Kilpatrick v Port Kembla Port Corporation [2013] NSWADT 195

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kilpatrick v Port Kembla Port Corporation [2013] NSWADT 195 Hearing dates: 5 August 2013 Decision date: 30 August 2013 Jurisdiction: General Division Before: Judge K P O'Connor, President Decision: 1. Application for review dismissed for want of jurisdiction. 2. Registrar to make directions in relation to consideration of the respondent's foreshadowed costs application. Catchwords: JURISDICTION - Application for review of decision to take possession of goods invoking Tribunal's review jurisdiction under the Impounding Act - Objection by respondent - Contended that the decision was made under Uncollected Goods Act - Tribunal not satisfied that decision made under Impounding Act - Objection upheld. Impounding Act 1993, Uncollected Goods Act 1995 Legislation Cited: Administrative Decisions Tribunal Act 1997 Companion Animals Act 1998 Impounding Act 1993 Uncollected Goods Act 1995 Cases Cited: Capital Finance Co Ltd v Bray [1964] 1 WLR 323 Klewer v Coffs Harbour City Council [2003] NSWADT 170 Texts Cited: Lindgren's Business Laws of Australia Category: Principal judgment Parties: Leslie Kilpatrick (Applicant) Port Kembla Port Corporation (Respondent) Representation: In person (Applicant) S Dyball, Heard McEwan Legal (Respondent) File Number(s): 133178

reasons for decision 1In or about November 2012 the Port Kembla Port Corporation (the Port Corporation) took possession of three heavy vehicles located on its land, all of a kind used in marine salvage (1995 Komatsu PC 200-6 Excavator, Serial Number 84671; Caterpillar 330B Excavator, Serial Number 8SR00164 and Mitsubishi Hook Lift Bin Truck), as well as various associated items. 2Later the liquidators of a company placed in liquidation, Kilpatrick Group Pty Ltd (Kilpatrick Group), claimed ownership of the goods. Kilpatrick Group has three directors - Mr Leslie Kilpatrick, his wife, and his son, Mr Paul Kilpatrick. 3The Port Corporation released the goods. The liquidator put them up for public auction. The public auction has not proceeded, pending the resolution of an application for review before the Tribunal. 4The review applicant is Mr Leslie Kilpatrick. He asserts that he is the true owner of the goods, as an individual trading (with his wife) as 'Steel City Metals'. 5He has applied to the Tribunal for review of the Port Corporation's decision to take possession of the vehicles. His application is made under s 38 of the Impounding Act 1993. 6The Port Corporation objects to the Tribunal dealing with the application on the ground that it is not within jurisdiction. In essence, the Port Corporation submits that it acted under the Uncollected Goods Act 1995 (Uncollected Goods Act). The parties accept that there is no equivalent review jurisdiction vested in the Tribunal under that Act. 7The Port Corporation drew attention to the scheme of the Impounding Act. It notes that there is no evidence that an 'impounding officer' within the meaning of the Act removed the goods, nor if there was an 'impounding officer' that the impoundment occurred within an 'area of operation' of an impounding officer. The Port Corporation also submitted that the land upon which the goods were located was owned by the Port Corporation and did not constitute an 'area of operation' within the meaning of the Act. (As to these issues, the relevant provisions of the Impounding Act are ss 5, 6, 8 and the definition section, s 4, which in turn refers to the Dictionary; see also, meaning of 'area of operations', and 'impounding authority'.) The Port Corporation's evidence is that it took action under the Uncollected Goods Act. 8Material before Tribunal: The parties filed the following material: submissions from the solicitors for the respondent, 16 July 2013; affidavit from the applicant, filed 2 August 2013; submissions from the applicant, filed 5 August 2013 shortly before the Tribunal commenced a telephone hearing. At the conclusion of the hearing the Tribunal gave the respondent liberty to file within three days any submissions in reply to the applicant's submissions filed 5 August 2013. The respondent filed further written submissions on 8 August 2013. The respondent foreshadowed an application for costs if its objection is upheld. 9The following history emerges from the material furnished to the Tribunal. 10Mr Kilpatrick has been involved in the business of marine salvage and in the collection and sale of scrap metal through at least the two businesses already mentioned, 'Steel City Metals', described as a metal recycling business, and Kilpatrick Group, described as a specialised demolition, salvage and deconstruction company. 11Mr Paul Kilpatrick has filed an affidavit in which he gives a history of dealings said to have taken place between Steel City Metals and the operations manager of Oceanlinx Ltd in connection with the deconstruction and other associated works in relation to the Oceanlinx owned vessel, MR 1 Wave Energy Barge. 12He refers to difficulties in moving it from its moored location, and the making of a proposal by the company for the vessel to be floated. He states that Steel City Metals was to complete the process of demolition of the '475 tonne scrap steel structure'. 13Mr Paul Kilpatrick states that the person who is both the Harbour Master and General Manager of the Port Corporation was involved in those discussions. He gives a history of interactions commencing in July 2009. He refers to the company being successful in obtaining the salvage tender in July 2011. He gives accounts of further interactions with the Port Corporation with a view to undertaking the work, and the complexities involved. He says that the Caterpillar excavator was floated to the site on 10 October 2011 along with various attachments, and the Komatsu excavator was floated to the site on 18 October 2011. The lift hook bin was also floated to the site, along with many other items. He attaches to his affidavit various documents that he says supports these statements. 14Kilpatrick Group went into liquidation on 26 October 2012. 15In the Port Corporation's opinion, the equipment had by that time been abandoned and remained (unmarked and unidentified) on the Port Corporation's land for in excess of 18 months. 16It states that on 9 and 16 November 2012 the Port Corporation obtained certificates under s 31 of the Uncollected Goods Act warranting that the vehicles were not stolen, and conducted searches of the Personal Property and Security Register (PPSR) to ascertain whether the equipment had any declared owner or encumbrances. The search provided no relevant information. The certificates and PPSR returns are in the material before the Tribunal. 17On 5 April 2013 Paul Kilpatrick discovered that the three items mentioned and associated equipment were being offered for sale at South Coast Auctions. He learnt that the goods had been placed with the auctioneer by the liquidator of the company. He contacted the liquidator on 8 April 2013, and advised that his father was the owner of the goods. He was told that the goods were subject to a lien from the Port Corporation said to be in excess of $20,000 for storage and associated costs. 18He claims that the Port Corporation has wrongly impounded them and wishes to have its decision to impound set aside. 19The Port Corporation states that it contacted the Kilpatrick Group by letter on 20 June 2012 and by email on 19 April 2013 enquiring whether it owned the goods and, if so, demanding it remove them from the Port Corporation's land. It states that no response was received to those communications. Mr Paul Kilpatrick's affidavit contests this statement so far as the communication of 19 April 2013. I have not sought to resolve that difference. 20Mr Paul Kilpatrick states that he demanded on 26 April 2013 that the Port Corporation return the goods to his father, and threatened otherwise to take action in the Tribunal under the Impounding Act. 21In line with its solicitor's reply of 30 April 2013 the Port Corporation has indicated to the Tribunal that it would be prepared to recover the items from the liquidator and deliver the items to Leslie Kilpatrick if he can satisfy it that he, personally, is the true owner, and subject to payment of the Port Corporation's fees, costs and expenses. 22Paul Kilpatrick has filed documentation in the form of bank statements said to confirm cash transactions that prove that his father personally purchased the items.