidence that Ms Gazzard had, in fact, been involved in any fraudulent activity in relation to NAB; Email from Plaintiff to Gareth Sawers (15 August 2018), CB 247 - 252; Phone Screenshots of Text messages between Gareth Sawyers and Vera Gazzard (15 August 2018), CB253; Email chain culminating in an email from Gareth Sawyers to Plaintiff titled 're car finance' with attachments (17 August 2018), CB256-259; Email from Plaintiff to Gareth and Corey with attachments (17 August 2018), CB260 - 277; Bundle of email chains between Plaintiff and Gareth Sawers (22 August 2018), CB278 - 282; Undated Business card of Burak Akin (Undated), CB855.
There was also a payment by SOC to Ms Gazzard of $1 between 28 November 2017 and 1 December 2017, after which SOC registered an interest in the Porsche on the PPSR.[92] Ms Gazzard denied that she gave a security to SOC at that time.[93] It is difficult to know what to make of this event: but it provides no evidential support for the proposition that Platinum owned the Porsche in June 2018.
[92] Vera Gazzard, T206.31 – 207.12 and T264.18 - 265.2; PPSR Registration Number Search Certificate (3 March 2023), CB739 - 740; and Commonwealth bank statements, Exhibit P4, page 7, entry for 1 December 2017.
[93] Vera Gazzard, T263.14 - 264.1 and 264.22 - 265.2.
It is difficult to evaluate Ms Gazzard’s evidence about her dealings with Burak Ceylan, including the alleged loans and repayments. Given the cash-based nature of those alleged dealings, there is very little objective evidence to support her claims; and little to disprove them either. The vagueness of her methods of keeping track of those loans,[94] the amounts of interest allegedly charged, and the alleged repayment of loans using a number of names unknown to her, are all inconsistent with normal business practices. However, Ms Gazzard appears to have operated in a world where such practices did not apply.
[94] Vera Gazzard, T149.2-13 and T161.20-30.
Regardless, the lack of independent evidence means I am not in a position to make a finding as to what the payments into Ms Gazzard’s account from Lambo, Mr Scamarcio and SOC were for. Certainly, I do not have the basis for a finding that the effect of those dealings was to transfer ownership of the Porsche to either Platinum or SOC.
The fact that the Porsche remained in the possession of Ms Gazzard is also consistent with her retaining ownership.[95] Had she sold it to SOC, one would have expected that it would have been moved to Mr Scamarcio’s home address in Greenvale. It never was.

Who owned the Porsche when Metro seized it on 27 March 2019

[95] Vera Gazzard, T67.21-25, T87.24-27, T114.10-14, T114.25-26 and T115.18-21; photographs taken of Porsche at Moonee Ponds apartment (various dates), Exhibit P5..

SOC defaulted on its loan agreement with Metro at the start of March 2019. On 18 March 2019 Metro engaged Adrian Peeters, a private investigator, to locate the Porsche so that it could repossess it.[96]
[96] Metro, Repossession Authority (18 March 2019), CB310.
On 21 March 2019, a solicitor for Ms Gazzard sent an email to Metro asserting Ms Gazzard’s ownership of the Porsche.[97] On 23 March 2019, Ms Gazzard obtained a certificate of roadworthiness (RWC) for the Porsche from a Strathmore mechanic, Vince Bernardi.[98]
[97] Email from Rolf Breish (21 March 2019), CB393.
[98] RWC (23 March 2019), Exhibit P7; see also pink and white copies of the RWC, Exhibits P8 and P9.
On 26 March 2019, Mr Peeters went to Ms Gazzard’s Moonee Ponds address and spoke with her. She informed him that the Porsche was at that location but refused to show it to him. She insisted that she was the owner.
Mr Peeters returned with a tow truck driver the following day. He says that both the carpark and the Porsche were unlocked, and he was able to access them.[99] He took some photos of the Porsche and towed the Porsche away.
[99] Adrian Peeters, T439.3-13 and T441.6.
In the aftermath of the Porsche’s seizure, Ms Gazzard made a false theft complaint to the police; sent a vitriolic email to Metro (which contained some demonstrably false or misleading claims);[100] made death threats against Mr Peeters;[101] issued proceedings in VCAT;[102] and threatened to retake possession of the Porsche. Suffice to say, some of this behaviour reflects poorly on her. However, in my view, such behaviour is more consistent with Ms Gazzard believing that the Porsche was hers and had been wrongly taken from her, than believing that she had sold it to someone else and it had been rightfully repossessed.
[100] Email from Vera Gazzard (2 April 2019), CB399.
[101] Adrian Peeters, T445.28 - 446.1.
[102] Application to the Civil Claims List (16 April 2019), CB439.
Regardless, Metro has not led any evidence of anything that may have occurred between 29 June 2018 and 27 March 2019 which would justify a finding that Ms Gazzard was no longer the owner of the Porsche on the latter date. I therefore find that she was still the owner, and that Metro therefore did not have the right to seize the Porsche. This makes out the tort of conversion.
I asked Joshua Campbell, Metro’s Risk and Compliance Manager, why Metro had not investigated Ms Gazzard’s claim that she was the owner of the Porsche before repossessing it (particularly given that she was actually in possession of it). He said that Metro relied on the authenticity of the Platinum invoice, because it was from an LMCT dealer, and an LMCT dealer with whom they had had several other (unproblematic) dealings.[103] This may be understandable from a commercial point of view; however, in this case, in circumstances where the invoice appears to have been fraudulent, that approach has led Metro to seize a vehicle which it was not entitled to seize. As a consequence, damages are payable.
[103] Joshua Campbell, T455.20 - 456.25; Metro, Broker Portal Screen Shot (undated), CB177 - 180.

