Supreme Court New South Wales Medium Neutral Citation: Xbox Pty Ltd v The Trustee for Wagga Motors Unit Trust t/as Wagga Motors [2016] NSWSC 1422 Hearing dates: 4 October 2016 Decision date: 04 October 2016 Jurisdiction: Equity - Duty List Before: Stevenson J Decision: (1) On the plaintiff giving the usual undertaking as to damages, pursuant to r 25.3 of Uniform Civil Procedure Rules 2005 (NSW), the defendant will: (a) Remain in possession and not dispose of the 2013 Mercedes Benz C Class C63 AMG sedan the subject of the proceedings ("Vehicle") until further order of the Court. (b) Preserve the Vehicle in its current condition as at the date of this order. (c) Store the Vehicle securely until further order of the Court. (d) Maintain the Vehicle in accordance with the manufacturers recommended guidelines until further order of the Court. (2) I order that the defendant pay the plaintiff's costs of today. Catchwords: PRACTICE AND PROCEDURE – interlocutory relief – order for the preservation of property UCPR r 25.3 – whether serious question to be tried as to the existence of a contract for sale of a second hand vehicle – whether serious question to be tried that plaintiff will obtain specific performance of that contract Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Xbox Pty Limited (Plaintiff/Applicant) The Trustee for Wagga Motors Unit Trust t/as Wagga Motors (Defendant/Respondent) Representation: Counsel: B Lloyd (Plaintiff/Applicant) N Hogan (Defendant/Respondent) Solicitors: Mills Oakley (Plaintiff/Applicant) Walsh & Blair Lawyers (Defendant/Respondent) File Number(s): SC 2016/199920 EX TEMPORE Judgment (REVISED) 1. The plaintiff claims that by a contract made on 20 May 2016 between its director, Mr Dimov, as purchaser, and the defendant as vendor, and varied on 3 June 2016 to substitute the plaintiff as purchaser, the defendant agreed to sell the plaintiff a Mercedes Benz C63 motor vehicle for some $116,000. 2. On 20 May 2016, the defendant issued an invoice to Mr Dimov. 3. On 7 June 2016, the defendant's representative, Mr Leddin, sent Mr Dimov an email in which he said he had noticed some smoke coming from the exhaust of the car and that "[i]t is therefore my preference to remove the vehicle from sale and refund in full your deposit of $1,000". 4. On the next day, 8 June 2016, three things happened. 5. First, the defendant issued a form of contract in which the plaintiff was named as purchaser. 6. Next, Mr Leddin sent Mr Dimov a tax invoice, directed to the plaintiff, under cover of email reading: "Please find attached invoice as requested and confirmed 7th June 2016." 7. Then, some two and a half hours later Mr Leddin sent an email to Mr Dimov saying: "Please do not fund vehicle to Wagga Motors an internal decision has been made and the vehicle has formally been removed from sale". 8. The plaintiff commenced these proceedings on 1 July 2016 seeking, amongst other things, specific performance of the contract. 9. On 23 September 2016, Mr Dimov noticed that the defendant had advertised the vehicle for sale. 10. The defendant has now entered into a contract to sell the car to a third party. That contract is due to complete this coming Friday, 7 October 2016. 11. On 26 September 2016, the plaintiff filed a notice of motion seeking interlocutory relief preventing the defendant from disposing of the motor vehicle to any other parties pending the outcome of these proceedings. That application came before me today as duty judge. 12. Argument before me focused on three issues. 13. The first is whether there is a serious question to be tried that there is a binding contract. 14. Mr Hogan, who appears for the defendant, drew attention to the fact that the contract issued by the defendant contains a note which reads: "Important. Read this document carefully before you sign. This document becomes a legally binding contract upon acceptance by the Dealer." 1. The defendant has not signed the contract. Therefore, Mr Hogan submitted, there is no case to be tried that there is a "legally binding" contract. 2. I do not accept that submission. 3. It is true, as Mr Hogan pointed out, that the plaintiff's pleaded case is that the contract is in writing. 4. However, the defendant's conduct demonstrates, in my opinion, that there is an arguable case that the defendant, by conduct, agreed to be bound in contract. Mr Leddin did not, in his 7 June 2016 email, assert there was no binding contract. Rather, he expressed no more than a "preference" to "remove the vehicle from sale". Then, on 8 June 2016, the defendant issued a contract and Mr Leddin sent Mr Dimov a tax invoice. Only then did Mr Leddin announce the defendant's "internal decision" to remove the car from sale. Mr Leddin did not assert there was no agreement. 5. In those circumstances, my opinion is that there is a serious question that the defendant, by its conduct, has agreed to be bound by the contract. 6. The next issue was whether there was a serious question to be tried; that the plaintiff will obtain, as it seeks, specific performance of this contract. 7. Mr Hogan pointed out that this is a contract in respect of a second hand car. It is not a vintage car or some other car that could not possibly be located otherwise than in the defendant dealer's yard. However, Mr Dimov has given evidence that he is a car enthusiast and that this particular car has the precise characteristics that he wanted, namely, of being a particular colour, having low kilometres and having a particular combination of factory options. 8. There is evidence before me as to a number of other Mercedes Benz C63 motor vehicles, similar to the car in question, which are on the market at the moment. Mr Lloyd, who appeared for the plaintiff, very helpfully provided me with a schedule, which contains a comparative analysis of some of those vehicles and, in particular, two that the defendant contends are identical to the car in question. Certainly those two cars are very similar to the one that is the subject of the alleged contract. There are, however, some differences which, to a car enthusiast, such as Mr Dimov, may well be significant. I appreciate that in cases like this, it is often difficult to get specific performance. However, in this case, I consider there is a serious question to be tried and that the plaintiff may well persuade a trial judge that the "special" features of this car are such that specific performance should be granted. 9. The final factor, and perhaps the most significant factor, is that the defendant is well aware that the plaintiff contends it has a binding contract to purchase this car. Nonetheless, evidently without warning, the defendant took it upon itself to contract to sell the car to a third party. 10. The defendant must have anticipated that, faced with those circumstances, the plaintiff would move for interlocutory relief. 11. Acceptance of the defendant's submissions would, in substance, resolve the whole case in its favour as, in that event, all that would remain would be the plaintiff's claim for damages, which, no doubt, would be remitted to the Local Court. I would infer that this is precisely the outcome the defendant was aiming for when it took the precipitate step of purporting to on-sell the car. 12. In all the circumstances, I am persuaded I ought make the order that the plaintiff seeks. 13. The orders I make are in accordance with par 1 of the plaintiff's notice of motion of 26 September 2016: 1. On the plaintiff giving the usual undertaking as to damages, pursuant to UCPR r 25.3, the defendant will: 1. Remain in possession and not dispose of the 2013 Mercedes Benz C Class C63 AMG sedan the subject of the proceedings ("Vehicle") until further order of the Court. 2. Preserve the Vehicle in its current condition as at the date of this order. 3. Store the Vehicle securely until further order of the Court. 4. Maintain the Vehicle in accordance with the manufacturers recommended guidelines until further order of the Court. 1. I order that the defendant pay the plaintiff's costs of today. 2. I invite the parties to confer and agree on the directions now needed to progress the matter. ********** 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: 06 October 2016