HIS HONOUR: The current proceedings were commenced by a statement of claim dated 4 June 2015. Unfortunately the Registrar here at Armidale has not endorsed on the statement of claim the date of filing, however, I have been told by the plaintiff's solicitor that the statement of claim was in fact filed on 9 June 2015. Paragraph 2 of the statement of claim asserts that the plaintiff was the owner of a number of items. They have been identified by letters between (a) and (s). Paragraphs 5 and 6 of the statement of claim are these:
"[5] In or about February 2011 the plaintiff borrowed from Raymond Camilleri a Case Construction King Backhoe 580K, serial number 122026, engine number 22487. The backhoe was located at the property at the time the defendant purchased the property. The backhoe remains at the property...
[6] In or about July 2011 the plaintiff borrowed from Andrew Johnson a tandem trailer with cattle crate, chassis number ACAC8455, registration number 006 QFM. The trailer was located at the property at the time the defendant purchased the property. The trailer remains at the property..."
Paragraphs 13 and 14 of the statement of claim are these:
"[13] Since in or about November 2013 the defendant has refused to deliver the goods identified in paras 2, 5 and 6 to the plaintiff, thereby detaining and converting those goods to his own use and wrongfully depriving the plaintiff of their use.
[14] Since in or about November 2013 the defendant has detained and still detains from the plaintiff the goods identified in paras 2, 5 and 6."
Under par 14 are listed a number of pieces of communication passing between the solicitors of the parties. The final paragraph of the statement of claim, which was amended at the commencement of the hearing, is this:
"The plaintiff seeks the return of the items as identified in paras 2, 5 and 6 and/or damages for trover and conversion."
It was the claim in the alternative that was only raised at the commencement of the hearing, albeit that under the heading "Relief claimed" there was a claim for damages for both detinue and conversion, as well as an order in the nature of replevin.
The background to the current dispute is colourful. There is a farm, which was known to the plaintiff as "The Punkt" and is known to the defendant as "Do Heaps," which has the street address of 1200 Petroi Road in the vicinity known as Lower Creek in this State. From my reading of the documents before me, the farm comprises three lots, lots 34, 35 and 45, in deposited plan 751466. The lands in question adjoin a stream identified in the deposited plans as either Dyke River or Lower Creek. The property is in the Armidale local government area and is part of the parish of Mowle in the county of Clarke.
The plaintiff maintains that he has been associated with this property since about 1979. According to par 2 of the plaintiff's affidavit, he purchased the farm in or about 1979. In or about 1996 the plaintiff married Petra Schmitz. There was some matrimonial dispute in or around 2006, which appears to have led to some adjustment in the ownership of the property. The plaintiff's affidavit suggests that he transferred the farm to Petra Schmitz but other documentation indicates that the land was transferred to Petra Schmitz by some other relative. In any event, there is no dispute that the registered proprietor of the farm at most material times has been Petra Schmitz, or as she has also been known, Mrs Petra Dieck.
Paragraph 5 of the plaintiff's affidavit attests to his agreeing to separate from his wife Petra Schmitz in or about 2006. A document was executed in the German language, purporting to be a separation agreement and bears date 2 April 2006, although a certified translation shows its date as being 2 April 2005. Since the translation is inaccurate, I can accept that the date contained on the translation is inaccurate. However, it is clear from evidence given in these proceedings by Ms Schmitz that although there was an estrangement at that time, in essence, the marriage continued: that the plaintiff stayed on the property, had regular marital relations with his wife, maintained the property with his wife and the two of them cared for their five children. The events of 2006 appear to have represented one of the many hiccoughs that often occur in marriage.
