Scoby-Smith v LANG
[2019] WADC 57
•18 APRIL 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SCOBY-SMITH -v- LANG [2019] WADC 57
CORAM: LONSDALE DCJ
HEARD: 23 JANUARY 2019
DELIVERED : 18 APRIL 2019
FILE NO/S: APP 86 of 2018
BETWEEN: HAYDEN LEE SCOBY-SMITH
Appellant
AND
TAHLIA SYMOANE LANG
Respondent
Catchwords:
Appeal against refusal of application for relief by interpleader - Civil Judgment Enforcements Act 2004 (WA) - Ownership of vehicle - Whether licence holder the owner - Failure to give adequate reasons
Legislation:
Civil Judgments Enforcement Act 2004 (WA), pt 4, div 6
District Court Rules 2005 (WA), r 50(1)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(4)
Road Traffic (Administration) Act 2008 (WA), s 5, s 5(1)(a), s 5(1)(b), s 6
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr M J Joubert |
| Respondent | : | In person |
Solicitors:
| Appellant | : | Emeris Lawyers Pty Ltd |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Butler v Bennett [2007] WADC 107
City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477; [1962] ALR 184
Kanbur Pty Ltd v Adams (1984) 3 FCR 192
Lilley v Doubleday (1881) 7 QBD 510
McKenna & Armistead Pty Ltd v Excavations Pty Ltd (1956) 57 SR (NSW) 515, 518
Oteri v Craft Décor Pty Ltd [2010] WADC 187
Russell v Wilson (1923) 33 CLR 538; (1923) 30 ALR 75
Sandeman v Robinson (1877) Knox 382
LONSDALE DCJ:
Introduction
This is an appeal against a decision of his Honour Magistrate Shackleton on 21 August 2018 to deny the appellant interpleader relief concerning the seizure of a motor vehicle by the bailiff.
The circumstances leading to the appellant's claim for interpleader relief
On 12 May 2017 the respondent filed a general procedure claim[1] against the appellant's father, Cameron Wade Scoby-Smith. To avoid confusion, I will refer to the latter as Mr Scoby-Smith Senior and the appellant as the appellant.
[1] BV GCLM 370/2017.
In November 2017 the respondent obtained default judgment against the appellant in the sum of $6,353.
In March 2018 a seizure order was sent to the bailiff who attached vehicle registration number 1DRY‑397 (the vehicle) in execution.
At the time of the attachment, the vehicle was registered with the Department of Transport in the name of the appellant but was in the possession Mr Scoby-Smith Senior.[2]
[2] Appellant's outline of submissions par 1 - 3.
The appellant filed a notice of claim against Mr Scoby-Smith Senior pursuant to pt 4, div 6 of the Civil Judgments Enforcement Act 2004 (WA) (the CJE Act) to prevent the bailiff seizing the vehicle. In support of the notice, the appellant attached a statutory declaration in which he declared that he owned the vehicle and had done so since 14 April 2016.[3]
[3] Statutory declaration of Hayden Lee Scoby-Smith dated 7 May 2018.
The bailiff then commenced interpleader proceedings for the determination of the ownership of the vehicle by serving a notice of judgment to the respondent under the CJE Act.
The grounds of appeal
The notice of appeal contends that the learned magistrate had erred in fact and law in finding that the appellant was not the owner of the vehicle. Further, the notice of appeal contends that the learned magistrate had failed to give adequate reasons and had thereby denied the appellant natural justice.
Principles applying to appeals to the District Court
Section 40(4) of the Magistrates Court (Civil Proceedings) Act 2004 (the MCCP Act) provides that an appeal from the Magistrates Court to the District Court is to be decided on the material and evidence that was before the Magistrates Court.
Rule 50(1) of the District Court Rules 2005 provides that an appeal may be by way of reconsideration of the evidence that was before the primary court unless the parties otherwise agree.
An appeal to this court from the Magistrates Court is by way of rehearing: Oteri v Craft Décor Pty Ltd [2010] WADC 187 [33]; Butler v Bennett [2007] WADC 107 [10].