How much was the Porsche worth on 27 March 2019?

In conversion, the measure of damages is the value of the goods at the time they were taken, together with any consequential loss.[104] In this case, the condition and therefore value of the Porsche as at the date of its seizure is a matter of dispute.[105]
[104] Furness v Adrium Industries Pty Ltd [1996] 1 VR 668 at 675 (Marks J); ACN 116 746 859 v Lunapas Pty Ltd [2017] NSWSC 1583 at [162].
[105] Ms Gazzard did not seek to prove any consequential loss.
The Pickles condition report for the 2017 auction notes “Incident Type: Impact; Damaged Entire Vehicle – Impact Damaged Vehicle”. The photographs attached to the condition report show damage to the front of the vehicle, including a partially open bonnet. [106]
[106] Pickles Auctions, Condition and Valuation Report (undated), CB713 at 714 and 715.
Ms Gazzard testified that, after she bought it, the car had been repaired and was in excellent condition. She also relied on the fact that it had been certified as roadworthy by Mr Bernardi on 23 March 2019, shortly before its seizure.
Metro relied on the evidence of Jesse Mengotti, a manager for Pickles in Sunshine. Metro had taken the Porsche there after its seizure. Mr Mengotti had examined the Porsche in August 2019 and recommended that it be sent to Porsche for further diagnosis and assessment. Metro relied on the following evidence of that assessment:[107]
a.A Porsche invoice to Pickles for a vehicle assessment, listing various damage, and bearing two dates: a “date out” of 3 September 2019 and a “date” of 8 October 2019;[108]
b.A Porsche estimate for Pickles dated 10 September 2019 for various work totalling $15,280.97;[109] and
c.An email from Pickles to Metro dated 16 September 2019, referring to an attached Porsche quote and further extensive chassis damage, and advising Metro that, in light of the cost of repairs, the Porsche should be offered for sale in a salvage auction.[110]
[107] This is clearly a hearsay use of the documents. They were tendered without objection as part of the Court Book at the start of the trial. They are arguably relevant for a non-hearsay purpose, to explain why Metro chose to sell the Porsche at a salvage auction; if they are, then they can also be used for the hearsay purpose pursuant to s 60 of the Evidence Act 2008. In any event, they all appear to be business records – of either Porsche, Pickles or both – and are therefore admissible under s 69 of the Act. They do not appear to have been prepared in contemplation of any proceedings, so do not fall within the exclusion in s 69(3).
[108] Porsche assessment invoice (8 October 2019), CB485-6.
[109] Porsche estimate (10 September 2019), CB459.
[110] Email from Jesse Mengotti to Raj Kripal (16 September 2019), CB460.

