BOQEF is the company that I have called "BOQ". The defendants contend that the Conways have not proved that they have given notice to BOQ and so are not entitled to possession of the tanks. The contention is entirely without merit. In no respect does clause 2.2 assist the defendants. Clause 2.2 does no more than impose an obligation on the Conways to give notice to BOQ if they intend to remove the tanks to another winery. They cannot move the tanks unless and until they gain possession of the tanks and are in a position to move them. Once they have the tanks in their possession and are in a position to move them, they will be obliged to give seven days notice of their intention to do so.
The Hyster forklift
34 Conway seeks to recover possession of the Hyster forklift in paragraph (e) of the list of items claimed. His evidence is that he is the person entitled to possession of it. However, in an affidavit sworn in the proceedings in the Supreme Court of South Australia to set aside the winding up of Old Mudgee, Conway had deposed that the forklift is owned by Mudgee Heritage Pty Ltd. Counsel for the defendants pointed to the fact that Mudgee Heritage Pty Ltd is not a plaintiff. Relying on Burnett v Randwick City Council [2006] NSWCA 196, he contended that Conway is thereby prevented from recovering possession of the forklift.
35 When the hearing resumed on 3 June, Mr Hall, solicitor for the plaintiff, tendered two affidavits. That evidence establishes that no company with the name Mudgee Heritage Pty Ltd has ever been registered. There is, however, a business name Mudgee Heritage Estate. It is one of the names under which a family partnership of Conway and Mrs Conway carries on business. I accept Conway's evidence that he had erred when swearing the affidavit in the proceedings in the Supreme Court of South Australia. I find that the reference in that affidavit to Mudgee Heritage Pty Ltd was made in error. I find also that there is no company called Mudgee Heritage Pty Ltd. The question whether Conway is entitled to the Hyster forklift must, therefore, be considered with the remaining items.
The remaining items
36 I turn to the evidence as to all of the other items the subject of this claim. I will refer to them as "the remaining items". Conway's uncontroverted evidence is that he placed all of the remaining items on the winery land. It is implicit in his evidence that he is the owner of the remaining items and entitled to possession of them. There is no dispute that these items are at the winery.
37 None of the remaining items were the subject of the sale by the receiver. None are included in Annexure A. Given the obligations of the receiver to get in all of the property of which he was appointed receiver and sell it to discharge the liability to the bank, it is reasonable to infer that had any of these items been the property of Old Mudgee, the receiver would have sold them with the other items the subject of the agreement for sale. They were not sold by the receiver. It may also be inferred that, if any of the items claimed by Conway were assets of Old Mudgee, the current liquidator of Old Mudgee would have claimed them. No such claim has been proved.
38 In his affidavit sworn on 24 December 2008, Conway deposed that he placed the remaining items on the winery land. In his affidavit sworn on 22 January 2009, he referred to these items as his "tools of trade". Although he did not in either affidavit expressly state that he owned the goods, that is in all the circumstances a reasonable inference. In this context, it must be noted that, on 1 December 2008, Conway had sent Mr Mark Thompson a list the remaining items. That list stated that the items belonged to Conway and Mrs Conway. Mr Thompson sent that list to Mr Critchley asking him to identify those items that Mr Critchley said were owned by Old Mudgee. Mr Critchley did not respond.
39 Mr Critchley is in a position to be able to prove what assets were owned by Old Mudgee. As he has said in his affidavit, he has known Conway and Mrs Conway for more than 20 years and has prepared their personal tax returns as well as preparing financial statements and taxation returns for Old Mudgee. Those taxation returns would have included depreciation schedules listing items of plant and equipment owned by Old Mudgee. Notwithstanding his capacity to prove what assets were owned by Old Mudgee, he has not given evidence that any of the assets of which Conway claims possession are in fact the property of Old Mudgee. It is reasonable, therefore, to infer, as I do, Old Mudgee is not the owner of any of those goods or entitled to possession of them.
40 In paragraph 52 of his affidavit, Mr Critchley raised an issue in respect of the blue Iseki tractor that is item (c) on the list. He proved two tax invoices sent to Old Mudgee on 10 January 2006 and on 3 October 2006 for the costs of repairs to the Iseki tractor. It appears that Old Mudgee paid the cost of repairs. The fact that Old Mudgee paid the costs of repairs does not establish that it owns the tractor. As I have said earlier, Mr Critchley is in a position to state what assets are in fact owned by Old Mudgee. If the Iseki tractor had been the property of Old Mudgee, he is in a position to prove that fact. He has not done so. Furthermore, the receiver did not include it in the list of items of plant and equipment that he sold. This evidence does not gainsay Mr Conway's entitlement to possession of this tractor.
