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." Mr Makucha goes on to state that he had not agreed for Mr King to be sent the correspondence which is annexed to his letter - that is, documents including the notice of motion in question. 5 Mr Makucha states in that letter that he is not able to attend the Court building because he fears arrest if he does so. He also says he is required to take his 85-year old mother in Brisbane, that afternoon, to the heart specialist and to have other serious matters investigated including her desire to commit suicide as she is 85 and suffering from some form of dementia and eilsimers [sic] disease and Lupus disease. He continues: "… also I have been advised by a competent legal practitioner that under the circumstances, I should not attend." 6 The evidence shows that the premises at 182 to 196 O'Riordon Street are land of which the second defendant is the registered proprietor. The fifth defendant lent the second defendant $3 million secured by mortgage over that land. The loan was to be repaid on 30 March 2004, but it was not repaid. The fifth defendant has taken possession of the property. 7 On 24 December 2004 the fifth defendant exchanged contracts to sell the property, in exercise of its mortgagee's power of sale. It has issued a notice to complete that sale. One of the conditions of the contract for sale requires the removal of certain structures on the land, being (in broad summary) some metal buildings, a metal lean to, certain other metal structures, and some metal shipping containers. It is these items which the contract requires be removed which are the chattels referred to in the fifth defendant's notice of motion. 8 Mr Makucha, in an affidavit filed in these proceedings, part of which has been tendered before me, says that the containers, which have been used as offices, are the property of the second plaintiff. He also annexes to that affidavit an inventory of chattels which he describes as "belonging to the first and second plaintiffs". That inventory includes all the metal items to which the fifth defendant's notice of motion relates, though it also includes various of the contents of the structures. 9 The respondents to the motion did not appear today. 10 I have given consideration to whether, in the circumstances, I ought adjourn the proceedings of my own motion. It does not seem to me, to be appropriate to do so. It is apparent from Exhibit A that Mr Makucha is aware of the proceedings. As well, there is an affidavit of service, which discloses that a sealed version of the notice of motion was delivered to premises which the two plaintiffs identified in the summons in this matter as their address for service. That is also the address that Mr Makucha has given in an affidavit, as being his address. Although Mr Makucha was not in at the time, that does not affect the validity of the service. Even if Mr Makucha had personal difficulties in attending court today, he could have arranged for a lawyer to represent him. In all, it seemed to me to be the preferable course to continue with the hearing on the basis that if any orders were made, and the plaintiffs had any material not put before the Court today which showed that the orders should be varied or revoked, it would be open for them to make application for such variation or revocation under Part 40, rule 9 Supreme Court Rules 1970. 11 On 15 November 2004, when these proceedings were originally before his Honour Justice Nicholas, counsel for the fifth defendant made an offer in open Court for the plaintiffs to make arrangements to collect their items from the property. On 22 November 2004, when the matter was before his Honour Justice Palmer, that offer was repeated. 12 On 31 January 2005 the solicitors for the fifth defendant faxed Mr Makucha, referring to the open offer which had been made on 22 November 2004, and stating: "To date you have neither accepted nor declined our offer, or made any arrangements with us to remove those items. Accordingly, you have until 5 pm on Friday February 4, to remove the items utilising the services of an arms length agent. Prior to removing the items you will need to advise us in writing of your arrangements for their removal and organise access to the site. If the items are not removed by 5 pm on Friday February 4 we shall remove, sell or otherwise dispose of all items from the property, without further notifying you." 13 The evidence establishes, in my view, that the fifth defendant has an entitlement to possession of the land, and actual possession of it. That gives the fifth defendant title to sue for the tort of trespass to land. The presence of the chattels on the land constitutes a trespass. Given that the fifth defendant is a mortgagee in possession, its right to possession is one which would out rank any rights to possession which might have been granted by the mortgagor, if the mortgagor had granted any such rights to possession. 14 In the circumstances, it seems to me that the ongoing presence of the materials on the land is not only a continuing trespass, but is also a continuing trespass concerning which damages for the tort of trespass would not be an adequate remedy. There is some evidence that the market value of the chattels on the land is not great, but I do not place any reliance on that evidence. 15 I grant leave to the fifth defendant to file a cross-claim in the form initialled by me and placed with the papers. 16 I order that, within 14 days of the making of this order, the plaintiffs remove from the premises known as 182 to 196 O'Riordon Street Mascot the chattels described in the following list: A. Metal buildings fixed on tubular structure situated on 23/864234 and 24/864234 and the entirety of the contents thereof B. Metal lean-to situated on 24/864234 and 15/864234 and the entirety of the contents thereof D. Metal hollowed out structures situated on 13/864234 and 14/864234 and the entirety of the contents thereof E. Metal hollowed out structures situated on 12/864234 and 13/864234 and the entirety of the contents thereof F. Metal shipping containers situated on G/356472 and the entirety of the contents thereof H. Metal shipping container situated on 8/864234, 9/864234 and G356472 and the entirety of the contents thereof. 17 The basis upon which the third order in the notice of motion was sought was that, if an order like the one I have just made were not to be complied with, that would demonstrate that there had been an abandonment of the chattels. If there has been such an abandonment, so the submission went, there would be no conversion or other legal liability involved in the removal of the chattels, and their sale or disposal. 18 I am not prepared to make the third order today. There has not been as much exploration of the legal basis for the order as I would like under either the common law or any statute which might be relevant, such as the Uncollected Goods Act 1995. That problem could be met by a brief adjournment to enable further research to be carried out. However it appears that, whatever the legal basis of the order might be, it depends upon being satisfied that, at a particular date in the future, a set of circumstances will have arisen which amount to abandonment. I do not think it is possible to predict the future with such accuracy. It is for that reason, I decline to make today the third order sought. 19 These orders may be entered forthwith. 20 I grant liberty to either party to restore before the duty judge on two days notice, or such shorter notice as the duty judge might permit. ********** 10/02/2005 - HH requested that the word "adjustment" be replaced with the word "adjournment" - Paragraph(s) 18 21/02/2005 - HH requested that the word "adjustment" be replaced with the word "adjournment" - Paragraph(s) 18 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.