Nolan v Nolan [2003] VSC 121

972. The document is a list entitled "Paintings - Sidney Nolan - for Helen Kapp, Wakefield Gallery". It is a single draft page, containing a typed list of paintings with some handwritten additional notations. It contains, inter alia, the handwritten notation "Wakefield Italian Crucifix coll. Cynthia Nolan (48 x 36")". The dimensions accord with those of "Italian Crucifix", 1955. Mr Smith identified the handwriting of the notation as that of Sidney Nolan.

975. I consider that the statement is admissible under s.51(1)(a) of the Act, on the basis that I may infer, pursuant to s.55C that Sidney Nolan had, at the time of making the statement, personal knowledge of the matters dealt with by the statement. Although he is not called as a witness, Sidney Nolan is dead.

978. If the statement in the document is admissible under s.55(1)(a) it is unnecessary to determine whether it would also be admissible under s.55(1)(b). There is no evidence before the Court as to what the document is, or where or in what circumstances it was created. It was produced from the Cynthia Nolan Papers. The circumstances of the deposit of the Cynthia Nolan Papers, the incomplete examination for the purposes of this proceeding and the restricted access to them is discussed above.

981. In the circumstances, I do not consider that there is evidence on which to conclude that the document is, or forms part of, a record relating to Sidney Nolan's business, made in the course of that business.

984. The relevant notation is contained in an informal, undated draft document of inherently uncertain status. The document is derived from a source which may not be comprehensive, has not been exhaustively examined, and cannot be tested by the defendants, due to limited access. Exercising the scrutiny and caution required in the circumstances, I do not construe the statement to mean that "Italian Crucifix" 1955 was, at the date of the notation, in the collection of Cynthia. The notation may be a mere private jotting, never intended by its maker to be communicated to another party. It may represent an intention to transfer the painting to the collection of Cynthia, in the future, conditionally or unconditionally. A number of other constructions are possible. There is nothing to indicate that it is a conclusive statement intended to be made public, to affect rights or to bind the maker. It is not possible to conclude that it was not qualified or contradicted by other documents which have not been produced.

987. I also note that attribution to a collection, in any event, is not equivalent to an acknowledgment of absolute ownership. That is discussed in detail above. While there are a number of paintings by Sidney Nolan entitled "Italian Crucifix" (or similar), the stated dimensions accord with those of the painting of that title in dispute in the current proceeding. While the possibility that there is more than one painting of the same name and the same dimensions cannot be excluded, it is a reasonable inference to draw, under s.55C, that the painting referred to in the notation is the painting in dispute. That inference, however, does not overcome the problem that no unequivocal meaning can be attributed to the notation.

990. The above circumstances could be said to justify rejection of the statement pursuant to s.55(9) of the Act. However, in my view, the preferable course is to admit it, but to attribute to it little or no weight. The notation does not, in my opinion, constitute evidence that at the date of the statement (which is unknown) "Italian Crucifix" 1955 formed part of Cynthia's collection, or that it was at that date publicly acknowledged by Sidney Nolan to be part of that collection or otherwise the property of Cynthia.

Document 1.3 - Letter dated 9 January 1956 from L. Somerville to Sidney Nolan

994. The letter appears, on its face, to be from the Director of the Fine Arts Department of the British Council, Mrs L. Somerville, to Sidney Nolan. Although dated, it is unsigned and the enclosures referred to in the letter are not attached. The letter is derived from the Cynthia Nolan Papers, the status of which is discussed above.

997. The letter refers in part to the framing of certain paintings, in particular "the Italian Crucifixion belonging to Cynthia". It also refers to more personal matters. Although the relevant painting is described as "belonging to Cynthia" the letter seeks Sidney Nolan's consent to removing its frame, suggesting that he retained some control over it.

1000. In view of the fact that the letter is unsigned, and given its source of production, although references to framing relate to an artist's occupation or business, I do not conclude that the document is, or forms part of, a record relating to Sidney Nolan's business, made in the course of the business. It is therefore not admissible under s.55(1)(b) of the Act.

1003. If that conclusion be incorrect, I would exercise my discretion to exclude the document under s.55(9) as there are no means of identifying which of the several paintings of an "Italian Crucifixion" or similar, the letter refers. No dimensions are recorded and the plaintiff acknowledges that a painting of similar title was an asset of Cynthia's estate, and was subsequently sold. The statement is therefore irrelevant. Alternatively, no weight could justifiably be attributed to the statement.

Document 1.4 - Catalogue of Whitechapel Art Gallery, London, June to July, 1957

1007. The Whitechapel catalogue lists item 60n as:

"Italian Crucifix 1955 P1 XVI ripolin on masonite 36 x 48" Exhib. Paintings by S.N., Redfern Gallery, London: May 1955: cat. 19 as "Crucifix - Apulia" Collection: Cynthia Nolan."

1011. I consider that the statement is admissible as being contained in a document forming part of a business record of the Whitechapel Gallery, pursuant to s.55(1)(b) of the Act. The Gallery constitutes a "business" within terms of s.3 of the Act. From Ms Haythornwaite's evidence I infer that the document forms part of the record of the business, which, pursuant to s.55C, I infer was made in the course of the business. Although the supplier of the information cannot be certainly identified, I infer that it was either Sidney Nolan or Cynthia. The catalogue's preface acknowledges the collaboration of Cynthia and Sidney Nolan in preparing the catalogue. Neither Cynthia nor Sidney Nolan can be called as a witness, as both persons are now dead.

1014. I do not construe the relevant statement as an admission by Sidney Nolan against interest, as it is equally likely to be a statement by Cynthia. It is not possible to ascertain which statements were made on the basis of information from Cynthia, and which were made on the basis of information from Sidney Nolan. There is no external evidence that Sidney Nolan had any input into the preparation of the catalogue or was aware of, and approved, its contents.

1017. I do not consider the catalogue admissible as an ancient document, for the reasons expressed above.

1020. Although the statement is admissible, it is not established that it was based on information supplied by Sidney Nolan or that he approved the attribution. Sidney Nolan cannot now be called to give evidence on the circumstances of the attribution. Exercising the required scrutiny and caution, I do not consider that the statement constitutes an acknowledgment by Sidney Nolan that "Italian Crucifix" 1955 belonged to Cynthia's collection.

1023. If that be incorrect, and the statement may properly be viewed as a statement made from information by Sidney Nolan and approved by him, I do not consider that the attribution of the painting to the collection of Cynthia would establish that Cynthia was the owner of the painting.

1026. First, in my opinion, as discussed above, the approval of the attribution in a gallery catalogue of a painting to the collection of a nominated person is not a reliable acknowledgment that that person is the absolute owner.

1029. Secondly, even if the statement were made by Sidney Nolan himself, and amounted to words of gift or constituted a clear acknowledgment that the painting was the property of Cynthia, delivery would also be necessary to transfer property to Cynthia by way of gift. That requirement is discussed below.

1033. The plaintiff also seeks, in relation to the Whitechapel catalogue, to rely on a "loan agreement" of Whitechapel Gallery and Cynthia which, on its face, records an agreement by Cynthia to loan certain paintings, including "Italian Crucifix" 1955, to the Whitechapel Gallery.

1036. I consider that the loan agreement forms or is part of a record of the business of the Whitechapel Gallery.

1039. I also consider that the loan agreement is an ancient document, in that it is more than 20 years old and constitutes an act of ownership. Further, it is produced from the records of the nominated borrower or "licensee", the Whitechapel Gallery. Such a source is the expected source and hence "proper custody".

1042. As recognised in Malcolmson v O'Dea, it is a question of what weight should be attributed to such a document in the absence of proof of possession, payment of rent or other circumstances. In the present case, I consider that the Whitechapel Gallery loan agreement establishes that Cynthia represented herself as having such interest in the paintings as entitled her to loan them to Whitechapel Gallery in 1957.

1045. However, such an interest is not necessarily equivalent to absolute ownership but could be more limited, such as a life interest, a mere right to possession or a conditional interest.

1048. Further, the fact that Cynthia represented herself as owner was clearly not against interest. Cynthia and Sidney Nolan are dead and the representation cannot be tested. The loan document is not evidence that Sidney Nolan represented Cynthia as entitled to any interest entitling her to lease "Italian Crucifix" 1955.

