Volvo Finance Australia Pty Limited v Waterfront Enterprises Pty. Ltd. - [2020] NSWSC 262 - NSWSC 2019 case summary — Zoe

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Volvo Finance Australia Pty Limited v Waterfront Enterprises Pty. Ltd.

[2020] NSWSC 262

Supreme Court of NSW|2019-12-18|Before: Cavanagh J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-12-18

Before

Cavanagh J

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

[1]

Introduction

On or about 22 December 2017, five Mack trucks and associated trailers owned by a commercial trucking company, Waterfront Enterprises Pty Ltd ("Waterfront Enterprises"), disappeared.
At the time, Waterfront Enterprises was in default under five separate chattel mortgages entered into with Volvo Finance Australia Pty Limited ("the plaintiff") in 2016 over each of the vehicles. The plaintiff provides finance to purchasers in respect of different types of commercial trucks and trailers offered for sale through dealerships in New South Wales.
On 31 March 2016, 1 September 2016, 1 December 2016 and 7 December 2016, the plaintiff registered a security interest on the Personal Property Securities Register with respect to each of the five trucks and trailers pursuant to the Personal Property Securities Act 2009 (Cth).
In this judgment, the five Mack trucks including their associated trailers will be identified as Vehicles 1 to 5, respectively, unless it is necessary to describe them more specifically, such as trucks or trailers.
Waterfront Enterprises ceased making payments under the chattel mortgages and on 4 August 2017, the plaintiff issued notices of default in accordance with each of the mortgages. The plaintiff gave notice to Waterfront Enterprises that if it failed to pay the money owing, the plaintiff would terminate the chattel mortgages and repossess the goods.
As emerged during the hearing, another company apparently related to Waterfront Enterprises, Quarry Transport, made some payments to the plaintiff for a brief period subsequent to the issue of the default notices and the plaintiff did not take steps to repossess the five vehicles at all in the latter part of 2017.
Waterfront Enterprises was ultimately placed into liquidation. No payments under the mortgages were made subsequent to the payments by Quarry Transport in 2017.
The principal of Waterfront Enterprises, Jason Spencer, also disappeared in the sense that he has not been able to be located for the purposes of these proceedings and made no attempt to pay monies owing on the mortgages or deliver the trucks and trailers to the plaintiff. There is evidence of one conversation with him in 2018 regarding the vehicles but he made it plain that he was not to be contacted again.

[4]

Applicable principles

In order to establish its cause of action in conversion, the plaintiff must establish that the defendant intentionally dealt with the vehicles in a way that was inconsistent with or repugnant to the rights of the plaintiff to immediate possession of the vehicles. The dealing might include intentionally retaining possession or dominion over the vehicles, contrary to the plaintiff's entitlement to the return of the vehicles.
The essential elements of the tort of conversion were explained in Bunnings Group Limited v CHEP Australia Limited (2011) 82 NSWLR 420; [2011] NSWCA 342 at [124]-[127] ("Bunnings (No 2)") as follows: "The essential elements, or basic features, involve an intentional act or dealing with goods inconsistent with or repugnant to the rights of the owner, including possession and any right to possession. Such an act or dealing will amount to such an infringement of the possessory or proprietary rights of the owner if it is an intended act of dominion or assertion of rights over the goods: see generally Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; 74 CLR 204 at 217-221 (Latham CJ), 228-230 (Dixon J, with whose statements of principle Starke J agreed at 221), 234-235 (McTiernan J), and 239-244 (Williams J); and Kuwait Airways at 1084 [39]-[42] (Lord Nicholls of Birkenhead), 1104 [119] (Lord Steyn) and 1106 [129] (Lord Hoffmann). The tort is one of strict liability and thus a mental element in knowing that a wrong is being committed is not required. Nevertheless, intention is not irrelevant. The act or dealing in question must be intentional; further, the intention must be the exercise of such dominion as is repugnant to the rights of the owner … It is important to appreciate that the intention as to the act or dealing should be assessed in the real (here commercial) context in which the act takes place. To paraphrase the words of Thesiger LJ in Hiort v London & North Western Railway Co (1878-1879) LR 4 Ex D 188 at 199, conversion has been surrounded in technicality, but the courts will attempt to apply commonsense in its application. That someone has a right to possession of goods does not mean that he or she is at all times calling for the possession or return of the goods. …"
An entitlement to sue in conversion is not based merely on ownership. A person who has an immediate right to possession of the chattel at the time of the act of conversion may also sue in conversion: Wertheim v Cheel (1885) 11 VLR 107; Bolwell Fibreglass Pty Ltd v Foley [1984] VR 97; Wood v Mason Bros Ltd (1892) 13 LR (NSW) 66.
Conversion must be distinguished from trespass. The taking or using of a chattel without authority may be a trespass. Something more is required for there to be a conversion. That is, there must be an intentional act or dealing with goods inconsistent with or repugnant to the other party's right to immediate possession.
It is notable that in Penfolds Wines Pty Ltd v Elliot (1946) 74 CLR 204 at 229; [1946] HCA 46, Dixon J, when giving examples of a dealing with a chattel in a manner repugnant to the immediate right of possession, made reference to "an appropriation evidenced by refusal to deliver". In Bunnings (No. 2) at [130], Allsop P observed, "[i]t is clear that taking and asportation may be a conversion".
Professor Fleming states: "For possession or withholding to be conversion, it must be in some way in defiance of the claimant's rights. Normally (though not invariably), this is shown by evidence that the claimant demanded the chattel and that the defendant either refused to comply, or imposed conditions he was not entitled to, as by unlawfully making delivery dependent on payment". [4] (Footnotes omitted.)
It is sometimes difficult to distinguish between conversion and detinue. In many cases, it may not be necessary to do so. Whilst the essence of conversion is the intentional performance of an act of dominion inconsistent with the rights of the owner (or, in this case, the party entitled to immediate possession), "the essence of detinue lies in a refusal to deliver up goods to a person having the immediate right to the possession of those goods": CHEP Australia Ltd v Bunnings Group Ltd [2010] NSWSC 301 at [183] (McDougall J) ("Bunnings (No 1)").
The wrongful detention of a chattel after a demand has been made by a person with the immediate right to possession will establish the tort of detinue. [5]
There is an issue in this matter as to whether the plaintiff can succeed without establishing that it made a specific demand for the return of the vehicles at some specific time. In Bunnings (No 1) at [184], McDougall J accepted that in some circumstances, even though a bailee remains in possession of goods, it may not be necessary to show a demand for the goods before detinue can be established. His Honour referred to the decision of the Appellate Division of the Supreme Court of Alberta in Baud Corporation NV v Brook (1970) 40 DLR (3d) 418 ("Baud Corp"), in which McDermid JA made the following statement at 422-3: "I am of the opinion where the defence of a defendant shows clearly that if a demand has been made on him for possession of the property, he would have refused delivery, then it should no longer be a defence to an action in detinue that no such demand was made. To require such a formality in circumstances that show it would have been futile is empty of any merit, and is reminiscent of the discarded formalities of the past century."
His Honour also referred to the comments made in obiter by Hodgson JA in Brambles Australia Ltd t/as CHEP Australia v Tatale Pty Ltd [2004] NSWCA 232; (2004) Aust Torts Reports 81-759 at [40], which might tend to add support to the proposition that if a plaintiff could show that the making of a demand would be an exercise in futility, that would suffice.
However, on appeal, the Court preferred to determine the outcome on the basis that a demand was made, noting that, for the purposes of their detinue claim, the respondents accepted the necessity of such a demand in the circumstances: Bunnings (No 2) at [165]. Allsop P (Giles and Macfarlan JJA agreeing) also expressed some doubt about the primary judge's findings regarding the futility of a demand insofar as they related to the period prior to when the specific demand was made: Bunnings (No 2) at [92].
This is a point on which the torts of conversion and detinue might be distinguished. If the essence of detinue lies in the refusal to deliver up goods to the person entitled to possession, then the cause of action is not complete until there has been that refusal. The plaintiff must ordinarily prove that the defendant unequivocally refused to comply with a demand for the return of the goods. Proving only that the defendant would not have returned the goods even if a demand had been made, leaves open the question as to when the cause of action crystallises. Perhaps both the formalities required to establish the tort and its similarity with conversion offers some indication of why the tort of detinue was abolished in the UK by force of the Torts (Interference with Goods) Act 1977 (UK).
The essence of conversion is dealing with goods in a manner inconsistent with the right to immediate possession. The cause of action accrues at the time of the conversion. It seems to me that in assessing whether the cause of action is established in the commercial circumstances in which the parties find themselves, the Court may consider whether, even if a specific demand has not been made, such a demand would have been an exercise in futility; that is, the defendant by his conduct has demonstrated that the goods would not have been returned.
The vehicles did not end up in bushland or abandoned by the side of the road two years later through inadvertence or negligence. Someone took the vehicles and hid them. It must be that such conduct was intentional and that the purpose of doing so was to deprive the plaintiff or anyone with an interest in them from having them.
The defendant would not be liable to the plaintiff if the plaintiff establishes only that the defendant knew the whereabouts of the vehicles and refused to disclose it to the plaintiff. The plaintiff must establish that the defendant dealt with the vehicles and that he had control, possession or dominion over them. The issue must be approached in a common sense way having regard to the commercial relationship between the parties. The fact that the vehicles were found on land owned by someone else does not preclude a finding that the defendant had sufficient control or possession of the vehicles at the relevant time.
Even on the defendant's version, he deliberately removed Vehicle 5, kept it at his storage yard, refused to tell the plaintiff where it was and refused to give it back. At least in respect of Vehicle 5, if he, rather than Truck Tech, had possession of Vehicle 5 and he had no entitlement to keep it, then he has dealt with Vehicle 5 in a manner repugnant to the rights of the plaintiff.

