Porter Equipment Australia Pty Ltd v Barton Ventures Pty Ltd; Porter Equipment Australia Pty Ltd v Tyremil Pty Ltd

[2018] QDC 87

DISTRICT COURT OF QUEENSLAND

CITATION:

Porter Equipment Australia Pty Ltd & anor v Barton Ventures Pty Ltd & anor; Porter Equipment Australia Pty Ltd v Tyremil Pty Ltd & ors [2018] QDC 87

PARTIES:

In BD No 4356 of 2017

PORTER EQUIPMENT AUSTRALIA PTY LTD  

ACN 150 961 934

(first applicant)

and

SURE BET TRUCK SALES PTY LTD TRADING AS BIG TRUCK WORKSHOP

ACN 083 416 862

(second applicant)

v

BARTON VENTURES PTY LTD

ACN 089 187 280

(first respondent)

and

TONY DI CARLO

(second respondent)

In BD No 895 of 2018

PORTER EQUIPMENT AUSTRALIA PTY LTD

ACN 150 961 934

(plaintiff)

v

TYREMIL PTY LTD

ACN 127 399 768

(first defendant)

and

TYREMIL GROUP PTY LTD

ACN 127 399 777

(second defendant)

and

ANTONIO DI CARLO ALSO KNOWN AS TONY DI CARLO

(third defendant)

FILE NO:

BD 4356/17

BD 895/18 (Magistrates Court No 51983/17)

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2018

JUDGE:

Moynihan QC DCJ

ORDER:

In BD No 4356 of 2017

1.   The first applicant, Porter Equipment Australia Pty Ltd, is entitled to possession of the Liebherr L556 Loader described as Model: Liebherr L556 Loader; Colour: yellow and white; Year of Manufacture: 2011; Engine Number: AL000102; VIN: VATZ 1289HZD028185.

2.   The second respondent, Mr Tony Di Carlo, return the Liebherr Loader as described in paragraph 1 above to the first applicant by 23 May 2018.

3.   Further, or in the alternative to paragraph 2 above, the first applicant is entitled to possession of the Liebherr Loader as described in paragraph 1 above and may seize the Liebherr Loader from the second respondent pursuant to s 123 of the Personal Property Securities Act 2009 (Cth).

4.   The application as against the first respondent is dismissed.

5.   The second respondent pay the first applicant’s costs of and incidental to the hearing of the application on 3 May 2018 fixed in the amount of $6,500.

In BD No 895 of 2018 (Magistrates Court No 51983/17)

1.    The plaintiff is entitled to possession of the Liebherr Loader described as Model: Liebherr L556 Loader; Colour: yellow and white; Year of Manufacture: 2011; Engine Number: AL000102; VIN: VATZ 1289HZD028185, and may seize the Liebherr Loader from the first defendant, or the second defendant or the third defendant pursuant to s 123 of the Personal Property Securities Act 2009 (Cth).

2.    I make no order as to costs.

CATCHWORDS:

PERSONAL PROPERTY – OWNERSHIP AND POSSESSION – POSSESSION – RIGHTS OF POSSESSION – where there is a contract for the sale of specific goods – where the seller delivered the property to the purchaser without payment of the purchase price – where the seller registered its security interest in the property on the personal property securities register - whether title in the property passed to the purchaser – whether the seller is entitled to recover the property

Personal Property Securities Act 2009 (Cth), s 10, 19(2), 123
Sale of Goods Act 1896 (Qld), 20, 21

COUNSEL:

S J Hogg for the applicants and plaintiff, and as unpaid agent for the first respondent

No appearance for the second respondent or defendants

SOLICITORS:

Celtic Legal for the applicants and plaintiff

No appearance for the respondents or defendants

Introduction

1. Porter Equipment Australia Pty Ltd (“Porter”) owned a used Liebherr L556 Loader (“the loader”).

2. Porter offered to sell the loader to Tyremil Pty Ltd.

3. On 15 July 2016, Porter delivered the loader to 81 Grindle Road, Rocklea (“the premises”). Tyremil Pty Ltd and Tyremil Group Pty Ltd carried on business, and Tony Di Carlo worked at the premises.

4. Tyremil Pty Ltd was put into liquidation on 6 October 2017.

5. The loader is still on the premises and in the possession of Mr Di Carlo, who refuses to return it. On 10 October 2017, Porter failed in an attempt to recover possession of the loader from the premises.

