Supreme Court New South Wales Medium Neutral Citation: Paccar Financial Pty Ltd v Menzies; Menzies v Paccar Financial Pty Ltd (No 5) [2013] NSWSC 772 Hearing dates: 13/05/2013 & 14/05/2013 Decision date: 13 June 2013 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders in proceedings 2010/377702 that: (1) Paccar is entitled to possession of the following property: (a) 1 x 2004 Vawdrey D Double Tautliner Trailer Chassis No XXXXX Registration XXXXX and 1 x 2004 Vawdrey B Double Tautliner Trailer Chassis No XXXXX Registration XXXXX (as set out in Loan Contract 7470-20393); (b) 1 x 2003 Kenworth K104 Prime Mover Chassis No XXXXX Engine No XXXXX Registration XXXXX (as set out in Loan Contract 7470-20394); (c) 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX and 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX (as set out in Loan Contract 7470-20395); and (d) 1 x 2003 Kenworth K104 Prime Mover Chassis XXXXX Engine XXXXX Registration XXXXX (as set out in Loan Contract 7470-20396). (2) Ian Menzies and Colleen Menzies are to deliver the property referred to in order (1) to Paccar within 14 days. (3) The defendants are to pay the plaintiff the sum of $572,442.96. (4) The cross claim is dismissed. (5) The defendants are to pay the plaintiff's costs on an indemnity basis. The Court orders in proceedings 2011/176144 that: (1) These proceedings are dismissed. (2) The plaintiffs are to pay the defendant's costs as agreed or assessed. Catchwords: POSSESSION OF GOODS - recovery under deed of loan and charge agreements - trucks and trailers - whether defendants signed complete agreements - whether misleading and deceptive conduct by plaintiff - whether unjust contract Legislation Cited: Bankruptcy Act 1966 (Cth) Competition and Consumer Act 2012 Contracts Review Act 1980 Corporations Act 2001 Cases Cited: BP Australia Pty Ltd v Menzies & Anor [2010] FMCA 375 Menzies v Paccar Financial Pty Ltd [2011] FCA 460 Paccar Financial Pty Ltd v Menzies; Menzies v Paccar Financial Pty Ltd (No 3) [2013] NSWSC 551 Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 Category: Principal judgment Parties: 2010/377702 Paccar Financial Pty Ltd (Plaintiff) Ian David Menzies (First Defendant) Colleen Anne Menzies (Second Defendant) 2011/176144 Ian David Menzies (First Plaintiff) Colleen Anne Menzies (Second Plaintiff) Paccar Financial Pty Ltd (Defendant) Representation: Counsel: D Rayment (Paccar Financial Pty Ltd) Solicitors: Mills Oakley Lawyers (Paccar Financial Pty Ltd) I Menzies (Ian & Colleen Menzies on 13/05/2013 only) File Number(s): 2010/377702; 2011/176144 Judgment 1HER HONOUR: There are two sets of proceedings before the Court. These proceedings were listed for hearing on 13 May 2013 with an estimate of five days duration. At the outset of the hearing, Mr Menzies applied for the hearing date to be adjourned. Mrs Menzies gave her husband permission to represent her for the adjournment application only (see Ex 1). The adjournment hearing took the whole day. Mr and Mrs Menzies were not legally represented. Paccar was represented by counsel. 2At the end of the adjournment hearing, this Court ordered that the application for adjournment was refused and that the hearing of these proceedings would commence the next morning at 10.00 am (see separate judgment Paccar Financial Pty Ltd v Menzies; Menzies v Paccar Financial Pty Ltd (No 3) [2013] NSWSC 551). There was no appearance of either Mr or Mrs Menzies. The hearing took place. By emails sent during the hearing (Exs 4 and 5), the Menzies indicated that they intended to appeal this Court's decision to refuse the adjournment. The pleading framework 3In 2009, Paccar commenced proceedings in debt against the Menzies in Victoria. These proceedings were cross vested to this Court on the Menzies' application. Paccar commenced a separate set of proceedings claiming possession of the vehicles. These two sets of proceedings were consolidated in 2010 into proceedings 2010/377702. There is another set of proceedings Menzies v Paccar 2011/176144. I shall refer to them later in this judgment. (1) Proceedings 2010/377702 4By amended statement of claim ("ASC") filed 29 July 2011, Paccar seeks that the Menzies deliver the following goods to them: (a) 1 x 2004 Vawdrey D Double Tautliner Trailer Chassis No XXXXX Registration XXXXX and 1 x 2004 Vawdrey B Double Tautliner Trailer Chassis No XXXXX Registration XXXXX (as set out in Loan Contract 7470-20393); (b) 1 x 2003 Kenworth K104 Prime Mover Chassis No XXXXX Engine No XXXXX Registration XXXXX (as set out in Loan Contract 7470-20394); (c) 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX and 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX (as set out in Loan Contract 7470-20395); and (d) 1 x 2003 Kenworth K104 Prime Mover Chassis XXXXX Engine XXXXX Registration XXXXX (as set out in Loan Contract 7470-20396) ("the trucks and trailers"). 5Paccar also seeks a declaration that they are entitled to possession of the equipment, verdict and judgment for such amounts as are found to be owing by the Menzies to Paccar under the guarantee and indemnity, including damages and the termination amount of $572,442.96 (Ex E). Paccar also seeks a referral to an Associate Justice to determine costs and legal costs payable on a "full indemnity" basis pursuant to clause 17.1, 17.2 and 17.4 of the loan contracts, costs on a full indemnity basis pursuant to clause 17.1, 17.2, and 17.4 of the loan contracts and damages for wrongful detention of the equipment from 26 March 2009. In the alternative Paccar seeks damages for an amount equivalent to its value and interest on the damages from the date of disposal. It also seeks an order that the equipment vest in them pursuant to s 568F of the Corporations Act 2001. The amended defence and amended cross claim 6The Menzies filed an amended defence and amended cross claim. The amended defence puts Paccar to formal proof in relation to the terms of various documents. In so far as Paccar pleads that the Menzies executed four deeds of loan and charge and a guarantee and indemnity and four amended deeds in order to finance the acquisition of two trucks and trailers for $570,000 in May 2006, the Menzies deny executing the four deeds of loan and charge, the four amending deeds and also the deed of indemnity and guarantee. The Menzies say that they executed loose "execution" pages only; they say they did not have notice of the actual terms of either the deeds of loan and charge or the deeds of guarantee and indemnity. 7By way of amended cross claim in these proceedings, the Menzies seek, (a) various kinds of remedies on the basis that Paccar's employee allegedly made misleading representations about the nature of the financing arrangements in question; and (b) in the alternative, relief under the Contracts Review Act 1980 (NSW) against the guarantee and indemnity. Paccar disputes making the representations alleged and puts reliance and damages in issue. Paccar does agree that the Contracts Review Act has operation in relation to the particular facts of this case and relies upon s 6 of the Act. Paccar also denies the allegation that there was anything unjust about the guarantee and indemnity in question. 8Paccar relied upon the affidavit of Gillian Harvey sworn 21 September 2012; the affidavit of David Mueller sworn 21 September 2012; the affidavit of Jeffrey Penter sworn 4 October 2012; and the joint experts report prepared by Gary Storey of Chris Anderson & Co and Michelle Novotny of Forensic Document Services Pty Ltd dated 9 April 2013 (Ex B). Background 9While Mr Menzies did not attend the hearing, he has prepared (but not completed) an unsworn draft affidavit that refers to his background and what he says occurred when the loan agreements and guarantee were signed. This is the background information supplied by Mr Menzies. 10Mr Menzies is currently 57 years of age. He left school half way through Year 9. He worked on the family dairy farm in Upper Esk Tasmania for approximately one and a half years. He ploughed paddocks, cut hay, milked cows, did fencing and drove tractors and bulldozers. He also worked for Reynolds Logging in Tasmania as a bulldozer driver. He then joined the Navy and became an ordinary seaman weapons mechanic. 11From 1976 to late February 1980, Mr Menzies ran his own business, Ian Menzies Truck Hire. He provided the services of carting logs, interstate truck driving and towing trailers for WA George. In 1978, he met and married Colleen Anne Bourke. In late 1979, Mr and Mrs Menzies purchased a one acre block of land at Calliope near Grafton, New South Wales. He injured his back and ceased running his own business. 