Hale v Bray
[2009] QMC 2
•14 January 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Hale v Bray & Anor [2009] QMC 002
PARTIES:
BRADLEY P HALE
(applicant)
v
JOHN GREGORY BRAY
(first respondent)
BYRON KEITH SYMONS
(second respondent)
FILE NO/S:
M12597/08
DIVISION:
Magistrates Court
PROCEEDING:
Application for order declaring owner
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
14 January 2009
DELIVERED AT:
Brisbane
HEARING DATE:
16 December 2008
MAGISTRATE:
Previtera T
ORDER:
That the second respondent Byron Keith Symons be declared the owner of the white 2001 model Mercedes-Benz C200 series registration 755 JXL.
CATCHWORDS:
PERSONAL PROPERTY – OWNERSHIP – Vehicle obtained by fraud and sold
Sale of Goods Act 1896 (Qld) s 26
COUNSEL:
AS Colavitti for first respondent
Rice for second respondent
SOLICITORS:
McAuliffe and Associates for second respondent
In this matter, the applicant seeks, pursuant to s 694 of the Police Powers and Responsibilities Act (QLD) 2000 (“PPRA”), that an order be made as to who is the owner of a white 2001 model Mercedes-Benz C200 series motor vehicle bearing registration 755 JXL (“the Mercedes”).
Section 694 PPRA provides:-
694 Application by police officer for order if ownership dispute
(1) This section applies if there is a dispute about the ownership of a relevant thing, whether the dispute is between—
(a) two or more persons, each of whom claims to be the owner of the thing; or
(b) a police officer and a person who claims to be the owner of the thing.
(2) A police officer may apply to a magistrate for an order declaring who is the owner of the thing.
……………………………………….
(4) The magistrate may make the order the magistrate considers appropriate.
(5) If the magistrate can not decide who owns the thing, the magistrate may make the orders the magistrate considers appropriate for the disposal of the thing.
The application was first mentioned before this court on 7 November 2008 when the second respondent Symons sought an adjournment to obtain further information from the Queensland Police Service. The first respondent Bray did not object to the adjournment and accordingly, the application was adjourned to 16th December 2008 with directions as to the filing of any further material to be relied upon by each of the respondents and a direction that any summonses issued (for example, to the Department of Transport, Queensland Police Service and the National Australia Bank “NAB”) be made returnable on 16 December 2008 or earlier as arranged with the Registry.
On 16 December 2008, the matter proceeded by way of affidavit evidence and submissions both written and oral, with no cross-examination required by either respondent of any deponents. Despite the order of 7 November 2008, no summonses directed to any authority had been issued at the request of either respondent.
The applicant did not appear and was not represented on either 7 November or 16 December 2008, as the dispute as to ownership of the Mercedes is between the two respondents, Bray and Symons.
[6]The background to the dispute is as follows;
1. Bray purchased the Mercedes as a wreck from an undisclosed Sydney based car company for an undisclosed price on an unknown date sometime prior to May 2006.
2. Following the purchase, Bray spent an unstated amount of money on repairs and modifications to the Mercedes in order to sell it.
3. In December 2006 Bray advertised the Mercedes for sale via the internet, on carsales.com, for $45 000.00.
4. On 20 January 2007, Bray was contacted by a male person, by mobile phone, who, after a test drive with Bray, offered to buy the vehicle for $46 000.00. (The reason for the discrepancy between the advertised price and what was offered by the unknown male is not the subject of evidence).Bray told the male that if he could arrange the money before lunch on 22 January 2007, the purchase would be secured. Bray cannot provide any details as to the identity of the male other than to describe the clothing he was wearing and that he appeared of be of Indian appearance.
5. On 22 January 2007, Bray and the unknown male drove together to the Department of Transport at Spring Hill and finalised the vehicle transfer from Bray to the unknown male. Bray produced a roadworthy certificate and removed his personalised plates and the Department issued the unknown male with the registration plates “755 JXL,” which are the plates still attached to the Mercedes. (None of the documentation which was provided by Bray and the unknown male to the Department of Transport on 22nd January 2007 is the subject of evidence in these proceedings; and the only documentary evidence as to either ownership, possession or purchase of the Mercedes by Bray is a letter dated 22/10/07, from the Queensland Department of Transport to Bray, confirming that as at the 1 January 2007, the Mercedes was registered in Bray’s name until 14 February 2007).
6. At the same time, the unknown male provided Bray with a NAB cheque in the sum of $46 000.00 drawn in Bray’s name; and drove Bray to a branch of the NAB where Bray deposited the cheque.
