Supreme Court New South Wales Medium Neutral Citation: Parshotam Singh & Anor v Baljit Kaur [2011] NSWSC 1412 Hearing dates: 16 and 17 November 2011 Decision date: 18 November 2011 Jurisdiction: Equity Division Before: Bryson AJ Decision: See [70] Catchwords: VENDOR and PURCHASER - rectification - contract for sale of farm contained SC 66 authorising Vendors to occupy part of land sold for 4 years to store and trade in scrap materials - about 6 months after possession, Purchaser denied access - after further demand for access and removal, Purchaser's husband began selling the scrap - issues relating to rectification and whether SC 66 reflected precontract negotiation - illegality and whether vendor's claim for access, removal of goods and damages for detention affected by LEP prohibition on junkyard - vendors succeeded - issues of fact, no question of legal principle Legislation Cited: Protection of the Environment Operations Act 1997 (NSW) Cases Cited: Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 Nelson v Nelson (1995) 184 CLR 538 Texts Cited: Nil Category: Principal judgment Parties: Parshotam Singh (First plaintiff) Balwant Kaur (Second plaintiff) Baljit Kaur (Defendant) Representation: M Scott (First and second plaintiffs) A Singh (Defendant) Cater & Blumer (First and second plaintiffs) Rajesh Chand & Associates (Defendant) File Number(s): 2010/431544 Judgment 1Decision turns largely on which of two inconsistent oral accounts of precontract negotiations I should accept in finding the facts basic to the claims of each party. On this turns whether Special Conditions 65 and 66 truly were parts of the arrangements for sale of the property. The defendant claims in the cross-claim that Special Condition 66 was included by mistake. 2I feel some difficulty in relying, when finding the facts on conflicting accounts of conversations, on my impressions of demeanour of witnesses. While I try to observe witnesses closely and be equipped to form a view about their demeanour and whether they are impressive or not, I do not feel that observations of that kind are reliable in this case because there are cultural gulfs which make it difficult for me to apply such thinking to the parties. I have looked for any other indications about probabilities when trying to determine which of what broadly are two quite different stories is more reliable. 3When the events opened the plaintiffs owned a small farm at Nericon near Griffith, New South Wales. They grew oranges on the farm. There was a small house there and there was equipment for sorting and packing oranges as well as for orcharding. There were several sheds which were used for the orchard operations and also for storage of equipment for farming. The property was also used for storage of scrap metal and plastics which the first plaintiff dealt in. He had a continuing business which had operated for some years. The main activities were that he collected waste material from engineering works, sometimes paid for it, sometimes contributed by clearing up the engineering works' yard. He accumulated material until he had saleable quantities and sold it on. 4Early in 2008 he wished to sell the farm, and Rajeev Kamboj knew of this. There were discussions at the farm about the sale, and the important discussion happened about April 2008. Arrangements were then made about the sale, and they included arrangements about passing ownership in movable property as well as title to the farm. The second plaintiff, who is the first plaintiff's wife, and the defendant, who is the wife of Rajeev Kamboj, were present at some times but the active part was taken by the men. 5On Parshotam Singh's evidence, he agreed to sell the orange farm and the equipment used for it, and made out a list of the equipment and gave Rajeev Kamboj a copy. He also made arrangements to keep space for use for his scrap business on the site for 4 years after completion of the sale. In Parshotam Singh's evidence he did not agree to part with the scrap used in his business which was stored on the property, in his estimate at about the time of completion of the sale there were about 80 or 90 tonnes of scrap and he did not agree to part with ownership of many other articles used in the business and also other articles used for domestic use, including some things in the house. He did not agree to part with anything which was not on his list. He gave evidence that he had written out a list, then written out a copy and given it to Rajeev Kamboj. 6On Rajeev Kamboj's evidence, Parshotam Singh was to sell the farm and also agreed orally to give in the scrap business and all the equipment on the property. There was no list of property which was to pass. It was everything that was there, with a few exceptions agreed to orally. 7After some delay, contracts were exchanged on 11 November 2008. The evidence does not really explain why there was a 7 month interval before exchange of contracts. 8The contracts were prepared by Mr Roger Vardanega, solicitor of Griffith. His firm is Mackenzie & Vardanega. At a first stage he acted for the vendors, the plaintiffs. At a late stage, and it is not clear when, he also acted for the purchaser. At some stage before he got instructions from the purchaser he had sent a draft contract to another solicitor, who took no significant action in response. 