12In late 1980, Mr Menzies successfully tendered to be the ferry operator on the Ulmarra Ferry, Grafton which he operated for approximately one and half years. During this time, he purchased an old backhoe which he briefly hired out to New England Excavations. 13In October 1982, Mr Menzies worked for a plant hire company in Coffs Harbour for two or three months driving bulldozers for earthworks. After he left the plant hire company, he worked for Prospect Excavations on the Central Coast for about one year as an excavator, truck and backhoe driver. During this time, he purchased an old truck which he hired out to Prospect Excavations. He also hired out his old backhoe to Prospect Excavations. 14During 1983 and 1984, Mr Menzies purchased a new house at Chittaway Point on the Central Coast at Wyong. In about 1984, he started a business called Chittaway Plant Hire, which he operated from Chittaway Point. In about 1993, he changed the name of his business to Menzies Excavations. In 1998, he purchased a 40 acre property and house at Maryborough, Queensland. 15In 2004, Mr Menzies completely paid back his loans, to the CBA and other finance companies, from the proceeds of hiring out the machinery he had purchased and the sale of part of the Wyong property to Clarendon Resort Housing. In 2004, as Mr Menzies' health was deteriorating, due to his kidney disease, Menzies Excavations ceased tendering for public works. From 2005 to 2006, he worked on a casual basis as a truck driver for Toll, Linfox and First Fleet. 16On 2 May 2006, Menzies Haulage was incorporated so that the Menzies could take up work from Toll previously held by the vendor of the trucks Thornhill Contracting Pty Ltd. Mr and Mrs Menzies were the two directors of Menzies Haulage. They also each owned half of the shares in the company. The trucks and trailers were purchased by Menzies Haulage Pty Ltd for the total sum of $570,000. It is the financial arrangements in relation to these purchases that are the subject of these proceedings and I shall briefly mention the relevant provisions of these documents. Deeds of loan and charge 17There is a separate deed of loan and charge agreements for each item of equipment ("loan agreement"). There is one for each of the two trucks and one for each of the two trailers. Thus, in total there are four deeds of loan and charge agreements. The amounts of each loan vary, as do the amounts of the repayments in relation to each truck and trailer. 18For each loan agreement the interest period was monthly with the first interest period commencing on the initial drawing. The last interest period ends on the last payment date. The interest rate was 8.5 per cent per annum. Interest was to be paid in advance. Each deed of loan and charge is otherwise identical. 19By way of example the loan repayment schedule for the Vawdrey D Double Tautliner Trailer was for the sum of $100,000. The repayment schedule was as follows: No Amount Stamp Duty GST Total 1 $0.00 $0.00 $0.00 $0.00 2-3 $1,864.00 $0.00 $0.00 $1,864.00 4-6 $5,000.00 $0.00 $0.00 $1,864.00 7-60 $1,864.00 $0.00 $0.00 $1,864.00 61 $1,864.00 $0.00 $0.00 $1,864.00 20Each loan agreement contained the following clauses. 21Clause 3 of the agreement sets out how interest is to be calculated. Clause 3.2 reads: "3.2 Interest on overdue amounts The Borrower agrees to pay on demand interest on any amount payable by it under this deed from when it becomes due for payment during the period that it remains unpaid. Interest is payable at the Interest Rate plus 2% per annum, as if the amount is a drawing having an interest period equal to an Interest Period." 22Clause 21 sets out the events of default and relevantly reads: "21.1 Events of Default Each of the following is an Event of Default: (a) (non-payment) the Borrower does not pay on time any amount payable by it under any Transaction Document in the manner required under it; or ... (h) (change of Control) if it is a company, the person who at the date of this deed have Control of the Borrower cease to have Control of the Borrower one or more person acquire Control of the Borrower after the date of this deed; or ... (k) (appointment of manager) a person is appointed under legislation to manage any part of the affairs of the Borrower or any of its Subsidiaries; or ..." 23Clause 21.3 sets out the consequences of default and relevantly reads: "21.3 Consequences of default If an event of default occurs, then the Lender may do one or more of the following in addition to anything else the law allows the Borrower to do: (a) declare at any time by notice to the Borrower that: (i) the Principal Outstanding, interest on it, and all other amounts payable under this deed or a Security, are either: (a) payable on demand; or (b) immediately due and payable; (ii) the Lender's obligations specified in the notice are terminated. The Lender may make either or both of these declarations. The making of either of them gives immediate effect to its provisions; (b) sue the Borrower for the Secured Money; (c) appoint one or more Receivers; (d) Take possession of the Secured Property ..." 24Clause 29 is headed "Interpretation" and reads "Costs includes costs, charges and expenses, including costs of repossession, repair, maintenance, inspection, storage, valuation and sale of the goods and those incurred in connection with advisers." Guarantee and indemnity dated 10 May 2006 25Clause 2 of the guarantee and indemnity provides: "2. The Guarantor HEREBY GUARANTEES to the Creditor payment of the guaranteed moneys as and when the same shall be due and payable by the Debtor to the Creditor, and whether or not any formal or other demand for the payment thereof has been made to the Debtor by the Creditor." 26Clause 3 provides: "3. As a separate and severable covenant the Guarantor HEREBY AGREES TO INDEMNIFY AND KEEP INDEMNIFIED the Creditor in respect of any loss it suffers as a result of the non-enforceability, or any failure of the debtor to make payment, of all or any of the Guaranteed Moneys." 27I shall refer to the terms of these documents in more detail later in this judgment. Execution of the transaction documents 28The primary question for determination on Paccar's claim is whether the Menzies' executed four complete deeds of loan and charge in May 2006, a complete deed of guarantee and indemnity in May 2006 and the four amending deeds in November 2006. 29Paccar's version of events is set out in the affidavit of Jeffrey Penter sworn 4 October 2012. It was Mr Jeffrey Penter whom Mr Menzies dealt with in relation to the loan agreements. 30From about June 2005 to December 2006, Jeffrey Penter was employed as a Regional Finance Manager for Paccar. He is no longer employed at Paccar. At the end of his employment he returned all books and business records to Paccar. He has no books or business records in his possession. 31In his position, as Regional Finance Manager at Paccar, he was responsible for selling equipment finance for Paccar in New South Wales. He was required to report to head office in Bayswater, Victoria. He worked with dealerships and obtained referrals on behalf of Paccar for the purchase of Kenworth Trucks and Trailers by customers. 32During his time with Paccar, Mr Penter worked from a home office. He would frequently contact customers by phone, visit customers to discuss Paccar's finance products, receive applications for the finance products offered, submit applications for finance to Paccar's credit department, print and bind emailed contractual documents and guarantee documents received from head office and attend with customers at their businesses for execution of those documents. He would submit completed contractual documents to head office. 33Mr Penter's evidence is that he printed out the deeds of loan and charge and the deed of guarantee, and then stapled and bound them with blue binding tape down the left hand side of each document. Mr Penter arranged to meet the Menzies with the bound documents ready for execution. Mr Penter attended the Menzies' property in Wyong to have the documents executed. 34It is common ground that at about 8.00 am on 10 May 2006, Mr Penter had a meeting with Mr and Mrs Menzies at the Menzies' house at Wyong. Mr Menzies' version of events 35There is no affidavit of Mrs Menzies on the Court file. Mr Menzies' version of events is taken from his incomplete unsworn draft affidavit. 