Hibernian Contracting Pty Ltd v Christopher Kennedy

PLEADINGS

1. By Statement of Claim filed 15 of July 2020 the plaintiff claims loss and damage made up as follows (at "pre-theft value" - SOC at [15]): 1. Value of the Truck $100,000 2. Value of the Drill $40,000 3. Value of the Crane $60,000 4. The Plaintiff claims interest pursuant to s 100 Civil Procedure Act 2005 (NSW) ('CPA') At SOC [16] the plaintiff seeks "Further or in the alternative" that the defendant deliver up the Chattels or any of them but this claim was not pressed (confirmed by plaintiff email 31 January 2022, MFI 9). By Defence filed 18 September 2020 the defendant denies the plaintiff's claim.
2. The plaintiff pleads its cause of action in conversion and detinue, alleging that on or about 8 June 2017 when the defendant effected transfer of registration of the Truck to himself (which the defendant admits he did, Defence at [18(e)], it was without the authority, knowledge, consent or permission of the plaintiff that he do so (SOC at [5] and [6]) (which the defendant denies at [18(e)]). That on or about 10 June 2017 the Truck, Crane and Drill were removed from the plaintiff's business premises at Storage by the defendant without the plaintiff's authority, knowledge, consent or permission. (SOC at [7]; however I note that the parties conducted the trial on the bases that Mr Drake drove the Truck and Crane away from the vicinity of Storage on the evening of 9 June 2017, Defence at [18(f)]). The plaintiff alleges that the defendant took possession of the Truck and the Crane (SOC at [8] and [9]) (which the defendant agrees he did, Defence at [8(b)(i)]) and possession of the Drill (which the defendant denies he did, Defence at [8(b)(i)] and [18(g]). The plaintiff claims, and the defendant agrees (Defence at [10(a)]), that the plaintiff has demanded the return of and the defendant has not delivered up the Truck, Crane and Drill (SOC at [10]). The plaintiff claims that the defendant's refusal to deliver up the Truck, Crane and Drill is wrongful (SOC at [11]) which the defendant denies and disputes ever having possession of the Drill (Defence at [9], [11] and [18]). At SOC [12] the plaintiff puts its case: "Via engaging in the conduct referred to in [the preceding referred to paragraphs] (together the Conduct) the Defendant exercised an asserted ownership and possession over the Chattels inconsistent with the Plaintiff's right of possession."
3. In the event that the plaintiff is successful in its case of theft of the Truck, Crane and Drill by the defendant, there could be no real dispute that the defendant intentionally interfered with the Chattels and deprived the plaintiff of possession and/or use of the Chattels.
4. By his Defence the defendant does not admit that prior to his acquisition of the Truck and the Crane, the plaintiff maintained possession, control and ownership and had a right of immediate possession to the Truck and the Crane at any point after the making of the 5 June 2017 agreement and otherwise does not admit the plaintiff's claimed ownership and possessory rights of the Drill (Defence at [3]) The defendant did not assert that the Drill was the subject of the 5 June 2017 agreement but denied possession of the Drill. The defendant's denial that he acquired possession of the Truck and the Crane without authority, knowledge, consent or permission of the plaintiff (Defence at [5]) is further particularised at Defence [18] which sets out particulars of the alleged agreement in further answer to the plaintiff's claim: "Further and in answer to the Plaintiff's claim generally, the First Defendant says: a. That he did have authority, knowledge, consent and permission of the Plaintiff to submit an Application for Transfer of Registration to the RMS of the Motor Vehicle; b. That such authority arose from an agreement between the First Defendant and Martin Breen made on or about 5 June 2017 ("Agreement"); c. The circumstances of the Agreement were that: i. In or around May/June 2017 the First Defendant contacted Martin Breen and asserted an intention to commence proceedings against Martin Breen and/or Kingdom Group Pty Ltd (ACN 165 522 903) ("Kingdom"); 1. The causes of action or claim for relief pertained to Martin Breen lodging or causing to be lodged a Form 484 with ASIC recording the 'transfer' of the First Defendant's 100 ordinary shares in Kingdom Group Pty Ltd (ACN 165 522 903) ("Shares") to Martin Breen being ASIC Form 484, Electronic Lodgement Document No. 7E6107575 ("Form") in circumstances where: a. The Form was lodged without the First Defendant's authority, knowledge, consent or permission; b. The First Defendant had never consented or agreed to transfer the Shares to Martin Breen; c. No transfer form had been signed by the First Defendant in respect to the Shares; d. No communication had occurred between the First Defendant, Kingdom and/or Martin Breen in respect to any purported cancellation or destruction of the First Defendant's share certificates; e. Kingdom may have recorded in its members register that the Shares had been transferred to Martin Breen and if so, this had occurred without the First Defendant's authority, knowledge, consent or permission; d. The material terms of the Agreement were that: i. In exchange for the First Defendant forbearing from commencing proceedings, or taking any other adverse steps against Martin Breen and/or Kingdom, Martin Breen would transfer or cause to be transferred to the First Defendant, items of an agreed equivalent value to the Shares, that being the Motor Vehicle and the Crane; 1. Particulars: a. The Agreement was partly oral, partly in writing, partly by way of conduct and partly implied: i. To the extent that the Agreement was oral it was made in telephone calls occurring between Martin Breen and the First Defendant occurring on or before 4 June 2017 the material substance of which are set out in paragraph 18.c. above and at the meeting between Martin Breen and the First Defendant at Rose Hill NSW on 5 June 2017 ("Meeting") where Martin Breen informed the First Defendant of the location of the Motor Vehicle and Crane and said to the effect that it would be left locked and parked on Grand Avenue in Rosehill, NSW and could be collected from that location on and from 8 June 2017; ii. To the extent it was in writing, at the Meeting: 1. The First Defendant and Martin Breen signed the document titled "Sale of 100 (33%) shares of" dated 5 June 2017 whereby the First Defendant's Shares were transferred to Martin Breen; 2. The First Defendant and Martin Breen signed the document titled "Receipt for Sale" dated 5 June 2017 whereby the Motor Vehicle and Crane were transferred to the First Defendant in exchange for the Shares; iii. To the extent it was by way of conduct, at the Meeting Martin Breen gave the First Defendant the key to the Motor Vehicle. iv. To the extent it was implied, it was implied that no money would be exchanged between the parties in respect to the Shares or the Motor Vehicle and Crane, but rather the transfer of the Motor Vehicle and Crane would operate by way of set-off for the agreed monetary value of the Shares; e. On 8 June 2017 the First Defendant attended RMS and completed an application to transfer form and caused the registration of the Motor Vehicle to be recorded in the First Defendant's name. f. On 9 June 2017, Charlie Drake, on behalf of and at the instruction of the First Defendant, attended and collected the Motor Vehicle from a public roadway, Grand Avenue in Rose Hill, using the key provided by Martin Breen to the First Defendant; g. At the time Charlie Drake collected the Motor Vehicle, the Crane was affixed to the Motor Vehicle but there was no Alleged Drill Machine affixed to or contained in, the Motor Vehicle."

REAL ISSUES

1. In my opinion, the contest of whether or not the plaintiff had actual possession or an immediate right to possession or neither at the time Mr Drake drove the Truck away on the evening of the 9th of June 2017 requires a realistic commercial approach and later in these reasons I determined the issue in the plaintiff's favour.
2. The principal issue is whether or not the plaintiff is successful in its case that acquisition of possession by the defendant of the Truck and the Crane was repugnant to the plaintiff's actual right to possession or immediate possession of those chattels. The parties agree that determination of that principal issue turns on whether or not the defendant stole the Truck and Crane or acquired possession, as he said he did, pursuant to an agreement made between MB for and on behalf of the plaintiff and himself on 5 June 2017. In other words, whether the defendant acquired the possession of the Truck and Crane with the plaintiff's permission. The parties dispute which of them bears the onus of proof of that agreement. It is quite obvious, and the parties agree, that issues of credit of the principal witnesses are significant in the determination of the result of the principal question of whether the defendants' acquisition of possession of the Truck and Crane was with the permission of the plaintiff because it was pursuant to the agreement the defendant alleges was made on 5 June 2017 or was by theft of those chattels conducted or organised by the defendant. In the event that the plaintiff succeeds in its case of theft; then it follows, that the plaintiff will succeed in its claim also concerning the Drill because its case of theft of the Truck and the Crane, whilst the Drill was on the truck will have been accepted.

ONUS OF PROOF/PERSUASION OF PROOF

1. The plaintiff makes the following two grave allegations against the defendant: 1. That he organised with the assistance of Mr Drake the theft of the Truck upon which the Crane was affixed and the Drill was loaded; and 2. That he fraudulently achieved transfer of registration of the Truck to himself by use of a false receipt for sale of the Truck upon which he forged the initials of MB as the signature of MB.
2. Pursuant to s 140(2) Evidence Act 1995 (NSW), the plaintiff's allegations of break and enter and commit larceny and of fraud, require me to be conscious of that grave nature of the conduct alleged against the defendant when considering the answer to whether or not the evidence persuades me on the balance of probabilities.
3. Dixon J, stated in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361-362, the following passage, often quoted for application of the principle: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency."
4. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 ALJR 170; (1992) 110 ALR 449; [1992] HCA 66 at [2], the plurality (Mason CJ, Brennan, Deane and Gaudron JJ) explained application of the Briginshaw principle, as follows: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud [case law cited]. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear [case law including Briginshaw v Briginshaw cited] or cogent [case law including Briginshaw v Briginshaw cited] or strict [case law including Briginshaw v Briginshaw cited] proof is necessary "where so serious a matter as fraud is to be found" [case law cited]. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct [case law cited] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."
5. Most recently, in Nguyen v Tran [2018] NSWCA 215, at [62], and Musa v Alzreaiawi [2021] NSWCA 12, the Court of Appeal stated that s 140(2) and application of the Briginshaw principle does not provide a standard of proof other than, on the balance of probabilities.

