Makucha v Preslands Finance [2005] NSWSC 41

New South Wales Supreme Court

Makucha v Preslands Finance [2005] NSWSC 41 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 8 February 2005

JUDGMENT DATE : 8 February 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Order for removal of chattels

CATCHWORDS : TORTS - trespass to land - by chattels remaining on land - mandatory injunction to require removal of chattels - MORTGAGES - mortgagee in possession of mortgaged property - chattels of persons other than mortgagor on property - title of mortgagee to bring action for trespass

Supreme Court Rules 1970 LEGISLATION CITED : Uncollected Goods Act 1995

Paul Makucha - First Plaintiff/Respondent Mascot Administration Services Pty Limited - Second Plaintiff Preslands Finance Pty Limited - First Defendant PARTIES : Nothintoohard Pty Limited (in liq) (receiver appointed) - Second Defendant Adam Shepard - Third Defendant Ronald John Dean-Willcocks - Fourth Defendant Sovereign Capital Limited - Fifth Defendant/Applicant

FILE NUMBER(S) : SC 6063/04

M W Young - Applicant COUNSEL : No Appearance - Respondent

Bransgroves - Applicant SOLICITORS : No Appearance - Respondent

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

CAMPBELL J

TUESDAY 8 FEBRUARY 2005

6063/04 PAUL MAKUCHA & ANOR v PRESLANDS FINANCE PTY LTD & ORS JUDGMENT – Ex Tempore 1 HIS HONOUR: This matter was referred to me by the duty Judge. 2 Today is the return date of a notice of motion filed by Sovereign Capital Limited. That company is the fifth defendant in proceedings begun by Paul Makucha and Mascot Administration Services Pty Ltd. The notice of motion names the plaintiffs as respondents. 3 The notice of motion seeks three orders. The first is that the fifth defendant have leave to file a cross-claim, the second is that the plaintiffs remove forthwith from premises known as 182 to 196 O'Riordan Street Mascot certain chattels, while the third is a declaration that, if the plaintiffs do not remove those chattels within seven days of the making of the order, the fifth defendant be entitled to remove the chattels from the land, sell or dispose of them, and apply any sale proceeds first to recover the costs of removal, and second by paying any surplus to the plaintiffs. 4 The notice of motion is in the same form as a notice of motion not bearing the Court stamp, which is annexed to a document that Mr Young, counsel for the fifth defendant, has tendered. That document, which has become Exhibit A, is a letter from Mr Makucha, dated 7 February 2005, addressed to a variety of public figures, lawyers, and other people. One of the people to whom it is addressed is Mr Peter King, barrister. Mr King has, on some occasions in the past, acted for Mr Makucha. Mr Makucha's document is lengthy, but it includes a statement, apparently addressed to Mr King, that, "When I require your further professional involvement as a Barrister, I shall in writing, confirm by issuing a written instruction."