Nu-Log Pty Ltd v Coghlan

[2009] QSC 385

[2009] QSC 385

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

P MCMURDO J

No 3506 of 2007

NU-LOG PTY LTD  (ACN 001 420 515)	Plaintiff
and
SONYA COGHLAN	First Defendant

and

THE TRUSTEE OF THE PROPERTY OF        Second Defendant
SONYA COGHLAN, A BANKRUPT

BRISBANE

..DATE 27/11/2009

JUDGMENT

HIS HONOUR:  This is the trial of the plaintiff's proceedings

against the first defendant and the second defendant who is

her trustee in bankruptcy.

When the case was called for trial this morning there was no

appearance by or on behalf of either defendant.  I am

satisfied that each defendant has had adequate notice of this

being the date for trial.

The plaintiff's claim concerns some items used in a boat

manufacturing business.  For the most part the items are boat

moulds.  The plaintiff's case is that it is entitled to

recover these items from the first defendant because the

plaintiff is in all respects the true owner of them.  The

items are held pursuant to an order of the Court at certain

premises.

The plaintiff must prove that it is the true owner.  The

plaintiff's case is that it became the owner having purchased

them from a company in liquidation under a deed of agreement

dated 28 November 2006.  The company was then called TIY

Manufacturing Pty Ltd (in liquidation).  The fact of that deed

of agreement is admitted on the pleadings.  In any event, the

deed is proved by the tender of a copy.

There is no issue raised on the pleadings as to the effect or

purported effect of this deed, save for the pleaded case by

the first defendant that at all times from 30 April 2001 she

has been the true owner of these items.  That last statement

may require some qualification because, upon her case, some of

the items were not in existence on 30 April 2001, but they

were manufactured by the company, which entered into the deed

in 2006, at some time in the course of its operations in 2001.

But overall her case is that she purchased these items from

that company in 2001 and that, therefore, the deed of

agreement under which there was a purported assignment of the

ownership of the items by the company to the plaintiff was

ineffective.

The position then is that the issue for determination is that

raised by the first defendant's defence; that is, whether she,

at some stage, became the owner of these items.  On her own

admission, both within her pleadings and within other

documents, and, in particular, an outline of submissions filed

in this Court in November 2008, the company had been the owner

of these items.  Further, as her case has admitted, they have

at all times remained in the possession of the company.

So, absent proof that the company did sell the items to the

first defendant, the plaintiff has proved that the company was

the owner of the items when the deed of agreement was made

between the company through its liquidators and the plaintiff

in 2006.

The issue raised by the defence as to the alleged purchase by

the first defendant of the items in 2001 is, in all respects,

a defendant's issue; that is to say, it is an issue upon

which, it seems to me, she bears the onus of proof.  The

plaintiff was not, in any respect, of course, involved in what

she has pleaded to have been the events of 2001.  The first

defendant has not appeared at this trial and she has not

otherwise attempted to tender evidence in support of her

pleaded case.

Accordingly, I must consider the evidence as presented by the

plaintiff.  That would include the admissions

made by her within her pleading and admissions contained

within the outline of argument, to which I have referred.

I am satisfied that more probably than not the company was the

owner of these items when, by its liquidators, it entered into

the deed of agreement in 2006 with the plaintiff.  As I have

said, the evidence, including those admissions, establishes

that the plaintiff was the manufacturer of at least most of

these items and that at least until April of 2001 it was the

owner of them.  Coupled with the fact that the items remained

in its possession and that they were items to be used in the

conduct of the company's boat building business, the inference

should be drawn that the company continued to own the items.

Once that inference is drawn, and having regard to the

unambiguous terms of the deed, which is admitted as well as

proved, the plaintiff has proved its entitlement to the items.

The plaintiff has thereby established that it is entitled to a

judgment in the terms which it seeks.  It will be declared

that the plaintiff is the true owner of the chattels referred

to in paragraphs 1 and 2 of the amended claim filed on 18

April 2008, and, more particularly, described in the schedule

to the form of judgment which I will sign and place with the

file.  That will be the form of the declaration.

...

HIS HONOUR:  It will be further ordered that the first

defendant forthwith deliver up the chattels, the subject of

that declaration, to the plaintiff.

The plaintiff seeks a further order that it be discharged from

its undertaking as to damages given on 28 March 2008.  Such an

order may be unnecessary, but there will be an order in those

terms.

So, in the draft judgment, I've crossed through in the

declaration the words "having purchased the chattels from",

et cetera.

MR RUSSELL:  Yes.

HIS HONOUR:  Now, that leaves the question of costs.  The

plaintiff should have the costs of and incidental to the

proceedings including the reserved costs from the first

defendant and I'd hear any further submission you wish to make

about whether they should be indemnity costs.

...

HIS HONOUR:  I reserve the question of the scale of the costs.

...

HIS HONOUR:  I reserve the question of what order for costs

should be made in the proceedings and the Court will adjourn.

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