7. By letter dated 23 January 2007 Bray was informed by the NAB that the $46 000.00 had not been deposited to his account as the cheque had been dishonoured and declared a “Forged or counterfeit Instrument”.
8. On 27 January 2007, Bray attended the Brisbane City Police Station to report the Mercedes stolen. A crime number was generated and Bray’s complaint was reported as a fraud as the police determined that actual ownership had changed hands with the offender at the time of the sale and as such the matter was not required to be listed as a stolen motor vehicle.[1]
[1] Affidavit of Bradley Hale, paragraphs 3 and 4, filed 1st December 2008.
9. The applicant police officer deposes to subsequent investigations identifying the person who provided Bray with the stolen cheque as Niraj Charan (although there is no evidence as to any prosecution of Charan or any other person in relation to the matter); and that the Mercedes was sold on 23 January 2007 for $26 000.00 to Prabhjinder Singh Sidhu.[2]
[2] Affidavit of Bradley Phillip Hale filed 1st December 2008.
10. However, the QLD Transport vehicle information check in relation to the vehicle does not disclose any event occurring with respect to the vehicle on 23 January 2007. Rather, it discloses two transfers of registration on 22 January 2007, that is;
(a) a plate transfer and registration transfer when the odometer reading was 132 214; and
(b) a further registration transfer when the odometer reading was 132 272.
11. In August/September 2007, the Mercedes was advertised for sale by Prabhjinder Singh Sidhu on ebay for $31 900.00.
12. On 11th September 2007, Symons purchased the vehicle from Sidhu for $24 990.00. Sidhu provided Symons with a Qld Transport safety certificate label, a Qld Transport safety certificate, a statutory declaration of Sidhu and a copy of a registration certificate for the vehicle indicating that the vehicle was registered in Sidhu’s name until 14 February 2008,[3] copies of all of which are in evidence in these proceedings. (A transfer of registration of the vehicle on 11/9/07 is noted on the vehicle information check documents provided by the Department of Transport).[4]
[3]Paragraph 5 of the affidavit of Byron Keith Symons filed 5th November 2008.
[4] Exhibit ASC11 of the affidavit of Anthony Steven Colavitti
13. In October 2007, Bray consulted a solicitor and in March 2008, Bray and his solicitor attended upon the police and Bray made a statement. In October 2008, Bray and his solicitor attended police again to make enquiries in relation to the investigation.
14. The applicant filed his application on 13 October 2008 and on 14 October 2008 registration for the vehicle was cancelled. It is presumed, by the application that the Mercedes is now in the possession of the Queensland Police Service and under the control of Detective Senior Constable Bradley P Hale.
15. A Redbook valuation certificate search[5] indicates that the private sale price values of a Mercedes C200 Kompressor, as at September 2007 and November 2008 were $32 400.00 and $23 800.00 respectively.
[5] Affidavit of Melissa Jean Rice sworn 12th December 2008.
THE DISPUTE
[7]Each of the respondents relies on the Sale of Goods Act Qld 1896 (“the Act”) to argue their claim of ownership. Neither respondent disputes that, by reference to the definitions in s 3(1) of the Act;
(a) The Mercedes is “goods” within the meaning of the Act;
(b) Bray is a seller within the meaning of the Act;
(c) Bray made delivery (a voluntary transfer of possession) of the Mercedes to the unknown male on 22 January 2007;
(d) Symons is a buyer within the meaning of the Act.
[8]Bray, in seeking a determination in his favour, argues;
(a) That he is in the position of an unpaid seller, as provided by s 40 of the Act , with the rights of an unpaid seller, as provided by s 41 of the Act; or alternatively;
(b) That, in reliance on s 26(1) of the Act, the property in the Mercedes revested in him as owner as at 22 January 2007; or alternatively;
(c) That, in reliance on s 27(2) of the Act, and the doctrine of constructive notice, the sale to Symons cannot be authorised as Symons cannot be considered to have received the Mercedes in good faith and without notice of Bray’s rights in respect of the vehicle.
(a)“unpaid seller”
S 40 of the Act provides;
(1)The seller of goods is deemed to be an unpaid seller within the meaning of this Act—
(a) when the whole of the price has not been paid or tendered;
(b) when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise.
S 41 of the Act provides;
(1) Subject to the provisions of this Act, and of any statute in that behalf, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law—
(a) a right to retain the goods for the price while the unpaid seller is in possession of them;
(b) in case of the insolvency of the buyer—a right of stopping the goods in transitu after the unpaid seller has parted with the possession of them;
(c) a right of resale as limited by this Act.
