CAPITAL FINANCE AUSTRALIA LIMITED v Elana Claire Clough

EX TEMPORE JUDGMENT

1. In this matter the plaintiff, Capital Finance Australia Limited ("Capital"), entered into a financial contract with C&J Concrete Pty Ltd ("CJC") on 29 April 2011 in connection with a vehicle known as a KIA Carnival van. The obligations of CJC were guaranteed by a Miss Herewine Simpson. A copy of that document can be found as part of exhibit A of the Court book in this matter. The facts set out in the balance of these reasons are taken from the affidavits and annexures contained in Exh A.
2. Capital registered its interest in the vehicle on 11 May 2011 and its registration was migrated to the Personal Properties Security Register on 10 October 2013. In November 2012 CJC defaulted under the terms of the agreement to pay $18,765 due, and on 1 September 2013 Capital repossessed the vehicle.
3. On 24 September 2013 Capital arranged for the vehicle to be auctioned by Pickles, licenced auctioneer. The vehicle was sold at public auction on 9 October 2013. On 10 October 2013 Capital removed its security interest to ensure clear title could be given to the purchaser at the auction. On 29 September 2013, unbeknown to Capital (or I infer, Pickles) the defendant registered a security interest in the vehicle. Capital reregistered its interest in the vehicle on 23 October 2013. The sale to the purchaser at the auction fell through, I was informed, because of the existence of the encumbrance on title in the register brought about by the defendant's registration. Capital has sought to have the defendant remove the encumbrance caused by her registration of the interest. A copy of that registration is found on page 207 annexed to the affidavit of Mr Glen Bradley of 19 November 2014.
4. There was correspondence between Capital and the defendant in which the defendant contended that she had bought the vehicle from CJC on 24 May 2013. There is in evidence a receipt which the defendant provided to Capital. It is found at page 29 annexed to Mr Bradley's affidavit. The receipt has an NRMA heading and records, as the amount received by CJC, "$5,000 cash/$18,765 paid to Capital Finance" ("Capital"). Capital agreed with the defendant that it would split the proceeds of sale of the vehicle equally with the defendant on condition that the defendant provided copies of registration of the vehicle and proof that the amount of $18,765 was paid to Capital upon the purchase of the vehicle. That might seem a somewhat strange agreement to make given that Capital itself could check whether or not it had received the money, but that was the arrangement made. Capital's evidence is that although copies of the Queensland registration papers for the vehicle were supplied by the defendant and she provided a document headed "Bill Payment Receipt", which is found at page 35 to Mr Bradley's affidavit, in fact that document presents a false image of what actually has been paid to the plaintiff.