36Mr Menzies' version of events is that Jeff (Penter) walked into the family room (which is located next to the kitchen); Mr Menzies noticed that he was holding a thin folder. Mr Menzies sat at the table and was in the middle of finishing his breakfast. He had a conversation with Jeff Penter in words to the following effect: Mr Penter: "I've got paperwork for you to sign." Mr Menzies: "Would you like a cup or tea or coffee because I'm still eating my breakfast." Mr Menzies: "No, I'm fine." 37At this point, Mr Menzies' wife, Colleen, then entered the family room from the backyard and he introduced Jeff Penter to Colleen, as this was the first time that Jeff Penter and Colleen had seen or spoken to each other. 38Jeff Penter sat down at the table where Mr Menzies was eating his breakfast and placed the folder he was carrying on the table. Jeff opened the folder and Mr Menzies saw that the folder contained sheets of paper that appeared to be clipped together. Jeff Penter then placed the opened folder in front of him on the table. Jeff Penter pointed to a specific part on each page and said words to the effect: "Sign here." 39Mr Menzies signed on the parts of the pages where Jeff asked him to sign. Mr Menzies says that the pages he signed were singular pages and were not bound or stapled together in any way. He did not write his name or date on any of the pages, he just signed. The pages did not have much written on them and looked to Mr Menzies to just be signing pages. Jeff did not write on any of the documents that he signed. This took no longer than one or two minutes. 40After Mr Menzies had signed the pages, he says that Jeff Penter closed the folder, which contained the pages and placed the folder on the table in front of him. Mr Menzies then had a general conversation with Jeff Penter about other personal matters. He did not discuss with Jeff Penter the pages he had just signed or about anything concerning Paccar Financial. 41During his conversation with Jeff Penter, Colleen entered the family room where Jeff and Mr Menzies were sitting at the table and walked in to the kitchen. He had a conversation with Jeff Penter in words to the following effect: Mr Penter: "I'm in a hurry; I have another meeting to go to. Colleen has signed as well." Mr Menzies: "Colleen, Jeff wants you to sign." 42Colleen then walked into the family room and said words to the following effect: Colleen: "I shouldn't sign anything. What happens if the engines blow up, they've done 600,000 kilometres. What if we lose work? Then how do we pay the loan?" Mr Penter: "That's fine. Paccar is reputable and know the trucking industry. They know what sort of things can go wrong, and they will look after you. We will lend more money to cover breakdowns if necessary and we will refinance you if required. Paccar is a good finance company and will give you flexible financial arrangements." Mr Menzies: "What roughly are the payments?" Mr Penter: "About $10,000 per month." Mr Menzies: "That's a bit high." Mr Penter: "After you've paid off a large amount, Paccar will look at refinancing you to lower your repayments." Mr Menzies: "Yes, that would be good." 43Jeff Penter stood up and placed the folder on the corner of the kitchen table facing Colleen. Jeff Penter pointed to a specific part on each page and said words to Colleen to the following effect: "Sign here." Colleen was standing next to the table at the time she signed the pages. Mr Menzies did not see Jeff Penter sign or write on any of the pages that he placed in front of Colleen. 44Once Colleen had signed the pages, Jeff Penter closed the folder containing the pages and said words to the following effect: He said: "Thank you." She said: "Well I have to go. I've got an important exam to get to. Bye Jeff." He said: "I've got to get to an appointment, so I have to get going too." 45Mr Menzies walked with Jeff Penter and Colleen out of the house. He tried to talk more with Jeff Penter but he kept saying words to the effect, "Ian, I have to go." Once Colleen and Jeff had left the property, Mr Menzies returned to the table in the family room and finished his breakfast. 46Jeff Penter did not leave any document, or a copy of any document, with the Menzies before he left the house. Mr Menzies says that he has no record or copies of what he signed at that meeting with Jeff Penter. Mr Penter's version 47Mr Penter's evidence is that in late April or early May 2006, he was advised that credit was approved for the Menzies. He received letters and four contract documents and one guarantee document by email in PDF format from head office. He printed all of the documents, stapled each of them and bound them with blue binding tape down the left hand side, ready to be executed by the Menzies. He then telephoned and arranged to attend the residence of Ian Menzies and Colleen Menzies in Wyong to have the documents signed. 48Mr Penter's evidence is that he did have the stapled, bound and complete documents with him and he asked Ian and Colleen Menzies to sign the stapled, bound and complete documents. Mr Penter recalls that at the time of execution he sat with Ian Menzies and had a conversation with him. Ian Menzies spent some time reading and reviewing the documents. Colleen Menzies was in the kitchen while Ian Menzies was reading the documents. After Ian Menzies reviewed the documents with Mr Penter in his presence Mr Menzies signed them. Ian Menzies called for Colleen Menzies to come in from the kitchen and sign the documents. Colleen Menzies then came in from the kitchen and reviewed and signed the documents in Mr Penter's presence. 49Mr Penter says that at the time of execution of the documents by Ian and Colleen Menzies, the documents were stapled, bound and complete with all terms and conditions attached together with execution pages. After Ian Menzies and Colleen Menzies had signed the documents, Mr Penter then placed his signature as a witness on the complete and bound guarantee document. 50After the documents were signed, Mr Penter posted all of the original documents to head office. Mr Penter is aware that Mr and Mrs Menzies now allege that they only signed the execution pages of the guarantee or "3 or 4 loose sheets of paper". Mr Penter says that this is not correct. He did not just print only the signing page of documents for execution and ask Mr and Mrs Menzies just to sign that page. Events after the meeting 51Once again the course of Mr Menzies' version of events comes from his unsworn affidavit. Sometime in 2006, Mr Menzies says that Colleen told him that she left five booklets from Paccar on his desk in the portable office that he had at the Wyong property. Each of the five booklets were bound on the left hand side by blue tape, being four original bound booklets headed "Deed of Loan and Charge" for agreements numbered 7470-20393, 7470-20394, 7470-20395 and 7470-20396; and one original bound booklet headed "Guarantee and Indemnity". Mr Menzies says that he would not have opened, read or taken any notice of these documents, as he was too busy working the trucks. He says that these documents are the first documents he had received from Paccar which were bound on the left hand side by blue tape or at all. Mr Menzies gave discovery of the following documents, the four deed and charge documents, the guarantee and two of the four amended deed and charge documents. 52If any mail had been posted to the Wyong property and was addressed to him or Menzies Haulage, Mr Menzies says that he would not have necessarily seen that mail as it was his invariable practice to simply leave the mail for Colleen to go through and give to their accountant, Sue Niven, if necessary. Subsequent arrears of payment 53In 2006, not long after the loan was first made, Menzies Haulage Pty Ltd fell into arrears. In addition, the fourth, fifth and sixth monthly payments were higher than the other payments as they contained the GST component to the acquisition costs. For the trucks, the payments in months four to six increased from $3,464.32 to $9,000. For the trailers, the payments in months four to six increased from $1,864 to $5,000. After the payment in month six, the repayments reverted to the monthly amounts charged previously. 54In about late May 2006, Mr Penter was contacted by David Mueller, collections officer from Paccar's head office, who advised him that the first payments due under the loan contracts for the Menzies had not been received by Paccar. 55Mr Penter says that he telephoned Mr Menzies who said words to the effect: "the payment was not made to Paccar because the bank will not open a bank account for Menzies Haulage until the original registration papers for the company are provided to the bank." 56Mr Menzies then said words to the effect, "I do not know when the account for the company will be opened. I will make the payment myself if it takes longer than a couple of days." Mr Penter then informed Mr Mueller of this conversation. 