[5]

The evidence

The central issue in the proceedings is what happened to the vehicles between 22 December 2017 and the dates on which each of the vehicles was recovered in 2018 and 2019.
There are a number of facts which are not or could not be the subject of dispute including: 1. the vehicles were at the Truck Tech premises on 22 December 2017; 2. in January 2018, the defendant admitted that he (he says Truck Tech ) still had Vehicle 5; 3. the Dynafleet records in respect of each of the three vehicles in which a functioning Dynafleet system was fitted end on 22 December 2017; 4. at least by early January, the vehicles were not at the Truck Tech premises, as inquiries confirmed that they were not there; 5. On 28 February 2018, the defendant sent an email to the plaintiff stating that he had the Superliner and dog trailer (Vehicle 5) in his storage yard; that he would be charging $100 per day storage; and that he had signed terms and conditions allowing him to keep the vehicle until his account of $173,848.66 was paid. 6. On 12 April 2018, during a conversation with representatives of the plaintiff on 12 April 2018, which was recorded, the defendant said he had all five vehicles in his possession; 7. the defendant shared photos of at least four vehicles with the plaintiff's recovery agent, Mr Ryan, in May 2018. It is apparent from the photos that the vehicles were in bushland when the photos were taken, inferentially in mid-2018; 8. the defendant delivered Vehicle 5 to the plaintiff in August 2018, subsequent to orders of the Court being served on him; 9. three of the vehicles were found in bushland in Wilton by the plaintiff's agent, Mr Ryan, in November 2018.
The evidence about what happened to the vehicles falls into different categories about which I have formed differing views as to reliability. Those categories include: 1. objective evidence such as the Dynafleet reports and the fact that Vehicles 1, 3 (without its trailer) and 4 were recovered in bushland at Wilton on 6 November 2018, as well as contemporaneous documents or records which are not the subject of dispute; 2. photographic evidence, the interpretation and effect of which is in dispute; 3. statements made by the plaintiff's witnesses as to their attempts at recovering the vehicles over the periods that the vehicles were missing, which are the subject of limited dispute; and 4. statements made by the witnesses, including the defendant, as to conversations with the defendant about the vehicles, only some of which are in dispute.
I am conscious that the plaintiff bears the onus of proof and proving that a witness is not telling the truth about a matter does not prove, without more, the opposite of what the witness said. There is an issue as to whether the plaintiff has established that the defendant had such control or possession of the vehicles so as to establish the conversion or detinue.
It is also appropriate to note the observations of Hodgson JA in Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [14]-[15]: "14. There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw (1938) 169 CLR 638 at 642-3). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731. 15. In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf. ALJ at 732-3, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp. 63 at 65 (98 ER 969 at 970): 'All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.' …"
The plaintiff's assertion that the defendant had such control or dominion or possession of the five vehicles at all relevant times is said to be established through a combination of a number of matters of evidence, which, it is said, would lead me to be satisfied that the elements of the causes of action are satisfied.
It important to have regard to the probabilities and consider whether the material is sufficient to enable a reasonable conclusion to be drawn. In doing so, it is permissible to have regard to the capacity or ability of the parties to call evidence on the matters in dispute.
Very little of the plaintiff's evidence was the subject of a challenge. Only Mr Ryan and Mr Murphy were required for cross-examination. Whilst there was a challenge to their evidence as to the conversations with the defendant, much of what they said was not the subject of any challenge.
Some witnesses who provided relevant evidence were not required for cross-examination.
Unsurprisingly, in circumstances in which the defendant is recorded as saying he had possession of the five vehicles but he is maintaining in these proceedings that he never had possession of Vehicles 1 to 4 after 22 December 2017, there is some dispute as to the terms of the defendant's conversations with Mr Ryan and Mr Murphy.

[6]

The defendant's version of events

As the vehicles were known or agreed to be last at the defendant's business premises prior to their disappearance, it is appropriate to set out the defendant's version as to his involvement in the relevant events.
The defendant's version is as follows: 1. During 2017, Waterfront Enterprises regularly utilised the services of Truck Tech for servicing and maintenance of the five vehicles. 2. The nature and extent of the servicing and maintenance is evidenced by the Truck Tech invoices. [6] 3. By December 2017 there was a large amount outstanding to Truck Tech, although Waterfront Enterprises had paid some of the invoices. The amount outstanding was about $173,000. [7] 4. At some point prior to 22 December 2017, the defendant had contacted Mr Spencer and suggested that he bring the five vehicles, that is, each of the Mack trucks and trailers, to Truck Tech so that Truck Tech could service each and at the same time they could talk about the outstanding account. 5. On 22 December 2017, Mr Spencer's drivers brought the five vehicles (that is, all of the five trucks and five trailers) to the premises of Truck Tech at Mitchell Road, Moorebank. 6. As Mr Spencer did not personally bring the vehicles to Truck Tech, the defendant contacted him and organised to meet him at the Truck Tech premises the next day, being 23 December 2017. 7. On 23 December 2017, the defendant attended at his premises and met Mr Spencer and they had a discussion about the outstanding account. 8. The defendant said to Mr Spencer that he was going to keep the vehicles by way of a repairer's lien until his account was paid. 9. Mr Spencer disputed that he could do this. 10. The defendant then drove Vehicle 5 away from the Truck Tech premises to a friend's storage yard at Revesby, having ensured that his premises were locked with the other vehicles inside. He says that he did so as it was close to his Moorebank premises and he could go back and get the other vehicles. He says that he subsequently moved Vehicle 5 to his storage yard at Mascot. 11. On his return to his own premises on that same day (that is, in the time it would take to get to Revesby and back), he observed that the gate of the premises was damaged and that the four other vehicles had gone. 12. Truck Tech then kept Vehicle 5 either in its storage or a friend's yard at all times until it was delivered to the plaintiff in August 2018. 13. The Truck Tech business was closed for the Christmas break. 14. After he returned from his Christmas holidays, he was contacted by Mr Ryan who told him that he was repossessing some trucks owned by Justin and Jason Spencer for Volvo Finance and that he understood that the defendant had the trucks before Christmas. 15. The defendant said to Mr Ryan that he had told Justin Spencer to bring the trucks in for service and that the Spencers and the company owed him money. They took four of the five trucks back but he still had the five axle truck (Vehicle 5). 16. Thereafter, the defendant contacted Justin Spencer who told him that he didn't have the trucks but they were with the Crazy Iraqi and that he would not see the trucks if not paid the money he was owed and that the people have asked George Moussari to collect the money. He then contacted George Moussari who told him that he had the trucks and he needed $150,000 to let them go. 17. On 12 April 2018, he had a conversation with Mr Ryan over the phone and he said that he knew where the trucks were and that he still had one of the trucks. [8] 18. He then met Mr Ryan on 17 April 2018 and had a conversation during which he said he informed Mr Ryan that the trucks were apparently with a guy named as the Crazy Iraqi and that the Spencer brothers owed him money and the Crazy Iraqi wanted $150,000 for what he was owed and he wanted $170,000 for what he was owed. He then handed Mr Ryan a typed sheet of paper with alternate offers. He says he subsequently contacted Mr Moussari about the conversation with Mr Ryan. 19. Then, on 22 May 2018, he had a further conversation with Mr Ryan. He informed Mr Ryan that he had spoken to the guy who had the trucks and had some photos of the trucks that he asked for. 20. Mr Ryan said that Volvo might give him two or three Volvo prime movers that Volvo could not sell and he could get his money that way. He subsequently had no dealings with Mr Ryan or Mr Moussari (that is, after 22 May 2018). 21. After being served with the summons and affidavits he sought legal advice and then arranged a handover of Vehicle 5 to Mr Ryan. He says it was in the same condition as he took possession of it, as it had been in storage since December 2017 and only needed a battery charge to enable it to be started.
For reasons which will become apparent, I do not accept the defendant's version of events. It is contrary to objective evidence. It is in part implausible and improbable. It is contrary to statements made by the defendant in 2018. It is inconsistent with other evidence which has not been the subject of any challenge (not that I must accept the other evidence merely because it was not the subject of challenge).
His evidence as to conversations about the vehicles is inconsistent with the evidence of Mr Ryan and Mr Murphy on behalf of the plaintiff. His evidence as to the conversation on 12 April 2017, which was recorded, is inconsistent with the agreed transcript of that conversation.

[7]

Objective evidence

The Dynafleet system records for trucks 2, 4 and 5 for the period from 20 December 2017 to 22 December 2017 show that the trucks were being driven, presumably for Waterfront Enterprises' commercial purposes, in various places in New South Wales until they all ended up at Moorebank on 22 December 2017, after which time there is no record of any further movement.
The only available inference is that the Dynafleet system was disconnected in each of the trucks fitted with a functioning system before any of those three trucks fitted was driven again. This is significant because the defendant says that he drove Vehicle 5 on 23 December 2017. It was fitted with a working Dynafleet system until it was disconnected.
On the defendant's version, there is no logical explanation for anyone on behalf of Waterfront Enterprises disconnecting the Dynafleet systems on delivery to the Truck Tech premises on 22 December 2017. Indeed if, as the defendant asserts, Mr Spencer agreed to deliver all five vehicles to his premises for servicing on the day that his premises were shutting down for Christmas and he only then informed Mr Spencer that he would be keeping the vehicles as some sort of lien, it would be quite contrary to Mr Spencer's interests to have disconnected the Dynafleet system on 22 December.
On the defendant's version, he took Vehicle 5 without Mr Spencer's consent. There would be no reason why Mr Spencer would have disconnected the system in Vehicle 5 if he was just delivering it for service.
Further, as I will comment on later in this judgment, the evidence of one of the truck drivers (Mr Auld) who delivered Vehicle 2 on 22 December 2017 is consistent with the Dynafleet records in an important way.
There are toll records for Vehicles 1, 2 and 5. There is a charge for Vehicle 1 on the M7 at Richmond Road at 3.33pm. That may be up to one hour away from Moorebank. There was no working Dynafleet system on Vehicle 1. As it is agreed that it was delivered to Truck Tech on 22 December 2017, it follows that Vehicle 1 must have arrived at Truck Tech after 4pm on 22 December, being the day it was closing for the Christmas break. It is surprising that it was being brought in for service after the premises had closed for Christmas.
On 2 or 3 January 2018, Mr Ryan, accompanied by Jarrod Smith, a Mack salesman, attended outside the Truck Tech premises and looked for the vehicles. The premises were closed and locked up. The vehicles were not there. I accept that, whatever happened to them, they had been removed from the Truck Tech premises by 2 or 3 January 2018.
Vehicles 1 and 4 and the truck of Vehicle 3 were found on properties at Wilton on 5 November 2018. The trailer to Vehicle 3 was missing and the truck was in poor condition. Mr Ryan took photos of the vehicles in the bushland.
On 22 May 2018, the defendant showed photos of at least four of the vehicles to Mr Ryan. Those photos were on the defendant's phone. He subsequently sent the photos to Mr Ryan's phone. Those photos are exhibited to Mr Ryan's affidavit of 18 October 2019.
In para 56 of his affidavit of 18 October 2019, Mr Ryan says: "I recall I observed the rego numbers of the trucks in the photographs matched the rego numbers of the five missing trucks. The trucks appeared to be in good condition considering they were located in what appeared to be in bushland made up of trees and a sandy/soil base."
There are only four photographs being of Vehicles 1, 2, 3 and 4, exhibited to his affidavit.
In para 28 of his affidavit of 30 August 2019, the defendant says with reference to his conversation with Mr Ryan on 22 May: "I have spoken to the guy who has the trucks and I have some photos of the trucks that you asked for."
There is a difference between Mr Ryan's evidence as to what the defendant said in respect of the photos and the defendant's evidence. Mr Ryan's statement that the defendant provided photos to him of all five vehicles was not taken up with Mr Ryan during cross-examination. The circumstances in which the photos were provided to Mr Ryan were taken up with the defendant in cross-examination. The defendant said that the photos had been sent to him. He denied stating (as Mr Ryan said he had) that the trucks were parked about 60 to 90 minutes' drive from the airport. [9] He said he had no idea where the trucks were.
There can be no dispute that in May 2018 the defendant provided photos of at least four of the vehicles to Mr Ryan and the vehicles were situated in sandy soil in bushland. Bearing in mind that, at that time, the defendant was asserting that he had Vehicle 5, but that the Crazy Iraqi or Mr Moussari had the other vehicles, it would be unlikely that the defendant would have provided photographs of all five vehicles in bushland. I take Mr Ryan's statement that he received photographs of all five vehicles (rather than four) as being an error. The photographs speak for themselves.