MARTIN BREEN - THE PLAINTIFF'S CENTRAL WITNESS

1. MB, in his affidavit 22 February 2021 ('MB's First Affidavit') at [7] and [8] claims that in a transaction between August 2012 and July 2013 organised by him, MF & DB Excavations Pty Ltd (shown in Exhibit J to be a company operating from Lane Cove, NSW, Australia) agreed to fund by "a private loan" purchase of the Truck and Crane for "my business"; and, inconsistently, that MF & DB Excavations Pty Ltd "purchased" the Truck and Crane from a company in Ireland called Long Haul Commercials. He deposed that "a copy of the Tax Invoice issued by Long Haul Commercials" dated "4/09/2012" (MB-01 page 5/CB page 58) evidenced that transaction. I found this to be commercially embarrassing affidavit evidence given the following.
2. That invoice named Contracting as the purchaser, described the price in Australian dollars, $105,922.66 for the Truck and $65,461.33 for the Crane, making a sub-total of $171,384 plus GST of $17,138.40. Exhibit 6 is a Green & Co Shipping Services invoice dated 2 January 2013 showing MF & DB Excavations Pty Ltd was consignee of the Truck and Crane in Australia. MF & DB Excavations Pty Ltd documents within Exhibit J show that company instructed and paid Long Haul Commercials for repair, restoration and other work bringing the Truck into Australian compliance for shipping.
3. MB-01, at page 6/ CB page 59 (and Exhibit 4) is the Truck's registration certificate, renewed to Holdings, not the plaintiff, on 11 March 2017.
4. Counsel for the plaintiff opened the case referring to the tax invoice at MB-01 page 5/CB page 58 as the invoice issued by Long Haul Commercials to the plaintiff. In oral evidence in chief MB confirmed that his evidence is that that invoice was issued by the Irish company: T25.10-36.
5. In cross-examination, MB agreed that in 2012 the Republic of Ireland traded in Euros but that the invoice exhibited to his affidavit and referred in his evidence in chief was in Australian dollars. Nevertheless, he again answered that he received the tax invoice from Long Haul Commercials directed to the plaintiff, priced in Australian Dollars, this time stating "I would have received it at a later date", after the plaintiff was incorporated: T25.49-26.05. He gave that date as 2013. Then, when the documents were put to him, MB conceded that the plaintiff did not exist on the date of 4 September 2012 the invoice exhibited at MB-01 page 5 /CB page 58 to his affidavit. Eventually he conceded that the plaintiff did not purchase the Truck and Crane from Long Haul Commercials.
6. He then conceded that MF and DB would have received the original "invoice" (Exhibit J - CB page 872 - 873) from Long Haul Commercials. He conceded the detail of the original invoice identified MF & DB Excavations Pty Ltd as purchaser, the Truck and Crane to have been identically priced at €50,000 (Exhibit J - CB page 872-873) and the freight from Ireland to have been in the sum of €10,480.63.
7. Exhibit 7 shows the Reserve Bank of Australia exchange rate for Australian Dollars to Euros on 4 September 2012 to have been 0.8147. Whilst referring to the Australian Dollar price for the Truck in the tax invoice at MB-01 page 05/CB page 58, the Euros price for the Truck in the original invoice (Exhibit J - CB 872-873), and the currency exchange rate, Senior Counsel for the defendant put the following questions and MB gave the following answers: Q. Well, A$105,000 is in no way equivalent to what 50,000 euros were worth in September 2012. That's correct, isn't it? A. I don't know the answer to that. It's Q. Well, if on 4 September 2012, A$1 bought 81 euro cents, then the exchange rate. It's more favourable to Australia than two to one. So - but you're $105,000 figure in this invoice is more than double the 50,000 euros that were in fact paid for the truck. Isn't that right? A. I believe the agreed figure to pay for the truck was $171,000 including the crane. So, I'm sure where the question about euros Q. I've taken you already, sir, to what you agreed is the original invoice from the Republic of Ireland, owner of the vehicle, Longhaul Commercials, and that, as you agreed, had you paying about 50,000 euros for the truck and another 50,000 euros for the crane. However, in this version of the invoice, that you say is an updated invoice, that you had sent the year after, the figure of the crane is rendered as A$65,000, which at least bears some reasonable resemblance to 50,000 euros, but the truck, instead of having a figure that is very similar to the crane figure, as the two were almost exactly the same price in the original invoice, has got a figure of $105,922.66, do you see that? How do you explain that, sir? A. As I said, the figure that was agreed with M - MF & DB Excavations, is the figure I'm familiar with. There was some over and backward invoices before that in euros, but it was the Australian dollars that was agreed upon. I'm not sure about the conversion rate to dollars or euros, I'm not familiar with that. Q. You're not familiar with that, even though I told you the figure and what the precise figure was. Is that right? A. I remember you saying it was 80 cents to the dollar. Q. So, the fact is this, isn't it, this invoice at page 58 is not an authentic invoice in relation to the purchase of the truck arm and crane from Longhaul Commercials. That's correct, isn't it? A. No, that's not correct. Q. First of all, this invoice, falsely suggests that Hibernian Contracting Pty Limited purchased the truck and crane, when really the purchaser was MF & DB Excavations, correct? CHRYSOSTOMOU: Objection. Your Honour, I object to the - my friend's putting to the witness a document that has not - my friend's putting to the witness a document not prepared by the witness. So I mean, if he wants to, he can do it another way, but the suggestion that it's being falsely prepared, to suggest someone purchased it, there is no suggestion in that document itself that Hibernian Contracting was the purchaser other than to have its name in a box above the - under the Longhaul organisation. HIS HONOUR: Well, let's not give any more barrister's interpretation of a document in contest in the course of cross examination, which the witness can hear and observe. Mr Young, do you want to press the question, or do you want to put it a different way, if you want to press the question, now that the witness should have the opportunity to hear clearly, I'd ask you to repeat it? YOUNG: Well, your Honour, as I can't recall the exact question I asked, perforce I will need to ask a different question, even if it's only slightly HIS HONOUR: The last thing that you had put before that question was, the updated invoice at page 58 suggests the plaintiff purchased the plaintiff being my word, you said contracting. So, the first point you made it was suggested the plaintiff purchased, but in truth, MD & DF(as said) purchased. YOUNG: I'll break it down, your Honour. Q. Now, sir, this invoice at page 58, that would suggest to any reader that Hibernian Contracting Pty Limited, purchased the truck and the crane from Longhaul Commercials, correct? A. Hibernian - no, MF & DB purchased the - they were the - MF & DB organised the finance for the truck. Q. But, sir, you have agreed before that MF & DB were the actual purchasers of the truck from Longhaul Commercials. You've agreed with that already, haven't you, sir? A. I haven't - sorry, can you repeat that question again? Q. You've agreed already, haven't you, sir, that MF & DB were the actual purchasers of the truck from Longhaul Commercials, correct? A. Correct, yeah. Q. But anyone reading the invoice at page 58 of the court book, would get the impression that Hibernian Contracting Pty Limited had purchased the truck, isn't that correct? A. No. MF & DB paid for the truck, they were the financiers, and they organised the truck. Q. You say that you asked for an updated invoice in 2013 and that was somehow page 58 was produced. Is that right? A. That's correct, yeah. Q. And did you ask for an updated invoice that listed Hibernian Contracting Pty Limited as the purchaser, where, in fact, MF & DB was the purchaser. Is that right? A. I asked for an updated invoice, which was Hibernian Contract, managed and took possession of the truck, but MF & DB did pay for the truck, they were the financial - they bought and paid for the truck, yes, and I had an agreement with them in place to pay them back. Q. You say that Longhaul Commercials provided you with the page 58 invoice? A. Yes. Q. And you asked them to take the previous invoice that they had sent in September 2012, take out the name MF & DB Excavations Pty Limited and substitute the name Hibernian Contracting Pty Limited. Is that right? A. Yes. Q. And you told them to put some amounts in Australian dollars in the invoice when the original invoice had euro dollars. Is that right? A. I'm not sure if the original invoice had euro dollars. Q. Well, I've taken you to the original invoice and I'll take you to it again, sir. A. Yeah. Q. At court book page 873 and 874 - sorry, 872 and 873, you've agreed with me already that those amounts were in euros, haven't you? A. 874. Q. 872 and 873, sir. A. Yes. Q. And that the original invoice had approximately 50,000 euros being paid for the truck and 50,000 euros being paid for the crane. You agreed previously with that, didn't you? A. I agree with - you mentioned it was an original invoice, but from my recollection, there was invoices over and - over and back between Longhaul Commercials and MF & DB, and I thought the last invoice would have been in dollar, if that - MF & DB asked for it. Q. And you caused an invoice to be prepared - that's at page 58 of the court book - that had a greatly inflated figure for the truck, correct? CHRYSOSTOMOU: I object to the question. There are a number of propositions in that question, your Honour. HIS HONOUR: I'll allow it. YOUNG Q. So what's your answer? A. So on page 58, that was an agreed figure that MF & DB agreed to pay Longhaul Commercials. (T28.40-31.30).
8. To my observation, as MB gave this evidence he was reluctant to make the concessions that he had organised the invoice exhibited MB-01 page 5/CB 58 to his affidavit (despite its date) well after the Truck was purchased, expressing a price for the Truck, not truly representative of the price paid to Long Haul Commercials but instead highly inflated, and representing the plaintiff as being the purchaser when, in fact, MF and DB Excavations Pty Ltd was. Those factual concessions should have been readily made by MB, he being a commercial person. His difficulty at conceding the obviously inflated price for the Truck once given the exchange rate was surprising given he operates in the construction industry dealing with pricing, numbers and measures. I considered this part of his evidence to expose him as an evasive and unreliable witness.
9. I considered his following denials to be unreliable evidence and was concerned that they were consciously untruthful: A. So on page 58, that was an agreed figure that MF & DB agreed to pay Longhaul Commercials. [note this is a reference to the invoice exhibited to his affidavit MB-01 page 5/CB 58] Q. The agreed figure couldn't both be 50,000 euros for the truck and A$105. It's just impossible, isn't it, sir? A. That is impossible, yes. Q. The $105, 922 figure on page 58, that is a false figure that you caused to be inserted in that invoice. Isn't that right? A. No, that's not right. Q. Because you wanted to pretend that more had been paid for the truck than had actually been paid. Isn't that right? A. No. Q. And you also wanted to pretend that the plaintiff company, Hibernian Contracting Pty Ltd was the owner of the truck when it wasn't. That's what you were trying to pretend, wasn't it? A. No. (T31.29-46).
10. Exhibit J includes a schedule of "Loan Repayments Report (Lease Calculation) for the 'Hibernian lease'". It shows that 48 monthly payments of $3907.73 were to be made to MF & DB Excavations Pty Ltd. The schedule does not identify payments with either the plaintiff or Holdings. The General Ledger of MF & DB Excavations Pty Ltd for the period of 1 September 2012 to 30 June 2013 shows purchase on 9 December 2012 from Long Haul Commercials in the sum of $129,964.42 which meets the Euro price in the original Long Haul Commercials invoice to MF & DB Excavations Pty Ltd, priced, at the conversion rate to Australian dollars. The General Ledger for that company for the period 1 September 2012 to 30 June 2017 shows that the payments under the "Hibernian lease" commenced on 19 July 2013 when the company received the first payment and continued monthly thereafter to the 17th of May 2017.
11. Primary emphasis should properly be placed on the objective factual surrounding material and the inherent commercial probabilities, together with the legitimate documentation tendered in evidence: EFFEM Foods Pty Ltd (t/as Uncle Ben's of Australia) v Lake Cumbeline Pty Ltd (1999) 161 ALR 599. Particularly at [15] of his first affidavit, MB's oral evidence was implausible because:

• If MF and DB Excavations Pty ltd had "asked for" Long Haul Commercials to provide a last invoice in Australian dollars, the invoice would name MF and DB Excavations Pty Ltd as the purchaser, not the plaintiff;
• Had MF and DB Excavations Pty Ltd, sought an "updated" (as MB referred to it in his oral evidence) invoice, the price stated for the Truck would not be A$105,000, but rather A$129,000, as stated in its General Ledger;
• His denial that the A$105,000 price for the Truck alone, stated in the invoice was "a false figure", I found to be unacceptable evidence given that he was aware of the exchange rate and his admission that the figure was "impossible" to achieve mathematically;
• In the circumstances of his evidence not identifying the involvement of persons other than himself, MF and DB Excavations Pty Ltd, and Long Haul Commercials, on the whole of his answers in oral evidence, his denial that he caused the "false figure" purchase price to be included in the document exhibited to his affidavit, is unacceptable; and
• Given ample opportunity to do so, MB failed to provide a commercially probable explanation for the invoice exhibited to his affidavit at MB-01 page 5/CB page 58, which was shown to be a commercially implausible and probably false document.

1. The inconsistent statements in MB's first affidavit at [7] and [8] ought to have been easily explained by him in oral evidence and in accordance with the above referred to documentation. Plainly, MF and DB Excavations Pty Ltd purchased the Truck and Crane from Long Haul Commercials and as owner, entered into a "lease" purchase with a Hibernian entity.
2. At [10] of his first affidavit, MB deposed that "Contracting took possession of the Truck and Crane and commenced making payments to MF & DB Excavations" and at [11] that Holdings "was the registered operator of the Truck". It is common ground that the Truck to which the Crane was fixed at all times, was until 8 June 2017 registered with NSW Transport, Roads and Maritime Services (as now known) to Holdings. There is no documentary evidence of the plaintiff paying the "lease" instalments to MF and DB Excavations Pty Ltd. The defendant's oral evidence included that the plaintiff made the lease payments until he left the business in 2014. In evidence in chief, MB described the "role" of Holdings as "…a holding company for the crane/truck. That's all it does, it holds some plants (sic) and equipment…Contracting operates and manages all the plants (sic) and equipment from that holding company." (T23.30). At T25.05, in cross examination, MB conceded that Holdings stored the Truck and Crane at Storage.
3. In cross-examination it was put to MB that he lied to Zurich Australia Insurance Ltd when claiming for loss of the Truck and Crane. The claim documentation is Exhibited to his affidavit at MB-01 pages 60-72/CB pages 113-125. The matters put as lies in his statement made 29 June 2017 to Ms Spiers, insurance investigator, Triton Investigations Group are:

• At [20] that in relation to a prior claim of theft concerning a Kubota excavator which was in the sum of $25-30,000; he told Ms Spiers: "I cannot remember when the claim was through for that one but it was paid in full."; and
• At [26] that he told Ms Spiers that he was "a little in the dark as to the exact nature of that issue" when speaking of the police inquiry concerning the Truck being registered to the defendant at the time of the alleged theft, and that "Police did mention a name, which I was familiar with, Christopher Kennedy. I don't know what if anything he has to do with the matter, and that Police have not enlightened me as to why they even mentioned his name…But again I say that I have no idea what if anything he could even have to do with this matter. The truck was registered under Hibernian and Hibernian is solely owned by me".