57On or about 10 September 2006, Mr Penter spoke with Ian Menzies about the overdue repayments. Mr Menzies said words to the effect, "I am arranging for a refund of GST from the ATO that would cover payments due to Paccar." 58On or about 11 September 2006, Mr Penter was told by David Mueller that payments still had not been made to Paccar. Mr Penter made contact with Mr Menzies and his accountant "Sue". Sue said words to the effect that: "a GST refund due to Menzies had not yet been received and once that refund was received the payment would be made to Paccar." 59On or about 22 September 2006, Mr Penter was contacted and advised that the GST refund had been received by the Menzies and that it was okay for Paccar to deduct the repayments due. Mr Penter then telephoned David Mueller at Paccar and advised him of this. 60On or about 5 October 2006, Mr Penter was contacted by Mr Menzies who asked, "is it possible to defer the GST portion of the payments due until January?" He telephoned Paccar's head office and spoke with Rodney who said words to the effect that "Paccar would prefer to rewrite over the term." The amended loan and charges 61Paccar agreed to refinance the trucks and trailers in order to "spread out" the cost of the GST over the life of the loan so that the payments were equal over the life of the loans. In November 2006, the Menzies executed the amending deeds in order to give effect to this refinancing. 62As before there were four separate loan and charge agreements, one in relation to each piece of equipment. Clause 3 of the amended agreements state: "3 Amendments As from the Effective Date, the Original Document is amended and varied as follows: (a) Item 5 "Interest Rate" of the Details section of the Original Document is amended to the following interest rate -8.5000%; (b) Item 7 "Number of Repayments" of the Details section of the Original Document is amended to the following number of payments - 55; (c) Item 8 "Repayment number and Repayment Amount" of the Details Section of the Original Document is amended to read as follows: Repayment number and Repayment Amount Repayment Number Repayment Amount 1 - 54 $1,935.59 55 $1,935.77 (d) Item 9 "Repayment Dates" of the Details section of the Original Document is amended to read as follows -"Repayment Dates: Monthly commencing on the 12 day of Nov 2006 and each consecutive month thereafter." 63The repayment amounts for the trucks were $3,590.80 for months 1 to 54 and $3,590.75 for month 55. 64In December 2007, Menzies Haulage Pty Ltd fell into arrears again. Eventually, by late June 2008, Menzies Haulage Pty Ltd owed in excess of $26,000 across the four (amended) deeds of loan and charge. 65On or about 13 December 2006, Mr Penter was contacted by Mr Menzies who asked for an explanation of the payments due under the re-written contracts. After his discussion with Mr Menzies, Mr Penter called David Mueller at head office and advised him that Mr Menzies had queried the rewritten contracts and the repayments due under them. David Mueller explained the repayment structure to him and he relayed the information to Mr Menzies. 66Gillian Harvey is employed by Paccar as its Legal and Recoveries Manager. Ms Harvey says (Aff, 21/09/2012) that on or about 26 June 2008, she arranged for letters of demand to be sent to Menzies Haulage Pty Ltd (in liquidation) and Ian Menzies and Colleen Menzies at their Wyong property. The letters of demand sought payment of arrears in the sum of $26,256.21 by 3 July 2008. 67On or about 8 August 2008, Ms Harvey received a telephone call from Ian Menzies, who said words to the following effect: "I am in the process of selling one truck and one trailer, I have just received an inheritance and will pay $14,000 owing on the other truck. I expect funds on Monday and will EFT them to Paccar's account. I am selling investment properties to clear arrears. The truck and trailers are being sold via Brown & Hurley." 68On 27 August 2008, an agreement was reached between the parties. It is: "Ian, We refer to recent discussions between yourself and this office and confirm same via this letter. 1. Your accounts are currently in arrears for a total of $34,652.78 as at today's date. 2. On 1st August 2008 a verbal offer was made to you by Stephen Brown of this office. The offer was that you agree to pay Paccar Finance payments as shown below: a. $18000.00 immediately; b. Interest only payment on all accounts for the amount of $2576.41 due on both 12th August and 12th September 2008; c. Half the scheduled payment for the amount of $5809.99 due on both 12th October 2008 and 12 November 2008. d. Full clearance of arrears by 12th December 2008. 3. You did not meet the terms of this offer, only paying Paccar Financial the sum of $13380.00 on 18th August 2008. 4. On 27th August 2008 Paccar Financial agreed to renew the offer on the following terms: a. Payment of $7190.41 payable by close of business on 27th August 2008. This amount is made up of the balance of $18000.00 less amount paid of $13380.00 plus agreed interest only payments for August of $2576.41 which have since fallen due. b. Interest only payments on all accounts for the amount of $2576.41 payable on 12th September 2008. c. Half the normal scheduled payments for the amount of $5800.00 payable on both 12th October and 12th November 2008. d. Full clearance of arrears by 12th December 2008. 5. Paccar Financial will suspend repossession action while this arrangement is being met. If any payment is not made by the due date, the agreement is null and void and repossession action will recommence without any further notice to you. 6. Please sign this letter and return to Paccar Financial to confirm your agreement with this arrangement. If the letter is not returned by 5pm 28th August 2008, Paccar will treat the entire offer as being rejected by you." 69This letter was signed by Mr and Mrs Menzies and returned with a handwritten comment added at the bottom of the letter, "Thank you for your consideration C A Menzies." 70The Menzies failed to make payments in accordance with the above agreement. 71In January 2009, the Menzies resolved to place their company, Menzies Haulage Pty Ltd, into voluntary administration. This period of administration ended in March 2009. 72On 16 January 2009, Paccar received notice that Menzies Haulage had been placed into voluntary liquidation and that Blair Pleash of Hall Chadwick had been appointed administrator of the company. 73On 12 February 2009, Paccar received a report from the administrator. The debt to Paccar in the sum of $68,054 for arrears was admitted to be owing. On 20 February, at the second meeting of creditors, the administrator adjourned the meeting. On 24 March 2009, a third meeting of creditors was scheduled by the administrator. At that meeting it was resolved that Menzies Haulage would return to trade. 74On 25 March 2009, Paccar sent a letter to Menzies Haulage terminating the facilities and demanding payment of the termination amount and delivery of equipment. 75On 26 March 2009, Paccar issued a letter of demand to the Menzies seeking payment under the guarantee of the sum of $373,541.09, plus interest and costs until payment. Paccar has not received payment of the amount demanded, or any amount in reduction of it. 76In March 2009, Paccar terminated the loan facilities, sought possession of the trucks and trailers under the charge and demanded payment of the balance due under the loan facilities from the Menzies under the guarantee. 77On 7 May 2009, Paccar served a statutory demand for payment of debt. On 3 September 2009, Menzies Haulage was placed into liquidation and wound up by order of the Federal Court. 78On 11 October 2010, the liquidator of Menzies Haulage disclaimed all interest in and to the equipment. On 10 November 2010, Paccar sent a letter to the Menzies demanding the return of the equipment. The equipment has not been returned to Paccar. Whether the documents were complete when they were signed 79As previously stated, the Menzies claim that they only ever signed loose execution pages for the deeds of loan and charge, the guarantee and the amending deeds. This version has been repeated in various affidavits in these proceedings and in the bankruptcy proceedings. They assert that the terms and conditions were subsequently appended to the execution pages and that they had no notice of the terms. 