(2) When the property in goods has not passed to the buyer, the unpaid seller has, in addition to the unpaid seller’s other remedies, a right of withholding delivery similar to and coextensive with the unpaid seller’s rights of retention and stoppage in transitu when the property has passed to the buyer.
[9]Whilst it can be argued that s 40(1)(b) applies to render Bray an unpaid seller:- it is this court’s view that, whether or not property in the Mercedes has passed to the unknown male, s 41(1)(a) and (b) and s 41(2) have no application, as possession of the Mercedes passed to the unknown male on 22nd January 2007. The only remaining remedy provided by s.41 (1) (c) is limited by, and subject to, the Act; s 25, s 26 and s 27(2) of which are the most relevant as discussed below.
(b) S 26 of the Act
S 26 of the Act provides;
Revesting of property in stolen goods on conviction of offender
(1) When goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or the person’s personal representative, notwithstanding any intermediate dealing with them.
(2) Notwithstanding any enactment to the contrary, when goods have been obtained by fraud or other wrongful means not amounting to stealing, the property in such goods does not revest in the person who was the owner of the goods, or the person’s personal representative, by reason only of the conviction of the offender.
[10] Contrary to the submission made on behalf of Bray, even if there was evidence of a conviction against the unknown male or any person in relation to the dishonoured cheque, s 26(1) does not apply to revest ownership of the Mercedes in Bray as the Mercedes itself was not stolen but was obtained by fraud. In the latter case, whether or not there is evidence of a conviction, s 26(2) does not operate to revest property in the Mercedes in Bray.
(c)S 27(2) of the Act
[11] Both Bray and Symons rely on s 27(2) to assert their ownership of the Mercedes. The onus of proof is, however, upon Symons to prove what amounts to his defence to the application, on the balance of probabilities.[6]
S 27(2) provides;
(2) When a person having brought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for the person, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, has the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.
[6] Robinson Motors Pty Ltd v. Fowler (1982 Qd R 374
S 3(2) of the Act provides;
A thing is deemed to be done in good faith within the meaning of this Act when it is in fact done honestly, whether it is done negligently or not.
[12] In determining that Symons acted in good faith and without notice of Bray’s rights as original seller in relation to the Mercedes, the court takes into account the following matters:
a) There was no reason for Symons, as a result of all of the documentation received by him from Sidhu on 11/09/07, to suspect that Sidhu was other than the registered owner of the Mercedes; or more relevantly, that Bray or any other person had any rights in relation to the Mercedes.
b) Consequently, there was nothing which should have suggested to Symons that he should have made further enquiries in relation to the history of ownership/registration/possession of the Mercedes.
c) Even if Symons had undertaken a search of the history of the vehicle’s registration, such enquiry would have revealed that the vehicle had never been written off and had never been stolen.
d) Whilst Symons was able to negotiate the price down from the advertised price by an amount of $6 910.00, the price at which Sidhu had advertised the Mercedes for sale was only $500.00 less than the Redbook valuation for a similar Mercedes at that time. Consequently, the advertised sale price could not have raised, and the court accepts, did not raise any suspicion in the mind of Symons as to the history of ownership of the Mercedes or its value.
[13] Support for this conclusion is provided in the decision of Robinson Motors Pty Ltd v. Fowler[7] . In that case, R sold a car to O on 15/5/79. O paid for it with a counter cheque (as opposed to a bank cheque). R gave O a receipt and O was registered as the owner. On 18/5/79 O offered the car for sale to F, who asked for proof of ownership. O produced only the receipt which O had backdated by two (2) months. This receipt stated;
[7] 1982 Qd R 374
“CONDITIONS OF SALE
1. No title to the vehicle sold by ROBINSON’S MOTORS PTY LIMITED shall pass to the purchaser if:-
(a) Any cheque paid by him in part or full payment for such car is dishonoured, or
..
Until the whole of the foregoing conditions or such of them as shall apply to this transaction shall have been fulfilled the purchaser shall hold the vehicle sold as Bailee only on behalf of ROBINSON’S MOTORS PTY., LIMITED
…..
F also had telephone advice from the Department of Transport that O was registered as the owner, although it was not known that she had only been registered for three days, rather than the two months evidenced by the altered receipt.