9Notwithstanding that the discussions at the negotiation stage months earlier seemed to proceed on the basis that Rajeev Kamboj was the purchaser or possibly a co-purchaser with the defendant, by the time exchange of contracts took place and by the time that the defendant signed the contract there was only to be one purchaser, that is, herself. 10Parshotam Singh's evidence is that he was told of this change by Baljit Kaur and her brother-in-law at a stage which, I take it, was about October 2008 when Rajeev Kamboj was overseas. This move to a position where he was not a purchaser was not what Rajeev Kamboj had expected. 11Notwithstanding the change of the identity of the purchaser, the contract exchanged arose out of the course of negotiations earlier in the year and the arraignments then made (whatever they were, and that is much disputed) have been treated as still operating when the land was sold. 12Evidence about the stages of preparation and execution of the contract does not clearly deal with some significant matters. The evidence of Mr Roger Vardanega about preparation of the contract documents is an outline at best. It is not clear when Special Conditions 65 and 66 got into the draft except that it was at a quite late stage. They were not in the first draft and Parshotam Singh required them to be inserted, it would seem not long, only a few days before execution and exchange. It is also not at all clear when Mr Vardanega's firm was instructed to act for Baljit Kaur as purchaser. Clearly this too happened at a late stage. 13I regard Mr Vardanega as sincere in his evidence, but he spoke under difficulty about giving times of events in October and November 2008. There was no clear evidence from any other source about what his instructions were, certainly not from the defendant. It should not be found that he was not acting for the purchaser as well as for the vendors. It should not be found that he did not act in accordance with his instructions. 14The defendant signed a counterpart of the contract in the library at Mr Vardanega's office and in his presence on 11 November 2008. Exchange of contracts took place, of course within his office as he acted for both parties, later that day. 15The contract document contains nothing whatever about inclusions or passage of interest in chattels, apart from what is found in Special Condition 66. Remarkably, nothing at all. Special Condition 66 says: "The parties expressly agree and acknowledge that the Vendors reserve and shall have the right to the use and occupation of an area of vacant land adjacent to the existing shed area on the property the subject of sale comprising of approximately 10,000 square metres for a period of four (4) years following the date of completion free of any rental, occupation fee or charge whatsoever for the storage and sale of scrap metal and steel and to conduct selling activities therefrom and other associated or ancillary uses together with a right of access to such area seven (7) days per week between the hours of 8.00 am and 6.00 pm daily (and at other times in any emergency) such access shall be for the Vendors, their servants, agents and invitees and for this purpose the Vendors shall effect and maintain a Public Risk Policy with a reputable insurer in the sum of at least $5,000,000.00 and shall on request produce evidence of cover to the Purchasers provided that the storage and sale of scrap metal shall be at the Vendor's risk. The provisions of this clause shall not merge on transfer and the Purchasers shall on the written request of the Vendors enter into a formal licence agreement containing such reasonable terms and conditions as the Vendor's Solicitors may require giving effect to the provisions of this clause. The Purchaser shall raise no objection, requisition or claim for compensation in regard to any matter or thing raised in this clause." 16There was a delay in completion while a subdivision plan was prepared and registered, and completion took place on 8 May 2009. Some time passed, as appears to be contemplated by Special Condition 65, before the vendors moved out. The evidence of Mr Rajeev Kamboj is that he and the defendant took up occupation about 8 and 9 August 2009. 17Conflict arose in February 2010 when Parshotam Singh could not get access to the property and to his scrap metal and other goods on it. He was still being excluded in November 2010 when, after a series of letters, his solicitor served a formal demand for access, now exhibit A, letter of 11 November 2010, and access was not given. What was demanded was access to the property to collect belongings said to be owned by the plaintiffs: 1, scrap metal and other materials; 2, machinery; 3, tools and miscellaneous property; 4, forklifts. This was not a demand to be allowed to go back into general use of the property in the manner which Special Condition 66 seems to provide for. 18The defendant did not comply with the demand and allow access. Mr Rajeev Kamboj began to sell the scrap. The plaintiffs commenced these proceedings by issuing a Summons on 31 December 2010. 19I turn to deal with the execution of the contract. The defendant was not able to read English and, of course, the contract is wholly in English. 