The evidence
Consistent with these principles, I turn now to consider the evidence before the Magistrates Court.
The hearing commenced on 25 July and the appellant gave evidence. He testified that his father was the sole director and shareholder of the company WA Metal Recycling Pty Ltd (the company). The appellant's evidence was that the company had purchased the vehicle in 2011 for about $32,000.[4]
[4] ts 4 of 25 July 2018.
The appellant said that he then purchased the vehicle from the company in 2015 by paying for it in instalments. He said that he paid the last instalment a week before it was transferred into his name. The appellant did not however adduce any detailed evidence as to the amounts of the payments and on what dates they were made.
The appellant tendered a transfer and registration document from the Department of Transport which showed the vehicle registered in his name from 14 April 2016.[5]
[5] ts 4 of 25 July 2018; Exhibit 1.
The appellant said that he was not initially aware that the vehicle was on the company asset register, but subsequently became aware that it was.[6]
[6] ts 5 of 25 July 2018.
The appellant said that in September 2016 [he was aware] that the vehicle was sold by a liquidator of the company at Pickles Auctions to Mr Scoby-Smith Senior. The appellant tendered a tax invoice from Pickles Auctions with Mr Scoby-Smith Senior's name showing that $15,001.43 had been paid for the vehicle.[7]
[7] ts 6 of 25 July 2018; Exhibit 2.
The appellant said that the vehicle was then returned to him but there had been no need to update the registration details because his name had remained on the registration papers since April 2016.[8]
[8] ts 6 of 25 July 2018.
The appellant gave evidence that he was aware that in 2017 his father had incurred a debt to the respondent. The appellant agreed that the vehicle had been attached by the bailiff (in March 2018) in execution of that debt. The appellant said that, at the time of the attachment, it was in his father's possession. The appellant said that the reason it was in his possession was because he was having financial difficulties and the appellant had loaned the vehicle to him.[9]
[9] ts 6 of 25 July 2018.
The appellant was the only witness to give evidence at the hearing. After the evidence was completed counsel for the appellant began to make submissions as to why interpleader relief should be granted.
The learned magistrate inquired of the appellant's counsel as to where the ownership papers were. Counsel submitted that the proof of ownership was the registration papers. The learned magistrate challenged counsel's submission in this regard. His Honour pointed out that the appellant had chosen not to call Mr Scoby-Smith Senior, who would have been able to give primary evidence as to who owned the vehicle at the relevant time.[10]
[10] ts 11 – 15 of 25 July 2018.
Counsel for the appellant informed the court that he doubted that Mr Scoby-Smith Senior would have the transfer of ownership papers in his possession. His Honour then granted an adjournment of six weeks to allow those documents to be produced.
When the matter resumed on 21 August 2018, the appellant's counsel filed submissions attaching three documents.
The first was a letter from Driver and Vehicle Services at the Department of Transport dated 4 May 2018. That document showed that the vehicle was registered in the name of the appellant with an expiry date of 13 July 2018.[11]
[11] ts 3 of 21 August 2018; Annexure A to appellant's submissions dated 16 August 2018.
The second was the seller's copy of a notification of change of ownership showing the appellant as purchaser and the licence expiry date as 13 April 2016 and the date of sale as 14 April 2016.[12] The document did not contain any information, as the learned magistrate observed, as to who owned the vehicle after that date.
[12] Annexure B to appellant's submissions dated 16 August 2018.
The third document was a serial number search certificate from the Federal government Personal Property Securities Register which stated that there 'is no security interest or other registration kind registered'. That document however contained no information as to who owned the vehicle.[13]
[13] Annexure D to appellant's submissions dated 16 August 2018.
The appellant did not apply to re-open his case and call Mr Scoby‑Smith Senior to testify as to the ownership of the vehicle.
The appellant's contentions
The appellant contends that he was the rightful owner of the vehicle because he had acquired it on 14 April 2016. He was the person registered as the licence holder for that vehicle and his evidence was to the effect that there had been no change of registration since that time.[14]
[14] Exhibit 1 and exhibit 2.