Metro accepted this advice, and the car was ultimately auctioned by Slattery Auctions on 4 February 2020 for $63,000.[111]
[111] Joshua Campbell, T480.14 - 481.11; Slattery Auctions, Tax Invoice (23 January 2020), CB541.
In order to work out the fair market value of the Porsche I need to make findings in relation to several discrete issues about the condition of the Porsche at the date of seizure. I also need to determine the appropriate starting point for taking those issues into account.
The parties relied on photographs taken of the Porsche at various times prior to its seizure, including:
a.   Photographs taken by Pickles in 2017, some of which were sent to Mr Ceylan and to Ms Gazzard after the auction;[112]
b.     Photographs taken by Ms Gazzard in the car park of her Moonee Ponds apartment dated 14 April 2018;[113]
c.   Photographs taken by Ms Gazzard in the car park of her Moonee Ponds apartment dated 18 October 2018;[114]
d.     Photographs taken by Ms Gazzard at nearby Queens Park dated 17 January 2019;[115]
e.   Photos taken by Mr Bernardi on 20 October 2023;[116] and
f.    Photos taken by Mr Peeters just before he seized the Porsche.[117]
[112] Pickles condition and valuation report (undated), CB713 at 714-5; and email from Lisa Holland to Vera Gazzard attaching vehicle photographs (19 July 2017), CB154-7. Colour versions of some of these photos can be found at CB789 - 793.
[113] Exhibit P5, pages 1 to 3.
[114] Exhibit P5, pages 4 to 9.
[115] Exhibit P5, pages 10 to 20.
[116] Vince Bernardi, T298.26 - 299.13; Email from Vince Bernardi to Vera Gazzard attaching photographs (20 October 2023), CB745 - 751.
[117] Macil Collect report to Metro Finance (10 April 2019), CB426 at 428-435; Adrian Peeters, T440.26 - 443.10, gave evidence as to which of these photographs he took.
Metro disputed that Ms Gazzard took the photos on the dates she claimed, particularly the photos dated 17 January 2019; but did not refer to any evidence which suggested that the photographs were taken on some other date. In my view, I do not need to determine precisely when the photos were taken, as they were clearly taken some time prior to repossession, and therefore provide some evidence of the car’s condition at that time.

The starting point

Given the damage found by Porsche, Metro contends that the Slattery’s auction result represents a fair market value for the car at the time of repossession. I note, however, that the Porsche was sold by Slattery’s without its keys and log books (which were still in Ms Gazzard’s possession); and that it was in a worse condition at the time of the auction than at the date of repossession.[118] There was also evidence that prices obtained at salvage auctions tend to be lower than market value.[119] In other words, the auction result is likely to have understated the value of the Porsche on the date of repossession.
[118] See discussion below in relation to, for example, the front bumper.
[119] Greg Trott, T396.8-25.
Another difficulty with Metro’s position is that it chose not to call any of the people from Porsche who actually assessed the car.[120] Counsel for Metro acknowledged that the decision not to call a witness from Porsche was a commercial one, made to contain the cost of the proceedings.[121] Nevertheless, this causes difficulties for me in knowing what weight to give the Porsche assessment material:
a.I accept that it provides some evidence that the Porsche had the issues expressly or implicitly identified in the three documents, as at the time of the Porsche assessment;
b.However, I know virtually nothing about the factual basis on which the Porsche assessors reached their conclusions (for example, what was wrong with the “heat shield” and why it needed to be replaced);
c.Nor do I know anything about the qualifications or expertise of the Porsche assessors (other than that they presumably worked for Porsche);
d.Nor does the fact that the Porsche may have had a particular issue at the time of the assessment necessarily mean that that issue was present at the date of repossession; and
e.The plaintiff has not had the opportunity to cross-examine any of the Porsche assessors.
[120] Instead evidence was led through Jesse Mengotti, from Pickles, who dealt with Porsche: T500.17 - 501.23 and T504.3-25.
[121] Counsel, T570.4-19.
Ms Gazzard contends that a better starting point is a valuation given by an expert car valuer, Greg Trott. Mr Trott first valued the Porsche in February 2020, on the basis of instructions from Ms Gazzard.[122] He then formalised the valuation in February 2021 on instructions from Ms Gazzard’s lawyers.[123] From those instructions, Mr Trott understood that the Porsche had minor damage from a collision, but had since been repaired.[124]
[122] Prestige Auto Assessing Services Report (6 February 2020), CB124-8.
[123] Prestige Auto Assessing Services Report (4 February 2021), CB117-8 and 681-3. The report was dated 2020, but Mr Trott testified that this was a mistake: T384.17 - 385.14.
[124] Greg Trott, T411.9 - 412.3; see also Prestige Auto Assessing Services Report (6 February 2020), CB124; Email from Vera Gazzard (2 February 2020), CB542; and letter of instructions (5 January 2021),CB121-2 (which Mr Trott said did not change anything: T411.10-12). Mr Trott was also told that a RWC had been issued, but placed little or no reliance on that: T393 .11-16 and T408.6-11.
Mr Trott did the valuations using a software program called AutoEdge.[125] He entered the make, model and year of the Porsche; its kilometrage; and the options with which it was fitted.[126] AutoEdge then produced three possible values as at 6 February 2020: a low trade value of $127,288; a (mid) trade value of $151,580; and a (high) retail value of $177,020.[127] Mr Trott chose the mid-range value on the basis of his instructions that at the time of purchase, the Porsche had minor damage which had been subsequently repaired. [128] He then backdated the valuation to the date of repossession in March 2019, to produce the value of $166,000.[129]
[125] Greg Trott, T379.23 - 380.13.
[126] Metro itself used similar methods when valuing vehicles for the purpose of finance applications: Joshua Campbell, T461.28 - 462.7.
[127] Report of Greg Trott of Prestige Auto (4 February 2020), CB128.
[128] T382.16-30, T386.26-29; T387.4 – 389.28 (for instructions provided to Mr Trott, see also CB117 [7] and [8]; CB122[17]; and CB542 - 557).
[129] Greg Trott, T390.6 - 391.3; Mr Trott no longer had the page from AutoEdge that included the backdating calculation.
As Mr Trott acknowledged, there were a number of limitations to this valuation, most notably that he had not been able to inspect the Porsche, and was instead dependent on Ms Gazzard’s instructions.[130]
[130] Greg Trott, T382.16-30, T386.26-29, T405.25-26, T409.7-30, T410.31 - 411.1, T411.10-21 and T412.10-12; Report of Greg Trott of Prestige Auto (4 February 2020), CB 124.
The value of the Porsche must lie somewhere between the floor of the Slattery’s auction result and the ceiling of Mr Trott’s valuation. But in taking account of the various issues I must consider, should I work up from the floor or down from the ceiling? In my view, the Trott valuation provides a more appropriate starting point than the Slattery’s auction result. This is because I heard evidence from Mr Trott about how he reached his valuation, and how the various issues revealed in the Porsche assessment would or might have affected that valuation. By contrast, I have no evidence about what the Slattery’s auction result might have been if the Porsche had been in the condition when it was seized.
I will therefore take the AutoEdge values as my starting point, and then make allowances for the issues identified in the Porsche material. In doing so, I will consider whether the fact that an issue was identified at the time of the assessment provides a safe foundation for an inference that it also existed at the date of repossession.

