Saad v Volvo Finance Australia Pty Ltd

[2020] NSWCA 282

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Saad v Volvo Finance Australia Pty Ltd [2020] NSWCA 282

Hearing dates:

4 November 2020

Decision date:

11 November 2020

Before:

Basten JA at [1];
Payne JA at [57];
Simpson AJA at [58]

Decision:

(1)   Dismiss the appeal from the judgment and orders in the Common Law Division given and made on 20 March 2020.

(2)   Order that the appellant pay the respondent’s costs of the appeal.

Catchwords:

TORTS – detinue and conversion – property comprising four commercial trucks with trailers – claim for possession by financier – operating company in liquidation – vehicles disappeared – vehicles discovered in secluded location – whether defendant had possession, control or dominion of vehicles

APPEALS – challenge to findings of fact – credibility of witnesses – basis for interfering with adverse credibility findings – admissions against interest – use of aerial photography to locate vehicles – all vehicles together – defendant’s admission of control of one vehicle – defendant’s offer to deliver all five vehicles for a fee or purchase vehicles

Cases Cited:

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Category:

Principal judgment

Parties:

Barry Saad (Appellant)
Volvo Finance Australia Pty Ltd (Respondent)

Representation:

Counsel:
G Carolan (Appellant)
E P Anderson (Respondent)

Solicitors:
MCK Lawyers (Appellant)
Dowd & Company (Respondent)

File Number(s):

2020/101444

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2020] NSWSC 262

Date of Decision:

20 March 2020

Before:

Cavanagh J

File Number(s):

2018/125351

Judgment

1. BASTEN JA: On 22 December 2017 five Mack truck and trailer combinations went missing. Prior to that time, they had been in the possession of a company known as Waterfront Enterprises Pty Ltd, but that company had defaulted in its obligations to its financier, Volvo Finance Australia Pty Ltd (the respondent). Each of the vehicles had been driven to the premises of Truck Tech Pty Ltd on 22 December 2017. Truck Tech was run by the appellant, Mr Barry Saad.

2. On 3 January 2018, the respondent instructed an agent, Mr Jason Ryan, to find and take possession of the vehicles. However, they could not immediately be located. Vehicle 5 was eventually recovered on 1 August 2018; vehicles 1, 3 and 4 on 6 November 2018; vehicle 2 was not recovered until 1 November 2019. The trailers to vehicles 2 and 3 have not been recovered.

3. On 24 September 2019 Volvo Finance commenced proceedings in the Common Law Division against three parties associated with Waterfront Enterprises and the present appellant, Mr Barry Saad. Relevantly for present purposes, the respondent obtained a judgment against Mr Saad in an amount of $571,814. [1] The calculation of this sum is not in dispute.

   1. Volvo Finance Australia Pty Ltd v Waterfront Enterprises Pty Ltd (In liq) (No 2) [2020] NSWSC 262 at [312].

Issues on appeal

4. The notice of appeal, filed on 12 June 2020, contained two grounds, namely:

“1   His Honour erred in finding that the Appellant had possession, control or dominion of vehicles 1 to 4 (as identified in the judgment at [31]) after 22 December 2017, such as would constitute conversion or detinue.

2   His Honour erred in finding that the Appellant was personally liable for any loss suffered by the Respondent in relation to vehicles 1 to 4 and/or vehicle 5.”

5. The trial judge (Cavanagh J) dealt with the case against Mr Saad alone, the respondent having discontinued the proceedings against the Waterfront Enterprise parties, in a careful and comprehensive judgment. There is no challenge to the judge’s statement of the applicable legal principles with respect to the elements of conversion and detinue, the need to establish that the appellant had control, possession or dominion over the relevant vehicles, the fact that the respondent bore the onus of proof in the proceedings and, importantly, the judge’s finding of fact that “by his own admission, Mr Saad had control, possession or dominion over vehicle 5.” [2] Rather, the subject matter of ground 1 was the finding that the appellant had control, possession or dominion over all of the vehicles throughout the period that they were unable to be located by the respondent.