The relief sought by the appellant was essentially based on an action in detinue.
An action in detinue is available to a plaintiff who claims the right of immediate possession of property. See Lilley v Doubleday (1881) 7 QBD 510 and McKenna & Armistead Pty Ltd v Excavations Pty Ltd (1956) 57 SR (NSW) 515, 518; (1956) 74 WN (NSW) 289.
The tort of detinue entitles a plaintiff to have returned to him any property which a defendant unlawfully refuses to deliver up: Kanbur Pty Ltd v Adams (1984) 3 FCR 192.
In order to be successful in an action in detinue, the appellant must have a right to immediate possession at the time that ownership is claimed and refusal granted. See Russell v Wilson (1923) 33 CLR 538; (1923) 30 ALR 75; City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477; [1962] ALR 184; Sandeman v Robinson (1877) Knox 382.
Essentially, the appellant's contention boils down to a simple proposition: that he is the person to whom the vehicle is registered and therefore he is in all respects the rightful owner who is entitled to immediate possession of the vehicle.
The appellant submitted that the fact that Mr Scoby-Smith Senior had kept the vehicle in the company asset register and had subsequently purchased it at auction did not change the fact that the appellant owned the vehicle. This was, the appellant submitted, because Mr Scoby-Smith Senior had been remiss [in removing it from the asset register]. Because Mr Scoby-Smith Senior owed the appellant for the value of the vehicle, he had sought to rectify that problem by buying it at Pickles Auctions and giving it back to the appellant. It was submitted that this did not change the fact that the appellant was at all times the rightful owner evidenced by the fact that the vehicle was (and remained) registered in the appellant's name.[15]
[15] ts 9 of 25 July 2018.
The relevance of the vehicle registration details to the question of ownership
At the hearing of this appeal the appellant sought to rely on s 5 of the Road Traffic (Administration) Act 2008 (WA) (the RTA Act) which relevantly provides:
5.Owner of vehicle
(1)In a road law —
owner, in relation to a vehicle, means —
(a)the person who is entitled to the immediate possession of the vehicle; or
(b)if there are several persons entitled to its immediate possession, the person whose entitlement is paramount,
but if one of 2 or more persons fitting that description has been nominated for the purposes of subsection (2) it means only the person nominated.
(2)If a vehicle is owned by more than one person and one of those persons is nominated by all such persons, by notice in writing given to the CEO, then for the purposes of a road law, the nominated person is to be taken to be the owner of the vehicle.
Section 6 of the RTA Act is also relevant. It reads:
6.Person responsible for vehicle
(1)In this section —
licence holder, in relation to a vehicle, means a person in whose name the vehicle is licensed;
licensed, in relation to a vehicle, means licensed under the Road Traffic (Vehicles) Act 2012, registered under the Control of Vehicles (Off road Areas) Act 1978 or licensed or registered under a law of another jurisdiction corresponding to either of those Acts.
(2)For the purposes of a road law a person responsible for a vehicle is —
(a)if the vehicle is licensed — any licence holder who has not given a notice as described in paragraph (b); or
(b)if a licence holder has given notice under the Road Traffic (Vehicles) Act 2012 section 10(1), or a law of another jurisdiction corresponding to that provision, of a change in ownership of the vehicle and subsection (3) does not apply — the new owner as specified in the notice or, if more than one is specified, each of them; or
(c)if the vehicle is not licensed but was previously licensed and subsection (3) does not apply — a person responsible under paragraph (a) or (b) before the vehicle last ceased to be licensed; or
(d) in any other case —
(i)the person who is entitled to the immediate possession of the vehicle; or
(ii)if there are several persons entitled to its immediate possession, the person whose entitlement is paramount.
(3)Despite subsection (2), a person is not responsible for a vehicle under subsection (2)(b), if it can be shown that the person did not agree to becoming an owner of the vehicle and has notified the CEO in writing accordingly or has given a notice to a similar effect to another Australian driver licensing authority.
