Marubeni Equipment Finance (Oceania) Pty Ltd v A & H Construction Group Pty Ltd [2021] NSWSC 161

Supreme Court New South Wales

Medium Neutral Citation: Marubeni Equipment Finance (Oceania) Pty Ltd v A & H Construction Group Pty Ltd [2021] NSWSC 161 Hearing dates: 24 February 2021 Date of orders: 24 February 2021 Decision date: 24 February 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Freezing order and order for delivery up of excavators made Catchwords: INJUNCTIONS - application for freezing order – application for delivery up of excavator Category: Procedural rulings Parties: Marubeni Equipment Finance (Oceania) Pty Ltd (Plaintiff) A & H Construction Group Pty Ltd (First Defendant) Taha Ardati (Second Defendant) Representation: Counsel: D Hughes (Plaintiff)

Solicitors: Clayton Utz (Plaintiff) File Number(s): 2021/52028

Judgment – EX TEMPORE 1. The plaintiff is a financier. By agreements dated 26 June 2020 the plaintiff advanced funds to the first defendant to enable it to purchase two excavators. The plaintiff has a chattel mortgage over the excavators. The amount currently outstanding under the advances is some $116,000. 2. The second defendant has guaranteed the first defendant's obligations under those arrangements. 3. The plaintiff commenced these proceedings yesterday before me as Commercial List Duty Judge. It seeks a freezing order and delivery up of the excavators. I was not prepared to make a freezing order yesterday but granted the plaintiff leave to serve the summons and supporting material at short notice. 4. I am satisfied that service has been effected and that the second defendant, who is the sole director of the first defendant, has received the documents and is aware these proceedings are before the Court now. 5. Mr Hughes of counsel, who appears for the plaintiff, informs me that the second defendant has been given the relevant link to appear before me in the virtual Court room today. He has not appeared nor has the first defendant. Both defendants were called outside Court in case they had attempted to appear personally and there was no appearance. 6. The evidence satisfies me that the first defendant is in default under its arrangements with the plaintiff and has failed to comply with demands under the relevant transaction documents to return the excavators. 7. There is some suggestion in the evidence that the defendants may have been trying to sell the excavators, although the evidence rises no higher than that excavators of a similar age and look have been advertised on such platforms as Facebook, Market Place and the Muslim Market Place. There was also other indirect evidence that at least one excavator with the same VIN number as that the subject of the arrangements between the plaintiff and the first defendant has been offered for sale recently. 8. On 18 and 19 February 2020, the plaintiff's solicitor, Mr Chami, had telephone conversations with the second defendant, Mr Adati, in which Mr Adati said: 1. that he was in Nowra; 2. that he still has "the excavators"; 3. "If I was to catch up with my payments, what will happen?"; 4. "The machine [sic] is with me in Nowra. But you can't take the machine from me"; 5. "Look, like I said, don't come doing the dirty on me and taking the machines please"; and 6. "I do have the money to pay but you just need to relax". 1. In those circumstances, I am satisfied that a proper basis has been made out to make a freezing order of the kind proposed by the plaintiffs, and also to make an order for delivery up. 2. Upon the plaintiffs, through its counsel, giving to the Court the undertakings set forth in schedule A of the proposed orders, I make a freezing order in accordance with the document headed "Penal Notice" which I initialled and dated today. 3. I also make an order in accordance with paragraph 2 of the summons. I will add to those words, after the reference to the excavators, the words "to Hitachi Construction Machinery (Australia) Pty Ltd at 51 Milperra Road, Revesby". I will preface the order by saying "By 5pm on 26 February 2021." 4. I order that these orders be taken out forthwith. 5. I stand the summons otherwise over to the Commercial List Duty Judge at 9.30, 5 March 2021.