New South Wales Supreme Court CITATION : Leighton v Stieger [2009] NSWSC 650 HEARING DATE(S) : 24 June 2009 JUDGMENT DATE : 24 June 2009 JURISDICTION : Equity Division JUDGMENT OF : Ward J EX TEMPORE JUDGMENT DATE : 24 June 2009 DECISION : Judgment for the plaintiff. CATCHWORDS : CONTRACTS - general contractual principles - consideration - contract for sale of utility vehicle - total failure of consideration - action for money had and received - no question of principle CATEGORY : Principal judgment PARTIES : Sebastian Leighton (Plaintiff) Timothy Stieger (Defendant) FILE NUMBER(S) : SC 4302 of 2008 COUNSEL : J de Mattia (S) (Plaintiff) No appearance (Defendant) SOLICITORS : John de Mattia & Co (Plaintiff) No appearance (Defendant) - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WARD J WEDNESDAY 24 JUNE 2009 4302/08 - SEBASTIAN LEIGHTON v TIMOTHY STIEGER JUDGMENT 1 HER HONOUR: In this matter the plaintiff brought an application by way of statement of claim for specific performance of an agreement alleged to have been entered into on or about 20 April 2008 pursuant to which the plaintiff alleges that the defendant agreed to sell him a Holden utility motor vehicle for the sum of $21,000. In the alternative, damages were sought in the sum of $25,500 by reference to a claim for breach of the agreement (being recovery of the sum of $16,500 part-paid by the plaintiff to the defendant and loss of bargain damages in the amount of $9,000 based on a market value of the vehicle particularised at $30,000). In the alternative, $16,500 was sought for money had and received by the defendant to the use of the plaintiff. 2 The defendant, who was represented at the start of the proceedings by Higgins & Higgins Lawyers, filed a defence on 19 November 2008 in which he denied each of the allegations contained in the statement of claim. The defendant said that on or about 20 April 2008, being the date on which the plaintiff say the oral agreement for sale was entered into, he had a conversation with the plaintiff in which he (the defendant) indicated that he was contemplating selling his motor vehicle for at least $23,500, and that, during the conversation, the plaintiff indicated an interest in buying it. The defendant denies entry into any agreement to sell the motor vehicle; denies receipt of any money from the plaintiff; and says that the plaintiff made no offer then, or subsequently, to purchase the motor vehicle. He denies all the claims for relief. 3 On 15 June 2009 the defendant's solicitor filed a notice of ceasing to act as the legal representative of the defendant in the proceedings. There has been no appearance of the defendant in court before me today, nor was there any appearance when the matter was listed before me for pre-trial directions on 22 May 2009. The plaintiff has by leave filed affidavit evidence in court today, deposing to the service of notice on the defendant, care of his brother, on 5 June 2009 of a copy of the orders and directions which I made on the last occasion the matter was before me (22 May 2009), and notifying the defendant that the matter would be heard and dealt with today. The plaintiff also relies on an affidavit of his solicitor, John De Mattia, sworn 23 June 2009 in which Mr de Mattia deposes to having effected personal service on the defendant of documents in relation to the hearing and having informed the defendant that the matter would be heard at twelve noon today. 4 The plaintiff has filed a number of affidavits sworn by himself and by family members and other individuals in relation to his claim. I have marked as exhibit A in the proceedings affidavits of the defendant (Timothy Stieger) affirmed 6 December 2008 and his father, Peter Stieger, affirmed 6 December 2008 which are tendered by the plaintiff as evidence of the admissions contained therein that a conversation took place on 11 July 2008 at the defendant's home address in relation to the vehicle, and as to the fact that the vehicle was in the defendant's possession at that time. I note that the defendant denies the terms of the conversations alleged by the plaintiff, but has apparently chosen not to attend to be cross-examined on his affidavit or to defend the claim. 5 The affidavits of the defendant and his father depose to potential difficulties in the defendant meeting repayments on the utility following the cessation of his employment. In the bundle of documents served in accordance with my pre-trial directions, which I have marked exhibit B, there is evidence that the vehicle in question is jointly owned by the defendant and his father, and is the subject of mortgage finance from Capital Finance. 6 The plaintiff deposes to having paid the defendant the sum of $15,000 in cash (which he obtained on the sale of his own vehicle to Mr Greenham, who gave evidence corroborating this) at the plaintiff's home at Warrimoo on about 27 April 2008; a subsequent sum of $1,000 in cash at the said home on 2 May 2008 and a subsequent sum of $500 on 9 May 2008. He deposes to an agreement with the defendant to vary the agreement and to deliver the utility to the plaintiff on 17 May 2008 upon payment of a further $500 and that the balance of the price was to be paid by instalments of $150 per week. There is no dispute that the instalments have not been paid. 7 Mr James Rubio, a former workmate of the defendant and a friend of the plaintiff, swore an affidavit that in May 2008 the defendant had shown him "a lot of money" and told him that the plaintiff had paid a deposit for the utility. 