Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd - [2009] NSWSC 571

CITATION: Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd [2009] NSWSC 571
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3/3/09, 4/3/09, 5/3/09, 6/3/09, 9/3/09, 10/3/09

JUDGMENT DATE :
26 June 2009

JUDGMENT OF: R A Hulme J

DECISION: Judgment for plaintiff

CATCHWORDS: CORPORATIONS - receivers, controllers and managers - duties and liabilities - s419A Corporations Act - whether agents for mortgagee in possession liable to pay rent and other amounts accruing under prior agreement - difficulty in identifying goods belonging to plaintiff - commingling of goods - significance of prior breach by company of a term of agreement - whether agents for mortgagee should be excused from liability - TORTS - conversion - dealing with goods in manner inconsistent with owner's rights - permitting use of goods by a third party under licence agreement - later sale of goods to third party - whether actual physical interference with goods necessary to establish conversion

LEGISLATION CITED: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700
Bradshaw v McEwans Pty Ltd (1951) 217 ALR
Coleman v Harvey [1989] 1 NZLR 723
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 55 SR (NSW) 243
Hill & Anor v Reglon Pty Limited [2007] NSWCA 295
Indian Oil Corp Ltd v Greenstone Shipping SA [1988] 1 QB 345
Luxton v Vines (1952) 85 CLR 352
Nardell Coal Corporation (In Liq) v Hunter Valley Coal Processing [2003] NSWSC 642; (2003) 46 ACSR 467; (2003) 21 ACLC 1505
Reglon Pty Limited v Hill and Ors [2006] NSWSC 1360
Rildean Pty Ltd v TJF Scaffolding Maintenance & Hire Pty Ltd; TJF Scaffolding Maintenance & Hire Pty Ltd v Rildean Pty Ltd [2002] NSWSC 605
Sandeman & Sons v Tyzack & Branfoot Steamship Co Ltd [1913] AC 680
The Insurance Commissioner v Joyce (1948) 77 CLR 39
The Public Trustee v Jones (1925) 25 SR (NSW) 526
Whelan Kartaway Pty Ltd v G & C Weatherburn Pty Ltd [2002] NSWSC 677

TEXTS CITED: The Law of Torts, J G Fleming, 9th ed, LBC Information Services 1998

PARTIES: Rapid Metal Developments (Australia) Pty Limited (Plaintiff)
Anthony De Vries and Riad Tayeh as joint administrators of Rildean Pty Limited (Defendants)

FILE NUMBER(S): SC 13806/05

COUNSEL: Mr G Inatey QC with Mr V R Gray (Plaintiff)
Mr M Ashhurst SC with Mr C N Bova (Defendants)

SOLICITORS: JGP Lawyers (Plaintiff)
PMF Legal (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Judge R A Hulme

26 June 2009

13806/05 Rapid Metal Developments (Aust) Pty Limited v Anthony De Vries and Riad Tayeh as joint administrators of Rildean Pty Limited
JUDGMENT

Introduction

1 HIS HONOUR: Windeyer J aptly observed in Reglon Pty Limited v Hill and Ors [2006] NSWSC 1360 that “dealing in scaffolding is as risky as playing with fire”. That observation is pertinent to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWSC 571
Decision Date: 26 June 2009

CaseChat Overview and Summary

In this case, Rapid Metal Developments (Aust) Pty Ltd brought a claim against Rildean Pty Ltd, which had acted as receivers and managers for the mortgagee in possession of certain premises. The dispute centred on whether the receivers and managers were liable to pay rent and other amounts accruing under a prior agreement, as well as whether they were liable for conversion. The case was heard in the Supreme Court of Victoria.

The court had to determine whether the receivers and managers were agents of the mortgagee and therefore liable for the payments due under the prior agreement. The court also needed to decide whether the receivers and managers could be held liable for conversion, given the difficulty in identifying the plaintiff's goods and the commingling of goods. Furthermore, the court had to consider the significance of the prior breach by the company of a term of the agreement and whether the receivers and managers should be excused from liability as a result.

The court held that the receivers and managers were agents for the mortgagee and were therefore liable for the payments due under the prior agreement. The court also found that the receivers and managers could be held liable for conversion, as they had dealt with the plaintiff's goods in a manner inconsistent with the owner's rights. The difficulty in identifying the plaintiff's goods and the commingling of goods did not absolve the receivers and managers of their liability. The prior breach by the company of a term of the agreement did not excuse the receivers and managers from their duties and liabilities.

The court ordered that the receivers and managers were liable for the payments due under the prior agreement, as well as for conversion. The court further ordered that the receivers and managers were not excused from their liability due to the prior breach by the company of a term of the agreement. The court did not grant any relief to the receivers and managers on the basis of the difficulty in identifying the plaintiff's goods and the commingling of goods.

Orders