However, a more significant hiccough occurred in 2012. On 5 March 2012 the plaintiff was taken into custody by lawful process. He was taken into custody as a result of allegations made against him by Ms Schmitz, his wife. Essentially the allegation was of domestic violence. The plaintiff remained in custody until 26 March 2013. Exhibit E tells me that the plaintiff received prison sentences for common assault and also for firearms offences. The firearms offences were not keeping a firearm safely and possessing an unregistered firearm, not, I hasten to point out, any misuse of a firearm. Shortly after the plaintiff was taken into custody, Ms Schmitz left the matrimonial farm. In September 2012 Ms Schmitz told her husband, the plaintiff, that she intended to sell the property. In that month she offered to sell it to him. She offered to sell it to him for $135,000. That offer was rejected. According to Ms Schmitz's affidavit, the plaintiff made no effort to make any arrangements to move any items that he said belonged to him from the farm.
The farm was put up for sale on the open market. A copy of the contract for the sale of the farm is exhibit F. Special condition 16 of the contract was this:
"The purchase is on a walk in and walk out basis, and contains the contents of the various structures, with the exception of the following list of exclusions:
- Motorcycles and motorcycle parts
- One antique, non-functional rotary hoe
- Documents
- Clock, coffee mill and a few other household items
- Glasses, Porcelain and cutlery from the hillside shed and caravan
- One electric drill
- One welder
- Some hand tools
- Some clothes, toys, books and bedding
- Collection of maps"
The inference to be drawn from that special condition is that the vendor purported to sell to the purchasers not only the land and fixtures that comprised the farm, but also all personal property thereon, with the exceptions contained in the "list of exclusions". The defendant, Tully Mark Allsop, and his brother, Derryn Paul Allsop, offered Ms Schmitz $155,000 for this property, to which I shall refer to as "the farm". Contracts were exchanged on 21 December 2012. The conveyance was completed on 15 April 2013.
As I have earlier mentioned, the plaintiff was released from custody on 26 March 2013, which was after contracts had been exchanged but before completion of the conveyance. That contracts were exchanged must have been known to the plaintiff, because he made an offer of $20,000 more than the offer that had been made by the defendant and his brother, but Ms Schmitz could not accept that offer because she had already exchanged contracts with the defendant and his brother. Not only does and did the plaintiff maintain an interest in the personal property the subject of these proceedings, he also maintained that he had an interest in the land. For example, annexure A to the plaintiff's first affidavit of 11 November 2015, which is exhibit A, is a letter from his solicitor, Ms Stephanie Tam of KDB Holmes Solicitors, bearing date 11 April 2013, which contains, amongst other things, this matter:
"We are instructed the current contract for sale contains inclusions of the existing machinery on the property. We are instructed that any such machinery on the property belongs to our client and cannot be sold by your client. Our client does not consent to their sale.
Please urgently confirm that the current proposed purchaser of the property is aware that:
1. Our client, Mr Dieck, who has an interest in the property, has resided there for the past 30 years and continues to reside there, opposes the sale; and
2. Machinery located on the property belongs to our client."
The alleged interest of the plaintiff in both the realty and the personalty in question was never conveyed to the defendant or to his brother. They completed the sale, as I said, on 15 April 2013, paying the balance of the purchase price, $140,000, to Ms Schmitz, with probably the usual adjustments.
In shorthand terms, one could describe the defendant as a bona fide purchaser for value without notice of both the realty and personalty involved. Section 26(1) of the Sale of Goods Act 1923 provides this:
"Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is, by the owner's conduct, precluded from denying the seller's authority to sell."
A number of questions arise as to who was the owner of the goods the subject of these proceedings. There is conflicting evidence from the plaintiff and his former wife, who was called in these proceedings. There are a number of areas of conflict in the evidence: conflicts between the plaintiff and his former wife and conflicts between the plaintiff and the defendant. I prefer the evidence of Ms Schmitz over that of the plaintiff, and I prefer the evidence of the defendant to that of the plaintiff.
Item (k) of the list of chattels contained in par 2 of the statement of claim is this:
"Grandfather's sword from the Boer War."