The options

Ms Gazzard gave evidence that she had contacted Porsche to obtain confirmation of the various options with which the vehicle had been fitted. She did this by providing him with the VIN.[131] Andrew Garth from Porsche responded with an email incorporating what appears to be a screen shot of various options.[132] Ms Gazzard gave evidence confirming that the Porsche had been fitted with many of those options.[133]
[131] Vera Gazzard, T123.29 - 124.20.
[132] Email from Garth Andrew to Vera Gazzard (5 February 2020), CB558 - 560.
[133] Vera Gazzard, T124.28 - 129.21; there were some options where she was unable to identify properly what the option was and therefore whether or not it had been installed.
Mr Trott entered the options into AutoEdge based on what Ms Gazzard told him, and on the email from Porsche.[134] The options accounted for $10,000 of the February 2021 mid-range value of $151,580 (and presumably a similar proportion of the backdated March 2020 mid-range value of $166,000).[135]
[134] Greg Trott, T386.26-29 and 409.17-22. See also email from Vera Gazzard (2 February 2020), CB542; and Letter of Instructions (5 January 2021), CB119 at 121-2 [16]
[135] Greg Trott, T387.9-11; AutoEdge valuation (6 February 2020), CB128.
If Ms Gazzard’s instructions about the options were inaccurate then so, obviously, would be the $10,000 allowance for the value of its options.[136] However, other than to suggest that those options shown in the Porsche email with a nil value had not been fitted, Metro did not seriously contest that the Porsche had been fitted with these options.[137] I therefore find that it was.

The quality of repairs

[136] Greg Trott, T409.22-26.

[137] Vera Gazzard, T218.31 - 219.4. Although the Metro position in relation to nil-value options seems inherently likely to me, there is no evidence that Mr Trott entered any of the nil-value options into AutoEdge: compare Emai from Garth Andrew to Vera Gazzard (5 February 2020), CB558 and AutoEdge valuation (6 February 2020), CB128.