20Mr Vardanega gave evidence of the circumstances of execution of the document. He described the event at transcript page 16. He said of the defendant, "She came in with a daughter and another gentleman I thought was the brother or brother-in-law of Baljit". He said that there was no one else in the room beside herself and these people. He said that he spoke to the man, whom he took to be the brother or brother-in-law, and also to the daughter in English, and had no difficulty in conversing with them. 21At transcript 19, when asked, "Did you draw any attention to Special Condition 65 and 66?" he answered: "A. I have a practice which I have built up over many years in my conveyancing practice and I go through the contract with the parties beforehand. I discuss matters such as the agent, description of the property, identification, so the names of the parties. In fact we had the party's name incorrectly noted in the contract and when I went through details of her name we noted that her name had been incorrectly spelt "Baljat" on the contract and we corrected that to "Baljit" and that is noted on the contract and transfer. The special conditions would have been discussed, particularly the last two that Peter Singh had asked me to change very shortly before the contract for sale was executed." On the same occasion the defendant signed the transfer as transferee. 22In my finding, this account is substantially correct. As well as Mr Vardanega there were two people in the room with the defendant. I am quite satisfied that neither of the vendors was present on this occasion. I find that the defendant was accompanied by two people. It does not appear from evidence on which I am prepared to base a finding who the man was. The person who Mr Vardanega took to have been the defendant's daughter is unlikely actually to have been her daughter; her daughter gave evidence on the basis of which it should be found that she was probably at school that day. 23It is overwhelming probable that Mr Vardanega actually carried out and followed the practice which he speaks of. That is what a prudent solicitor would do and the circumstance that the defendant did not read English would prompt care. In my finding there was no overbearing of the defendant, no form of chicane or inappropriate dealing, either in including the Special Conditions or in getting her to execute the document. That was what she wished for, to buy the property. There is no basis for a view that the defendant was not bound by the contract. Indeed, in the course of this litigation she did nothing to indicate any wish to escape from the contract or rescind it and the only attack was on the Special Conditions, particularly Special Condition 66 which is the only one which could have any continuing operation. 24I turn to address the probabilities about which of the accounts of the preliminary discussion and arrangements dealing with ownership of goods should be accepted. According to the plaintiffs' case there was a continuous course of events consistent with both sides knowing of the arrangements expressed in Special Conditions 65 and 66 and being prepared to give effect to them. After settlement the vendor stayed in occupation for a short period. The vendors left large quantities of scrap metal, which Parshotam Singh estimated to be 80 or 90 tonnes, on the farm. Rajeev Kamboj asked that the scrap be moved to another place on the farm, and it was. The vendors left on the farm other equipment which was not in the list, and there was no conflict over the storage of that other equipment for a long time. The vendors continued to use the farm for storage of scrap in the course of Parshotam Singh's business. He had access to it, sometimes accompanied by the second plaintiff, every few weeks. Quantities of scrap were brought in. Scrap was taken off and sold from time to time. This process did not have any significant interruption and involved access every few weeks. There was no active trading there. The process was one of storage. Access was not obstructed until February 2010. Then in November 2010, after a series of letters and after the demand was served without response, Rajeev Kamboj began to sell off the scrap and collect money for it, which he had not done before. 25According to his evidence, and he was not challenged in this respect, Parshotam Singh bought another scrap business in Cairns, Queensland in July 2008 and a truck, and was in Cairns at times making arrangements with respect to this business which he arranged to be conducted by his son, and it is. But he also maintained continuous business in Griffith, travelling between these places from time to time. When no further access to the property sold was allowed after February 2010, Parshotam Singh obtained other locations in Griffith for storage and handling scrap. 26In Rajeev Kamboj's evidence, the plaintiffs had no access to the land, and made no use of the land for business in scrap after the defendant and Rajeev Kamboj moved in. Nor did Rajiv Kamboj operate the scrap business there. He explained this by saying that he was waiting for Parshotam Singh to give him the contacts which he said Parshotam Singh had promised him that he would give so that he could carry on the business. 