Beaven & Ors v Fink & Ors

District Court of NSW|2009-08-19|Before: Mr P, Mr J

CITATION: Beaven & Ors v Fink & Ors [2009] NSWDC 218

HEARING DATE(S): 10/02/2009-13/02/2009, 16/02/2009-17/02/2009

Verdict and judgment for the plaintiffs against Mr Fink and Mr Rietveld in the action for conversion and trespass in the sum of $21,571. 2) Verdict and judgment for the plaintiffs against Mr Fink in the action for slander in the sum of $2,500. DECISION: 3) Verdict for Thomas Fink on the claims against him in trespass and conversion. 4) The proceedings are listed at 9.30 on 25 August 2009 to hear argument on the question of costs. 5) Exhibits are returned.

CATCHWORDS: Conversion: Onus of Proof of Ownership - Property removed from plaintiff's land - Evidence of Identifying features provided at late stage in proceedings - Slander - Claim of liability - General, aggravated and exemplary damages

LEGISLATION CITED: Crimes Act 1900 Defamation Act 2005

Holmes v Fraser [2008] NSWSC 570 CASES CITED: Gatward v Alley (1940) 40 SR(NSW) 174 Jerome v Bentley [1952] 2 All.ER 114

Cross on Evidence, D M Byrne QC and J D Heydon, 3rd Aus Edition TEXTS CITED: Law of Torts, Fleming, 7th Edition Law of Torts, R P Balkin & J L R Davis, 2nd Edition Torts, Commentary and Materials, W L Morison & C Sappideen, 7th edition

Robin Newton Beaven (First Plaintiff) Mildred Josephine Beaven (Second Plaintiff) PARTIES: Alexander Edward Beaven (Third Plaintiff) Andre Fink (Second Defendant) William Bertrand Rietveld (Third Defendant) Thomas Fink (Fourth Defendant)

Mr M. Preece (for First, Second and Third Plaintiffs) COUNSEL: Mr P Sternberg (for First Defendant) Mr J Keesing (for Second, Third and Fourth Defendants)

Hunt & Hunt (for First, Second and Third Plaintiffs) SOLICITORS: The Crown Solicitor (First Defendant) Makinson & d'Apice Lawyers (for Second, Third and Fourth Defendants)

1 The plaintiffs in these proceedings are Robin Beaven, his wife Mildred Beaven, and his son, Alexander Beaven. The defendants are Andre Fink, his son, Thomas Fink, and William Rietveld. Proceedings against the State of New South Wales were settled prior to the commencement of the hearing.

2 Mr and Mrs Beaven owned the land at Lot 352 Wallis Island and occupied it primarily at weekends with their sons Alexander and Matthew. Mr Andre Fink owned the land at Lots 1 and 2 Wallis Island and, at the time of the events that are the subject of this litigation, occupied it primarily at weekends with his family.

3 The parcels of land were on the south western side of Wallis Island and they shared one common boundary. Each parcel had frontage to a public reserve that bordered Wallis Lake. There were no other properties on the south western side of Wallis Island.

4 Mr Andre Fink built on his land a substantial house and a large shed. He landscaped the grounds with shrubs and fruit trees. On the Beaven land was a more modest, renovated dwelling and a building comprising a garden shed and adjoining laundry. It was landscaped with grass, shrubs and trees.

5 Mr Rietveld was employed by Mr Fink, among other things, as his property manager during the period of construction of the house.

6 Relations between the Finks and the Beavens were less than amicable.

7 Over a period of several years Items of equipment and money went missing from the Fink property. Mr Fink and Mr Rietveld suspected the Beaven family of the thefts.

8 Unknown to the Beavens, Mr Rietveld with Mr Warwick Severs, the foreman at the time, entered the Beaven land, allegedly in about April 2002, and removed some items of equipment that they found there.

9 Also unknown to the Beavens, Mr Rietveld in March 2006 reported to the Forster Police that items belonging to Mr Andre Fink were on the Beaven land. Mr Rietveld claimed that the police told him to go on to the Beaven land to remove them. He removed a stack of planter pots and while on the Beaven land he looked through the shed window he saw inside other items that he believed were the property of Mr Fink.

10 Mr Rietveld returned to Forster Police Station and provided a statementi on 23 March 2006. On 4 April 2006 a search warrant was issued authorising a search for the items specified by Mr Rietveld. A search was undertaken on that date by five police officers accompanied by Mr Rietveld. Much of the search was filmed and the record contained in a DVDii.

11 In the course of the search, the police and Mr Rietveld entered the Beaven shed and adjoining laundry and the police entered the house. A number of items were removed from the shed. Those items were transported by police and Mr Rietveld to the boundary fence and placed on a trailer. From there they were taken by Mr Rietveld to the Fink shed and subsequently incorporated into the equipment and other items used on the Fink land.

12 On about 11 April 2006 Mr Rietveld once more entered on the Beaven land and removed some timber and props. He took the timber and placed it on a stack of timber on the Fink land.

13 On 16 April 2006 Mr Fink, accompanied by his son, Thomas Fink, went on to the Beaven land and took a number of photographs of a trailer owned by Mr Beaven.

14 On 7 May 2006 Mr Fink, accompanied by Telstra employees, entered onto the Crown land in front of the Beaven land. It was alleged that he slandered the plaintiffs by stating that they stole from him. He denied this allegation.

15 Mr Fink conceded that Mr Rietveld acted in the course of his employment. On that basis Mr Fink accepted vicarious liability for his conduct.

16 The issues concerned: 1 Identification and ownership of the property removed from the Beaven land. 2 Whether the defendants or any of them converted that property to their own use. 3 Whether the defendants or any of them trespassed on the Beaven land. 3 Whether words spoken by Mr Fink conveyed imputations that were slanderous of the plaintiffs. 4 The compensation, if any, to be awarded by way of general, aggravated or exemplary damages.

17 Neither party in the lengthy written submissions supplied addressed the preliminary issue of which of them bore the onus of proving title to the property.

18 In considering this matter I had reference to a number of textsiii and authoritiesiv. These materials satisfied me that, in relation to the tort of conversion, possession is prima facie proof of ownership of personal property. In Gatwardv it was stated: The rights of a possessor are sometimes expressed by some such statement as that 'existing possession, however, acquired, is protected against any interference by a mere wrongdoer'; Pollock & Wright, "Possession," 91; but it is conceived that the position is more accurately defined by the statement that 'possession confers more than a personal right to be protected against wrongdoers; it confers a qualified right to possess, a right in the nature of property which is valid against everyone who cannot show a prior and better right … hence, the rule that possession is a root of title is not only an actual but a necessary part of our system' ibid. p.93. … In other words, de facto possession of a chose in possession is prima facie evidence of ownership, and also of itself creates a legal right to possess which is enforceable against anyone who cannot prove that he has a superior right to possess: any person who interferes with this legal right, without being able to prove a superior right, is therefore a wrongdoer.

19 I thus proceeded to determine the dispute concerning ownership of personal property on the basis that, having been in the possession of the Beavens at the time of its seizure by police, they had prima facie ownership of it and it was for Mr Fink to prove that he had a superior right to its possession. The defendants' relied significantly on the proposition that it was necessary for the Beavens to prove ownership of the property in question. In this respect, unless the prima facie position was displaced, the submissions were contrary to authority.

