The State of Western Australia v Hawley

[2001] WADC 255

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HAWLEY & ANOR [2001] WADC 255

CORAM:   MARTINO DCJ

HEARD:   29 OCTOBER 2001

DELIVERED          :   9 NOVEMBER 2001

FILE NO/S:   CIVO 94 of 2001

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

BRUCE ALEXANDER HAWLEY
First Claimant

GAYR ROBINSON FRENCH
Second Claimant

Catchwords:

Procedure - Interpleader - Summary determination - Title to motor vehicle seized under search warrant

Legislation:

Nil

Result:

Second claimant succeeds

Representation:

Counsel:

Applicant:     No appearance

First Claimant               :     In person

Second Claimant           :     In person

Solicitors:

Applicant:     State Crown Solicitor

First Claimant               :     Not applicable

Second Claimant           :     Not applicable

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

MARTINO DCJ: 

Introduction

1. This action concerns the claims of each of the first complainant ("Mr Hawley") and the second complainant ("Mr French") to a 1984 model Ford Falcon Station Wagon, Registration Number 9MF 189 ("the vehicle"). On 11 June 1999 Senior Constable Mark James Folkard obtained a search warrant to search Mr French's place of residence. On 15 June 1999 Senior Constable Folkard executed the search warrant. The vehicle was at Mr French's place of residence. Senior Constable Folkard seized the vehicle pursuant to s 711 of the Criminal Code.

2. Mr French was charged with stealing the vehicle.  The Director of Public Prosecutions presented a nolle prosequi in respect of that charge on 7 February 2001. The vehicle remains in the possession of the police.  Each of Mr Hawley and Mr French claimed that they were the owners of the vehicle.

3. On 3 July 2001 the State of Western Australia commenced these interpleader proceedings in respect of the vehicle.  On 20 July 2001 his Honour Judge L A Jackson made the following orders:

   "1.Within 14 days of this Order the Second Claimant do file and serve an affidavit in support of his claim.

   2.Within 14 days of the service of the Second Claimant's affidavit the First Claimant do file and serve an affidavit in reply.

   3.There be no action brought against the State of Western Australia and the State of Western Australia be excused from further attendance.

   4.The First and Second Claimants do pay $350.00 each towards the Applicant's costs fixed at $600 plus disbursements of $100 with a remedy over and against each other.

   5.There be liberty to apply.

   6.The summons be otherwise adjourned sine die."

4. Affidavits have been filed by each of Mr French and Mr Hawley.  On 29 October 2001 the action came before me.  Both Mr Hawley and Mr French appeared in person.  The applicant was notified of the appointment but, in accordance with the orders made on 20 July 2001, did not attend the appointment.

5. Order 17 r 6 of the Rules of the Supreme Court provides:

   "Summary determination

   The Court may, with the consent of both claimants or on the request of the claimant, or if the applicant is the Sheriff, dispose of the merits of the claims and decide the same in a summary manner."

6. Mr French and Mr Hawley both informed me that they wished me to deal with their claims summarily.  After hearing argument I reserved my decision on whether I should deal with the claims summarily and, if so, whose claim should succeed.

The background to the dispute

1. In September 1993 Mr Hawley purchased a business which traded as Forparts.  The business carried on by Mr Hawley under that name was that of motor vehicle wrecker, car dealer and spare parts retailer.  When Mr Hawley purchased the business he employed Mr French as manager. The terms of Mr French's employment were subsequently set out in a letter dated 28 July 1997.  That letter included the following:

   "Your appointment will be under the following terms and conditions:

   …

   6.Duties

   …

   (c)Purchase stock for the business at competitive rates in the best interest of the business and dispose of parts and complete vehicles to realise a profit."

2. It was signed by Mr Hawley and by Mr French.

3. At that time Mr Hawley resided in Malaysia.  On 7 October 1997 Mr French made a payment of $2,200 on behalf of the Forparts business for rent.  Mr French claims that on 10 October 1997 he acquired the vehicle in exchange for the sum of $2,200 owed to him by Mr Hawley for the rental payment.  Mr Hawley agrees that Mr French paid the sum of $2,200 but does not accept that Mr French acquired the vehicle.