   2. Judgment at [47]; appellant’s written submissions, par 20.

6. The thrust of ground 2 is less easy to identify: it was dealt with briefly in the written submissions and without further explanation orally. In so far as it extended beyond the matters raised under ground 1, it appeared to assert that the appellant intended to maintain control of vehicle 5 because he believed Truck Tech had a lien for unpaid work done on all the vehicles. However, the trial judge rejected the proposition that Truck Tech came into the possession of that vehicle or the other vehicles for the purpose of undertaking work on them, finding that Truck Tech did not undertake any work upon them and was therefore not entitled to maintain a possessory lien over vehicle 5, or any other vehicle. [3]

   3. Judgment at [228]-[229].

7. Those conclusions were not challenged. The appellant’s belief that the company had an entitlement to retain possession of the vehicle until the claim was paid did not provide a defence to the claim in detinue and conversion. The appellant did not argue for such a position; the judge did not find that the appellant held such a belief. Accordingly, there is no separate issue raised by ground 2.

8. The submissions with respect to ground 1 focused squarely on a finding, said to be erroneous, that all five vehicles were located on a bushland property near Wilton, south-west of Sydney, on 8 February 2018. The finding was significant because it was inconsistent with the appellant’s evidence as to his own dealings with vehicle 5 and, further, formed a basis for inferring that, as the appellant had at all times accepted that he was in control and possession of vehicle 5, that he was also in control and possession of vehicles 1-4, if they were in the same location.

9. The direct evidence of the location of the vehicles on the Wilton property on 8 February 2018 came from an aerial survey undertaken on that date. The appellant’s written submissions stated: [4]

“The primary judge erred in accepting that the aerial photos of February 2018 … showed the presence of all of Vehicles 1-5 … or the presence of Vehicle 5 … at all. At best, the aerial photographs … show that there were four dark-coloured trucks or trailers and one white truck and trailer parked in the bushland. The photographs do not depict any of the trucks as having ‘a distinctive purple colour.’”

4. Written submissions, par 24.

10. The second step in the appellant’s challenge was directed to “other evidence” relied on by the trial judge to support the conclusion as to the vehicles the subject of the proceedings being shown in the aerial photograph.

11. The appellant’s defence was, in substance, that he did not possess or control the trucks between 22 December 2017 and 12 April 2018, other than the Superliner, which he claimed was always in his possession. He said that the trucks were with a person he knew as the “Crazy Iraqi”, but whom he had not met and whose proper name he did not know. He said that Mr Spencer had told him that they were with the “Crazy Iraqi” who was owed money by the Spencers. Mr Spencer had told him that he had asked “George Mousarri” to collect money for him. The appellant said that he called Mr Mousarri, whom he said in his oral evidence was very well known in the industry, [5] and who told him, “I have the trucks. I need about $150,000 to let them go.” He said that Mr Mousarri died in late 2018. He then said that on 17 April 2018 he had told Mr Murphy and Mr Ryan:

“The trucks are apparently with a guy known as the Crazy Iraqi. The Spencer brothers owe this guy money. You are offering a finder’s fee for the trucks. I just want to be paid what I’m owed. The Crazy Iraqi wants $150,000 for what he is owed and I want $170,000 for what the Spencers owe me.”

These statements were not entirely consistent.

5. Tcpt, p 48(33).

12. In upholding the respondent’s case, the trial judge relied upon admissions by the appellant, objective evidence in relation to the location of the trucks and circumstantial evidence as to the appellant’s involvement in controlling the trucks. As it is the cumulative effect of the evidence which is critical to the determination of the appeal, it is convenient to deal with the evidence chronologically.

December 2017 – mid-January 2018

13. According to the appellant, as at 22 December 2017 the company in possession of the trucks, Waterfront Enterprises, owed the appellant’s company Truck Tech, $173,848 on account of 26 invoices rendered between 17 April and 19 December 2017. The only invoice paid was one rendered on 17 April 2017 for $6,556, of which $5,000 was paid. There was a challenge to the content of the invoices which appeared to cover work which the owners were entitled to have done free under warranty, but it was not resolved and nothing turned on it.

