Stapley v Towing Master Pty Ltd

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 CASES CITED : Shafto v Bolckow & Co (1887) 34 ChD 725 Thornhill v Weeks [1913] 1 Ch 438

PARTIES : Sandra Stapley (P) Towing Master Pty Ltd t/as Dynamic Towing (D)

COUNSEL : J B Whittle SC (P) M K Condon (D)

SOLICITORS : Courtney & Co (P) Sage Solicitors (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1697/07 SANDRA STAPLEY v TOWING MASTER PTY LTD t/as DYNAMIC TOWING JUDGMENT 1 HIS HONOUR: This is an application which I heard yesterday for this matter to be transferred to the Local Court. I need to set out the course that the proceedings have followed to date to provide the framework in which that application falls to be considered. 2 The action is brought in the name of the plaintiff under a right of subrogation by AAMI, the large motor vehicle insurer. The defendant is a company which is in the business of towing motor cars. The central issue is as to whether a person who tows a motor car from the scene of an accident is entitled to a lien for the towing costs over the vehicle whilst it is in that person's possession. Apparently that question has not been specifically decided, and, as will appear, the plaintiff at least says that one of the reasons that the proceedings should be retained in this Court is so that there may be an authoritative decision of the Supreme Court as to whether or not such a lien exists, there being both a commercial interest extending beyond the present case and also a public interest in the decision of this question. 3 The proceedings in question were commenced by a summons filed on 5 March this year. The two substantive prayers in that summons were for: "1 A declaration that the defendant is not entitled to a lien over the vehicle identified in Schedule A to this summons. 2 An order pursuant to Section 93 of the Uniform Civil Procedure Act 2005 [sic] requiring the Defendant to make available for collection by the Plaintiff at a date, time and at a place and in such manner as the Court directs, the vehicle identified in Schedule A to this summons."

The first prayer is obviously for a declaration to establish the question of whether or not a lien exists in relation to the vehicle towed. The second prayer is a prayer for judgment for specific delivery of the vehicle under the terms of s 93 of the Civil Procedure Act 2005 ("the CPA"). 4 On 19 March 2007 the Court by consent made the following orders: "1 The Defendant serve affidavit evidence upon which it intends to rely by 4pm on 30 April 2007. 2 Matter listed for Directions 1/5/07. NOTED 3 On a without prejudice basis and without admission as to liability: a The Plaintiff is to pay the sum of $870.65 into Court. b Upon the payment of the said sum into Court the Defendant shall release the vehicle the subject of these proceedings into the care, custody and control of the Plaintiff or her agent's [sic]." 5 There was at one stage some debate about the nature and effect of these orders and particularly whether compliance with them meant that any possessory lien over the vehicle was lost by the vehicle being delivered into the plaintiff's possession pursuant to the orders. However, during the course of argument Mr Condon, of counsel for the defendant, conceded that the orders were made on an interlocutory basis. It seems that this concession is correct and necessary, in view of not only the terms of the orders themselves, which contemplate the continuation of the proceedings in relation to the two prayers which I have set out, but by reference to the correspondence which is in evidence leading to the making of those orders. It is to be quite specifically noted that in the proceedings there is no claim for damages by the plaintiff, nor is there any cross claim by the defendant for the cost of towing, which is apparently some $870. 6 The defendant's motion filed on 16 May 2007 claims an order that the proceedings be transferred to the Small Claims Division of the Local Court at Sydney. The grounds on which this order has been pressed for have changed during the course of the argument before me. At one stage it was put that the lien had been lost on the delivery up of the vehicle under the orders of 19 March 2007 and that in those circumstances there was no room for declaratory relief, since the making of a declaration would determine only an hypothetical question, which is not permissible: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 - 582. 7 Mr Whittle, of Senior Counsel for the plaintiff, cited in answer Shafto v Bolckow & Co (1887) 34 ChD 725 and Thornhill v Weeks [1913] 1 Ch 438. However, those cases are not to the point, since they refer to rights over land which were undoubtedly ongoing whereas, if the lien over a particular car, as in this case, had been given up, there would be no basis for a declaration. However, bearing in mind that it is now conceded that the orders of 19 March 2007 were interlocutory, it is quite plain that possession was not given up unconditionally, but without prejudice as part of an interlocutory regime to maintain the situation pending the determination of the substantive questions in the proceedings. There was therefore no destruction of the lien. 8 The defendant's solicitor, Mr Tannous, did swear in his affidavit in support of the application that: "The defendant no longer asserts a lien over the vehicle ... and therefore ... prayer 1 of the Summons will have no effect and therefore such a declaration would not be made by this honourable Court."