Ms Gazzard testified that the Porsche had spent several months at MA Panels in Coburg, where panel damage had been repaired.[138] She said that she had told MA Panels to take their time, and that the work was not to be given priority. Mr Ceylan gave evidence to similar effect, although he said he had done much of the work while the car was at MA Panels himself.[139] Ms Gazzard said that she had paid MA Panels $8000 in cash, and that they had not provided her with any invoices or receipts detailing the work they had done.
[138] Vera Gazzard, T87.24 – 89.18.
[139] Sedat Ceylan, T357.14-24.
Ms Gazzard did produce invoices for various car parts (but not receipts) to support her claim.[140] According to Trott, these were all for the front end of the car, and could have been used to fix the damage seen in the Pickles photos.[141]
[140] Porsche parts diagram and invoices (undated), CB168 - 172. Ms Gazzard’s Commonwealth Bank Statements, (18 December 2018) CB285, show a payment to Porsche of $3,252.50 on 19 October 2018, CB 298; and a credit for the same amount on 20 November 2018, CB302. She was not asked about this, so I make nothing of it.
[141] Greg Trott, T424.9-27.
The assessment by Porsche confirmed that the car had previously been repaired but considered that it was a “poorly completed patch repair job”. [142] The difficulty with this opinion again, is that Metro did not call as a witness the person whose opinion it was.
[142] Email from Jesse Mengotti to Raj Kripal (16 September 2019), CB460.
However, the evidence given by Ms Gazzard and Mr Ceylan about having the work done slowly and for cash is consistent with a desire to repair the Porsche as cheaply as possible, and that is consistent with work of poorer quality than might be usual for cars of this value.

The panels

Ms Gazzard testified that the car was in perfect external condition, with no panel work required. This is at odds with the photographs taken of the Porsche, which show panel damage to the left-hand rear door, and primer on the left front wheel arch (notwithstanding Ms Gazzard’s insistence that this was in fact a shadow).[143] Although there is no panel damage visible on the door in the 17 January 2019 photographs, it is visible in the photographs taken by Mr Peeters on 27 March 2019.
[143] Exhibit P5, pages 8, 9, 14 and 19; Macil Collect report to Metro Finance (10 April 2019), CB426 at 429.
The Slattery’s invoice also noted that there were “Medium dents to LHR door. RHR wheelarch trim damaged”. [144] Similarly, the Porsche assessment invoice notes “wheel arch liners broken” and “left hand rear door damaged”.[145] I find that this damage was already present at the time that the Porsche was repossessed. Mr Trott testified that he would deduct at least $5000 for the cost of repairing the door,[146] and $250 to $300 for the cost of repainting the wheel arch.[147]
[144] Slattery’s Auctions Tax Invoice (23 January 2020), CB 541.
[145] Porsche assessment invoice (8 October 2019), CB485.
[146] Greg Trott, T397.24-27 and 399.28.
[147] Greg Trott, T398.5-8.
The Slattery’s invoice also noted that there was “damage to front bumper – broken and disconnected on RHS, displaced on LHS”. No such damage is visible in the photographs taken around the time of the repossession; Mr Peeters said he saw only slight damage in that area;[148] and the witnesses stated that if there was such damage, it would have been visible.[149] There was evidence that the bumper may have needed to be removed to allow for the inspection of the chassis by Porsche.[150] I therefore find that this damage was caused after the Porsche was repossessed, and make no deduction for it.

The warning lights

[148] Adrian Peeters, T441.16-20.

[149] Vince Bernardi, T300.7-17; Greg Trott, T420.15-25.

[150] Greg Trott, T429.27 - 428.4.