14. In his affidavit of 30 August 2019, the appellant said that he invited the manager of Waterfront Enterprises, Justin Spencer, to “[b]ring the vehicles in so we can talk and do a service on the vehicles before Christmas.” Truck Tech was then operating from 2 Mitchell Road, Moorebank. The appellant said that drivers brought the five trucks into Truck Tech’s premises on “about 22 December 2017.” Mr Spencer informed him that he would be coming to see Mr Saad the following day, 23 December. Mr Saad said he told Mr Spencer that unless he paid the account, he was keeping the trucks. Mr Spencer said, “You can’t do that; I will take my trucks.” The appellant said that following the conversation, he drove the purple coloured Mack 2016 Superliner and its trailer (vehicle 5) “to a friend’s yard” so that Mr Spencer would not be able to take it. Later that day he said that he returned to Truck Tech’s premises and found the front gate had been damaged and the trucks were no longer in the yard. He said that he called Mr Spencer who said words to the effect, “I took my trucks back.”

15. Neither Justin Spencer, nor his brother Jason Spencer, gave evidence. However, affidavits by one of Waterfront’s drivers, Mr Auld, were read at the trial. Mr Auld stated that Mr Spencer asked him to drive his truck to 3 Kelso Crescent, Moorebank, on the morning of 22 December. This truck (vehicle 2) was a “blue/purple truck”. He stated that all five trucks were parked on the premises at 3 Kelso Crescent that morning. Mr Auld waited for about an hour until he met the appellant, who told him that Mr Spencer “has gone broke and we have bought his company and his trucks off him”. [6] He said that they would be taking over the drivers in the new year. Mr Auld said he returned to work in early January 2018, expecting to work for the Saads, but the trucks were not on the premises at 3 Kelso Crescent. Mr Auld worked briefly in a workshop for Truck Tech, but not as a driver. (The address 3 Kelso Crescent was a short distance from Truck Tech’s address at 2 Mitchell Road.)

    6. Affidavit, M Auld, 9 December 2019, par 8.

16. In his second affidavit, Mr Auld said that he worked for the Spencers in a business known as Quarry Transport Solutions. He said that the five vehicles identified in the proceedings were the only vehicles in the fleet. Mr Auld had conversations with both Barry Saad and George Saad in January 2018 when he asked about the fate of the trucks and was told that they were on a “do not drive” list, and had been handed back to the finance company.

17. Mr Auld was not cross-examined. The judge accepted his evidence. [7]

    7. Judgment at [196].

18. Employees of Volvo Finance, Brett McAlister and Jarrod Smith, gave evidence that they had visited the property of Truck Tech at Mitchell Road, Moorebank on 2 or 3 January 2018. Mr McAlister said that both gates to the property were closed and “appeared to be locked up.” There were a number of trucks on the property, but none resembled the five missing Mack trucks.

19. Mr Smith confirmed that he had driven Mr McAlister to Truck Tech’s yards at Moorebank and had observed “between 6-10 trucks inside the yard, but they were not the missing Mack trucks.”

20. It may be inferred that, as the Dynafleet GPS systems on the three trucks which had operational systems stopped operating on 22 December 2017 at Mitchell Street, Moorebank, the systems were deactivated at the Truck Tech premises. As will be noted, Mr McAlister’s evidence that the trucks were not at the premises on 2 or 3 January 2018 was consistent with information given by the owner of Wilton Park Road property that they arrived shortly after Christmas.

21. Other than vehicle 1, four of the five vehicles were fitted with Dynafleet GPS systems, although that for vehicle 3 stopped working on 2 November 2017. The other three systems operated until 22 December 2017, indicating the last known position of the vehicles was 2 Mitchell Road, Moorebank, being the Truck Tech premises. [8] How they travelled from 3 Kelso Street was not explained. The inference is, and the judge accepted, that the GPS systems were disabled at 2 Mitchell Road, Moorebank before they were moved. That rendered implausible the appellant’s account as to Mr Spencer arranging for the five vehicles to be removed from that address, including the account of the conversation with Mr Spencer next day.