Document 1.5 - A letter from J. Wood Palmer (of the Arts Council of Great Britain) to Sidney Nolan, dated 31 July 1957

1052. The letter is unsigned. It is produced from the Cynthia Nolan Papers. There is no evidence that Sidney Nolan received the letter. The letter refers to the sales of paintings. It also states that there are forms enclosed for signing by Sidney Nolan's wife and daughter. It is apparent from the letter, and I infer, that Cynthia had conveyed certain information to the author and that Sidney Nolan had sent the author a letter.

1055. The letter might be viewed as a record, or forming part of a record, of the business of Sidney Nolan, made in the course of that business from information supplied by Cynthia or by Sidney Nolan, save that it is unsigned and is produced from the Cynthia Nolan Papers. One would expect the business records of Sidney Nolan to contain a signed letter, if it had been received. In view of those circumstances, I do not consider that the statement is admissible under s.55(1)(b) of the Act.

1058. If it were admissible I would not accept that the effect of the statement is that asserted by the plaintiff. It is not clear that the "forms" referred to in the letter are loan agreements in relation to paintings owned by Cynthia and Jinx Nolan.

1061. If the statement were admissible, exercising the required scrutiny and caution, I do not consider that it would establish that the forms referred to in the letter included a form in relation to a painting in dispute, or that Sidney Nolan saw that form and acquiesced in Cynthia's completion of it as owner. I do not conclude that Sidney Nolan procured Cynthia's signature to the loan agreement which is Document 1.6.

Document 1.6 - Arts Council of Great Britain Loan Agreement dated 14 August 1957

1065. The agreement is signed and the signature of Cynthia was identified by Ms Jinx Nolan. The document is a loan agreement pursuant to which Cynthia agreed to loan "Italian Crucifix" 1955.

1068. I consider that the document is admissible as an ancient document. It is over 20 years old, constitutes an assertion of ownership by Cynthia and is produced from the custody of the borrower or licensee (by derivation).

1071. I consider that the statement (constituted by the entire document) is also admissible as a business record of Cynthia under s.55(1)(b) of the Act (given the breadth of the definition of "business" in s.3 of the Act). There is evidence that Cynthia wrote travel books relating to Sidney Nolan's art, owned and sold paintings by Sidney Nolan and had her own business address. The loan of paintings may be considered to be part of her occupation or calling, which, pursuant to s.3 of the Act, need not be carried on for profit.

1074. I accept that in the document, Cynthia asserts herself to be the owner of the painting "Italian Crucifix" 1955 as at 14 August 1957 and reference is made to conditions of loan stated in the Arts Council letter of 31 July 1957. (I note that that letter cannot be, apparently, the unsigned letter of J. Wood Palmer [Document 1.5], which does not contain conditions of loan.)

1077. An assertion of ownership by Cynthia does not establish that Sidney Nolan had made a valid gift to her. There is, in my opinion, no admissible evidence to establish that Sidney Nolan saw and approved the loan agreement. If there were evidence to that effect, it would still be necessary to establish that such conduct constituted a sufficient manifestation of donative intention, together with delivery of possession.

Document 1.7 - Catalogue of the Arts Council of Great Britain Sidney Nolan Exhibition, 1957

1081. There is no proof of the admissibility of the catalogue of the Arts Council of Great Britain. In those circumstances, it is inadmissible.

Document 1.8 - Catalogue of the Art Gallery of New South Wales - Sidney Nolan Retrospective Exhibition of Paintings from 1937 to 1967 - Exhibitions in Australia from 13 September 1967 to 4 February 1968.

1085. The plaintiff seeks to rely on the whole catalogue as evidence of Sidney Nolan's direct involvement in its production and publication.

1088. The particular statement sought to be admitted is that the painting "Italian Crucifix" 1955 is listed as being in "private collection" by reason of the general statement in the catalogue that, unless otherwise indicated, "paintings are from private collections." There is no indication of any collection in relation to "Italian Crucifix" 1955.

1091. In the acknowledgments, the catalogue states "we are especially indebted to the artist and his wife, Cynthia, for their long patience in bearing with the seemingly never ending questions-and-answers involved in preparing the catalogue".

1094. I consider that the statement that "Italian Crucifix" 1955 belongs to a private collection is admissible, as being contained in a document being or forming part of a record relating to the business of the Art Gallery of New South Wales. I infer, pursuant to s.55C of the Act, that the relevant information was supplied by Sidney Nolan or by Cynthia, who may be reasonably supposed to have had personal knowledge of the information supplied.

1097. I do not consider that the catalogue as a whole is admissible, as the relevance of the balance of it to issues in dispute in this proceeding is not apparent.

1100. I do not consider that the catalogue is admissible as an ancient document, for the reasons set out above.

1103. In attributing weight to the statement, I must scrutinise it carefully and exercise caution. On the balance of probabilities, I consider that "Italian Crucifix" 1955 was attributed to a "private collection" in the catalogue on the basis of information supplied by Cynthia or Sidney Nolan, but it is not possible to conclude which of those two persons supplied the information. It is likely that Cynthia and Sidney Nolan each answered questions in relation to preparation of the catalogue. It is not possible to determine the degree or nature of Sidney Nolan's involvement in the preparation, or to identify the information he supplied.

1106. It is not possible to determine whether either or both of them were satisfied with the catalogue which was ultimately produced or considered that it accurately reflected any information that they had supplied.

1109. The New South Wales Art Gallery Sidney Nolan Retrospective Catalogue 1967 therefore does not assist in the determination of whether, as at the date of its publication, "Italian Crucifix" 1955 belonged to the collection of Cynthia or Sidney Nolan. It does not constitute evidence that Sidney Nolan publicly acknowledged Cynthia's ownership of the painting.

Document 1.9 - Letter of Hal Missingham to Sidney Nolan dated 13 January 1967

1113. The letter of Mr Missingham of the Art Gallery of New South Wales reports to Sidney Nolan on various matters concerning the planned Retrospective Exhibition and lists certain queries. Under "1952-1956" London - Greek - Italian - 2nd Kellys" it states "Need 3 more, a good Greek one, an Italian one (Cynthia's)".

1116. I consider that the letter is admissible pursuant to s.55(1)(a) and (b) of the Act, as being, or forming part of, a record relating to the business of the Art Gallery of New South Wales, made in the course of the business from information supplied by a person who may reasonably be supposed to have personal knowledge of the matters dealt with. In my opinion, as the letter is principally a request for instructions or responses, that person is the author, Mr Missingham.

1119. Further, the letter contains statements, and it may be inferred that their maker, Mr Missingham, at the time had personal knowledge of the matters dealt with by the statements. The statements are therefore admissible pursuant to s.55(1)(a) of the Act.

1122. The plaintiff seeks admission of the whole letter rather than particular statements. The plaintiff contends that the letter is part of the correspondence:

"... which provides a flow of information between the director of the gallery, Hal Missingham and the artist Sidney Nolan, in preparation for the exhibition and the production of the catalogue for the exhibition. It evidences the practice of Sidney Nolan to be directly involved in planning for exhibitions of his works in public galleries."

1126. I do not consider that the letter, taken in isolation, evidences interchange between Mr Missingham and Sidney Nolan in relation to the Retrospective Exhibition. When taken in conjunction with other admissible documents or statements (see 1.10) it may do so.

1129. The letter states "Need 3 more a good Greek one, an Italian one (Cynthia's)" for the years 1952-1956. I do not consider that the statement establishes more than that Mr Missingham believed Cynthia to own, or have entitlements to, a painting of Italian subject matter, or painted in Italy, during the designated period.

Document 1.10 - Letter from Sidney Nolan to Hal Missingham dated 28 April 1967

1133. The plaintiff seeks to admit the whole letter, and, in particular, the statement:

"Could you put my paintings and Cynthia's in the catalogue under private collection"

and

"Probably just a note at the end to say: unless otherwise indicated the paintings are from private collections".

1137. The plaintiff contends that the letter establishes that Sidney Nolan admitted that some of the paintings for the 1967 Retrospective Exhibition were owned by himself and some by his wife, Cynthia.

1140. In my opinion, the letter is a document being or forming part of a record relating to the business of the Art Gallery of New South Wales, made in the course of that business from information supplied by Sidney Nolan, who may be reasonably supposed to have had personal knowledge of the matters dealt with in the information supplied. Statements in the letter may therefore be admissible pursuant to s.55(1)(b) of the Act.