According to the Pickles email, a number of warning lights came on when the vehicle was started. The warning lights are first referred to in earlier Pickles emails sent to Metro in July and August 2019, which indicate that Pickles had tried unsuccessfully to address the issue by replacing the battery.[151] The email records Pickles mechanics as believing the problem may have arisen from an issue with the sensors on the front of the car caused by poor previous repairs.[152] Mr Trott agreed this would be relevant to the value of the car.[153]
[151] Emails from Jesse Mengotti to Raj Kripal (26 July 2019 and 12 August 2019), CB457-8.
[152] Email from Pickles to Metro Finance Porche Issues (12 August 2019), CB457.
[153] Greg Trott, T414.4-21.
Obviously, however, this observation was made several months after the Porsche was seized, and does not necessarily prove that the problem existed at the time of seizure.
Metro pointed to a contemporaneous photograph which it said showed the warning lights on.[154] However, according to the witnesses, the photograph was taken when the engine was not running (although the ignition may have been turned), as evidenced by the fact that the rev counter on the far right of the photograph is at zero.[155] The evidence was that it was common for warning lights to come on at this stage of the ignition process, and that it did not necessarily indicate any fault.[156]
[154] The photographs forms part of the report submitted by Macil Collect to Metro Finance: (10 April 2019), CB426 at 436. However, Mr Peeters said that he did not take the photo: T443.10-14. Although Mr Bernardi was never asked whether he took the photograph, it seems possible that he took it when he did the RWC, particularly given that the photograph is on the same page of the Macil report as a photograph of the RWC.
[155] Vince Bernardi, T314.28 - 315.17; Greg Trott, T 421.10 - 422.25.
[156] Greg Trott, T421.15 - 422.23
Mr Peeters did not start the car, so was unable give any evidence about whether or not the warning light problem existed when he repossessed the car. Mr Bernardi testified that the warning lights did not come on when he inspected the Porsche for the purposes of the RWC. Ms Gazzard also denied there was any issue with the warning lights.
There is, therefore, no direct evidence that the warning light problem was in existence at the time of repossession; and the inference back in time from the second hand conclusions in the Pickles email is too weak to draw. I find that the warning lights of the Porsche were not coming on in a problematic way at the time of repossession and make no deduction for that.

The cruise control system and other parts

Porsche found that there were faults in the adaptive cruise control and radar;[157] and that the control unit distance sensor, which forms part of the adaptive cruise control system, needed to be replaced.[158] The Porsche estimate also indicated that a number of other mechanical items needed to be replaced (such as heat shields, a pressure hose, pressure pipe, air cleaner and intake pipe). The total cost of these repairs (including the repairs to the cruise control system, and labour) was $15,280.97.
[157] Porsche assessment invoice (8 October 2019), CB485.
[158] Porsche estimate (10 September 2019), CB459.
Mr Trott testified that these things would have impacted his valuation; and that a car with such problems – particularly with the cruise control – could not also be roadworthy.[159] However, Mr Bernardi stated that he did not consider the cruise control to be relevant to safety, so that he did not test whether the cruise control was working properly when he inspected the Porsche.[160] Mr Bernardi indicated that he thought some of the other parts were also irrelevant to a roadworthy.[161]
[159] Greg Trott, T414.22 – 416.1.
[160] Vince Bernardi, CB313.4-8 and 313.31 - 314.3.
[161] Vince Bernardi, T313.11 - 314.6.
Regardless of whether Mr Trott or Mr Bernardi is correct about whether or not these systems need to be operational in order for a car to be certified as roadworthy, the effect of Mr Bernardi’s evidence is that he is unable to say whether or not the cruise control system and other parts referred to in the invoice were functioning when he assessed the Porsche.
Ms Gazzard produced an invoice (but not a receipt) for the cruise control system dated January 2019.[162] This indicates that the cruise control faults existed shortly prior to repossession. Ms Gazzard did not testify that the part had been installed. Given the evidence that the cruise control fault existed shortly prior to repossession and existed several months later, the likelihood is that Ms Gazzard failed to repair it. I therefore find that the cruise control fault existed at the time of repossession.
[162] Suncoast Motorsports (11 January 2019), CB487; Vera Gazzard, T121.16 – 123.20 (in part explaining the date of the document); Greg Trott, T425.2-11.
On the state of the evidence, it is difficult to know whether or not the other problems identified in the Porsche estimate also existed at the date of repossession. Bearing in mind that the onus is on the plaintiff to prove the value of the Porsche, I will deduct the full amount for these repairs.

The chassis

The most contentious issue concerned the condition of the chassis. Metro relied on the Porsche assessment invoice which included the words “found bog in chassis rail” and “found rail front section bent”;[163] and the Pickles email which states that Porsche “have advised the car has been involved in a front end collision causing extensive damage to the chassis”, which would cost in excess of $40,000 to repair.[164]
[163] Porsche assessment invoice (8 October 2019), CB485.
[164] Email from Jesse Mengotti to Raj Kripal (16 September 2019), CB460; and Porsche assessment invoice (8 October 2019), CB485.
Counsel for Ms Gazzard accepted that any chassis damage in the car is likely to have resulted from the impact of the accident that led to the Porsche being sold at auction in 2017, rather than from the process of repossession in 2019.[165] In other words, the condition of the chassis is unlikely to have changed between just prior to repossession in March 2019 and inspection by Porsche several months later.
[165] Counsel, T538.21 - 539.7.