The plaintiff was cross-examined to the effect that his grandfather was born in 1904 and never fought in the Boer War, which finished in 1902. The plaintiff agreed that his grandfather was born in 1904, but said that although he referred to it as his grandfather's sword, it in fact belonged to his great grandfather. The plaintiff was asked on which side his great grandfather fought in the Boer War. The plaintiff said that ancestor was Flemish and fought for "the Flemings" but could not articulate that Flemings came from Flanders. He maintained that he and his ancestors were Dutch, that they were Hollanders. He also maintained that his great grandfather fought for the British, which I found hard to accept given that his great grandfather must have been a Dutchman, considering that the Boers were in fact descendants of the original Dutch colonists.
Mr Allsop, the defendant, maintained that he never saw or found on the property any sword. In light of the plaintiff's Christian name, Gottfried, and the fact that there was exhibited in these proceedings a document written in the German language and signed by both the plaintiff and Ms Schmitz, I was surprised that he told me that his background was Dutch. He agreed that he was fluent in the German language. Ms Schmitz' affidavit, which is exhibit 6, contains material on part of which the plaintiff was cross-examined. Paragraph 27 of that affidavit is this:
"In regard to (k), Gottfried's ancestors were all German, and his grandfather was born in 1904 and never fought in the Boer War 1899 - 1902. I do not believe Gottfried ever possessed a sword from that war."
I had asked the plaintiff whether the sword in question was a sabre, which was the long sidearm worn by British forces in the Boer War and was still in active use by the cavalry. The plaintiff told me that it was in fact a "parade sword", which is not a usual feature of British military attire. However, Ms Schmitz in her evidence told me that there was a parade sword which she had taken with her with the intention of passing it on to one of her children, all of whom have as their father the plaintiff. This was a parade sword that did belong to the plaintiff's grandfather that was worn in the service of Kaiser Wilhelm II.
Ms Schmitz was also able to tell me about the plaintiff's German background, of his extensive property holdings in Germany, and what she told me ties in with other evidence given by the plaintiff. For example, she told me that during the marriage she did not work other than on the farm, which did not appear from what anyone said about it to be deriving much income, in the same period the plaintiff did not work outside of the farm. Ms Schmitz told me that the income on which they lived was derived from the plaintiff's real estate holdings in Germany, and that ties in with the plaintiff's evidence that between 2006 and 2012 he spent three months of every calendar year "overseas", i.e. he had sufficient money to travel regularly overseas and an inference can be drawn that he may have been attending to his interests in Germany for three months in each year.
The plaintiff did not tell me anything that was true about his own background. One might appreciate a person seeking to hide a background which might not be "fashionable", but in modern Australia there are citizens of every background, including those from Germany, from Russia, from Japan and from other countries against whom this country has waged war from time to time. There is no reason for the plaintiff to hide his German background. He appeared to be prepared to say anything if he thought it furthered his case. Furthermore, from the evidence given by Ms Schmitz and the defendant, it is clear that the plaintiff has acted in an unprincipled, high-handed and aggressive manner to both and there is no reason for me to accept at face value anything that the plaintiff had to say. In fact, there are so many conflicts between his evidence and the evidence of Ms Schmitz and the defendant that I would not, in any event, accept the plaintiff's evidence.
There was no dispute that all the motorcycles and motorcycle parts described in par 7 of exhibit B in these proceedings, that being an affidavit of the plaintiff bearing date 11 November 2015, were purchased by the plaintiff prior to his marriage to Ms Schmitz. They must all be seen as the plaintiff's personal property. However, they were an exclusion from the sale. They have remained in situ on the farm, where they had been left by the plaintiff at the time he was first taken into custody on 5 March 2012. There is no evidence that the motorcycles or motorcycle parts have been interfered with in any way by the defendant. No act of conversion has been established. In any event, at all material times the defendant has been prepared to hand over the motorcycles and the motorcycle parts to the plaintiff. However, the plaintiff has either placed unacceptable conditions on delivery of the motorcycle and motorcycle parts, or has been unable to comply with arrangements made because of his incarceration. I shall endeavour to craft an order which will enable the plaintiff to recover the motorcycles and motorcycle parts.