4. On 23 January 1999 Mr Hawley attended at the Forparts premises and terminated Mr  French's employment.  He asked Mr French to leave the premises.  Mr French left in the vehicle.  Mr Hawley subsequently requested that Mr French return the vehicle but Mr French refused to do so.

5. There have been unfair dismissal proceedings between Mr French and Mr Hawley.  I do not know the details of those proceedings but neither claimant contended that those proceedings affected the outcome of these claims.

The issue to be determined

1. The claims of Mr Hawley and Mr French turn on whether or not Mr French acquired the vehicle on 10 October 1997.

The evidence on the issue

1. Mr French points to the following document on Forparts letterhead dated 10 October 1997:

   "This letter is confirmation, after discussions with Mr R Hawley by phone that the motor vehicle 9MF189 is now owned by the writer.

   Forparts exposed to $1900 at time of theft of said vehicle from locality of AZ Motors.

   Lease for October paid by G French, $2200, on the 7th of October 1998.  Vehicle in an accident‑damaged state."

2. The document was signed by Mr French and witnessed by a Mr Brent Sexton.

3. Mr R Hawley is Mr Hawley's father.

4. Mr Hawley disputes that the validity of the document.  He informed me that his father has no recollection of a discussion of the kind referred to. Mr Hawley also points to the absence of any other contemporaneous record of the alleged transfer.  In particular he points to the Forparts Dealer's Register on which Forparts is required to enter motor vehicle transactions.  That register does not show the sale of the vehicle to Mr French.  Mr Hawley also points to the fact that the vehicle was not transferred to Mr French until 28 April 1999. Mr Hawley contends that the statutory declaration that Mr French made at that time to secure the registration of the vehicle in his name was a false declaration.

5. While Mr Hawley does not dispute that Mr French made the payment of $2,200 for rent he says he has no record indicating whether or not Mr French was reimbursed for that payment from the business.

6. Mr French says that he saw no need to take steps to transfer the vehicle into his name until after he ceased employment at Forparts because he was at the premises every working day.  The transfer shows the date of purchase as "10 09 1997".  He has deposed to the fact that he has "received no other benefit of goods or chattels for the [rental] payment made".

Whether I should deal with the claims summarily

1. As there are disputes of fact summary disposition of the claims is not the ideal method of determination.  The best method would be a trial at which the parties would adduce oral evidence and be cross‑examined on that evidence.  Both claimants would like me to determine the claims summarily.  Having regard to the value of the vehicle, the fact that both claimants wished me to determine the claims summarily and the fact that there have already been criminal and industrial proceedings involving the parties I conclude that it is appropriate to determine the claims summarily.

Determination of the claims

1. By the letter dated 28 July 1997 Mr French was given authority to dispose of property of the Forparts business.  It is not disputed that he paid the sum of $2,200 as rent for the business.  Mr French has sworn that he did transfer title to the vehicle to himself in exchange for that debt.  There is the document dated 10 October 1997 which purports to confirm the sale.  It is possible that this document was prepared after Mr French's employment was terminated.  The fact that it refers to the date of payment as being 7 October 1998 suggests that it may have been.  However I cannot lightly conclude that it was because that would involve a significant degree of dishonesty by both Mr French and Mr Sexton signing a document some 18 months after the date it bears.

2. It also seems to me that Mr French's conduct in retaining the vehicle after his employment was terminated, rather than disposing of it, and transferring it into his name by making a statutory declaration that he had acquired the vehicle when he would have known that the transfer documentation was kept by the Department of Transport is more consistent with Mr French believing that he had acquired title to the vehicle.  The transfer does show the year of transfer as being 1997 and the day of the month that Mr French contends that he acquired the vehicle, although the month is incorrect.

3. While it is surprising that the dealer's register does not show the sale of the vehicle to Mr French and that the vehicle was not transferred to Mr French until 28 April 1999 the fact that Mr French was the manager of the business at that time may explain why he did not see any need to complete the transfer formalities to himself.

4. On the balance of probabilities I conclude that Mr French did acquire the vehicle on 10 October 1997 and so that he is entitled to ownership of it.

Orders

1. For these reasons I propose to order that the vehicle is the property of the second claimant make any necessary costs orders and grant liberty to apply in case any further orders are necessary to finalise the issue of possession of the vehicle.