New South Wales Supreme Court CITATION : Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd (No 2) [2009] NSWSC 1416 HEARING DATE(S) : 16 December 2009 JUDGMENT DATE : 16 December 2009 JUDGMENT OF : R A Hulme J DECISION : Defendants' motion dismissed with costs. CATCHWORDS : PROCEDURE - judgments and orders - amending - varying and setting aside - contention that judgment given without appreciation of significance of certain evidence - contention rejected LEGISLATION CITED : Uniform Civil Procedure Rules 2005 CASES CITED : Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd [2009] NSWSC 571 PARTIES : Rapid Metal Developments (Australia) Pty Limited (Plaintiff) Anthony De Vries and Riad Tayeh as joint administrators of Rildean Pty Limited (Defendants) FILE NUMBER(S) : SC 13806/05 COUNSEL : Mr V Gray (Plaintiff) Mr M Ashhurst SC (Defendants) SOLICITORS : JGP Lawyers (Plaintiff) PMF Legal (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION R A Hulme J 16 December 2009 13806/05 Rapid Metal Developments (Aust) Pty Limited v Anthony De Vries & Riad Tayeh as joint administrators of Rildean Pty Limited JUDGMENT 1 HIS HONOUR: I heard this matter over a number of days in March 2009. On 26 June 2009 I delivered judgment on the question of liability in favour of the plaintiff and gave directions as to the resolution of issues of quantum and costs. See Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd [2009] NSWSC 571 ("the principal judgment"). 2 On 29 June 2009 there was filed on behalf of the defendant a Notice of Motion seeking that the judgment be recalled pursuant to Rule 36.16(3A) of the Uniform Civil Procedure Rules 2005. Also sought are orders that the plaintiff's amended statement of claim be dismissed and that the plaintiff pay the defendants' costs. The plaintiff resists the motion. 3 It was apparently assumed that the judgment would have been entered by the time the Notice of Motion was filed. UCPR r 36.11(2) provides that unless otherwise ordered, a judgment (or order) is taken to be entered when it is recorded in the court's computerised court record system. This Court has a computerised court record system but a recent inquiry has indicated that although the Court Registry were notified of the judgment, for reasons unknown it was not entered. Accordingly, there is power to set aside or vary the judgment pursuant to UCPR r 36.16(1). 4 I was referred to a number of authorities, the principal one of which was Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, concerning the power of a court to recall and set aside or vary a judgment or order. It is unnecessary to turn to them because the matter may be dealt with quite briefly. Basis upon which the defendant seeks to recall the judgment 5 The complex factual background to the matter is set out in detail in the principal judgment. It will suffice for present purposes to say that a threshold issue in the proceedings was the plaintiff's claim that items of scaffolding hired by it to Rildean Pty Limited ("Rildean") were still in Rildean's possession at the time that Mr Anthony DeVries and Mr Riad Tayeh ("the defendants") were appointed as joint administrators of Rildean on 18 July 2002 ("the date of appointment"). I held in favour of the plaintiff on this point. 6 It was the plaintiff's case that such scaffolding came into the possession of the administrators on that date and they had not only failed to return the vast majority of it but subsequently committed an act of conversion. I also held in favour of the plaintiff on these points. 7 It is now claimed on behalf of the defendants that in make those findings I "may not have appreciated the significance of the evidence" of Mr Brian Baker and Mr Donald Campbell. Their evidence was generally to the effect that Rildean acquired scaffolding from a number of sources, including the plaintiff, which it then on-hired to various building and construction sites around the metropolitan area of Sydney. When items were returned from building sites they were stored in a yard without any reference to the owner of the items. When items were returned to companies from which they had been hired, the items were not sorted in a way that ensured that the hiring company received back the exact items that it had hired. In other words, the evidence was to the effect that there was a general mixing of items of scaffolding and that no-one really cared whether they were sent or received items that actually belonged to them so long as the items were of the required number and type. 8 The upshot of the contention is that there is no way that one could be satisfied on the balance of probabilities that all of the items hired by the plaintiff to Rildean from September 2001 to March 2002 and that had not been returned to the plaintiff were still on hand with Rildean as at the date of appointment. Submissions 9 The following appears in written submissions filed on behalf of the defendants: 14 The critical finding to the present application is that "all of the items claimed by the plaintiff came into the possession of the defendants upon their appointment" (Principal Judgment at [82]). 15 Integral to this finding were the following conclusions purportedly drawn from the evidence: a. The possibility that RMD scaffolding may have become lost, damaged or stolen at building sites, or returned to other hirers "could hardly be thought to account for anywhere near the majority of RMD items" (Principal Judgment at [64]); b. "Rildean did not lose any of RMD's scaffolding" (Principal Judgment at [64]); c. "There is no direct evidence, or evidence that would justify a reliable inference, that any of the [26,731 items of scaffolding on hire from RMD to Rildean as at 18 July 2002] were lost or the like" (Principal Judgment at [79]); and d. "there was no evidence that any items of scaffolding were "lost" between the date of appointment and the date of sale" (Principal Judgment at [115]). 10 The submissions then referred to the evidence of Mr Baker and Mr Campbell, the effect of which I have summarised above, before continuing: 21 It is clear from the extracts at paragraph 15 above that the focus of his Honour's attention in finding that "all of the items claimed by the plaintiff came into the possession of the defendants upon their appointment" (Principal Judgment at [82]) was on whether there was evidence of the items of scaffolding claimed by the plaintiff had been lost by Rildean (sic). 22 In focusing on this issue, his Honour, with respect, may not have fully appreciated the significance of the evidence of Mr Baker and Mr Campbell that scaffolding (including the plaintiff's scaffolding) was regularly returned to third paries. In this regard it is respectfully submitted that his Honour "proceeded on a misapprehension as to the facts" (see Mason CJ in Autodesk (No. 2) ). (Emphasis added). 