The only other item which according to Ms Schmitz was owned by the plaintiff prior to their marriage was the item identified as (m), a Chevrolet Blitz truck circa 1930s. According to the plaintiff, he bought three Chevrolet Blitz trucks, only one of which was still assembled, and he had bought them from various sawmills between 1979 and 1990. He told me that he paid no more than $700 or $800 for each of those trucks. It is clear from what the plaintiff himself said that there was one Chevrolet Blitz which could be seen as being a truck still and what were originally two other trucks were mere spare parts. I accept that whatever remains of the Chevrolet truck, or trucks, remains the property of the plaintiff. However, par 34 of Mr Allsop's affidavit of 22 January 2016, which is exhibit 1, says this:
"Chevrolet Blitz truck from the 1930s. That vehicle is on the property and is in very poor and inoperable condition. It is nothing more than a pile of rusted metal. It was such at the time of the purchase. It was and still is under a pile of rubbish. I believe that it weighs about 3.5 tonnes. He would need a crane to remove it as well as a large truck. I am unable to get a picture of it as it is covered with junk."
Bearing in mind the purchase price paid by the plaintiff between 1979 and 1990 and the current state of the vehicle, I assess its commercial value as nil and no evidence was given that it has any sentimental value. That piece of personal property has no value whatever. There is absolutely no reason why I should make an order for that piece of metal to be delivered to the plaintiff by the defendant because the plaintiff is currently incarcerated, he has no assets to speak of in Australia, he has been coy about his income and he has no realty, on his evidence, in Australia, no place where it could be put other than on Crown land or in the State forest where he has been prone to camp since he was first released from custody. The plaintiff's claims for detention, conversion and replevin in respect of that item all fail.
Another item in question is, of course, the parade sword, now understood to be a German parade sword that was in fact the property of the plaintiff's grandfather. That is not in the possession of the defendant. It is in the possession of Ms Schmitz. The plaintiff's claim in respect of that item must fail.
In par 6 of the statement of claim there is the allegation that a tandem trailer with cattle crate was on the property and is on the property and is the subject of detinue, conversion and replevin. The simple answer to that is that Ms Schmitz says that she took possession of that trailer. That is stated in par 28 of her affidavit, exhibit 6. There is, on the defendant's property, a trailer which looks the same, but it is a different colour and is clearly not that identified by the plaintiff, and the one identified by the plaintiff is the one that Ms Schmitz says she took into her possession. The plaintiff's claims in respect of that item must also fail.
All the rest of the items Ms Schmitz says were matrimonial property, that is, property acquired by both the plaintiff and her during their marriage. She claims that she had an equal right of possession of the personal property in question. She clearly was the sole possessor of the property at the time that contracts were exchanged and she was clearly in possession of the property at the time that the conveyance was completed. Our law of ownership depends largely on possession. At the time that the defendant exchanged contracts for the purchase of the farm and its contents, Ms Schmitz was the ostensible and actual possessor of the realty and personalty in question and therefore the defendant was entitled to regard her as the lawful owner of it. However, s 26, as far as personal property is concerned, does not permit a bona fide purchaser for value without notice to acquire a better title than that of the vendor unless the true owner of the goods is, by the owner's conduct, precluded from denying the seller's authority to sell.
Here the plaintiff maintains that the personal property was his alone. Miss Schmitz says it was matrimonial property. I prefer Ms Schmitz's evidence. That means that they were the joint owners of the property, or, perhaps less technically, co-owners of the property, and when the plaintiff removed himself from the farm by his own action, doing things which caused him to be incarcerated, he left his wife as the ostensible owner, and insofar as anyone knew that she were married to the plaintiff, as the plaintiff's agent. She was made the ostensible owner of the property by the defendant's conduct.