Analysis
It can readily be accepted, on the basis of s 6 of the RTA Act, that the person who is registered as the licence holder (being a person in whose name the vehicle is licensed) is prima facie the owner of that vehicle.
But s 5 of the RTA Act which provides a definition of 'owner' for the purpose of a road law clearly contemplates a broader notion of ownership.
Section 5(1)(a) of the RTA Act refers to an owner as being, not the person whose name is on the registration papers, but the person or persons 'entitled to the immediate possession of the vehicle'.
Section 5(1)(b) of the RTA Act contemplates that there may be more than one person entitled to immediate possession. In these circumstances, the owner will be the person whose entitlement to immediate possession is 'paramount'. Clearly, in my view, this would encompass a situation where there was more than one beneficial owner and where the vehicle is registered in only one of those names.
In my view, the right to immediate possession of the vehicle establishes ownership for the purposes of the RTA Act; but this is not necessarily tied to the person in whose name the vehicle is licensed. Nor does the RTA Act proscribe rules concerning the ownership of vehicles more generally.
I find that there is no basis in law to conclude that, just because a person is the licence holder, that they are necessarily the owner of that vehicle, and therefore entitled to possession of it. Were that not so, a seller could claim ownership to a vehicle prior to the vehicle being licensed in the name of the buyer, even though the buyer had paid him for it. That cannot be right.
It is apparent that his Honour did not give detailed reasons for his decision to dismiss the appellants claim for interpleader relief.
His Honour said:
Alright. Thank you. The application for relief by Hayden Scoby-Smith is refused. Thank you. Thank you, Ms Lang. You are free to go.[16]
[16] ts 7, 21 August 2018.
Although the learned magistrate's decision did not reveal his reasons for dismissing the appellant's claim for relief, it was apparent, in my view, having regard to the whole of the evidence and his Honour's exchanges with counsel, that he had in fact considered all of the evidence before him.
The following excerpt from the transcript reveals that his Honour had carefully considered the evidence before him in arriving at his decision to dismiss the appellant's claim:
JOUBERT, MR: But, your Honour, if the vehicle had been leased or under hire purchase, for example, Hayden would be the registered owner, but the true owner, the real owner, would have that interest registered on the register. That's the point. So my submission is that there is no other party with any interest registered against that vehicle.
HIS HONOUR: But who's the owner? That's what the question is, not whether it's the subject to a lease.
JOUBERT, MR: Well, the owner is the registered owner, the licenced owner, and according to the Department of Transport extract, that is Hayden Scoby-Smith, and he has been the owner since April 2013.
HIS HONOUR: But if he was the owner, then why did they purchase it back from Pickles after that? Why would I buy my car back from Pickles?
JOUBERT, MR: Well, if you think about it, your Honour, Cameron Scoby-Smith sold the vehicle to his son. He failed to reflect that sale in his company's books. The company went under. The liquidator was entitled because the sale wasn't reflected to say, "Well, I want the market value of that vehicle to fall into the liquidation account", and that's what was achieved by the Pickles Auction.
And then, clearly, Cameron Scoby-Smith would have owed – if the vehicle had been sold to a third party, he would have owed his son the value of that vehicle. But what he did was he paid Pickles Auctions so the market value of the vehicle went into the liquidation account of the company, and Hayden kept the vehicle. That's the situation, your Honour. So there has been no change over ownership as such.
HIS HONOUR: If Mr Hayden was the owner, why didn't Hayden go to Pickles and say, "That's my car", and why couldn't he assert proof of that if he was the owner? It sounds to me very much as though his father was the owner legally. They might have meant for the car to pass, but it clearly had not. Well, again, why would buy back a car you already owned?
JOUBERT, MR: Because – because, your Honour, the – in the company books, the car - - -
HIS HONOUR: So then the company books showed it as an asset.
JOUBERT, MR: As an asset.
HIS HONOUR: Well, then the company owned it, didn't they? That's why they bought it back.