[8]

The other photographic evidence

It is not possible to determine, merely from a comparison of the photographs taken by Mr Ryan in November 2018 when he recovered the vehicles with the photographs provided to Mr Ryan by the defendant in May 2018, that the vehicles were necessarily in the same spot in May and November 2018. All that can really be accepted is that both sets of photos show the vehicles in bushland which looks similar.
Of more significance are photographs taken from the Nearmap website (being a satellite imaging service) annexed to the affidavit of Bára Karlsdóttir dated 11 March 2019, taken on 8 February and 26 July 2018.
The aerial photos taken on 8 February 2018 of the property at 410 Wilton Park Road show four blue and purple trucks and one white truck with trailers attached. One of the trucks the subject of these proceedings was white. The other four were described as being of a distinctive purple colour.
Aerial photos taken of the same spot on 26 July 2018 show four dark-coloured trucks. Two of the trucks do not have a trailer attached. There is no white truck shown on the property at that time.
As part of his searches and enquiries, Mr Ryan had conducted aerial searches but had not been permitted to fly over the Wilton property because of airspace restrictions. Only after he obtained specific permission was he able to charter a helicopter to fly over the area around the Wilton property where the vehicles were found.
Further, Mr Ryan had spent considerable time driving around looking for the vehicles and checking the Truck Tech premises and other yards, as well as advertising and making other inquiries. His enquiries did not reveal the whereabouts of the vehicles until they were spotted during the flyover of the Wilton property in November 2018. Further, his enquiries did not suggest that some other transport company might also have been missing four purple Mack trucks and one white truck in 2018 (such as to suggest that the trucks and trailers subsequently identified in the bushland in satellite imaging taken in February 2018 might have belonged to some other unidentified person).
Caution must be exercised in interpreting photographic evidence, particularly when there is no admission by the other party as to what is shown in the photos.
Generally, aerial photos of trucks without other identifying features such as registration numbers being shown would not permit any finding as to the identity of the trucks.
Further, the defendant says that he had Vehicle 5 (which was purple), which he kept at a storage yard throughout the time that it was missing.
If I accept that statement, the four purple trucks could not have been together in bushland at the time of the aerial photos.
However, there is other evidence which assists in drawing a conclusion about the photos: 1. Firstly, there are five vehicles shown in the February aerial photo. Whether or not they are the vehicles the subject of these proceedings, the vehicles shown in the aerial photos are valuable income producing assets. I would infer that they were sitting in bushland underneath a no-fly zone because they had been put there deliberately. 2. Each of the trucks shown in the photos has a trailer attached just as the five trucks did when they disappeared. 3. As stated by Mr Ryan, the purple colouring was distinctive or unusual. 4. Some of the vehicles were found in November 2018 at the site depicted in the aerial photos of February 2018. 5. The Nearmap aerial photos taken in February 2018 show four purple trucks and one white truck in the area where some of the vehicles the subject of these proceedings were discovered. 6. The Nearmap photos taken in July show only purple trucks in the area which must mean that the white truck shown in the February photos must have been moved from the spot. 7. The photos of the trucks provided to Mr Ryan by the defendant are of the vehicles in bushland somewhere.
Whilst the aerial photos do not show the registration numbers of the vehicles, if the vehicles are not the vehicles the subject of these proceedings then it must follow that in 2018 some other person owned four distinctive purple trucks and one white truck with trailers attached which happened to be sitting in bushland under a no-fly zone, not being used for a considerable period in 2018 on the same property and in the same vicinity as some of the vehicles the subject of these proceedings were ultimately located.
Such an alternative explanation for the coincidental presence of four other purple trucks and one white truck with trailers attached being in the same bushland area in the same timeframe as the vehicles the subject of these proceedings were missing is so farfetched that it can be dismissed.
I thus accept that the aerial photos of February show the presence of all five trucks and trailers in the bushland where two trucks and one trailer were ultimately located by Mr Ryan. A third truck was located on an adjoining property consistent with it having been moved between the time of the aerial photos of February and July 2018.
On that finding, the defendant's evidence that he had truck and trailer 5 in a storage yard during the period 23 December 2017 until he delivered it up cannot be accepted. The defendant had the capacity to call evidence (from his friend who was said to have owned the storage yard) to corroborate his assertion that Vehicle 5 was taken to the friend's yard on 23 December 2017. His friend would have known about it.
Further, this finding impacts on any finding as to what happened to the vehicles and whether the defendant had them in a sense sufficient to found a claim in conversion or detinue.

[9]

