Supreme Court New South Wales Medium Neutral Citation: Redford v Slattery [2011] NSWSC 294 Hearing dates: 31 March and 1 April 2011 Decision date: 15 April 2011 Before: Tamberlin AJ Decision: 1. Declares that the first plaintiff, Mr Alan Edward Redford, is the owner of the motor vehicle registered number BG10WG being a 2002 Ferrari Model 36099A Chassis number ZFFYR51C000126614. 2. Orders the first defendant to do all acts and things necessary to deliver possession of the motor vehicle together with all keys and other items connected with the said vehicle to the first plaintiff forthwith. 3. Orders judgment and verdict for the second plaintiff, Mrs Nada Redford, against the first defendant for repayment of all amounts outstanding under the loan of $60,000 made by the second plaintiff to the first defendant on 16 June 2008, including all interest thereunder. 4. Orders judgment and verdict for the third plaintiff against the first defendant in respect of all moneys outstanding under the loan made by the third plaintiff Nadalan Enterprises Pty Ltd to the first defendant on 24 October 2008, including all interest thereunder. 5. Orders that the cross-claim be dismissed with costs. 6. Orders that the first defendant pay the costs of the plaintiffs of this proceeding. Catchwords: CONTRACT - whether parties entered into agreement for purchase of vehicle - whether any moneys outstanding under agreement - whether declaration should be made in favour of first plaintiff as to ownership of vehicle. CONTRACT - whether parties entered into agreement for loans - whether any moneys owing under loan agreements. EVIDENCE - witnesses - credibility. Category: Principal judgment Parties: Alan Edward Redford (First Plaintiff/First Cross-Defendant) Nada Redford (Second Plaintiff/Second Cross-Defendant) Nadalan Enterprises Pty Ltd (Third Plaintiff/Third Cross-Defendant) Mitchell Ron Slattery (First Defendant/First Cross-Claimant) Big Boy Toys International Pty Ltd (Second Defendant/Second Cross-Claimant) Representation: Counsel: R E Quickenden (Plaintiffs/Cross-Defendants) In person (Defendants/Cross-Claimants) Solicitors: Felicio Law Firm (Plaintiffs/Cross-Defendants) In person (Defendants/Cross-Claimants) File Number(s): 2010/273554 Judgment 1By Amended Statement of Claim filed 24 September 2010, the first plaintiff, Mr Alan Redford, seeks an order that he is the owner of a 2002 Ferrari Modena sports car. Mr Redford alleges a breach of an agreement by the defendant, Mr Slattery, in arranging to purchase the vehicle on Mr Redford's behalf. In addition, the second plaintiff, Nada Redford, seeks repayment of a loan by her to Mr Slattery for an advance of $60,000 together with interest. The third prayer for relief seeks repayment of the balance of a $50,000 loan by Nadalan Enterprises Pty Ltd (Nadalan) on 24 October 2008 and interest thereon. 2The defendants in this proceeding are Mr Slattery and his company, Big Boy Toys International Pty Ltd. By Amended Defence filed on 18 March 2011 Mr Slattery and his company deny the loans and the agreement as alleged by Mr Redford for the purchase of the Ferrari vehicle and cross-claim for a declaration that the Ferrari is owned by Mr Slattery or his company. Mr Slattery seeks damages for a claimed reduction in the value of the vehicle arising from the breach by Mr Redford. ISSUES 3The issues are: 1. Who has the title and right to possession of the Ferrari vehicle? 2. Whether any moneys are due by Mr Slattery or his company to the second and third plaintiffs in respect of alleged loans made by them. 3. Whether any money is payable by the plaintiffs to Mr Slattery. BACKGROUND 4Mr Alan Redford is the general manager of Nadalan which is a company owned by his wife Nada. 5In February 2010 Mr Redford had discussions with Mr Slattery regarding the importation of exotic luxury cars from England. Mr Slattery informed Mr Redford that he was bringing in a Ferrari 360 Spyder which would cost about $110,000 and would sell for $200,000 making a substantial profit. Mr Redford expressed interest in bringing in one for himself. 6Mr Slattery proposed the purchase of a 2002 Ferrari Modena which he said he could get for around 45,000. Mr Redford believed this would sell in Australia for in excess of AU$180,000. 7Mr Redford and Mr Slattery then decided to import the vehicle from a company named Driven Image Ltd (Driven Image) and Mr Slattery undertook to organise the purchase. At that stage Mr Redford regarded Mr Slattery as a future son-in-law as he was living in a de facto relationship with his stepdaughter Alana Giblin, who is the daughter of his wife Nada. Mr Slattery informed him that he intended to start up a business and that the importation of the Ferrari would be a good test case. 8Mr Redford offered to give a commission to Mr Slattery for the importation. On or about 1 March 2010 Mr Slattery confirmed that he would proceed. Mr Redford then paid Mr Slattery an amount of $80,000 at the request of Mr Slattery comprising an estimate of the cost of the car at AU$78,000 and $2000 for work on it. This version of events is contested by Mr Slattery. 9On 2 March 2010, Mr Redford authorised the bank to transfer $80,000 so that approximately $78,000 could be transmitted to Driven Image and the balance to Mr Slattery for expenses. The telegraphic remittances were duly made to the English company by Mr Slattery on 2 March 2010. 