23 Once this evidence is taken into account (and it should be noted that neither Mr Baker nor Mr Campbell were ever challenged on this evidence), it is respectfully submitted that the Court cannot infer that all the items of scaffolding claimed by the plaintiff remained in the possession of Rildean as at 18 July 2002. In this regard the plaintiff bears the onus of proving that the items of scaffolding returned to third parties during the period 21 September 2001 and 16 March 2002 were not the plaintiff's. The plaintiff has not sought to adduce such evidence. Indeed, the positive evidence of Mr Campbell and Mr Baker is that no records were kept of how much of the scaffolding that was returned to third parties was the property of the plaintiff. 11 I emphasised a portion of [22] of the submissions. I seriously doubt that it is appropriate, in accordance with the authorities to which I was referred, to seek to set aside a judgment because of a possibility that the Court did not appreciate the significance of a particular piece of evidence. What it appears the defendants seek to do on the present application is to have me reconsider evidence that I have already considered but now to come to a view about it that is different to the view I took in the judgment. There is no need, however, to dwell upon the technicalities of the motion. Consideration 12 I reject the contention that the "focus" of my attention was upon whether there was evidence that the items of scaffolding claimed by the plaintiff had been lost by Rildean. The items extracted from the principal judgment in the written submissions at paragraph 15a and 15b need to be understood in the context of the whole of paragraph [64] of the principal judgment: 64 The defendants referred to the evidence of the possibility that RMD scaffolding may have become lost, damaged or stolen at building sites, or returned to other hirers . That possibility, however, could hardly be thought to account for anywhere near the majority of RMD items. Regard must be had to the relatively short period of the relationship between RMD and Rildean. If it was a relationship that had extended over some years, then the inference of loss, damage, theft, or return to other hirers might be more significant. The plaintiff acknowledged that evidence but submitted that there was no evidence that any items were in fact lost , either in the period 19 September 2001 to 18 July 2002, or from then until the sale in November 2004. Therefore, it was submitted, the court should infer that Rildean did not lose any of RMD's scaffolding. I accept that submission. In the absence of direct evidence or a reliable basis to draw that inference, to conclude otherwise would be speculative. (Emphasis added). 13 The use of the terms "lost" and "lose" in the 5th and 6th sentences were intended as shorthand references to the multiple concept twice referred to earlier in the paragraph and emphasised in the quote above. I concede that it might have been clearer if I had used an expression such as "lost or the like". I did not, however, expect that having twice referred to lost/loss in direct conjunction with three other possible means by which Rildean might no longer have been in possession of items of scaffolding that the two subsequent references would be taken to mean that within that one paragraph I had suddenly confined my consideration to only one of those possible means. 14 I note that in the course of closing addresses on 10 March 2009, senior counsel for the defendants sometimes used the terms "lost", "lose" and "losses" but was obviously intending to refer to the variety of means by which the plaintiff's scaffolding might no longer have been in the possession of Rildean at the date of appointment (see, for example, T186.29, 186.38, 187.2-.3, 217.23-.25, 222.26-.33). Written submissions by senior and junior counsel for the defendants of 10 March 2009 also adopted the same shorthand expression (at [16]). 15 In discussing my conclusions on the issue of possession I once used the expression "lost or the like" (at [79]). I would have expected that this would be taken to be a reference to the four parts of the concept I had twice referred to at [64]. I certainly intended that it would be taken that way. A short time later, (at [82]) I used the term "lost" but it was also intended to be understood in the composite sense. At [100] and [115] I used the word "lost" but it appears in inverted commas to signify it had the composite meaning. 16 I can confirm that I was well aware of the significance of the evidence of Mr Baker and Mr Campbell. Earlier in the principal judgment I discussed that evidence at some length. My awareness of the significance of it was the very reason I referred to the defendants' contention concerning the "possibility that RMD scaffolding may have become lost, damaged or stolen at building sites, or returned to other hirers". 17 The submission made now on behalf of the defendants is that once the evidence of Mr Baker and Mr Campbell is accepted, it is not possible to infer that all of the items of scaffolding claimed by the plaintiff remained in the possession of Rildean as at the date of appointment. It is also contended in this context that the plaintiff bore the onus of proving that items of scaffolding returned to third parties were not the plaintiff's. 18 The short answer to this is that I was satisfied that the items of scaffolding hired by the plaintiff to Rildean actually found their way into the possession of Rildean and I was not prepared to accept that any of it was subsequently transferred to one or more of the third party hirers because (a) there was no direct evidence of this, and (b) the inference that this occurred was speculative. It should be noted that the evidence of Mr Baker and Mr Campbell was put in very general terms. They provided no direct evidence of the plaintiff's scaffolding going to any third party. At its highest, their evidence raised this as a possibility but to infer that this in fact occurred I regarded as a matter of conjecture. Clearly the plaintiff bore the onus of proof and I was satisfied that it had been discharged. 19 When I heard submissions concerning the motion on 16 December 2009 I indicated that I proposed to dismiss it. The foregoing are my reasons. Orders 20 The defendant's motion is dismissed. 21 The defendant is to pay the plaintiff's costs. ********** 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.