New South Wales Supreme Court CITATION : Conway v Critchley & Ors [2009] NSWSC 499 HEARING DATE(S) : 27 May 2009 & 3 June 2009 JUDGMENT DATE : 5 June 2009 JURISDICTION : Equity JUDGMENT OF : Debelle AJ CATCHWORDS : TORTS – Trover and Detinue – wine, plant and equipment at winery – sale of winery – plaintiff claims entitlement to possession of wine, plant and equipment – Order that defendants deliver up plant and equipment – late claim for costs of repairs – defendants granted leave to file cross-claim for the cost of repairs LEGISLATION CITED : Fair Trading Act 1987 CATEGORY : Principal judgment Agar v Hyde (2000) 201 CLR 552 Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported) Burnett v Randwick City Council [2006] NSWCA 196 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED : Greenwood v Bennett [1973] QB 195 Grimwade v Beresford (1974) 9 SASR 157 Lawrence v Griffiths (1987) 47 SASR 455 McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 Rich v CGU Insurance Ltd (2005) 214 ALR 370 Sidebottom v Cureton (1937) 54 WN (NSW) 88 Wallingford v Mutual Society (1880) 5 App Cas 685 David Conway (Plaintiff) Stephen Christopher Critchley (First Defendant) Mudgee Wines Pty Limited (Second Defendant) PARTIES : Eurunderee Wines Pty Limited (Third Defendant) William James Whaley (Fourth Defendant) Jane Margaret McLean (Fifth Defendant) Mark Norman Thompson (Sixth Defendant) FILE NUMBER(S) : SC 6429/2008 COUNSEL : T Hall (Plaintiff) C Freeman (First to Fifth Defendants) SOLICITORS : Hall Partners (Plaintiff) Bell Lawyers (First to Fifth Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ACTING JUSTICE DEBELLE FRIDAY, 5 JUNE 2009 6429/2008 - DAVID CONWAY v STEPHEN CRITCHLEY & ORS JUDGMENT 1 HIS HONOUR: These proceedings concern disputes that stem from the sale and purchase of a winery at Mudgee. In his Statement of Claim the plaintiff seeks orders for several kinds of relief. He first seeks orders against the first to fifth defendants ("the defendants") that they deliver to him some 21,000 litres of wine as well as items of plant and equipment which he claims are items to which he is entitled to possession. He also seeks damages against the first defendant for breach of contract, breaches of fiduciary duty, in negligence, and for misleading and deceptive conduct contrary to the terms of the Fair Trading Act 1987. As against the second and third defendants he claims reimbursement for services provided to them. 2 The issues presently for determination on the plaintiff's Notice of Motion are limited. By his amended Notice of Motion the plaintiff has applied for two orders. The first is for leave to file an Amended Statement of Claim. On 3 June 2009 leave was granted to file the Amended Statement of Claim. The second is for an order for summary judgment in respect of his claim that the defendants deliver to him the wine and other items of plant and equipment. These reasons relate to the application for summary judgment. The parties 3 The plaintiff is a wine-maker at Mudgee. Without intending any disrespect, I will hereafter refer to him by his surname Conway. 4 There are six defendants in these proceedings. The first defendant, Stephen Critchley, is a public accountant practising at Penrith. He is a director of the second and third defendants. 5 The second defendant Mudgee Wines Pty Ltd is a company incorporated on 11 June 2008. Mr Critchley is the only director of that company and is its secretary. The shareholders of that company are Mr Critchley and the fourth and fifth defendants Mr Whalley and Ms McLean. As will become apparent, there had previously been another company called Mudgee Wines Pty Ltd. It is now in liquidation. It is a different company from the second defendant. 6 The third defendant is a company called Eurunderee Wines Pty Ltd. Mr Critchley is the only director of that company and is its secretary. The shareholders are Mr Critchley, Mr Whalley and Ms McLean. For convenience, I will call the third defendant "Eurunderee". 7 The fourth and fifth defendants, Mr Whalley and McLean, are police officers who also have interests as shareholders in the second and third defendants. 8 The sixth defendant is Mr Mark Thompson, a barrister. He has not entered an appearance but has sworn an affidavit in these proceedings. Old Mudgee 9 The first company to be called Mudgee Wines Pty Ltd was incorporated on 16 July 1976. For convenience, I will call this company "Old Mudgee". The plaintiff David Conway and his wife have been the only directors and shareholders of Old Mudgee since 1 February 2001. The registered offices of the company are at the premises of Mr Critchley. Mr Critchley was the company's accountant. The business of Old Mudgee was that of making wine. Its winery was situated at Henry Lawson Drive, Mudgee. I will refer to the land and premises from which it conducted its business as "the winery". 