20 In his defence, sworn to be correct and true as to the allegations of fact, Mr Fink stated that Mr Warwick Severs and Mr Rietveld retrieved one shovel from the Beaven land. The defence stated that Mr Fink knew nothing of the removal of any scaffolding but that he was aware that at some point Mr Rietveld retrieved some blue props from the Beaven land.

21 In his affidavitvi sworn on 19 August 2008 Mr Fink referred to Ag props brought onto his land for the purpose of construction of his house. These props were blue/green supplied by A G Emblin Pty Limited who borrowed them from Hi Line Builders. The A G Emblin quotation to supply these props was dated 30 October 2001. Mr Fink purchased more Ag props in May 2002. He exhibited an invoicevii dated 22 May 2002 relating to this purchase. He said these props were used in connection with the Ritek method of construction of his house. In early January 2002 he was shown shovels and Ag props retrieved by Mr Severs and Mr Rietveld from the Beaven land. He identified the props as those sourced from Hi Line Builders.

22 In evidence to the court, Mr Fink said he remembered having been told something by Mr Severs in December 2001. He was told that Mr Severs brought back one shovel, one rake and 2 Acrow props. Mr Fink told Mr Severs to report to police the finding of these items on the Beaven land but there was no record that he did so. Mr Fink did not speak with the plaintiffs about these items. He retained them and used them.

23 The rake he described as metal with a long handle. He agreed that he knew the difference between an Acrow prop and a Ritek prop. Mr Fink confirmed that Mr Severs told him that he and Mr Rietveld retrieved Acrow props.

24 In his defence, sworn on oath to be correct as to his belief in the truth of allegations of fact, Mr Rietveld said he did not remember when he entered the Beaven land and therefore could not state that it was in April 2002. He said he removed two spades and two or three blue props.

25 In his evidence to the court, Mr Rietveld said he and Mr Severs used shovels around the Fink house the day before they entered the Beaven land. He described them as post hole shovels and said they were designed specifically for digging holes. They went to the Beaven land to look for the shovels so that they could continue with their work.

26 He said they found the shovels secretedviii under a trailer at the back of the Beaven house, about 50 metres into the bush. They were next to some Ritek props that he identified as those belonging to Mr Fink. He also saw some wharf timbers on top of the trailer.

27 They picked up the shovels and went back to the Fink land and started work. They also picked up one or a coupleix of Ritek props, leaving some there because they were too cumbersome to carry.

28 He denied that they took back Acrow props or scaffolding. He denied that they took back a rake or any spades. He said if Mr Fink said that they retrieved these items, he was wrong. He denied that he would have been able to lift an Acrow prop, although he agreed that he was later able, without assistance, to lift and carry two significant lengths of wharf timber from near to the Beaven house to the Fink land. He agreed that a substantial number of Acrow props were used on the Fink land.

29 He did not return to retrieve the remaining Ritek props because Mr Fink had adequate numbers of the props and he was anxious to get back to continue his work with the shovels. He did not tell Mr Fink that they left some Ritek props behind.

30 In relation to his use of the term secreted, Mr Rietveld agreed that aside from being placed under the trailer, the items retrieved were not otherwise hidden.

32 Mr Beaven claimed that Mr Rietveld removed spades and scaffolding that belonged to him. He said he made this claim because of the words he believed were used by Mr Rietveld on the DVD recording. Mr Beaven was cross examined without resolution concerning his understanding of the difference between shovels and spades.

33 He said that he used Acrow props when undertaking renovations to his house prior to 2002. He denied that he knew what Ritek props were until he received Mr Fink's affidavit. He said he never used them.

34 Mr Beaven did not notice in April or May 2002 that anything was missing. He was unaware until, hearing reference to it on the DVD in mid-2006, he checked and noticed that the props were gone as was a shovel.

35 Mr Beaven produced a receiptx for the purchase of a post hole shovel dated 20 September 2003. He produced this because of the reference on the DVD to the removal of items three or four years earlier. He agreed that he could not state that this was the shovel that Mr Rietveld took and that, because he did not see the items taken by Mr Rietveld and Mr Severs, he could not state that they did not belong to Mr Fink.

36 Mr Fink produced a number of invoices indicating that he purchased post hole shovels in 1996, 1999 and 2001xi.

The circumstances leading to the execution of the search warrant

37 Mr Fink said that orange handled saws that he used to prune fruit trees were missing from his shed on each of two successive weekends. Mr Rietveld referred only to one weekend, being the second of those referred to by Mr Fink when 19 March 2006 fell on a Sunday.

38 On that date Mr Fink and Mr Rietveld argued about a missing saw. Mr Rietveld said he left a saw on the bench in the shed after using in on the Friday, 17 March 2006. On the following Sunday it was missing. He searched in and around the Fink shed for the saw and in the course of his search he approached the boundary. He noticed a section of stainless steel lying in long grass on the Beaven side of the fence. He identified this stainless steel as a section that was specially shaped and cut for incorporation into Mr Fink's building works.

39 Mr Rietveld told Mr Fink of this find. Mr Fink inspected the stainless steel and its position on the Beaven land and told Mr Rietveld to report it to police. Mr Rietveld reported it the following day. He claimed he was told by Senior Constable Gordon at Forster Police Station that he had the right to enter the Beaven land to retrieve any items belonging to Mr Fink that were accessible without entering any building.

40 Acting on this advice Mr Rietveld went onto the Beaven land to retrieve the stainless steel. While there he noticed some planter pots that he identified as belonging to Mr Fink. They were located next to the Beaven shed. He walked to the shed and looked through the window. Inside the shed he saw an orange handled saw on the bench. Looking closer he saw bags of fertiliser and other items of property that he believed belonged to Mr Fink and had been missed over a period of several years.

41 He removed the stainless steel and pots from the Beaven land and returned to Forster Police Station where he made a statement dated 23 March 2006.

42 This evidence comprised affidavitsxii of the five police officers involved in the search and the seizure of property and the cross examination of four of them.

43 Detective Senior Constable Webb went to Wallis Island on the morning of 4 April 2006 and was shown around the Fink shed by Mr Rietveld who informed him of a number items that were missing. He listed those items and returned to Forster police station to prepare an application for the search warrant. The items listed were: stainless steel sheeting black 500 mm plant pots 20 kg bags of Scotts Osmocote fertiliser 4 tubes of Mobil grease 2 orange handled Bahco saws green and yellow spray knapsack 1.5 metre cabinet makers clamps.

44 The application stated that these items were connected with the offence of break, enter and steal within the terms of s 112 of the Crimes Act 1900. The person of interest nominated in the application was Matthew Beaven.

45 The search warrant was duly issued and the Beaven land was entered for the purposes of the search by Mr Rietveld, Detective Senior Constable Webb, Constable Quilter, who prepared a record of the property seized in the course of the search, Detective Senior Constable Ryan, who acted as the searching officer, Acting Inspector Williams, and Constable Gallagher, who video-recorded the activities involved in the search and seizure.

