Spiros & Beverly Brendas v Craig Genter [2017] NSWDC 167

District Court New South Wales

Medium Neutral Citation: Spiros & Beverly Brendas v Craig Genter [2017] NSWDC 167 Hearing dates: 22 – 23 June 2017 Decision date: 04 July 2017 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict for the Defendant. For Orders see [80] Catchwords: Tort of conversion; damages Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Bunnings Group Pty Limited v Chep Australia Pty Limited [2011] NSWCA 342; (2011) 82 NSWLR 420 Chep Australia Pty Limited v Bunnings Group Limited [2010] NSWSC 301 Ferrcom v Commercial Union Assurance Limited (1991) 22 NSWLR 389 Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 Penfolds Wines Pty Limited v Elliott [1946] HCA 46 Category: Principal judgment Parties: Spiros Brendas (1st Plaintiff) Beverly Brendas (2nd Plaintiff) Craig Genter (Defendant) Representation: Counsel: R Raphael (Plaintiffs) P Greenwood SC (Defendant)

Solicitors: P Bevan (Plaintiffs) File Number(s): 15/178999 Publication restriction: Nil

Judgment 1. By a Second Amended Statement of Claim ("2ASOC"), the plaintiffs claim from the defendant, the return of certain machinery, damages and interest. The plaintiffs plead that in November 2013 a corporation, Kenoss Pty Limited ("Kenoss"), were the owners of a Caterpillar 330B excavator and a Caterpillar 815B compactor, with a combined value of $350,000.00. In December 2013, Kenoss went into administration and Mr Matt Adams and Mr Nathan Landery of FTI Consulting were appointed receivers ("the receivers"). 2. The receivers engaged Grays Online Auctions ("Grays") as contractors to take possession of, and arrange and manage storage of all of the assets of Kenoss, including the machines. 3. The plaintiffs pleaded that on or after January 2014, Grays entered into an agreement with the defendant for the storage of the machines at his property at Royalla, New South Wales. 4. The plaintiffs plead that the machines were transported to the defendant's property for storage, and that the receivers had full title and ownership of them. 5. The plaintiffs further pleaded that on or before February 2015, the plaintiffs and receivers entered into an agreement whereby certain surplus assets of Kenoss, including the machines, were transferred to the plaintiffs. 6. The plaintiffs pleaded by way of subrogation, a right to immediate possession of the machines, and further, upon transfer of the surplus assets to the plaintiffs, the receivers discharged all control and responsibility for those assets and the plaintiffs obtained all rights and title to the machines. 7. The plaintiffs pleaded that on 9 February 2015, the first plaintiff attended the property of the defendant with an employee of Grays, and the defendant was advised, and agreed, that the first plaintiff would make arrangements for collection of the machines and return and take possession of them. 8. In addition to the machines, the plaintiffs pleaded that a hammer, with a value of $75,000.00, and a bucket to the value of $4,000.00, were placed with the defendant for storage at the same time that the machines were delivered to the defendant. 9. The plaintiffs plead that on 9 February 2015 the defendant removed the Caterpillar 330B excavator from the property for his commercial use and that its removal and use was without the authority or consent of the plaintiffs. The plaintiffs pleaded that the defendant's continued possession of the excavator was an unlawful detention, and that detention had caused economic loss to the plaintiffs. 10. The plaintiffs therefore claimed first, return of the machines, and secondly, damages and interest. 11. It is common ground that the two machines were released on 15 December 2016. The hammer and bucket referred to above have not been returned. In his Defence to the 2ASOC, in which he did not admit the allegations, the defendant pleaded that he had allowed a Mr Ahmed Chehaita to store machinery, including the machines on his property at Royalla. Mr Chehaita had identified himself as a representative of a business trading as ACT Towing. 12. The defendant admitted that the first plaintiff attended his property in or about February 2015, but otherwise denies the allegations. He admitted that he had moved the excavator from the property, but otherwise denied the plaintiffs' allegations and that he had possession of the hammer or bucket referred to in the 2ASOC. 13. The defendant pleaded, in answer to the whole of the 2ASOC, that: "(a) He acted at all material times as a bailee of the machines, as defined in paragraph 3 of the Second Amended Statement of Claim on behalf of the receivers of liquidators of either Kenoss Pty Limited or Kenoss Contractors Pty Limited and in accordance with his duty as bailee; and (b) At all material times he was willing to release the machines to the plaintiffs upon being satisfied of the plaintiffs' entitlement to possession of the equipment; and (c) At all material times he conveyed his willingness to the plaintiffs but the plaintiffs failed or refused to prove any proper particulars to him of their asserted right or title to possession of the machines." 1. The defendant called no evidence, and at the end of the hearing, asserted that the plaintiffs had failed to prove that property in the machines had moved from Kenoss to the plaintiffs, and therefore the plaintiffs claim must fail. The following is a summary of the evidence relied on by the plaintiffs, and my findings of facts based on the evidence, unless otherwise indicated.