10 On 5 October 2006, an order winding up Old Mudgee was made in the Supreme Court of South Australia and a liquidator was appointed. Old Mudgee issued proceedings seeking orders setting aside or staying the winding up order. On 5 February 2007, the winding up order was stayed. The order made on 5 October 2006 is no longer in operation. 11 The National Australia Bank had lent money to Old Mudgee. Old Mudgee defaulted on the lending arrangements and on 26 March 2007 the bank appointed a receiver of Old Mudgee. The receiver was Mr David Leigh. 12 On 18 March 2008, an order was made in the Supreme Court of New South Wales winding up Old Mudgee. Old Mudgee is about to be deregistered. 13 By an agreement in writing made on 24 December 2007, Mr Leigh as receiver of Old Mudgee sold to Eurunderee the land, plant and equipment, wine stock and the goodwill of Old Mudgee for a total purchase price of $850,000. The purchase price was apportioned as follows: Land $500,000 Plant and equipment $149,000 Wine stock $200,000 Goodwill and Business name $ 1,000 Total $ 850,000 The contract was completed in April 2008. The resolution of Conway's claim for the wine and items of plant and equipment turn in part on the sale agreement. I will return to those questions. 14 After the receiver had been appointed, Conway continued to be employed at the winery. After Eurunderee had purchased the land and other assets from the receiver, it continued to employ Conway at the winery. 15 Among the issues raised in the Statement of Claim are questions concerning the entitlement of Conway and others to be directors and shareholders of Eurunderee and of Mudgee Wines Pty Ltd as well as other questions concerning the manner in which Mr Whalley and Ms McLean have taken up shares in those companies. Those issues are irrelevant to Conway's claims for the return of the wine and items of plant and equipment he seeks to recover. 16 On 23 November 2008, Mr Whalley, who was by then a shareholder in Eurunderee, denied Conway access to the winery. On 24 November 2008, Conway resigned as winemaker. In December 2008, Eurunderee appointed another winemaker. Since late November 2008 when access was denied to him, Conway has not been able to recover possession of the wine and items of plant and equipment the subject of these proceedings. He and his solicitor have made requests orally and in writing for the return of the goods but to no avail. A demanding requirement 17 Conway will be entitled to an order for summary judgment only if he satisfies the requirements of r 13.1 of the Uniform Civil Procedure Rules. Rule 13.1(1) is in these terms: "13.1(1) If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief: (a) there is evidence of the facts on which the claim or part of the claim is based, and (b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed, the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires." The requirement that Conway establish that the defendants have no defence is a substantial hurdle. It has been called a demanding requirement: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported). 18 Mr Conway must clearly demonstrate that the defendants have no basis upon which to defend his claim for the return of the items. That task has been variously described. A convenient list is contained in the reasons of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. Although that decision concerned an application by a defendant for summary judgment, the principles are applicable mutatis mutandis to a claim for summary judgment by a plaintiff. Conway will not be entitled to summary judgment if there is a real question to be tried: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99, or where there is any serious conflict as to a matter of fact: Sidebottom v Cureton (1937) 54 WN (NSW) 88. The expression "no real question to be tried" connotes such factors as whether the defendant really has a bona fide defence: Wallingford v Mutual Society (1880) 5 App Cas 685; Grimwade v Beresford (1974) 9 SASR 157 at 160, and that the defendant does not have an arguable defence that ought to be fairly tried: Lawrence v Griffiths (1987) 47 SASR 455 at 457 per Von Doussa J. To summarise, proceedings should not be determined in a summary way except in the clearest of cases: Agar v Hyde (2000) 201 CLR 552 at 575-6 [57], affirmed in Rich v CGU Insurance Ltd (2005) 214 ALR 370 at 375 [18]. With these injunctions in mind, I examine the evidence and the plaintiff's claim. 