80The parties obtained a joint forensic document examination expert report of the signed original counterparts retained by the parties. The joint experts have reached a number of helpful conclusions regarding whether the documents were bound at the time of execution by the Menzies. Counsel for Paccar submitted that for the most part their conclusions support the proposition that the documents were bound at the time of execution by the Menzies. In these circumstances, Paccar submitted that Mr Penter's version should be preferred. Deed of loan and charge 81Mr Menzies refers to each of the deeds of loan and guarantee and says the following: (a) These are the first group of documents that he had sighted from Paccar or Jeff Penter which were bound by blue tape or staples; he did not write the number "12" on page 2 in the section headed "Repayment Dates." This does not appear in the deed of loan and charge for agreement numbered 7470 - 20396; (b) He did not write the number "12" and the word "MAY" at the top of page 22. That handwriting was not present when he signed the page. On 12 May 2006, Mr Menzies was in Brisbane and did not meet with anyone from Paccar. (c) He recognises his signature above the words "Director" on page 22; (d) He did not write his name below his signature on page 22. He does not know who wrote his name; (e) The handwriting above the words "Name of director/company secretary" is not his handwriting. He does not know who wrote those words; (f) The signature above the words "Signature of authorised officer, attorney or agent of Paccar Financial Pty Ltd" on page 22 was not present when he signed that page; and (g) He did not write the date "12 MAY 2006" appearing beneath the words "Signature of authorised officer, attorney or agent of Paccar Financial Pty Ltd" on page 22. He does not know who wrote that date. As stated above, on 12 May 2006 he was in Brisbane and did not meet with anyone from Paccar. Guarantee and Indemnity 82Mr Menzies referred to the guarantee and says that he did not know that he signed a guarantee or that he was a guarantor; he did not recall seeing or reading any document headed "Guarantee and Indemnity". He says that Jeff Penter did not explain the guarantee or the effect of the guarantee. At page 6 of the guarantee, he did not write the number "10" or the word "MAY" at the top of page 6; his signature appears to the right of the words "SIGNED, SEALED AND DELIVERED by the said Ian David." He says that the signature above the word "witness" and the handwritten name next to the words "Print name" were not on the page when he signed. Jeff Penter did not sign or write on any of the pages, which he signed. He simply handed the documents back to Jeff Penter after he had signed. ASIC documents 83Mr Menzies referred to the ASIC documents headed "Details of a charge". He says that he does not recall seeing a copy of any of those documents when Jeff Penter was at the Wyong property on or about 10 May 2006 or at all. Experts' joint report 84By joint report dated 9 April 2013, Gary Storey and Michelle Novotny Forensic Document and Handwriting Examiners, recorded their instructions as follows. The Menzies' documents 85The experts were instructed that the position of ID Menzies and CA Menzies was, in summary, that: (a) At both the time Jeff Penter brought documents to the Menzies for signing and when documents were sent to the Menzies for signing, the Menzies were provided with and saw only the attestation pages of each document; (b) There were no other handwritten entries on the pages at the time/s they signed the documents; (c) They have no recollection of signing any ASIC documents; and (d) They have only a recollection of signing in the order of 3 to 5 pages each at the time Jeff Penter brought documents to the Menzies for signing. Paccar's documents 86Mr Storey and Ms Novotny were instructed that the position of Paccar was, in summary, that: (a) the pages of each document were stapled and bound by tape at the time(s) that the Menzies signed the documents; (b) at the time, Jeff Penter witnessed the Menzies' write their signatures on the guarantee and indemnity documents and the deed of loan and charge documents and then Mr Penter signed as witness to the signatures on the two guarantee and indemnity documents; (c) at the time, four ASIC form 309 and 350 documents were also signed; (d) at a later time, the amending deed documents were sent (stapled and bound by tape) to the Menzies for signing; (e) at a later time(s), a person in the Melbourne office signed on behalf of Paccar on the deed of loan and charge documents and the amending deed documents and wrote the handwritten dates and names of Ian David Menzies and Colleen Anne Menzies; (f) the Menzies counterpart documents were sent to the Menzies while the Paccar counterpart documents were retained by Paccar; and (g) there may be a further original set of counterpart documents lodged with ASIC. The Menzies' guarantee and indemnity 87Mr Storey and Ms Novotny's observations established that the Menzies' guarantee and indemnity document was bound and page 6 was folded back over the binding at the time the first Jeff Penter signature was written. Their observations provide very strong support for a proposition that the document was bound and page 6 was folded back over at the time the CA Menzies signature (on the left) was written and crossed out. They expressed no conclusion as to whether the document was bound, the pages were loose leaf but together or the attestation page stood alone at the time(s) that the remainder of the signatures were written. Paccar's guarantee and indemnity 88With regard to Paccar's guarantee and indemnity, Mr Storey and Ms Novotny's observations established that the document was bound and page 6 was folded back over the binding at the time(s) the first handwritten names "Jeff" was written and the CA Menzies signature (on the left) was written and crossed out. They also established that this document was, directly or indirectly, overlying at least the cover page and page 1 of the Menzies' counterpart guarantee and indemnity document at the time(s) the two Jeff Penter signatures were written on page 6 of the Paccar counterpart guarantee and indemnity. 89However, they expressed no conclusion as to whether the document was bound, the pages were loose leaf but together or the attestation page stood alone at the time(s) the remainder of the signatures were written. Deed of loan and charge (Agreement No 7470-20393) 90Mr Storey and Ms Novotny could express no conclusion as to whether the Menzies' counterpart deed of loan and charge was bound, the pages were loose leaf but together or the attestation page stood alone at the time(s) the ID Menzies and CA Menzies signatures were written. 91Their observations of the Paccar counterpart document provided limited support for a proposition that page 22 was already creased near the edge of where the blue tape now lies before the ID Menzies signature was written. Their observations also provided limited support for a proposition that page 22 was bound but lying flat, ie, page 22 was pulled away from the staples rather than being folded back over the binding, at the time the ID Menzies signature was written. Deed of loan and charge (Agreement No 7470-20394) 92Mr Storey and Ms Novotny's observations of the Menzies' deed of loan and charge provided very strong support for a proposition that the document was bound and page 22 was folded back over the binding at the time(s) the ID Menzies and CA Menzies signatures were written. 93Their observations of Paccar's counterpart deed of land and charge established that the document was bound and page 22 was folded back over the binding at the time the ID Menzies signature was written. There was very strong support for a proposition that the document was bound and page 22 was folded back over the binding at the time the CA Menzies signature was written. Deed of loan and charge (Agreement No 7470-20395) 94The experts expressed no conclusion as to whether the Menzies' counterpart deed of loan and charge document was bound (and lying flat, ie, page 22 was pulled away from the staples rather than being folded back over the binding) the pages were loose leaf but together or the attestation page stood alone at the time(s) the ID Menzies and CA Menzies signatures were written. 95Their observations of Paccar's counterpart established that the document was bound and page 22 was folded back over the binding at the time the ID Menzies signature was written. Deed of loan and charge (Agreement No 7470-20396) 96Mr Storey and Ms Novotny said their observations provided very strong support for a proposition that the document was bound and page 22 was folded back over the binding at the time(s) the ID Menzies and CA Menzies signatures were written. 