However, when I challenged Mr Condon as to whether or not the defendant would therefore consent to the making of a declaration of non entitlement to a lien pursuant to prayer 1 or would consent to judgment for specific delivery pursuant to prayer 2, he took instructions and announced that the defendant would not consent to those orders. It seems to me under those circumstances it is quite clear that the proceedings continue to be on foot in relation to the principal relief. 9 It was said at another stage that the reason that the Small Claims Division of the Local Court had been nominated in the prayer in the notice of motion was that it was the defendant's desire to file a cross claim for the $870, that that cross claim would become the sole subject matter of the proceedings and that that claim was well within the jurisdiction of the Small Claims Division of the Local Court. However, as I have already said, there is no such cross claim current and the substantive claims in the proceedings are still outstanding. 10 It was put to me by Mr Condon at one stage that the jurisdiction of the Local Court in relation to these proceedings was conferred by s 93 of the CPA. That, however, is not correct. That is the section which presently embodies the modification of the common law rule under which the only judgment that could be given in an action for detention of goods was the judgment in alternative form for the return of the goods or the payment of their value at the defendant's election. Section 93 provides that in any court which has jurisdiction in an action for the detention of goods the judgment may be in the form of an order for specific delivery. 11 The jurisdiction of the Local Court in a matter such as the present arises from s 65 of the Local Courts Act 1982. Section 65(1)(a) confers on the Local Court sitting in its General Division jurisdiction to hear and determine proceedings to recover detained goods if the value of the goods is less than or equal to the jurisdictional limit of the Court sitting in that Division. That limit is at present $60,000. 12 One matter which has been pointed out by the plaintiff which is itself fatal to this application is that there is no evidence as to the value of the motor vehicle involved, so as to show that the proceedings are indeed within the jurisdiction of the Local Court. As well as this being a matter of common sense, s 146(1)(a) of the CPA specifically requires as a precondition of transfer the satisfaction of the Supreme Court that the proceedings could properly have been commenced in the Local Court. The vehicle is described as a 1997 Nissan Pulsar hatchback sedan. One might well guess that the value of such a car would be less than $60,000, but the Court must not guess at or speculate as to its value. There is no evidence that the value of the vehicle and therefore the subject matter of the proceedings is less than $60,000. On that basis alone the Court will not on this motion order that the proceedings be transferred to the Local Court. 13 Mr Whittle also put an argument that in any event if a transfer were otherwise indicated, the matter should be retained in the Supreme Court so that there may be an authoritative decision of interest to the insurance industry, the towing industry and the community generally that a possessory lien exists over a towed vehicle. There was a deal of debate as to whether this was a suitable vehicle for the determination of that question. Whether it will prove so or not will depend on the future course of these proceedings. But, in any event as I have indicated, the motion fails and the proceedings will remain in this Court to continue on the issues raised by the prayer for a declaration and the prayer for final judgment for delivery of the vehicle. 14 I should add that an additional, although perhaps not insuperable, complication that would arise in the transfer of these proceedings is the subsistence of interlocutory relief in this Court and the fact that there is $870 paid into this Court as part of that relief. 15 The result of the foregoing is that the defendant's motion will be dismissed with costs.

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