The plaintiff's evidence/statements

Mr Murphy is the Head of Operations for the plaintiff. His role is to oversee the financial accountability, recovery and remarketing of assets returned to the plaintiff either at the end of lease terms or on default. He is responsible for the administration of all contracts on behalf of the plaintiff.
He instructed Mr Ryan to pursue enquiries into the whereabouts of the vehicles and trailers and repossess the vehicles and trailers.
During the period prior to April 2018, Mr Murphy had a number of conversations with Mr Ryan as to the whereabouts of the vehicles and became concerned that the vehicles were missing. Four of the five vehicles were distinctive in colour and would have been easily identified if they had been driven on public roads.
On 12 April 2018, he listened to a conversation on the speakerphone in the presence of Dino Robazza between Mr Ryan and the defendant. He recorded the conversation. [10] The USB stick containing the recording was admitted and played in Court. The defendant agreed that he said that which he is heard on the recording saying.
Mr Murphy, Mr Robazza and Mr Ryan recounted the conversation in their affidavits. They gave slightly differing versions although the substance was the same. The defendant's version of the conversation as set out in his affidavit is quite different from the transcript of the actual conversation. I admitted the recording and transcript having regard to the provisions of the Surveillance Devices Act 2007 (NSW). As the recording was admitted, the versions put forward by the witnesses in their affidavits could only be relevant as to credit.
The important part of the conversation, the transcript of which was agreed to by the parties (leaving aside pleasantries), is as follows: RYAN: So mate um yeah I guess we're you know we're running around in circles a bit, doing my job sort of thing, and you know and I have been talking as we know, but I'm just trying to kind of get somewhere with this mate, like what's it going to take for us to get this truck back? SAAD: I'm going to give you some news, sort of what's happened, since the last time we spoke. RYAN: Yep. SAAD: I have the rest of the trucks in my possession. RYAN: Ok cool, thanks mate cheers. SAAD: They have, yea I've done what we needed to do and got the trucks in my possession. RYAN: Yep. SAAD: Um, I think its best that we just sort of organise a meeting to sit down. Um, well I think we obviously with probably Chris and and (sic) whoever it is to sit there and make a deal on what we need to do. RYAN: Yep. SAAD: Regarding to get my money as well. RYAN: Yep. SAAD: and what's been going on, um, or whatever we need pretty much to move forward with, I think that's sort of it, to be honest I've been that busy I haven't realistically had the time to um, if I didn't actually get my hands on the trucks, I probably wouldn't be too stressed about sorta showing but now sort of, I've got to be done with it, I've got that much going on and its just costing (sic) aggravation that's not required. … RYAN: Alright cool, so just so I can you know kind of keep my sort of records up to date and everything mate, so you got the five trucks? They're all still in good condition working condition mate there's nothing wrong with any of them? SAAD: Mate the five trucks, they all look like trucks, they are all there. RYAN: Nah look I haven't seen them mate since I done the inspections on them last year and I just gotta you know I guess from a risk position sort of thing just make sure that the trucks are still you know, they're not missing tipping bins and shits missing off them and stuff you know so SAAD: No, nah nothing, 5 complete trucks.
The defendant's version of that same conversation, as set out in his affidavit, is as follows: "On 12 April 2018, I had a conversation with Mr Ryan by telephone, using words to the following effect: I said: I know where the other trucks are. He said: Have you still got one of the trucks? I said: Yes. He said: What do we need to do to get the trucks? I said: I will talk to you about that when I see you."
Mr Murphy gave evidence of a meeting with the defendant and Mr Ryan on 17 April 2018. He again referred to a conversation with the defendant. Again, it was not suggested that the conversation did not take place, albeit he was challenged on his version. Mr Murphy recalled that conversation as follows: BS: So here is my offer Gentlemen. I get paid the full $173,000 I am owed plus a finder's fee of $150,000 plus GST to be paid into my solicitors trust account or I purchase all five trucks from you with clear title for $910,000 including GST. JR: $910,000 is well below market value mate. BS: Well I need to get paid. JR: But even still mate, that's ridiculously low. BS: That is my offer guys. CM: Barry, this is a lot of money you are requesting here, and I am not comfortable with paying such a large sum. What's the scope on working with these figures. BS: Nothing. CM: You requested this meeting Barry, on the premise of a negotiation, you present outrageous figures, then refuse to negotiate. This isn't a negotiation, this is extortion. BS: You call it what you want mate. I just want my money. CM: I want all the trucks back. BS: You pay the money, and you get them back. CM: You know if you are only controlling the Superliner as you now say, you can't claim a repairs lien for trucks you have released or are no longer in your control. BS: Yep, but I don't care. If you want your trucks back, I want all my money.
Mr Saad provided a document setting out the alternative offers at that meeting. [11]
Mr Murphy also deposed to the conversation regarding the Truck Tech accounts, the validity of which is in issue, as follows: JR: A lot of tyres on these invoices mate. BS: Well they went through a lot of tyres. JR: Interesting this truck had a gearbox replaced. BS: Which truck was that? JR: CJ13DI. A gearbox replacement on that truck would have been under warranty. Why would they have it done through you, when they could have done it at the VCV for free? BS: Don't ask me mate, we just did the work. JR: Barry mate, you need to give us some proof or evidence that these trucks are all still intact, and in the condition they were on the day you moved them from your yard. BS: You have my word, they are all in good condition, except one is missing a bumper. I'll get that sorted out. JR: We need more than your word mate. Can you bring them to us today? BS: No. JR: Can you take us to them today, right now, so we can see them, touch them, and make sure they are all good? BS: No chance. JR: Can you go and take some photos of them today and send them to us? BS: I haven't got time to do that. CM: You're not giving us much to work with. You make exorbitant demands for payment, yet won't provide any proof of life, or negotiate any reasonable outcome. I'm not sure what you want me to do here Barry. BS: There are just too many other people involved. JR: What do you mean too many other people involved? BS: My safety is at risk if I don't get paid the whole amount. I am not going to jeopardise the safety of my family. JR: What are you talking about? BS: The Crazy Iraqi is the guy who wants the $150,000 plus GST. I just want my money. JR: Who is the Crazy Iraqi? BS: Put it this way, you don't want to fuck with this guy. He know who you are, he knows who you are Chris, he knows what you guys are doing, and there is a price out on both of your heads. JR: Well clearly it isn't enough, or the guys out looking for us aren't any good, cause we are both pretty easy to find. We are right here. BS: Look guys, he wants the money and you won't get the trucks back till he gets paid. JR: But Barry mate, you told us you had the trucks, now someone else has them? BS: Look, it's complicated fellas.
The last conversation between Mr Murphy and the defendant took place on 13 June 2018 when the defendant rang Mr Murphy, and went relevantly as follows (according to Mr Murphy): BS: I need to talk to you about the money that is owing to me for the work I have done on these trucks. I need to get paid. ME: Mate, I've told you. I'm not paying your demand of $370,000.00. BS: It's actually $300,000.00 plus GST. ME: It doesn't matter. I'm not paying you. BS: Have you spoken to Jason at all? Do you even know what is going on? ME: Yes, I've spoken to him. Mate, at this stage we have exhausted all attempts to resolve this and we are not going anywhere. You are not willing to negotiate with us in any reasonable sense. The third party Crazy Iraqi who you claim apparently has the trucks now isn't willing either to negotiate any agreement to get these trucks back. … I still haven't seen the invoices for the work done to the trucks. BS: You haven't signed an NDA. ME: You haven't sent me one like I asked. Again, I don't give a shit what you charge Barry I just want the trucks back. BS: You're not getting your fucking trucks back. I'll take you to court over what I'm owed. I'll claim the whole $173,000. ME: Now Barry, do you really think that it is an intelligent way to spend your money? To go to court to claim a repairer's lien on trucks that you claim you don't control? You would be lucky to get $20,000. BS: You have created this massive fucking problem and you need to sort it out. Unless you pay me what I'm owed I will have the fucking trucks destroyed. ME: Barry, that's not reasonable. Destroying the trucks will not get an outcome for anyone, least of all you getting paid. This problem started between you and the Spencer's, and your issue should be with them, not with me. They owe you money, not Volvo, and you have created this bigger problem, by taking trucks and trying to extort us. The trucks were last in your yard on 22nd December, you know where they are right now and can resolve this immediately. You can stop all of this, by giving them back now. BS: What would you fucking know? I'm the one who is losing in all of this. ME: Rubbish. You want your money, but you're not prepared to negotiate on anything. BS: I'll see you in court and I'll tell the other guy to do what he likes with the fucking trucks. ME: Now Barry, destroying the trucks is not going to get anyone an outcome.
Mr Murphy was cross-examined as to his recollection of the 12 April conversation. It was put to him that his oral evidence as to the conversation was slightly different to the version in para 28 of his affidavit. That may be so, but bearing in mind that the recording was played to the defendant and the defendant admitted that that was his voice on the recording, there is no room for doubt as to what was actually said.
Mr Murphy was also cross-examined on the second conversation (of 17 April 2018) as follows: Q. Well, you had another conversation with Mr Saad at a cafe in Leichhardt a few days later didn't you? A. Yes, on the Tuesday. Q. What did Mr Saad say to you then about where the trucks were? A. That he had all five. Q. Is that what he said? A. Yes. Q. Tell his Honour what he said? A. What he said? Q. Yes. What did he say to you about the location of the trucks? A. He didn't. He wouldn't disclose the location. Q. What did he say to you about possession of the trucks? A. That four of them were in the possession of the Crazy Iraqi. Q. What else did he say about the Crazy Iraqi? A. That he was dangerous, and he's a guy not to be fucked with. He knew who Jason was, he knew who I was, he knew what we were doing. There was a price out on both of our respective heads. And it was too dangerous for him and his family to disclose the location of the trucks, and that he was not going to do so. Q. Where do I find any of that in your affidavit? A. I, I didn't get it in. I think some of it is in there. Q. You didn't get it in. Why didn't you get it in? A. I couldn't put the whole conversation in as best I could.
The cross-examination continued as to whether the defendant was saying that he only had Vehicle 5 or the other four vehicles as well, as follows: Q. Have a look halfway down page 44 of the court book page 10 of your affidavit where you say: "You know if you are only controlling the superliner as you now say you can't claim a repairs for trucks you have released or no longer in your control." Where did that come from? A. I knew from conversation he had with Jason that he was saying that he only had the superliner. Q. What conversations with Jason? A. Conversations with Jason. The other conversations he had with Jason. Q. When what was that reported to do? A. Throughout the course of the four months. Q. Where is that in your affidavit? A. It is not there. Q. No. A. No. Q. So you knew and he told you as at that meeting on 17 April that he only had vehicle five? A. No, he had all five. Q. No, he told you that he only had vehicle 5 didn't he? A. He claimed to only have vehicle 5. Q. He told you that he only had vehicle 5? A. But he makes a demand for all five.
The purpose and effect of the cross-examination was to challenge Mr Murphy's recollection of the 17 April 2018 conversation as to whether the defendant said he had in his possession all the vehicles or only Vehicle 5. There is some inconsistency in Mr Murphy's answers as to whether the defendant was saying that he had all five vehicles or only had Vehicle 5.
However, there is no distinction made between conversations in the questions and answers. That is, the defendant admits that he told Mr Ryan that he had Vehicle 5 in January. He then said (as recorded) that he was in possession of all five vehicles during the conversation of 12 April. There is a dispute as to when the defendant first raised the Crazy Iraqi with either Mr Murphy or Mr Ryan. The defendant says that it was in January. Mr Ryan and Mr Murphy say that it was on 17 April.
I take Mr Murphy's reference to the defendant claiming to have only Vehicle 5 to be a reference to what he had said earlier. This is clear as when it was put to Mr Murphy that the defendant said at the meeting on 17 April that he only had Vehicle 5, Mr Murphy responded saying "No he had all five".
Mr Murphy was challenging the defendant on what he was saying as the defendant had said in January that he only had one vehicle. Yet, in April, he was saying he had all five. According to Mr Murphy, the defendant only brought up the Crazy Iraqi after he was challenged on what he was saying and refused to show the vehicles to Mr Ryan. That is, on being pressed in the conversation of 17 April for proof that he had all five, reference was made to the Crazy Iraqi having them and wanting his money, as well as being dangerous and threatening.
Neither the Crazy Iraqi nor Mr Mousarri was mentioned during the conversation on 12 April. It is puzzling that the defendant would not have mentioned that two third parties were involved rather than assert that he had possession of all five vehicles.
Mr Murphy did agree in cross-examination that the defendant said that the Crazy Iraqi had them and he wanted his money but this could only be a reference to the conversation of 17 April.
Of course, part of the difficulty in making any findings about the defendant's statements is the inconsistency in his evidence. I am being asked to accept that the Crazy Iraqi had four of the vehicles, whilst at the same time being asked to accept that when the defendant said on 12 April 2017 that he had all five vehicles, he did not mean what he said.
I am being asked to accept that he kept Vehicle 5 in a storage yard (depending on which version he was giving) when other evidence suggests Vehicle 5 was in the bush with the other vehicles.

[10]

Mr Ryan

Mr Ryan appears to have performed various roles on behalf of the plaintiff, from original valuer to recovery agent and then repairer and purchaser of the vehicles.
On 26 July 2017, Mr Ryan prepared a report in relation to the five Mack truck and trailer vehicles for valuation purposes. The plaintiff sought to rely on the content of the report as evidence of the value of the Mack trucks and dog trailers. As set out in my separate judgment, I rejected the opinion as to value as it did not satisfy the requirements of expert opinion evidence but admitted other parts of that report.
Mr Ryan's primary role was to attempt repossession of the vehicles. He received instructions to do so on 3 January 2018. On 8 January 2018, he attended the Truck Tech premises and had a conversation with a person who identified himself as Mark Saad. He was cross-examined on this conversation on the basis that his invoice for work performed refers to him only working on this particular job on "Jan 10th, Wednesday till Friday." [12] Mr Ryan conceded that he was uncertain as to the precise dates on which he might have had conversations but he recalled that the conversations took place. [13]
Mr Ryan also detailed his extensive other inquiries to locate the vehicles including advertising, speaking to many people including truck drivers and others involved in the industry, receiving many calls on an anonymous basis, attending multiple sites, attending at the Waterfront Enterprises premises and observing the premises were locked and the missing vehicles were not there, speaking to a neighbour of the Spencers, attending at the last known residential address of Mr Jason Spencer, attempting to call the Spencer brothers on their mobile phones, attending at another address and driving around the roads in the Wilton and Picton areas looking for the vehicles and chartering helicopters to do aerial searches. Both he and Mr Murphy refer to threats being received during the process of inquiry.
Mr Ryan refers to a conversation that he had with the defendant at the Truck Tech premises on 17 January 2018. [14] It is relevantly to this effect: ME: I am here looking for the Spencer brothers' Macks. The story I have been told, is the Macks were here before Christmas, and I need to pick them up for Volvo Finance. BS: They are all gone. I don't know where they are. ME: The tracking devices showed that they were here, and something has happened to the tracking devices, and we cannot locate them now. BS: They (the Spencer brothers) owe me a lot of money, so if you find the trucks, let me know. ME: I think I know where the Spencers are, but I only care about the trucks. BS: Well I have the Superliner and 5 axle trailer. I took it, so I can have my invoice paid. ME: Well I am going to need to take that back. BS: Not until my invoice is paid, and you can pay for the storage fees in the meantime. ME: So, if you have that one, where are the other four? BS: When I was moving the Superliner, when I came back, the other four were gone. ME: What do you mean gone? BS: When I was moving the Superliner, people entered my premises, and they took possession of the four trucks and dogs. ME: Do you know who took them? BS: No. I was not there.
It is notable that, according to Mr Ryan, on first approach the defendant said that all the trucks were gone but then said that he had the Superliner and trailer. He did not say that the Spencers had taken the trucks, saying that he did not know who took them.
In his affidavit, the defendant says that he told Mr Ryan that the Spencers took them. [15]
Mr Ryan had minimal contact with the defendant during the period up until April 2018. The defendant contacted Mr Smith of Volvo directly on 28 February seeking to follow up about getting his money in exchange for Vehicle 5.
In cross-examination, Mr Ryan was asked to recall the conversation of 12 April. His recollection was slightly different to the actual conversation; in particular, Mr Ryan referred to the defendant suggesting that he had the other four vehicles in his control, when in fact the defendant said that he had all five vehicles in his possession.
Mr Ryan attended the meeting with Mr Murphy and the defendant on 17 April 2018. The defendant provided a written offer to the plaintiff, dated 17 April 2018, at that time, which is Exhibit M to Mr Ryan's affidavit of 18 October 2019.
This offer provided two options to the plaintiff: "Option one: Truck-Tech P/L receives full payment of outstanding debt $173,848.86 inclusive of GST Finder's fee of $150,000 + GST to be paid to Truck Tech P/L Option Two: Purchase of all 5 Truck and trailers listed below free of all encumbrances and free of all claims from your financial institution TRUCK REGO MAKE TRAILER MODEL PRICE INCL OF GST xx9-NM 2016 MACK TRIDENT xx3-ZJ 2016 SLOANE BUILT 4 AXLE DOG $190,000 xx1-DI 2016 MACK TRIDENT xx9-ZJ 2016 SLOANE BUILT 4 AXLE DOG $190,000 xx2-DI 2016 MACK TRIDENT xx0-ZJ 2016 SLOANE BUILT 4 AXLE DOG $190,000 xx3-DI 2016 MACK SUPERLINER xx1-ZJ 2016 SLOANE BUILT 5 AXLE DOG $200,000 xx5-XZ 2014 MACK TRIDENT xx996 2015 SLOANE BUILT 3 AXLE DOG $140,000

