Repairer loses Volvo distressed fleet recovery case


Indebted operator’s vehicles seen as unlawfully withheld from repossession

Repairer loses Volvo distressed fleet recovery case
The prosecution noted the trucks had 'disappeared' for months

 

A New South Wales truck repairer must pay Volvo Australia’s finance arm more than $500,000 in damages relating to a fleet of vehicles it unlawfully obtained from an indebted operator.

Volvo Finance Australia (VFA) was seeking to repossess five Mack trucks and their trailers from Waterfront Enterprises Pty Ltd, which had defaulted on five separate loans.

At the same time, servicing and repair firm Truck Tech and its principal Barry Saad claimed Waterfront Enterprises owed $173,000 in unpaid works.

Waterfront Enterprises eventually went into liquidation and its director, Jason Spencer, was unable to be located for the trial.

VFA sued Saad ‘in conversion and detinue’ (dealing with a lawful owner’s property without consent and denying that owner possession of it), asserting he took possession or control of each truck and refused to return them unless a "significant sum" was paid.

The New South Wales Supreme Court heard the trucks ‘disappeared’ on or around December 22, 2017, before being recovered between November 2018 and November 2019.

Evidence established that Volvo fleet management tool Dynafleet records ended that day at or near the Truck Tech premises.

"The plaintiff asserts that all five were [then] hidden in bushland under a no-fly zone," Justice Cavanagh notes.

"Attempts by the plaintiff to recover them were met with anonymous threats not to do so."

Some of the vehicles were eventually located in bushland in Wilton, and in Marulan.


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Saad returned one of the vehicles on court orders, claiming Truck Tech possessed it as a form of ‘repairer’s lien’ until outstanding debts were paid.

The defence’s evidence included claims the other four trucks were held by other parties – one identified only as ‘Crazy Iraqi’ – who were also allegedly owed money by Spencer.

The court heard VFA was given the option of paying Truck Tech’s outstanding debts plus a "finder’s fee" of $150,000 to another party, or buy all the trucks for $910,000, otherwise the trucks could be "destroyed or sold".

Justice Cavanagh found in favour of VFA, rejecting the defence’s version of events, and ruling that a repairer’s lien did not apply in this case.

"He [Saad] maintained that it was in a document or agreement but he said that the document could not be located by him.

"Even if I was to accept the defendant’s version, Truck Tech could not have maintained a lien over Vehicle 5 because no work was performed on Vehicle 5 at that time."

VFA’s claims for damages asserted it did not recover the full amount through sale of the vehicles, which were found in various conditions and required repairs before being sold.

Two of the trailers were never recovered.

Justice Cavanagh awarded $571,814 in damages, including:

  • difference in market value/value of unrecovered trailers: $330,000
  • repair costs: $60,000
  • recovery costs: $86,000
  • exemplary damages: $50,000
  • interest: $45,814​

 

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