    8. Affidavit of Christopher John Murphy, 14 November 2019.

22. The respondent’s agent, Mr Ryan, had a conversation with the appellant on 17 January 2018 at Truck Tech’s premises. When asked where the trucks were, the appellant said, “They are all gone. I don’t know where they are.” He later said, “Well I have the Superliner and the five-axle trailer. I took it, so I can have my invoices paid.” The appellant then gave the account noted above from his affidavit, namely that after moving the Superliner, when he came back the other four trucks were gone and, although he had 60 employees, none had seen anything.

23. The evidence of Mr Auld as to his conversations with both the appellant and his brother George Saad in January 2018 were inconsistent with the appellant’s account that four of the vehicles had been taken from his yard on 23 December 2017. Ultimately the trial judge, who heard the appellant give evidence, made adverse credit findings and, in the case of conflict, preferred the evidence of Mr Murphy of Volvo Finance and the agent, Mr Ryan. [9] He also accepted the evidence of Mr Auld. [10] Accordingly, there was no reason to conclude that the appellant had lost control of any of the five vehicles between 22 December 2017 and mid-January 2018.

    9. Judgment at [189].

    10. Judgment at [195]-[196].

Mid-January 2018 – June 2018

24. On 28 February 2018 the appellant sent an email, confirming a telephone conversation of the same date, to Mr Jarrod Smith of Volvo Finance stating:

“As advised there is an outstanding amount owed to Truck-Tech Pty Ltd from Waterfront Enterprises (amount $173,848.66) Statement attached.

I was approached by Jason from Viking Trucks on the 17/01/18 in regards to this truck and dog owned by Waterfront Enterprises P/L

I advised Jason like I advised you that I have the superliner … and 5 axle dog trailer in my storage yard and will be charging $100 plus GST per day for the storage of this truck and dog (as of 8th of January till 25th of February there is a storage amount of $5,390 inclusive of GST).

…

All I want is the money outstanding to my company be paid in full and I will release the truck and trailer.”

The statement of account referred to above was attached to the email.

25. “Nearmap” is a website that provides aerial imagery of landscapes within Australia. Ms Karlsdottir, a solicitor for the respondent, gave evidence that she had obtained images from Nearmap dated 8 February 2018 which were supplied with her affidavit of 11 March 2019. She stated in the affidavit:

“The photo dated 8 February 2018, shows five trucks parked closely next to each other towards the back of the Property [at 410 Wilton Park Road, Wilton], with one of the trucks and trailer parked between two shipping containers. The photo shows four dark coloured trucks and one white truck each with a trailer. When I zoomed in on the photo, the blue/purple colour of the dark coloured trucks became more apparent.”

26. That evidence was not challenged.

27. The judge stated:

“[78]   The aerial photos taken on 8 February 2018 of the property at 410 Wilton Park Road show four blue and purple trucks and one white truck with trailers attached. One of the trucks the subject of these proceedings was white. The other four were described as being of a distinctive purple colour.”

28. Whilst it was submitted on the appeal that all that could be seen in the photos was a white coloured truck and four dark coloured trucks, that should not be accepted. The bonnet and hood of one truck are in shadow and the purple is less clear, but the other three trucks show a distinct blue/purple tinge, which when the evidence filed by the appellant on the appeal is viewed digitally, was entirely clear. In any event, Ms Karlsdottir’s evidence was to the same effect and was unchallenged. There is no basis for doubting the finding of the trial judge.

29. Indeed, there is further material which supports the conclusion. One of the trucks in the photograph taken on 8 February 2018 is positioned between two long containers, one coloured green and the other red. A further aerial photograph taken on 26 July 2018 shows what appears to be the same truck, in an identical position. As will be noted shortly, Mr Saad supplied a photograph of that vehicle to Mr Ryan on 22 May, in which one can see a piece of the green container alongside the vehicle with the number plate of vehicle 4. Finally, when Mr Ryan was able to gain access to the property at Wilton Park Road on 5 November 2018 Mr Ryan took photographs of vehicle 4 in the same place between the two containers.

30. The judge’s finding that the five vehicles shown on the aerial imagery of 8 February 2018 were all five of the vehicles the subject of the proceedings was unassailable. It contradicted the appellant’s account of retaining possession of vehicle 5 in Sydney.