Ms Gazzard said that that the chassis was not bent, and that MA Panels had told her this.[166] However, she did not call anyone from MA Panels who had actually examined the chassis, and I therefore give this claim very little weight. Mr Bernardi had not examined the chassis;[167] and Mr Ceylan was not asked any questions about it.
[166] Vera Gazzard, T86.8-12, T88.23-27 and T109.28.
[167] Vince Bernardi, T295.30 - 296.25.
In my view, it is inherently likely that there was some chassis damage to the Porsche when Ms Gazzard bought it, given that the car had been involved in a collision which resulted it in being sold in a salvage auction. I also find that the chassis damage had not been repaired because no-one testified that it had been repaired, and no evidence of repair was produced (Ms Gazzard’s claim was that it did not need to be repaired).
However, it is far more difficult to make a finding in relation to how much damage there was, and by how much that would have reduced the value of the Porsche. The difficulty again arises from the fact that Metro did not call as a witness the person or persons at Porsche who inspected the chassis.
Mr Bernardi and Mr Trott agreed that “bog in the chassis” was problematic; but that the extent of the problem would depend on the extent of the bog.[168] There was no evidence on that issue.
[168] Vince Bernardi, T312.1 - 314.3; Greg Trott, T416.17-21.
Ms Gazzard relied on the photographs of the Porsche, and the evidence of Mr Bernardi and Mr Trott, who both testified that where a car has extensive chassis damage, the panels will not be in alignment, and moving parts such as the doors and bonnet will not properly close. Mr Bernardi disputed that the chassis of the Porsche could have been damaged.[169] Mr Trott agreed – when shown various photos – that the panels, doors and bonnet of the Porsche aligned.[170]
[169] Vince Bernardi, T298.8-25.
[170] Greg Trott, T401.3 - 404.1.
I therefore find that the chassis damage to the Porsche was not of such an extent as to result in panel misalignment. If there was major chassis damage, Mr Trott said, the Porsche wouldn’t be on the road and nothing would fit; therefore, the chassis damage could only have been minor.[171]
[171] Greg Trott, T401.16 - 402.6.
When shown the Pickles email, Mr Trott said “that’s um a lot of work to do. It’d wanna be a massive hit – and looking at the car, the photos that I seen at Pickles that were supplied to me – it’s not – it doesn’t show that sort of damage. I would’ve thought there’d be an insurance claim, and it would’ve been listed on the WOVR [Written-Off Vehicle Register], to have that sort of damage”.[172]
[172] Greg Trott, T426.26 - 427.17.
However, Mr Trott accepted that some degree of chassis damage was consistent with the photographs.[173] For minor chassis damage, Mr Trott would have made a deduction of at least $4000.[174]
[173] Greg Trott, T416.17-29.
[174] Greg Trott, T401.10-15.
I find that there was chassis damage to the Porsche, but only minor damage. This is because the photographs taken of the Porsche prior to its repossession are inconsistent with the vehicle having such extensive chassis damage as is referred to in the Pickles email.[175] The Pickles email simply reports a conclusion apparently expressed by someone at Porsche who was not called as a witness.

Value of the Porsche at the time of repossession

[175] Email from Jesse Mengotti to Raj Kripal (16 September 2019), CB460.