27Rajeev Kamboj embarked on realisation of value of the scrap on the farm only after correspondence and a clear demand for access to remove it. He did not reply to the demand or state his position or state any reason for not complyingThe reason for this that he gave in evidence was that someone at the Temple had told him it was not compulsory to reply as the letter had not come from the court. This does not explain why he did not wish or choose to reply. Simply that he was not compelled to do so is not an explanation. His conduct in this respect was not frank and open. This observation is correct even if it is true on the most objective view that he was entitled to keep the scrap and to sell it. The frank and open thing to do was to explain himself after receiving such a formal demand. 28It is clear, in my finding, that Parshotam Singh actually continued to conduct his Griffith business after completion of the sale and after the defendant and Rajeev Kamboj moved into the property, just as Parshotam Singh had done for years. 29The evidence of two scrap suppliers, people who run engineering workshops in Griffith, shows that there was no real interruption in the process. These witnesses were not aware of an interruption. It is clearly established, in my finding, that Parshotam Singh had nowhere else to put scrap than on the farm until he made further arrangements after February 2010 when he had been excluded. 30On Rajeev Kamboj's evidence, Parshotam Singh said to him during the negotiation, about April 2008, that Parshotam Singh was getting out of the scrap business in Griffith; that he said, "I don't live in Griffith", or perhaps said that he already had got out and was in business in Cairns. This is not what Parshotam Singh was actually doing in April 2008, nor is it what he did later. It is not likely that he told Rajeev Kamboj that he was doing these things when he quite plainly was not. 31It is a relevant circumstance that Rajeev Kamboj did not deal with the scrap himself for a long time after, according to his account of matters, he was entitled to it; that is, from completion in May 2009, or occupation in August 2009, until sales began about December 2010. This is a long time to leave about 80 tonnes of scrap, which could be turned into money, lying unattended on one's farm. I find this improbable. 32In my finding, Parshotam Singh did continue to deal with scrap on the farm, just as he says, throughout 2009 and until excluded in February 2010. There was no significant interruption. He did go to the property a number of times, every few weeks during this period, and picked up and put down large quantities of material. Occupants of the farm must have known that this process was going on, even if they did not see him on every occasion. I do not believe Rajeev Kamboj's denial that he knew of this process taking place. There is no basis for finding that Parshotam Singh was conducting business using storage anywhere else in this period, before he made further arrangements in and after February 2010. 33I do not see in any of this material and findings a conclusive demonstration that either account of the oral negotiations must have been right, or must have been wrong. I am addressing the probabilities. In my judgment overall, the position contended for by the plaintiffs is considerably more likely to be true than the other position, and I accept that the plaintiff's case about the preliminary negotiations is true. I will act on that. 34A matter that received considerable attention during the hearing was supposed anomalies in Special Condition 66 and the reference to the area the subject of the vendor's rights; that is described as, "the right to the use and occupation of an area of vacant land adjacent to the existing shed area on the property the subject of sale comprising of approximately 10,000 square metres for a period of four (4) years following the date of completion". 35The area of 10,000 metres is far larger than was used, or was likely to be used for storing scrap. The whole of the farm sold was a little over four hectares, so the area referred to is about a quarter of the whole of the land sold. 36The description, "existing shed area", is of practically no value because there were several sheds. The boundaries referred to in the Special Condition are not really identified and cannot be ascertained from the description. Parshotam Singh could not clearly indicate where it was when he was given an opportunity in evidence to make markings on a copy of a survey plan. I find his markings very indistinct. 37An aspect of the problem is that in Parshotam Singh's evidence, which I accept, Rajeev Kamboj asked him, soon after completion, to change the area where the scrap was stored to a somewhat different area and he did so. This change may well be a source of confusion. The second plaintiff gave a fairly clear statement of where the storage was to be before, and also after, Rajeev Kamboj made this change. Cross-examination, which was claimed to show internal contradictions in her evidence, was based on a misreading of her affidavit of 1 July 2011, paragraph 3. However, with all the benefit of her description, a clear location at either stage cannot really be established. 