97They expressed no conclusion as to whether Paccar's counterpart deed of loan and charge document was bound (and lying flat, ie, page 22 was pulled away from the staples rather than being fold back over the binding) the pages were loose leaf but together or the attestation page stood alone at the time/s the ID Menzies and CA Menzies signatures were written. 98Mr Penter, together with the other employees that Mr Menzies dealt with at Paccar, namely Mr David Mueller and Ms Gillian Harvey, all say that at no stage during their discussions with Mr Menzies did Mr Menzies suggest that he and Colleen Menzies did not sign complete copies of the documents. 99I accept the evidence of the experts. Their view largely supports Mr Penter's version of events. As Mr Menzies elected not to be present at Court for the hearing, he could not be cross-examined. Had he appeared I would have permitted him to have his affidavit sworn and to have relied upon it in Court, but without his version of events being tested during cross examination, I prefer Mr Penter and the experts' evidence. Hence, I find that both Colleen and Ian Menzies reviewed and signed the four completed deeds of loan and charge, the guarantee and the ASIC documents. The amended cross claim 100The Menzies' claim firstly, a declaration that the representations made by Paccar Financial constituted misleading and deceptive conduct within the meaning of s 18 of Sch 2 of the Competition and Consumer Act 2012 (Cth); secondly, an order under s 232 of Sch 2 to the Competition and Consumer Act 2010 (Cth) that Paccar Financial be restrained forever from (i) enforcing the alleged guarantee and indemnity, (ii) taking any step to enforce the loan contract(s) as against the cross claimants, (iii) asserting any claim of title to the equipment in priority to the title of the cross claimants; thirdly, in the alternative, a declaration that the guarantee and indemnity is an unjust contract pursuant to s 9 of the Contracts Review Act 1980, (ii) an order pursuant to s 7 of the Contracts Review Act that the guarantee and indemnity is void; and (iii) an order pursuant to s 7 of the Contracts Review Act that the cross claimants be excused from performance of any obligations imposed upon them by virtue of the guarantee and indemnity. Misleading or deceptive conduct 101Section 18 of the Australian Consumer Law (Sch 2 of the Competition and Consumer Act) relevantly reads: "18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1). Note: For rules relating to representations as to the country of origin of goods, see Part 5-3." 102And s 232(1) relevantly provides that a court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute conduct that is misleading or deceptive or is likely to mislead or deceive. Section 232(6) states that the Court may grant an injunction to refund money and/or to transfer property. 103The Menzies allege that Mr Penter represented to them that Paccar was a specialist heavy vehicle financing company; had a particular understanding of the trucking and heavy vehicle industry; had a particular understanding that the trucking and haulage industry experience periods of down time in which a haulage company may be prevented from generating an income; and in the event of the occurrence of a down time period, Paccar would renegotiate any then existing finance contract between it and the borrower, so as to extend the term and/or vary the date for repayment of moneys advanced to a borrower (the first representation). The Menzies also allege a second representation which raises the same issue as to the signing of incomplete documents. It is alleged that the Menzies were obliged to sign the attestation pages to progress the application process for Menzies Haulage to borrow the money to purchase the equipment (the second representation). 104The first alleged misrepresentation is not made out. In November 2006, when the Menzies were having difficulty repaying the loans, Paccar did negotiate amended deeds of loan and charge that provided for equal repayments rather than steeper repayments for instalments four to six. The second alleged misrepresentation in relation to the signing of attestation clauses is also not made out for the reasons given earlier in this judgment. 105It is my view that Paccar did not engage in misleading or deceptive conduct in relation to the Menzies. Contracts Review Act 106So far as Mr and Mrs Menzies' claim under the Contracts Review Act 1980, s 7 reads: "7(1) Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following: (a) it may decide to refuse to enforce any or all of the provisions of the contract, (b) it may make an order declaring the contract void, in whole or in part, (c) it may make an order varying, in whole or in part, any provision of the contract, (d) it may, in relation to a land instrument, make an order for or with respect to requiring the execution of an instrument that: (i) varies, or has the effect of varying, the provisions of the land instrument, or (ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the land instrument. (2) Where the Court makes an order under subsection (1) (b) or (c), the declaration or variation shall have effect as from the time when the contract was made or (as to the whole or any part or parts of the contract) from some other time or times as specified in the order. (3) The operation of this section is subject to the provisions of section 19." 107Assistance in ascertaining the intended content of "unjust" is derived from s 9. It relevantly reads: "9(1) In determining whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of: (a) compliance with any or all of the provisions of the contract, or (b) non-compliance with, or contravention of, any or all of the provisions of the contract. (2) Without in any way affecting the generality of subsection (1), the matters to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, include the following: (a) whether or not there was any material inequality in bargaining power between the parties to the contract, (b) whether or not prior to or at the time the contract was made its provisions were the subject of negotiation, (c) whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract, (d) whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract, (e) whether or not: (i) any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or ... (f) the relative economic circumstances, educational background and literacy of: (i) the parties to the contract (other than a corporation), and (ii) any person who represented any of the parties to the contract, (g) where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed, (h) whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act, (i) the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect, (j) whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act: (i) by any other party to the contract, (ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the contract, or (iii) by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract, (k) the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party, and (I) the commercial or other setting, purpose and effect of the contract. ... (4) In determining whether a contract or a provision of a contract is unjust, the Court shall not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was made. (5) In determining whether it is just to grant relief in respect of a contract or a provision of a contract that is found to be unjust, the Court may have regard to the conduct of the parties to the proceedings in relation to the performance of the contract since it was made." 108The Menzies relied upon s 9(2)(a), (b), (c), (d), (e), (f), (g) and (h). Additionally, Mr Menzies claims that Jeff Penter did not explain what he was signing; they did not read the pages; they were not given any opportunity by Jeff Penter to read the pages; they did not know the effect of the pages he had signed; Jeff Penter did not inform them that Paccar was obtaining any kind of security in the trucks or the trailers; they did not believe the pages they signed formed part of a formal agreement with Paccar; they had not previously been given a copy of any of the pages that he signed; they did not date or write their name on any of the pages that they signed; they did not have any opportunity to obtain legal or financial advice about the pages or any agreement with Paccar; and they did not see Jeff Penter sign or write on any of the pages that they had signed. These assertions are disputed by Paccar. 