10In mid-March 2010, Mr Redford says Mr Slattery gave him a Bill of Sale from Driven Image dated 9 March 2010 and was assured by Mr Slattery the vehicle was on its way. In response to a request from Mr Slattery, Mr Redford paid a further amount of $20,000 in cash to Mr Slattery to cover the cost of compliance checks and registration. 11By June 2010 Mr Redford became anxious that he had not seen the car and began to press for details from Mr Slattery as evidenced by a series of SMS text messages tendered. No satisfactory response was made by Mr Slattery. Mr Redford saw Mr Slattery driving a red Ferrari multiple times in June 2010. Mr Redford was assured by Mr Slattery that the car he was driving was his own and that the car they had purchased was in Sydney at the compliance centre. 12On 2 July 2010, Mr Redford became aware that Mr Slattery had possession of the vehicle, had been stopped by police driving it and that he was given a warning notice for driving whilst having a suspended licence. 13In mid-July Mr Redford spoke with Mr Slattery who gave him possession of the car and a set of keys and compliance papers and Mr Redford drove the Ferrari home. On 16 July Mr Redford drove the car to get a blue slip and thereafter he says he drove the car home and parked it and then went to the Roads & Traffic Authority to register it. Mr Slattery says that he had possession of the vehicle on 16 July and that the evidence of Mr Redford should not be accepted. 14At this point I note that the compliance papers are dated 10 June 2010 and that the blue slip, together with a detailed inspection report are dated 16 July 2010. There is also a printout which indicates that the brakes were examined on that date at 10.46 am. The blue slip inspection report records the vehicle owner as Alan Redford. The Bill of Sale on the letterhead of Driven Image is dated 9 March 2010, and states that the buyer is Alan Redford. The authenticity of the Bill of Sale and of the other documents is challenged by Mr Slattery as being falsified records. 15I note that the telegraphic transfer confirmation in evidence dated 2 March 2010 shows that $78,151.26 was transmitted to Driven Image on that date and that a further sum of $3,191.02 was remitted on 12 March 2010. In both cases the remitter was Mr Slattery. There was a further telegraphic transfer confirmation of 25 March 2010, showing an amount of $27,101.63 remitted by Mr Slattery to Control Global Logistics Pty Ltd. 16There is also in evidence a sales invoice on the letterhead of Driven Image for an amount of 48,700 which shows the customer's name as Mr Slattery. 17Mr Redford says that on 17 July 2010, which was a Saturday morning, he parked the car in his driveway and washed it. Afterwards he went with his wife to his mother-in-law's house at North Parramatta and stayed the night there. On returning home late on 18 July 2010 he found the Ferrari had disappeared. He says that Mr Slattery had kept a set of keys in addition to those which he had earlier been given by Mr Slattery. 18On 22 July 2010, Mr Redford went to Mr Slattery's house and saw the Ferrari parked in his driveway. There was a series of subsequent disputes between the parties and on 19 August 2010 an order was made at the Gosford District Court permitting Mr Redford to take possession of the vehicle. The matter was subsequently listed for hearing before this Court. On 23 August 2010, Smart AJ made an order that the vehicle should be held by Mr Redford for the duration of the proceeding and not driven. OWNERSHIP 19In determining the question of ownership the relative credibility of Mr Redford and Mr Slattery is of central importance. 20The evidence of Mr Slattery was shown under cross-examination to be unreliable to such an extent that in cases of conflict with other evidence I accept the evidence of the other witnesses unless Mr Slattery can establish that his version of events is supported by documentary material, established facts or other corroboration. 21He was non-responsive in evidence and argumentative in the extreme and to a large extent based his evidence on unfounded speculation and assumption. Much of his evidence was inconsistent and appeared to have been fabricated to explain away documented facts. For example, he alleged in evidence that compliance papers were taken from him by Alana Giblin after they ceased to live together in May 2010, but there was no evidence whatsoever to establish this. These documents were said to include compliance papers which did not exist until June 2010. This evidence was clearly designed to suggest that Mr Redford obtained the compliance papers and unlawfully used them to fraudulently obtain registration of the vehicle. He also suggested that Alana was running her own business and had substantial debts to him as a result. Alana denies this and produced income tax returns to show that she was an employee of the company of Mr Slattery. Moreover, at the time she was a young and commercially inexperienced lady of about 20 years of age and it is highly unlikely that she would have been running any business on her own account whereby she could run up the substantial debts alleged by Mr Slattery. 