However, the matter can be approached in another way. The plaintiff needs to establish that he has a title superior to that of his wife in respect of the matrimonial property. Accepting that position, I must be persuaded that the plaintiff has a superior title to maintain his claim, a claim for conversion or detinue against his wife, in order that a claim for detinue or conversion could be maintained against the defendant. As the plaintiff cannot maintain a claim for conversion or detinue against his former wife, he is unable to maintain that claim against the defendant.
Another way of approaching the matter is to consider the relevant law concerning the proper interpretation of s 26(1). In that regard it is convenient here to refer to the judgment of White J in Rosecell Pty Ltd v JP Haines Plumbing Pty Ltd [2015] NSWSC 1238. The relevant section of his Honour's judgment commences at [52] and concludes at [72]. Commencing at [57] his Honour said this:
"[57] In Thomas Australia Wholesale Vehicle Trading Company Pty Ltd v Marac Finance Australia Ltd (1985) 3 NSWLR 252, Glass and McHugh JJA held that a buyer of goods, who relied upon an owner's omission to take action that could have prevented the sale, had to demonstrate that the owner owed a duty to take such action, in order to establish that the owner was estopped from asserting his title (per Glass JA at 467, per McHugh JA at 469 FF). That was said in a context where the estoppel depended upon the existence of a duty of care. No other basis of duty arose in that case. Nor could it in this case.
[58] In Thomas Australia Wholesale Vehicle Trading Company Pty Ltd v Marac Finance Australia Ltd the Court of Appeal cited with approval reasons of Lord Wilberforce in Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890 at 903 where his Lordship said that the existence of a duty depended upon:
'...whether, having regard to the situation in which the relevant transaction occurred, as known to both parties, a reasonable man, in the position of the 'acquirer' of the property, would expect the 'owner', acting honestly and responsibly, if he claimed any title in the property, to take steps to make that claim known to, and discoverable by, the 'acquirer' and whether, in the face of an omission to do so, the 'acquirer' could reasonably assume that no such title was claimed.'"
It is this last principle which is the basis of the current law, as was applied by White J in Rosecell Pty Ltd. What would the current defendant expect the current plaintiff, acting honestly and reasonably, if the plaintiff claimed any title in the property, do to take steps would he take to make that claim known to and discoverable by the defendant, and whether, in the face of an omission to do so, the defendant could reasonably assume that no such title was claimed.
Here the plaintiff knew that his wife intended to sell the property. He knew that the personal possessions which he claims in these proceedings were on the property. He knew that many of them would have been difficult, and in some cases extraordinarily difficult, to remove, e.g., what I have already said about the Chevrolet Blitz truck. He knew or ought to have known that it was highly likely that his wife would not remove machinery which would not be used by a woman who had the care of five children. At the time of giving evidence, Ms Schmitz' children were aged between eighteen and seven years. The plaintiff had rejected an offer to buy the farm for $135,000. He must have known that his wife wanted to get rid of the property and move on. He must have known that it was likely to jeopardise his keeping hold of the pieces of plant and machinery and other goods claimed in this proceedings. He also claimed an interest in the land. One thing that he could easily have done was to file a caveat against the property, which would have stopped the conveyancing process stone cold dead, and would have led to proceedings in the Supreme Court in which matters such as the current one could have been ventilated. In the alternative, he could have made an application to the Family Court under s 78 of the Family Law Act 1975 and sought an alteration of property interests between himself and his wife, as provided in s 79 of the same Act. He did neither. He did not communicate to the defendant or his brother or their agent, the conveyancers acting for the defendant and his brother, his interest in the property. He merely wrote letters of demand to his wife, which appear to have been not drawn to her attention, according to her evidence. The position in which the plaintiff found himself was of his own choosing. He did acts which led to his being incarcerated. In my view the defendant, acting reasonably, would have expected a person such as the plaintiff, if he claimed any title in the property being conveyed to him by the plaintiff's wife, take steps to make that claim known to the defendant and the plaintiff's omission to do so indicated clearly to the defendant that no such title was claimed.