38What was conferred was a contractual licence and the terms of Special Condition 66 show that a further formal licence agreement was contemplated, although there never was one. It is not necessary that there should be ascertainable boundaries for the area of a contractual licence, to which the strong reasons for certainty which exist where there is an arrangement to confer an interest in land do not apply. The Statute of Frauds requirements for writing and identification do not apply. A contractual licence is not usually enforceable by a writ of possession, or an injunction. It does not fail, in my opinion, for lack of certainty about the land affected. The effect, in my understanding, is that the purchaser could point out the area which could be used, if she did so within the limits stated in very general language. The purchaser had to make available vacant land adjacent to the shed area for up to approximately 10,000 square metres and the purchaser had a range of choices in doing so. Indeed, what Rajeev Kamboj did in requiring movement of the place where the scrap was deposited can be interpreted as an exercise of this entitlement. 39In my view, nothing about the reference to 10,000 square metres in Special Condition 66 supports the view that I should doubt that there in truth was an arrangement of this kind in the oral exchanges early in 2008, or should find that the presence of Special Condition 66 is a mistake, or a marked departure from the earlier arrangement. 40Notwithstanding the length at which I have considered it, in my view the evidence about the 10,000 square metres has no significant adverse effect on the plaintiff's credibility, or on the outcome of the proceedings. 41There was very sharp conflict about whether a list was made out by Parshotam Singh during the course of the preliminary negotiations. According to his evidence, he made out a list, which is exhibit A1 to his affidavit of 1 July 2011, and also wrote out a copy and gave it to Rajeev Kamboj. 42It is not hard to accept that a list was made during the preliminary negotiations. There are a great many of items of moveable property of value on the farm. It would have been remarkable if a complete donation of everything there with hardly any exceptions should have been made, and even more remarkable if the arrangement were not recorded in any way. That is what Rajeev Kamboj said happened. 43The presence of Special Condition 66 in the contract fits much better with Parshotam Singh's evidence about the preliminary negotiations than it fits in with the general donation of more or less everything to which Rajeev Kamboj deposes. 44There is a second list in evidence, Exhibit A5 to the same affidavit; this was the subject of considerable cross-examination. It was suggested by counsel, both in the form of his questions and in his submissions, that its contents are anomalous and adverse to acceptance of Parshotam Singh's evidence. 45Exhibit A5 was prepared after the dispute arose. It was not part of any pre-contractual negotiation. Notwithstanding cross-examination, I see no serious anomalies in Parshotam Singh's evidence about the list A5 and the articles referred to in it. This list does not establish what articles the plaintiffs are entitled to. That may have to be debated at a future inquiry. I make no findings in detail on whether any or all items in Exhibit A5 should be there. 46The important document is Exhibit A1. I find that it was part of the pre-contract negotiations, as Parshotam Singh says. According to his evidence, it was the chattels mentioned in Exhibit A1 which were to pass to the purchaser, and no others were to pass but the chattels listed in Exhibit A1. If an item was not sold and there was no arrangement to part with it, its ownership was not altered by the sale of land or by any associated arrangement. 47The law relating to rectification of contracts, which is one of the remedies claimed by the defendant in a cross-claim, was recently and extensively considered in the Court of Appeal in Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603. The judgments in that case are a valuable resource for the current law, particularly the extensive review by Campbell JA at paragraphs [259] and following. I think, however, that it is enough to refer to the statement of legal principles by Tobias JA at paragraph [122] and following. 48To make a severe summary of a large body of learning, it is necessary to show that there was a true common intention held by the parties, that is, all of them, on a subject matter of agreement and that the later written document is mistaken as an expression of that common intention. 49On the facts of the present case, an address to rectification requires attention in two stages; one, whether, in fact, there was an agreement in the terms given by Rajeev Kamboj on the subject dealt with in Special Condition 66, ownership of moveable property, and it is only if there was an agreement at that stage and the necessary common intention can be established, that I move to two, whether there was a mistaken expression of that agreement. 50Strikingly different accounts of what took place in negotiations are given. I have accepted, for reasons I have already stated, that, in substance, Parshotam Singh's account is correct and there was an arrangement on the subject with which Special Condition 66 deals. 