22In addition, to make good his case, Mr Slattery asserted that important documents such as the inspection certificate of 16 July 2010, the Bill of Sale of 9 March 2010, the brake inspection certificate of 16 July 2010, the registration papers and insurance papers were all false, but called no evidence to support these serious allegations. This evidence was directed to support the proposition that he was in possession of the vehicle on 16 July 2010 and that Mr Redford was engaged in collaboration with others in a conspiracy to fraudulently prove the title of the vehicle. However, this evidence is in substance contrary to that of eyewitnesses as to the location of the car on the morning of 17 July 2010 at the premises of Mr Redford in a position where it was extremely difficult to remove the vehicle without being obstructed by another vehicle in the driveway. 23In addition, he was not frank about his financial position and he made assertions as to rental debts without any documentary support. 24In contrast the evidence of Mr Redford and other witnesses called for the plaintiffs was not weakened in cross-examination in any way and I accept the plaintiffs' evidence in preference to that of Mr Slattery where there is a conflict. Possession of the vehicle on 16 July 2010 25Mr Slattery sought to establish that he, and not Mr Redford, had possession of the vehicle on 16 July 2010, thereby throwing into doubt the documents concerning registration and inspections of the vehicle on that date which go to establishing the sole ownership of the vehicle by Mr Redford. For the reasons set out below, I reject Mr Slattery's assertion of possession of the vehicle on that date. 26Mr Slattery called evidence from Ms McFarland, a hairdresser at Avoca Beach, and produced a photograph of himself with a male companion which showed a red Ferrari in the background which Mr Slattery says is the vehicle. Mr Slattery says this photo was taken at about 5:00 pm on 16 July 2010 and proves his possession of the vehicle on that date. The date and timing of this photograph are strongly in issue. Ms McFarland gave evidence that she recollected a hairdressing appointment with Mr Slattery at Avoca Beach on 16 July 2010 at about 3.00 pm and that he and another person parked the Ferrari on the street outside the salon. She said that the Ferrari remained parked on the street for a little while after the appointment. Mr Slattery's case was that the photograph of the car was taken that afternoon, but it was not suggested that Ms McFarland took the photograph herself. The original appointment book has been destroyed and Ms McFarland made her affidavit without access to any records other than a computer printout showing an appointment that appears to be an appointment with Mr Slattery on 16 July, but on which no time of day is given. 27In my view it is highly unlikely that Ms McFarland in reliance on her unaided recollection is able to specifically recall that the appointment was at 3.00 pm on that day, which was over six months before she swore her affidavit in this proceeding. The original affidavit of Ms McFarland was sworn on 23 February 2011. In that affidavit she makes no reference to having consulted any records whatsoever. 28In view of the direct contradiction between her evidence and that of eyewitnesses called for the plaintiffs and the documentary evidence as to possession on 16 July 2010, I consider that the recollection of Ms McFarland as to the precise date on which she saw Mr Slattery with the red Ferrari is doubtful and I prefer the objective eyewitness evidence and the documentary evidence to her recollection on this point. I have taken into account the fact that Mr Slattery did not present any evidence from the photographer or the person who is pictured with him in the photograph to verify his evidence on this significant point. 29The documentary evidence strongly supports the claim to sole ownership of the vehicle by Mr Redford. The Bill of Sale of 9 March 2010 from Driven Image shows him as the buyer. This document has not been found to be false in any way. It would have been a simple matter for Mr Slattery to have contacted Driven Image to check the position and obtain some written evidence from that company to the contrary if this were the true position. 30The funds for the remittance for approximately $78,000 sent to Driven Image on 2 March 2010 clearly came from Mr Redford. Registration papers dated 16 July 2010 show Mr Redford as the registered owner. The inspection certificate by Mr Peter Slattery (no relation to Mr Mitchell Slattery) shows Mr Redford as the owner and the AAMI insurance cover note of 16 July 2010 shows Mr Redford as the insured. The brake inspection certificate by Translock Industries shows that the brakes were examined at 10.46 am on 16 July 2010. There is no suggestion that Mr Slattery himself obtained any documentation or had the vehicle inspected on that date. In addition, it is not in dispute that Mr Redford had at that time a set of keys to the car. The QBE Insurance Company third party insurance policy is also addressed to Mr Redford and is dated 16 July 2010. 