1. That this later statement was a lie to Ms Spiers is exposed at [73]-[76] below.
2. The 2011 Kubota excavator, the subject of the prior claim, had been insured by Holdings with Wesfarmers General Insurance Ltd t/as Lumley Insurance for $65,000; Exhibit 1. On 19 December 2014, payment was received into the Westpac Everyday Banking Account of the plaintiff in settlement of that claim, from Wesfarmers Insurance in the sum of $60,089.
3. MB confirmed that it was claimed that the 2011 Kubota excavator went missing in 2014 from a job in the Blue Mountains. When in cross examination it was put to him that in fact the settlement was $60,000, a sum approximately twice that disclosed to Ms Spiers, MB answered that he was not sure that $60,000 was the "exact figure": T32.33. When shown the Westpac account entry, he conceded that it was. He then conceded that he had informed Ms Spiers of an incorrect amount of the claim. He denied that at the time he made the statement to Ms Spiers, he knew the amount was incorrect: T36.10-15. He denied that when being interviewed by Ms Spiers, he recalled Wesfarmers to be the insurer: T36.26. MB gave the further following denial: Q. I suggest to you, sir, that you deliberately didn't tell her who the insurer was previously, so she couldn't make any check and find out that, in fact, you lied about the amount of money you got for that claim. That's correct, isn't it? A. That's not correct. (T36.29-33).
4. As I heard this evidence, I considered it difficult to accept that his answers concerning his statements to Ms Spiers were truthfully given. When MB spoke to Ms Spiers less than 3 years had passed since receipt of the substantial insurance settlement for the Kubota 2011 excavator. Not only was the settlement in a significant sum, but that excavator must have been a significant piece of equipment in MB's business operation. His evidence was that Holdings only had registered to it 3 or 4 vehicles (T24.35) and across the whole of his evidence, particularly in regard to machines working the Waverly Cemetery job, he displayed a comfortable knowledge of the several pieces of equipment the Hibernian business operated. His answers did not meet with the knowledge of the 2014 loss of the 2011 Kubota excavator which I would expect he truly possessed in 2017.
5. MB was then shown Exhibit 3, being an invoice issued by Australian Hammer supplies to "Hibernian Constructions Australia" in which the correct details for the 2011 model, 4 tonne Kubota excavator including serial number, engine number, chassis number are recorded. Hibernian Constructions Australia was a business operated by the defendant, not by MB. The invoice was issued 26 March 2018.
6. MB denied that the 2011 Kubota excavator was in truth never stolen and that his business retained it notwithstanding making the insurance claim on Wesfamers Insurance. That evidence was: Q. Yes, well, if you go back to what's now exhibit 1, the insurance advising that document, you can see that item 9, the 2011 Kubota, that was insured for 65,000, that's got a VIN of 70376 and an engine number of AS4809. And the numbers 70376 and AS4809 appear on this service invoice, isn't that right? A. That's correct. Q. It's the case, isn't it, sir, that the Kubota excavator that you made an insurance claim in relation to in 2014, that was never stolen, at all, was it? A. You're incorrect. Q. And you, in fact, hung onto that excavator and kept it, notwithstanding that you had been paid more than $60,000 as an insurance pay out? Isn't that right? A. That's not right, no. (T38.33-45)

THE PRECEEDING DISPUTE - THE 27 MARCH 2015 DEED

1. Each of MB, his brother, DB and the defendant relied on affidavit evidence and there was substantial cross-examination concerning their relationship prior to June 2017. In my view, that background evidence, can be dealt with briefly. Its relevance is to the central factual issue that whereas the plaintiff says the defendant stole or organised Mr Drake to steal the Truck, the defendant says that the Truck and Crane were acquired by a 5 June 2017 agreement made with MB on behalf of the plaintiff in a contra exchange valued at $80,000 for the defendant's interest in shares in Kingdom Group Pty Ltd. The plaintiff says no such agreement was made and it did not participate in such a transaction, all disputes from their earlier dealings having been resolved in the 27 March 2017 deed ("the Deed").
2. The parties agree that the defendant and his brother Padraic Kennedy were involved in the plaintiff company, Contracting, from about 2013. A separate business in which MB and the defendant were then engaged was Kingdom Labour Hire Pty Ltd. The parties referred to this as "Kingdom Group" in the course of the proceedings. A third participant in the company was Mr Patrick Phelan. Kingdom Labour Hire Pty Ltd was to provide contract labour to Mr Phelan's business Bilbergia, a property development firm. In mid-2014, the defendant's shares in Kingdom Group Pty Ltd were transferred to MB. The defendant says that occurred without his consent. By August 2014, relations between MB and the defendant had deteriorated. In September 2014, they discussed separation of their business relationship. There was great distrust between them. Their mutual dislike continues.
3. In October 2014 the defendant unilaterally transferred $123,000 from the plaintiff's bank account to another bank account under his control. The defendant's brother Padraic transferred registration of two vehicles from either the plaintiff or Holdings to his company Quay Civil Pty Ltd. In October 2014 MB caused the plaintiff to proceed by summons in the Supreme Court of NSW against the defendant and Padraic. On 27 March 2015 the parties to these proceedings and Padraic entered into the Deed.
4. It is that Deed which is exhibited at MB-01 pages 31-41, CB pages 84-94 which permits brevity when dealing with this part of the evidence. The Deed was made between the plaintiff and the defendant, Padraic Kennedy, MB, and Holdings. It is a formal agreement reached between commercial parties whilst legally advised. At recital J, "the Dispute" is defined as including the disputes between the parties identified in Recitals A - H. None of those matters concerned Kingdom Labour Hire Pty Ltd, Kingdom Group or the dispute concerning the defendant's interest in shares in Kingdom Group. Recital K defines "the proceedings" as the Supreme Court proceedings which involved the property and funds of the plaintiff and noted that the defendant and Padraic Kennedy had leave to file a cross-claim in those proceedings seeking the winding up of the plaintiff. Recital O provides "without admission, the parties have agreed to settle all claims arising out of the Dispute and the Proceedings." Terms and Conditions paragraph 1 included a list of "Other Issues" amongst which is no mention of Kingdom Labour Hire Pty Ltd, Kingdom Group or a dispute concerning shares in such entities.
5. The parties did not expressly settle any dispute between them concerning shares in Kingdom Labour Hire Pty Ltd or Kingdom Group, or whatever entity was involved in what the parties in the course of the evidence referred to Kingdom Group. The Deed is objective, factual material making it inherently improbable that the parties resolved their Kingdom Labour Hire Pty Ltd or Kingdom Group dispute on 27 March 2015.
6. Whilst dealing with the Deed it is expedient to note that each party warranted that they had no involvement or dealings with the disappearance of the 2011 Kubota 4 tonne excavator. I do not find that entry persuasive in favour of either party. I have already discussed the significance of evidence concerning an insurance claim for recovery concerning that machine.
7. Emails between the defendant, MB and Mr Oke, accountant for the plaintiff, in 2014 and 2015 contained in Exhibit CK-1 at CB pages 539-542 to the affidavit of the defendant made 27 April 2021, evidence the nature of the defendant's claim concerning transfer of his shares in Kingdom Group without his authorisation.
8. Correspondence between solicitors of the parties in September 2014 and an email from the defendant to MB sent to October 2014 concerning the $123,000 transferred to "a trust account" in order to "secure some of the monies in the Hibernian accounts" appear at CK-1, CB pages 528-536. These documents are consistent with the defendant's further claim that his transfer of the monies was openly disclosed. The defendant deposed at [52] and [68], that the transfer of the monies was to secure funds against the risk of MB absconding with them and that he did not instruct his solicitors to include the Kingdom Labour Hire Pty Ltd or Kingdom Group share dispute for resolution in Deed because he did not have the resources at the time to afford the legal costs and fees of litigating that issue and did not want the settlement discussions to become more complicated and costly. Having observed him be cross examined on those paragraphs, I accept his evidence. Not only do I assess it as given truthfully but when considered with to the objective factual documentary material, it meets the likely commercial probabilities.
9. MB did, during cross-examination, concede that he knew the Deed was silent in regard to Kingdom Group shares, but when pressed that he knew that dispute remained unresolved, he gave the unlikely or naïve answer: "I didn't think there was any more claims at the time.": T40.49.
10. Whether or not that is a true description of his state of mind on 27 March 2015, the circumstances were that he was aware of the defendant's complaints that transfer of his shares, on MB's instructions, to Mr Oke was unauthorised. It is not difficult to accept that on the defendant at a subsequent time revisiting it, MB would have known what the substance of the dispute was. As MB properly conceded (T41.10-20), even if he didn't know that the defendant would make a claim in relation to Kingdom Group, he did know that the Deed would not stop it.
11. It is agreed that from the date of the Deed until the disputed circumstances of the alleged conversion of the Truck in June 2017, the parties did not communicate because of their mutual dislike. The qualification to this is that the plaintiff says they did never communicate, whilst the defendant says that they had communications concerning resolution of what the parties refer to as the Kingdom Group shares dispute. I repeat, this is the dispute which the defendant says was resolve on the transfer of the Truck from Holdings to him.

POSSESSION OF TRUCK, CRANE AND DRILL

1. The evidence of MB at [11] of his first affidavit, and his oral evidence (in chief T23.27-24.04 and cross examination at T25.05-09) is that the overall business operation of Holding and the plaintiff was in 2017 managed by himself. He was the controlling person of each of those companies. The Truck, Crane and Drill owned or asset managed by Holding were controlled and operated during the day by staff of the plaintiff at sites to which the plaintiff took the machinery to perform excavation and construction works. There is no evidence to the contrary or which provides finer detail of the operational control of the Truck. The defendant concedes that if the plaintiff had possession or immediate possession; then, it had standing to sue in these proceedings. But the defendant submits that in those circumstances, the plaintiff did not have either possession or the immediate right to possession whilst the Truck, Crane and Drill were at Storage because they were in the possession of Holdings.
2. In my opinion, it is unnecessary to determine the technical legal distinction advanced by the defendant. It is unnecessary also to determine whether the plaintiff had actual possession or an immediate right to possession at the moment of the alleged theft from Storage. This is because the circumstances were that MB as the controlling hand of both the plaintiff and Holdings, in reality, retained possession of the Truck and affixed Crane in the plaintiff as seen by its apparently unlimited use and placement of the chattels. If this be wrong; then, even if Holdings as asset manager, housed the chattels at Storage, the plaintiff had an exclusive, immediate and unlimited right to possession to the Truck, Crane and Drill at any time for whatever use MB determined.

ONUS OF PROOF OF AGREEMENT

1. The plaintiff submits that the defendant bears the onus of proof of the agreement which the defendant alleges he struck with MB on 5 June 2017 for transfer of the Truck and Crane in satisfaction of his claim concerning the Kingdom Group shares. In particular, the plaintiff argues that this proposition finds support in Nguyen v Tran [2018] NSWCA 215 at [100]. In Tran the Court of Appeal was dealing with the question of which party bore the onus of proof in circumstances of the defendant insurer having pleaded that the plaintiff Tran was not a passenger in a vehicle at the time of a motor vehicle accident. Having considered all of the evidence the trial judge had observed that the allegation that Tran was not in the vehicle was a grave one and amounted to fraud on his part. Her Honour considered that therefore, the defendant bore "a tactical burden" to show that Tran was not in the vehicle and that there needed to be "clear or cogent or strict proof" in order to make out the defence on the balance of probabilities: at [99].
2. The Court of Appeal found the trial judge in Tran to have erred. At [100]-[101] the Court explained: "The approach adopted by the Primary Judge was erroneous. Mr Tran was required to establish, on the balance of probabilities, that he was a passenger being driven by Ms Nguyen. Under s 140 of the Evidence Act, in deciding whether, on the balance of probabilities, Mr Tran was passenger in the vehicle, it was open to the Court to take into account the nature of the cause of action, the nature of the subject matter of the proceedings and the gravity of the matters alleged…, it was for Mr Tran to prove his case. The mere fact that a defendant denies an allegation made by a plaintiff does not transfer any burden of proof to the defendant. The defence does not make any relevant allegation against Mr Tran, it simply denies that he was a passenger in the car… Of course, had the claim to recover monies paid to Mr Tran been pressed on the basis of a fraudulent misrepresentation, the clear onus would have been on the party making the assertion. That was a matter for a cross claim."
3. During closing submissions, the plaintiff stepped back from reliance on Nguyen v Tran but nevertheless maintained that the defendant bore the onus of proof of the agreement that the defendant alleged was made on 5 June 2017 and that the plaintiff denied.
4. The plaintiff's premise, put in final oral and written closing submissions (MFI6 at [44]-[49]), is that conversion being an intentional tort, proof of lawful justification rests with the defendant. The plaintiff relies on no authority other than the Law of Torts, Flemming, 10th Edition at page 70. My reading of that learned author's text does not support the plaintiff's proposition.
5. The history of the development of and the present nature of the tort of conversion is thoroughly explained in the reasons of Allsop P (as his Honour then was) with whom Giles and Macfarlan JJ agreed in Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 at 455-461; [2011] NSWCA 342. His Honour explained that the essence of conversion is a dealing with a chattel repugnant to the immediate right of possession or possession of the owner.
6. In this case, the plaintiff points to the transfer of registration of the Truck from Holdings to the defendant on 8 June 2017 and the alleged taking of the Truck between 5:30pm 9 June and 6:30am 10 June 2017 as the dealing which was repugnant to the plaintiff's right to possession of the Truck and the Crane. In relation to the Drill only the taking was the dealing. There is no direct evidence of the taking. The plaintiff concedes that if the agreement be found; then the plaintiff must lose.
7. In the course of his discussion of the case law, Allsop P referred to the requirement of taking of possession of the owner without authority at [130], that the interference with the plaintiff's then possession must be not be "justified" (at [130] and [133]) and generally that for there to be a conversion, the sufficiency of the impugned act or dealing must have the quality of interference which would not in the real commercial context, be excused.
8. In my opinion, it is a component of the plaintiff's onus of proof of its cause of action in conversion to satisfy the Court on the balance of probabilities that the shift of possession to the defendant was without the plaintiff's permission. The 5 June 2017 documents (admitted without objection) are some evidence of the plaintiff's permission by agreement. Therefore the plaintiff's onus is to prove that the parties did not make that agreement on the 5 June 2017. If the plaintiff fails to establish that fact, then there was no repugnant interference with the plaintiff's possession.
9. In these proceedings, the defendant does not sue for recovery and accordingly does not bear onus of proof of the agreement. In these proceedings, the plaintiff bears the onus of proof that the transfer of possession was without the authority, knowledge, consent or permission given by MB as the alter ago of the plaintiff.
10. Pursuant to section 140(2), in order to succeed, the plaintiff must persuade the Court to the standard of balance of probabilities that the defendant committed the grave act of participating in a break and enter of Storage and larceny of the Truck, Crane and Drill and in the fraudulent transfer of registration of the Truck by creation of and presenting to RMS a false document of receipt of sale of the Truck. The documents in evidence are dated 5 June 2017 and bear signatures purporting to be of MB and the defendant. As the case was run, the plaintiff alleges that the defendant fraudulently entered MB's initials as his signature on each of those documents.