JOUBERT, MR: Yes, but the company sold it to Hayden.
HIS HONOUR: Yes, but – well - - -
JOUBERT, MR: And it was paid for.
HIS HONOUR: Why would it be on the company's books as an asset if it was sold? It would be on someone else's asset list, wouldn't it?
JOUBERT, MR: Because the proceeds of the sale weren't reflected in the company books. That's the problem.
HIS HONOUR: So it wasn't sold.
JOUBERT, MR: It was, but, clearly, Cameron owed the value of the vehicle to the liquidation account in the company.
HIS HONOUR: Well, I'm not satisfied that the vehicle was owned by Hayden because it was on the company's asset register, and the father purchased it back. Now, if Hayden already owned it, he would have simply said, "That's my car".
JOUBERT, MR: Well, your Honour, with respect, I disagree with your Honour. And this is an interpleader and the interpleader process is – for the sheriff has referred the matter to your Honour to determine who the ownership – who was the owner of the vehicle.
HIS HONOUR: Well, it seems to me that the owner is Cameron Waded Scoby-Smith.
JOUBERT, MR: It can't possibly be, your Honour. The – all the registration papers, the Department of Transport papers show - - -
HIS HONOUR: But on the last occasion, it was adjourned through to today to show the transfer papers, and that's not what we've got.
JOUBERT, MR: Yes. You have got it, with respect. You've got the MR9s assigned by Cameron Scoby-Smith into his son's name, and the MR9 where Hayden Scoby-Smith signed as purchaser, and that possession hasn't changed since April 2013.
HIS HONOUR: Well, this has got 16 written on it.
JOUBERT, MR: I'm not sure.
HIS HONOUR: Well, that's what it says, April 2016.
JOUBERT, MR: Yes, 2016. No, that's the licence expiry date, your Honour.
LANG, MS:No, it does. It say 2016.
HIS HONOUR: Yes, it says 2016.
Although, in my respectful opinion, his Honour could have explained his reasons more fully, his Honour was correct to deny the appellant interpleader relief. Although the fact that the vehicle was registered in the appellant's name, the weight of the evidence suggests he was not the person entitled to immediate possession at the time that the vehicle was attached by the bailiff and not the rightful owner of the vehicle. My conclusion is based on the following reasons.
Firstly, it is not disputed that it was Mr Scoby-Smith Senior who purchased the vehicle at Pickles for the sum of $15,001.43.[17]
[17] Invoice from Pickles Auctions dated 30 September 2016 showing Mr Scoby-Smith Senior as the purchaser.
Secondly, the vehicle was in Mr Scoby-Smith Senior's possession at the time it was attached by the bailiff in March 2018.
As his Honour's exchange with counsel made plain, this conduct is inconsistent with anyone other than Mr Scoby-Smith Senior being the owner of the vehicle and the person entitled to immediate possession of it.
Thirdly, Mr Scoby-Smith Senior was not called to give evidence to say that neither he nor his company was the owner of the vehicle at the time it was seized by the liquidator to be sold.
Fourthly, as the learned magistrate pointed out, had the appellant been the rightful owner of the vehicle, he could have asserted his ownership of it to the liquidator when it was seized or to Pickles Auctions prior to it being sold.
Fifthly, the certificate from the Australian government Personal Property Securities Register (PPSR) contains no information as to who is the owner of the vehicle.
Sixthly, there is no evidence as to how much the appellant paid for the vehicle and when such payment was made (other than that it was paid in instalments the last being made on 2016).
Seventhly, the fact that the vehicle was licensed to the appellant under the provisions of the RTA Act did not establish him to be the owner or to be a person entitled to its immediate possession.
All of these factors in combination lead inevitably to a conclusion that, at the time the vehicle was attached by the bailiff, Mr Scoby-Smith Senior was the rightful owner of the vehicle and not the appellant.
The learned magistrate was correct to have denied the appellant interpleader relief.
Orders
The appeal is dismissed.
I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
IG
Associate to Judge Lonsdale18 APRIL 2019
4
4