19 Mr Conway relies on four affidavits sworn by himself and on other affidavit evidence. The defendants rely on one affidavit only, an affidavit sworn by Mr Critchley. The issues will not be determined by the number of affidavits but by the probative value of the admissible evidence in the affidavits. 20 I will list the items claimed and then examine the evidence in relation to individual items or groups of items. Conway must establish that he is entitled to possession of each of the items claimed. The items claimed 21 Conway claims that the defendants are wrongfully detaining the following items: (a) 71 barrels of wine containing some 21,000 litres of 2006 vintage red wine; (b) A blue Ford tractor, 65 horse power with an annexed cabin; (c) A blue Iseki Tractor SX 75 model, 4WDm with an annexed cabin; (d) One Tornado single row (green foliage) sprayer with a 2000 litre (fibreglass) tank; (e) One Hyster forklift of 4 tonne GVM, having an 8 tonne lift capacity, yellow in colour; (f) Two 2000 litre stainless steel horizontal portable tanks (certified as food grade storage tanks); (g) One single row, 3 point linkage plough, brown in colour of manufactured by David Brown; (h) A (decommissioned) Massey Harris tractor of approximate build date 1948; (i) A Grunfos 3 phase black and silver in colour, stainless steel electrical pump purchased in 2008, having a capacity to pump water at an average pressure of 20 Bars; (j) Three concrete wine tanks with 2000 litre capacity and 6 concrete wine tanks of 1000 litre capacity; (k) A Harrow mulcher, blue in colour, of dimensions 2800 wide with an attached 3 point linkage attachment (for connection to a tractor); (l) A pink "silly plough" used for purposes of pulling behind a small tractor for uprooting earth underneath established vineyards; (m) An upright grape harvester, yellow in colour, of approximate dimensions 2400 mm wide by 3000 mm long by 3500mm high with an attached 3 pin linkage for attachment to a tractor; (n) One shed in collapsed state, being of constructed dimensions 10 metres by 4 metres and peripheral hardware, shed being of galvanised steel constructions; (o) Two air conditioning units, one being a split system unit and the other being a 5 horsepower 3 phase unit; (p) One refrigerator unit of commercial grade/application being of white colour steel construction and peripheral refrigeration devices; (q) Items of personal effects and household furniture, including cedar furniture and 10 cedar carver chairs and tables; (r) A wine filling machine of 34 head capacity and a screw compressor with an attached air tank; (s) One 6 foot slasher of dimensions 6 feet by 6 feet square, known as an 'in row' slasher blue in colour; (t) 33 storage tanks that are the subject of an agreement between the Bank of Queensland the plaintiff entered into in District Court proceedings 5198 of 2007 in about April 2009 including: (i) Two (2) new external 50,000L stainless steel tanks; (ii) One (1) new internal 35,000L stainless steel tank; (iii) One (1) new 25,000L stainless steel tank; (iv) Eight (8) new internal 10,000L stainless steel tanks; (v) Three (3) new internal 9,000L stainless steel tanks; (vi) Nine (9) new internal 5,000L stainless steel tanks; (vii) Three (3) new internal 6,000L stainless steel tanks; (viii) Two (2) new internal 3,000L stainless steel tanks; (ix) One (1) new internal 25,000L stainless steel tank; (x) Two (2) new external 90,000L Fibreglass tanks; and (xi) One (1) new external 22,000L concrete tank. All of these items are the subject of the plaintiff's claim for summary judgment. Undisputed items 22 By letter from the defendants' solicitor dated 19 February 2009, the defendants agreed to deliver the items in paragraphs (j), (n), (o), (p), (q) and (r). When the matter was called on for hearing on 27 May, the parties had not been able to agree a time and date on which Conway could collect the items. The parties have now agreed that Conway can collect those items between 9.00 am and 5.00 pm on Friday 5 June 2009. Barrels of wine 23 Mr Conway claims that the defendants are wrongfully detaining 71 barrels of wine containing some 21,000 litres of a 2006 vintage red wine. The defendants require him to establish the claim. They do not deny having possession of the barrels. 