1143. Statements in the letter are also admissible under s.55(1)(a) of the Act. The maker of the statements in the letter may be inferred to have had personal knowledge of the matters dealt with at the time of making them, and, although not called as a witness, is dead.

1146. The letter does not identify a final and exhaustive list of the paintings which were to be exhibited at the Retrospective Exhibition. Exercising the required scrutiny and caution, I do not accept that the letter constitutes evidence that Sidney Nolan admitted that of the paintings ultimately exhibited from July 1967 to February 1968, some were owned by Cynthia and some by himself.

1149. I consider that the letter establishes no more than that Sidney Nolan acknowledged that of the paintings contemplated as loans to the Retrospective Exhibition at the date of the letter (which are not specifically identified) some were his own and some were Cynthia's.

1152. That acknowledgment cannot be specifically applied to "Italian Crucifix" 1955, although that painting was ultimately exhibited. Moreover, it does not assist in determining the relative entitlements of Cynthia and Sidney Nolan to "Italian Crucifix" 1955.

Document 1.11 - Letter from Sidney Nolan to Hal Missingham dated 21 January 1967

1156. The letter states: "52 - 56 - Have three more. Cynthia's Italian one". The statements made in the letter are made by a person, Sidney Nolan, who had personal knowledge of the matters dealt with in the statements at the time of making them and who, although not called as a witness in the proceeding, is now dead. The statements are therefore admissible pursuant to s.55(1)(a) of the Act.

1159. In my opinion, the letter is a document being or forming part of a record of the business of the Art Gallery of New South Wales, made in the course of the business from information supplied by Sidney Nolan, who may reasonably be supposed to have had personal knowledge of the matters dealt with in the information supplied. Sidney Nolan, although not called as a witness, is now dead. Statements in the document are therefore admissible pursuant to s.55(1)(b) of the Act.

1162. I consider that this letter, which appears to be in response to the letter of Hal Missingham dated 13 January 1967 [Document 1.9] is evidence of Sidney Nolan's exchange of information and involvement in planning for the Art Gallery of New South Wales Retrospective Exhibition. However, I cannot infer from the letter any reliable or invariable practice of such involvement in relation to other exhibitions.

1165. The reference to "Cynthia's Italian one" is evidence that Sidney Nolan acknowledged an "Italian" painting as "Cynthia's." Exercising the required scrutiny and care, I am unable to conclude that that general description applies to "Italian Crucifix" 1955.

1168. There were several "Italian Crucifix" paintings by Sidney Nolan and other Nolan paintings of "Italian" subject-matter. In so far as the reference suggests that only one was known as "Cynthia's" (as there is no attempt to distinguish it from any other "Italian" painting of "Cynthia's") - it does not assist the plaintiff. (Sidney Nolan did not dispute that a painting on the Italian Crucifix theme was an asset of Cynthia's estate.) I am unable to conclude that the letter refers to "Italian Crucifix" 1955 because that was the painting ultimately exhibited. The letter is also consistent with Sidney Nolan's continued control over, or access to, "Cynthia's Italian one". I do not consider that the letter constitutes an acknowledgment by Sidney Nolan that Cynthia owned "Italian Crucifix" 1955.

1.12 - Art Gallery of New South Wales original typescript notes with handwritten corrections for printer

1172. The document appears to be, or form part of, a record relating to the business of the Art Gallery of New South Wales made in the course of the business. It is not apparent from the document who made the statements, or who supplied the information from which the record was made.

I therefore consider that the statement is not admissible pursuant to s.55(1)(b).

1176. If that be incorrect, and the statement "Italian Crucifix 1955 illustrated (36 x 46 ripolin on board Coll of Cynthia Nolan" is admissible, it would be consistent with the request of Sidney Nolan that any paintings of his or Cynthia's should have no specific attribution in the catalogue, but should be comprehended by a general attribution to "private collection".

1179. If Sidney Nolan did give instructions for the relevant entry, in my opinion it does not support the contention that he acquiesced in, or agreed to, the public attribution in the catalogue, of "Italian Crucifix " 1955 to Cynthia's collection. Although the measurements of the "Italian Crucifix" 1955 referred to in the document accord with those of the painting in dispute, the notation "Coll: Cynthia Nolan" is struck through. If that were done at the behest of Sidney Nolan, it suggests that he was unwilling to identify or hold Cynthia out as entitled to that painting and preferred to keep the respective entitlements of Cynthia and himself private. It is not established that this is the painting described by Sidney Nolan as "Cynthia's Italian one" referred to in the letter of 21 January 1967. (Document 1.11) There is also annexed a list of "works from the artist's studio", listing No. 40 "Italian Crucifix" 1955 as "collection: Cynthia Nolan". Exercising the care and scrutiny required, I do not construe this as an acknowledgment of Cynthia's ownership of "Italian Crucifix" 1955 by Sidney Nolan.

Document 1.13 - Handwritten list headed "collection Cynthia Nolan"

1183. This is an undated handwritten list of paintings, including No. "55: Crucifixion Sth Italy 36 x 48" and No. "46. Hare in Trap 36 x 48".

1186. The list is headed in barely legible handwriting -

"collection Cynthia Nolan - [with] ? Elwyn Lynn Curator, Power Gallery. Sydney University for gradual sale to benefactor to give to Power Gallery when [buyer] or as my trustees see fit."

1190. On p.2, is written "Collection Cynthia Nolan Paintings collected from 62 Deodor Rd 30 April 74 from C Hansen to Pickfords Litchfield Terrace; then to Aus on loan Syd Uni Jack Lynn".

1193. The handwriting was identified by the plaintiff as that of Cynthia.

1196. I consider that statements in the list are admissible pursuant to both sub-sections 55(1)(a) and (b) of the Act, in that Cynthia's dealings constituted a business within the definition of s.3 of the Act. I infer that the record was made in the course of that business from information supplied by Cynthia. The list is produced from the Cynthia Nolan Papers.

1199. The document is evidence that Cynthia included the paintings "Hare in Trap" and "Crucifixion Sth Italy" (with the measurements of the painting of the title "Italian Crucifix" in dispute in this proceeding), in a list headed "collection Cynthia Nolan". The handwritten notations indicate that Cynthia claimed or described the paintings as being within her collection. It may also be inferred that Cynthia intended that the paintings be collected from the Nolan's Putney residence and ultimately despatched to the Power Gallery, University of Sydney.

1202. The document, in my opinion, indicates that Cynthia asserted rights or claims of entitlement to the paintings in the list. She also recorded an intention to despatch them, which, if implemented, would be consistent with her exercise of possession, dominion and control of the paintings.

1205. The assertion by Cynthia of such entitlement and the exercise of control, while consistent with her ownership of the paintings by way of gift, is equally consistent with a number of other possibilities. It is consistent with Cynthia misappropriating the paintings or asserting rights contrary to Sidney Nolan's wishes and consent. It is consistent with Cynthia having received the promise of a gift from Sidney Nolan and, believing the paintings to belong to her, taking possession for herself. Exercising the required scrutiny and caution, I do not construe the document as evidence of Cynthia's ownership of the paintings, or evidence that Sidney Nolan acknowledged Cynthia's ownership of the paintings or that he made delivery of the paintings to her.

Document 1.14 - Statement by Elwyn Lynn of the Power Gallery of Contemporary Art, University of Sydney dated 21 November 1974

1209. The typewritten document lists paintings including "Hare in Trap" (No.2) and "Italian Crucifixion 1955 36 1/8 x 48" (No.13) which are stated to be loaned to the Power Gallery by Cynthia.

1212. The document is executed by Elwyn Lynn as curator. It is not executed by Cynthia, although there is space for execution by "Cynthia Hansen-Nolan".

1215. Statements in the document would be admissible pursuant to s.55(1)(a) of the Act, as Elwyn Lynn is the maker of the statements (inferred pursuant to s.55C and the evidence of Tim Kelly).

1218. On its face the document might constitute a business record of the business of the Power Gallery, albeit produced from David Jones files. However, one of the few examples of direct evidence relating to a transaction in this case was that given by Mr Tim Kelly. Mr Kelly's evidence was that he believed that the deposit of paintings at the Power Gallery was not a loan by Cynthia to the Power Gallery, but a private arrangement between Cynthia and Elwyn Lynn. If that were the case, the document misrepresents the transaction it purports to record.