THE THEFT, OR TRANSFER OF THE TRUCK - PLAINTIFF CASE

1. The plaintiff case is that the conversion, in circumstances of theft, occurred sometime between the Truck, Crane and Drill being left within the locked and fence secured yard at Storage at close of business, Friday 9 June 2017 and discovery of them missing at about 6:45am 10 June 2017 by MB's father, JB.
2. The plaintiff case is that JB arrived at Storage first, in order to retrieve his mobile phone which he had left there the day before. On arrival he saw that the "lock on the gate had been cut and was broken. The gate was closed but unlocked": affidavit of JB 18 February 2021 at [14]. He saw that the truck was gone from the yard. He used his mobile phone to call his son DB, which conversation is set out at [18] of JB's affidavit as follows: JB: The Truck is missing from the yard; did you take the Truck? DB: No I didn't. It must have been stolen. What are you doing at the yard? JB: I came to get my phone, I left it here yesterday DB: Okay, I'll call the police.
3. DB's regular employment involved him driving the Truck. Why it was that JB, having observed the lock on the gate to have been cut off, would ask DB whether he had taken the Truck, is not a matter which was investigated in cross examination.
4. At [24] of his affidavit made 22 February 2021 DB deposed to that alleged conversation but with some expansion. His evidence is: JB: The truck is gone; did you take the truck? DB: No I didn't. I parked it in the yard last night. JB: The gate is open, the padlock is gone, and the Truck is gone. DB: It must have been stolen. It had the drill on it too. What are you doing in the yard? JB: I came back to get my phone, I left it here yesterday. DB: I'll call Martin now.
5. In this more expansive recount of the conversation, DB included his father JB telling him that the padlock was gone. The evidence, including photographs is that the lug through which the padlock ran and from which it hung had been cut from the gate. Neither JB nor DB asked why DB would have informed JB that he had parked the Truck in the yard on Friday evening and that the Drill was on it when on the plaintiff case, JB was present when DB parked the Truck within the yard before they left Storage together at the end of the work day on 9 June 2017.
6. Whilst considering the evidence by affidavit and given orally I thought those features of the conversation deposed to by JB and DB were curious. The evidence is that DB was the regular operator of the Truck. It occurred to me to be extraordinary that he would, or that JB would contemplate that he would, destroy or cut off the locking components to open the gate, in order to enter Storage, to access the Truck.
7. Before going to Storage himself, it is alleged that DB telephoned MB: DB affidavit at [25]; MB first affidavit at [56]. At [56] of his first affidavit, MB deposed that DB also told him that he had parked the Truck at Storage at 5:30pm on Friday afternoon and locked the gate when he left. That communication is consistent with MB's evidence that he was not present at Storage on 9 June 2017.
8. On 10 June 2017, whilst MB went directly to Storage, DB went directly to Maroubra Police Station (DB affidavit at [25] and [26]) to report the Truck, Crane and Drill stolen. In the conversation with the police officer, set out at [26] he deposed that when the police officer informed him that the Truck was not registered to the plaintiff, on DB's inquiry on whether it was registered to the defendant, the officer confirmed that it was. At [27] he says that he then called MB and informed him that police had told him that the Truck was registered to the defendant. After that conversation, DB drove to Storage where he met MB to wait for police to arrive: DB affidavit [29]. Why DB thought to ask the police officer if the Truck was registered to the defendant, as opposed to any other person, is not explored in the evidence.
9. Plainly DB's evidence that he informed MB on 10 June 2017 that police had told him that the Truck was registered in the name of the defendant, makes a lie of MB's statement to insurance investigator Ms Spiers, 19 days later (quoted earlier) that he was in the dark as to an "issue" with the registration papers, that whilst police "did mention the name of the defendant" with which he "was familiar", he did not know "what if anything [the defendant] has to do with the matter, and police have not enlightened me as to why they even mentioned his name…I say that I have no real idea what if anything [the defendant] could even have to do with this matter".
10. That statement to Ms Spiers is also opposite the claim MB advances in his second affidavit dated 27 July 2021 at [36] to [44] that on 10 June, the action he took in response to DB's information that registration of the Truck had previously been transferred to the defendant, was to drive around with his father, JB, "to locations" in various parts of Sydney "where I thought [the defendant] may have taken the truck" in an effort to locate it including to the defendant's home address and the last known address of the defendant's brother Padraic as well to addresses which online searching gave as associated with the defendant's friend Mr Drake including the Minto premise at which Mr Drake was employed.
11. MB did not, when given the opportunity to explain these inconsistencies between statements made by him to Ms Spiers on 29 June 2017 and his evidence in the hearing, seek to correct that which was recorded by her. Neither MB nor DB sought to correct the content of the conversation on 10 June 2017 at which DB informed MB that police had informed him that the Truck was registered to the defendant. Either what MB told Ms Spiers was untruthful or his evidence in this hearing is untruthful. They cannot both be accurate.
12. Whilst during oral evidence, JB's version of the driving around, was a little more expansive and closer to MB's evidence; at [22] of his affidavit made 8 months prior to the hearing, JB was only able to recall he and MB "drove around the local area together to see if we could see the Truck on the road again". He mentioned nothing of visiting home and workplace addresses and looking through the fence of the Minto premises from which Mr Drake worked, as is the evidence of MB.
13. MB deposed that what he saw on his arrival at Storage, before DB, was: [57] When I got to Hibernian's Storage Yard I saw that the gate which secured Hibernian's equipment was open. The Truck, the Crane and the Drill were gone. (the Theft) I could see that it looked like the gate had been cut with a grinder or something similar to get the lock off. It also appeared that the thief or thieves had accessed Hibernian's section of the Storage Yard by cutting a hole in one of the side fences. [58] In my opinion, it looked like the thief or thieves cut a hole in the side fence of the Storage Yard to get in, and then cut the lock on the gate to get the Truck out of Hibernian's yard.
14. Neither JB nor DB, in their affidavit evidence, made mention of a hole cut in the side fence of the Storage. I found this curious, given the interest one would expect them to have; however, as they were not cross examined on the point, I cannot find it significant as to the credit of the evidence of MB, JB or DB.
15. Another inconsistency in evidence of the plaintiff case is that whilst JB deposed at [22] that he could recall that MB and himself decided to drive around the local area to see if they could see the Truck on the road but (at [23]) after "some time" they did not see it and returned to Storage; DB (at [30]) said that the three of them, MB, JB and himself "waited all day" at Storage, for the police, who did not arrive. In his affidavit (at [63]) MB deposed that the three of them "waited all day" for the police who never came.
16. At [64] MB says that he telephoned MF and DB Excavations Pty Ltd, to inform them that the Truck had been taken from Storage and to confirm that there were no outstanding payments.
17. To his second affidavit made 27 July 2021, responding to Mr Drake's affidavit, MB exhibited photographs which he took on 10 June 2017 (MB-02 621 and 622) of the Minto premise at which Mr Drake worked and to which he says he took the Truck, showing a sign informing that the property had been "taken back by owner". MB and JB were unable to enter into the Minto premise but MB had deposed that he was certain that the Truck was not there at the time. The time must have been after 10:48am when he obtained the address from an online search of Mr Drake's business Sydney Stablised Products.
18. The plaintiff's case is that the defendant's allegation of an agreement made on 5 June 2017 is a fabrication. It incorporates the further grave allegation against the defendant that he falsified MB's signature on the documents and fraudulently registered the transfer of registration of the Truck.
19. MB gave evidence, that there was no communication toward reaching agreement between himself and the defendant, that they did not enter into any agreement of exchange of the Truck for shares in resolution of the Kingdom Group dispute and that it is not his writing that appears as his signature on each of the Receipt for Sale and the Sale of Kingdom Group share documents.
20. The defendant gave evidence of the making of the agreement and that MB provided to him on 5 June 2017 the Receipt for Sale of the Truck and the Sale of Shares in Kingdom Group documents which they signed, exchanged and then took photographs of the counterpart document: Defendant affidavit 27 April 2021 at [71]-[73]. The defendant said that MB handed him keys to the Truck and Crane and informed him that "the Truck and the Crane will be parked on the street just outside the yard on Thursday or Friday ready to collect. But call me before you come to check exactly when you can pick it up:." To which the defendant responded it would probably be Friday (9 June 2017). MB denied that any of these things occurred.
21. The defendant was a director of Contracting with MB when the deal for MF and DB Excavations Pty Ltd to purchase the Truck and Crane was made. The defendant's affidavit and oral evidence was that, based on that past earned knowledge, he estimated that around June 2017 the lease with MF and DB would have been paid out: defendant affidavit at [27].
22. On 7 June 2017 the defendant performed a PPSR search on the Truck to verify whether or not there were any secured interests registered against it and found it to be clear.
23. On 8 June 2017 he attended Roads and Maritime Services and applied for transfer of registration of the Truck to his name personally. He included the Receipt for Sale of the Truck dated 5 June 2017, and was successful in that transfer of registration. The defendant's evidence is that on that day he telephoned MB and they agreed that the Truck and Crane could be picked up by the defendant or someone on his behalf from about 7:00pm Friday the 9th of June 2017. MB denies that communication occurred.
24. In regard to the Truck, Crane and Drill being at Storage 9 June 2017, MB frankly stated in his first affidavit at [52] that the whereabouts of the Truck, Crane and Drill could only be known to him from that which he was told by DB.
25. Whereas the affidavit evidence of MB (relying on that which he was told by DB) and DB (affidavit at [20] and [21]) was originally that the Truck was driven back from the M2 worksite at about 4:30pm arriving at Storage at approximately 5:30pm 9 June 2017; the Truck's GPS tracker showed that the Truck arrived at Storage at about 2:09pm. MB denied the suggestion put in cross examination that the Truck arrived in the early afternoon permitting time for the Drill to be removed from it because the Drill was not part of the agreed transaction. MB also denied the suggestion put to him that the Drill was not on the Truck on the evening of the 9th of June 2017.
26. It was ultimately put to MB that he had decided to recover the value of the Truck and Crane by making the false claim to Zurich Insurance Australia Ltd that it had been stolen, specifically MB denied the following things put to him: 1. That it was he who removed the Truck's GPS tracker at about 7:26 pm when it ceased to operate according to the GPS log, 2. That he made up the story of the lug for the padlock on the gate being cut off with a grinder, and 3. That he made up the story set out at [56] to [59] of his first affidavit that someone had entered through the side gate and cut the padlock to the main gates because that padlock was protected inside a metal box on the exterior side (not the internal yard side) of those solid front gates. [Comment: MB denied that what he suggested was impossible for anyone to do, but to me it seemed an extraordinary theory of theft as I heard the evidence and considered the photographs of the gates and the external protective metal box in Exhibit A.]
27. Whereas the evidence of MB and JB is that the lug to the gate through which the padlock was looped had been cut out from within the lock protecting steel box and the defendant denies the allegation of break and enter with larceny of the Truck and Crane; if it be accepted that the Exhibit 1 photographs do show cutting of the gate lug, not much would turn on it because if the plaintiff fabricated the break and enter, any of MB, JB or DB could have cut that lug. In saying this, I observe that there was no evidence identifying the cut section of the gate or lug in the Exhibit 1 photographs and there is no expert evidence supporting the plaintiff's allegation of break and enter at all.
28. I early stated my concern that DB's evidence displayed that he had no real recollection of the movements of the Truck on the 9th of June 2017. He opened his oral evidence in chief by correcting the description of events expressed positively and without qualification at [12] to [16] of his affidavit by saying that by having reviewed photographs and videos of the GPS tracker, he had come to a different description of the use of the Truck that day. When referring to that GPS tracker log, he used the expression "looks like" when describing the truck's activity. He said that on the 9th of June he "would have driven" a company van to the M2 site at which he said the Truck was working. This was all to meet the GPS tracker log.
29. His explanation that his affidavit was the best of his recollection when made 4 years after the event, in my opinion, unattractively conveyed the impression that he is a witness who paid inadequate regard to the importance of the reliability of his evidence in this case. His correction exposes unreliability of his memory justifying some degree of caution to be exercised in regard to acceptance of his memory based evidence where it is not corroborated.
30. Whereas in his affidavit at [18] DB deposed that "I regular take photos and videos of the work" which evidence he confirmed in oral examination in chief; in cross examination he was forced to concede that the video of the operation of the Drill on 9 June 2017 was the only time he took such a video in 2017 and that he produced only one earlier video in 2016. When challenged that he took the 2017 video because he was aware it could be used in support an insurance claim to be made, even before the Truck was missing (T98.05) he responded that he was not able to take photographs while he was operating the Drill and the operator of 9 June had just started the work, the 2016 operator having returned to Ireland. Those reasons for no more videos seem to be reasonable and possible; but as cross examination proceeded, he appeared to be a witness who could find answers but I was concerned that his evidence was a reconstruction for the purposes of supporting the plaintiff case.
31. Of his positively asserted (at [12] of his affidavit) invariable practice of driving the Truck and the Drill back to Storage at the end of every work day; he conceded that in fact he had left the Drill at the M2 on the 7th of June when the Truck was required at another job: T98.40. This reconstruction of events came to him on review of the Truck GPS tracker log, he said, the day before giving oral evidence: T98.45-99.06. He denied that he had spoken to someone after MB gave evidence on the preceding day of the hearing. This time his reconstruction of the events somehow permitted him to remember "it started to rain on the morning of the 7th": T98.40. Whilst accepting that reconstruction to be inspired by the GPS tracker log, I was concerned as to how he would have recalled the commencement of rain on that morning, particularly given his affidavit version of events.
32. To me the evidence was part of his presentation of guessing or fabricating an answer in order to meet the obvious challenge as to the reliability of his affidavit evidence and recollection. I say this acknowledging that he wasn't asked nor did he refer to why it was that anything contained in the Courtbook delivered to him before he gave evidence reminded him of that rain.
33. DB made the following admission, which in his own words, does not recommend the reliability of his evidence (T99.21-25): "Q. You realised when looking through the Netstar records that the account that you had given in your affidavit of what you were doing on 9 June 2017 was completely false, and that it would be exposed as false. Isn't that right? A. Well, it wasn't completely false, no." [Note: Netstar is that Truck's GPS tracker system, of the log of which is Exhibit F]
34. Next DB conceded that the event he described at [13] and [14] of his affidavit that on the 9th of June he picked up the Truck from Storage and drove it to the site bearing the Crane and Drill, did not happen.
35. Whereas DB denied that he structured his evidence in order to show that the Drill was on the Truck and the Truck, Crane and Drill were parked at Storage by him at approximately 5:30pm 9 June 2017 at [19] to [22]; he conceded that evidence was also wrong. Faced with the Truck's GPS tracker log he conceded that the Truck returned to Storage at 2:09pm. Challenged on this he gave the following evidence (T101.15-34): Q. Did you then park the truck and lock up the yard at just after 2pm then? A. No, I was working in the yard after that until around 4.20. And then it started raining heavily, as I remember, and we reversed the truck, and the crane, and the drill in underneath the canopy, and locked up and went home. Q. Where did you get the times of 4.30pm and 5.30pm in your affidavit? A. It was approximately - as - as I said, it was 2017, so the GPS Netstar information is very - very handy for that, just to get exact times. So I was - I was within an hour. Q. You weren't even within an hour, were you, sir, because you now concede that the Truck got back into the yard just after 2pm, while in your affidavit you're only starting to drive the Truck back at 4.30pm [from the M2 Site], and you only get back to the yard at 5.30pm. So you're more than three hours wrong. A. Pretty close, I think. Q. Were you just making up all of these times in your affidavit when you prepared it? A. No, I was trying to remember as best as I could with the information I had.
36. I was struck by DB remembering that he was working in the yard that afternoon from 2.09pm and that the Truck was later parked undercover in Storage at around 4:20pm, when those facts were not in his recollection at the time he made his affidavit. I was equally concerned that his father, JB, who subsequently gave evidence by AVL from Ireland, changed his affidavit similarly.
37. When in oral evidence, DB said that on 10 June 2017 he waited all day at the yard for police to arrive whilst his brother MB and father JB drove around looking for the Truck, which facts he had not included in his affidavit; he said that he just remembered it at the time of giving oral evidence and could not account for why it was not given in his affidavit. It will be recalled that MB's evidence included searching for the Truck with JB on 10 June 2017, including at the defendant's premises at Mr Drake's Minto workplace.
38. I found the evidence of DB to be so inaccurate and unreliable that I was concerned that it was deliberately so. In my opinion, his evidence was so unreliable as to warrant the caution that it not be accepted unless consistent with other acceptable evidence.
39. JB denied that he was "just trying to back up evidence that DB" had given (T110.30).
40. JB gave oral evidence that the Truck "would have" been parked outside the gate if it arrived at around 2:00pm and that DB reversed it in when they were about to go home with the Drill on the Truck (T114.05). That evidence impressed me as pure reconstruction in order to support the plaintiff case. Next, JB denied knowing that in these proceedings the plaintiff is suing for money, that it is suing the defendant about the Truck, Crane and Drill or that the plaintiff alleges that the defendant took the Drill (T114). When asked what he thought the proceedings were about, he answered "the truck being stolen from the yard, and the drill" and maintained that he knew nothing about monetary recovery in the proceedings (T114.30-42). I considered this evidence to be most unlikely to be true given he is the father of MB and DB and works in the business when in Australia.
41. JB at [7] deposed that at approximately 5:00pm on 9 June DB arrived at Storage driving the Truck with the Crane and Drill. In the following 3 paragraphs he stated: "[8] Damien was finished work for the day. [9] I decided to leave with Damien. [10] I recall that Damien locked the gates and he and I left Hibernian's yard together."
42. Inconsistent with his affidavit, during cross-examination he said that he could remember the Truck coming into the yard in the evening and placed the time at around 4:00pm or 4:30pm because he and DB left together at 5:00pm (T109.20-109.25). Plainly this evidence was of different timing to that in his affidavit. Most notably, his affidavit mentioned nothing about the Truck arriving at a time noticeably before he left work with his son DB. The times of "probably around 4:00, 4:30" obviously straddle the 4:20pm introduced in the oral evidence of DB. He said that he did not have access to the Courtbook and was not aware that there was a GPS tracker in the Truck which tracked its movements. Then when challenged that the Truck arrived at Storage, as shown on the GPS tracker at around 2:00pm, he answered: "I don't recall" (T110.04)
43. I found the evidence of JB to be so inaccurate and unreliable that I was concerned that it was deliberately so. In my opinion, his evidence was so unreliable as to warrant the caution that it not be accepted unless consistent with other acceptable evidence.
44. In closing written submissions the plaintiff conceded that there are "gaps" in the evidence of its allegation that the Truck was stolen by the defendant. The defendant's answer, of which he and Mr Drake gave direct evidence, is that at the defendant's request and after he gave a key for the Truck to Mr Drake, on the evening of 9 June 2017 Mr Drake picked the Truck up from where it was parked in the street outside Storage and drove it to his place of work at Minto. The common evidence is that the Truck was registered to the defendant from 8 June 2017 and that the defendant has remained in possession of it and the Crane.
45. I considered it curious that the defendant left a 76 second voice mail on MB's mobile phone on 8 June 2017, if there was nothing to discuss between them. There is no evidence of the content of that 76 second connection to voicemail. The plaintiff put to the defendant in cross-examination that it was part of his plan, to create a recording as if there was a transaction in play. That argument, in my opinion, inevitably raises the question of why the defendant would do that, given the risk that MB would answer the call if that was the defendant's plan of deception. Indeed why take the risk by just waiting on the disconnection for as long as 76 seconds. The defendant submitted and also it occurred to me to be odd that the defendant would complete the publically open act of transfer of registration to himself on 8 June 2017, before surreptitiously stealing the vehicle, as the plaintiff alleges. A matter which I raised with the parties (see T329.34-49) is that the Truck's GPS tracker log (Exhibit F) records that on 9 June 2017 at 4:18pm the Truck's ignition was turned off, at 4:51pm the "power save" mode initiated, at 7:21pm the GPS tracker system was "power low", at 7:24pm the GPS tracker system was "Power fail" and at 7:26pm it was "GPS antenna disconnect". There was no evidence of what the log record "Antenna disconnect" meant. There was no evidence of whether or not there was a malfunction which was not by human interference, which would explain those entries. Both parties conducted the case on the basis that the GPS tracker was disabled. The plaintiff made no response to my having raised the GPS tracker log entries in this way and the defendant only responded that he knew what I was referring to: T329.31. I therefore put those observations aside and determine the case on the basis that at approximately 7:26pm on 9 June 2017 the Truck's GPS tracker was disabled by human intervention. Either way, there is no direct evidence of who interfered with it in that way. The witnesses generally denied that they did so.
46. Therefore, the plaintiff case alleges that the defendant, after his fraudulently creating the public record of transfer of registration to himself on 8 June 2017 and leaving a record of his attempting to contact MB by mobile phone on 8 June 2017, either himself or by facilitating it through Mr Drake (or others, although there is no suggestion of who such others may be on the evidence), performed a noisy break in and 10 minute warm up of the motor of the Truck, risking detection in a location of 30 commercial tenants in the immediate facility before driving the Truck beside CCTV out of the yard having first disabled the GPS tracker device. It occurs to me that the plaintiff's allegation of the theft of the Truck and the Crane with the Drill aboard, is one of brazen criminality with a high risk of detection. One would assume that the defendant was aware that Police would have no difficulty with connecting the Truck to him because it was registered in his name. Indeed, DB's evidence is that police informed him of that registration immediately on his attending of police at 10 June 2017.

