National Westminster Finance Australia v Powe (No 2)

[1992] TASSC 126

Serial No B49/1992
List “B”

CITATION:   National Westminster Finance Australia v Powe (No 2) [1992] TASSC 126; B49/1992

PARTIES:  NATIONAL WESTMINSTER FINANCE AUSTRALIA LIMITED

v

POWE, DES (NO 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  ORIGINAL

FILE NO.:  867/1992

DELIVERED:  2 October 1992

HEARING DATES:  22 September 1992

JUDGMENT OF:  Green CJ

CATCHWORDS:

Injunction—Interlocutory injunction—Sufficient prima facie case—Whether irreparable injury if order not made needs to be shown.

REPRESENTATION:

Counsel:

Applicant:  A M Blow

Respondent:  P W Tree

Solicitors:

Applicant:  Bishop Gunton Rae

Respondent:  Zeeman Kable & Page

Judgment category classification:

Court Computer Code:

Judgment ID Number:                 B49/1992

Number of paragraphs:               12

Serial No B49/1992

List "B"

File No 867/1992

NATIONAL WESTMINSTER FINANCE AUSTRALIA LIMITED v DES POWE (NO 2)

REASONS FOR JUDGMENT  GREEN CJ

2 October 1992

1. The plaintiff has made application as follows:

"INTERLOCUTORY APPLICATION

The Plaintiff hereby applies for the following orders:

1That the Defendant be restrained from destroying, damaging, selling, encumbering or disposing of Mitsubishi MS 180–2 Excavator serial number 5358.

2That the Defendant forthwith deliver up the said Excavator to such person or persons as the Plaintiff‘s solicitors shall nominate on writing.

3In the alternative such order as the Court thinks fit for the detention and preservation of the said Excavator pursuant to Order 56 rule 4 of the Supreme Court Rules 1965."

1. Order 41 r3 of the Rules of the Supreme Court empowers me to treat the evidence of the beliefs of the deponents whose affidavits have been published to me as evidence of the truth of the facts which they believe. As the deponents have not been cross–examined and the defendant has not given evidence, and as the evidence before me is not inherently improbable or internally inconsistent, I see no reason for not acting upon that evidence in the determination of this application.

1. Mr Moore has stated his belief that D M Powe and S E Powe gave to the plaintiff a Bill of Sale "in the form of" annexure A. Mr Moore does not say that annexure A is a duplicate of the Bill of Sale only that it is "in the form of" the Bill of Sale and I therefore do not regard the fact that annexure A has not been executed as significant. I am satisfied that the plaintiff has established to the extent necessary for the purposes of this application that the mortgagors gave the plaintiff a Bill of Sale the substantive provisions of which were the same as those appearing in annexure A. On the basis of Mr Moore’s belief, I am satisfied that the plaintiff has established to the necessary degree that the mortgagors were in default in the payment of monies due under the Bill of Sale. I am satisfied to the requisite degree that notice of that default was given to the mortgagors by Natwest Australia Bank Limited as agent for the plaintiff. I find that the excavator which is the subject of the Bill of Sale is the excavator which is the subject of these proceedings. I find that the excavator came into the possession of the defendant and that on 24 June 1992 Mr Moore as agent for the plaintiff demanded the return of the excavator and that on 26 June 1992 Mr Howlett and Mr Reeding as agents for the plaintiff appointed by Mr Moore, demanded the return of the excavator. I find that those demands were made more than fourteen days after notice of default had been given to the mortgagors as required by clause 11 of the Bill of Sale. I find that the defendant has not returned the excavator.

1. I am satisfied that the plaintiff has established a sufficiently strong case for the purpose of this application that it is the owner of the excavator which is the subject of this action, that the plaintiff is, and was at the time when the demands were made to the defendant for its return, entitled to possession of the excavator and that the plaintiff is prima facie entitled to judgment for delivery up of the excavator or for an amount representing its value.

1. I turn to the issue of whether there is evidence to show that the defendant continues to be in possession of the excavator. On 24 July 1992 an order was made by this court against the defendant restraining him amongst other things from disposing of the excavator. I reject the submission made by counsel for the defendant that that order has been of no effect because it has not been taken out or served. The order was made in the presence of counsel for the defendant and whilst it is no doubt the case that enforcement proceedings may not effectively be taken until the order is taken out and served the order itself became effective the moment it was made. I should not without good reason infer that the defendant has acted in breach of that order. There is evidence that on 3 August 1992 the defendant entered into a contract for the carriage of the excavator from which I infer that on that day he was in possession of the excavator and was exercising dominion over it. I note that I have no evidence from the defendant suggesting that he is not still in possession of the excavator. In the circumstances, I am persuaded that I should infer that the defendant remains in possession of the excavator.

1. In exercising my discretion as to whether or not I should make the orders sought under par1 of the application I take into account the following considerations:

1   The findings and conclusions which I have already recorded.

2   The defendant has not presented any argument or material suggesting that he has any entitlement to the excavator.

3   There is no suggestion that the making of such an order would curtail any rights which the defendant claims he has.

4   There is no suggestion let alone any evidence that the defendant would be prejudiced or inconvenienced in any way if such an order were to be made.

5   I accept that the plaintiff has not made out a very strong case that if these orders were not made it would suffer irreparable injury for which damages would not be an adequate remedy. However, one of the orders to which the plaintiff would prima facie be entitled if it is successful at the trial is an order for the return of the excavator and if the order sought in this paragraph is not made the plaintiff might be denied the option of seeking that remedy. Further, it is possible that the defendant would not be able to satisfy a money judgment. In the light of those considerations and in the light of the considerations numbered 1 to 4 above, I do not think that the fact that the plaintiff may not have made out a very strong case that it would suffer irreparable damage if this order were not to be made should debar it from the relief sought under this paragraph.

1. In all the circumstances, I think it would be just and convenient to make an order under par1 of the application.

1. The considerations which I take into account in considering whether I should make an order under par2 of the application are as follows:

1        The Court does not grant mandatory interlocutory injunctions save in clear cases.

2The plaintiff has not made out a very strong case that if such an order were not made it would suffer irreparable injury for which damages would not be an adequate remedy.

3The status quo before the proceedings were commenced was that the mortgagors or the defendant were in possession of the excavator. The plaintiff has never or at least has never at any material time been in possession of the excavator and therefore the order sought under this paragraph would not simply restore the status quo but would place the plaintiff in a different and more advantageous position than it was in before the proceedings commenced.

1. I am not persuaded that in the exercise of my discretion I ought to make the order sought in par2.

1. In exercising my discretion as to whether or not I should make the order sought in par3, I take into account the following considerations:

1I am not persuaded that it has been shown that orders of this kind need to be made in order to preserve evidence or otherwise facilitate the determination of any issues at the trial.

2The evidence does not establish that it is necessary to make orders under this paragraph in addition to the orders which have already been made under par1 so as to preserve the excavator or prevent it deteriorating.

3The plaintiff carries the burden of affirmatively demonstrating that some positive reason exists for the making of orders of the kind sought under this paragraph. I am not affirmatively persuaded that the existence of any such reason has been demonstrated.

1. I am not persuaded that in the exercise of my discretion any orders should be made under par3.

1. Upon the plaintiff giving the usual undertaking as to damages I order that until further order or until the determination of this action the defendant, his agents and servants be restrained and an injunction be granted restraining them from destroying, damaging, selling, encumbering or disposing of Mitsubishi MS180–2 Excavator Serial No 5358.