1221. Mr Kelly's evidence could constitute a reason to decline to admit the document, or statements contained in it, pursuant to s.55(9) of the Act.

1224. There is evidence that Cynthia arranged the Power Gallery deposit without Sidney Nolan's knowledge or consent. That might also constitute a basis for rejection. I will not, however, exercise my discretion to refuse to admit the document.

1227. The document is not signed or executed by Cynthia. In my opinion, on the construction most favourable to the plaintiff, it can establish no more than that a third party, on the balance of probability, Cynthia (who was evidently expected to execute a version of the statement) had represented to Elwyn Lynn that Cynthia had a sufficient interest in the listed paintings to lend them to the Power Gallery and had indicated a willingness to do so. The precise nature of Cynthia's entitlement is not defined in the document. There is no evidence that Sidney Nolan was aware of, or approved a loan to the Power Gallery or the representation in the document of Cynthia as lender or owner of the collection. On the construction least favourable to the plaintiff, the document was prepared as a misleading record of the true transaction, for purposes which cannot now be fully ascertained.

1230. In my opinion, the statements in the document do not establish that Sidney Nolan acknowledged or held Cynthia out as owner of the paintings, approved her dealings with the Power Gallery or delivered the paintings into her possession.

1233. On the basis of Mr Kelly's evidence and the related correspondence between Cynthia and Elwyn Lynn, I find that Cynthia (whatever her entitlement) despatched and dealt with the paintings without Sidney Nolan's consent, deliberately concealing her actions from him. As I must, in any event, approach a claim against Sidney Nolan's deceased estate with caution, the probability of such conduct by the alleged donee is a strong reason for added caution.

Document 1.15 - David Jones Art Gallery Catalogue - "The Cynthia Nolan Collection of Paintings by Sidney Nolan" 7-20 July, 1975

1237. The David Jones Art Gallery Catalogue entitled "The Cynthia Nolan Collection of paintings by Jinx Nolan" lists as No.2 "Hare in Trap" 1946 and as No.13, "Italian Crucifixion" 1955 with measurements 91.7 x 121.9 cm (identifiable with the measurements of the painting the subject of this proceeding).

1240. In my opinion, the David Jones Art Gallery Catalogue (or statements therein) are admissible as being or forming part of a record of the business of the David Jones Art Gallery made (probably by Robert Haines, the director) in the course of the business from information supplied by a person, Cynthia (whether directly or indirectly through Elwyn Lynn or others, as I infer pursuant to S.55C) who might reasonably be supposed to have had personal knowledge of the matters dealt with.

1243. I consider that the catalogue constitutes only an attribution by Cynthia, or by third parties other than Sidney Nolan, of the paintings in question to her "collection". The evidence is that Sidney Nolan did not know of, or participate in, the despatch of paintings to the Power Gallery, the attempted sale of any of those paintings, the David Jone Art Gallery Exhibition or the production of the David Jones Art Gallery catalogue and the attribution therein of the paintings to Cynthia's collection.

1246. There is no evidence that Sidney Nolan consented to Cynthia's control of, or dealings with, the paintings. There is no evidence that he represented Cynthia as the owner of the paintings or consented to the attribution in the catalogue. On the contrary, it is not disputed that he did not, at first, know of the David Jones Art Gallery Exhibition and that he was displeased when he subsequently learnt of its occurrence.

1249. Given that the parties are long dead, I must view with considerable caution a statement by a dead person, Cynthia, which is not against interest, asserting entitlement against another deceased party's estate, even if the statement is rendered admissible through s.55(1) of the Act. The statements in the catalogue are equally consistent with self-serving conduct and unauthorised activity by Cynthia.

1253. The evidence of Ms Sloggett identified a label on the top left of the verso of the painting "Italian Crucifix" 1955 which read "Art Gallery of New South Wales Sidney Nolan September 12-October 20 1967 Italian Crucifix".

1256. The plaintiff contends that the label establishes that "Italian Crucifix" 1955 is thereby proved to be directly linked to the correspondence between Sidney Nolan and Hal Missingham, and the Art Gallery of New South Wales List of works.

1259. Ms Sloggett gave no evidence that the label was attached by the servants or agents of the Art Gallery of New South Wales at the date of, and for the purposes of, the 1967 Retrospective Exhibition. She merely identified the label. If it be authentic, in my opinion, it does not establish the link for which the plaintiff contends. Hal Missingham's letter dated 13 January 1967 refers only to "Cynthia's Italian one". Sidney Nolan's letter of 28 April 1967 refers merely to "my paintings and Cynthia's" and Sidney Nolan's letter of 21 January 1967 refers only to "Cynthia's Italian one".

1262. There are a number of Sidney Nolan "Italian" paintings, only some of which are based on the theme of "Italian Crucifix". It is not possible to conclude that in referring to the painting in the correspondence with no more specificity than "Cynthia's Italian one" Mr Missingham and Sidney Nolan had in mind "Italian Crucifix" 1955, even if that painting were the "Italian" painting ultimately exhibited at the Art Gallery of New South Wales Retrospective Exhibition. Exercising the required care and scrutiny, I cannot confidently conclude that the record of their correspondence is complete, or was not supplemented by conversations whereby the parties changed their original intentions and substituted "Italian Crucifix 1955" for the "Italian one" originally contemplated.

1265. I consider, however, that to the extent to which the List of Works [Document 1.12] which lists as no.40 "Italian Crucifix 1955 ripolin on board 36 x 48" is itself admissible, the label does constitute a link with it and indicates that "Italian Crucifix 1955" (the painting the subject of the present proceeding) was the painting exhibited at the Art Gallery of New South Wales in 1967.

1268. I note that Ms Sloggett's evidence did not establish the presence of a marking "In the possession Cynthia Nolan" on the painting in dispute.

1272. The plaintiff does not, in final written submissions, indicate what portion of the book is sought to be admitted, save for the printed notice on the inside of the front dust cover which states that:

"The first monograph to be produced in Europe on an Australian artist, this volume was devised by Bryan Robertson, Director of the Whitechapel Gallery, in collaboration with the artist."

1276. The defendants object to the admission of the whole book, but seek the admission of CB 349-51 [an introduction page, pictures of "Hare in Trap" 1946 and "Italian Crucifix" 1955] and plate 50, "Ram Caught in Flood", which pages were referred to in the plaintiff's witness statement and in other evidence.

1279. Relevance is a precondition of admissibility. The relevance of the parts of the book not specified by the parties is not apparent. They should be excluded. The dust cover notes, CB 349-51 and plate 50 only should be admitted.

1282. Plate 3 lists "Hare in Trap" 1946 as "collection the artist". Plate 81 lists "Italian Crucifix" 1955 as "collection Cynthia Nolan". There is no external evidence to establish that Sidney Nolan collaborated with the author, supplied the relevant attributions or acquiesced in or approved them. Exercising the required scrutiny and caution, I do not consider that this constitutes an acknowledgment by Sidney Nolan that he had made a valid gift of "Italian Crucifix" 1955 to Cynthia, or that it was her property.

Proposed Exhibition Checklist marked "Paintings Sidney Nolan for Helen Kapp, Wakefield Gallery"

1286. The plaintiff does not persist with her submission in relation to this document. It is not admitted.

Document 1.18 - Sidney Nolan diary notes, Monday 9 February 1959

1290. The diary notes include the statement "send photographs to Marie Seton for her article".

1293. Mr Smith identified the handwriting as that of Sidney Nolan.

1296. In my opinion, the statement is admissible pursuant to s.55(1)(a) of the Act, as I infer that Sidney Nolan had, at the time of making it, personal knowledge of the matters dealt with, and although not called as a witness, is now dead.

1299. The weight to be attributed to the statement is considered in relation to document 1.19 below.

Document 1.19 - Article - "Sidney Nolan - An Artist of the Antipodes" by Marie Seton in "The Painter and Sculptor" London, Summer, 1959

1303. The plaintiff seeks to admit the statement referred to in document 1.18 in conjunction with the article by Marie Seton entitled "Sidney Nolan - An Artist of the Antipodes", in The Painter and Sculptor London, Summer, 1959. In that article, there is a photograph apparently of "Italian Crucifix" 1955 (although the dimensions are not stated), ascribed to the "(Collection: Cynthia Nolan)".