Mr Trott was clearly troubled by the information contained in the Porsche assessment invoice[176] and in the Porsche estimate.[177] Mr Trott said that these documents would have had a “massive effect” on his report; that if he had seen them he “probably wouldn’t have taken this on as a valuation”; and that he would have needed to have seen the car to do a proper valuation.[178] Mr Trott also acknowledged that the Porsche seen in the photographs could have had many of these problems, because they would be invisible or undetectable.[179]
[176] Porsche assessment invoice (8 October 2019), CB485-6.
[177]Porsche estimate (10 September 2019), CB459.
[178] Greg Trott, T T416.17 - 417.26.
[179] Greg Trott, T418.26 - 419.19.
In light of all of the issues to which he was taken in cross-examination, Mr Trott says that he would now have input different information into AutoEdge. In particular, he would have described the overall condition of the car, and the condition of its exterior, including mechanicals, as poor (he would still have described the condition of the interior as good).
Unfortunately, neither of the parties asked what impact this would have had on the actual valuation. I will, therefore, have to arrive at a figure myself, doing the best I can, on the evidence available to me, mindful of the fact that the onus of proving damages (and therefore the value of the Porsche) is on the plaintiff.
Mr Trott had earlier said that where a vehicle was in poor condition he would choose the low trade value in AutoEdge.[180] I will adopt this approach, accepting his reclassification of the condition of the Porsche as poor. As at 6 February 2020, the low trade value for the Porsche was $127,288.[181] When Mr Trott backdated the (mid) trade value to the date of repossession, it increased by approximately 9.5%. Applying the same percentage increase to the low trade value would give a value at the date of repossession of $139,397.
[180] Greg Trott, T391.16-17.
[181] AutoEdge Valuation (6 February 2020), CB127 at 128.
Mr Trott also said that he would make deductions of approximately $4000 for the chassis damage, $5000 for the damage to the left-hand rear door, and $300 for the repainting of the wheel arch. I would also deduct the $15,280.97 worth of repairs listed in the Porsche estimate, including the cruise control. After those deductions, the value of the Porsche is reduced to $114,816.[182]

Should I reduce the damages to account for money received by Ms Gazzard after the purported Platinum sale?

[182] I note that this is reasonably close to the value which Ms Gazzard had claimed for the Porsche around the time of the conversion: Email from Vera Gazzard to Metro (2 April 2019), CB399 at 401 ($120,000); VCAT Application (16 April 2019), CB439 at 445 ($130,000).

As noted above, after Metro paid the loan money to Platinum, Ms Gazzard received payments from Platinum, SOC and Mr Scamarcio. Metro contends that these were effectively payments for the Porsche (or payments for Ms Gazzard’s participation in the fraud on Metro), and that they therefore reduce the amount of her loss and the amount of necessary compensation. Ms Gazzard denied that the payments were made for that purpose. [183] Although the timing and source of the payments clearly rouse suspicion about their purpose, I do not have sufficient evidence to warrant a positive finding of fraud on Ms Gazzard’s part.
[183] Vera Gazzard, T216.23-24, T256.24-25, T260.5-12; T261.10-12 and T263.4-12.
Metro further contends that Ms Gazzard’s damages should be reduced by the amount which would have been paid to Mr Ceylan on the sale of the Porsche as his share of the profit. However, it was not clear from the evidence that Mr Ceylan would have received anything; nor do I have any basis for determining what the profit or his share of it might have been.
In any event, Metro did not cite any authority that this was the correct approach to take. By contrast, Ms Gazzard’s counsel referred me to case law confirming that the measure of damages in conversion is the value of the converted goods, rather than a more broadly determined assessment of loss.[184] In light of those authorities, I find that the correct measure of Ms Gazzard’s damages is the value of the Porsche at the date of the conversion.

Persons not called as witnesses

[184] Furness v Adrium Industries Pty Ltd [1996] 1 VR 668 at 675 (Marks J); ACN 116 746 859 v Lunapas Pty Ltd [2017] NSWSC 1583 at [162]; and Bunnings Group Ply Ltd v Chep Australian Ltd (2011) 82 NSWLR 420 at 467 [175] (Allsop P).

At various points in the trial the parties indicated that they sought Jones v Dunkel inferences in relation to the non-calling of Burak Ceylan, Mr Scamarcio, Mr Sawers, someone from MA Panels and someone from Porsche.[185] However, in my view, neither of the parties laid a proper foundation for the making of these submissions during the course of the trial. That is, neither party established a sufficient basis for me to find, in respect of a particular potential witness, that the other party would ordinarily have been expected to call them, and has failed to provide a reasonable explanation for not doing so. I have noted, at various points, the absence of evidence that might have been given by persons who were not called as witnesses; however, I have not inferred that that evidence would not have assisted a particular party’s case.

Orders

[185] See T1.30 - 2.2, T98.21-31, T100.30 - 101.12, T166.13-19, T589.5 - 592.1 and T595.5-23.

I will order that there be judgment for the plaintiff in the sum of $114,816. The plaintiff is also entitled to statutory interest on that amount from the date of the issuing of the writ to the date of judgment. The parties will be asked to provide calculations of the interest payable. Subject to hearing from the parties, I propose ordering that the defendant pay the plaintiff’s costs of and incidental to the proceeding on the standard basis, to be taxed in default of agreement.

[2025] VCC 592

16 May 2025