46 After the search was completed Mr Rietveld and the police officers carried the property to the boundary fence where it was loaded onto a trailer and taken by Mr Rietveld to the Fink shed. Acting Inspector Williams stated in his affidavitxiii that the property was placed in Mr Rietveld's custody to be secured in the event that there was a dispute concerning ownership and the police needed to take it elsewhere. The list prepared by Constable Quilter noted that the property was Returned to Ownerxiv.

47 All of the police officers, with the exception of Acting Inspector Williams, were called to give evidence. Their evidence could be summarised as follows.

48 They relied entirely upon Mr Rietveld in nominating and identifying what was missing from the Fink shed. There were no identifying features on any of the property that was seized. There were no serial numbers, marks or damage that could be relied upon for identification purposes.

49 A number of the police officers returned to the Fink shed after the search and in the space of three minutes noted the outline of a saw on a shadow board and a missing spanner from a folder containing a set of spanners. They noted that the shed was orderly and that there appeared to be set places within the shed for items of equipment. They did not check any of the saws against the shadow board diagram, notice that other spanners were missing from the set, or make any other inspection to confirm the ownership claimed by Mr Rietveld to the 18 items seized. None of the property was fingerprinted. Detective Senior Constable Webb agreed that this inspection was inadequate.

50 The police officers noted nothing that indicated how entry to the Fink shed had been gained in the course of the commission of an offence of break, enter and steal. They were aware that many items, including money, were said to have been stolen from Mr Fink over a period of years. They were aware that many persons were employed on the Fink land from time to time over that period of years.

51 Mr Rietveld told police that Matthew Beaven was the occupier of the Beaven land. Police were aware that the registered owners of the property were Mr Beaven and Mrs Beaven but made no effort to contact them prior to executing the search warrant.

52 Access to the Beaven shed, from which the property was removed, was easily obtained. It was first obtained through a door at the rear of the shed that provided access to the area used as a laundry and for the storage of batteries providing solar power. No property was found in this section of the shed. Access to the workshop area of the shed was obtained through an unlocked window.

53 There appeared to be no attempt to hide or secrete any of the items that were removed. The shed was described as a normal shed/workshop with items of equipment everywhere. An orange handled saw was clearly visible through the window, as were other items. The stainless steel could be seen through the window resting against shelving in the corner of the shed. The two 500 mm pots that they removed were outside the shed and visible from the boundary of the Fink land.

54 As to specific items of property: 1 Mr Rietveld claimed that timber located at the side of the Beaven shed was part of the wharf timber used by Mr Fink for the purpose of construction of his jetty. All of the police officers called for cross examination, except Detective Senior Constable Webb, identified timber lying at the side of the shed as hardwood. They described it as too big or heavy for them to move, although they did not test its weight. It was resting in long grass and appeared to be old and weathered. They did not compare it with timber on Mr Fink's wharf. They did not compare it with timber on the Beaven house. 2 Tomato stakes were removed from the Beaven shed. The police officers agreed that they appeared to be new. Some of the police officers agreed that they noticed stakes in use on the Beaven land to support tree plantings. They agreed that at the time they were removed from the Beaven shed, Mr Rietveld said nothing to them about the special size of the stakes. 3 Mr Rietveld claimed that a blue milk crate filled with plumbing fittings belonged to Mr Fink. Detective Senior Constable Webb stated that the fittings in the crate were a dime a dozen at Mitre 10 xv . There were other milk crates both inside and outside the Beaven shed, one of which was blue. 4 Police did not check the formulae of the fertiliser in the bags that were removed from the Beaven shed to confirm that they were the same as those in the Fink shed. No close up photographs were taken in either shed of the panels on the bags that set out the formulae. 5 There many pots scattered around the Beaven property of many shapes and sizes. Only two of them were 500mm in diameter.

55 Mr Beaven, Alexander Beaven and Matthew Beaven gave evidence.

56 Alexander and Matthew Beaven denied ever having been on the Fink land or having removed anything from it. They denied any knowledge of any other person's having done so. It was not suggested to Mr Beaven that he went onto the Fink land and removed Mr Fink's property.

57 Mr Beaven claimed ownership of all of the property removed with the exception of: 1 The section of stainless steel that was found in his shed. 2 One large spanner. He said he did not recall having work on his property that required the use of a spanner of this size and, if he did own it, it would not have been stored in the position within the shed that was shown on the DVD. 3 One orange-handled saw. Mr Beaven recollected owning only one saw of this type. He said he never stored saws under the work bench behind bags of fertiliser. The orange-handled saw that he owned was stored on a rack with his other saws.

58 It was suggested to Mr Rietveld that he placed these items in the Beaven shed in an effort to deflect from him any suspicion that Mr Fink might have that he was responsible for the disappearance of his property. Mr Rietveld denied this.

59 The property, relevant to these proceedings, that was removed by police was listed in a Property Seizure/Exhibit Formxvi completed by Constable Quilter as follows: 1 2 x large black pots 2 1 x length of stainless steel 3 1 x green and yellow nap (sic) sack 4 1 x large G-clamp 5 1 bag or organic fertilizer 6 1 x bag of Scotts brand fertilizer 7 1 x Laser Quip laser level 8 1 x large spanner 9 1 x box of Ramset Anchors 10 1 x hand saw 11 3 x tubes of Mobil Grease 12 1 x blue crate with plumbing equip 13 1 x tin of semi gloss paint 14 9 x tomato stakes (lengths of wood) 15 1 x timber handled hand saw 16 1 x orange handled hand saw 17 1 x level 18 1 x 1 m length ruler 19 2 x wharf timbers

60 Although listed in the form, the police did not in fact seize the wharf timbers or move them to Mr Fink's land. The evidence of the defendants concerning the other items of property was as follows.

61 Two large black pots: These pots were 500 mm in diameter and situated in front of the shed on the Beaven land. Mr Fink identified them as those in which 2 Raphis Palms were potted at the time of their delivery to him in 1999. He stated that some of the palms went missing soon after their delivery. Mr Rietveld said that he saw pots on the Beaven land in March 2006 that he identified as pots from which he had removed trees that he planted on the Fink land. He took some of those pots in March 2006. According to his statement to police he took a stack of 50 mm pots. Mr Rietveld said this was a typing error and that he in fact removed three or four 500 mm pots.

62 At the time of his earlier visit to the Beaven land he did not see the two pots removed by police although they were situated in full view in front of the shed. He identified the pots as those belonging to Mr Fink because of their mouldings and what he considered to be their unusual size. He said nothing to police about particular mouldings when he made his statement or at the time of the seizure of the pots. He said nothing of this identifying feature in his affidavit evidence.

63 The pots were not produced to the court and no photographs were supplied that would have been capable of drawing the court's attention to any particular identifying feature of the pots.

64 Length of stainless steel: The ownership of the stainless steel was not in issue. The manner in which it came to be within the locked part of the shed was.

65 Mr Rietveld said that he originally found the stainless steel on the Beaven land close to the boundary fence between the two properties. It was lying in long grass but was not otherwise hidden. He agreed that it was in a position where a strong person could have thrown it over the fence.