[11]

Acceptance of option one or option two will be in full settlement of Truck Tech P/L claims for unpaid services and Goods Storage charge will be waived if options one or two is agreed upon Payment terms to be agreed upon (Lawyers Trust account or Bank Cheque) Options only valid until 30/04/2018".

According to Mr Ryan, there followed a conversation about the offer in the following terms: "50. I recall whilst we were at the CAFÉ, Chris, Barry and myself had a conversation to the following effect: BS: So, Gentlemen, here's my offer. You pay me the full $173,000 I am owed plus a finder's fee of $150,000 plus GST, or I will buy all five trucks from you in the clear for $910,000 including GST. ME: $910,000 is well below their value mate. BS: So? I need to get paid. ME: But even still, that's too low. BS: That is my offer. CM: Barry, this is a lot of money and I'm not happy paying that much. How about we negotiate? BS: No. CM: No? You asked to meet us to negotiate, you give us ridiculous figures, then you don't want to negotiate. This isn't a negotiation, this is extortion. BS: Call it what you want. I just want my money. CM: I want all my trucks back. BS: Pay the money, and you can get them back. CM: If you only have the Superliner like you say, you can't claim a repairs lien for trucks you don't have. BS: Yeah, I don't care. You want your trucks; I want my money. CM: How about you show us some invoices for this work? BS: No, I won't show you, unless you sign an NDA. CM: Why do you want me to sign an NDA? BS: I compete against Volvo for work and I don't want my pricing disclosed. CM: I don't care what you charge but email me an NDA and I'll sign it. Can you show Jason the invoices? BS: Yes".
There was cross-examination on Mr Ryan's recollection of this conversation, again intended to suggest that the defendant was really only saying that he had one vehicle and that someone else had the other four vehicles with reference to the Crazy Iraqi and a Mr Moussari. A different version of the conversation was put, to the effect that the defendant was really saying that in order to get the trucks back, Mr Ryan would have to deal with the third party who had them. Mr Ryan responded by stating "something like that yes".
The effect of the cross-examination was that, whatever the defendant might have said about being in possession of all five vehicles, Mr Ryan agreed that the discussion ended up on the basis that the Crazy Iraqi had the four vehicles, and that the defendant was in a bind and just wanted to be paid.
There was a further conversation with the defendant on 22 May 2018 during which the issue of the photos arose. [16]
Mr Ryan also refers to a further part of the conversation on 22 May as follows: ME: Barry, I am here to do a job, and I need to get the trucks back. What do we need to do? BS: If you guys don't come up with the cash, I cannot guarantee the trucks won't be destroyed or sold. ME: What sort of a timeframe are you giving us here?
On 15 June 2018, Mr Ryan served the injunction and associated documents on the defendant. On 30 July 2018, he was instructed to attend and repossess Vehicle 5, being the Mack Superliner. On 1 August, after originally attending at Eastern Creek as instructed, he met the defendant at 3 Kelso Crescent, Moorebank where the Mack Superliner and trailer were situated.
The battery was flat. Shortly after arriving the defendant arrived and provided him with the keys. Mr Ryan noted that there was only a 100km difference between the odometer reading when he had last seen it on 26 July 2017 and the reading of 1 August 2018. Bearing in mind the distances travelled as recorded on the Dynafleet system just for 22 December, I doubt that the odometer was accurate.
On 5 November 2018, Mr Ryan obtained permission from Sydney Air Traffic Control to fly over a property known as 410 Wilton Road, Wilton, having been alerted to the possibility of the vehicles being there through the satellite imaging. He had not previously been permitted to fly over the area. On doing so, he sighted two of the four missing Mack trucks and one of the missing trailers. On subsequently arriving at the premises he met the property owner and had a conversation with him.
Mr Ryan identified the vehicles as the missing vehicles. He observed that they were in very poor condition and had not been used for a long period of time. They had been subject to a considerable amount of dust and rust. After being told by the property owner as to where another vehicle might be, he attended a different property in Wilton and identified another. Again, it was in extremely poor condition as the bonnet and bumper bar had been completely detached and it had quite a lot of damage around the cabin and bonnet.
I formed the view that Mr Ryan was doing his best to accurately recall events and conversations but was a little uncertain as to the precise dates on which the conversations might have taken place and the actual words spoken.
As he said, at the time of preparing his affidavit, he was doing his best to focus on what was said and when it was said. He did not disagree with many of the propositions put to him by the cross-examiner.
Mr Ryan saw his role as to deal with the defendant and negotiate an arrangement whereby the plaintiff would recover the vehicles without worrying too much about where they were or how they came to be where they were.
It is apparent that he was not prepared to take what the defendant said at face value but believed that the defendant was in a position to deliver up all five vehicles, whether the defendant actually had possession of all five vehicles or a third person had the vehicles.
I consider that both Mr Murphy and Mr Ryan were doing their best to give accurate evidence. They were not dogmatic about their recollections and seemed willing to accept that they could not be certain about some things (such as dates) and precise words used. They made concessions under cross-examination as to the effect of some statements.
The main areas of disagreement related to any statements made by the defendant which might have tended to suggest that he had the vehicles or knew where they were. As the conversation of 12 April was recorded their questioning related more to subsequent conversations. Mr Ryan made a number of concessions as to what the defendant said about the Crazy Iraqi and other persons but it remains necessary to have regard to the evidence as a whole including the chronology of events in determining the significance of the reference to the Crazy Iraqi in April 2018. The fact that Mr Ryan acknowledges that the defendant referred to the involvement of the Crazy Iraqi in April 2018 might be consistent with the version presented to this Court by the defendant but that is only one aspect of the evidence that must be considered.

[12]

Mr Auld

Late in the proceedings, the plaintiff served an affidavit of Michael John Auld affirmed on 9 December 2019. Mr Auld was not required for cross-examination.
Mr Auld worked for Justin Spencer at Quarry Transport. He received a text message from Justin Spencer on 21 December 2017 asking him to drive a truck and trailer (Vehicle 2) to 3 Kelso Crescent, Moorebank. When he arrived, Vehicles 1 and 3 were there.
As he got out of his truck, he was approached by the defendant (according to Mr Auld, this being on 22 December 2017) and the following conversation ensued: BS: Justin has gone broke and we have bought his company and his trucks off him. … Don't worry, you guys are going to work for us. … Justin said he was going to come up here for a meeting, but he has not showed up. … Why don't you guys come in and introduce yourself to everyone.
When he returned to work in January 2018, he had the following further conversation with the defendant: ME: So, what's happening? Where are the trucks? BS: Nah, we can't use them anymore. They have been placed on some do not drive list or whatever. ME: Really? Why? BS: There has been too many dramas with them, so I handed them back. ME: What about my hard hat, logbook, CDs and my dashcam. BS: Sorry, I gave them back to Justin.
Mr Auld also says that he had a conversation with George Saad, the defendant's brother, as follows: ME: Mate, what happened to those trucks? GS: Look, I handed them back to the finance company because I couldn't be bothered anymore to be honest with ya. But I'll tell you what, there is too many dramas with them.
The defendant denied the conversation.
I am uncertain of the connection between 3 Kelso Crescent and the premises in Mitchell Street where the parties agree the vehicles were on 22 December. Having said that, Kelso Crescent is where Mr Ryan went to pick up Vehicle 5 from the defendant in August 2018.
Further, the Dynafleet records provide objective evidence consistent with Mr Auld's evidence.
According to those records, truck 2 was driven to Kelso Crescent at 9.30am on 22 December (3 Kelso Crescent is adjacent to Newbridge Road which is referred to in the records). The records end there. Someone must have turned off the system at that point. Mr Auld says he met the defendant at 3 Kelso Crescent.
As the defendant has agreed that truck 2 was at Mitchell Road on 22 December it must be that the Dynafleet system in truck 2 was disconnected at Kelso Crescent before it was moved to Mitchell Road.
Further the Dynafleet records for truck 3 show it at Kelso Crescent around 9.30am before travelling on to Mitchell Road. This is consistent with Mr Auld's evidence that he saw Vehicle 3 at Kelso Crescent when he arrived around 9.30am. According to the Dynafleet records, Vehicle 3 was only moved to Mitchell Road at 12.30pm. It must follow that one of the drivers brought Vehicle 3 to Kelso Crescent initially where it remained for three hours before being moved to Mitchell Road. There is no evidence as to why this occurred. This casts a significant doubt on the defendant's version.
Mr Auld's evidence is important because its effect is to provide a completely different version as to why the vehicles were brought to the Mitchell Road premises and what happened to them. It is important because Mr Auld says that the defendant told him that he had bought the vehicles. Mr Auld's evidence is not based on what he might have believed or heard from others but, rather, on what he saw and what the defendant told him.
Although Mr Auld was not cross-examined, the substance of his conversation with the defendant was put to the defendant. The defendant denied that he said the words attributed to him.
The absence of cross-examination does not mandate acceptance of Mr Auld's evidence. It is contrary to the defendant's evidence but it is not inherently improbable or inconsistent with other objective evidence. To the contrary, it is consistent with objective evidence.