41 Although Conway has not expressly stated that he owned the remaining items, that is in all circumstances a reasonable inference. An examination of the facts relating to each item reinforces the conclusion that Conway is the owner of all of the items claimed. The defendants have not adduced any evidence denying Conway's claim to ownership of the items listed above. They have led no evidence putting his claim to possession in issue. There is nothing in the affidavit of Mr Critchley that denies Conway's entitlement to possession. His affidavit exhibits a schedule (pages 300 to 302 of Exhibit CSC1) that points to a need for the plaintiff to prove ownership and entitlement to possession of the disputed items. But that does not constitute a denial of the plaintiff's evidence. Instead, the schedule constitutes an admission that the defendants have the disputed items in their possession. In the case of most of the items in his schedule Mr Critchley asserts that each was included in the sale by the receiver. That assertion is belied by the receiver's agreement for sale. If, in fact, any of these items had formed part of the agreement for sale it would have been listed in Annexure A. If there is other evidence that these items are not owned by Conway, Mr Critchley would be in a position to adduce that evidence. He has not done so and it is reasonable to infer that it does not exist. Conway has stated that that he is entitled to possession of the remaining items. I am entirely satisfied with this claim. There is no evidence to the contrary. Simply put, the defendants have not advanced any evidence that they have a defence. I am entirely satisfied that the defendants have no defence to Conway's claim to recover the remaining items. I, therefore, find on the balance of probabilities that Conway is entitled to possession of them. I will, therefore, order that the defendants deliver those items to him.
42 While it has been necessary to trace through the evidence to establish either ownership or an entitlement to possession of the items claimed by Conway, the evidence very clearly establishes that Conway is the owner of all items or is otherwise entitled to possession of them. I am entirely satisfied that the defendants have no defence to any of Conway's claims to recover possession of the items claimed in these proceedings. The evidence is so clear that this is a proper case in which to grant summary judgment.
A claim for the costs of repairs
43 Many of the remaining items are plant and equipment suitable for use in managing and operating a winery. The defendants say that they have incurred expense in repairing some of the items to make them fit for use. They seek to be reimbursed for the costs of repairs. The claim was made at a late stage and was not supported by evidence. Mr Critchley's affidavit contained no reference to this claim. Where a defendant has been ordered to deliver goods to a plaintiff and the defendant has added to the value of those goods, the plaintiff must be prepared to make fair allowance for the improvements in value: Greenwood v Bennett [1973] QB 195, McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 308. It is not possible to determine this belated claim. There is no evidence of the cost of repairs or of what items of plant and equipment were repaired. There is no evidence that the cost of repairs has increased the value of those items that were repaired. There may be questions on such issues as whether the items of plant and equipment were lawfully used by the first to fifth defendants and whether the need for repairs was caused by their use of the items that were repaired. There may be questions whether the cost of repairs should be offset by a claim Conway for the loss of the use of those items of plant and equipment. The claim might also be offset by reason of the fact that the defendants were able to use plant and equipment belonging to Conway and thereby avoid the cost of leasing or purchasing like plant or equipment. The claim for cost for repairs has all the appearances of an afterthought made to delay Conway in the execution of any judgment to have these items delivered to him. The claim should not be permitted to prevent Conway from recovering the items of personal property which he is entitled to possess. The defendants are at liberty to pursue any claim for the cost of repairs by way of a cross-claim in these proceedings. In that way, the court will be able to determine whether in fact the defendants have a valid claim for the cost of repairs.
Conclusion
44 For these reasons, there will be an order that the defendants deliver to the plaintiff all of the items of personal property the subject of the claim in detinue. As some of those items are to be delivered to the plaintiff today, the order will specify the items the subject of the orders. The first to fifth defendants will have leave to make a cross-claim for the cost of repairs. They will be listed on a schedule to the order of the court. The parties have made submissions on the question of costs. The first to fifth defendants shall pay the plaintiff's costs of and incidental to the application for summary judgment.
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