24 The receiver of Old Mudgee has sold wine stock to Eurunderee. The agreement for sale provides in clause 52 of the further conditions of sale that wine stock is one of the items being sold. Clause 56 stipulates that the price for the wine stock is $200,000 and by clause 54 the receiver states that he makes no representations as to the merchantable quality or condition of the wine stock. The expression "wine stock" is defined in clause 30.2 in these terms: " Wine Stock means the stock of wine stored on the property at completion being not less than 175,000 litres." Counsel for the defendants contended that Conway has not demonstrated that the 71 barrels of wine do not form part of the wine stock. 25 The expression "not less than 175,000 litres" is admittedly not precise. It has no doubt been used because it is not possible to state to the very litre the precise amount of wine that is the subject of the sale. Even if all due allowance is made for that fact, it is not realistic to conclude that "not less 175,000 litres" would include another 21,000 litres, a quantity that is some 12 per cent more than 175,000 litres. I reject this submission. 26 Moreover, that is not the only evidence. In his affidavit sworn on 24 December 2008, Conway gives evidence to the effect that there were two separate quantities of wine at the winery and that they were the 175,000 litres of premium grade red wine and the 21,300 litres of wine that is stored separately. I find that the 21,300 litres of wine is the same wine as is the subject of the claim for 21,000 litres. There is no evidence to the contrary of any of those assertions. Conway has also deposed in that same affidavit and in an affidavit sworn on 22 January 2009 that the wine is a wasting asset unless he is able to maintain, analyse and manage it. Conway intends to bottle and sell the wine. I accept that evidence. It is common knowledge that wine like many other products requires constant maintenance in production. In his affidavit sworn on 20 May 2009, Conway deposed that in late December 2006 and in January 2007 he purchased from Creek's Edge Winery 136 barrels of red wine for Heritage Estate, a name under which he and his wife carry on business. On 20 December 2006, 21 December 2006 and 19 January 2007 he paid Mr Simon Gilbert of Creek's Edge Winery for the wine by three cheques respectively in the amounts of $10,000, $6,000 and $4,131.25 drawn on an account styled "Heritage Estate". He moved 71 barrels of that wine from Mr Gilbert's winery to the winery land shortly before the receiver of Old Mudgee was appointed. There is no challenge to any of this evidence. It is entirely uncontroverted. I am entirely satisfied and I find that the 71 barrels are owned by the Conways and are a different quantity of wine from the 175,000 litres of wine that constitute the wine stock sold by the receiver. I am also satisfied and find that these 71 barrels are stored separately from the wine stock. As one of the owners, Conway is entitled to an order that the defendants deliver to him the 71 barrels of wine. Thirty three storage tanks 27 In order to determine Conway's claim for the 33 storage tanks in paragraph (t) it is necessary to consider the terms of the agreement by which the receiver sold the assets of Old Mudgee. Consideration of that agreement will also assist in the determination of the question whether Conway is entitled to other items. 28 The sale agreement had two annexures, Annexures A and B. Annexure A is a list of the items of plant and equipment sold by the receiver. None of the items in Annexure A are the tanks claimed by the plaintiff. 29 Clause 55 of the conditions to the agreement of sale provided that certain items were excluded from sale. The items excluded from the sale pursuant to clause 55 were listed in Annexure B. The items described in clause 55.1(a) were items that were subject to finance agreements. Those items included tanks that were subject to a finance agreement with a company described in clause 55 as Leasing Centre Pty Ltd. It is common ground that Leasing Centre Pty Ltd is incorrectly named. Its correct name is Leasing Centre (Aust) Pty Ltd. I will refer to it as "Leasing Centre". Leasing Centre is a company related to BOQ Equipment Finance Ltd ("BOQ"). 30 Annexure B included the tanks the subject of the agreement with Leasing Centre. Thirty three tanks are listed in Annexure B. It is implicit in clause 55 that the tanks remained on the property of Old Mudgee that was sold to Eurunderee. 