National Westminster Finance Australia Ltd v V.A.S. Pty Ltd

[1985] FCA 439

.- -

Practlce and Procedure - notice of motion - appllcatlon for

summary Judgment under Order 20 Federal Court Rules - whether

alleged representatlons satlsfactorily proved

to have been made.

Customs Act ss. 203, 205

Federal Court Rules Order 20

Matter No. G45 of 1985

NATIONAL WESTMINSTER FINANCE AUSTRALIA LIMITED and	V.A.S.	PTY
LTD. JOCELYN HUGHES and NEIL JOSEPH DOMAILLE
FORSTER J. ADELAIDE
4 SEPTEMBER 1985

IN THE FEDEXAL COURT OF AUSTRALIA 1

)

SGUTH AUSTRALIAN DISTRICT REGISTRY)

) No. G45 of 1385

GENERAL DIVISIdN

)

B E T W E E N : -

NATIONAL WESTMINSTER FINANCE

BUSTFALIB LIMITED

Applicant

- and -

V . B . S . PTP LTD. JGCELYN HUGHES

and NEIL JOSEPH DOMAILLE

Respondents

MINUTE CIF ORDER

JUDGE MAKING 13RDER	FORSTER, J.
EIHERE W E	ADELAIDE
DATE OF ORDER	4 SEPTEMBER 1985
THE COURT ORDEFG THAT:

1. The motion be dismissed with costs.

: & N Settlement and entry of orders is dealt wlth In Order 36 of

the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTFALIAN DISTRICT REGISTHY)

) No. G45 of 1985

GENERAL DIVISION	)
B E T W E E N :
NATIONAL WESTMINSTEX FINANCE
AUSTRALIA LIMITED

Applicant

- and -

V.A. S. PTY LTl3, JOCELYN HUGHES

and NEIL JOSEPH UOMAILLE

Respondents

REASONS FOR JUDGMENT

W: Forster, J.

The appllcant applles by notice of motion under Order 20

for summary judgment	for $53,921-20 or alternatively for damages
to be assessed.

It 1s pleaded and admltted in the defence that the

second respondent (Hughes) and the third respondent (Domaille)

are, and were at all relevant times, directors of the first

respondent (V.A.S.). It 1s proved by a letter dated 10th May

1985, slgned by Hughes and Domaille and addressed to the appllcant that Hughes purchased In Hamburg. Germany, a Porsche motor vehlcle and imported It into Australia. It is also proved

by an Invoice that Hughes on 7th February 1985 sold the car to

2 .

the appllcant who, on the same day, entered into a commercial

hlre purchase agreement whereby It hired the car to V.A.S.'

It 1s pleaded that in the course of the negotiations for

this transactlon the respondents represented to the applicant as

follows : -

"6.	I 1)	that the motor vehicle was owned by the second respondent who was able to pass clear title to the same to the appllcant
free from any Hire Purchase Aqreement
reglstered or unregistered bill of sale or any other ncumbrance what so ever registered or unreglstered.
(ii)
that the motor vehlcle had been purchased in or about November 1984 and had been
shipped to Australla by her.

(Ili) that he second respondent had uly

complied with all requirements under the

Customs Act 1901 (as amended) including

the payment in full of all applicable duty

and had lawfully Imported the vehicle into

Australia. "

In their defence the respondents do not admit that they

made the representations In para. 6(i) in the statement of claim

and deny that they made the representations in para. 6(i1) and

6 ( i1i). The representations in para. 6(i) are proved by a

statutory declaration of Hughes dated 7th February 1985. The

facts alleged to have been represented In para. 6(li) are proved

by the letter of Hughes and Domaille referred to above. The

representatlons in para. 6(111) are not satisfactorily proved to

have been made. The only posslble reference to them is

3.

contalned in para. 3 of the affidavit of Robin Thomas Hemmings the credit manager of the applicant which in part is as follows

.-

"As a result of representatlons made to the

applicant by the respondents (more partlcularly

referred to in the Statement of Claim filed

herem) and relying on them the applicant agreed

to purchase the said motor vehicle from the second

respondent for a price of Thirty Seven Thousand

Dollars ($37,000.00) and further agreed to finance

the said motor vehicle by way of a commerclal hire

purchase agreement between the applicant and the

first respondent. 'I

Since In the events which have happened these are the vital

alleged representations, I consider that the making of them

should be proved dlrectly by the person or persons to whom they

were made who can swear to the fact of their making and also that

they were made to him or them.

On 28th June 1985 the Collector of Customs served a

notlce of seizure on the applicant reclting that the car had been

seized under s.203 of the Customs Act because of the belief that

the car was smusgled	or unlawfully imported. This seizure 1s
formally-not admitted	in the defence but the fact of it is proved

by the notice of selzure and is admitted in the affidavlt of the

respondents' solicitor. The applicant has not given notice in

wrltlnu to the Collector of Customs pursuant to s . 2 0 5 ( 6 ) of the

Customs Act that it c l a m s the car so that by the force of that

sectlon the car is deemed to be condemned as forfeited to the

. 4 .

Crown and is now lost to the applicant.

If the respondents made representations to the applicant

in the terms of para. 6(111) of the statement of claim and if the

Collector of Customs had valid arounds for seizinu the car and

issulna a notice of seizure then it would appear that there would

be evldence of the facts upon whlch the clalm is based. However

the makmg of the relevant representatlons 1s denied In the

defence and in any event 1 s not adequately proved by the

affldavit filed by the applicant. There is no evldence at all

as to the correctness or otherwise of the declslon of the

Collector of Customs to seize the car and the questlon may arise

as to whether or not the applicant should have glven notice

pursuant to s . 2 0 5 t 6 )	of the Customs Act In order to preserve its
position.

In all of these circumstances I am quite unable to

accede to the applicant's notice of motlon	which 1s dismlssed
wlth costs.

I certify that this and

the -3 precedlng pages are

a true copy of the Reasons

for Judgment of Mr Justice

Forster .