That finding is sufficient to dispose of nearly all of the rest of the various claims made in these proceedings. However, I should comment on a few specific items to show other problems which constitute a grave hurdle for the plaintiff. Item (a) is in fact a Wisconsin 25 kilowatt generator. That was matrimonial property. According to the defendant's affidavit, that generator was on the property at the date of purchase and is still there. The defendant maintains that he and his brother own it, but they would be prepared to give it to the plaintiff if that would resolve the matter. The defendant's offer is generous. However, the defendant's brother is not a party to these proceedings and I could not make an order which would interfere with the defendant's brother's interest. In any event, it is abundantly clear that the plaintiff would have grave difficulty in taking off the property anything because he has nowhere to put it. In my view the claims in respect of both detention and conversion fail. The property has passed to the defendant and his brother and there is no need that any further provision be made for this item. Item (b) is pleaded as a Lombagine 6 kilowatt generator. This is in fact a Lamborghini 6 kilowatt generator. It is in the same position as the Viscount 25 kilowatt generator.
Item (c) is a large amount of 2 inch polypipe and related joiners and joining pieces. In par 25 of Ms Schmitz affidavit, this is stated:
"The polypipe is scattered all over the property and was the water and irrigation system for house, stock yards and garden."
One would think that that would have made the polypiping a fixture, applying the principles set out by the Court of Appeal in Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30. The same point is made by the defendant himself in par 12 of his affidavit. After referring to the item he says this:
"It was installed water pipe. It was a fixture at the time of sale. It has since been stolen or damaged. We have reported it to the police. There is nothing left of significant value."
Ms Schmitz made the point in her evidence that there were a few pieces of rolled-up polypipe, but they had been placed in areas where they expected the installed polypipe to fail and were there to replace any polypipe which failed. These are just the sort of things one would expect to be left on the property when a property was conveyed on a walk in, walk out basis. Furthermore, the evidence before me strongly suggests that the damage to the polypipe system has been done by the plaintiff. In that regard one needs only read pars 15 to 17 of the defendant's affidavit of 22 January 2016, exhibit 1. I shall not bother quoting that material. It is certainly something that must be taken into account in assessing the bona fides of the plaintiff's proceedings.
Item (d) is pleaded as being a Lombagini rotary hoe without a motor, but is in fact a Lamborghini rotary hoe which is inoperable. It is the rotary hoe referred to as the antique in the list of exclusions in the contract which I have already quoted. The item has remained on the property since the defendant and his brother took possession of it. It is still available to be delivered up to the plaintiff and the defendant is happy that that occur. The item has not been interfered with in any way. I shall make an order to resolve that issue if I can.
Item (e) is 2000 litres of diesel fuel, item (f) is a 3,000 litre fuel tank, and item (g) is an 800 litre fuel tank. The 3,000 litre fuel tank is buried in the ground and was buried in the ground at the time of purchase of the farm by the defendant and was plumbed into the land as at the time of purchase. It is clearly a fixture. The principle underlying fixtures is quicquid solo plantatur, solo cedit, whatever is planted in the soil becomes part of the soil, and nothing could be more crystal clear than a 3,000 litre tank buried in the ground becoming part of the land. The 800 litre fuel tank is fixed on a stand which was set into the ground at the time of purchase. It is still there. A photograph of it is exhibit 2. It is not a small thing, it is large. Mr Allsop could not tell me whether it was concreted into the ground, but the feet of the stand go into the earth and when he pushes against it, it cannot be moved. I accept that it is a fixture.
According to Ms Schmitz, fuel was purchased between 2006 and 2009 with the intention of its being used as fuel for a bulldozer which was needed to get certain work performed on the farm. Apparently the bulldozer was never acquired or borrowed and the fuel was stored. According to Mr Allsop, he is unable to say how much fuel was in the tanks at the time of purchase. However, at the time of claim he said that there were approximately 200 litres of fuel in the tank. However, there is now nothing left as it either leaked out or has been stolen. It is mere speculation to think who may have stolen the fuel. In any event, I accept that property in it passed to the defendant at the time of the completion of the sale of the property.