109In Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41, Handley JA stated at [99] that consideration of a claim under the Contracts Review Act involves a three stage process. They are: "... the making of findings of primary fact where these are disputed, the formation of an evaluative judgment as to whether or not the contract is unjust, and why, and then, if necessary, the exercise of the Court's discretionary power to grant relief and determine its extent." 110In Mr and Mrs Menzies' favour, I do accept that neither Mr Menzies nor Mrs Menzies was advised by Mr Penter to seek independent legal or financial advice prior to signing the documents. Most of the issues raised in the Menzies' Contracts Review Act claim raise the same issues as before. I do not accept Mr Menzies' assertions that: he did not read the pages; he was not given any opportunity by Mr Penter to read them; he did not know the effect of the pages he had signed; Jeff Penter did not inform him that Paccar was obtaining any kind of security in the trucks or the trailers; he did not believe the pages he signed formed part of a formal agreement with Paccar Financial; he had not previously been given a copy of any of the pages that he signed; he did not date or write his name on any of the pages that he signed; he did not see Jeff Penter sign or write on any of the pages that he had signed. 111So far as the Menzies' assertion, that Jeff Penter did not explain to them what they were signing and that they were unsophisticated persons running a small family freight forwarding business whereas Paccar was a corporation conducting a finance business in Australia as a wholly owned subsidiary of a foreign multi-national corporation, it is difficult to accept that Mr Menzies did not know what he was signing in the light of his prior business experience. 112Between 1984 and 2004, Mr and Mrs Menzies had their own successful business, Chittaway Plant Hire and then Menzies Excavations. Mr Menzies had purchased a 40 acre property at Wyong and another at Marborough, Queensland. By 2004, Mr Menzies had completely paid back his loans to the CBA and other finance companies from the proceeds of hiring out the machinery he had purchased and the sale of part of the Wyong property. This leads me to conclude that Mr Menzies was a reasonably experienced businessman and did understand the terms of the documents he signed. 113So far as Mrs Menzies is concerned there is no evidence that establishes her claim under the Contracts Review Act. It appears that she was involved in the business to a lesser extent. She made arrangements for payments to Paccar. She has not raised different issues to that of her husband under the Contracts Review Act. They were represented by the same solicitor when the amended defence and amended cross claim was filed. 114Further, counsel for Paccar relied on s 6 of the Contracts Review Act to submit that the Menzies were not entitled to be granted relief under the Act as the Menzies were carrying on a trucking business. Section 6 of the Contracts Review Act relevantly reads: "6 Certain restrictions on grant of relief ... (2) A person may not be granted relief under this Act in relation to a contract so far as the contract was entered into in the course of or for the purpose of a trade, business or profession carried on by the person or proposed to be carried on by the person, other than a farming undertaking (including, but not limited to, an agricultural, pastoral, horticultural, orcharding or viticultural undertaking) carried on by the person or proposed to be carried on by the person wholly or principally in New South Wales." 115On 2 May 2006, Menzies Haulage was incorporated and Mr and Mrs Menzies were the two directors and joint owners of the company. The trucks and trailers were purchased in the name of the company Menzies Haulage Pty Limited and were required to pick up and deliver loads to and from Sydney and Brisbane. One of the trucks would load in Sydney and the other in Brisbane every day. The two trucks did five round trips per week between them. Hence, as the trucks were constantly travelling between Sydney and Brisbane it is not clear whether the business was carried on by the Menzies wholly or principally in New South Wales. 116After considering the matters outlined in s 9(2) of the Act, it is my view that the contracts were not unjust, nor are the Menzies entitled to relief under the Contracts Review Act. 117As the Menzies' claims for relief have failed I dismiss the amended cross claim. 118It is now necessary to deal with a further issue raised in the amended statement of claim. Paccar seeks an order pursuant to s 568F of the Corporations Act 2001. It reads: "568F Court may dispose of disclaimed property (1) The Court may order that disclaimed property vest in, or be delivered to: (a) a person entitled to the property; or (b) a person in or to whom it seems to the Court appropriate that the property be vested or delivered; or (c) a person as trustee for a person of a kind referred to in paragraph (a) or (b). (2) The Court may make an order under subsection (1): (a) on the application of a person who claims an interest in the property, or is under a liability in respect of the property that this Act has not discharged; and (b) after hearing such persons as it thinks appropriate. (3) Subject to subsection (4), where an order is made under subsection (1) vesting property, the property vests immediately, for the purposes of the order, without any conveyance, transfer or assignment. (4) Where: (a) a law of the Commonwealth or of a State or Territory requires the transfer of property vested by an order under subsection (1) to be registered; and (b) that law enables the order to be registered; the property vests in equity because of the order but does not vest at law until that law has been complied with." 119On 7 May 2009, Paccar served a statutory demand for payment of debt. On 3 September 2009, Menzies Haulage was placed into liquidation and wound up by order of the Federal Court. On 11 October 2010, the liquidator of Menzies Haulage disclaimed all interest in and to the equipment. As the liquidator of Menzies Haulage has disclaimed all interest in and to the equipment, namely the property referred to in [4] of this judgment, I make an order that Paccar is entitled to that property pursuant to s 568F(1)(a). Conclusion 120I am satisfied that there has been default under the loan agreement in that the borrowers have not paid instalments in accordance with the agreement, the last default in the sum of $373,541.09. Hence, the principal and interest became payable on demand (Clause 21.3). On 26 June 2009, a notice of demand was served on Menzies Haulage, Mr Menzies and Mrs Menzies. No payment was made. Paccar is entitled to take possession of the trucks and trailers (Clause 21.3(d)). Under the guarantee, a demand has been made for payment on 26 March 2009 from the Menzies. No payment has been made. Pursuant to the guarantee, the Menzies are also liable to pay the amounts outstanding under the loan agreement, namely the sum of $572,442.96. 121Costs are discretionary. Costs usually follow the event. The Menzies have been unsuccessful. The Menzies are to pay Paccar's costs. Paccar seeks their costs be paid on an indemnity basis pursuant to clauses 17.1, 17.2 and 17.4 of the loan agreements. I make this order. 122In so far as Paccar seeks an order for a referral to an Associate Justice to determine costs and legal costs payable on a "full indemnity" basis pursuant to clause 17.1, 17.2 and 17.4 of the loan contracts for wrongful detention of the equipment from 26 March 2009, in the alternative Paccar seeks damages for an amount equivalent to its value and interest on the damages from the date of disposal. I have already awarded Paccar costs on an indemnity basis in relation to the hearing. While the rest of this pleading is difficult to understand it is not clear why I should make either of these orders as from 26 March 2009 so I decline to do so. The Court orders in proceedings 2010/377702 that: (1) Paccar is entitled to possession of the following property: (a) 1 x 2004 Vawdrey D Double Tautliner Trailer Chassis No XXXXX Registration XXXXX and 1 x 2004 Vawdrey B Double Tautliner Trailer Chassis No XXXXX Registration XXXXX (as set out in Loan Contract 7470-20393); (b) 1 x 2003 Kenworth K104 Prime Mover Chassis No XXXXX Engine No XXXXX Registration XXXXX (as set out in Loan Contract 7470-20394); (c) 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX and 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX (as set out in Loan Contract 7470-20395); and (d) 1 x 2003 Kenworth K104 Prime Mover Chassis XXXXX Engine XXXXX Registration XXXXX (as set out in Loan Contract 7470-20396). (2) Ian Menzies and Colleen Menzies are to deliver the property referred to in order (1) to Paccar within 14 days. (3) The defendants are to pay the plaintiff the sum of $572,442.96. (4) The cross claim is dismissed. (5) The defendants are to pay the plaintiff's costs on an indemnity basis. Proceedings 2011/176144 - the Menzies as plaintiffs 123In proceedings 2011/176144, the Menzies claim damages for what they allege were an abuse of process, namely pursuing orders for substitution and sequestration against the Menzies in the Federal Magistrates Court. The orders for substitution and sequestration were overturned on appeal. The Menzies allege that Paccar was trying to shut them out from having a hearing on the merits about a debt the Menzies say Paccar knew was disputed. 