O also signed a statement saying that the vehicle was free of all encumbrances. F paid O for, and took possession of, the car. On 22/5/79 O’s cheque to R was returned dishonoured. R immediately went to the address given by O, which was fictitious, and then told the police. On 16/6/79, the car was removed from F’s car yard.
The Court, at first instance, in applying the principle of constructive notice, decided that whilst F had at all times acted in good faith and honestly, he made no enquiries of R about the matter, which enquiries might have thrown suspicion on O’s title; and in the absence of such enquiries F could not be considered to have taken the car without notice.
On appeal, however, it was held that there was nothing to put F upon inquiry and it was wrong to impute constructive notice to him of any right in R in respect of the vehicle. The Court referred to the reluctance of courts generally to apply the doctrine of constructive notice to commercial transactions, referred to in Worcester Works Finance Ltd v. Cooden Engineering Co.Ltd.[8] (a decision relied upon by Bray but in any event distinguishable on its facts given that the seller took the car back from the original buyer before delivery to the subsequent buyer).
[8] 1972 1 QB 210.
His Honour Justice Lucas, after stating that he did not think the result of the appeal to be unjust, said “This is a case in which one of two innocent people must suffer for the actions of a rogue; I am fortified by what Lord Denning M.R. said in such a case, although in a slightly different context: ‘As I listened to the argument in this case, I felt it wrong that an innocent purchaser (who knew of nothing of what passed between the seller and the rogue) should have his title depend on such refinements. After all, he has acted with complete circumspection and in entire good faith; whereas it was the seller who let the rogue have the goods and thus enabled him to commit the fraud.”
Contrary to the situation which existed in Robinson Motors Pty.Ltd v. Fowler, Bray accepted a bank cheque rather than a counter cheque. Bray, however, had not taken any action in relation to avoiding the sale to the unknown male or indeed the sale from the unknown male to Sidhu or another on 22 January 2007 until after possession of the Mercedes had passed as a result of those transactions[9].
[9] Car and Universal Finance Co.Ltd v. Caldwell 1963 1 QB 525.
Symons is therefore able to rely also upon s 25 of the Sale of Goods Act 1896 to enable this court to declare that Symons is the owner of the subject Mercedes.
Section 25 of the Sales of Goods Act 1896 provides:-
25 Sale under voidable title
When the seller of goods has a voidable title thereto, but the seller’s title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, if the buyer buys them in good faith and without notice of the seller’s defect of title.
In any event, Bray’s link to the Mercedes, having regard to the limited information provided to the court in that regard, is tenuous at best.
S 694 PPRA
S 694 PPRA has been the subject of recent deliberation in the District Court by His Honour Judge Robertson, in the decision of Stephens v. Williams.[10] His Honour referred to the lack of developed jurisprudence in relation to s 694, but drew upon judicial consideration given to its repealed predecessor, s 39 of the Justices Act. S 39 required a Magistrate, in an application of this kind, to order the delivery of the property “to the person who appears to be its owner.”
[10] 2008 QDC 320
His Honour referred to the Court of Appeal decision in Otto,[11] where the meaning of “owner” was considered, and in relation to which Thomas J observed that the use of the words “appears to be the owner” suggest that only a low standard of proof and persuasion is required. “All members of the Court held that the word owner” refers to “the true owner of the particular property” according to its “ordinary popular meaning” of the word: Raymond Lyons & Co v. Metropolitan (1975) QB 311. Depending on the circumstances of the case this could include possessory title through to the absolute owner. The Chief Justice (at 496) observed: “In English law, there will often be a difficult relationship between concepts of “ownership” and “possession” and in a particular case the borderline may be difficult to state in a way that is beyond argument. The common use of the phrase “possessory title” illustrates this. A good possessory title can often be the practical equivalent of ownership. At common law, the situation is that the person who is in possession of an item of personal property is, by virtue of that fact, entitled to claim it back from another person who, not being the owner or deriving title from the owner, takes it out of his possession without his authority. As Isaacs and Rich JJ said in Russell v. Wilson (at 546-547) “Possession…is not merely evidence of absolute title: it confers a title of its own” and “possessory title is as good as the absolute title as against, it is usually said, every person except the absolute owner.”
[11] 1996 90 A Crim R 492
This decision does not alter this court’s view that Symons has satisfied the onus upon him to prove, on the balance of probabilities, that he is, as a bona fide purchaser for value without notice, the rightful owner of the Mercedes; and possession of the vehicle should thus be returned to him.
Accordingly, this court orders that the second respondent Byron Keith Symons be declared the owner of the white 2001 model Mercedes-Benz C200 series registration 755 JXL.
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