Conway v Critchley & Ors [2009] NSWSC 499

Conway v Critchley & Ors [2009] NSWSC 499

The plaintiff established by clear and uncontroverted evidence that the 71 barrels of wine were separate from the wine stock sold by the receiver, that the 33 BOQ tanks remained at the winery and were rented to the Conways who were entitled to possession, and that the remaining items were not sold by the receiver and were owned by or otherwise subject to the plaintiff's entitlement to possession. The defendants adduced no evidence establishing ownership by Old Mudgee or Eurunderee, no serious factual dispute, and no arguable defence. The late, unsupported repair-cost claim did not justify withholding delivery up and could be pursued by cross-claim.

Jurisdiction
Australia
Judgment Date
05 June 2009
Procedural Posture
Torts; Trover and Detinue; Claims Concerning Wine, Plant and Equipment at a Winery / Application by Amended Notice of Motion for Summary Judgment for Delivery Up of Wine, Plant and Equipment; Leave to File an Amended Statement of Claim Was Granted on 3 June 2009
Outcome
Summary judgment granted for the plaintiff on the detinue claim for delivery up of the disputed personal property; first to fifth defendants granted leave to make a cross-claim for repair costs; first to fifth defendants ordered to pay the plaintiff's costs of the summary judgment application.
Legal Topics
['trover and Detinue' 'summary Judgment' 'delivery Up of Goods' 'wrongful Detention of Goods' 'receiver Sale of Winery Assets' 'cross Claim for Repair Costs']
['torts' 'civil Procedure' 'equity' 'contract'] ['trover and Detinue' 'summary Judgment' 'delivery Up of Goods' 'wrongful Detention of Goods' 'receiver Sale of Winery Assets' 'cross Claim for Repair Costs']

Case Brief

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Procedural Posture

Torts; Trover and Detinue; Claims Concerning Wine, Plant and Equipment at a Winery / Application by Amended Notice of Motion for Summary Judgment for Delivery Up of Wine, Plant and Equipment; Leave to File an Amended Statement of Claim Was Granted on 3 June 2009

Legal Issues

  1. 1 ['Whether the plaintiff satisfied r 13.1 of the Uniform Civil Procedure Rules for summary judgment requiring delivery up of wine, storage tanks and other plant and equipment.' 'Whether the 71 barrels of wine claimed by the plaintiff formed part of the wine stock sold by the receiver to Eurunderee or were separately owned by the Conways.' 'Whether the plaintiff was entitled to possession of 33 storage tanks rented from BOQ Equipment Finance Ltd and located at the winery.' "Whether the defendants had any arguable defence to the plaintiff's claim to possession of the remaining items of plant, equipment, personal effects and furniture." 'Whether an alleged late claim by the defendants for repair costs should prevent delivery up of the goods.']

Ratio Decidendi

The plaintiff established by clear and uncontroverted evidence that the 71 barrels of wine were separate from the wine stock sold by the receiver, that the 33 BOQ tanks remained at the winery and were rented to the Conways who were entitled to possession, and that the remaining items were not sold by the receiver and were owned by or otherwise subject to the plaintiff's entitlement to possession. The defendants adduced no evidence establishing ownership by Old Mudgee or Eurunderee, no serious factual dispute, and no arguable defence. The late, unsupported repair-cost claim did not justify withholding delivery up and could be pursued by cross-claim.

Court Disposition

Summary judgment granted for the plaintiff on the detinue claim for delivery up of the disputed personal property; first to fifth defendants granted leave to make a cross-claim for repair costs; first to fifth defendants ordered to pay the plaintiff's costs of the summary judgment application.

Orders

  • ['The defendants are to deliver to the plaintiff all of the items of personal property the subject of the claim in detinue, with the order to specify the items.' 'The first to fifth defendants have leave to make a cross-claim for the cost of repairs.' "The first to fifth defendants shall pay the plaintiff's costs of...