66 He recovered the stainless steel from the Beaven land and took it to the police for fingerprinting. He said he left it there for some time. There was no evidence to indicate that fingerprinting was undertaken. There was no reference in the statement that Mr Rietveld made to police to his taking it and leaving it with them for this purpose.

67 Mr Rietveld said that, after the stainless steel was returned by police and after discussion with Mr Fink, he replaced it on the Beaven land in the position where he found it. Mr Fink denied that he told Mr Rietveld to replace the stainless steel on the Beaven land.

68 Alexander Beaven said that on the weekend preceding 4 April 2006 he found the stainless steel in long grass when he was slashing the lower paddock on the Beaven land. He was concerned that because it was highly polished it was a fire hazard. The relationship between the Fink and Beaven families was such that he formed the opinion that it had been placed there to damage the slasher he was using. He picked up the stainless steel and placed it in the Beaven shed with the intention that Mr Beaven would contact Mr Fink about it.

69 A photographxvii in evidence showed the position in which Alexander Beaven found the stainless steel. Mr Rietveld agreed that this was where he placed it. It was in an overgrown area of the Beaven land, about five metres from the boundary fence and visible from the Fink land.

70 Alexander Beaven was questioned concerning his assumption that the stainless steel was put there to damage the slasher when the area in which it was placed had not been slashed for a year or more. He agreed that he was fairly confident that the stainless steel came from the Fink land and that he could have placed it over the fence without difficulty.

71 One green and yellow knapsack: Mr Fink provided evidence that he purchased four knapsacks of the type removed from the Beaven shed. He said they were used to spray sealer on the limestone walls of his house while under construction. He inspected a knapsack on 5 April 2006 and noted that it contained sealer that was dry and sticky. He agreed that by the time he arrived Mr Rietveld had put away some of the seized property. Photographs were taken by Mr Fink on 5 April 2006 of property that remained in the trailer in which it had been brought into his shed. The knapsack was not shown in those photographs. Mr Fink made no reference in his affidavit to the inspection of any knapsack or to the identifying feature of sealant.

72 Mr Rietveld said that he used the green and yellow knapsack when he performed work on stonemasonry on Mr Fink's house. One of Mr Fink's knapsacks was missing and the knapsack in the Beaven shed was identical. He did not check if that knapsack contained any sealer or spray.

73 Mr Rietveld agreed that knapsacks of this kind were readily available in hardware stores.

74 One large G-clamp: Mr Fink said that he brought 80 G-clamps with him when he came to Australia from France in 1983. He used them in the work of repairing antique furniture in his business as an antique dealer. He took some of them to Wallis Island. He identified the G-clamp recovered by the police as one he purchased in France and brought to Australia.

75 Mr Rietveld said that the G-clamp he saw in the Beaven shed was identical to those he had seen in the Fink shed. He had only ever seen clamps of this kind in the Fink shed. He pointed out its unusual length and stated that it was used specifically by cabinetmakers. He was unable to state whether clamps of this kind were readily available in hardware stores. He subsequently agreed that the clamp was in fact an F-clamp and there was nothing on it to suggest that it was purchased in France.

76 One bag of organic fertiliser: Mr Fink claimed that he purchased this bag of fertiliser in February 2006. It was not possible from the photographs taken by Mr Fink on 5 April 2006 to determine that one of the bags in the trailer contained the brand of fertiliser that was referred to in the invoicexviii he produced. Mr Fink said the fertiliser was packaged in a blue and white bag and that it was freely available but not often used.

77 Mr Rietveld said that he used fertilisers stored in the Fink shed on Mr Fink's gardens and orchard. He used the brand Terra Firma that was found in the Beaven shed.

78 Mr Beaven thought that the brand of fertiliser taken was Dynamic Lifter, a type of chicken manure. While the Organic Life Terra Firma fertiliser was also chicken manure, he agreed that he did not recall having purchased this brand.

79 One bag of Scotts brand fertiliser: Mr Fink claimed that he purchased this bag of fertiliser from Beresford Park Nursery Pty Limited in May 2005. His photograph and invoicexix indicated that the fertiliser was Osmocote with a low phosphorous formula. He said that this was a special formula that he obtained after making contact with a supplier in Melbourne and ordering it through Beresford Park. It was not part of the standard stock held by Beresford Park.

80 Mr Rietveld again said that he used this fertiliser on the gardens and orchard on the Fink land. He said the size of the bag, its formula and its trade name were unusual. He agreed that it was freely available from trade wholesalers but not from an average hardware store. The low phosphorous formula was designed for native plants.

81 Mr Rietveld said nothing of this special formula to police at the time of seizure of the bag. There was no reference to the special nature of the formula in the affidavits of either Mr Fink or Mr Rietveld.

82 It was put to Mr Beaven that the bag of Scotts fertiliser taken from his shed was a specialised product that could be obtained from a few outlets only. His response was that, if the bag came from his shed, he purchased it from Beresford Bulk Distributors. They stocked a range of Osmocote products and he purchased what they provided in response to his request for a general fertiliser.

83 One Laser Quip laser level: Mr Fink said that he purchased this item in December 1996 at a cost of $1,495. He also purchased a receiver, carrying box and tripod together with a five metre surveyor's ruler. He stated that these additional items were essential for the use of the laser level. He produced an invoicexx that referred only to hand tools. He identified the laser level returned by police as that which he purchased in 1999.

84 In early 1999 he noticed that the receiver for the laser level was missing. Next he noticed that the carrying box disappeared and then the level itself. He purchased a replacement in July 2001 at a cost of $2,225. He said it was ludicrous to take the receiver without the other parts of the laser level and it was especially ludicrous to take it without its tripod.

85 Mr Fink did not photograph the laser level that was returned to him because it had been put away by Mr Rietveld.

86 Mr Rietveld said that the laser level went missing, without its yellow carrying box, soon after he started working for Mr Fink in 2000. The yellow box was initially placed in the back of the Fink shed and he was unaware that it was missing until he saw it in the Beaven shed. He said nothing about the disappearance of the receiver.

87 There was conflict between Mr Fink and Mr Rietveld about the date on which the level went missing. Mr Fink said it occurred before Mr Rietveld started working for him. Mr Rietveld said that Mr Fink was wrong in stating that this occurred in 1999.

88 The proposition that the laser level could not be used without its tripod was rejected by Mr Beaven and Alexander Beaven. Both stated that they used the level in the course of the renovations of the Beaven house.

89 No expert evidence was called to confirm the defendants' evidence that the laser could be used only supported by a tripod.

90 One large spanner: Mr Beaven did not claim that this was his spanner. He was unable to explain how it came to be in his shed.

91 One box of Ramset Anchors: Mr Fink said that he purchased many boxes of stainless steel Ramset anchors for use in the construction of his house. He stated that he never used toggle bolts or nylon fixers. The box of anchors that Mr Rietveld said was returned by police was identical to those that he purchased.

92 Mr Rietveld said the box matched the brand and size of those that were stored in the Fink shed. They were all new.

93 Mr Beaven was challenged because receipts he produced related to nylon anchors and toggle bolts rather than the metal bolts that were clearly shown on the DVD to be in the box that Mr Rietveld said belonged to Mr Fink. Mr Beaven stated that he also used steel anchors on his land.