6. Porter is the plaintiff in action number 51983/17 in the Magistrates Court (BD 895/18) and claims against Tyremil Pty Ltd (the first defendant), Tyremil Group Pty Ltd (the second defendant) and Mr Di Carlo (the third defendant) that it is entitled to use any lawful means necessary to efficiently seize the loader pursuant to s 123 of the Personal Property Securities Act 2009 (Cth) (“the PPSA”). Porter abandons the claim in that action for monies due and payable for breach of an agreement, damages and restitution.

7. In originating application number 4356/17 filed in the District Court, Porter seeks against Mr Di Carlo (the second respondent) a declaration that it is entitled to recover possession of the loader from Mr Di Carlo pursuant to s 123 of the PPSA and further, an order that it is entitled to possession of the loader and may seize it from Mr Di Carlo. Porter abandons its application against the owner of the premises, first respondent Barton Ventures Pty Ltd.

8. On 26 February 2018, Judge McGill SC ordered that the Magistrates Court claim be transferred to this court and be heard at the same time as the originating application. The matter was listed for hearing on 3 May 2018.

9. On 3 May 2018, Tyremil Pty Ltd, Tyremil Group Pty Ltd and Mr Di Carlo failed to appear at the hearing of each matter. Porter was given leave to read and file an affidavit of Brendan Thomas Long, sworn 3 May 2018, deposing to the fact that each of the parties had notice of the hearing. There were also orders made that the evidence in the proceeding started by way of claim be given by way of affidavit and that any affidavit read in the originating application in this court be evidence in the hearing of the proceeding started by way of claim.

10. The evidence consists of the material read by Porter comprising the amended originating application, the affidavit of Michael Louini filed 14 November 2017, the affidavits of Aleksandra Symenyvoch filed 21 November 2017, 30 November 2017 and 11 December 2017, and the statement of claim and defence filed in the Magistrates Court matter.

The facts

1. Porter had the loader for sale. On 6 June 2016, Mr Di Carlo spoke to a person employed by Porter and a verbal offer was made to sell the loader to Tyremil Pty Ltd for $60,000. The price was to be paid in full on delivery or within five days after Tyremil Pty Ltd was advised that the loader was ready for delivery, whichever was the earlier. On the same day, a written sale agreement number ORD – 9053/2 was provided by Porter to Tyremil Pty Ltd. The document identified the customer details as “Tony Di Carlo, Tyremil Pty Ltd”, and provided that “I/we offer to purchase” the loader for $54,545.45 excluding GST. The total purchase price including GST was $60,000.00.

2. The written sale agreement was governed by the terms and conditions set out therein. The terms and conditions relevantly provided that the customer must pay the price to the company; title to the equipment will only pass to the customer once the price has been paid in full; and if the equipment is transported to the customer before payment is made the customer shall have possession of the equipment as bailee only. The written sale agreement was not signed by Porter, Tyremil Pty Ltd or Mr Di Carlo. However, that day Mr Di Carlo said to Porter’s agent “we are happy with the agreement and we will arrange finance shortly”.

3. On 1 July 2016, Porter’s agent sent an email to Mr Di Carlo that attached the written sales agreement signed by Porter and its agent and a letter from Porter’s agent to Mr Di Carlo, Tyremil Pty Ltd and Tyremil Group Pty Ltd which said:

   “Porter Equipment Australia Pty Ltd offer as per our sales agreement terms and conditions (ref ORD-9053/2) which have been provide (sic) to you via post and email, if you agree to take this unit in your possession Used Liebherr L556 Loader, s/n VATZ1289HZDO28185 at the discounted rate of $54,545.45 + GST, you hereby accept our terms of conditions of sale (referred to in sales agreement ORD-9053/2) and our HL770-9 wheel loader will be returned when the Liebherr is dropped off.”

4. The author of the email asked Mr Di Carlo to “read and sign these forms so we can complete this deal”. Tyremil Pty Ltd, Tyremil Group Pty Ltd and Mr Di Carlo did not sign the forms. However, on 15 July 2016, Porter delivered the loader to the premises. Then on or about 27 July 2016, Porter registered its security interest in the loader on the personal property securities register.

Discussion

1. The issue is whether Porter retained ownership of the loader. Where there is a contract for the sale of specific goods, the Sale of Goods Act 1896 (Qld) (“the SGA”) is engaged. The loader is specific goods.

2. Section 20 of the SGA provides:

   “(1) When there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intended it to be transferred.

   (2) For the purpose of ascertaining the intention of the parties regard is to be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.”

