McIver & Anor v. McLean

[2005] QDC 127

[2005] QDC 127

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D1135 of 2001

STEPHEN RICHARD McIVER

and

MASTERSPORT MOTORSPORT RACING DEVELOPMENTS PTY LTD ACN 087 551 451

First Plaintiff

Second Plaintiff

and

ALEXANDER WILLIAM McLEAN

and

WARRANDER PTY LTD ACN 091 260 829

First Defendant

Second Defendant

SOUTHPORT

..DATE 24/05/2005

ORDER

CATCHWORDS:  Form of judgment in proceeding in which plaintiffs obtained a money judgment but were required to return to an impecunious defendant a vehicle over which they had wrongly claimed a security interest - plaintiffs sought a "Mareva order" or an order that return of the vehicle be conditional upon payment of the judgment amount - Court reluctant to create a preference - possibility of plaintiffs' executing against the vehicle acknowledged.

HIS HONOUR:  Reasons were published to the parties on the 25th of February this year for the Court's conclusions following a three-day trial which commenced on the 8th of February. 

The matter comes on today because of the plaintiffs' wish to persuade the Court against making precisely the orders foreshadowed in the published reasons, in particular, that part which qualified a proposed judgment for the plaintiffs against the first defendant for $15,000 as follows:

"Enforcement thereof stayed until return to the first defendant of Nissan Skyline R33 VIN number ECR33-007308 in good condition".

HIS HONOUR:  The plaintiffs are able to point to evidence at the trial that Mr McLean's financial circumstances may be unfavourable, so that if the vehicle, which the Court determined (against the plaintiffs' contentions) to be Mr McLean's and unencumbered, goes back to him, the plaintiffs have every reason to fear they will not see much of the $15,000 judgment amount.  Although it is not the concern of the Court today, Mr Radcliff points to an amount of three and a-half thousand dollars, or thereabouts, owed to the plaintiffs under a costs order made by another Judge at an early stage in the proceeding. 

What the plaintiffs seek is described as a mareva order accompanying the judgment.  Although I can see the good sense of the plaintiffs' underlying suggestion that the handing over of the vehicle be made conditional on payment of the $15,000 judgment amount, I am apprehensive that this has the potential to involve the Court in granting a preference to the plaintiffs over other creditors. 

Issues to do with the condition of the Nissan, which is referred to in the part of the proposed order set out above, flowed from Mr McLean's complaint in the witness-box at the trial as to the way in which the vehicle was being stored and perhaps used.  Photographs have been tendered today as Exhibit 30, which I accept that Mr McIver would confirm to be showing the present condition of the vehicle.  Mr McLean says that if the vehicle is in the condition depicted in the seven photographs in Exhibit 30, and, he adds, if it is driveable, he would accept that the condition is acceptable.  Mr Radcliff has confirmed that the plaintiffs have had the vehicle detailed recently.  Mr McLean says the value of the vehicle, after limited work by him, would be a sum exceeding the judgment amount.

I am persuaded that unless the parties come to terms in some way and work out a practical means of resolving matters, it is highly unlikely that the $15,000, or any significant part of it, will be forthcoming in the short term.  Mr McLean proposes arrangements whereby he would pay it in instalments over a couple of years.  The Court is not prepared to delay the plaintiffs in that way, which is not to say they might not come to regard it as in their interests to negotiate something with Mr McLean along similar lines.

As indicated a few minutes ago, what I now propose and what will be ordered, is that the proposed order regarding the receiver previously appointed by the Court provide that he be authorised to return to the plaintiffs items in his possession, other than the said Nissan Skyline, be changed by the addition at the end of the words "which is to be returned to the first defendant after seven days from today, the 24th of May 2005."

So, the orders of the Court are as follows:

(1)Judgment for the plaintiffs against the first defendant for $15,000.

(2)Judgment for the plaintiffs against the second defendant

for $3,050.

(3)The Receiver is authorised to return to the plaintiff items in his possession other than the Nissan Skyline R33 VIN number ECR33-007308 which is to be returned to the first defendant after seven days from today.

No order as to costs.  I will just add to what I said that the discussion in Court makes it clear that the above arrangements may well result in the services of the bailiff (or enforcement

officer being engaged by the plaintiffs in relation to the Nissan to enforce their judgment.

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