Capital Finance Aust Ltd v CEO of Customs [2007] NSWSC 1367

New South Wales Supreme Court

CITATION : Capital Finance Aust Ltd v CEO of Customs [2007] NSWSC 1367

HEARING DATE(S) : 31 October 2007

JUDGMENT DATE : 31 October 2007

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Motor vehicle should be delivered to owner.

CATCHWORDS : TORTS [230] – Trover and detinue – Remedies – Action of detinue – Goods held after term purchase agreement terminated – Order for delivery.

Capital Finance Australia Limited (P) PARTIES : Chief Executive Officer of Customs (D1) Labocus Trading Pty Limited (D2) Regional Director of Customs (D3)

FILE NUMBER(S) : SC 5242/07

COUNSEL : P T Newton (P) No appearance (Ds)

SOLICITORS : Kemp Strang (P) No appearance (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 31 OCTOBER 2007

5242/07 CAPITAL FINANCE AUSTRALIA PTY LIMITED v CHIEF EXECUTIVE OFFICER OF CUSTOMS & ORS JUDGMENT 1 HIS HONOUR: This is a matter in which the plaintiff entered into a term purchase agreement with the second defendant for the sale of an expensive Lexus motor vehicle in March of this year. Earlier this month the vehicle was found in a container, apparently on its way out of the country by ship, which led to an urgent approach to the Court late last week. 2 The term purchase agreement contained a clause entitling the plaintiff to terminate the agreement and repossess the goods on failure to pay one instalment when due. The instalment due on 12 August 2007 was paid, but dishonoured. Another payment was made on 12 September but was also dishonoured. In the meantime, on 28 August 2007, the plaintiff had sent the second defendant a notice terminating the agreement. 3 The first and third defendants are representatives of the Customs authorities in whose custody the vehicle is, on its intended way out of the country. They have no objection to returning the vehicle to the plaintiff. 4 The second defendant has been served with the summons in accordance with directions given by the Court, but does not appear. The plaintiff seeks an order on a final basis for the delivery to the plaintiff of the vehicle. On the material before me and in view of the lack of opposition by the second defendant, I make that order as a final order against all defendants. 5 That will not terminate the proceedings as there is an outstanding issue on damages and I shall stand the matter over to the Registrar for the proceedings to continue on that subject matter, if deemed appropriate. 6 The orders of the Court are: (1) Order that the first second and third defendants deliver the Lexus SC430 convertible registered number AZX 92T more fully described in prayer 4 of the summons. (2) Proceedings stood over to 8 November 2007 at 9.30 am before the Registrar for directions as to the damages claim. (3) Order that the second defendant pay the plaintiff's costs of the proceedings to date. (4) Direct that these orders be entered forthwith.