Item (h) is assorted steel, but from what has been said by Ms Schmitz and the defendant about other scrap metal near the Blitz truck, this appears to be of no commercial value whatever. Item (i) is 70 hardwood fence posts. According to Ms Schmidtz they were matrimonial property but in poor condition. According to the defendant they were riddled with termites and have been used as firewood. Again, they are of no commercial value, and even if their burning amounted to conversion, the fence posts, being riddled with white ants, had no value whatever.
Item (j) is an unregistered Viscount caravan circa 1980 which contains, amongst other things, motorcycle parts. I have dealt with the motorcycle parts. Four photographs of the caravan are exhibit 3. It is a fixture. It is immobile. It rests on piers and/or tree stumps and/or sandstone on the property. It clearly has become unusable as a caravan and could not be conveniently removed. I accept that it is a fixture.
Item (m) is an International six-wheel drive truck of 1974. Photographs of it are exhibit 5. The plaintiff said he bought that vehicle in 1992 for $1,500. Ms Schmitz said that the plaintiff acquired it in early 2004 or 2005 and that it was a gift, he paid nothing for it. From looking at the photographs, exhibit 5, one might be forgiven for thinking that it was a useless piece of scrap metal. Of this item, Mr Allsop attested to this in his affidavit:
"It weighs between 5 and 6 tonnes. It does not work. I say that it was purchased with the property. Mr Dieck can have it. He will need a crane and a very large truck to remove it."
The ability of the plaintiff to obtain a crane and a very large truck and take it off the farm within any reasonable time is so remote as to be risible. I assess the value of the truck as being nil, in any event.
Item (o) is 180 lengths of hardwood timber of various lengths and sizes. Of that the defendant says this:
"It was present at the time of purchase and was infested with white ants at the time. Some of it was burned before Mr Dieck made a claim. We say that it was part of the purchase, however, Mr Dieck is welcome to remove what is left."
Again, removing this quantity of timber would in my view not achieve any purpose whatever. The timber has no value.
Item (r) is a smaller Viscount caravan, unregistered, of 1970s vintage. That caravan is present on the property. It is not plumbed into the property as is the earlier caravan I have discussed. Mr Allsop could recall it having at least one wheel and thought it probably had two wheels. It is not a fixture. The plaintiff referred to it having been placed on the land by his uncle before his uncle returned to Germany. The defendant said that it contains boxes of light fittings and he is using it also for the storage of paints he uses on the property. The fact that the caravan was bailed by the plaintiff's uncle to the plaintiff does not give the plaintiff any title to it. However, it does give him a better title than, for example, his wife, but one might think that if the uncle of the plaintiff bailed the caravan to his nephew, he may have also intended to bail it to his nephew's wife. In any event, I am persuaded, on the balance of probabilities, that the caravan was part of the property conveyed to the defendant by Ms Schmitz and that it became his property, because he had no notice of any defect in title, and the plaintiff, by his conduct, waived any entitlement that he had.
Further items relate to Holden HT station wagons and sedans. On the plaintiff's evidence these were not on the property but on Crown land or forestry land. Although the boundary fencing had encroached upon the adjoining Crown or forestry land, the Holdens, he said, were on property that did not belong to him but within his "fence line". As to these five Holden HTs, Ms Schmitz said this in her affidavit:
"I am not aware of more than one HT being on the property. It was no longer working and it had been chocked up on blocks for 15 years."
On the same issue, the defendant said this:
"I am not aware of these items ever being on the property. They were not there at the time of purchase and I do not know where they are."
I accept the evidence of Ms Schmitz that there was only one such Holden HT, that it was not working and had been on the property chocked up on blocks and had been there for 15 years. I also accept that it was not on the defendant's property. What has become of it, this Court does not know, but I do not accept the plaintiff's evidence about the HT Holdens.