[13]

The defendant's evidence

The defendant relied on affidavits of 4 July 2018 and 30 August 2019. I have already referred to some of the defendant's evidence.
In his affidavit of 4 July 2018, he merely states that the affidavit filed on behalf of the plaintiff contained a number of omissions and inaccuracies and that he had only one 2016 Mack Superliner truck with dog trailer in his control. This affidavit was filed in response to the plaintiff's application for an urgent ex-parte injunction (which was granted).
In his second affidavit of 30 August 2019 (prepared prior to the adjourned hearing in September 2019), the defendant provides further details in respect of his dealings with the vehicles. He sets out his version of events (to which I have already referred).
He states that in late 2017 he was concerned about the money owed to Truck Tech by Waterfront Enterprises and he called Justin Spencer and asked him to bring the vehicles in so they could talk and do a service on the vehicles before Christmas. He then says that Mr Spencer's drivers drove the five trucks with trailers into the Truck Tech premises on 22 December 2017. Justin Spencer told him he would come and see him the next day. The defendant says that although the last workday was 22 December, he went into work the next day (23 December) to see Mr Spencer and they had a conversation to the effect that the defendant would be keeping the trucks if the account wasn't paid.
On the defendant's version, he first informed Mr Spencer that he would be keeping the vehicles on 23 December when they were both at the Truck Tech premises (which must have been closed for Christmas).
At the very least, if the defendant is to be believed, Mr Spencer must have been surprised when he turned up at the Truck Tech premises on 23 December to see that the premises were closed and thus his five vehicles were not being serviced as promised.
Mr Spencer is said to have responded that the defendant could not do that (that is, keep the vehicles) and that he would take his trucks. Mr Spencer then left the premises. The defendant says that he then drove Vehicle 5 to a friend's yard in Revesby so that Mr Spencer would not be able to take it. On his return later that day to the Truck Tech premises he saw that the front gate had been damaged and the trucks were no longer in the yard.
There was cross-examination of the defendant as to his inconsistent evidence about Vehicle 5. What happened to Vehicle 5 is important as the defendant says that he always had it and it was not with the other vehicles (as he did not have them).
His evidence as to Vehicle 5 was the subject of challenge. The fact that Vehicle 5 was kept in a friend's storage yard could have been the subject of corroboration.
He said he had a conversation over the telephone with Mr Spencer, who said words to the effect: "I took my trucks back". This and other parts of his affidavit were admitted not as to the truth of the contents of what was said.
According to Mr Ryan, the defendant told him in January 2018 that he did not know who had taken the other four trucks. It is difficult to accept that the defendant had forgotten what Mr Spencer had said when he told Mr Ryan in January that he did not know who took the trucks.
The defendant says that Truck Tech was closed over the Christmas holidays and he returned to work in the second week of January 2018. He deposes to the conversation with Mr Ryan on 17 January 2018 saying: "He subsequently came to Truck Tech's premises at Moorebank on 17 January 2018 and we had a conversation, using words to the following effect: He said: I'm from Viking Trucks. We are repossessing some trucks for Volvo Finance that were owned by Justin and Jason Spencer. I understand you had the trucks before Christmas. Why was that? I said: I told Justin Spencer to bring the trucks in for their annual service. The Spencers and their company owe me money for services and repairs. They took four of the five trucks back, but I've still got the five-axle truck. He said: If you know anyone who could help us get the other trucks or where they are there's a lot of money in it for them."
The defendant's evidence as to the conversation must be compared and contrasted with that of Mr Ryan.
In para 17 of his affidavit, the defendant states: "As at 17 January 2018, I had the Mack 2016 Superliner with the five-axle dog tipping trailer stored in a friend's yard in Mascot. I believed that I was entitled to possession of the truck by virtue of my repairer's lien, which existed because the Spencer's company, Waterfront Enterprises Pty Ltd, owed me about $175,000."
He said in oral evidence that his friend's yard was at Revesby and it was his yard at Mascot. It is difficult to understand how he could be confused as to the address of his own storage yard or where he took Vehicle 5.
I have already referred to the inconsistency between the defendant's version of the conversation of 12 April and the accepted transcript of the conversation (see [97]-[98] above).
The defendant says that on 12 April he only said that he knew where the trucks were. In fact, he said that he had the five trucks in his possession.
The point of the defendant's evidence was really to attempt to establish that he only ever said that he had Vehicle 5; that he specifically informed Mr Ryan about the "Crazy Iraqi"; and that he told Mr Ryan that he knew where the other trucks were but he did not have them.
There is a significant problem with the defendant's evidence as to the conversation of 12 April as it is not consistent with the conversation as recorded.
His evidence as to the 17 April 2018 conversation was also short as follows: "When we met on 17 April, we had a conversation using words to the following effect: I said: "The Trucks are apparently with a guy known as the 'Crazy Iraqi'. The Spencer brothers owe this guy money. You are offering a finder's fee for the trucks. I just want to be paid what I am owed. The 'Crazy Iraqi' wants $150,000 for what he is owed and I want $170,000 for what the Spencers owe me."
The defendant was cross-examined as to the differences between his evidence and the evidence of Mr Murphy and Mr Ryan. Any suggestion that he had possession of the five vehicles was rejected. He said he did not know the Crazy Iraqi but was really acting on behalf of Mr Moussari. He said that the finder's fee was to go to the Crazy Iraqi and he rejected Mr Ryan's recollection of the conversation surrounding the written and oral offers.
He maintained that the offer was being put at least in part on behalf of others.
He claimed not to remember the names of employees he employed in 2018. He said that Mr Moussari was well known in the industry, albeit that Mr Ryan was unable to unearth any record of such a person.
He said that the photos on his phone which he provided to Mr Ryan had been sent to him by Mr Moussari. Mr Ryan's version of the conversation about the photos is different.
He rejected any statements made by other witnesses that might have tended to suggest either that he had the vehicles or that he knew where they were. He denied threatening to destroy the trucks. He denied knowing that the plaintiff was seeking to have the trucks returned rather, maintaining that it was just seeking to do a deal.
Not only did the defendant reject any statement attributed to him which might have tended to suggest that he had possession of all five vehicles or knew where they were, he also denied conversations with other persons whose affidavits were not the subject of any challenge and who were not cross-examined, such as Mr Auld.
For example he denied the conversation with Mr Jarrod Smith on 28 February 2018 in relation to Vehicle 5 but when shown his own email confirming that it took place, he said he remembered it.
The defendant was challenged on his invoices. Mr Anderson, who appeared for the plaintiff, identified some inconsistencies in the invoicing. Further, under the terms of Waterfront Enterprises agreement with the vendor of the vehicles, Waterfront Enterprises was entitled to have certain repairs and maintenance done free of charge.
There are inconsistencies in the invoices. I accept that there appear to be a lot of charges for things such as tyres. I accept that at least some of the services allegedly performed by Truck Tech could have been obtained for free by Waterfront Enterprises and it makes little sense that such a company was paying for such services when the services could have been obtained from the vendor of the vehicles without charge.
Mr Anderson put to the defendant that the invoices had been manufactured to support the claim being made that Truck Tech was owed $173,000; that is, that the defendant had actually fabricated the invoices for the purposes of corroborating such an assertion. [17] The defendant rejected this.
The defendant provided some explanation for the inconsistencies in his invoices. No evidence was called from anyone associated with Waterfront Enterprises that the work was not undertaken or Truck Tech had not provided services to Waterfront Enterprises.
It makes little sense for Waterfront Enterprises to have been utilising Truck Tech for servicing and maintenance when it could have obtained it for free under the agreement with Volvo.
However, the evidence is not sufficient to base a finding that the defendant fabricated all of these invoices for the purposes of this case. It is a very serious proposition to put to a witness that he has fabricated a large number of documents for the purposes of a case. Such a proposition should not be put without proper foundation irrespective of whether there are issues as to the general credit of the witness.
However, whether or not the invoices were all genuine and whether Truck Tech was owed money by Waterfront Enterprises is not determinative of whether the plaintiff is entitled to succeed in its causes of action in conversion and/or in detinue.
As I set out later in this judgment, Truck Tech's purported claim for a repairer's lien did not entitle either the defendant or Truck Tech to retain Vehicle 5.
The defendant was not an impressive witness. I found his evidence inconsistent and implausible. He denied conversations that must have taken place. His evidence as to the recorded conversation is inconsistent with the actual conversation. He seemed intent on maintaining a position. To the extent that there is a conflict in the evidence as to what was said, I would prefer the evidence of Mr Murphy and Mr Ryan to that of the defendant.
A comparison of his version of events and the statements made by him with all of the other evidence leads me to reject his version of events.
His suggestion that all five trucks and trailers were brought to the Truck Tech premises on 22 December, being the day on which that business was closing for the Christmas break, for servicing (at his request) seems implausible. On his version, he did not tell Mr Spencer that he was intending to keep the vehicles by way of a repairer's lien until after the vehicles had been delivered to the Truck Tech premises.
It follows that, on his version, Mr Spencer had agreed to bring all five vehicles to the Truck Tech premises on the same day for servicing in circumstances in which Waterfront Enterprises was itself in financial distress and would hardly have been anxious to incur fees associated with the servicing of all five vehicles on the same day just before Christmas.
The Dynafleet records show that the vehicles were being used (presumably for financial gain right up to the time they were delivered to the Truck Tech premises). Further, according to the defendant, all of these vehicles had already been the subject of servicing, hence his outstanding account of $173,000.
If the conversation with Mr Spencer was just a ruse to get the vehicles to his premises as a means of ensuring that his accounts were paid, it would be surprising if he felt it necessary to have all five vehicles brought to his premises the day on which his business was closing for Christmas. If the defendant's motive was to gain some security to ensure payment of his account then, as he said actually happened, one vehicle would have been sufficient. Yet, based on his invoices, he had Vehicle 1 only a few days earlier, on 17 December. It must not have occurred to him to claim a lien on the vehicle at that time to ensure payment of his outstanding account.
Most significantly, Mr Auld provides an alternative version of events. He is an independent witness.
I accept Mr Auld's evidence. Mr Auld delivered a truck at the request of Mr Spencer. The defendant told him that Truck Tech had bought that particular truck and the other trucks and that he would be working for Truck Tech. Mr Auld re-attended the Truck Tech premises after the Christmas shutdown in January 2018. He would not have gone there unless he believed that he was working for Truck Tech at that time. He was not cross-examined and it was not put to him that he was never at the premises in January or that he had not been offered work.
Further, I do not accept the defendant's evidence that he did not know what happened to the other four vehicles. As I have already found, all five vehicles were in bushland together by February 2018. He says he knew where Vehicle 5 was and he says he (Truck Tech) had control over it.
Nor do I accept the defendant's suggestions that he was merely acting as some form of broker on behalf of these other third parties, whilst at the same time seeking to recover payment of his outstanding account.
On first meeting with Mr Ryan, the defendant said he only had one vehicle, after originally saying they were all gone and he did not know where they all were. On my findings, that vehicle was in the bushland with the other vehicles by February 2018.
On further meeting or discussions with Mr Ryan and Mr Murphy in April 2018, the defendant is recorded as saying on three occasions that he had possession of all five vehicles. When challenged, he introduces the Crazy Iraqi and Mr Moussari. It is implausible that he had no real idea as to who the Crazy Iraqi might have been (assuming his existence), bearing in mind that on his own version, he was negotiating on behalf of the Crazy Iraqi and must have been authorised to receive money on behalf of the Crazy Iraqi.
It is also surprising that the person whom the defendant said is now dead, Mr Moussari, had never been heard of by Mr Ryan and could not be located or identified by Mr Ryan as ever existing.
The defendant provided photos of either the four or of the five vehicles in bushland to Mr Ryan but he maintained that he did not know where the vehicles were.
Yet, Mr Ryan stated that the defendant had told him that he knew where they were and that he had seen them and even those which were in a damaged state, such as missing the bonnet and the bumper bar (which happens to coincide with how one of the vehicles was found).