94 One hand saw; one orange handled saw: Items 10 and 16 in the list prepared by Constable Quilter were dealt with together on the assumption that they were the two orange handled saws that were referred to in evidence.

95 Mr Fink said that he purchased two orange handled saws in January 2004 and that they had, as identifying features, particles from pruning as well as sterilising agent. He agreed that otherwise there was nothing unusual about the saws. He agreed that Bahco saws shown in a photographxxi were identical to those that he purchased, that the photograph indicated that they cost $14 and that they were readily available from hardware stores.

96 Mr Rietveld said the two saws were purchased new in 2006. He agreed that they were used for pruning. He identified those in the shed as those purchased by Mr Fink and used recently by him. He said in evidence to the court that one of the saws found in the Beaven shed had a plastic cover over its teeth and that this confirmed that the saws were brand new. He said Mr Fink liked to use new saws when pruning his orchard.

97 Mr Rietveld said that after using the saws it was his practice and that of Mr Fink to spray the saws with a black emulsifying sealer. There was no evidence of the presence of this sealer on the saws removed from the Beaven shed. It was not noted by police or by Mr Rietveld at the time they removed the saws, nor was it referred to in the affidavit evidence of Mr Fink or Mr Rietveld.

98 Three tubes of Mobil grease: Mr Fink conceded that he could not establish that these items were his property. He offered to return them to Mr Beaven on production of invoices for their purchase.

99 One blue crate with plumbing equipment: Mr Fink identified this blue crate as one that he obtained through the purchase of the Double Bay Deli in 1987. He said that he used it with others for storage, mainly of plumbing equipment.

100 Mr Rietveld said the blue crate was identical to the many crates kept in the Fink shed. He said the plumbing fittings were the same. He said that over time the number of crates in the Fink shed seemed to diminish. He agreed that plumbing fittings are commonly white.

101 The DVD recording indicated that this was not the only crate in the Beaven shed. Others of differing colours could be seen in the shed. A blue crate was at the front of the shed. I have already noted the statement of Detective Senior Constable Webb that the fittings in the crate were cheaply and commonly available.

102 One tin of semi-gloss paint: Mr Fink said that the paint was mis-described by police and that it was in fact low sheen paint that he purchased in 1997. Although he stated that he identified the tin on 5 April 2006 as low sheen Weathershield paint that he used on his jetty and around the trees in his orchard, he did not take a photograph of it at that time. This was because it had been returned to the shelf by Mr Rietveld.

103 Mr Rietveld said he recognised the tin of paint as semi-gloss paint that was formerly stored in the Fink shed. He said it was old paint and was easily recognisable.

104 Nine tomato stakes (lengths of wood): Mr Fink said that the stakes were cut to a certain specification when he purchased 300 of them in 2004. They were 32 mm x 32 mm in size. He identified the nine stakes as those supplied to this specification. He did not remember if he told Mr Rietveld that they were of a special dimension. He agreed that he was aware that stakes were supplied in various sizes and he acknowledged that a photographxxii taken in a hardware store displayed square stakes sized at 25 mm and 38 mm.

105 Mr Rietveld said the stakes in the Beaven shed were unused and looked identical to those stored in the Fink shed. Other features that indicated that they came from the Fink shed were that they were very tall, they were standing next to the stainless steel, they were bright orange, as were the stakes in the Fink shed, they were brand new and not wrapped or packaged.

106 Mr Rietveld was heard to refer to the stakes three times on the DVD recording. He was not heard to refer to any of these special features. Nor did he refer to them in his affidavit evidence.

107 One timber handled saw: This item referred to the type of saw known as a Tenen saw. Mr Fink said that he purchased it in France in about 1975. He photographedxxiii the saw and produced itxxiv as evidence to the court. He said that the saw was stored in his shed on a board, referred to as a shadow board, on which the outline of the saw was drawn. It was a British made, Spear and Jackson saw. He agreed that there were no marks on it to indicate that it belonged to him. He said he had two or three such saws and that he had seen many saws of this type over the years. He agreed that the design of Tenen saws had not altered in decades.

108 Mr Rietveld said he recognised the distinctive wooden handle of the saw in the Beaven shed. It was in the older style because it was wooden, whereas modern saws were less elaborate and their handles were manufactured from plastic. No evidence was produced to confirm this statement. He said the saw fitted the shadow board exactly. He agreed that the handles on a Tenen saw may vary in size and grip but otherwise they were standard to Tenen saws.

109 Mr Rietveld was heard on the DVD recording to state that the saw had some texta colour on it. The saw that was produced in evidence and that shown in photographs taken on 5 April 2006 showed no signs of texta colour. Asked about this comment he said that texta was not on the saw but on the shadow board.

110 One level: Mr Fink referred to this item as a spirit level that he purchased in July 2002 and used in the course of construction of his house. He said it went missing after two months and that he replaced it at a cost of $42.25 in September 2002. He identified the spirit level removed from the Beaven shed as that which he purchased in July 2002. He claimed that the original spirit level cost $109.40, although the invoicexxv provided as proof of purchase referred to a level and hardware.

111 Mr Rietveld said that the spirit level was virtually brand new and was exactly the same as one that he used in his work for Mr Fink. He said Mr Fink told him it was missing some days prior to 4 April 2006 along with some of his stonemason's tools. He agreed that this was not an expensive item and that it cost between $50 and $70.

112 One ruler, one metre in length: Mr Fink said he purchased this ruler in October 2002 and that it was used to measure and cut limestone. He identified the ruler that Mr Rietveld told him the police took from the Beaven shed as his. He did not photograph it on 5 April 2006 because it was not in the trailer.

113 Mr Rietveld said that the ruler in the Beaven shed was one that he saw stored in the Fink shed and used by him in the course of construction of the house. It was not four years old as stated by Mr Fink but brand new. Inconsistent with his evidence that the ruler was new was his statement that he had used it. He initially stated that it was used specifically by stonemasons but subsequently conceded that it could be used for other purposes but that he used it only for work on the building blocks and limestone used on the house.

114 Mr Fink claimed that the plaintiffs removed from his land timber that he purchased for the purpose of constructing a jetty in September 1996. Photographsxxvi of the jetty were in evidence that indicated that a number of side rail timbers were missing from the structure. Mr Fink claimed that timbers noted by police and Mr Rietveld to be lying in grass at the side of the Beaven shed and timbers fixed to a trailer on the Beaven land were part of the wharf timber that he purchased for his jetty.

115 Police did not remove the timbers that they saw on the Beaven land because they considered that it was too heavy for them to carry, although there were five police officers present as well at Mr Rietveld.

116 Mr Rietveld said he went on to the Beaven land on about 11 April 2006 with an officer of Forster Council. The Council officer did not give evidence.

117 Mr Rietveld said he single handedly removed timber from the Beaven land. It was not clear whether he removed one or two of the timbers located beside the Beaven shed. He said that at the time he removed the timber he recognised it as Mr Fink's because it was the same size, width, wood type, length and age as that stored on the Fink land. He placed the timber on a stack that was located on the Fink land.

