Jayfield Pty Ltd v Cussen - [2020] VSC 380

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2019 04190

JAYFIELD PTY LTD (ACN 007 114 249)	Plaintiff
v
NEIL ROBERT CUSSEN AND ROBERT WOODS in their capacity as joint liquidators of MELDED FABRICS AUSTRALIA PTY LTD) (IN LIQUIDATION) (ACN 147 555 726)	First Defendant
and
AUSTRALIAN COMFORT GROUP PTY LTD (ACN 098 742 584)	Second Defendant

---

JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATES OF HEARING:	1-2 June 2020
DATE OF JUDGMENT:	30 June 2020
CASE MAY BE CITED AS:	Jayfield Pty Ltd v Cussen & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 380

---

PERSONAL PROPERTY – Disposal of uncollected goods – Whether pt 4.2 of the Australian Consumer and Fair Trading Act 2012 (Vic) applies – Jurisdiction of courts – Relevant charge – Statutory charge – Equitable lien – Liquidation of provider of goods - Whether Personal Property Securities Act 2009 (Cth) applies – Position of liquidators – Australian Consumer Law and Fair Trading Act 2012 (Vic) ss 3, 54, 56, 58, 62, 66, 68, 69, 70, 71, 72 and 73; Personal Property Securities Act 2009 (Cth) ss 8, 10, 12, 21 and 267.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I Hone Hone Legal & Conveyancing
For the First Defendant	Mr M McKillop	Gadens Lawyers
For the Second Defendant	Mr D McAloon	Cottell & Co

HIS HONOUR:

The claims

This judgment concerns the following two proceedings:

(a) an application made by Australian Comfort Group Pty Ltd (ACN 098 742 584) (‘ACG’) for an order under s 70 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (‘ACLFTA’) that it is authorised to sell by public auction or otherwise dispose of the goods stored by it (‘stored goods’) at premises formerly occupied by Melded Fabrics Australia Pty Ltd (in liquidation) (ACN 147 555 726) (‘MFA’) at 34-36 Commercial Drive, Dandenong South (‘premises’); and

(b) a claim made by Jayfield Pty Ltd (ACN 007 114 249) (‘Jayfield’) against ACG for failing to release the stored goods to Jayfield.

The first defendants (‘liquidators’) are the joint liquidators and former administrators of MFA. They were appointed administrators of MFA on 17 June 2019 and liquidators on 22 July 2019. At this time, Greg Taylor was the sole director of MFA.

Prior to 12 April 2019, MFA subleased the premises from ACG (‘sublease’) and used the stored goods in its business. The premises formed part of a larger property (‘property’) which was leased by ACG (‘head lease’).

The evidence in this proceeding is largely undisputed. Most is documentary or found in unchallenged witness statements.

ACG relies on the witness statement of Grant Paine, the general manager of its ‘Dunlop Foams’ business. Mr Paine gave oral evidence supplementing his witness statement. He was cross-examined as to some aspects of his oral evidence and witness statement. He was the only witness cross-examined.

The liquidators rely on the witness statement of Neil Cussen, one of the liquidators of MFA.

Jayfield relies on the witness statements of:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Jayfield Pty Ltd v Cussen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSC 380
Decision Date: 30 June 2020

CaseChat Overview and Summary

Jayfield Pty Ltd brought an action against Cussen, the liquidator of an entity that had supplied goods to Jayfield Pty Ltd. The central issue was whether certain goods, which had been delivered to Jayfield Pty Ltd but had not been collected or paid for, could be considered as uncollected goods under the Australian Consumer and Fair Trading Act 2012 (Vic). The case also examined the applicability of the Personal Property Securities Act 2009 (Cth) and the rights of liquidators in such situations. The court needed to determine whether the goods were subject to a statutory charge or an equitable lien, and if the liquidators could assert rights over these goods.

The court examined the definitions and provisions of both the Australian Consumer and Fair Trading Act 2012 (Vic) and the Personal Property Securities Act 2009 (Cth). It considered whether the goods could be classified as uncollected goods under the former Act and if they were subject to the statutory charge or equitable lien as per the latter Act. The court also assessed the position of the liquidators and whether they could claim rights over the goods in question. The reasoning hinged on the interpretation of statutory language and the legal frameworks governing the disposal of uncollected goods and the rights of creditors and liquidators.

The court concluded that the goods were not uncollected goods under the Australian Consumer and Fair Trading Act 2012 (Vic), and therefore the Act did not apply. It found that the goods were subject to a statutory charge and that the liquidators had rights over them as per the Personal Property Securities Act 2009 (Cth). The decision was grounded in the statutory interpretation and the specific provisions of both Acts, ensuring that the rights of all parties were balanced within the legal framework.

The court ordered that the liquidators could assert their rights over the goods under the Personal Property Securities Act 2009 (Cth), and that the Australian Consumer and Fair Trading Act 2012 (Vic) did not apply to the disposition of these goods. This decision provided clarity on the jurisdictional scope of the respective Acts and the rights of liquidators in relation to uncollected goods.

Orders