Velissaris v Dynami Pty Ltd & Zervas

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. SCI 10468 of 2009

BETWEEN

GEORGE VELISSARIS	Plaintiff
and
DYNAMI PTY LTD (ACN 130 300 542) & BETTY ZERVAS	Defendants

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JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	1-2 December 2010 and 6-9 December 2010
DATE OF JUDGMENT:	14 December 2010
CASE MAY BE CITED AS:	Velissaris v Dynami Pty Ltd & Zervas
MEDIUM NEUTRAL CITATION:	[2010] VSC 587

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PERSONAL PROPERTY – Ownership and Possession – Claim for damages for value of plant and equipment and consequential loss – Failure by plaintiff to establish ownership or any right to possession of plant and equipment – Failure to establish any loss and damage – No cause of action established against defendants.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr D Forbes	Stonnington & Zervas

TABLE OF CONTENTS

A.Background.............................................................................................................................        1

B.Other proceedings..................................................................................................................        2

C.The claim..................................................................................................................................        7

Ownership of the plant and equipment.............................................................................. 7
Claim against the defendants.............................................................................................. 13
Loss and damage.................................................................................................................. 14

D.Disposition............................................................................................................................        16

HIS HONOUR:

A.       Background

1. Maryvell Investments Pty Ltd (“Maryvell”) is a company in liquidation. 

1. Maryvell was wound up by order of this Court made on 10 June 2006.  Laurence Andrew Fitzgerald was appointed liquidator (“the Liquidator”). 

1. Maryvell was the registered proprietor of the land situated at and known as 333 to 335 Sydney Road, Brunswick (“the Property”).

1. By a contract of sale entered into between the Liquidator and the first defendant, Dynami Pty Ltd (“Dynami”) on 26 March 2008, Dynami purchased the Property (“Contract of Sale”). 

1. Prior to the Contract of Sale and on 20 March 2008, Maryvell entered into a lease agreement (“the Lease”) with Stonnington Online Conveyancing Pty Ltd (“the Tenant”).  The Lease provided for a monthly rental of $5,000. 

1. Pursuant to clause 22.7 of the Lease, the plant and equipment situated at the Property was sold by the Liquidator of Maryvell to the Tenant for a consideration of $1. 

1. The Liquidator sold the plant and equipment to the Tenant because he was of the opinion that the equipment belonged to Maryvell and as such, he was entitled to sell it.  I note immediately that no claim is made against the Liquidator or the Tenant in this proceeding.

1. The plaintiff contends that he owned, operated and managed a Greek restaurant from the Property.  The plaintiff has brought this proceeding in order to recover the value of the plant and equipment and consequential loss.  The plaintiff alleges that at all times the plant and equipment, which he has identified in the statement of claim, was his and was not available for sale by the Liquidator. 

1. The Liquidator contends that he was entitled to sell the plant and equipment and the Property.  In any event as pointed out, the Liquidator is not a party to this proceeding.  The purchaser of the freehold is a party, together with the second defendant Betty Zervas, who executed a guarantee pursuant to the Contract of Sale.  The Tenant is…