[14]

Conclusion

I am satisfied that, at some stage after the vehicles were at the Truck Tech premises on 22 December 2017 and after the Dynafleet system was disconnected, all five vehicles were hidden in the bushland at Wilton, under the no-fly zone.
The defendant has admitted that he had Vehicle 5 at all times (or at least Truck Tech did). He delivered it up in August 2018. As Vehicle 5 was with the other vehicles as of February 2018, he must have known where all the vehicles were.
This only leaves the question of whether he had sufficient control or possession over the vehicles such as to ground an action in conversion or detinue.
According to Mr Ryan, he admitted knowing where they were, he described their condition and provided photos of them. He did so in order to encourage the plaintiff to pay a significant sum in return for the vehicles.
Whatever his motives in only ever admitting to having one vehicle, he specifically stated on 12 April that he had possession of all five vehicles.
It was not until a later conversation that he introduced the Crazy Iraqi and Mr Moussari. I reject his evidence that he mentioned the Crazy Iraqi to Mr Ryan in their initial conversation. The introduction of these persons, fictional or not, after specifically admitting that he had possession of all five vehicles, does not negate his admission that he had possession of all five vehicles. On the defendant's case, I should be rejecting anything he said which might be construed as against his interests in this case, including admissions.
He made an offer in writing to the plaintiff that included Truck Tech purchasing all five vehicles or the plaintiff paying Truck Tech a significant sum in return for the vehicles. That is because he was in control of the vehicles. He knew where they were and was able to deliver them up to the plaintiff at any time. That is what he offered to do. He would hardly have offered to pay $910,000 to a person who did not have the vehicles and did not know where they were (that is, the plaintiff) unless he knew that he had them or had such control over them that he could just take them from wherever they were.
I reject his statement that he was really making an offer on behalf of a person he could only identify as the Crazy Iraqi or another person, Mr Moussari, whose past existence cannot even be established.
I am thus satisfied that the defendant dealt with all five vehicles in a manner repugnant to the plaintiff's right to possession. He kept them from the plaintiff even though he had no entitlement to do so. In my view, he had sufficient possession, control or dominion over all of the vehicles.
His keeping of the vehicles was contrary to the plaintiff's right to possession. He failed to deliver them up to the plaintiff. Subject to the further issues raised, the plaintiff would have established the causes of action on which it relies.

[16]

Repairer's lien

In Dinmore Meatworks Pty Ltd v Kerr (1962) 108 CLR 628 at 632; [1962] HCA 47 ("Dinmore Meatworks"), the High Court stated: "It is a long established principle that if a chattel be delivered to a man so that he may for reward do work upon it, as for example by repairing or altering it or making something of it, he may, having completed the work retain possession of it until he has been paid for his work."
The defendant pleads that Truck Tech retained possession of Vehicle 5 and that it was entitled to do so, by way of a repairer's lien over that vehicle. I have already rejected the defendant's version of events but I have not made any finding that the invoices were fabricated for the purposes of these proceedings.
I do not accept that the defendant was entitled to keep any of the vehicles in the face of the plaintiff seeking possession of them.
The defendant was asked about the basis on which he was asserting the lien. He maintained that it was in a document or agreement but he said that the document could not be located by him. He could not remember the name of his admin assistant who had been looking for the document.
No evidence was adduced by the defendant that a general lien would arise by custom or usage. Nor was any evidence adduced which might establish that a special lien was created. I was not directed to any legislation which might create a lien.
The circumstances in which a special lien may be created were summarised by Palmer J in Stapley v Towing Masters Pty Ltd [2009] NSWSC 139 at [11] ("Stapley") as follows: "11. A particular, or special, lien enables the holder to retain the particular property until payment of the holder's claims relating solely to that property. At common law, a particular lien may be created by: - express contract, or - a term implied into a contract by a course of dealing between the parties, by custom or usage in a trade or industry, or by other means by which a term may be implied into a contract; - imposition of law in favour of two broad categories of persons: those compelled by the common law to perform services for, or to receive goods from, the general public, such as innkeepers and common carriers; those who, in plying their trade, improve the goods of others by the expenditure on those goods of money, skill or labour ". (Citations omitted.)
Absent any evidence, I am unable to find that the right to a possessory lien was an express term of the contract between Waterfront Enterprises and Truck Tech.
A repairer's or artificer's lien is recognised as applying to a worker or craftsman who used his or her skills to improve the value of goods, that is, if a motor vehicle repairer undertakes repairs on a vehicle he may have a lien on the vehicle for the amount of the repair charges.
Whether a repairer's lien exists must depend upon the circumstances of the case but the lien can only be for the value of the works done, in this case said to be evidenced by the invoices. Again, as Palmer J held in Stapley at [72], such a lien only arises where the chattel has improved or increased in value by something done to his physical condition or character such as when a car is repaired.
A so-called repairer's lien entitles the repairer to do no more than refuse to deliver up the vehicle until he is paid for the work that he has done on it.
In Dinmore Meatworks, the Court stated at 632: "It is a possessory lien, and it is a particular lien. To say that it is a possessory lien means that - apart from any statutory extension of his common law rights - the lienee's only right is to keep possession of the article until he is paid for his work on it. If he voluntarily surrenders possession of it to the owner his lien is lost."
Even if I was to accept the defendant's version, Truck Tech could not have maintained a lien over Vehicle 5 because no work was performed on Vehicle 5 at that time. Even on the defendant's case, Truck Tech had previously released the vehicles to Waterfront Enterprises after earlier work without payment of its account.
It is not necessary to decide whether Truck Tech might have been able to exercise a lien at some earlier stage. It could hardly trick the owner of the vehicles into bringing the vehicles to its premises for servicing, then refuse to service the vehicles and remove and hide one of them from its premises on the basis of a possessory lien. On the defendant's case, it came into possession of that vehicle for the purposes of undertaking work upon it. It did not undertake any work upon it and, thus, is not entitled to maintain a possessory lien over it.

[17]

Specific demand

The defendant says that the plaintiff is not entitled to succeed in either conversion or detinue because of the absence of a specific demand for the return of the vehicles. There are two problems with this submission being: 1. there is ample evidence that the plaintiff informed the defendant that it wanted the vehicles; and 2. even if I am wrong on that finding, I am satisfied that the defendant would have refused to comply with the specific demand such that the absence of a specific demand is not a bar to the plaintiff succeeding in conversion (see [44] above).
Just as it is important to assess the actual dealing in the real and commercial context in which the act takes place, it is important to assess whether a demand for the return of the vehicles was made in a common-sense and practical way.
It is not necessary for a person seeking the return of goods to have sent a formal letter to the holder of the goods to satisfy any requirement that a demand for the goods be made. Nor is it necessary that the person seeking the return of the goods use language such as "I demand the return of the goods" to satisfy that which is required for detinue.
Mr Ryan and Mr Murphy had a number of conversations with the defendant about the vehicles. The defendant knew that the plaintiff was seeking the vehicles in order to repossess them in accordance with its entitlement following the failure of Waterfront Enterprises to pay the amounts owing.
At the meeting of 17 January 2018 between Mr Ryan and the defendant, Mr Ryan told the defendant that he was a mercantile agent on behalf of the plaintiff and that he was looking for the Spencer brothers' Macks. On being informed by the defendant that he had the Superliner and five-axle trailer Mr Ryan said: "Well I'm going to need to take that back."
After further discussion the conversation ended: "Thanks for your time today, but I still need to get the Superliner back so I'll let the finance company know you have one of the assets".
At the meeting of 17 April 2018, when discussing the offers put by Mr Saad, the following comments were made: BS: Call it what you want mate. I just want my money. CM: I want all the trucks back. BS: Pay the money, and you can get them back. CM: If you only have the Superliner like you say, you can't claim a repairs lien for trucks you don't have. BS: Yeah, I don't care. You want your trucks; I want my money.
In the last conversation between the defendant and Mr Murphy, on 13 June 2018, the following exchange took place: Murphy: You haven't sent me one like I asked. Again I don't give a shit what you charge Barry I just want the trucks back. BS: You're not getting your fucking trucks back. I'll take you to court over what I'm owed. I'll claim the whole $173,000.
Mr Murphy said he wanted his trucks back. Mr Ryan had first mentioned that he wanted Vehicle 5 back in January 2018 (being the only truck that the defendant was admitting to having at that time).
Further, on 28 February 2018, the defendant rang Jarrod Smith of Volvo Group and said that he wanted his money and would not be giving the truck (Vehicle 5) back.
In my view, the plaintiff made it clear in the conversations with the defendant that it required the return of the trucks. It only mentioned one truck in January 2018 because that is all the defendant admitted to having. After the defendant said he had all five trucks, the plaintiff said it wanted all five trucks back.
In any event, it seems plain that the defendant had no intention of returning any trucks to the plaintiff without payment of the money he sought. A formal or more specific demand would have been an exercise in futility.
I reject the defendant's submission that no specific demand was made and that operates as a bar to the plaintiff succeeding. Alternatively, I find that the making of a specific demand would have been an exercise in futility, as the defendant had no intention of handing over the vehicles to the plaintiff without payment of a significant sum to him.

[18]

Was Truck Tech the appropriate defendant?