124Paccar contends that the relevant debt was never truly in dispute. It alleges that the Menzies' claim never to have executed the complete documents was a claim designed to create the appearance of a dispute when none genuinely existed. It also pleads that the successful prosecution of the Bankruptcy proceedings always required a hearing on the merits to occur and that this is exactly what transpired before Federal Magistrate Hartnett. Neither Hartnett FM at first instance nor Bromberg J on appeal held that there was an abuse of process despite that submission having been made by the Menzies. BP Australia Pty Ltd v Menzies [2010] FMCA 375 125The proceedings in the Federal Magistrates Court before Hartnett FM are BP Australia Pty Ltd v Menzies & Anor [2010] FMCA 375. In those proceedings, Paccar Financial Pty Ltd sought to be substituted as a petitioning creditor pursuant to s 49 of the Bankruptcy Act 1966 (Cth) and applied for sequestration orders against the estates of the Menzies and an order for costs. The Menzies, in their grounds of opposition to the application, claimed the following: (1) Paccar is not a creditor of the respondents and that the substituted creditor is not otherwise entitled to the relief claimed under the petition or in accordance with the Act. (2) The claim of the substituted creditor is a claim to which the respondents seek to file a defence or counterclaim that they have not been able to set up in any original proceedings because there are presently no finally determined original proceedings. (3) The proceedings are an abuse of process in that the substituting petitioner claims to be a secured creditor and does not intend to relinquish its security, but wishes to achieve the collateral purpose of preventing the respondents from litigating proceedings presently before the Supreme Court in the State of Victoria numbered 6823/09. (4) That the respondents are solvent. 126Paccar argued that there was no genuine dispute as to the existence of the debt owed to it. The Menzies argued that the debt claimed by Paccar was the subject of a genuine dispute as evidenced by the existence of proceedings in the Supreme Court of New South Wales. Hartnett FM disagreed and held that the mere existence of proceedings did not establish a genuine dispute. 127The grounds relied upon by the Menzies were that the principal debt being sued upon was not proved; the guarantee was not their debt (the doctrine of non est factum) and that only the execution pages were signed. Her Honour found that the grounds relied upon by the Menzies were not genuine. With regards to the Menzies' position that they were solvent, the Magistrate found that the onus was on the Menzies to prove that they were solvent and the evidence adduced did not provide that proof. Her Honour also found that there was no evidence of any motivation on the part of Paccar to draw an inference that the creditor's petition was being brought for an improper purpose. Her Honour found that the creditor's petition was not being prosecuted by the original petitioning creditor, BP Australia Pty Ltd, and that the debt claimed to be owed to Paccar by the Menzies existed at the time of the act of bankruptcy on which the original petition was founded. Consequently, her Honour ordered that Paccar be substituted as petitioning creditor and made a sequestration order against the Menzies. The Menzies were ordered to pay the costs of, and incidental to, the petition and interlocutory applications. 128On appeal, in Menzies v Paccar Financial Pty Ltd [2011] FCA 460, the main basis for the challenge was the contention that the Federal Magistrate should have found there was a genuine dispute as to the debt relied upon by Paccar and thus that her Honour's discretion miscarried in ordering that Paccar be substituted as petitioning creditor. The Menzies argued that instead of determining whether or not a genuine dispute existed, her Honour determined the merits of and resolved that dispute. Bromberg J held that her Honour imposed on the Menzies a standard of satisfaction as to whether an arguable or genuine dispute existed beyond that which is appropriate in the exercise of a discretion under s 49 of the Bankruptcy Act. By doing so, her Honour acted upon a wrong principle and thereby her discretion miscarried. His Honour, however, rejected the Menzies' contention that her Honour failed to take into account, on the question of whether a genuine dispute existed, the claims and defences of the Menzies beyond the non est factum defence. As there was no evidence to suggest that the resolution of the issue over the disputed debt in the New South Wales proceedings, and thus any delay in determination of the Paccar's petition, would adversely affect any existing or future creditors of the Menzies, his Honour declined to exercise the discretion to substitute Paccar as the petitioning creditor. His Honour set aside the orders for substitution and sequestration against the Menzies and ordered that Paccar pay the Menzies' costs of the appeal and their costs of the hearing in the Federal Magistrates Court. 129While I accept that the Menzies were successful on appeal, Paccar was not substituted as a creditor and the sequestration orders were set aside, neither the decision of the Federal Magistrate or the Judge on appeal made any findings that there had been an abuse of process. It is my view that the conduct of Paccar, by seeking to be substituted as a creditor in bankruptcy proceedings, does not amount to an abuse of process. The crux of the decision on appeal made in the Menzies' favour was whether a genuine dispute existed as to the debt. The Menzies raised the same issue as in proceedings 2010/377702, that is, whether they signed complete versions of the four deeds of loan and charge, the amended deeds, the guarantee and the ASIC documents. The Court, on appeal, decided that that issue raised a genuine dispute. 130The result is that these proceedings are dismissed. 131Costs are discretionary. Costs usually follow the event. The plaintiffs are to pay the defendant's costs as agreed or assessed. The Court orders in proceedings 2010/377702 that: (1) Paccar is entitled to possession of the following property: (a) 1 x 2004 Vawdrey D Double Tautliner Trailer Chassis No XXXXX Registration XXXXX and 1 x 2004 Vawdrey B Double Tautliner Trailer Chassis No XXXXX Registration XXXXX (as set out in Loan Contract 7470-20393); (b) 1 x 2003 Kenworth K104 Prime Mover Chassis No XXXXX Engine No XXXXX Registration XXXXX (as set out in Loan Contract 7470-20394); (c) 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX and 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX (as set out in Loan Contract 7470-20395); and (d) 1 x 2003 Kenworth K104 Prime Mover Chassis XXXXX Engine XXXXX Registration XXXXX (as set out in Loan Contract 7470-20396). (2) Ian Menzies and Colleen Menzies are to deliver the property referred to in order (1) to Paccar within 14 days. (3) The defendants are to pay the plaintiff the sum of $572,442.96. (4) The cross claim is dismissed. (5) The defendants are to pay the plaintiff's costs on an indemnity basis. The Court orders in proceedings 2011/176144 that: (1) These proceedings are dismissed. (2) The plaintiffs are to pay the defendant's costs as agreed or assessed. ********** Amendments 17 June 2013 - Amended orders (1)(c) to read:"(c) 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX and 1 x 2001 Barker B Double Trailer Chassis XXXXX Registration XXXXX (as set out in Loan Contract 7470-20395); and" Amended paragraphs: 4 and orders preceding paragraphs 122 and 131 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: 17 June 2013