IPL Datron Pty Ltd v McCoy

[2003] NSWSC 526

CITATION:	IPL Datron Pty Ltd v McCoy [2003] NSWSC 526
HEARING DATE(S):	28/05/03
JUDGMENT DATE:	13 June 2003
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Young CJ in Eq
DECISION:	Those goods still with the defendant to be returned to the plaintiffs. Defendant to give an account of the sales he has made.
CATCHWORDS:	EQUITY [326]- Romalpa clause- Title to goods remains in the plaintiffs- Whether common law remedies adequate- Factors involved- Damages not an adequate remedy if they cannot be recovered- Equity may intervene. TORTS [30]- Detinue- When specific restitution awarded.
CASES CITED:	GE Capital Asset Services & TradingAsia Pacific Pty Ltd v Rocks Excavation & Plant Hire Pty Ltd [2003] NSWSC 99
PARTIES :	IPL Datron Pty Ltd (P1) Voca Communications Pty Ltd (P2) Alan Frank McCoy (D)
FILE NUMBER(S):	SC 50031/03
COUNSEL:	M J Heath (P)
SOLICITORS:	Aitken McLachlan Thorpe (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

YOUNG CJ in EQ

Friday 13 June 2003

50031/03 – IPL DATRON PTY LTD v McCOY

JUDGMENT

1 HIS HONOUR: This is an application in respect of a small amount of electrical goods which were delivered by the plaintiffs to the defendant for the purpose of resale. The documents are not the most watertight I have ever seen, but the probabilities are that with respect to these goods the Romalpa clause in para 6(c) of the "IPL Group of Companies Terms of Sale" applied to this transaction, so that the title to the goods remains in the plaintiffs and the defendant was the fiduciary agent to sell them on behalf the plaintiffs and to account for the proceeds.

2 It would seem that some of the goods are still in the possession of the defendant, others of them have been sold and there has been no accounting for the proceeds.

3 These sorts of claims are ordinarily pure common law claims and there is ability to commence proceedings for detinue to establish title, and it is only where there are circumstances which show that damages are not an adequate remedy that Equity becomes involved in this sort of transaction.

4 When the matter was before me on 28 May I was not satisfied on the evidence then before me that damages were not an adequate remedy in this case. The matter was then adjourned to today. With the additional material that has now been put on it would seem to me that the odds are (if I can use that expression) the defendant will not be able to meet any claim for damages that might be made at law. Clearly there are grounds for this Court interfering.

5 I went fully into this part of the law in G E Capital Asset Services & Trading Asia Pacific Pty Ltd v Rocks Excavation & Plant Hire Pty Ltd [2003] NSWSC 99 and it is not necessary to repeat what I said there.

6 The relief sought is that the court can declare that the goods that are still in the hands of the defendant are the goods of the plaintiffs, and for an order that the defendant give an account of the sales that he has made. Therefore, I think that the proper orders are:

1. The court declares that the first plaintiff is the beneficial owner of such of the goods described in schedule 1 of the amended summons as have not been duly sold by the defendant pursuant to his fiduciary agency, and the second plaintiff is the beneficial owner of the goods described in schedule 2, other than those which the defendant has prior to this date sold pursuant to his fiduciary agency.

2. Order that it be referred to the Master to take account of the sales of those goods made by the defendant; that the Master certify the amount of the proceeds of such sale and that, when he has so certified, the amount thereof be paid to the respective plaintiffs.

7 So far as costs are concerned, the court is very careful to ensure that bringing these claims in the Commercial List of the Supreme Court is not going to unduly penalise the defendant where they ordinarily should be brought in the District Court or the Local Court. It also seems to me in the present case that there was no reason why the defendant should pay for this matter coming into the list twice.

8 I order that the defendant pay the plaintiffs' costs of the proceedings to date, but those costs are not to include the extra fee in filing the summons in the Commercial List, nor the costs of today. The exhibits may be returned.

*******************

Last Modified: 06/18/2003