DEFENDANT CASE EVIDENCE

1. The first 21 paragraphs and [28] to [67] of the defendant's affidavit of the 21 August 2021 go to relations between himself and MB prior to the Deed. Earlier in these reasons I accepted that they had a dispute which they mostly settled on 27 March 2015 by the Deed and found that the 2014 Kingdom Group share transfer dispute remained outstanding. I have observed that it is commercially plausible that MB and the defendants who had litigated with each other before, would come to a resolution such as the alleged 5 June 2017 agreement rather than litigating again.
2. The paragraphs [22] to [27] go to the acquisition of the Truck and I have already gone to the source material of the documents of its purchase and its lease.
3. The defendant had not been involved in the business of the plaintiff and Holdings since March 2015. For that reason, his knowledge of the operations of the plaintiff and Holdings was not up to date to June 2017, on the issue of possession of the Truck and Crane. His evidence was that up until March 2015 the plaintiff made the lease payments to MF and DB Excavations Pty Ltd and Holdings owned the chattels. He said that the plaintiff was the face of the business and the Truck and the Crane were used exclusively by the plaintiff on site day to day for its business (T144.45-T145.05). The defendant was not involved in the business of Contracting and Holdings when it moved to Storage.
4. The defendant said that MF and DB Excavations Pty Ltd loaned the monies for the purchase of the Truck (T145.40). The defendant estimated that the lease of the Truck was to end in June 2017.
5. The defendant was challenged in cross-examination on the steps he and his brother Padraic took at the separation of them from the business of the plaintiff and Holdings business preceding the March 2015 Deed. It is common ground that the separation was acrimonious. The affidavit evidence, is corroborated by the letters of demand and counter demand exhibited to the defendant's affidavit (CB pages 528 to 543). Whilst cross-examination was directed to showing the defendant and his brother Padraic as persons who would take action into their own hands, the overall evidence is convincing that each of MB, the defendant and Padraic Kennedy had a propensity to do so.
6. An email exhibited to the defendant's affidavit at CB pages 539-40, dated 6 June 2014 is MB's instruction to the company accountant, Mr Oke, to remove the defendant and Padraic "completely and leave only my details on the ASIC details" of the companies. At the time, Padraic Kennedy was a director and held the shares on trust for the defendant. The defendant's email exhibited to his affidavit CB pages 541-2 dated 15 March 2015 and directed to Mr Oke, stated: "It has come to my attention in the past week that I am no longer a shareholder or Director of Kingdom Group. As with the two Hibernian companies I never authorised the transfer of my shares from myself to Breen. As with Hibernian Holdings I never authorised the transfer of the directorship to Breen. You did not have the authority to do these transactions on my behalf on the direction of Breen."
7. In relation to the $123,000 which the defendant deposited in a Commonwealth bank account from the plaintiff/Holdings business and which he stated was done in order to secure against MB absconding with property, his email of 2 October 2014 is exhibited to his affidavit at CB page 535. That email shows that there was no concealment. It is from the defendant directly to MB advising him that: "We have taken steps to secure some of the monies in the Hibernian accounts. We have transferred it to a trust account. We will not be using it in any way. Please let me know if you got our response to you (sic) last email commencing negotiations. We are keen to resolve this issue as soon as possible."
8. The defendant conceded that his solicitor advised against it and that it was a bold move (T152.05). The defendant agreed that he and Padraic Kennedy on another occasion were loading equipment of the business onto the Truck but on speaking to a police constable they left without any equipment. The defendant agreed that recital H to the 27 March 2015 Deed referred to Padraic Kennedy transferring the registration of 3 vehicles from Holdings to a company Quay Civil Pty Ltd without MB's consent. Whilst, to his recollection, he was not a director of Quay Civil at the time, he said that he was "very close" to becoming a director. In cross-examination he repeated that he and his brother Padraic were concerned that MB was going to abscond with "anything of value" (T165.24).
9. As to why the defendant did not through his lawyers pursue inclusion of the Kingdom Group share dispute in the 27 March 2015 Deed, he said that his solicitor had advised him not to be "chasing rabbits down holes" (T168.35). At T170 the defendant gave the following evidence when pressed (T170.21-50): Q. So, when you say that you did not provide instructions in respect of that - and we now know what you meant by that - did you mean to say that you were entitled or you reserved your rights to sue later in respect of that issue, being Kingdom Group? A. I - I didn't think about it that far in advance. I just know that I didn't want to deal with it at that - deal with it at that point. Q. But surely it would have been far more expedient and economical, sir, to have wrapped up all the issues in one deed, rather than consider the issue after it has resolved. You would agree with that? A. It would've made sense. Q. It'd make a lot of sense, I submit to you, wouldn't it, sir? A. Yes, but extra expense. Q. Surely you would have wanted all issues between yourself and Mr Breen, the plaintiff, to have been resolved so you could get on with your life. That's correct, isn't it? A. In an ideal world, yes. Q. Well, in the real world, sir. A. What - what - sorry, repeat the question? Q. In the real world, you would have wanted to get on with your life and work. That's right, isn't it? A. Correct. Q. You wouldn't want anything more to do with Mr Breen. That's correct, isn't it? A. Correct.
10. At [68] of his affidavit, the defendant deposed that he did not have the resources at the time of the making of the 27 March 2015 Deed to issue proceedings in relation to his Kingdom Group Share dispute and he did not want the settlement discussions to become more complicated and costly. On 5 February 2015 he had forwarded to his solicitor the emails between MB and Mr Oke of June 2014 effecting the transfer to MB of his Kingdom Group Shares. The defendant's plausible explanation for not having pursued recovery for the value of the Kingdom Group Share dispute in the Deed was that his solicitor advised him not to be "chasing rabbits down holes" as it was too expensive and too complicated: T168.35.
11. The defendant exhibited to his affidavit his mobile phone call log. He says that he attempted to call Mr Breen on the 9th of March 2017 but that it was in about May 2017 that he had a conversation with MB in which he informed MB that he wanted the Kingdom Group shares issue resolved. He described the dispute as "you cut me out of KG without any authority. Just like what you did with HH and HC". According to the defendant, MB asked what he wanted and the defendant answered "what the shares are worth". The defendant deposed that the conversation ended with MB saying "leave it to me" at [71].
12. At [72] the defendant deposed that in or around early June 2017 he and MB had a further conversation to the following effect: MB "I will transfer you the Truck and the Crane. At the moment it is owned by HC. But I will sort that out with HC and transfer it to you." D: "If you bring paperwork for the KG shares and the Truck and the Crane I can meet you tomorrow and we can sort it out." MB "Fine. Come to the yard at Rose Hill and we will sign some paperwork."
13. At [73] the defendant deposed that on 5 June 2017 he met MB at Storage when MB presented the paperwork to him for transfer of the shares in Kingdom Group and transfer of the Truck and the Crane and they signed the documents. He deposed that copies of those documents are exhibited to the defendant's affidavit. The defendant said that he held the original document expressing transfer of the Truck and the Crane, MB kept the original document expressing transfer of the KG shares and they each took a photograph of the other document. He says that MB handed him keys to the Truck and the Crane and said words to the effect: "the Truck and the Crane will be parked on the street just outside the yard ready to collect. But call me before you come and check exactly when you can pick it up." The defendant indicated probably Friday and they separated.
14. On the 7th of June the defendant caused a PPSR search of the Truck to be performed to check whether or not there were security interests registered to it and on 8 June 2017 he attended RMS and completed an application for transfer of the registration of the Truck to himself personally.
15. At [76] the defendant pointed to his mobile phone log of calls of the 8th of June 2017 and deposed that he recalled having a conversation with MB to the following effect: Defendant: "Either myself or someone else will pick up the Truck and Crane tomorrow night. When will it be available? MB: "Ok. Any time from 7pm tomorrow night is fine.
16. The inconsistency between the phone log entry and the defendant's deposed recollection is that the log records a voicemail connection only on 8 June 2017. The expert witness Mr Lal translated the Log as showing a voice message from the defendant's phone to MB's phone of 76 seconds duration at 8:56am.
17. The defendant deposes that on 9 June he organised Mr Charlie Drake to pick up the Truck and gave him the key. Mr Drake said that he would do so sometime after finishing work at 8:30pm and that later that evening Mr Drake told the defendant that he had the Truck and would "leave it at my address in Minto, Sydney and we can sort it out when you are back". The defendant was to leave Australia for Ireland the next day on 10 June 2017. The defendant says that at no time was the Drill on the Truck with the Crane.
18. At [87] the defendant deposed that when he attended RMS on 8 June 2017 to complete transfer of registration of the Truck he estimated the odometer at approximately 420,000 km based on his estimate of use at the rate of 100,000 km per year since he last used the Truck in 2014, when the reading was 150,000km.
19. The correct odometer reading on the Truck was much less than 420,000 km. The defendant was challenged in cross-examination on the basis that if he was willing to tell an untruth to RMS, then he might be willing to be untruthful in his evidence in the proceedings. I do not find much persuasion in this challenge. The common evidence is that MB and the defendant could not stand each other. If it was the case that they had final resolution of the last outstanding issue between them by the agreement on 5 June 2017; then in their history of mutual dislike and hardly if ever speaking to each other after the Deed in March 2015, it would not be surprising if the defendant was unenthusiastic about trying to achieve contact with MB in order to determine the correct odometer reading. This is particularly so in circumstances of the next day, 9 June 2017 being the defendant's last day in Australia before departure to Ireland to attend a wedding. The defendant's evidence during cross-examination on this point was plausible (T202.25-28): Q. The reason is, sir, you could have simply have asked Mr Breen - if there was an agreement - to confirm the odometer reading, but you didn't, did you? A. I go back to what - what I said earlier. We didn't really like each other. I couldn't imagine he would have taken my call.
20. In cross-examination the plaintiff put that the communications and making of the 5 June 2017 agreement set out at paragraphs [71] to [73] of the defendant's affidavit are false. The defendant denied this. At [69] the defendant deposed that on 9 March 2017 he "attempted to call" MB. He was taken to his mobile phone log (Exhibit L) at CB page 969 which shows 4 calls placed from the defendant's mobile phone to MB's mobile phone, of duration 2 - 3 seconds. I considered the defendant's response frank when he said that he did not recall when he attempted to call MB on 9 March 2017 and that a possible explanation for the mobile phone log entry is that he dialled by accident. He agreed that his affidavit evidence does not include actually speaking to MB from September 2014 until May 2017. He agreed that he and MB had gone their different ways and that they had bitterly fought.
21. As to his having a conversation with MB in or around May 2017 in which he told MB that he wanted the "KG shares issue resolved", the defendant conceded that he could not recall the exact conversation. The cross-examination was focused on [71] of the defendant's affidavit. There is nothing in his affidavit, or was there in his evidence in chief of where that conversation occurred or by what medium, such as by phone or in person. Counsel for the defendant had not put to MB that he and the defendant had bumped into each other in a pub and shared that conversation. The defendant gave the following cross-examination evidence which the plaintiff says is a recent invention (T180.35-50): Q. You don't think so? A. No, I did not call him. Q. What was the circumstances of the conversation? A. My brother, Kieran who you referred to a while ago, he moved home to Ireland around that time to get married. We had several nights out in around the city. I met Mr Breen one evening in a pub in Balmain, and we have a very brief discussion about it. I said, "I'm not letting this go. I'm going to continue this in the court afterwards." Q. Did you just read that off somewhere? Did you just read that last bit of evidence from somewhere on the screen? A. No, I'm sorry. I'm looking at my - it's a nervous twitch. I'm just looking at - at the screen.
22. I informed the parties that I had seen the defendant looking up from the camera facing him, on several occasions throughout his evidence. I was not aware of what the set up was before him and whether or not a monitor with the Court Book was above the camera, for instance. The defendant's answer of a "nervous twitch" was an understandable response when it was not clear to him what counsel for the plaintiff was referring to on the in Court monitors.
23. The defendant gave the further evidence that the persons at the pub would most likely have been Padraic Kennedy and two or three of Kieran Kennedy's friends. He could not recall which pub. When challenged that he could have spoken to his brothers about giving evidence in the proceedings, the defendant responded that his former counsel had told him not to put anything in the evidence which was "just heresay and guesswork" (T184.35). In cross-examination the defendant agreed that whilst participating via AVL he observed that Senior Counsel representing him did not during the cross-examination of MB put questions concerning a meeting at a pub (T183.35).