31 Mr Conway advances his claim that he is entitled to possession of the 33 tanks in this way. He says that, as a result of an agreement with BOQ through its agent Leasing Centre, he and his wife are renting the tanks and are, therefore, entitled to possession of them. The agreement with BOQ was made in the following circumstances. Leasing Centre was leasing 33 tanks to Old Mudgee under a rental agreement dated 2 May 2005. Mr and Mrs Conway had guaranteed the obligations of Old Mudgee under the rental agreement. Old Mudgee defaulted in its obligations to BOQ and BOQ determined the rental agreement. In 2007 BOQ commenced proceedings in the District Court of New South Wales against Old Mudgee and the Conways to recover damages. The parties reached a compromise that was embodied in a deed of settlement between BOQ and the Conways. On 25 March 2009, orders were made by consent in the District Court. The effect of the orders and the compromise was that the Conways were to pay BOQ $180,663.78. That order was stayed upon terms that the Conways pay $80,000 to BOQ in instalments, the last payment to be made on 1 April 2010. BOQ remains the owner of the tanks which it now rents to the Conways pursuant to a new rental agreement. The amount of $80,000 is effectively the new rental. On payment of the final instalment of rent, the 33 tanks will be transferred to the Conways. Thus, the position is that the Conways are renting the tanks and are entitled to possession of them. 32 There is no dispute about any of the facts in the preceding paragraph. The defendants contend, however, that Conway has not established that the 33 tanks that are the subject of the rental agreement are at the winery. They contend that it is not possible to relate all of the 33 tanks listed in the deed of settlement between BOQ and the Conways with the 33 tanks in Annexure B. The argument is entirely without merit and I reject it. Most of the tanks are substantial stainless steel tanks ranging in capacity from one 2500 litre tank to two tanks each of 50,000 litres. Fifteen of the tanks each have a capacity of between 5000 litres and 10,000 litres. A further fifteen tanks each have a capacity of 10,000 litres or more. Most of these tanks are not readily transportable save perhaps for the two small fibreglass tanks. The receiver left the tanks on the winery land. The Conways have not moved them. There is evidence from three persons, two of whom were employed by Old Mudgee, that the tanks have remained at the premises at Henry Lawson Drive. There is no evidence that any other person has moved them. The defendants do not say that they have moved them. In addition to all of that evidence, recital G of the deed of settlement between BOQ and the Conways states that the tanks are situated on the winery land. The owner of the tanks would know where they are located. The evidence is overwhelming and very clear. I unhesitatingly find that all 33 tanks remain at the winery at Henry Lawson Drive and that they are the 33 tanks listed in Annexure B. Although BOQ continues to own the tanks, it rents them to the Conways and the Conways are entitled as renters to have possession of them. I will order the defendants to deliver up the 33 tanks to Conway. 33 The defendants also relied on the following clause in the deed of settlement between BOQ and the Conways. "2.2 BOQEF further agrees that the Conways can remove the equipment to another winery located within New South Wales provided that BOQEF is given 7 days notice of Conways' intention to do so." BOQEF is the company that I have called "BOQ". The defendants contend that the Conways have not proved that they have given notice to BOQ and so are not entitled to possession of the tanks. The contention is entirely without merit. In no respect does clause 2.2 assist the defendants. Clause 2.2 does no more than impose an obligation on the Conways to give notice to BOQ if they intend to remove the tanks to another winery. They cannot move the tanks unless and until they gain possession of the tanks and are in a position to move them. Once they have the tanks in their possession and are in a position to move them, they will be obliged to give seven days notice of their intention to do so. The Hyster forklift 34 Conway seeks to recover possession of the Hyster forklift in paragraph (e) of the list of items claimed. His evidence is that he is the person entitled to possession of it. However, in an affidavit sworn in the proceedings in the Supreme Court of South Australia to set aside the winding up of Old Mudgee, Conway had deposed that the forklift is owned by Mudgee Heritage Pty Ltd. Counsel for the defendants pointed to the fact that Mudgee Heritage Pty Ltd is not a plaintiff. Relying on Burnett v Randwick City Council [2006] NSWCA 196, he contended that Conway is thereby prevented from recovering possession of the forklift. 