NSW minister Matt Kean has returned fire in the defamation case brought against him by a luxury car dealer, filing a 90-page truth defence alleging the Sydney man repeatedly swindled his high-end customers to prop up his failing business.
Bevin Ronald Clayton is suing the member for Hornsby in the Federal Court over a statement issued three-and-a-half years ago warning the public to steer clear of his Woolloomooloo dealership Clayton Bespoke.
Mr Clayton, who was charged with fraud offences in 2017 and acquitted last year, claims the then minister for better regulation falsely painted him as a dishonest dealer who ripped off customers to the tune of more than $1m.
In his lengthy defence, Mr Kean alleged Mr Clayton used the money he made from selling luxury cars on consignment to support his ailing dealership instead of paying sellers what they were owed.
Mr Clayton’s barrister Sue Chrysanthou criticised the defence as a “rehashing of a failed prosecution against my client”.
It details alleged transactions relating to an impressive roll call of luxury cars, including a Rolls Royce Phantom, a Ferrari Scaglietti, multiple Range Rovers and a 1971 Ford Falcon GT.
It is alleged in the document Mr Clayton sold the Phantom for just over half a million dollars and used the money to cover business costs and losses, leaving the owner out of pocket — a pattern he repeated with multiple cars, from a Mini Cooper to a Maserati.
“I am working through this and you will be paid. There is no fraud,” he allegedly emailed to a customer after five cheques for the sale of his Bentley Mulsanne were dishonoured.
According to the document, administrators appointed to Clayton Bespoke in 2017 found it issued 66 cheques totalling $7.8m that bounced over a 10 month period.
A later report found $4.9m was potentially owed to the company’s customers and financiers, the defence claims.
Mr Clayton alleges Mr Kean defamed him by painting him as someone so untrustworthy and dishonest that that a public warning from the minister was necessary.
He also says he was falsely made out to be someone who “failed to account to his customers for significant sums of money and, in some cases, even for their vehicles which they had entrusted to him for sale”.
Mr Kean contends his statement did not actually suggest those defamatory things about Mr Clayton, but if it did, all but one imputation — that Mr Clayton is a criminal being prosecuted by NSW Fair Trading and NSW Police — is true.
In an alternative defence, Mr Kean argues he cannot be sued over the statement because he was carrying out his function under the Fair Trading Act.
Mr Kean also argues the statement was in the public interest and he acted reasonably in publishing it, given his responsibility to consumers as the relevant minister.
In a short case management hearing on Thursday, Ms Chrysanthou said the allegations in the defence “don’t come as a surprise” as they had already been made and failed in criminal court.
She said Mr Clayton was “concerned” Mr Kean was trying to delay the case with a late defence and a sluggish timetable.
But barrister Tim Senior said the environment minister was “certainly not” angling to delay and needed months to gather extensive evidence.
The parties were ordered to mediation, which Ms Chrysanthou said she had “low hope” would succeed.
Mr Clayton was charged in 2017 after 11 complaints and 16 inquiries were made about Clayton Bespoke to NSW Fair Trading.
In May 2020, he was acquitted on appeal in the District Court of three counts of dishonestly obtaining financial advantage by deception and one of providing false documents.
Clayton Bespoke was placed into administration on September 25, 2017 and its motor dealer’s licence cancelled the following month.
NSW Fair Trading told NCA NewsWire in May it was no longer pursuing any action against Mr Clayton.
The matter returns to court in August.