24. Plaintiff counsel, understandably challenged the defendant on his evidence of a conversation in which MB responded to the defendant's demand offering transfer of the Truck and Crane for the worth of the shares and to which the defendant responded that MB bring the paperwork for transfer of shares, Truck and Crane and to meet at Storage. The defendant insisted that he was answering truthfully (T185). He said that MB had called him, but that does not appear in his affidavit. He was then challenged that his problem was that his mobile phone log did not include him calling MB (T185.35).
25. As I have already observed, the outgoing call log of the defendant's mobile phone (Exhibit L) records only 3 calls to MB's phone on 9 March 2017, none of which were a record of actual communication achieved, and a 76 second voice mail connection on 8 June 2017. It is agreed that the outgoing call log for MB's mobile phone for the period 1 March 2017 to 30 June 2017 did not record any calls placed with the defendant's mobile phone or text messages from MB to the defendant (Exhibit N). The total call log evidence of use of their respective mobile phones therefore does not record any conversation between them in the period 1 March 2017 to 30 June 2017 by use of those devices. This is significant because the phone log evidence shows that each of them was an extensive user of their mobile phone. The evidence of the phone logs is however, not complete evidence of telephone communication. On occasion, they may have used landline telephones or even another mobile phone over that period.
26. The defendant acknowledged that record of his mobile phone log but maintained that his recollection, four years after the event, remains that he spoke with MB concerning resolution of his claim arising from the transfer of his Kingdom Group shares. Investigation of means of communication other than use of their individual mobile phones was not exhaustively examined with the witnesses and after such a substantial passage of time, it would be understandably problematic for a witness to recall precisely the device used for a communication. The real possibility of the defendant and MB having spoken by telephone other than their mobile phones, in my opinion, remains. For instance, in his second affidavit at [31] MB deposed: "I generally do not answer calls from private numbers". That evidence acknowledges that at least some of his communications were by connections other than with identified mobile phone users.
27. During cross-examination and particularly the passage below quoted, the defendant acknowledged his inability to identify when he spoke with MB. He did not appear in his answers and demeanour to be giving untruthful evidence of conversations (T194.34-195.50): Q. Yes. I'll cut to the chase, sir. As I indicated, the only records of calls made to the plaintiff's mobile - Mr Martin Breen's mobile - is the one on 9 March for two seconds and three seconds, and 8 June 2017. You agree with that, don't you? A. Correct. Q. The call on 8 June, sir, was made at 8.56am, wasn't it? A. I - I don't have it in front of me, but-- Q. Well, it's actually attached - I think you've actually attached this one because you've managed to locate this call on your phone log. So, this is the actual call log - it's at page 543 of your affidavit. A. Yes, I have it. Q. And you see that there's a copy - the highlighted call is the call that you say you rely on in relation to this conversation with Mr Breen, don't you? A. Yes. Q. But that indicates on 8 June that the call that you made, which went for 76 seconds, went to voicemail, doesn't it? A. Yes. Q. Well, you've read the report of Mr Lal, haven't you, about that reading? What that means? The 101. A. Yes. Q. And that means it's gone to Mr Breen's voicemail. A. That's what the phone call now says. I just remember speaking to Mr Breen. Q. Well, having looked at that, your..(not transcribable)..goes to voicemail, but when did you remember speaking to him now? On 8 June, do you? A. Yes. Q. You invented that conversation, didn't you? A. No. Q. In neither version of your statement do you say how the conversation occurred on the 9th and in early June, because you know the phone log didn't support that, did you? A. I was recalling phone calls and conversations from four years prior, so I may have got some of them mixed up. Q. Yes. You don't say how because you know there was no calls made in the log anywhere, other than those two to which I've referred. A. Correct. Q. And you use the word "called" in your statement, at paragraph 76, because you found it in the log, didn't you? A. Correct. Q. But what I wish to suggest to you, sir, is that the call you made on 8 June 2017, unlike the call that was probably made in March, was a deliberate phone call to his phone, wasn't it? You-- A. They were both deliberate. Q. Yes, but you deliberately intended it to go to voicemail so that it could show up on the phone log. That's correct, isn't it? A. No, that's not correct. Q. You just called the number, it went to voicemail, so as long as it came up on the record. That's correct? A. No, that's not correct. Q. I suggest to you the reason you decided to take the truck had nothing to do with an agreement with Mr Martin Breen, did it? A. Yes, it did.
28. The defendant said that in the phone calls with MB in early June 2017 the conversations were not convivial. He said that there was a bit of back and forth about the price but he could not recall the particulars. I note that back and forth negotiation is not in his affidavit evidence of this centrally important conversation.
29. The defendant was taken to paragraph [18] of his defence and challenged that whereas, at 18(c) the particulars of the circumstances of the making of the agreement were that the defendant contacted MB and asserted an intention to commence proceedings against him and/or Kingdom Group; his affidavit and oral evidence did not mention discussion of commencement of proceedings or of forbearance from suing (T188 to T189).
30. The defendant answered that he had first tried contacting MB months before, they met in a pub when "I pretty much told him what I wanted" and that it was less than a month afterward that MB contacted him again. At (T189.20), the defendant agreed that there was no record in his mobile phone call log of attempts to speak to MB other than the two and three second contacts on 9 March 2017 and the 76 second voice mail on 8 June 2017. At T190.15 it was put that he "just made that evidence up" and that he had "been caught lying", both of which propositions the defendant denied.
31. The inconsistency between the defendant's affidavit and his oral evidence, the particulars of his agreement with MB set out in paragraph 18 of his defence, and that the mobile phone logs do not record any of the calls he described, caused me to have concern as to the reliability of his evidence. As I heard this part of his evidence, my concern was heightened by the vagueness of his evidence of his coincidentally bumping into MB in a pub. Given the importance of the issue of the making of the agreement, I would expect that fact to be in his affidavit evidence. It was not. That Senior Counsel for the defendant had not put to MB the meeting in a pub, caused me concern that it might have been a recent recollection or a recent invention.
32. I am also mindful of the caution required before accepting a submission of recent invention and untruthfulness in circumstances of the defendant having introduced the new fact of conversation in the pub, not contained in his evidence in chief and not put by his counsel to MB in cross-examination: Browne v Dunn (1893) 6 R 67 at 71; R v Birks (1990) 19 NSWLR 677 at 689G to 690C; Hofer v the Queen [2021] HCA 36 at [31]. However, this is not a case like Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, in which at 371 Gibbs J said that the jury were bound to accept the affirmative evidence of the plaintiff as to how long she would remain in work, when the evidence was uncontradicted and unchallenged in cross-examination. In this case, the facts of an agreement orally made and the signing of documents on 5 June 2017 was put to MB in cross-examination. He denied completely any agreement. In that way, the plaintiff case and MB's evidence, was not uncontradicted or unchallenged in cross-examination.
33. Whilst Counsel for the defendant did not apply to recall MB; neither did Counsel for the plaintiff exhaustively investigate in his cross-examination of the defendant, possible explanations as to why the conversation in the pub was not put to MB. That factual proposition coming late in cross-examination leaves open the inference on which the defendant was challenged, and he denied, that it was late invention and a lie because it would serve his interests. However, the cogency of such an inference, in my opinion and having observed the defendant give his evidence, is questionable. It is possible that the recollection came to the defendant only in the course of focusing on his recollection of events four years past in the environment of cross-examination. Whilst it is legitimate to draw appropriate conclusions from the defendant's counsel's failure to put the matter in cross-examination of MB, the defendant's evidence (see T184.35-40) established that prior Counsel was involved in the preparation in his affidavit evidence and in the case. The cross-examination did not offer the defendant the opportunity to explain, even if it is the case, his not having providing instructions to his legal representatives over time, of the event of the pub meeting with MB nor why that recollection might have first returned to him during cross-examination; see the approving consideration by Gleeson CJ, as he then was, in R v Birks supra of the Judgment of King CJ in R v Manunta (28 July 1989, unreported) and the plurality reference to the Judgment of King CJ in Hofer at [33].
34. On the whole, the defendant's evidence of discussions with MB leading up to the alleged 5 June 2017 agreement, causes me to exercise caution against accepting his evidence as reliable on those matters.
35. For the same reasons I exercise the same caution when considering the defendant's evidence of he and MB organising the meeting for the exchange of documents of agreement on 5 June 2017. His cross-examination evidence was (T191.10-192.06): Q. You knew where the truck and crane were stored, didn't you? A. Correct. Q. You knew it was behind an enclosed fence. A. When you were in Hibernian's yard, it was. Q. On the occasion of 5 June 2017, when you say you had this meeting, was the truck there? A. Sorry, you're breaking up. Q. On this occasion, when you say you attended on 5 June 2017, was the truck there? A. I don't know. We didn't go to the yard, we just met on the entrance to it. Q. In your statement, there's no mention, is there, as to when you should come to the yard. But on 5 June, you just turn up, don't you? A. Martin called me with the time. Q. So, he called you again, did he? A. Yes. Q. That's because there no record of you calling him on 5 June, is there? A. Correct. Q. And you're aware of that, aren't you, sir? A. Correct. Q. So, he called you. When Martin Breen called you, did he contact on his standard mobile phone number. A. I - I don't recall. Q. Do you recall the number that came up? A. No, I don't recall. Q. So, if we were to tender Mr Breen's telephone records, it will show that there was a telephone call made to you on that day. Is that right? A. No, I - I don't - I don't know. I don't know what number he called me from. I don't recall. Q. I suggest, sir, there's no calls made to you, at all, from Mr Breen's mobile phone in that period. What do you say to that? A. As I said, I don't know what call - I don't know what phone he called me from. Q. What time did you turn up on 5 June? You don't say that in your statement. A. I - I - I don't recall.
36. The defendant maintained during cross-examination that MB prepared the documents in the price of $80,000 for the Truck and Crane and value of the Kingdom Group shares and brought them to the meeting in the street near the entrance of Storage on 5 June. The defendant was unshaken in his evidence that they each signed the documents there.
37. The receipt for sale of the Truck and Crane and agreement to transfer 100 Kingdom Group Pty Ltd shares from the defendant to MB for $80,000 are exhibited to the defendant's affidavit at CB pages 544 and 545. The plaintiff opened acknowledging that the defendant would rely on them (T6.10-32) and the plaintiff did not object to the tender (T138.25-30). The defendant said that the timing of the agreement and his acquisition of the Truck was not dictated by his belief that the lease payments had all been made but rather by his leaving Australia to attend his brother's wedding in Ireland. He said that he intended to take up proceedings in relation to the Kingdom Group share dispute after his return: T196.15-20. In cross-examination the defendant denied that he had waited "patiently" for 2 and ½ years before advancing a claim. He said that over that period he regained his financial backing: T196.40.
38. As far as cross-examination of the defendant went to the circumstances and the environment in which he maintains that the 5 June 2017 documents of agreement were signed; the evidence appears from T197.35. He said that he and MB signed the documents in front of each other. He denied that he signed for MB. The defendant denied that the 5 June 2017 documents are false. The defendant maintained that MB said he had misplaced the certificate of registration for the Truck. He then processed the transfer of the Truck at an RMS registry on 8 June 2017. He was unable to recall the time of day or at which registry this occurred. The fact of transfer at a RMS registry is not in dispute and therefore this evidence of imperfection of recollection after 4 years, was to some extent, equal to the vagueness of other parts of the defendant's evidence and his inability to recall precisely who called who, at which times and which devices, after the passage of time. It would have been uncontroversial had the defendant recalled the location of the registry he attended.
39. Neither party produced expert opinion evidence in regard to the question of whether or not the initials "MB" appearing on each of the 5 June 2017 documents is legitimately his or has been falsified. Plainly that question is at the heart of the dispute. There is no dispute that the defendant signed his name on each of the documents. The plaintiff asks the Court to compare the signature of MB on the documents with his signatures elsewhere in the Court papers including in the affidavits. I make the following observations:

