Costa Asset Management Pty Ltd v Mansour

HIS HONOUR: On 24 April 2020, RA Hulme J made the following orders in these proceedings (see Costa Asset Management Pty Ltd v Mansour [2020 NSWSC 449):

A dispute has now arisen as to the meaning of the words “all of their personal property, motor vehicles and other equipment” referred to in Orders 1, 2 and 4. The dispute has been fomented in the following circumstances.

The defendants are the owners of the Galston property. They were until recently in occupation and possession of the property when the plaintiff as their mortgagee recovered possession in accordance with its security following the defendants’ default. The defendants had managed in their time on the property to accumulate a considerable amount of personal items, principal among which were approximately 48 motor vehicles of varying ages and descriptions. However, the defendants’ personal property was not limited or restricted to these motor vehicles but included other items as well. At least five of the motor vehicles, consisting of four vintage Bentleys and a Chevrolet 350 Corvette, are valuable. The remaining material cannot be so described.

When the plaintiff sold the Galston property to a third party, in the exercise of its power of sale, it included in the contract for sale a special condition 40 in the following terms:

The purchaser gave the plaintiff a notice in accordance with special condition 40(b) of the contract.

The defendants want access to the property to remove the five remaining vehicles and a washing machine, some gardening tools and a bag of flour. They do not feel that they are in any way obliged or required to remove anything else. However, the plaintiff insists that the orders made by RA Hulme J do not authorise the defendants to have the access that they seek until they have removed the considerable amount of miscellaneous chattels scattered across the property. In this last respect the plaintiff draws attention to an email sent by the defendants’ solicitor to the plaintiff’s solicitor at 9.05am on 23 April 2020, which is annexed to the affidavit of James Sean Whittle sworn 24 April 2020, and which was read in evidence before his Honour. In that email, Ms Phair proposed a timetable for the removal of the motor vehicles on the property “AND ANYTHING ELSE REMAINING ON THE PROPERTY”.

In his affidavit sworn on 8 May 2020, James Sean Whittle, the plaintiff’s solicitor, said this:

It seems from the terms of special condition 40(a) that the plaintiff was concerned only to disclose to the purchaser the existence of the chattels “in the storeroom”. However, special condition 40(b) appears to contemplate the existence of the other miscellaneous goods and chattels located anywhere else on the Galston property. Be that as it may, the defendants have so far proceeded to remove only the items listed in the inventory annexed to Mr Whittle’s affidavit but not “the goods and rubbish remaining” there, which had not been deposited by the plaintiff’s agent as described by Mr Whittle.

Before the matter reached RA Hulme J, Mr Whittle had on 23 April 2020 at 2.12pm sent an email to Ms Phair, responding to her 9.05am email of the same day, as follows:

Ms Phair replied to the plaintiff’s solicitor on 23 April 2020 as follows:

Ms Phair had not at any stage, in correspondence written in the period before RA Hulme J was approached for assistance, sought to draw a distinction between, for example in her own words, “all items including all vehicles” or “anything else remaining on the property” on the one hand and some other, smaller, discrete selection of goods not covering all of the miscellaneous chattels then, and presently, remaining on the land, on the other hand. I accept that Ms Phair’s concern at the time of writing her letters was directed to the different question of whether or not the plaintiff could unilaterally purport to schedule the order in which the goods on the land were to be removed. She challenged the notion that the plaintiff could somehow “import a condition into the removal of the items…as security pending [the plaintiff] being satisfied as to the removal of the balance of the personal property and motor vehicles”. However, in the events that occurred, his Honour made Orders 2 and 4 that specifically took account of the plaintiff’s expressed concerns and put in place a regime which in fact operated to give the plaintiff the very security that the plaintiff sought and to which Ms Phair was referring. Having regard to the evidence before his Honour, that was entirely unsurprising.

It seems to me to be inescapable that the defendants will not have complied with Order 2, and will not have become entitled to remove the four Bentleys and the Corvette in accordance with Order 4, until “anything else remaining on the property” has been removed.

I will in the circumstances invite the parties to bring in short minutes of order to give effect to my reasons, having regard to the need to take account of the defendants’ ability to comply with Order 2 and the time that they may need to do so.