1306. I am unable confidently to conclude from the diary note indicating that Sidney Nolan intended to send photographs to Marie Seton for her article that he did send that photograph for inclusion in this article; and, in particular, that he furnished the information that "Italian Crucifix" 1955 was from "Collection: Cynthia Nolan". While it is likely that Sidney Nolan did arrange or instruct that photographs be sent to Ms Seton for the article, he may have delegated that task to others and he may not have supplied the accompanying information. As Sidney Nolan is deceased and Ms Seton is not called to give evidence, in my opinion, exercising the required scrutiny and caution, it would be unsafe to construe this as a public acknowledgment by Sidney Nolan that "Italian Crucifix" 1955 was in the collection of Cynthia Nolan.

Conclusion on Donative Intention - "Italian Crucifix" 1955

1310. From the above it follows that, in my opinion, the documents relied on by the plaintiff do not contain, in terms, an unequivocal statement made, or alternatively approved, by Sidney Nolan to the effect that he was making or had made an gift of "Italian Crucifix" 1955 to Cynthia or acknowledged it to be her property. For reasons discussed above, I do not consider ascription to a collection in an exhibition catalogue as tantamount to an acknowledgment of absolute ownership. Further, the principal formal assertions of Cynthia's ownership or ascriptions to her collection are either certainly made by Cynthia herself or possibly made by Cynthia, rather than Sidney Nolan, or made on the basis of information which was, or may have been, supplied by Cynthia or persons other than Sidney Nolan.

Document 2.1 - Handwritten list by Sidney Nolan submitted to be prepared for New Metropole, Folkestone, Exhibition in 1970

1315. The handwriting is identified by Ms Jinx Nolan as that of Sidney Nolan.

1318. At the bottom right hand corner the words "Catalogue Folkestone Feb 20th 1970" are written. The list includes item 13 as "Hare in Trap" 1946 and next to it is written "Cynth".

1321. Professor Eveleigh, the director of the New Metropole Gallery, Folkestone in 1970, gave evidence relating to this document in difficult and potentially confusing circumstances. He gave evidence by video link from England in two sessions. In the first session, on 3 December 2002, Professor Eveleigh had before him a different version of his witness statement from the version of the witness statement before the Court and Mr Dreyfus Q.C., who was cross-examining him. Professor Eveleigh had a version of his witness statement dated 29 November 2002. An earlier version of his witness statement dated 28 November 2002 was before the Court. The witness statement dated 28 November 2002 stated that Document 2.1 was the list sent to Professor Eveleigh by Sidney Nolan in 1970 for use in the preparation of the New Metropole catalogue. The witness statement dated 29 November 2002 stated that Professor Eveleigh could not be absolutely sure that Document 2.1 was the list sent by Sidney Nolan. Following the completion of the first videolink session, it became apparent that the witness statements were different.

1324. Professor Eveleigh had, in cross-examination on 3 December 2002, initially stated that he could not be sure that the handwritten list (which is document 2.1) was the list sent to him by Sidney Nolan in 1970 for use in preparing the catalogue for the 1970 New Metropole Exhibition. However, he thought that it was virtually identical.

1327. In the course of further cross-examination on 9 December 2002, Professor Eveleigh agreed that on 29 November 2002 he had instructed that his witness statement dated 28 November 2002, be amended to state that he could not be absolutely sure that Document 2.1 was the list sent by Sidney Nolan.

1330. On 9 December 2002, Professor Eveleigh at first appeared to withdraw his assertion that he could not be sure it was the list that Sidney Nolan had sent. Ultimately he seemed to concede that it was not the list, but he thought that it corresponded almost exactly to the catalogue.

1333. While I recognise the difficult circumstances of the video link, the response of Professor Eveleigh on this issue was confusing, shifting and evasive.

1336. I am unable to place any confidence in the veracity and consistency of Professor Eveleigh's identification of document 2.1. I conclude that document 2.1 is not a list which Professor Eveleigh recollected as being sent to him, but rather, a list that the Professor saw for the first time when it was sent to him by the plaintiff's solicitors. I conclude that he then noted the correspondence between that document and the 1970 New Metropole Gallery catalogue, and drew an inference from those correspondences.

1339. A further relevant issue in Professor Eveleigh's evidence is the question whether he received Sidney Nolan's individual instructions and approval in relation to all the matters in the New Metropole catalogue. Professor Eveleigh gave evidence that he recalled a meeting at the Nolans' residence, at which both Sidney Nolan and Cynthia were present. He evinced some confusion as to the location of their residence, where the meeting took place.

1342. When cross-examined as to whether he was able to recall any distinction between what Cynthia said and what Sidney Nolan said on the occasion of the meeting, Professor Eveleigh appeared evasive. Although he could recollect a comment by Cynthia concerning the proposed foreword to the catalogue and a comment by Sidney Nolan about the view of the Thames, I conclude that he was unable to remember whether any other specific instructions or information came from either person.

1345. In the circumstances, I am unable to conclude that document 2.1 is the list sent by Sidney Nolan to Professor Eveleigh in 1970. I accept that the words "Cynth 13 Hare in Trap 1946" contained in the document, were written by Sidney Nolan. Exercising the required scrutiny and caution, I am, in any event, unable to construe those words as an unequivocal acknowledgment by Sidney Nolan of Cynthia's ownership of "Hare in Trap" 1946.

Document 2.2 - Catalogue for the Arts Centre, New Metropole, Folkstone, Kent published for the Sidney Nolan Retrospective Exhibition 21st February to 18th April, 1970

1349. Item 14 is listed in the catalogue as "Hare in Trap 1946 36" x 48" ripolin lent by VC Nolan".

1352. Professor Eveleigh identified the catalogue as being produced under his direction. The catalogue may, in my opinion, be admitted pursuant to s.55(1)(b) of the Act as a document which is, or forms part of, a record relating to a business, made in the course of the business of the New Metropole Art Gallery from persons who may reasonably be supposed to have had personal knowledge of the matters dealt with. The relevant persons in this instance are Cynthia and Sidney Nolan, who, although not called as witnesses, are dead.

1355. It is not possible to determine whether the information that "Hare in Trap" 1946 was "lent by VC Nolan" was supplied by Cynthia or Sidney Nolan. I have already referred to the evidence of Professor Eveleigh on that issue. I consider that he was unable to recall, apart from some matters irrelevant to the issue, what particular instructions he received from whom in the course of his conversation with Cynthia and Sidney Nolan. Further, I consider that despite some contradictory assertions on his part, the ultimate effect of Professor Eveleigh's evidence was that he did not recognise the document 2.1, corresponding to the Catalogue, as the list which was sent to him by Sidney Nolan.

1358. In those circumstances, I am unable to infer that Sidney Nolan himself provided the instruction or information to list "Hare in Trap" 1946 as "lent by V.C Nolan".

1361. Professor Eveleigh's evidence was to the effect that Sidney Nolan did not express complaint about the catalogue.

1364. I consider that I should accept that Sidney Nolan saw the attribution, whether he was the direct source of it or not, and did not complain to Professor Eveleigh, or to Professor Eveleigh's knowledge, anyone else.

1367. It is possible, as the defendants submit, that he did dispute the attribution privately with Cynthia. There is no evidence that Sidney Nolan publicly disclosed his admitted displeasure over the David Jones Art Gallery Exhibition. Given the scrutiny and caution which must be exercised in this context, I do not consider that the catalogue establishes that Sidney Nolan approved the public ascription of "Hare in Trap" 1946 to Cynthia.

1370. On the construction most favourable to the plaintiff, if Sidney Nolan knew of and approved the attribution of "lent by VC Nolan" to "Hare in Trap" 1946 in the catalogue, in my opinion, it is not sufficient to establish a complete gift of an absolute title to the painting. For reasons discussed in detail above, attributions in catalogues may not record entitlements accurately, for a range of reasons. Further, the mere statement by an original owner that a chattel has been given to someone else, or even that the owner "hereby gives" the chattel, is not sufficient to establish a perfect gift. It would also be necessary to establish the further requirement of delivery of possession to the intended donee. The fact that the purported donee obtains possession at a particular point cannot, without more, satisfy that requirement. The circumstances in which possession was obtained are all important. Possession may have been obtained without the purported donor's consent. An issue in the present case is whether the gift of a chattel can be established by the purported donor's admission or acquiescence in an assertion of the purported donee's ownership. I consider that relevant authority establishes that the mere admission by a donor of having made a gift, without more, cannot suffice.