• What appears as the signature of MB on each of the 5 June 2017 documents is initials whereas on the Court documents his full signature appears making the requested comparison not one of "apples for apples".
• There is no dispute that the defendant signed each of the documents in evidence and, to me it appears that his signatures are not identical on the receipt for sale of Truck and Crane and on the share transfer document.
• It is common experience that persons do not sign their names identically on each occasion.
• The signatures of MB on each of the documents do not appear to be identical.
• I have not been provided with the original of either document for examination.
• There is no evidence of the circumstances and environment which might have physically affected the signing of documents, alleged by the defendant, such as follows: 1. Did he and MB use the same pen; 2. Were the documents signed on a surface such as the dashboard of a vehicle or bonnet of a vehicle or signed while standing such that writing was easy or difficult; 3. Was the signing hurried or not.
• To my eye the writer's activity for making the "B" in the initials on the 5 June documents is not noticeably different to the "B" in "Breen" in the plaintiff's signatures on documents in the proceedings.
• To my eye the writer's activity for making the first half of the "M" before merging with the "B" in the initials on the 5 June documents is not noticeably different to at least to the first half of the "M" in "Martin" in the signatures of the plaintiff on documents in the proceedings.
• MB's signatures on documents in the proceedings vary noticeably at least by slope (compare CB 116 with CB 121 or CB 284) and spacing (compare "ee" in "Breen" on CB 116 with CB 121).

1. Noting the above factors and the appearance of lower case printed letters of MB's name and upper case print of the defendant's name on the sale of Truck receipt and the cursive writing of date above the defendant's signature but upright printed numbering of the date above what is alleged to be MB's initials on the share transfer agreement; I am unable to determine whether the initials of MB and the writing on the documents is not his.
2. In accordance with my earlier reasoning, the plaintiff bears the onus of proof that the defendant's possession of the Truck and Crane is repugnant to the plaintiff's possession and/or right to immediate possession.
3. Between paragraphs [77] and [80] of his affidavit, the defendant deposes that he spoke with Mr Charlie Drake on 9 June 2017 and gave Mr Drake keys to the Truck, asking him to pick the Truck and Crane up from outside Storage that evening, as a favour, because the defendant was going overseas the next day. Mr Drake agreed to pick it up after he finished work at about 8:30pm. The defendant deposed that on that evening Mr Drake telephoned him to say that he was leaving the Truck at his address at Minto.
4. At [79] the defendant deposed that the Drill was not on the Truck.
5. Before leaving the defendant's affidavit evidence, I note that at 82 he responds to at [65] to [66] of MB's first affidavit by denying that he has any knowledge of a telephone call which MB said he received from a person identifying himself as Ben. The evidence of that telephone call is unpersuasive and I apply the caution for MB's evidence in relation to it. The plaintiff did not establish on the evidence that the defendant or anyone on his behalf placed the telephone call. Otherwise the allegation of the telephone call does not assist in the determination of the issues on the evidence, in my opinion. At 82, the defendant responds to a text message referred to in [44] of MB's first affidavit. MB's evidence of a text message referring to a remote control, is also not of assistance in determination of issues in this case. The defendant gave the plausible explanation that the remote control referred to is for the Crane which is on the Truck. He said that he sent the message hoping that MB may still have had spare batteries because they were expensive to buy. MB did not respond to the text messages.
6. In cross-examination the defendant was taken to text messages and agreed that at 5:59pm on 9 June he texted Mr Drake informing him that the Truck was registered and insured and available for pickup whenever he wanted. He asked Mr Drake to leave it "down the coast". The defendant intended to bring it back to Sydney following his return from Ireland. He agreed that on 10 June 2017 at 10:45am he texted Mr Drake asking if all was good, to which Mr Drake responded in the affirmative.
7. A text message to which plaintiff directs attention included a photograph from Mr Drake's mobile phone to the defendant's mobile phone on 10 June 2017. It appears at CB pages 930 and is Exhibit K and printed enlarged in Mr Lal's report Exhibit D. The plaintiff argues that the photograph is significant because it shows the Truck concealed behind trees in a parking area, photographed from the balcony of Mr Drake's premises down the south coast of New South Wales. There is no real dispute that the text message is a photograph taken from that place and shows trees in front of what appears to be a truck.

MR LAL's EVIDENCE

1. The plaintiff relies on the expert evidence of Mr Lal, data recovery specialist, whose report is dated 23 September 2021 (Exhibit D). Mr Lal was instructed to extract data from the defendant's mobile phone, and to answer questions briefed to him in relation to:

• the defendant's claim that he photographed the Kingdom Group share transfer document which he alleges was part of the exchange of signed documents with MB on 5 June 2017 in the making of the agreement for transfer of the Truck and the Crane in exchange for the Kingdom Group shares at the value of $80,000;
• electronic messages (SMS, imessages, whatsapp, email and others) between the defendant and Mr Drake in the period 1 June 2017 to 20 June 2017; and
• metadata informing of the 10 June 2017 photograph of vehicles behind trees texted by Mr Drake to the defendant on 10 June 2017 (contained in Exhibit K).