51This finding really takes away any basis on which to address whether there should be rectification. There was no common intention of any kind significantly different to what is found in the contract document. There are no findings to the effect that the contract, according to common intention, ought to have provided for the scrap and other material to pass to the purchaser, or ought to have been left to pass to the purchaser without the intervention of Special Condition 66. 52Not only does the evidence not show a basis for rectification, it hardly deals with the facts on which it could be based. There is no evidence of a mistake in the preparation of the contract and the whole subject does not really arise for consideration. 53The defendant's counsel contended that the provisions of Special Condition 66 are affected by illegality and claim 2 in the Cross-Summons refers to this. To be relevant, illegality has to relate to the authorisation conferred by Special Condition 66 to use the property "for the storage and sale of scrap metal and steel and to conduct selling activities therefrom and other associated or ancillary uses". 54That is to say, the purchaser granted permission for these activities to take place, and did not take part in them or join in them, in any sense. To be relevant, illegality must be traced to some legislative provision which would impact on this part of the contract, that is, on a contract to permit the activity, not simply a legislative provision which would impact on the activity. 55The vendors were permitted, but were in no sense obliged and did not give a contractual commitment to carry out the impugned activity. The most, if there were some illegality established, which could result is that it would deprive that permission of effect. It could have no impact on the ownership of the goods which were to remain there, even if they were to be used in some illegal prohibited activity. 56To make out the claim that there was some illegality, the defendant's counsel first pointed to the terms of the Local Environment Plan, Griffith Local Environmental Plan 2002, referred to in a town planning certificate annexed to the contract. Under that plan and the provisions regulating use in Zone 1(b) Rural Agricultural Protection, the list of developments prohibited within that zone includes junkyards; that is to say, no authority has power to authorise development for use as a junkyard. "Junkyard" is widely defined and extends to collection and storage of scrap materials, amongst many other matters in its wide reach. 57Counsel did not refer me to any underlying legislation providing for the consequences of breach of this prohibition, but it is plain enough and needs no demonstration that Griffith Council could take measures of enforcement and could probably have penalties imposed, and could well obtain an injunction against use, or continued use of Zone 1(b) land for a junkyard. 58Parshotam Singh, who has held a second hand dealer's licence for many years, gave evidence that he has never received any intervention or complaint by any officer of the Griffith Council; no demands, no complaints, no penalties. What is necessary to make out a contention about illegality is a reference to some legislative provision, which might be thought to impact on, not the activity itself, but on the validity, or enforceability of a contractual arrangement to give permission for the activity to be carried out. No such reference was made. 59The subject of illegality in contracts was extensively considered in judgments in the High Court of Australia in Nelson v Nelson (1995) 184 CLR 538, in which, at page 551, Deane and Gummow JJ said this, and this is the core of the subject: "... the extent of the illegality and its consequences turn upon construction of the statute." 60It is on the meaning and effect of whatever statutory provision creates the illegality that the interaction between illegality and a contractual arrangement depends. I have not been shown any such connection. 61Counsel also referred to Protection of the Environment Operations Act 1997 (NSW) and the prohibition in s 144 against use of lands as a waste facility without lawful authority. The facts which might show whether s 144 applies to the plaintiff's activity have not been demonstrated, but, as it happens, s 144 illustrates what I have said, in that the consequence and the only consequence for which it provides is that the forbidden activity is an offence which may be penalised by a fine. It says nothing about impact on contracts. 62In the absence of some identified statutory prohibition in terms which impact on the enforceability of Special Condition 66 the contentions made on illegality do not assist the defendant. 63In the Amended Summons the plaintiffs' first claim is for a declaration that the plaintiffs were entitled to access in accordance with Special Condition 66. What the plaintiffs press for now, as their counsel told me, is less than enforcement for the remaining 18 months or so of the contractual entitlement; they press for what the demand served on 11 November 2009 said they want, to get access to remove their chattels. Claim two is a claim for an order that the defendant be restrained from denying access to the property. In my opinion, the plaintiffs are entitled to these remedies, modified to the limited extent to which they now seek enforcement. 