St George Bank Limited v Giffen & Ors [2001] NSWSC 1143

New South Wales Supreme Court

CITATION : St George Bank Limited v Giffen & Ors [2001] NSWSC 1143 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1891 of 2001 HEARING DATE(S) : 29 November 2001 JUDGMENT DATE : 12 December 2001

St George Bank Limited (Plaintiff/Cross-Defendant) PARTIES : Matthew Giffen (First Defendant/Cross-Claimant) Christian Ramos (Second Defendant) The Commissioner of Police (Third Defendant) JUDGMENT OF : Windeyer J at 1

Mr R I Bellamy (Plaintiff/Cross-Defendant) COUNSEL : Mr J S Wheelhouse (Defendant/Cross-Claimant) Second Defendant not served Third Defendant no appearance Gray & PerkinsLaurence & Laurence (Plaintiff/Cross-Defendant) SOLICITORS : Delaney Lawyers (Defendant/Cross-Claimant) Second Defendant not served Third Defendant no appearance CATCHWORDS : SALE OF GOODS - transfer of title by non-owners - rights of an unpaid seller against goods - Factors (Mercantile Agents) Act 1923 - agency - agency by estoppel Factors (Mercantile Agents) Act 1923 s5(1) LEGISLATION CITED : Motor Dealers Act 1974 Motor Car Traders Act 1986 (Vic) CASES CITED : Heap v Motorists Advisory Agency Limited [1923] 1 KB 577 National Employers Mutual General Insurance Assocation v Jones [1988] 2 All ER 425 DECISION : See paragraphs 23 to 28

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J WEDNESDAY 12 DECEMBER 2001 1891/01 ST GEORGE BANK LIMITED V MATTHEW GIFFEN & ORS JUDGMENT 1 Question 2 The question for decision is which of two innocent parties was entitled to a 1995 Porsche motor vehicle – and now the proceeds of sale of that vehicle. Both are innocent parties and both it seems the victims of fraud, although not necessarily the same fraudulent act. Facts 3 In July 1998, the first defendant, Michael Giffen (Giffen) purchased a 1995 model Porsche from Scott Beasley Motors (SBM) for $180,000. In March 1999, Giffen decided to sell the vehicle and contacted Mr Scott Beasley (Beasley), who was known to him and asked if he would consider taking the vehicle for sale. Beasley agreed to sell the vehicle stating. "I'll do everything I can to get the best price for you". In early March 1999 two employees of SBM collected the vehicle from Giffen advising him the car would be delivered to the lot at Waterloo. It was Giffen's impression at all times the car would be sold in New South Wales. 4 On 26 March 1999, the vehicle appears to have been sold to Terry Hogan (Hogan) of Brighton Victoria. An invoice/receipt was issued by SBM for the sale. The price recorded was $142,000. Insofar as it was a receipt the document says: Received from Terry Hogan … the sum of zero cents 0.00 being deposit on vehicle".