31Given the weight of this substantial documentary support it is highly improbable that Mr Redford, whose evidence I accept, did not have possession of the vehicle on that date. I am satisfied that the probability is that Mr Redford had possession of the vehicle between 15 and 17 July 2010 and that some time on 17 or 18 July 2010 the vehicle was removed by Mr Slattery from the premises of Mr Redford using a set of keys which he had retained. Conclusion on ownership 32Having regard to the foregoing I find that Mr Redford is the owner of the vehicle. THE LOANS 33The evidence establishes that Nada Redford, who is the sole director of Nadalan, the third defendant, made a loan to Mr Slattery on 16 June 2008 of $60,000 at a time when he was in a relatively long term de facto relationship with her daughter Alana Giblin and that this was made as a personal loan. I accept her evidence that it was a loan which would accrue interest at a rate of 14 per cent over a two year period, when it was required to be repaid, from 16 June. 34I also accept the evidence of Mrs Redford that Nadalan lent a further sum of $50,000 to Mr Slattery on 24 October 2008 for a term of six months at an interest rate of 10 per cent and that $30,000 of this was repaid on 5 November 2008. Mr Slattery has refused to make any further repayments of the loans. 35Mr Slattery asserts that after discussions with Mr Redford, in about late 2008 he lent money to Nadalan because Mr Redford was short of cash. He says he lent a further amount of $10,000 to Mr Redford in about late 2009 for machinery. 36In February 2010, he says he made an arrangement with Alana Giblin and Alan Redford to settle a claim for rental and other debts of Alana to him which amounted to more than $200,000 and that Alan Redford agreed to settle the debt for $80,000 which Mr Redford then transferred to the account of Mr Slattery. This is the basis on which he explains the funds used to purchase the vehicle. 37This version in my opinion is improbable as a matter of commercial reality. A settlement of $80,000 for a debt of over $200,000 without any record is highly unlikely to have been agreed to by Mr Redford who struck me as an astute experienced businessman. For the reasons given earlier, I accept the evidence of Alana that she was an employee and was not renting premises from Mr Slattery. She provided income tax returns as mentioned to establish this which are referred to at [21] above. 38The evidence of Alana was that she was employed by Mr Slattery while he was her de facto husband as a sales assistant to December 2009. This is inherently probable given her youth and inexperience at that time. She was aware of the loans by Nadalan and her mother of $110,000 to Mr Slattery and she denies that she was ever present, as alleged by Mr Slattery, at any meeting with her father to discuss any loans. She denies that she ever took any papers in relation to the Ferrari from Mr Slattery either before or after the break up. I do not accept that Mr Redford ever sought or obtained any loan from Mr Slattery particularly given the clear evidence of the strong financial liquidity of Mr Redford and his wife as compared with the dubious financial position of Mr Slattery. The version given by Mr Slattery as to loans by and debts due to him is doubtful in the extreme and I do not accept it. 39I am also satisfied on the evidence of Kimberley Redford, the daughter of Mr Redford, that Nadalan on behalf of Alan Redford transferred the sum of $80,000 to Mr Slattery for purchase of the Ferrari and that her father used a further $20,000 in cash which he had in a safe at the premises for expenses relating to the purchase of the Ferrari. She was not cross-examined on her affidavit. CONCLUSIONS 40I find that Mr Alan Redford is the owner of the vehicle. I find that Nada Redford loaned Mr Slattery $60,000 on 16 June 2008 and that Nadalan loaned Mr Slattery a further amount of $50,000 on 24 October 2008. I propose to make the orders sought in the amended summons. I dismiss the cross-claim with costs. I order the defendants to pay the plaintiffs' costs of the proceeding. ORDERS 41The Court: 1. Declares that the first plaintiff, Mr Alan Edward Redford, is the owner of the motor vehicle registered number BG10WG being a 2002 Ferrari Model 36099A Chassis number ZFFYR51C000126614. 2. Orders the first defendant to do all acts and things necessary to deliver possession of the motor vehicle together with all keys and other items connected with the said vehicle to the first plaintiff forthwith. 3. Orders judgment and verdict for the second plaintiff, Mrs Nada Redford, against the first defendant for repayment of all amounts outstanding under the loan of $60,000 made by the second plaintiff to the first defendant on 16 June 2008, including all interest thereunder. 4. Orders judgment and verdict for the third plaintiff, Nadalan Enterprises Pty Ltd, against the first defendant in respect of all moneys outstanding under the loan made by the third plaintiff to the first defendant on 24 October 2008, including all interest thereunder. 5. Orders that the cross-claim be dismissed with costs. 6. Orders that the defendants pay the costs of the plaintiffs of this proceeding. ********** 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. Decision last updated: 18 April 2011