1. Mr Lal was also asked to describe the data recorded from the defendant's mobile phone call log in regard to which the evidence principally focused on mobile telephone calls in about early June 2017, and concerning the defendant's allegation of agreement made with MB.
2. As he gave evidence, I was concerned that Mr Lal was influenced by a view of the defendant's credibility which he acquired not from his analysis of the data on the defendant's mobile phone but rather from the confused communication directly between himself and the defendant organising for the defendant to create an Itunes encryption password so that Mr Lal would be permitted to extract certain data. Mr Lal's record of those communications is recorded at [4] to [10] of his report. It is apparent that the defendant complied with Mr Lal's request and on 12 August 2021, Mr Lal was able to recover available data. But on two prior attempts the defendant was asked by Mr Lal to independently follow instructions of how to achieve creation of the encryption password. The defendant had been unsuccessful.
3. Mr Lal dealt directly with the defendant in much of the process of creating the Itunes encryption password. His oral evidence (T119.46-121.10) recounts his recollection of his direct conversation with the defendant. His report found that information was deleted and metadata corrupted. In oral evidence, the defendant said that he told Mr Lal he backed up his mobile phone and not that he backed up and restored the data; whereas Mr Lal recorded that the defendant had told him he had backed up and restored it "several times prior to the Device being delivered to me" (from [5] Lal Report). During cross-examination Mr Lal insisted that the defendant had included in what he said, that he "restored" the phone.
4. When it was put to Mr Lal that there was at least a possibility that he had an imperfect recollection of what the defendant said, Mr Lal refused to accept that proposition. He answered that his report also included "the time slots when the device was restored" (T120.20). Then, after it was pointed out to him that at [15] his report showed that on each of the 4 dates on which the mobile phone had been backed up and restored, it occurred at precisely 9:59am and after initially conceding that would normally indicate an automated process and not an interference by the defendant (T121.30), he displayed real reluctance to concede that the objective evidence obtained from the device did not show that the defendant had tampered with it (T121.31-T123.24). In this passage of evidence he appeared reluctant to concede, as he ultimately did do, that there was nothing in the record of backup and restore on the mobile phone which indicated that restore had been done manually by the defendant.
5. Next Mr Lal was cross-examined on his findings that data on the mobile phone "may have been altered in some way" (see for instance at [18]), or "corrupted". His evidence was that deleted information could not be recovered because of that corruption (for instance see T122.35). Mr Lal properly conceded in cross-examination (T125.25-33) that although one cannot completely rule out the possibility of deliberately corrupted data to hide something, "there is every chance" the corruption of data on the defendant's mobile phone had nothing to do with any attempt of his to delete or hide information.
6. When cross-examination returned to the topic of Mr Lal's report at [5] reporting that the defendant had told him of having backed up and "restored" the device several times prior to delivering it to him, the point about which he had earlier been adamant; the cross-examiner asked for "the actual words that he told you". Mr Lal answered him "I've backed up everything to the best of my ability" (T125.46-126.09). Obviously the word "restored" is missing from that passage. When he gave that answer, I formed the view that it confirmed the impression I gained of his earlier answers (referred to above) that his evidence was affected by a personal view which he had acquired of the credit of the defendant from his dealing with the defendant during the provision of the Itunes encryption password. Soon afterwards Mr Lal conceded that when talking to Mr Kennedy, it was apparent that he was not a particular "tech savvy" person (T126.30). Over all of Mr Lal's evidence, my concern continued that his evidence was infected with a personally held subjective view of the credit of the defendant obtained through his dealings with the defendant which was outside his specialist field of data recovery.
7. Mr Lal gave evidence as an independent expert witness, but I do not prefer his evidence as more reliable than that of the defendant as to whether or not the mobile phone had been tampered with. Given that proposition was denied by the defendant in cross-examination, I do not find that the defendant tampered with his mobile phone evidence.
8. The defendant's phone was a recent model and the events occurred 4 years previously. The number of times he had changed his phone in that period was not investigated. Mr Lal conceded that the backup and restore process even on the handing over of mobile phones is one of the many reasons that data can be corrupted such that information from the device, included deleted information, cannot be extracted on forensic investigation.
9. Mr Lal's evidence is of no value of persuasion in regard to whether or not on 5 June 2017 the defendant photographed the document of agreement for transfer of Kingdom shares or that the defendant's mobile phone had been tampered with by anyone for the purposes of affecting evidence for these proceedings.

EVIDENCE OF SINDRI BERGSSON

1. The plaintiff read the affidavit of his solicitor Sindri Bergsson made 22 February 2021. Mr Bergsson deposes to his communications with police in which he pressed for police to criminally investigate the defendant in relation to the "stolen truck matter". The responses which he received were that having spoken MB and to the defendant, who were described as having "a long history", police determined the dispute to be civil and the investigation closed. I find no persuasion in that evidence.
2. Mr Bergsson's affidavit then gives evidence of demands made upon the defendant for return of the Truck. The defendant concedes demand and refusal to deliver up the Truck. I find no assistance in that evidence.
3. At paragraph [15] of his affidavit made 22 February 2021, Mr Bergsson includes a record of an oral discussion had by him directly with the defendant. It is apparent that the defendant telephoned in order to ask Mr Bergsson whether or not he had received communication from his solicitor in circumstances of the defendant knowing that his solicitor was ill and things might be delayed. In the record of conversation, to which there was no objection taken albeit it does not read that Mr Bergsson provided any warning against making admissions to the defendant, it is recorded that the defendant said he sold the Truck and then spoke of shares in companies transferred to MB without the defendant's consent and by forgery of the defendant's signature, that MB did not ever own the truck and "it was always my truck". The defendant also told Mr Bergsson that there was no drill on the Truck. I find little persuasion in this evidence.
4. At paragraph [81] of his affidavit, the defendant deposed that when he spoke to Mr Bergsson there was a plan to sell the Truck on advice of a finance broker and that plan did not proceed. That is why he had told him that the truck was "sold". He also disagrees with the record of Mr Bergsson in regard to ownership of the Truck and deposes the truck is not owned by MB but "was owned by me".
5. Given the defendant's evidence in the case, it would appear that some miscommunication on his part or misunderstanding on Mr Bergsson's part might have occurred.
6. The plaintiff also read the affidavit of Mr Sindri Bergsson made 27 July 2021. The affidavit annexed the Truck GPS tracker log (Exhibit F). Mr Bergsson does not depose to any specialist expertise in reading of the log. The main witnesses were referred to the log in the course of oral examination. Although objection was not taken to the interpretation of the log provided by Mr Bergsson in paragraph [6] of his affidavit, his interpretation does not provide me with greater assistance than is to be gained from Exhibit F and the oral evidence.

EVIDENCE OF KELLEE MCBRYDE

1. The plaintiff read the affidavit of Kellee McBryde made 19 February 2021. Ms McBryde is a Technical Motor Claims Advisor who acts on behalf of the plaintiff's insurer, Zurich Australian Insurance Ltd. Ms McBryde annexes documents from the records of the insurer. Among them is a photograph taken of the gate and fence at Storage (Image 7). At [53] of his first affidavit, MB desposed that the Truck, Crane and Drill were stored in a "secure storage yard". At [55], MB deposed that: "Once the gates are shut to Hibernian's Storage Yard, the equipment stored is not easily visible from outside. In order to know what was inside, individuals would already had to have known what was inside, or looked over the fence."
2. Image 7 shows a mesh fence and even the photographs see through the mesh to what was in the yard. The above quoted description given by MB is inconsistent with that photograph. His evidence on this point caused me to be concerned that he was deliberately trying to infer that only a person who knew where the Truck was stored would break and enter in order to steal it. On the plaintiff case, MB's evidence was offering the inference that that person would be the defendant or someone associated with him. This evidence caused me serious concern as to the truthfulness of MB when making an accusatory allegation implicating D in wrong doing. The photograph dispels any inference that a person outside the yard would be unable to see the Truck, Crane and Drill when stored inside.
3. Exhibited to Ms McBryde's affidavit at page 69 is the insurer's Assessor Report Motor Total Loss dated 13 July 2017. That report noted the sum for which the Truck was insured at $100,000, the kilometrage at 173,000 approximately and the opinion market value at $100,000. It records settlement with the plaintiff at the sum of $99,000. All sums were stated to be exclusive of GST. It is to the affidavit of Ms McBryde that MB's statement to the insurer investigator, Ms Spier is exhibited.

EVIDENCE OF ROBERT SCERRI

1. The plaintiff read the affidavit of Mr Robert Scerri made 22 February 2021. Mr Scerri is a Claims Specialist instructed by Sura Plant & Equipment Pty Ltd, the insurer of the Drill. Mr Scerri deposed that on 2 November 2017 the insurer indemnified the plaintiff in the sum of $59,000 for the Drill.

ANTHONY KENT VALUATION

1. Exhibit C is the expert valuation report of Mr Anthony Kent dated 4 February 2021 but estimating values at 10 June 2017, the time of the loss. In Mr Kent's opinion, the chattels were of the following values: 1. The Truck: Market Value of $100,000 plus GST component $10,000 Total Market Value of $110,000 2. The Crane: Market Value of $65,000 plus GST component $6,500 Total Market Value of $71,500 3. The Drill: Market Value of $30,000 plus GST Component $3,000 Total Market Value $33,000 4. Truck and Crane in combination (as they in fact were) Market Value of $170,000 plus GST Component $17,000 Total Market Value of $187,000

DISCERNMENT

1. In my assessment, the evidence of MB, DB and JB for the reasons stated, attracts significant misgiving as to its truthfulness and reliability concerning the taking of the Truck, Crane and Drill. The defendant's evidence of his communications with MB up to 5 June 2017, attracts caution also.
2. Bearing in mind that the plaintiff prosecutes grave allegations of break and enter and larceny and fraudulent transfer of registration by creation of the 5 June 2017 documents of agreement, I make the following important observations: 1. The background circumstances to the 9th of June 2017, included, as I have found on the evidence, that there was a continuing dispute between the plaintiff in its alter ego MB and the defendant, consistent with the defendant's evidence that he considered himself as being unlawfully deprived of his shareholding in Kingdom Group by MB; 2. There were no concessions achieved during the oral evidence of the defendant or Mr Drake of their having participated in a theft of the Truck, Crane and Drill, nor were they shown in cross-examination or by reference to objective factual surrounding material, including contemporaneous documents and photographs, to be untruthful witnesses in that regard. On the whole of the evidence I am not satisfied that on the balance of probabilities they participated in the brazen, high risk of detection and grave conduct, of break and enter and larceny after fraudulent transfer of registration of the Truck at RMS; and 3. The Receipt for Sale of the Truck document dated 5 June 2017 and the document concerning sale of 100 shares of Kingdom Group Pty Ltd dated 5 June 2017, which documents are contained in Exhibit CK-1 at CB 544 and 555, are not proved by the plaintiff to be fake and are objective factual evidence of the transaction of exchange of the Truck and Crane for shares at a common agreed value of $80,000 which in the circumstances of the unresolved Kingdom Group dispute, would meet inherent commercial probabilities of the parties resolving the dispute.
3. In the result, I am not persuaded on the balance of probabilities that the transition of possession and right to possession of the Truck and Crane from the plaintiff to the defendant was by way of the defendant's theft and fraudulent transfer of registration. I am also not satisfied on the balance of probabilities that the defendant's acquisition of the Truck and Crane was without the plaintiff's permission agreed 5 June 2017. The parties agree that the result of the plaintiff's claim concerning the Drill follows the determination of the plaintiff's allegation of theft of the Truck and Crane, which I reject.

DAMAGES

1. The general principle upon on which damages for conversion are to be assessed is that the injured party is to receive a sum which, as far as money can do, would put him in the same position as he would have been if the tort had not been committed. In most cases of conversion, application in this principle will result in the injured party recovering in the full value of the property converted; but this statement should not be allowed to obscure the broad principle that damages are awarded by way of compensation: Butler v. Egg and Egg Pulp Marketing Board (1966) 114 CLR 185; [1966] HCA 38 at [191] per Taylor and Owen JJ.
2. The plaintiff has not been successful on the question of liability. I am nevertheless to briefly address the question of assessment of damages, by application of the above stated principle, which application was agreed between the parties.
3. The defendant accepts that had the plaintiff been successful on the question of liability for conversion of the chattels, then the measure of damages is the market value of the items at the time of taking, despite the fact that the plaintiff is not the owner (Defendant Closing Written Submission MFI 7 at [14]).
4. The defendant submits that calculation of the market value should be approached by starting with the actual purchase price of each chattel and then depreciating it to the time of the loss on 10 June 2017. The defendant does not rely on expert opinion evidence. The plaintiff relies on the expert opinion of Anthony Kent, valuer, contained in his report dated 4 February 2021. No objection was made to admission of the report into evidence. Mr Kent was not cross-examined.
5. Mr Kent valued each chattel as at the 10th of June 2017. The value he ascribed is his opinion of the market value. He applied the definition of market value adopted by the Australian Property Institute and I accept his unchallenged expert approach upon which his reported opinion is based. I am not of the opinion that the defendant's submitted approach should be preferred over the opinion of Mr Kent.
6. Had the plaintiff succeeded on the question of liability, damages as follows would have been awarded: 1. Market value of the Truck and attached Crane $170,000 plus GST 2. Market value of the Drill $30,000 plus GST Grand Total - $200,000 The plaintiff would be entitled to interest pursuant to s 100 Civil Procedure Act 2005 (NSW) between 10th June 2017 to date.

ORDERS

1. I make the following Orders: 1. Judgment for the defendant against the plaintiff 2. Plaintiff to pay the defendant's costs of the proceedings 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: 04 February 2022