118 There was some inconsistency in Mr Rietveld's evidence concerning the timber. At another part of his evidence he said that Mr Fink's timber was very long, big and heavy. He estimated its length to be between four to six metres. The timbers he saw on the Beaven land was four to five metres long and the same as the timber he saw on the trailer four years earlier.

119 In relation to the movement of the timber, he told the court that he took two timbers, unassisted. He said he strained to pick them up but he managed to carry them.

120 In his affidavit evidencexxvii Mr Rietveld referred to seeing only one wharf timber. He said this was a typographical error as was the reference to a single plank in the defence.

121 The defendants produced one piece of timberxxviii said to have been cut from the timber placed in the stack by Mr Rietveld. They produced two further pieces of timberxxix, said to have been cut from the Fink jetty and containing the same profile. Both samples of the timber were cut shortly prior to the hearing date.

122 Mr Fink claimed that he was qualified to make comparisons between the timbers because of his involvement with timbers in the course of his business as an antique dealer. He said the samples were of the same type of wharf timber as was used on his jetty.

123 There was no expert evidence to confirm this claim.

124 Mr Fink accepted that he was not present when Mr Rietveld was said to have placed the timber on the stack. He did not remember if Mr Rietveld pointed the timber out to him and he did not go to look at it. He said he knew that the timber from which the sample was taken was that placed on the stack by Mr Rietveld because it had remained untouched since 2006.

125 Mr Fink thought that the timber would have been too heavy for one person to move unless it was dragged rather than lifted. Mr Fink thought it was logical that the Council officer assisted Mr Rietveld.

126 He denied that his son, Thomas Fink, assisted Mr Rietveld. He agreed that he gave evidence in the Foster Local Court in November 2006 that he directed Mr Rietveld to enter the Beaven land and take two pieces of wharf timber from it. Mr Fink was asked about evidence to the Local Court to the following effect: Q. Did your son go onto Mr Beaven's land at that time? … A. Yes, he went, he went because Mister - my manager couldn't take it, it was too big and it was bolted so, and we didn't take it, and it's still there. xxx

127 Mr Fink stated that he was confused at the time he gave this evidence and that he was referring to a later occasion when on 16 April 2009 he and Thomas Fink entered the Beaven land and took photographs of the trailer to which pieces of wharf timber were bolted. He said on this occasion he and Thomas Fink saw a large amount of timber on and around the trailer. They did not report this to police.

128 It was conceded by Mr Fink and Thomas Fink that they entered onto the Beaven land on 16 April 2006 and that they photographed the trailer, the timber bolted to the trailer and timber in the area of the trailerxxxi. There was no evidence that they removed any property on that occasion.

129 The defendants' evidence concerning ownership of the property was undermined by a number of features.

130 Mr Fink agreed that during the extended period of construction of his house he engaged a significant number of casual workers and that many tools and items of equipment were lost. He also complained that money was taken from his wallet. Very few of the items said to have been taken were located in the Beaven shed.

131 One item, an orange handled saw, was allegedly used on Friday, 17 March 2006. On 19 March 2006 it was noted to be missing. There was no evidence that the Fink shed was broken into. I regarded as highly improbable the suggestion that an intruder would go to the trouble to unbolt and replace sections of the external metal cladding of the Fink shed for the sole purpose of stealing a saw that was readily and cheaply available at any hardware store.

132 Mr Rietveld did not refer at the time of the seizure of the property to obvious features by which it was subsequently claimed that the property could be identified. Identifying features of the items removed by police were not noted in the photographs taken on the following day. They were not referred to in the affidavit evidence of the defendants. They were first raised in evidence to the court. When coupled with the substantial inconsistencies in the evidence of Mr Fink and Mr Rietveld, the evidence of identification appeared to be contrived in an attempt to strengthen Mr Fink's claims of ownership of the property.

133 Taking into account these considerations, my findings in relation to the property concerned follow.

134 The property removed in 2002: There was inconsistency between Mr Fink and Mr Rietveld about the property that was removed. Mr Fink said he recovered one shovel, one rake and two Acrow props. Mr Rietveld initially said he removed two spades and two or three blue props. In court he said he removed two post hole shovels and a couple of Ritek props. Mr Beaven claimed that he owned shovels, spades and Acrow props in 2002. In the absence of coherent identification and evidence of what was alleged to have been taken, I could not be satisfied that Mr Fink was the owner of the property removed. On the basis of the evidence, I find that on this incursion at least one shovel and two Acrow props were removed.

135 The property removed in 2006: The defendants were unable to establish on the balance of probabilities that, with the exception of the stainless steel, one large spanner and one orange handled saw, the property belonged to Mr Fink. The black pots, knapsack, clamp, Ramset anchors, tubes of grease, crate of plumbing fittings, tomato stakes, Tenen saw, spirit level and one metre ruler were all items readily available in hardware stores and commonly found in sheds on properties with acreage. At the time of their seizure by police, no identifying features were noted on any of these items. I find that these items were the property of Mr Beaven.

136 The evidence of Mr Fink and Mr Rietveld concerning the Laser Quip level was rejected because it was inconsistent in respect of the date on which it was taken, the components that were involved and the order in which they were taken. I find that this item was the property of Mr Beaven.

137 It was simply not credible that an old tin of paint without any mark of ownership could be identified as the property of Mr Fink. Further, the list of property seized was comprehensive and I did not accept that the paint was wrongly described by the police as semi-gloss when it was shown on the tin to be low sheen. I find that this item was the property of Mr Beaven.

138 It was apparent from photographs in evidence that both the Fink land and the Beaven land comprised acreages on which both native and exotic species were growing that required various types of fertiliser in larger quantities than that required by the average householder. Both Mr Fink and Mr Beaven purchased fertilisers from the wholesale supplier Beresford Park. Nothing was said to police about any special formula at the time of the seizure of the bags of fertiliser or in the affidavits of the defendants. Mr Rietveld was heard to refer to Dynamic Lifter, the fertiliser that Mr Beaven believed he had purchased. The formula of the fertiliser in the bags shown in the photographs was not legible. I therefore could not be satisfied that the bags of fertiliser were the property of Mr Fink. I find that these items were the property of Mr Beaven.

139 Mr Beaven readily conceded that he thought he owned only one orange-handled saw and expressed surprise that one of the saws found in the Beaven shed was on the bench rather than in the location were the saws were normally placed.

140 In the absence of this concession by Mr Beaven I would have doubted whether one of the orange-handled saws belonged to Mr Fink. This was because once more there were significant inconsistencies in the evidence of Mr Fink and Mr Rietveld. Mr Fink said the saw was purchased in 2004 and that it could be identified by the presence of pruning particles and sterilising agent. Mr Rietveld said the saw was brand new. He later said that it was used shortly before 4 April 2006 and, after use, sprayed with black emulsifying sealer. There was no evidence of the presence of pruning particles, sterilising agent or black emulsifying sealer on either of the orange handled saws at the time they were removed. I find that one of the orange handled saws was the property of Mr Fink.

