Loiero (aka Lero) v Adel Sportswear Pty Ltd & Ors [2010] NSWSC 1133

Loiero (aka Lero) v Adel Sportswear Pty Ltd & Ors [2010] NSWSC 1133

The schedule 4 items were chattels, not fixtures, because they were office equipment or confectionery manufacturing plant housed in the factory rather than intended as improvements to the land. Clause 2(1) of the 22 January 2010 agreement imposed interdependent obligations, including an obligation on the Alpha Trust to transfer the plant and equipment to Mr Loiero within 30 days. The 18 February 2010 notice of transfer was not shown to be fabricated and was accepted as genuine. In the circumstances, including BOCA's manufacture using the equipment with access to the factory, the parties intended property in the plant and equipment to pass to Mr Loiero under s 22 of the Sale of Goods Act...

Jurisdiction
Australia
Judgment Date
14 October 2010
Procedural Posture
Equity Proceedings Concerning Ownership or Entitlement to Possession of Plant and Equipment / Principal Judgment Determining Separate Question Ordered on 4 August 2010
Outcome
Declaration made for the plaintiff on the separate question of ownership and entitlement to possession.
Legal Topics
['fixtures' 'construction of Contractual Condition Precedent or Binding Obligation' 'transfer of Property in Specific or Ascertained Goods' 'bill of Sale' 'chattel Mortgage']
['real Property' 'contract' 'sale of Goods'] ['fixtures' 'construction of Contractual Condition Precedent or Binding Obligation' 'transfer of Property in Specific or Ascertained Goods' 'bill of Sale' 'chattel Mortgage']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Ownership or Entitlement to Possession of Plant and Equipment / Principal Judgment Determining Separate Question Ordered on 4 August 2010

Legal Issues

  1. 1 ['Whether the items listed in schedule 4 to the agreement dated 22 January 2010 were fixtures or chattels' 'Whether the agreement imposed an obligation on Mr and Mrs Tiricovski to transfer the plant and equipment' 'Whether a notice of transfer purportedly given on 18 February 2010 was genuine' 'Whether property in the plant and equipment passed to Mr Loiero by possession and use of the plant and equipment' 'Whether payment for the plant and equipment was a condition precedent to transfer of property' 'Whether the rights of Mrs Mircevski under the bill of sale prevented transfer of ownership to Mr Loiero']

Ratio Decidendi

The schedule 4 items were chattels, not fixtures, because they were office equipment or confectionery manufacturing plant housed in the factory rather than intended as improvements to the land. Clause 2(1) of the 22 January 2010 agreement imposed interdependent obligations, including an obligation on the Alpha Trust to transfer the plant and equipment to Mr Loiero within 30 days. The 18 February 2010 notice of transfer was not shown to be fabricated and was accepted as genuine. In the circumstances, including BOCA's manufacture using the equipment with access to the factory, the parties intended property in the plant and equipment to pass to Mr Loiero under s 22 of the Sale of Goods Act...

Court Disposition

Declaration made for the plaintiff on the separate question of ownership and entitlement to possession.

Orders

  • ['A declaration that the plaintiff is the true owner and is entitled to possession of the items listed on schedule 4 to the agreement dated 22 January 2010.' 'The parties will be heard in relation to costs.']