Document 2.3 - Handwritten list of collection of paintings of Cynthia Nolan

1374. The handwritten list of paintings has been considered in relation to document 1.13 above, in relation to "Italian Crucifix" 1955. The handwritten list includes as number 46 "Hare in Trap 30 x 48 ripolin" and is marked with a tick. The same conclusions apply as for item 1.13 in relation to "Hare in Trap" 1946.

Statement of Elwyn Lynn of the Power Gallery of Contemporary Art, University of Sydney, 21 November 1924

1378. The statement has been considered in relation to "Italian Crucifix" 1955 as document 1.14 above. The document lists as number 2 "Hare in Trap" 1946 ripolin on masonite size 90.7 x 122.1 cm. The same conclusions apply in relation to "Hare in Trap" 1946.

Document 2.4- Catalogue of David Jones Art Gallery "The Cynthia Nolan Collection of Paintings by Sidney Nolan", 7-26 July, 1975

1382. The David Jones Art Gallery Catalogue for the Cynthia Nolan Collection of Paintings by Sidney Nolan, 7-26 July 1975 has been considered in relation to "Italian Crucifix" 1955 in relation to document 1.15. "Hare in Trap" 1946 is included in the catalogue as number 2.

1385. The same conclusions as for "Italian Crucifix" 1955, set out in relation to document 1.15, apply.

Conclusion on Donative Intention - "Hare in Trap" 1946

1389. In my opinion, the documents relied on by the plaintiff do not contain an unequivocal statement made, or alternatively approved, by Sidney Nolan to the effect that he was making or had made gift of "Hare in Trap" 1946 to Cynthia or acknowledged it to be her property.

Document 3.1 - Extract from Sidney Nolan's Notebook 1974-1975

1394. The diary extract has been identified by as being in the handwriting of Sidney Nolan. It has a list of titles of paintings in the top left hand corner, with a "C" to the right. There is a line drawn beneath those titles, and a single further title is written below it.

1397. In so far as the diary extract contains a relevant statement, I consider that the statement would be admissible pursuant to s.55(1)(a) of the Act. The maker of the statement, Sidney Nolan, may be inferred to have had personal knowledge of the matters dealt with in the statement and, although not called as a witness, is dead.

1400. In one sense, the evaluation of the weight to be attributed to the statement coincides with the question of admissibility. As a precondition of admissibility, it is necessary to identify a statement which tends to establish a fact. In the present case, I do not accept that the listing of the titles of several paintings above a line with a single letter "C" to the lower left above the line, constitutes a statement that the paintings listed above the line are the property of Cynthia; as such, there is no statement which tends to establish the fact that Sidney Nolan gave those paintings to Cynthia. If that construction be incorrect, and a statement to the effect alleged can be credibly construed from the writing in the diary extract, I would nevertheless attribute no weight to it. "C" is equally consistent with a number of meanings in addition to "Cynthia Nolan". If it did signify "Cynthia Nolan", the placing of "C" close to the titles cannot be assumed to signify that those paintings have been validly gifted to Cynthia.

Document 3.2 - Catalogue for the Moderna Museet Sidney Nolan Exhibition in Stockholm 17 January-7 March, 1976

1404. The catalogue lists "Royal Hotel" 1948 122 x 91 as No. 20 "tillhor" (Swedish for "belongs to") Mrs C. Nolan.

1407. I consider that the relevant statements contained in the catalogue are admissible, as being contained in a document which is, or forms part of, a record relating to the business of the Moderna Museet.

1410. Given a finding that it is admissible on that basis, it is unnecessary to determine admissibility on alternate bases. However, for reasons given above, I consider that the doctrine of ancient documents should not be extended to apply to an exhibition catalogue, which does not show on its face an assertion of ownership, as do the documents held in decided cases to constitute ancient documents. Further, I do not consider that it should be admitted, by inference, as an admission against interest by Sidney Nolan. Cynthia apparently advised the Moderna Museet to note "Royal Hotel" 1948 as belonging to her [see Document 3.9]. Two letters of Cynthia to Mr Von Schantz of Moderna Museum dated 27 November 1975 and 14 December 1975 respectively advise Mr Von Schantz that certain paintings are "mine" or are "belonging to me". Further, I consider that while there is evidence that Sidney Nolan was directly involved in the production of some catalogues, I cannot be confident that he had such involvement in the preparation of this catalogue. I cannot assume that Sidney Nolan understood Swedish or the significance of the attribution "tillhor" ("belongs to"). The catalogue lists "No. 20 Royal Hotel 1948 122 x 91 Tillhor Mrs C. Nolan". The absence of evidence that Sidney Nolan failed to prevent its publication is not tantamount to establishing his understanding and approval of the attribution.

1413. As the statement is admissible as a business record, it is necessary to determine what weight should be attributed to it. For the reasons stated above, it cannot be assumed that Sidney Nolan supplied the attribution or agreed with it, simply because there is no evidence of protest. However, on the most favourable construction for the plaintiff, if Sidney Nolan supplied and acquiesced in the attribution (which I do not find) it would still be necessary to establish that he delivered the painting to Cynthia, in order to establish a perfect and complete gift. The issue of delivery is considered below.

Document 3.3 - Letter of Sidney Nolan to Mr Phillip Von Schantz dated 12 October 1975

1417. The letter of Sidney Nolan to Mr Von Schantz dated 16 October 1975 stated that "We look forward very much to your visiting London after 10 November when we can arrange everything to do with the catalogue..." The handwriting was identified by Ms Jinx Nolan as that of Sidney Nolan.

1420. I consider that any relevant statement is admissible pursuant to s.51(a) and (b) of the Act. However, that statement is not that "Royal Hotel" 1948 belongs to Cynthia, but simply that Sidney plans that "we" (in context, Cynthia and/or himself) intend "to arrange everything to do with the catalogue etc". There is no evidence that the proposed meeting occurred or that Sidney Nolan himself provided the attribution of ownership. The statement establishes that Sidney Nolan intended to be involved in preparation of a catalogue which ultimately made such an attribution. In my opinion, exercising the required scrutiny and caution, it goes no further than that. If, however, on a proper construction, the attributions were made and approved of by Sidney Nolan, it would be necessary to establish the further element of delivery in order to prove a valid gift.

Document 3.4 - Letter from Phillip Von Schantz to Lord Clark dated 20 November 1975

1424. The letter of Phillip Von Schantz (director of the Moderna Museet) to Lord Clark dated 20 November 1975, refers to the proposed Retrospective Nolan Exhibition and the catalogue. It asks consent to translate Lord Clark's introduction to Colin MacInnes' book on Nolan, "an idea that Mr Nolan himself agrees on". I consider that any relevant statement would be admissible as a business record of the Moderna Museet, pursuant to s.55(1)(b) of the Act. The plaintiff contends that the statement supports the fact of ownership by Cynthia, by demonstrating the participation of Sidney Nolan in a catalogue which attributes ownership to her. While I consider that the statement is admissible, I attribute little weight to it. The fact that a third party asserts that Sidney Nolan agreed to the use of a translated introduction for the catalogue has no substantive connection with any attribution of ownership in that catalogue.

Document 3.5 - Letter of Phillip Von Schantz to Cynthia Nolan dated 10 December 1975

1428. The letter states that "the two paintings `Robbed' and `Soldier' will be mentioned in the catalogue as belonging to you". It also mentions arrangements for the exhibition and hotel bookings.

1431. In my opinion, any relevant statement would be admissible, as being or forming part of a record relating to the business of the Moderna Museet pursuant to s.55(1)(b) of the Act.

1434. However, in determining weight, I do not accept the plaintiff's submission that the letter "confirms that Cynthia Nolan was lending her own works for the exhibition in accordance with the usual practice of Sidney and Cynthia Nolan". In my opinion, that begs the question. The statement establishes no more than that Cynthia instructed the Moderna Museet to make the attribution. There is no evidence that Sidney Nolan participated in or approved that instruction.

Document 3.6 - Sidney Nolan's pocket diary for 14 January 1876

1438. The diary extract of Sidney Nolan's pocket diary for 14 January 1976 records for 14 January 1976 "Go Stockholm". The handwriting was identified by the plaintiff as that of Sidney Nolan.

1441. I consider that the only relevant statement in the extract is admissible pursuant to s.55(1)(a) of the Act, as being a statement made by a person, Sidney Nolan, who may be inferred to have had personal knowledge of the matters dealt with therein at the time of making it, and who, although not called as a witness, is now dead.

