Chelliah v NSW Police [2018] NSWSC 557

Supreme Court New South Wales

Medium Neutral Citation: Chelliah v NSW Police [2018] NSWSC 557 Hearing dates: 6 March 2018 Date of orders: 14 May 2018 Decision date: 14 May 2018 Jurisdiction: Common Law Before: Garling J Decision: (1) Further Amended Summons filed 14 December 2017, and the proceedings generally, are dismissed.

(2) Plaintiff to pay the first and second defendant's costs of the proceedings. Catchwords: APPEALS – appeal from Local Court – appeal against decision under s 219 Law Enforcement (Powers and Responsibilities) Act 2002 for delivery of property – question of which party lawfully entitled to possession of vehicle – where vehicle stolen from second defendant and sold to plaintiff by a third party – application of nemo dat principle – whether exceptions to nemo dat under s 27 Sale of Goods Act 1923 and Personal Property Securities Act 2009 applied – where plaintiff did not seek leave to appeal on grounds disclosing mixed questions of fact and law – where interest of second defendant in the vehicle was not a security interest – where interest of second defendant instead derives from her being a residuary beneficiary under the Succession Act 2006 – where Magistrate was not satisfied that plaintiff did not have notice of any defect in title of the vendor – no inconsistency pursuant to s 109 of the Constitution where Commonwealth legislation does not apply to the factual circumstances – neither exception made out – no other errors demonstrated – proceedings dismissed Legislation Cited: Commonwealth Constitution Judiciary Act 1903 (Cth) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Local Court Act 2007 (NSW) Personal Property Securities Act 2009 (Cth) Sale of Goods Act 1923 (NSW) Succession Act 2006 (NSW) Cases Cited: Browne v Dunn (1893) 6 R 67 Carolan v State of New South Wales and Anor [2013] NSWSC 1593 Commissioner of Police v Pecover [2014] NSWSC 1427 Fantakis v Commissioner of Police [2013] NSWSC 685 State of NSW v O'Mara and Ors [2015] NSWSC 428 Texts Cited: Not Applicable Category: Principal judgment Parties: Charles Chelliah (P) New South Wales Police (D1) Cheryl Hall (D2) Representation: Counsel: C P Carter (P) Submitting Appearance (D1) H Altan (D2)