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[2014] NSWSC 188
Supreme Court of NSW
2013-09-23
Hidden J
Original judgment source is linked above.
Judgment 1HIS HONOUR: The plaintiff, Faye-Diane Combe, has brought proceedings in this court against the defendant, Bank of Queensland Limited, in conversion and detinue. She alleges that the bank wrongfully disposed of certain goods of hers which had been stored at a property of which it had taken possession under a mortgage. 2In September 2009 the bank obtained default judgment for possession of a property at Castle Hill, the mortgagors being Paula, Helena and Paul Jensen. The bank entered into possession on 3 December 2009, and in May 2010 a cleaning company removed all the goods on the property and placed them in storage. In April 2011 the goods were disposed of at a council tip. It is Ms Combe's case that at some stage after the bank took possession of the property it disposed of items of hers, of considerable value in their totality, which had been stored at the property by arrangement with the Jensens since about 2007. This the bank denies. 3Ms Combe has pursued the proceedings without legal representation and was unrepresented at the hearing. She relied on affidavit evidence, as did the bank. Her dealings with the bank have a long history, as do the proceedings in this court, which were commenced in 2010. Some of Ms Combe's affidavit material is directed to the propriety of the default judgment, complaining that the Jensens were not on notice of the proceedings against them. It is clear that she has had a longstanding association with them, the circumstances of which need not be examined. 4It is not appropriate that I should revisit the entry of the default judgment. That judgment stands, the Jensens' application to set it aside having been unsuccessful. It is relevant for present purposes only insofar as it was the mechanism which enabled the bank to take possession of the property. (It might also be relevant to found Ms Combe's complaint that, as the Jensens were not on notice of the proceedings, nor was she, so that she did not have the opportunity to take action to protect her goods if the bank obtained an order for possession.) Ultimately, the matter turns upon the resolution of one factual issue. 5Ms Combe is an artist. The current statement of claim is an amended document of 21 January 2013. Attached to it is a list of the goods the subject of the claim. Put shortly, they comprise:
6Ms Combe's account of events is to be found in her affidavits of 15 June 2011 and 24 May 2012. She also relies upon an affidavit of 10 May 2013, which responds to the bank's evidence. In these affidavits she attests to the storage of her goods at the Castle Hill property after she had to leave her own home. For present purposes there is no need to go to the detail of that process. Exactly when it occurred is not clear. She estimates the value of the goods at a figure in excess of $400,000. The fact of the storage of the goods at the premises is confirmed in general terms in affidavits of Paula and Helena Jensen. Paul Jensen, Ms Combe informed me, is deceased. 7Ms Combe's affidavits also set out the effect upon her life of the loss of these goods, apart from their monetary value. Otherwise, they deal at some length with the history of the possession proceedings against the Jensens and her own proceedings in this court, together with her dealings with the bank directly and through its solicitors. I understand that she feels strongly about the matters she has raised but, as I have said, I do not find this material relevant to the resolution of these proceedings. 8That said, some aspects of her dealings with the bank should be noted. Her evidence is that she was not allowed access to the property after the bank took possession of it on 3 December 2009. In September 2010, pursuant to a direction by Registrar Bradford, the bank's solicitors forwarded to her an inventory of the goods said to have been removed from the premises and placed in storage. As it happens, a copy of the inventory sent was incomplete. She noted that none of her items appeared on it. Subsequently, by a letter of 25 May 2011, the bank's solicitors informed her that the goods had been disposed of. 9Ms Combe deposes that at one stage the bank furnished the Jensens and herself with a form of authority to deal with the goods in storage. When this occurred, and in what circumstances, is not clear. A copy of the document provided to her is annexed to her affidavits of June 2011 and May 2012. It authorises the bank "to hand possession of all abandoned goods that were left at the Property" to Ms Paula Jensen as the first registered proprietor, including any goods which she claimed to be her personal possessions. It then provided an immediate and unconditional release of the bank, and its officers and agents, from all claims which she otherwise might have had. She did not execute the authority. However, she relies upon it as an admission by the bank of having dealt with her goods. 10In its case the bank relies upon affidavits of:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2014
Faye-Diane Combe
Bank of Queensland Limited