31. Mr Ryan gave evidence that on 24 January 2018 he had chartered a helicopter to fly over a significant area on the outskirts of Sydney, including the Wilton/Picton area. He was not able to fly over Wilton Park Road because it was within a “no fly zone”, being near a parachute drop zone.

32. On 12 April 2018 Mr Ryan had a telephone conversation with the appellant, to which Mr Murphy was a party and which was recorded. It included the following exchanges, “BS” being the appellant and “ME” being Mr Ryan.

“ME: Mate, I am trying to do my job here and we have been talking about these trucks for some time now. What will it take to get these trucks back from you?

BS: I actually have an update for you since we last spoke about the trucks. I now have all five trucks in my possession.

ME: OK, cool mate. Thanks.

BS: I have done what I needed to do to get them, and I now have them all in my possession. I think it is best if we have a meeting to discuss what we need to do, and what needs to be done for me to get my money back.

…

ME: Mate, just so I can keep my records up to date, so, you currently have all five trucks in your possession, and they are all in good working condition?

BS: Yes, the five trucks are here.

ME: OK, I just haven't seen them for a while and I just want to make sure that there is nothing missing off them. Nothing is wrong with them?

BS: No, mate, there are five complete trucks here.”

33. On 17 April 2018 Messrs Murphy and Ryan met with the appellant in a café in Leichhardt, Sydney. The appellant gave the representatives of the respondent a written offer, which he described in the following terms:

“So, Gentlemen, here's my offer. You pay me the full $173,000 I am owed plus a finder's fee of $150,000 plus GST, or I will buy all five trucks from you in the clear for $910,000 including GST.”

34. The written offer identified each of the five trucks and the price which the appellant was prepared to pay. It also identified the terms of each offer as described by the appellant. It was dated 17 April 2018.

35. No agreement was reached on that date. However, the appellant provided copies of invoices to Mr Ryan following which the conversation continued:

“ME: We need to see these trucks are still all in good working order, how do we know they aren't in pieces?

BS: You have my word; one is missing a bumper. But I'll sort that.

ME: We need more than your word. Can you bring them to us today?

BS: No.

ME: Can you take us to them today, right now so we can see them in one piece?”

36. On 16 May 2018 Mr Ryan again chartered a helicopter and flew over the Wilton area. They were again denied permission to fly in the no fly zone.

37. On 22 May 2018 Mr Ryan met the appellant in Warwick Farm, in south-west Sydney, for lunch. The conversation commenced:

“ME: So, Barry, what's going to take to make a deal we're all happy with?

BS: $330,000.00 will get it done. All trucks are all in good condition, I went out and saw them the other day. One needs a jump start but other than that, they are all good.

…

ME: Do you have any current photos of the trucks? That would help me with Volvo.”

Mr Ryan’s affidavit continued:

“At that point in the conversation, Barry showed me photos on his mobile phone's camera roll of all five missing Mack trucks, which were allegedly taken the weekend prior. I recall I observed the rego numbers of the trucks in the photographs matched the rego numbers of the five missing Mack trucks. The trucks appeared to be in good condition considering they were located in what appeared to be bushland made up of trees and a sandy/soil base.

Once I gave Barry back his phone, our conversation continued using words to the following effect:

BS: The trucks are parked about a 60-90 minutes' drive from the airport.

Whilst we were sitting together and discussing the matter, Barry then sent the photographs to my mobile phone.”

38. Four photographs provided by the appellant were in evidence, including vehicle 4, to which reference has already been made and vehicles 1 and 2 (vehicle 1 being the white truck). There was also a picture of what appeared to be vehicle 3, although the registration plate was not clear on the exhibit in this Court.

July 2018 – December 2018

39. Further Nearmap imagery was available from 26 July 2018 which appeared to show the white truck in the same position as on 8 February, and the purple truck between the long red and green containers. There was a further purple truck, giving a total of three trucks.

40. On 1 August 2018, Mr Ryan was directed to attend at 3 Kelso Crescent, Moorebank, to collect vehicle 5 (the Mack Superliner and trailer). The appellant also attended and provided the keys.