The defendant submits that the causes of action should have been pursued against Truck Tech rather than him personally. He made that submission on the premise that he had admitted on behalf of Truck Tech that Truck Tech had possession of Vehicle 5 at all times after 22 December 2017 until it was returned on August 2017.
He also points to the written offer made, which refers to Truck Tech purchasing the vehicles and money being paid to Truck Tech rather than him personally. He thus seeks to characterise his role as acting in the course of his duties with the corporation, such that he could not be personally liable to the plaintiff.
The plaintiff says that such a defence was not pleaded and that it is of no merit.
In my view, it is clear from the defence pleaded by the defendant that the admission made in respect of Vehicle 5 was made on the basis that Truck Tech retained possession of Vehicle 5, not Mr Saad personally. It may be that there was no further particularisation of this part of the defence and no other advance notice was given to the plaintiff that such an argument would be pursued but, on a fair reading of the defence, the issue was raised. The defendant is thus entitled to maintain on the hearing that it was Truck Tech and not him who had possession of Vehicle 5.
Having said that, on my findings, Vehicle 5 was not driven away from the premises and kept in a storage yard for the purposes of maintaining the repairer's lien. Vehicle 5 was dealt with in the same way as the other four vehicles, that is, the vehicles were removed from the Truck Tech premises and at least by February 2018 were hidden in bushland.
My finding about what happened to Vehicle 5 is thus the same as in respect of the other four vehicles.
The plaintiff's causes of action depend upon establishing that the defendant intentionally dealt with the goods in a way inconsistent with or repugnant to the rights of the plaintiff. The plaintiff's cause of action in detinue is based on the defendant's refusal to deliver up goods to the plaintiff. The plaintiff claims damages from the defendant on the basis that it is the defendant who has interfered with its chattels. The remedy is a personal remedy against the person who committed the wrong: Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 at 177 ("Gaba Formwork").
There is nothing in the Employees Liability Act 1991 (NSW) which prevents the plaintiff from suing the defendant directly. If an employee commits a tort for which his employer is also liable, the employee is not liable to indemnify or pay contribution to the employer and the employer is liable to indemnify the employee (s 3 of the Employees Liability Act) but that does not preclude that employee being sued directly by the plaintiff.
If, as the defendant asserts, he took Vehicle 5 from the Truck Tech premises and drove it to a storage yard and kept it hidden there from the plaintiff, then he may be liable in tort to the plaintiff. It is no defence to assert that he was performing that act on behalf of his employer. Whether he might recover from his employer is a matter between him and the employer. Whether the employer would be vicariously liable for his conduct is not raised in the pleadings and not something I need to consider.
It may be, as the defendant submits, that persons such as the defendant often speak in the first person when they are really speaking about their company but the case is not being determined merely on the fact that the defendant used "I" instead of referring to his company.
If the elements of the tort are established then the plaintiff is entitled to succeed against the person who engages in the conduct. Whether that person can recover from some other entity, such as an employer, is a different issue and not one relevant to the matters which I am required to determine.

[20]

Damages

The tortious measure of damages applies. Subject to some exceptions, damages for conversion and detinue are compensatory: Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191; [1966] HCA 38. The plaintiff is entitled to be put back into the position that it would have been it not for the tortious conduct of the defendant.
Prof Fleming has suggested there is authority for a flexible approach to the assessment of damages for the two torts. [19] I do not take the learned author's suggestion to detract from the overriding principle to be applied in assessing damages in tort.
I accept that, in the normal course of the plaintiff's business as a financier, it would have sold the vehicles to recover the amount owing to it. Mr Murphy describes this as remarketing. The mortgages were all for amounts well in excess of the value of the vehicles when remarketed in 2019. Whilst I did not receive submissions on this point, my own analysis suggests that, in view of the amounts secured by the mortgages, the plaintiff did not recover the full amount owing through sale of the vehicles.
Mr Murphy also says that its normal method of disposal of assets such as these is to organise for Viking Trucks to find a purchaser and then sell them to Viking with the intent that Viking would then on-sell to the real purchaser.
The normal measure of damages in conversion for loss of the goods would be the value of the goods as at the date of conversion. The measure of damages in detinue for loss of the goods would normally be their value as at the date of judgment.
In circumstances in which the vehicles were ultimately recovered (except for trailers 2 and 3), the measure of the plaintiff's loss would be the difference in the market value of the vehicles between the time of conversion/detinue and when they were ultimately recovered, assuming that the plaintiff then took reasonable steps to sell the vehicles after recovery at a fair market price. Damages are still recoverable even though the goods have been returned or recovered, subject to the plaintiff establishing that there has been a loss in value as result of the conversion: Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 ("Strand Electric"); Gaba Formwork at 178.
The plaintiff makes a number of claims as follows: 1. in respect of the trailers not recovered, the value of the trailers; 2. the difference between the value, as at December 2017, of the trucks and trailers recovered and their sale price; 3. the cost of repairs to the vehicles to allow them to be sold; 4. the recovery costs; 5. notional hire charges; and 6. aggravated and exemplary damages.
I will deal with each of these heads of damage.

[21]

Difference in market value

In support of its claim for damages, the plaintiff relies both on the opinion of Mr Ryan as set out in a report he prepared for valuation purposes on 26 July 2017 and an expert report of Mr Gavin Dempsey of Pickles Auctions Pty Ltd dated 15 November 2019.
I rejected that part of Mr Ryan's report of 26 July 2017 in which he expressed an opinion as to the values of the vehicles. I admitted that part of his report as to his observations as to the condition of the vehicles in 2017.
The defendant objected to a number of parts of Mr Dempsey's report. I rejected many of the objections.
Mr Dempsey was cross-examined. It seemed to me that the thrust of the cross-examination was to attempt to establish that Mr Dempsey had made assumptions that were not proven for the purposes of forming his opinion. In particular, the cross-examiner referred to the matters set out in para 16 of Mr Dempsey's report which Mr Dempsey suggested were important in valuing such assets. They included matters relating to the kilometres and hours and gearbox and condition.
Mr Dempsey accepted that although he was made aware of the kilometres for Vehicle 5 he was not given the actual hours for the other four vehicles. It was put to him, by way of example, that if he assumed that in July 2017 truck 4 had only done 51,422 km, then that will alter his valuation. He agreed, suggesting that if the trucks had lower kilometres then it would be a higher value assigned to them. He felt that such a difference in kilometres might have another $10,000 to $15,000 in value. That does not necessarily assist the defendant.
It became clear during cross-examination that it was necessary to have regard to all of the detail contained in Mr Dempsey's report as well as the annexures thereto. Further, as Mr Dempsey pointed out, Mack only puts out very limited engines and those experienced in the industry know that the trucks will come out with 535 horsepower, such that it was not necessary to set out such detail when opining about a Mack truck.
He disagreed with the proposition that he had not properly set out his reasoning process. He also maintained that the comparables were true comparables and, again, that anyone with real knowledge of these vehicles would have understood that. It may be that to a certain extent Mr Dempsey did not set out in detail all of the information on which he relied or all of the factors which went into him forming an opinion. However, the effect of his evidence is very much that these trucks have a value within a fairly limited range and that it is safe to make assumptions on matters such as horsepower, having regard to his knowledge of the types of trucks and the truck models.
I admitted Mr Dempsey's report. Cross-examination of him did not cause me to doubt the validity of his opinions.
The defendant did not serve any alternative evidence. According to Mr Ryan's report of 26 July 2017, all the trucks were late model and in good condition at that time.
Mr Dempsey has applied a fair market value approach to each of the trucks and trailers.
Two of the Mack trucks were manufactured in 2015. The other two were manufactured in 2016. The Mack Superliner (Vehicle 5) is a 2016 model. They were all thus relatively new vehicles in 2017.
The defendant was first approached regarding the vehicles in January 2018. He admitted he had Vehicle 5. I have found that he also had control, dominion or possession of the other four vehicles. The plaintiff is entitled to the difference in value calculated as of December 2017 (which would be approximate to the dates of conversion and detinue) and the fair market value when recovered (allowing for a period of repair and sale). There is an issue as to how that value should be assessed.
The plaintiff sold all of the trucks and trailers which it recovered to Viking Trucks (Mr Ryan's company). Viking Trucks undertook cosmetic and other repairs to the vehicles for which it invoiced the plaintiff. Viking Trucks then on-sold the trucks and trailers for higher prices, although not much higher in some cases.
Some of the dates of the invoices leave me uncertain as to what happened to the vehicles after recovery.
For example, Viking Trucks rendered an invoice to the plaintiff on 31 July 2019 in respect of truck 1. The plaintiff had already rendered an invoice to Viking in respect of the sale of Vehicle 1 to Viking on 27 June 2019. These matters were not the subject of clarification or challenge. I am uncertain why Vehicle 1 was only repaired in July 2019.
The amounts paid by Viking are less than the values suggested by Mr Dempsey who did not assume that the vehicles were damaged. Perhaps they were damaged but the plaintiff has also claimed the costs of repair to each vehicle. I take Mr Dempsey's opinions as to reduction in value to be based on average usage and wear and tear over the periods.
The plaintiff is not entitled to recover a loss based on the reduced amounts paid by Viking and then recover the costs paid to Viking to repair the vehicles. The plaintiff did not adduce evidence that the vehicles were so damaged during their period of non-use that they could not be sold at a fair market value for that type of vehicle. The plaintiff did not adduce evidence that the extensive repairs it undertook did not bring the vehicles up to the standard they would have been but for the defendant's conduct.
Without other evidence, I would not find that the amount paid by Viking represented a fair market value. It may have been, but Mr Dempsey suggests that in some cases the vehicles had higher values in 2018 and 2019 (assuming in good condition) than achieved by Viking on sale.
As such, I do not consider that the plaintiff is entitled to the difference between the market value in December 2017 and the price obtained by the plaintiff on sale to Viking Trucks or even the price obtained by Viking. As the sale prices do not reflect Mr Dempsey's opinions, I cannot be satisfied that the prices paid by Viking necessarily represented fair market value. According to Mr Ryan, Viking Trucks buys and sells trucks on behalf of Volvo. [20]
I thus assess loss on the diminution of market value according to Mr Dempsey. I will also allow repair costs.
The plaintiff is entitled to the full value of the two trailers never recovered (based on Mr Dempsey's opinion as at December 2017).
The losses for each truck and trailer, calculated as the difference between the value of the truck and trailer in December 2017 and when recovered based on Mr Dempsey's report are as follows: Truck 1: $15,000 Trailer 1: $10,000 Truck 2: $40,000 (only recovered in 2019) Trailer 2: $90,000 (not recovered) Truck 3: $15,000 Trailer 3: $90,000 (not recovered) Truck 4: $15,000 Trailer 4: $15,000 Truck 5: $15,000 Trailer 5: $25,000 TOTAL: $330,000

Volvo Finance Australia Pty Limited v Waterfront Enterprises Pty. Ltd.

At a glance

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Judgment (30 paragraphs)

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Legislation Cited (4)

Cases Cited (22)

Cited By (4)