3. Section 21 of the SGA concerns the rules for ascertaining intention and relevantly provides:

   “Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer -

   Rule 1

   When there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, is or are postponed.”

4. Porter sold the loader in the course of its business and it is plain that it only intended to sell the loader on their standard terms and conditions in the written sales agreement. I find, on the evidence before me, that there was a verbal agreement between Porter and Tyremil Pty Ltd for the sale of the loader made on 15 July 2016 when the loader was delivered to and accepted by Tyremil Pty Ltd at the premises.

5. The letter set out above, attached to the email of 1 July 2016, makes clear that Porter’s offer would be accepted if Tyremil Pty Ltd took possession of the loader. Tyremil Pty Ltd, by its conduct in accepting and using the loader at the premises, accepted Porter’s offer.

6. Taking into account the conversation on 6 June 2016, the email of 1 July 2016 and the attachments, Porter’s delivery and Tyremil Pty Ltd’s acceptance and retention of the loader, I find, having regard to the conduct of the parties and the circumstances of the case, that the intention of the parties was that the agreement contain the conditions in the sales agreement ORD-9053/2. Condition 11.1 in that sales agreement provides:

   “Title in the equipment will only pass to the customer once the price has been paid in full and the company has received clear title to any trade in.”

7. The purchase price has not been paid to Porter. Consequently, under a term of the agreement property in the loader did not pass and Porter remains the owner and is entitled to possession as against whoever is in possession of it. Tyremil Pty Ltd, Tyremil Group Pty Ltd and Mr Di Carlo have no proprietary interest in the loader and no right to possession of it.

8. Further, Porter is a secured party under the PPSA because it registered its security interest in the loader on the personal property securities register on 17 July 2016. Pursuant to sections 10 and 19(2) of the PPSA, the loader is collateral because it is personal property to which a security interest attaches. Conditions 11 and 16 of the sale agreement created a security agreement in relation to the loader. Tyremil Pty Ltd has defaulted under the security agreement by failing to pay the purchase price. Pursuant to s 123(1) of the PPSA, a secured party may seize collateral, by any method permitted by law, if the debtor is in default under the security agreement.

Conclusion

1. Porter is the owner of the loader and is entitled to possession as against whoever is in possession of it. Tyremil Pty Ltd, Tyremil Group Pty Ltd and Mr Di Carlo have no proprietary interest in the loader and no right to possession of it.

2. The originating application in this court and the claim in the Magistrates Court as advanced in the hearing involve largely the same issue and seek the same relief. Consequently, I do not allow the costs to be recovered twice. Further, I do not allow the first applicant to recover the costs of the application heard on 30 November 2017, as it was its fault that those costs were thrown away and the orders then made were set aside. Finally, I make no additional order in relation to the second respondent’s costs of setting aside the order as reserved by Judge McGill SC on 11 December 2017.

3. The orders in relation to originating application number 4356/17 are:

   1.The first applicant, Porter Equipment Australia Pty Ltd, is entitled to possession of the Liebherr L556 Loader described as Model: Liebherr L556 Loader; Colour: yellow and white; Year of manufacture: 2011; Engine number: AL000102; VIN: VATZ 1289HZD028185.

   2.The second respondent, Mr Tony Di Carlo, return the Liebherr Loader as described in paragraph 1 above to the first applicant by 23 May 2018.

   3.Further, or in the alternative to paragraph 2 above, the first applicant is entitled to possession of the Liebherr Loader as described in paragraph 1 above and may seize the Liebherr Loader from the second respondent pursuant to s 123 of the Personal Property Securities Act 2009 (Cth).

   4.The application as against the first respondent is dismissed.

   5.The second respondent pay the first applicant’s costs of and incidental to the hearing of the application on 3 May 2018 fixed in the amount of $6,500.

4. In relation to the Magistrates Court claim number 51983/17 (BD 895/18), I give judgement for the plaintiff in relation to paragraph 2 only of the claim against Tyremil Pty Ltd (the first defendant), Tyremil Group Pty Ltd (the second defendant) and Mr Di Carlo (the third defendant).

5. The orders are:

   1.The plaintiff is entitled to possession of the Liebherr Loader described as Model: Liebherr L556 Loader; Colour: yellow and white; Year of manufacture: 2011; Engine number: AL000102; VIN: VATZ 1289HZD028185, and may seize the Liebherr Loader from the first defendant, or the second defendant or the third defendant pursuant to s 123 of the Personal Property Securities Act 2009 (Cth).

   2.I make no order as to costs.