1444. Section 55(1)(b) of the Act would constitute an alternative basis for admissibility as, although some purely personal matters are included, professional commitments are also recorded.

1447. However, while I consider that "Go Stockholm" is admissible because it tends to establish the fact of Sidney Nolan's attendance at the date of exhibition and hence his participation in, or knowledge of the contents of the relevant catalogue, that tendency is very slight. Even if it could be inferred from this that Sidney Nolan attended the exhibition, it throws no light on his knowledge and approval of the attribution of "Royal Hotel " 1948 as "tillhor Mrs Cynthia Nolan".

Document 3.7 - Photograph (signed "S" on back) of Cynthia Nolan in Stockholm standing in front of poster advertising the Moderna Museet exhibition in 1976

1451. This is a photograph identified by the plaintiff as being of Cynthia Nolan, taken in front of a poster of the Moderna Museet Exhibition in Stockholm in 1976. There is an "S" on the back identified by Ms Jinx Nolan as being written by Sidney Nolan.

1454. "Statement" is widely defined in s.3 of the Act to include any representation of fact, whether made in words or otherwise. If the statement to the effect that Sidney Nolan attended the exhibition could be elicited from the photograph, it would be admissible, but I would place no weight on it, for the reasons outlined in relation to document 3.6. In any event, I do not consider that the plaintiff has established that Sidney Nolan took the photograph, although he apparently wrote the initial "S" on the back.

Document 3.8 - Letter from Cynthia Nolan to Phillip Von Schantz dated 27 November 1975

1458. The letter of Cynthia Nolan to Phillip Von Schantz dated 27 November 1975 includes the statement that "going through the paintings you have chosen I find 2 more belonging to me "Robbed", ripolin on board 36 x 48 and "Soldier", pva on board 38 x 36."

1461. Although I consider that any relevant statement is admissible pursuant to s.55(1)(a) of the Act, and as a business record of the Moderna Museet pursuant to s.55(1)(b), I would place little or no weight on it in establishing Cynthia's ownership of "Royal Hotel" 1948, for the reasons set out in relation to document 3.5.

Document 3.9 - Letter from Cynthia Nolan to Phillip Von Schantz dated 14 December 1975

1465. The letter of Cynthia Nolan to Phillip Von Schantz dated 14 December 1975 includes the statement "I notice Sidney has included one more of mine, the Chinese Cock".

1468. In my opinion, any relevant statement would be admissible pursuant to s.55(1)(a) and s.55(1)(b) of the Act, on the grounds set out in relation to document 3.8.

1471. For reasons set out in relation to document 3.8, I would attribute no weight to the statement in establishing Cynthia's ownership of "Royal Hotel" 1948. On the contrary, the statement tends to cast doubt on Cynthia's ownership, in that it clearly indicates that Sidney Nolan continued unilaterally and independently to deal with, or make available, a painting over which Cynthia had made an assertion of ownership.

Document 3.10 - Letter of Phillip Von Schantz to Cynthia Nolan dated 27 November 1975

1475. I consider that any relevant statement would be admissible pursuant to s.55(1)(a) of the Act as the maker, Mr Von Schantz, may be inferred to have had at the time of making the statement, personal knowledge of the matters dealt with by the statement and although not called as a witness, is dead.

1478. Further, a relevant statement would be admissible pursuant to s.55(1)(b) of the Act as being or forming part of, a record relating to the business of Moderna Museet made from information supplied by Mr Von Schantz, who may reasonably be inferred to have had personal knowledge of the matters dealt with, and who although not called as a witness, is now dead.

1481. In the letter Mr Von Schantz informs Cynthia that work with the catalogue is "well under way" and "we are very happy that the paintings "Royal Hotel" and "Convict Crossing Creek" will be included and we will certainly mention you in the catalogue as the owner of them".

1484. Although the statement is admissible, I do not accept the plaintiff's submission that it "confirms that Cynthia Nolan was lending her own works for the exhibition". Rather, the letter suggests that Cynthia had asserted her ownership of "Royal Hotel" 1948 to Mr Von Schantz in a communication to which Sidney Nolan may not have been party and had elicited an acknowledgment of her asserted ownership in the catalogue.

Conclusion on Donative Intention - "Royal Hotel" 1948

1488. Having exercised the required scrutiny and caution in assessing the documents and statements, I am unable to conclude that they evidence words of gift or an unequivocal acknowledgment of Cynthia's ownership of "Royal Hotel" 1948 by Sidney Nolan.

The letter of Richard Cobden to Cynthia Nolan dated 11 June 1976/David Jones file

1492. Although the letter of Richard Cobden constitutes part of a business record of the National Gallery or Cynthia Nolan, it is a formal acknowledgment of the letter of Cynthia Nolan and Elwyn Lynn, and adds nothing to the content of those letters. I therefore uphold the defendants' objection to admissibility. The statement or statements sought to be admitted from the documents in the David Jones file, and their relevance, are not identified. I therefore uphold the objection to the admission of the file.

1496. As I have found that the plaintiff has not established words of gift or the requisite donative intention in relation to any of the three paintings, it is unnecessary to consider the further requirement of delivery. However, for the sake of completeness I do so.

1499. Delivery in the present context does not function merely as evidence of donative intention. It is the legal act essential to complete the gift. It transfers both possession and (by perfecting the gift) ownership of the chattel to the donee. Accordingly, a valid delivery marks the termination of the donor's dominion. A continuation of control or power in the donor is inconsistent with a valid delivery and hence inconsistent with a perfect gift.

1502. This was well-expressed in Young v Cockman[107] a decision of the Maryland Court of Appeals, in which Delaplaine J, delivering the judgment of the court, observed:

"To make an effectual delivery the donor must not only part with possession of the property, but must relinquish all present and future dominion and control over it beyond any power on his part to reclaim it. It is obvious that a transfer is not a transfer of possession unless the transferor intends that it shall take effect immediately. If he retains the same control over the propery that he had before the transfer was made, there remains a locus poenitentiae, in which he may revoke what he has done, and consequently there is no delivery."[108]

1506. It is well-established that delivery may be actual (by way of manual or physical transfer of the goods),[109] or constructive.[110] Constructive delivery may take various forms. Where the nature or bulk of the goods renders manual delivery impossible or impractical, acts falling short of manual delivery have been held sufficient to signal a change in possession.[111]

1509. A further form of constructive delivery occurs when the donee is already in possession or, according to some authorities, when the donee already has custody, of the chattels.[112] Delivery can also occur after the manifestation of intention, or (in the usual case) contemporaneously with it.[113]

1512. As the gift can be retracted at any time prior to delivery, where delivery takes place subsequently, it would be necessary to establish that the previously expressed donative intention was still on foot when delivery occurred.

1515. Alternatively, it would be necessary to establish that the chattels were already in the possession (or at least the custody - see discussion below) of the purported donee at the time when the words of gift were expressed or donative intention was otherwise made manifest.

1518. Where possession of the chattels by the intended donee precedes the words of gift, the gift may be perfected without the necessity for the donor to retake possession of the chattels in question in order to effect a valid delivery. In Re Stoneham; Stoneham v Stoneham,[114] the chattels in question were already situated in a house occupied by the donee when the donor spoke the words of gift. Laurence J, having reviewed Cochrane v Moore,[115] held that where the chattel the subject matter of a parol gift is already in the possession of the donee at the time when the gift is made, a further delivery or a change of possession is unnecessary. Rather, "in order to constitute a perfect gift by word of mouth of chattels capable of delivery the donee must have had the chattels delivered into his possession by the donor or by someone on his behalf. In principle, I can see no distinction between a delivery antecedent to the gift and a delivery concurrent with or subsequent to the gift. Nor can I see any reason in principle why the rule should not apply to a case where chattels have been delivered to the donee before the gift as bailee or in any other capacity, so long as they are actually in his possession at the time of the gift to the knowledge of the donor".[116]

1521. Laurence J reaffirmed the requirement of a delivery and, in the case of antecedent possession by the intended donee, appeared to assume that a delivery to the donee whether "as bailee or in any other capacity" had already occurred.

1525. The question of how delivery of household goods or chattels is to be validly effected between spouses or other cohabitants in a common establishment poses special difficulties. The determination of whether an establishment is "common" is a question of fact.[117] There is no reason why the concept should be restricted to particular categories of social or familial relationships.