141 Mr Rieveld's evidence that he single handedly removed the timber, whether he removed one or two pieces, from the Beaven land was either untrue or indicated that what he took was not wharf timber. Five policemen declined to carry timber that they considered to be too heavy. Mr Fink doubted that one person alone could carry the timber. Further, I simply could not accept that a small block of wood cut from the stack several years after the events in question was part of the timber said to have been removed by Mr Rietveld without confirmation through a chain of possession that it came from the same source. This was particularly so in the light of inconsistencies in Mr Rietveld's evidence concerning the size of the timber and the number of pieces removed and Mr Fink's evidence that, not having seen the timber brought onto his property by Mr Rietveld, he merely accepted what Mr Rietveld told him about it. I find that two pieces of timber were removed and that they were the property of Mr Beaven. I make the same finding in relation to two props removed on the same date.

142 Mr Fink and Mr Rietveld argued that they had not converted the property because they received, as bailees, it from the police who were then in lawful possession of it. It was clear, however, that the property was passed to Mr Rietveld on the basis that he claimed ownership of it on behalf of Mr Fink. It was recorded by the police officers that the property was Returned to Owner. At no stage did the police claim a right to possession of the property.

143 In any event, if it was the intention of the police that the property was to be secured on the Fink land until the issue of ownership was resolved, Mr Fink and Mr Rietveld did not place the property in a separate and secure area. They did not deal with it as if they were bailees. They treated it as Mr Fink's property and incorporated it into other property in the Fink shed. They used some of the items on the basis that it was Mr Fink's property. It became known to them, at least through this litigation, that the police abandoned any prosecution in respect of the plaintiffs' possession of the property. They continued to maintain throughout the litigation that it was Mr Fink's property.

144 It was argued that it was fatal to the plaintiffs' claim that they did not make written demand on the defendants for the return of the property or advise them that the police investigation was completed. No authority was provided to support the proposition that demand for the return of property and the failure to return it were essential elements of the tort of conversion rather than evidence that the tort was committed.

145 I find that Mr Fink and Mr Rietveld removed in 2002 and 2006 and converted to their own use the property that I have found belonged to Mr Beaven.

146 As to how the stainless steel, large spanner and orange handled saw came to be in the Beaven shed, there was evidence that pointed to interference on the part of Mr Rietveld and a level of knowledge by him of the layout and contents of the Beaven shed. There was also evidence that the window to the Beaven shed was normally locked with a latch but that the latch was inoperable at the time that the police gained entry through the window. This evidence raised a strong suspicion against Mr Rietveld but any finding on this point would necessarily involve a level of speculation.

147 It was not suggested that on any occasion in 2002 or 2006 the plaintiffs authorised the defendants to enter on their land. The only evidence of authority came from Mr Rietveld who claimed that a police officer told him in 2006 that he could lawfully enter the land for the purpose of recovering property belonging to Mr Fink.

148 I find that there was trespass onto the Beaven land on the following occasions: By Mr Rietveld and Mr Severs in 2002; By Mr Rietveld in March 2006 when he entered the Beaven land for the purpose of doing more than removing the stainless steel. By Mr Rietveld in March/April 2006 when he entered the Beaven land for the purpose of replacing the stainless steel. By Mr Rietveld on about 11 April 2006 when he entered and removed timber and props.

149 It was also established that Mr Fink and Thomas Fink trespassed on 16 April 2006 when they entered the Beaven land for the purpose of taking photographs. This act of trespass was not pleaded and I therefore make no finding against them in respect of it.

150 I did not accept that entry on the Beaven land by Mr Rietveld in company with police officers at the time of the search and seizure was an act of trespass.

151 I was not satisfied that the evidence was sufficient to establish that Thomas Fink accompanied Mr Rietveld when he entered the Beaven land on or about 11 April 2006. Mr Fink suffered from the difficulty of giving evidence in a language that was foreign to him. It was clear from the manner in which he gave evidence to this court that he was apt to become confused by questions. These propensities rendered the evidence of what was said by him in the Local Court unreliable and in the absence of other evidence of Thomas Fink's presence on the Beaven land on 11 April 2006, I made no finding of trespass against him on that occasion.

152 The claim of slander arose out of a conversation that took place between Mr Fink and Mr Luke Wakefield on 7 April 2006. Mr Wakefield at that time was a subcontractor engaged to install telephone lines for Telstra. He said he travelled to Wallis Island to discuss the installation of 10 lines for the Fink residence.

153 Mr Wakefield alleged that the following was said: During our conversation I asked him in words to the effect "Why do you need so many lines". He said in words to the effect "I need them because the people next door to me steal from me and I need security cameras in place". xxxii

154 Mr Wakefield said that he believed the reference to the people next door related to the Beaven family because there were only two families on that part of the Island.

155 Mr Wakefield agreed that Mr Fink said words to the effect of: I need a telephone line for extra security because I've had property go missing . xxxiii 156 Mr Wakefield did not remember that Mr Fink said: The police have retrieved my property from my neighbour's shed. xxxiv

157 He denied that he took these two parts of a conversation with Mr Fink and assumed that Mr Fink was accusing his neighbours of stealing from him.

158 He agreed that, when he and Mr Fink walked onto Crown land that bordered the Beaven land, there was an exchange between Alexander Beaven and Mr Fink. He denied that Alexander Beaven's language was abusive. He did not remember whether Mrs Beaven was also involved or the terms of the exchange between the parties.

159 Mr Fink agreed that Mr Wakefield asked him why he needed this number of telephone lines but denied that he responded with the words alleged by Mr Wakefield. He said he told Mr Wakefield that property was missing and that police retrieved it from the neighbour's shed.

160 The plaintiffs claimed that the conversation alleged by Mr Wakefield conveyed the imputations that the plaintiffs were: (a) persons who commit the tort of trespass, (b) persons who commit the tort of conversion, (c) persons who commit the felony of larceny. xxxv

161 A further allegation of slander was made in respect of words allegedly said about Alexander Beaven. No evidence was presented to support this part of the claim and it has not been considered further.

162 Mr Fink raised three arguments in response to the claim of slander. 1 In reliance on s 33 of the Defamation Act 2005, that the circumstances of the publication of the words alleged were such that the plaintiffs were unlikely to sustain any harm. 2 That Mr Wakefield was not a reliable witness. 3 That the imputations did not arise out of the words allegedly used.

163 The defence relying upon s 33 of the Defamation Act was not pleaded. An application to amend the defence was made through submissions made on behalf of Mr Fink to allow it to be raised. Mr Fink argued that the amendment sought would not prejudice the plaintiffs because it arose out of the factual matrix already dealt with in evidence. The submissions referred to the following extract from the judgment of Justice Simpson in Holmes v Fraserxxxvi Section 33 requires focus upon the circumstances of the publication and not events and circumstances that post date publication. It requires an evaluation of the likelihood, at the time of publication, that the Plaintiff will sustain harm. It does not permit enquiry as to whether or not the Plaintiff, in fact, suffers harm. That is an enquiry relevant to damages, should the Court get to that point.

164 The plaintiffs opposed the application, noting the late stage at which it was made and that it was made in written submissions supplied after the conclusion of the hearing and after all evidence was completed.