64Claim three is a claim for damages arising from detinue or conversion of the goods. There plainly has been detinue of the goods in that the defendant did not allow their removal when a quite distinct demand was delivered on 11 November 2009. This renders her liable for damages for detinue. The damages cannot yet be assessed. They could not be assessed until some conclusion has been reached in the process of recovering whatever the plaintiffs are able to recover under their entitlement to access. While it is to be hoped that much of the problem will be resolved in that way, it is plain that some damages have been incurred and I will make an order for an inquiry as in claim four to ascertain the amount of the damages and some other monies which the plaintiffs are entitled to recover. 65Mr Rajeev Kamboj has sold what must be a very large part of the plaintiffs' scrap material to a dealer called Access Recycling Services. According to Access's invoices, he has sold at least 78 tonnes of it, (and there is other material too which appears to be additional to that, which is still there), and that company has paid sums totalling $15,427.20 to Mr Rajeev Kamboj. I have not quoted the whole figures in the invoice but have quoted the amounts paid net of GST. Plaintiffs' counsel, in my opinion correctly, accepted this as proof of damages for the failure to deliver up so much of the scrap as has been sold to Access. It is likely that there is other scrap still on the property. Rajeev Kamboj's evidence seems to show this. Of course, there are many other articles of machinery and other articles, as well as scrap. 66What Rajeev Kamboj got net in hand for selling scrap is a good and reliable means of assessing the damages caused to the plaintiffs by the defendant not delivering up that part of the scrap. Although the full process of assessing damages and other losses cannot yet be undertaken, it is altogether clear that the plaintiffs are entitled to at least $15,427.20. I will order that that be paid forthwith, as well as ordering an inquiry to be conducted to ascertain and certify what other losses have been occasioned. 67In the ordinary course an inquiry to be so ordered would be conducted by an Associate Justice of this court, probably sitting in Sydney. There are disadvantages in this arrangement. The parties should, if possible, find a suitable referee, a person such as a senior solicitor in Griffith whose practice includes conducting arbitrations, to conduct the inquiry there. That is a matter for arrangement between the parties, but in all prudence they should find some such means rather than continuing the litigation in Sydney. 68The inquiry should only be embarked on after the plaintiffs have exhausted their remedies of access to the property and removal of chattels. 69In the Cross-Summons the defendant claims, claim one, a declaration that the contract should be rectified; this should be refused. In claim two the defendant claims a declaration that the contract was illegal and unenforceable; this should be refused. Claim three is a claim for a declaration that the defendant is owner of all the plant, vehicles, machinery and tools on the property; this should be refused. There are also claims for damages and costs which fail. 70I make these orders: 1. On the Amended Summons declare that the plaintiffs are entitled to access the property at Farm 203 New Farms Road, Nericon in accordance with the express terms of Special Condition 66 of the contract of sale of land executed by and in force between the parties. 2. An order that the defendant be restrained from denying the plaintiffs access to the property at Farm 203 New Farms Road, Nericon in the State of New South Wales. 3. Orders 1 and 2 are made on terms that the plaintiffs' rights are to be exercised only so long as and so far as necessary for the recovery of the plaintiffs' movable property from Farm 203. 4. Order that the defendant forthwith pay to the plaintiffs the sum of $15,427.20 on account of damages to be assessed. 5. Order that an inquiry be conducted to ascertain and certify the amount of damages which the plaintiffs are entitled to recover from the defendant in respect of detinue or conversion of the plaintiffs' goods, machinery and plant; that in ascertaining the damages credit is to be given for any payment made on account of the $15,427.20 earlier ordered; and that judgment be entered for the plaintiffs against the defendant for the amount so certified. 6. Each party has liberty to apply for directions with respect to carrying out these orders. 7. Order that the defendant pay the plaintiffs' costs of the proceeding. 8. Dismiss the Cross-Summons, order that the cross-claimant pay the cross-defendants' costs of the Cross-Summons. 9. The defendant is restrained from removing from the property at Farm 203 New Farms Road, Nericon any movable property the subject of claims by the plaintiffs. This order has effect until the plaintiffs have carried out and completed the process of access to the property and removal of goods for which earlier orders provide. This order has effect until further order. ********** 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: 22 November 2011