35 When the hearing resumed on 3 June, Mr Hall, solicitor for the plaintiff, tendered two affidavits. That evidence establishes that no company with the name Mudgee Heritage Pty Ltd has ever been registered. There is, however, a business name Mudgee Heritage Estate. It is one of the names under which a family partnership of Conway and Mrs Conway carries on business. I accept Conway's evidence that he had erred when swearing the affidavit in the proceedings in the Supreme Court of South Australia. I find that the reference in that affidavit to Mudgee Heritage Pty Ltd was made in error. I find also that there is no company called Mudgee Heritage Pty Ltd. The question whether Conway is entitled to the Hyster forklift must, therefore, be considered with the remaining items. The remaining items 36 I turn to the evidence as to all of the other items the subject of this claim. I will refer to them as "the remaining items". Conway's uncontroverted evidence is that he placed all of the remaining items on the winery land. It is implicit in his evidence that he is the owner of the remaining items and entitled to possession of them. There is no dispute that these items are at the winery. 37 None of the remaining items were the subject of the sale by the receiver. None are included in Annexure A. Given the obligations of the receiver to get in all of the property of which he was appointed receiver and sell it to discharge the liability to the bank, it is reasonable to infer that had any of these items been the property of Old Mudgee, the receiver would have sold them with the other items the subject of the agreement for sale. They were not sold by the receiver. It may also be inferred that, if any of the items claimed by Conway were assets of Old Mudgee, the current liquidator of Old Mudgee would have claimed them. No such claim has been proved. 38 In his affidavit sworn on 24 December 2008, Conway deposed that he placed the remaining items on the winery land. In his affidavit sworn on 22 January 2009, he referred to these items as his "tools of trade". Although he did not in either affidavit expressly state that he owned the goods, that is in all the circumstances a reasonable inference. In this context, it must be noted that, on 1 December 2008, Conway had sent Mr Mark Thompson a list the remaining items. That list stated that the items belonged to Conway and Mrs Conway. Mr Thompson sent that list to Mr Critchley asking him to identify those items that Mr Critchley said were owned by Old Mudgee. Mr Critchley did not respond. 39 Mr Critchley is in a position to be able to prove what assets were owned by Old Mudgee. As he has said in his affidavit, he has known Conway and Mrs Conway for more than 20 years and has prepared their personal tax returns as well as preparing financial statements and taxation returns for Old Mudgee. Those taxation returns would have included depreciation schedules listing items of plant and equipment owned by Old Mudgee. Notwithstanding his capacity to prove what assets were owned by Old Mudgee, he has not given evidence that any of the assets of which Conway claims possession are in fact the property of Old Mudgee. It is reasonable, therefore, to infer, as I do, Old Mudgee is not the owner of any of those goods or entitled to possession of them. 40 In paragraph 52 of his affidavit, Mr Critchley raised an issue in respect of the blue Iseki tractor that is item (c) on the list. He proved two tax invoices sent to Old Mudgee on 10 January 2006 and on 3 October 2006 for the costs of repairs to the Iseki tractor. It appears that Old Mudgee paid the cost of repairs. The fact that Old Mudgee paid the costs of repairs does not establish that it owns the tractor. As I have said earlier, Mr Critchley is in a position to state what assets are in fact owned by Old Mudgee. If the Iseki tractor had been the property of Old Mudgee, he is in a position to prove that fact. He has not done so. Furthermore, the receiver did not include it in the list of items of plant and equipment that he sold. This evidence does not gainsay Mr Conway's entitlement to possession of this tractor. 