The last items, identified as (s), are four Toyota axles and brake assemblies. Ms Schmitz gave some evidence about that. Unfortunately I have not made a note. In any event, I accept that the property passed to the defendant without notice and the plaintiff is no longer entitled to recover that property.
Another item is that pleaded in par 5 of the statement of claim, a backhoe. According to Ms Schmitz, that was purchased for $16,000 in 2006 and was matrimonial property. The plaintiff's affidavit says this about the backhoe:
"[12] I had borrowed the backhoe from Raymond Camilleri (Ray) in or about early 2011.
[13] Ray lives at Halfway Creek, about 100 kilometres from the property.
[...]
[15] Ray had loaned[sic] the backhoe to me in exchange for welding work I had done for him. The backhoe was to be used to maintain access tracks into the property and returned in or about 2012. Unfortunately I was not able to return it to him as I was placed on remand and due to the subsequent events. Annexed hereto and marked with the letter 'B' is a true copy of a letter from Ray confirming the arrangement with me."
The letter is annexed to the affidavit but there is no evidence directly from Mr Camilleri. The plaintiff agreed in cross-examination that he had bought the backhoe but then said he had sold it to Mr Camilleri but then obtained it back on loan. According to Ms Schmitz, it was a matrimonial asset. If the plaintiff did purport to sell it to Mr Camilleri, he did so without his wife's knowledge or consent. Furthermore, Ms Schmitz was completely unaware of any such transfer or lending back of the backhoe. I accept that it is an item in which property passed to the defendant at the time of completion of the contract extinguishing the plaintiff's title to it. I am reinforced in that view by the lack of any evidence from Mr Camilleri and a failure to adduce any evidence as to why that evidence was not called in his case.
I have inquired of the solicitor for the plaintiff and counsel for the defendant whether any further reasons for judgment are required. I am told that none is so required.
I make the following orders:
1.1. In this order:
(a) "factor" means:
(i) the plaintiff, or
(ii) the plaintiff's solicitor, or
(iii) Andrew Johnson of 4 Progress Street, Quinalow, Queensland, 4403, or
(iv) any other person authorised in writing by the plaintiff who is acceptable to the defendant as a person able to carry out this order peaceably;
(b) "farm" means all that land identified as folio 34/751466, folio 35/751466 and folio 45/751466, being lots 34, 35 and 36 in deposited plan number 751466, parish of Mowle, county of Clarke, formerly known as "the Punkt" and now known as "Do Heaps", 1200 Petroi Road, Lower Creek, New South Wales, 2440;
(c) "goods" means:
(i) various antique motorcycles and motorcycle parts referred to in par 1(l) of the statement of claim and more particularly described in par 7 of exhibit B herein, an affidavit of the plaintiff sworn 11 November 2015, or such of them as may now be able to be identified; and
(ii) a Lamborghini rotary hoe without motor being the chattel described in par 2(d) of the statement of claim herein, described elsewhere as an "antique".
1.2. On or before 4pm on Friday, 10 June 2016:
(a) at a time and on a date suitable to both parties to be arranged by their solicitors,
(b) the defendant admit the factor onto the farm, and
(c) the factor collect the goods and remove them from the farm,
(d) during a period of not longer than 6 hours.
1.3. If the factor be the plaintiff, the parties are to arrange for the presence on the farm of a member or members of the New South Wales Police Force and the plaintiff is required to remain within 20 metres of the or a member of the New South Wales Police Force whilst he is on the farm pursuant to this order.
Insofar as the plaintiff claims damages for detinue, and/or trover and conversion of personal property, I give verdict and judgment for the defendant.
Insofar as the plaintiff seeks an order for the return of any personal property or replevin thereof, the statement of claim is, subject to order 1, dismissed.
I order the plaintiff to pay the defendant's costs of these proceedings.
[2]
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Decision last updated: 26 May 2016