165 I decided to refuse the application for leave to amend for the following reasons: 1 It must certainly prejudice the plaintiffs to be faced with a statutory defence after the hearing and evidence were completed. The proceedings occupied seven days of the court's time. The proceedings were before the court on a number of occasions for case management and to deal with interlocutory matters. That counsel for the defendants was not engaged until a late stage in the proceedings, did not overcome these obvious problems or persuade me that the indulgence sought should be granted. 2 In the absence of any evidentiary basis to support the defence, it would be futile to allow the amendment. S 33 of the Act imposes a clear obligation on the defendant to prove that the circumstances of the publication were unlikely to cause harm to the plaintiffs. Mr Wakefield was not asked to tell the court what effect, at the time they were spoken, the words had upon him or on his attitude towards the plaintiffs. 3 The defendants' argument that the harm caused was trivial was based on evidence that Mr Wakefield was a longstanding friend of Alexander Beaven and that he knew other members of the family. This was said to indicate that Mr Wakefield was in a position to make his own judgment about the words allegedly said by Mr Fink and that the plaintiffs were unlikely to suffer harm. In the absence of evidence, I could only speculate on what his judgment might have been. 4 In my opinion, an allegation that a neighbour is a thief is far from trivial.

166 Mr Wakefield's reliability as a witness was challenged because he acknowledged that his memory was poor concerning the exchange between the plaintiffs and Mr Fink and because he did not recall words allegedly addressed to him by Mr Fink. I did not find it remarkable that a person, not involved in the disputes between the Beaven and Fink families, would pay little attention to their exchange of harsh words. I did note that it was never put to Mr Wakefield that Mr Fink did not say the words set out in Mr Wakefield's affidavit. Further, that Mr Wakefield did not remember the words that Mr Fink claimed to have used, did not establish that those words were in fact spoken.

167 Mr Fink responded in a circular and incoherent manner when asked if, at the time of his conversation with Mr Wakefield, he believed that the plaintiffs had stolen the property retrieved by the police,. Notwithstanding his failure to answer this question directly, it was very apparent that both Mr Fink and Mr Rietveld were of the opinion that the property was stolen by someone in the Beaven family. Indeed only Mr Rietveld could have named Matthew Beaven as the person of interest for the purposes of the search warrant.

168 I therefore treated Mr Wakefield as a reliable witness and accepted his evidence concerning the words said to him by Mr Fink.

169 I considered that it was self-evident that an accusation of theft by a neighbour was serious and that the imputations pleaded arose out of the words used.

170 I find for the plaintiffs on the allegations of slander against Mr Fink.

171 Conversion: It was contended by the defendants that the property in question was not valued and therefore there was no evidence of the damage sustained by the plaintiffs by its conversion. I considered that there was ample evidence before the court in the nature of invoices and receipts to arrive at the very modest component of the plaintiffs' damages related to the property removed.

172 I therefore relied on the figures provided in the plaintiffs' submissions. To those figures I added the amount shown in receipts for one post hole shovel removed in 2002 and the value of three further black pots to compensate for the three or four removed by Mr Rietveld in March 2006. There was no evidence of the value of the Acrow props, clamp, paint and Tenen saw and therefore no amount was included for these items. I reduced the resulting figure by $17.00 to allow for one orange handled saw and discounted the figure by 30% to allow for the second hand or used nature of the remaining property.

174 Trespass: I have found that there were four separate incidents of trespass by Mr Rietveld onto the Beaven land. There was no evidence that physical damage occurred as a result of these incursions.

175 I have therefore assessed damages at a nominal figure of $2,500 per incident and allowed the sum of $10,000.

176 Slander: While finding for the plaintiffs on the issue of slander, there was no evidence that the words used by Mr Fink were published beyond Mr Wakefield or that the plaintiffs suffered damage to their reputations in the broader community.

177 I allowed damages in the nominal figure of $2,500.

178 Aggravated damages: I considered that this was an appropriate case in which to award aggravated damages.

179 By the time of the fourth trespass, Mr Rietveld appeared to be acting in the belief that he was at liberty to trespass whenever he pleased on the Beaven land and to remove from it any items that matched those that were at any stage on the Fink land or in the Fink shed.

180 Mr Fink, although he denied authorising in advance the 2002 trespass, was fully aware of the actions of his employees. He took no steps to prevent the repeated trespasses. He did not behave in the manner expected of mature adult neighbours and approach the Beaven family to seek an explanation or talk things through.

181 All incidents of trespass occurred at a time when it was known to Mr Fink and Mr Rietveld that the plaintiffs were not present and when they were very well aware that they attended the property at weekends.

182 No remorse or regret was shown by Mr Fink or Mr Rietveld for the actions that were taken.

183 In the circumstances I considered that aggravated damages in the sum of $10,000 were warranted.

184 Exemplary damages: This action involved a private dispute between two families. I would not expect in such circumstances that an award of exemplary damages would have the effect of indicating to the community at large the court's disapproval of the manner in which Mr Fink and Mr Rietveld behaved.

186 Verdict and judgment for the plaintiffs against Mr Fink and Mr Rietveld in the action for conversion and trespass in the sum of $21,571.

187 Verdict and judgment for the plaintiffs against Mr Fink in the action for slander in the sum of $2,500.

188 Verdict for Thomas Fink on the claims against him in trespass and conversion.

189 The proceedings are listed at 9.30 on 25 August 2009 to hear argument on the question of costs.

i Annexure A to affidavit of Mr Rietveld dated 19.8.08 ii Exhibit J iii Cross on Evidence, D M Byrne QC and J D Heydon, 3rd Aus Edition, p.30; Law of Torts, Fleming, 7th Edition, p.59; Law of Torts, R P Balkin & J L R Davis, 2nd Edition, p.71; Torts, Commentary and Materials, W L Morison & C Sappideen, 7th edition, p.116. iv Gatward v Alley (1940) 40 SR(NSW) 174; Jerome v Bentley [1952] 2 All.ER 114 v per Jordan CJ at 180 vi pps 26 - 29 vii Annexure AF-1, Tab 4 viii Transcript D6.43.21 ix Transcript D6.43.48 x Receipt 10, Part Annexure K, Mr Beaven's affidavit 27.6.2008 xi Annexure AF-1, Tab 3 xii Exhibits A - E xiii Exhibit D xiv Exhibit A, Annexure A xv Transcript D4.33.21 xvi Exhibit A, Annexure A xvii Exhibit H.14 xviii Annexure AF-1.Tab 11 xix Annexure AF-1.Tab 12 xx Annexure AF-1.Tab 13 xxi Exhibit M xxii Exhibit N xxiii Annexure AF-1.Tab 21 xxiv Exhibit 4 xxv Annexure AF-1.Tab 22 xxvi Exhibit 7 xxvii paragraph 33 xxviii Exhibit 8 xxix Exhibits 9 and 10 xxx Transcript D6.20.21 xxxi Exhibit 13 xxxii Affidavit of Luke Wakefield, pp 5 xxxiii Transcript D5.4.38 xxxiv Transcript D5.4.44 xxxv Statement of claim, pp 33 xxxvi [2008] NSWSC 570 at [77]

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