41. On 5 November 2018 Mr Ryan finally obtained permission to fly over the “no fly zone” covering Wilton Park Road. On that occasion he sighted two of the four Mack trucks and one of the missing trailers on the property shown in the aerial imagery. He also observed the white truck located on a dirt road adjacent to the property. He took photographs from the helicopter and then immediately drove to the property. He spoke to the occupier, Clinton Weaving, who said the trucks arrived shortly after Christmas 2017 and had been parked on the adjoining property, also occupied by Mr Weaving. Mr Weaving said that “just after Christmas some guys came and moved all five trucks up here.”

42. Mr Ryan was able to inspect and photograph vehicles 3 and 4 on the property and confirmed they were the vehicles the subject of the proceedings. He stated:

“I observed the trucks and trailers were in very poor condition and it was clear they had not been used for a long period of time, as they had spider webs located on them and they had been subject to a considerable amount of dust and rust.”

43. Mr Ryan was told by the occupier of the property, Mr Weaving, that there was a further white truck on the next door property, noting that “someone came here a few months ago and took the bonnet and bumper off it.” Mr Weaving said that he (Weaving) had used the truck to move some soil on his properties.

44. On 6 November 2018, Mr Ryan arranged the recovery of vehicles 1, 3 and 4 from the Wilton Park Road property.

Vehicle 2

45. Mr Ryan affirmed a further affidavit on 4 November 2019 with respect to vehicle 2. One of his employees told him on 1 November 2019 that a Facebook message stated that a purple Mack Trident truck had been dumped on the Hume Highway north of Marulan, about 150kms southwest of Sydney. Mr Ryan was able to confirm that the truck was vehicle 2 and arranged for its transport back to Queensland. By reference to a service record for the truck, and the reading on its odometer, he noted that the truck had only driven 1,506km between 20 December 2017 and 1 November 2019. He concluded that it had not been used for commercial purposes during that 22 month period. When it was collected, the truck was missing its batteries and the earth jump lead from the batteries.

Reasoning of trial judge

46. As noted above, the judge found that there were four blue/purple trucks and one white truck, each with trailers, at the Wilton Park Road property on 8 February 2018. Much of the argument on the appeal was addressed to the supposed weakness of that finding. The judge’s conclusions were expressed in the following terms:

“[84]   Further, the defendant says that he had Vehicle 5 (which was purple), which he kept at a storage yard throughout the time that it was missing.

[85]   If I accept that statement, the four purple trucks could not have been together in bushland at the time of the aerial photos.

[86]   However, there is other evidence which assists in drawing a conclusion about the photos:

(1)   Firstly, there are five vehicles shown in the February aerial photo. Whether or not they are the vehicles the subject of these proceedings, the vehicles shown in the aerial photos are valuable income producing assets. I would infer that they were sitting in bushland underneath a no-fly zone because they had been put there deliberately.

(2)   Each of the trucks shown in the photos has a trailer attached just as the five trucks did when they disappeared.

(3)   As stated by Mr Ryan, the purple colouring was distinctive or unusual.

(4)   Some of the vehicles were found in November 2018 at the site depicted in the aerial photos of February 2018.

(5)   The Nearmap aerial photos taken in February 2018 show four purple trucks and one white truck in the area where some of the vehicles the subject of these proceedings were discovered.

(6)   The Nearmap photos taken in July show only purple trucks in the area which must mean that the white truck shown in the February photos must have been moved from the spot.

(7)   The photos of the trucks provided to Mr Ryan by the defendant are of the vehicles in bushland somewhere.

[87]   Whilst the aerial photos do not show the registration numbers of the vehicles, if the vehicles are not the vehicles the subject of these proceedings then it must follow that in 2018 some other person owned four distinctive purple trucks and one white truck with trailers attached which happened to be sitting in bushland under a no-fly zone, not being used for a considerable period in 2018 on the same property and in the same vicinity as some of the vehicles the subject of these proceedings were ultimately located.

[88]   Such an alternative explanation for the coincidental presence of four other purple trucks and one white truck with trailers attached being in the same bushland area in the same timeframe as the vehicles the subject of these proceedings were missing is so farfetched that it can be dismissed.

