Girrawheen Investments Pty Ltd v Tarua Pty Ltd

[1982] FCA 100

Re: GIRRAWHEEN INVESTMENTS PTY. LTD.
And: TARUA PTY. LTD. TRADING AS SUNSTREAM DEVELOPMENTS
And: GEOFFREY BRUCE STANLEY
And: ESANDA LIMITED
No. WAG 1 of 1981
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Practice and Procedure - Deputy Sheriff's interpleader - seizure of motor vehicle at residential premises under writ of fi. fa. - title asserted by finance company - possession or apparent possession - failure to renew registration under Bills of Sale Act 1899 (W.A.) - consequences.

Bills of Sale Act 1899 (W.A.) ss.13, 13A(5), 14, 25(2), 25(3)

HEARING

DARWIN

#DATE 26:5:1982

ORDER

1. The Deputy Sheriff of the Federal Court Perth, deliver to Esanda Limited, Mercedes Benz sedan registered number XRO 620.

2. The applicant, Girrawheen Investments Pty. Ltd., pay the costs of the claimant, Esanda Limited, in these proceedings.

3. The applicant, Girrawheen Investments Pty. Ltd., also pay the costs of the Deputy Sheriff in and in connection with these proceedings.

4. Liberty to apply.

JUDGE1

This is an interpleader motion by the Deputy Sheriff arising from the seizure by him of Mercedes Benz sedan registered no. XRO 620.

On 28 August 1981 the applicant Girrawheen Investments Pty. Ltd. obtained judgment by default against the respondents Tarua Pty. Ltd. and Geoffrey Bruce Stanley. In October 1981 the applicant caused two writs of fi. fa. to be issued, one against Tarua and the other against Stanley. The affidavit sworn by the Deputy Sheriff in support of the interpleader motion recites that a writ of fi. fa. was issued against the real and personal estate of Stanley, that the Deputy Sheriff authorised David George Redpath to assist him in the execution of that writ in respect of Stanley's estate, and that on 16 November 1981 at residential premises in Claremont Redpath "lawfully seized from the said Geoffrey Bruce Stanley pursuant to the said Writ of Fieri Facias a Mercedes Benz sedan registered number XRO 620."

The claimant Esanda Limited asserts ownership of the vehicle. In an affidavit sworn 5 May 1982 Robin Anthony Lamond Stanion, Esanda's collection manager, deposed that on or about 13 January 1978 the company purchased it from Oxford Cars Pty. Ltd. and thereafter leased it to Tarua under a leasing agreement dated 13 January 1978. In the absence of any challenge or contrary testimony, I accept Mr. Stanion's affidavit as evidence of Esanda's ownership.

By the agreement Tarua leased the vehicle for a term of 60 months, a period which has not yet expired. The leasing agreement was registered as a bill of sale on 18 January 1978. By reason of s.14 of the Bills of Sale Act registration must be renewed within three years. That was not done, apparently due to inadvertance.

Esanda's primary argument is that nothing has occurred to destroy its ownership of the vehicle. Section 25(2) of the Bills of Sale Act provides that a bill of sale not duly registered or renewed shall be void as against all sheriffs and other persons seizing any chattels in execution of process and as against any person on whose behalf such process shall have been issued

". . . so far as regards the property in or right to the possession of any such chattels . . . which, at the time of such seizure and after the expiration of the time and extended time aforesaid, shall be in the possession or apparent possession of the grantor".

In Esanda's submission that provision cannot operate to deprive it of ownership because at the time the vehicle was seized it was not in the possession or apparent possession of Tarua; it was in the possession of Stanley and although Stanley may have been a director and the manager of Taruan, there was nothing to show that his possession was as agent for the company.

Esanda further submits that the words in s.25(2) "or extended time aforesaid" refer to s.13 whereby a Judge of the Supreme Court may in certain circumstances extend the time for registration or renewal of a bill of sale. It was argued that such an order could operate retrospectively so as to prevent the operation of s.25(2). See for instance Re Pacific Acceptance Corporation Ltd. (1963) 63 S.R.(N.S.W.) 435, Re Market Investments Ltd. (1966) 2 N.S.W.R. 19. That submission must fail, if for no other reason than that such an order has been neither made nor sought. Furthermore s.13A(5) provides that any renewal under s.13 is without prejudice to the rights of third parties acquired between the time the bill of sale should have been renewed and is renewed. Whether the applicant has acquired "rights" in this sense is a matter I do not have to determine.

Girrawheen's answer to Esanda's primary submission is that the Deputy Sheriff was acting pursuant to two writs of fi. fa. and that although in seizing the sedan he may have intended to act pursuant to the writ against Stanley, if it should turn out that the vehicle belonged to the other judgment debtor Tarua, the vehicle must be taken to have been effectively seized under the other writ, thus bringing s.25(2) into operation.

But in my view that is not an answer to Esanda's claim. The risk involved in not renewing the bill of sale was that in the event of execution against Tarua, if the vehicle was at the time of seizure in the possession or apparent possession of that company the bill of sale would be void as against the sheriff. Avoiding the bill of sale would not of itself destroy Esanda's title for that did not depend upon the bill of sale. It was anterior to it, unlike a mortgagee whose title derives from the bill of sale itself. As Mr. J.L.C. Wickham (now Wickham J.) pointed out, the Bills of Sale Act ". . . is not destructive of titles or of transactions but only destructive of documents or writings, and then only against a limited class of persons and under certain limited circumstances" (The Struggle for Title 5 Uni.W.A. Ann. L. Rev. 476-477). True it is that Esanda's right to possession derived from the bill of sale for, having parted with possession under the leasing agreement, that right, at least during the currency of the hiring, only arose in the event of default as set out in cl.6 of the agreement. But the parties directed their arguments only to title, not to possession.

I do not think that, in the circumstances of the present case, the existence of two writs of fi. fa. is crucial. The fact is that a vehicle was seized which did not belong to either judgment debtor; it belonged to some-one who was not a party to the litigation which gave rise to the execution proceedings. Had the vehicle been seized by the Deputy Sheriff while in the possession or apparent possession of Tarua, s.25(2) would have operated to produce some consequences, though of a limited nature since Esanda's title did not derive from the bill of sale. Counsel neither relied upon nor referred to s.25(3) and, in the circumstances, it is unnecessary to say anything about that sub-section. The real point is that the vehicle was not seized while in the possession or apparent possession of Tarua; at least there was no evidence that Stanley's possession was the company's. And once the vehicle was in the possession of the Deputy Sheriff, s.25(2) could have no new operation. (Fidock and Pollock v. Westralian Master Butchers (1922) 24 W.A.L.R. 126) It follows then that Esanda's claim must be upheld.

Esanda is entitled to delivery of the vehicle and, as against Girrawheen, its costs of these proceedings. Girrawheen must also pay the Deputy Sheriff's costs.

If there is any problem about the form of order, I shall hear from counsel.