41 Although Conway has not expressly stated that he owned the remaining items, that is in all circumstances a reasonable inference. An examination of the facts relating to each item reinforces the conclusion that Conway is the owner of all of the items claimed. The defendants have not adduced any evidence denying Conway's claim to ownership of the items listed above. They have led no evidence putting his claim to possession in issue. There is nothing in the affidavit of Mr Critchley that denies Conway's entitlement to possession. His affidavit exhibits a schedule (pages 300 to 302 of Exhibit CSC1) that points to a need for the plaintiff to prove ownership and entitlement to possession of the disputed items. But that does not constitute a denial of the plaintiff's evidence. Instead, the schedule constitutes an admission that the defendants have the disputed items in their possession. In the case of most of the items in his schedule Mr Critchley asserts that each was included in the sale by the receiver. That assertion is belied by the receiver's agreement for sale. If, in fact, any of these items had formed part of the agreement for sale it would have been listed in Annexure A. If there is other evidence that these items are not owned by Conway, Mr Critchley would be in a position to adduce that evidence. He has not done so and it is reasonable to infer that it does not exist. Conway has stated that that he is entitled to possession of the remaining items. I am entirely satisfied with this claim. There is no evidence to the contrary. Simply put, the defendants have not advanced any evidence that they have a defence. I am entirely satisfied that the defendants have no defence to Conway's claim to recover the remaining items. I, therefore, find on the balance of probabilities that Conway is entitled to possession of them. I will, therefore, order that the defendants deliver those items to him. 42 While it has been necessary to trace through the evidence to establish either ownership or an entitlement to possession of the items claimed by Conway, the evidence very clearly establishes that Conway is the owner of all items or is otherwise entitled to possession of them. I am entirely satisfied that the defendants have no defence to any of Conway's claims to recover possession of the items claimed in these proceedings. The evidence is so clear that this is a proper case in which to grant summary judgment. A claim for the costs of repairs 43 Many of the remaining items are plant and equipment suitable for use in managing and operating a winery. The defendants say that they have incurred expense in repairing some of the items to make them fit for use. They seek to be reimbursed for the costs of repairs. The claim was made at a late stage and was not supported by evidence. Mr Critchley's affidavit contained no reference to this claim. Where a defendant has been ordered to deliver goods to a plaintiff and the defendant has added to the value of those goods, the plaintiff must be prepared to make fair allowance for the improvements in value: Greenwood v Bennett [1973] QB 195, McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 308. It is not possible to determine this belated claim. There is no evidence of the cost of repairs or of what items of plant and equipment were repaired. There is no evidence that the cost of repairs has increased the value of those items that were repaired. There may be questions on such issues as whether the items of plant and equipment were lawfully used by the first to fifth defendants and whether the need for repairs was caused by their use of the items that were repaired. There may be questions whether the cost of repairs should be offset by a claim Conway for the loss of the use of those items of plant and equipment. The claim might also be offset by reason of the fact that the defendants were able to use plant and equipment belonging to Conway and thereby avoid the cost of leasing or purchasing like plant or equipment. The claim for cost for repairs has all the appearances of an afterthought made to delay Conway in the execution of any judgment to have these items delivered to him. The claim should not be permitted to prevent Conway from recovering the items of personal property which he is entitled to possess. The defendants are at liberty to pursue any claim for the cost of repairs by way of a cross-claim in these proceedings. In that way, the court will be able to determine whether in fact the defendants have a valid claim for the cost of repairs. Conclusion 44 For these reasons, there will be an order that the defendants deliver to the plaintiff all of the items of personal property the subject of the claim in detinue. As some of those items are to be delivered to the plaintiff today, the order will specify the items the subject of the orders. The first to fifth defendants will have leave to make a cross-claim for the cost of repairs. They will be listed on a schedule to the order of the court. The parties have made submissions on the question of costs. The first to fifth defendants shall pay the plaintiff's costs of and incidental to the application for summary judgment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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