[89]   I thus accept that the aerial photos of February show the presence of all five trucks and trailers in the bushland where two trucks and one trailer were ultimately located by Mr Ryan. A third truck was located on an adjoining property consistent with it having been moved between the time of the aerial photos of February and July 2018.”

47. Further, in dealing with the evidence in relation to the presence of the vehicles at Mitchell Street, Moorebank on 22 December 2017, the judge concluded:

“[146]   I am uncertain of the connection between 3 Kelso Crescent and the premises in Mitchell Street where the parties agree the vehicles were on 22 December. Having said that, Kelso Crescent is where Mr Ryan went to pick up Vehicle 5 from the defendant in August 2018.

[147]   Further, the Dynafleet records provide objective evidence consistent with Mr Auld’s evidence.

[148]   According to those records, truck 2 was driven to Kelso Crescent at 9.30am on 22 December (3 Kelso Crescent is adjacent to Newbridge Road which is referred to in the records). The records end there. Someone must have turned off the system at that point. Mr Auld says he met the defendant at 3 Kelso Crescent.

[149]   As the defendant has agreed that truck 2 was at Mitchell Road on 22 December it must be that the Dynafleet system in truck 2 was disconnected at Kelso Crescent before it was moved to Mitchell Road.

[150]   Further the Dynafleet records for truck 3 show it at Kelso Crescent around 9.30am before travelling on to Mitchell Road. This is consistent with Mr Auld’s evidence that he saw Vehicle 3 at Kelso Crescent when he arrived around 9.30am. According to the Dynafleet records, Vehicle 3 was only moved to Mitchell Road at 12.30pm. It must follow that one of the drivers brought Vehicle 3 to Kelso Crescent initially where it remained for three hours before being moved to Mitchell Road. There is no evidence as to why this occurred. This casts a significant doubt on the defendant’s version.

[151]   Mr Auld’s evidence is important because its effect is to provide a completely different version as to why the vehicles were brought to the Mitchell Road premises and what happened to them. It is important because Mr Auld says that the defendant told him that he had bought the vehicles. Mr Auld’s evidence is not based on what he might have believed or heard from others but, rather, on what he saw and what the defendant told him.

[152]   Although Mr Auld was not cross-examined, the substance of his conversation with the defendant was put to the defendant. The defendant denied that he said the words attributed to him.

[153]   The absence of cross-examination does not mandate acceptance of Mr Auld’s evidence. It is contrary to the defendant’s evidence but it is not inherently improbable or inconsistent with other objective evidence. To the contrary, it is consistent with objective evidence.”

48. With respect to the appellant’s evidence in relation to vehicle 5, the judge noted inconsistencies in the appellant’s account. In his affidavit he said that Mr Spencer had told him that he had taken the trucks back on 23 December 2017. In the conversation with Mr Ryan in January 2018, he had said that he did not know who had taken the other four trucks. [11] The account given of taking the vehicle to a friend’s yard at Revesby was varied to refer to his own storage yard at Mascot. It may be that he made a mistake in his affidavit evidence, or in his oral evidence, but, as the trial judge noted, the confusion was curious. [12]

    11. Judgment at [163]-[164].

    12. Judgment at [168].

49. The defendant sought to deny in his evidence that he had said in the recorded conversation of 12 April that he had “the five trucks in his possession.” Ultimately the judge concluded:

“[189]   The defendant was not an impressive witness. I found his evidence inconsistent and implausible. He denied conversations that must have taken place. His evidence as to the recorded conversation is inconsistent with the actual conversation. He seemed intent on maintaining a position. To the extent that there is a conflict in the evidence as to what was said, I would prefer the evidence of Mr Murphy and Mr Ryan to that of the defendant.

…

[197]   Further, I do not accept the defendant’s evidence that he did not know what happened to the other four vehicles. As I have already found, all five vehicles were in bushland together by February 2018. He says he knew where Vehicle 5 was and he says he (Truck Tech) had control over it.

[198]   Nor do I accept the defendant’s suggestions that he was merely acting as some form of broker on behalf of these other third parties, whilst at the same time seeking to recover payment of his outstanding account.