8 There was affidavit evidence filed by the plaintiff and two of his relatives (his mother and his uncle) that they attended the defendant's home at Blackheath on 11 July 2008 and observed the utility on the property. There is evidence that on that date the defendant admitted to both the plaintiff and to the plaintiff's mother that he had received the sum of $16,500 from the plaintiff. The plaintiff's uncle (Peter O'Toole) has sworn an affidavit that the defendant had admitted that he lied about damage the utility and that had said that he would have the money for the plaintiff on the Monday. 9 The plaintiff's mother deposed in her affidavit to the fact that she spoke to the defendant on the telephone in June 2008 in which conversation the defendant said he would refund the sum of $16,500 to the plaintiff. A complaint was made by the plaintiff and his mother to Springwood Police on 29 June 2008. The plaintiff's mother also deposed to a conversation with the defendant on 3 July 2008 in which the defendant said that a bank loan of $16,000 had been approved and that $16,000 would be paid to the plaintiff on or about 8 July 2008. 10 The plaintiff's father also swore an affidavit as to a conversation with the defendant on 11 July 2008 in which the defendant said he would compensate the Leighton for all of the money owed by the defendant to the plaintiff. 11 In the circumstances I find, as a matter of fact, that there was an agreement on the part of the defendant to sell his motor vehicle to the plaintiff for the sum of $21,000. I accept the plaintiff's evidence that the original agreement was varied to provide for delivery of the utility to him on 17 May 2008 with the then balance of the price to be paid by way of instalments of $150 per week. The evidence is that the plaintiff paid a sum totalling $16,500 for the vehicle and that the vehicle was not delivered by the defendant, in breach of the agreement. 12 There is also evidence before me that the defendant had misled the plaintiff as to a claimed accident involving the utility and insurance claim in relation to the utility. I do not propose to summarise the balance of the evidence before me. Suffice it to say that, on the evidence before me, I accept there was an agreement for the sale of the vehicle, that there was a breach by the defendant of that agreement, and that the plaintiff has a claim for damages for breach of that agreement or in the alternative for money had and received in relation to the amount paid by him in respect of the agreement, (the consideration for which has wholly failed). 13 In relation to the claim for specific performance, it is conceded by the plaintiff that in circumstances where the evidence now shows that the vehicle is jointly owned, and where the co-owner, Mr Peter Stieger, is not a party to (though he is clearly aware of) the proceedings, and where the vehicle is mortgaged to Capital Finance, it is not a case where an order for specific performance is appropriate, even if specific performance would otherwise have been available. I note, therefore, that it is not necessary for me to consider whether or not damages would have been an adequate remedy in light of the circumstance of potential financial difficulty on the part of the defendant. 14 There is evidence before me as to the market value of the vehicle. Reliance was placed on an affidavit of the plaintiff sworn 3 June 2009, annexing a market certificate valuation for the vehicle which shows a private sale price of $22,200. The basis on which the value of the vehicle had previously been particularised at $30,000 was the defendant's assertions to that effect. I do not think that I can place any reliance on what the defendant said at the time in relation to his perception of the value of the vehicle. 15 Given that the loss of bargain damages would be minor, having regard to what I consider the market value of the vehicle is, as at today's date on valuations shown to me, I was informed that the plaintiff does not press his claim for loss of bargain damages but pressed his claim of $16,500 for money had and received. I consider that the plaintiff has established that claim and I propose to order that the defendant pay to the plaintiff $16,500, plus interest calculated at the Supreme Court rates from the date on which a demand for repayment of $16,500 was first made. I therefore think it is appropriate that interest be calculated from 23 July 2008 at Supreme Court interest rates. I will also order that the defendant pay the plaintiff's costs of the proceedings. 16 I note that when the proceedings commenced an order was made by consent, at a time when the defendant was represented in these proceedings, that the defendant not sell, transfer, or deal with the utility the subject of the agreement other than with the written consent of the plaintiff until judgment was entered in these proceedings. It has been put to me, by way of submission, that (by reference to the documents produced on subpoena by Capital Finance) there is evidence that the repayments for the vehicle have so far been kept up-to-date. In Mr Peter Stieger's affidavit, he says that his son has kept the motor vehicle payments up-to-date. I am told that if he continues to do so, the vehicle will be paid out at some date in 2010. 17 Therefore, the plaintiff seeks an additional order, effectively for an extension of the operation of the regime which was put in place by consent on 12 December 2008. I think it is appropriate to make that order. Therefore I will further order that, until payment in full of the judgment amount and the plaintiff's costs of these proceedings, the defendant not sell, transfer, or deal with the said utility other than with the written consent of the plaintiff. ********** 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.