[199]   On first meeting with Mr Ryan, the defendant said he only had one vehicle, after originally saying they were all gone and he did not know where they all were. On my findings, that vehicle was in the bushland with the other vehicles by February 2018.”

50. Dealing with the later meetings the judge concluded:

“[200]   On further meeting or discussions with Mr Ryan and Mr Murphy in April 2018, the defendant is recorded as saying on three occasions that he had possession of all five vehicles. When challenged, he introduces the Crazy Iraqi and Mr Moussari. It is implausible that he had no real idea as to who the Crazy Iraqi might have been (assuming his existence), bearing in mind that on his own version, he was negotiating on behalf of the Crazy Iraqi and must have been authorised to receive money on behalf of the Crazy Iraqi.

[201]   It is also surprising that the person whom the defendant said is now dead, Mr Moussari, had never been heard of by Mr Ryan and could not be located or identified by Mr Ryan as ever existing.

[202]   The defendant provided photos of either the four or of the five vehicles in bushland to Mr Ryan but he maintained that he did not know where the vehicles were.

[203]   Yet, Mr Ryan stated that the defendant had told him that he knew where they were and that he had seen them and even those which were in a damaged state, such as missing the bonnet and the bumper bar (which happens to coincide with how one of the vehicles was found).

51. The trial judge was satisfied that at some stage while at the Truck Tech premises on 22 December 2017, the Dynafleet GPS system was disconnected from the three vehicles on which it was operating and all five vehicles “were hidden in the bushland at Wilton, under the no fly zone.” The judge continued:

“[205]   The defendant has admitted that he had Vehicle 5 at all times (or at least Truck Tech did). He delivered it up in August 2018. As Vehicle 5 was with the other vehicles as of February 2018, he must have known where all the vehicles were.”

52. The suggestion that Truck Tech, and not the appellant, had possession of vehicle 5 was not inconsistent with the appellant having control of the vehicle. Indeed he maintained both propositions consistently over the months of 2018 before it was delivered up in August 2018. With respect to the offer in writing dated 17 April 2018, the judge concluded that he must have been in control of the vehicles in order to offer to deliver them up at any time upon payment of a specified sum of money. A similar conclusion followed from the offer to pay $910,000 to purchase the vehicles. [13] The judge noted that the introduction of “the Crazy Iraqi” and “Mr Moussari” did not “negate his admission that he had possession of all five vehicles.”[14] The judge also rejected his evidence that he was “really making an offer on behalf of a person he could only identify as the Crazy Iraqi or another person, Mr Moussari, whose past existence cannot even be established.”[15]

    13. Judgment at [210].

    14. Judgment at [209].

    15. Judgment at [211].

53. The judge then rejected the suggestion that there was a lien entitling either him or Truck Tech to retain the vehicle:

“[228]   Even if I was to accept the defendant’s version, Truck Tech could not have maintained a lien over Vehicle 5 because no work was performed on Vehicle 5 at that time. Even on the defendant’s case, Truck Tech had previously released the vehicles to Waterfront Enterprises after earlier work without payment of its account.”

That finding is not challenged.

Conclusion

54. To a significant extent, there could be no challenge to the judge’s findings of fact unless he had accepted part or all of the evidence of the appellant. He did not. He gave reasons why he found the evidence implausible, internally inconsistent and inconsistent with objective facts. This Court could not interfere with such a finding on the basis of the principles established in Fox v Percy. [16] The compelling inferences, to be derived from the whole of the evidence, are against the acceptance of the appellant’s evidence, not in its favour. The finding that all five vehicles were on the Wilton Park Road property on 8 February 2018 was patently correct. The appellant’s statements to Mr Ryan and Mr Murphy involved unequivocal admissions that he had control of all five vehicles.

    16. (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29].

55. The appeal, based on challenges to the findings of fact must be rejected. The appeal must be dismissed with costs.

56. The Court should make the following orders:

1. Dismiss the appeal from the judgment and orders in the Common Law Division given and made on 20 March 2020.

2. Order that the appellant pay the respondent’s costs of the appeal.

57. PAYNE JA: I agree with Basten JA.

58. SIMPSON AJA: I agree with Basten JA.

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Endnotes

Decision last updated: 11 November 2020