1528. The National Trustees Executors and Agency Company Limited v O'Hea[118] is an early Victorian decision dealing with a purported gift from employer to employee within a shared establishment. The deceased, when close to death, stated clear words of gift of his coach and horses to his servant, the coachman. There was no doubt that the deceased intended to make a gift. However, no change in possession occurred. The coach and horses continued to be maintained at the deceased's premises.

1531. A'Beckett J found that the requirement of delivery was not satisfied. Although delivery could be antecedent, in the present case, although the servant had actual possession, it was not possession as a bailee, but legally, was the possession of the donor, his master.[119] Further, nothing was done which would indicate a change in possession. "It could not be said that the [donor] had at any time made delivery to his coachman of any of the chattels which were in his custody at the time when they were given to him, or that the custody differed from the ordinary custody by a servant of his master's goods. When things are in such custody I hold that there can be no effectual gift of them by the master merely telling the servant that he may keep them as his own."

1534. In requiring delivery, A'Beckett stated, "It would be dangerous to relax a rule which requires some visible act as an essential, when the only other essential is that certain words should be spoken."[120]

1537. The question of delivery between spouses in a common establishment was considered in Re Cole - (a Bankrupt) Ex p. The Trustees v Cole.[121] In that case, a husband purchased a house as a family home, equipped it with valuable furniture and introduced his wife to the house, escorting her through the house indicating items and stating, "Look, it's all yours". The spouses continued to reside together in the house.

1540. On the husband's subsequent bankruptcy, the trustee in bankruptcy claimed entitlement to the house contents. The wife contested that claim, on the ground that she was the beneficiary of a valid gift.

1543. Cross J, at first instance, held that there was a valid gift, observing, "I do not see what more Mr Cole could have done to put Mrs Cole into possession of the gift which he thought he was making".

1546. On appeal, the Court of Appeal held that there was no valid gift. Harman LJ observed:

"It is, I think, trite law that a gift of chattels is not complete unless accompanied by something which constitutes an act of delivery or a change of possession. The English law of the transfer of property, dominated as it always has been by the doctrine of consideration, has always been wary of the recognition of gifts ... in the absence of consideration, delivery is still necessary, except in the cases of a gift by will or by deed, which latter itself imports both consideration and delivery."[122]

1550. Reviewing applicable authorities, Harman LJ, although recognising that delivery could be constructive and could accompany, precede or antecede the gift, held that delivery was necessary in every case of a parol gift inter vivos.

1553. Relying on Bashall v Bashall, Harman LJ emphasised that the requirement of delivery was as essential in a case of husband and wife as in a case of two strangers. He considered that in such a case, although small items, such as jewellery could readily be delivered, in the case of voluminous or unwieldy items, the requirement of delivery, (which must be more than words or the mere introduction of a wife to a matrimonial home in which the chattels were situated), could be difficult. He considered that the wife's usage of, or access to the chattels, would not suffice.

1556. Harman LJ held that there was no change in possession in Re Cole. He observed that "it is true that it may be doubtful who is in possession of the furniture and that you must look to the title."[123]

1559. Pearson LJ, observed, "it has been established that oral words of gift or even written words of gift not embodied in a deed or will, are not sufficient to make an effective gift unless there has been or is delivery of possession to the donee. The basic idea is that there must be giving and taking, and if the donor retains possession, has not yet given and the donee has not yet taken".

1562. Pearson LJ also took the view that in the case of a husband and wife living together or other persons having a common establishment, the possession, as it would otherwise be doubtful, is attached by law to the title.[124]

1565. Pearson LJ concurred with Harman LJ and Pennycuick J in holding that applicable authority required delivery in the case of husband and wife within a common establishment, endorsing the statement in Bashall v Bashall[125] that in the case of delivery between spouses, "if the facts proved were equally consistent with the idea that he intended to deliver the thing to the wife so as to be her property, and with the idea that he intended to keep it as his own property then the wife failed to make out her case".[126]

1568. As such, Pearson LJ observed that delivery must be an act which in itself shows an intention of the donor to transfer the chattel to the donee. "If the act is in itself equivocal - consistent equally with an intention of the husband to transfer the chattels to his wife or with an intention on his part to retain possession but give to her the use and enjoyment of the chattels as the wife - the act does not constitute delivery".[127]

1571. His Lordship noted that in the case before him, there was no pre-existing possession in the donee prior to any words of gift and the acts relied on, being equivocal in the relevant sense, did not satisfy the requirement of delivery.[128]

1574. If Lord Pearson's approach be correct, although delivery is not merely evidence of intention to make a gift, but rather an integral component of the gift transaction, it is nevertheless necessary that the act of delivery unequivocally evidence the donor's intention to transfer, and not retain, possession of the chattel in question.

1577. Interestingly, Pennycuick J expressed himself as constrained by authority rather than persuaded as a matter of principle to hold that an act of delivery was required when one spouse spoke words of gift to the other spouse, who was already sharing the physical enjoyment of the relevant chattel.[129] His Honour's approach appears to foreshadow that of Santow J in Horsley v Phillips Fine Arts Auctioneers Pty Ltd, discussed below.

1580. The peculiar problems posed by spouses or other cohabitants in a common establishment have received recent consideration in two Australian cases, which evince differing and perhaps irreconcilable approaches.

1583. In Horsley v Phillips Fine Art Auctioneers Pty Ltd,[130] Santow J questioned the authority of Re Cole. His Honour held that where chattels are situated in a residence of which the intended donee is occupier or titleholder, and there is no shared control of the chattels, the chattels may be regarded as being in the pre-existing possession, or at least the custody, of the donee, and subsequent words of gift may suffice to perfect the gift, without any requirement for the donor first to retake possession or to execute a deed. His Honour's observations also evinced an expansive approach to delivery, suggesting that prior custody by a donee in a common establishment may suffice.

1586. In Horsley v Phillips Fine Art Auctions Pty Ltd[131] a credit corporation which seized certain valuable household chattels as assignee of a bill of sale resisted a cross-claim for conversion on the grounds that the cross-claimant had, inter alia, divested himself of that interest by joining with his brother in an effective gift of their half interests in the chattels to their mother, prior to the granting of the bill of sale from which the credit corporation purportedly derived title.

1589. The brothers (who held joint title to the chattels in question) occupied a very large mansion property with their parents. The cross-claimant occupied a separate cottage and his brother, although residing within the main house with the parents, occupied a separate suite. Santow J held that the arrangement did not constitute a "common establishment".

1592. The relevant furniture was kept in those parts of the main house which were under the control of the parents, so that if the brothers used the rooms they did not do so "as co-possessors with their parents, but by leave of their parents; though no doubt their access was in practice untrammelled".[132] Santow J accepted the cross-claimant's evidence that the brothers "did unequivocally state to their mother that they were gifting the furniture to her and had the celebratory drink".[133]

1595. His Honour considered that the cross-claimant probably walked around the various items of furniture, but was unable to determine whether he was accompanied by his mother or brother, or, if his mother accompanied him, whether he placed his hand on the items, although he did not hand anything to his mother.

1598. Santow J concluded that a valid gift of the chattels had been effected. In that context, he relied upon the principle that further delivery is unnecessary if the intended donee "already had possession or at the least custody of the chattels at the time of the words of gift".[134]

1601. His Honour discussed the distinction between legal possession (animus possidendi and a degree of physical control sufficient to exclude strangers from interfering) and mere custody (de facto possession or mere physical control). He referred to Flinn v White[135] in which words of gift by a father to his daughter in relation to a piano, which remained throughout situated in the family home of which the father was occupier, were held to be ineffective, for want of pre-existing possession or custody in the donee, or a further act of delivery.

1604. Santow J questioned whether, although the daughter had "no more than a licence, revocable by the father at will" to use the piano, she did not in fact have custody. In his view, "status as a licensee, as such, need not be fatal; a licensee can have the degree of physical control required for custody".[136] His Honour found, however, that the decision could, in any event, be justified by reference to onus. The daughter had not dispelled the implication of her having only limited access, a right to use the piano at the father's pleasure, which was shared with at least one other family member. More directly relevant were Hislop v Hislop[137] and Re Cole which involved a purported gift between husband and wife residing together in the matrimonial home. Santow J considered the results in Hislop v Hislop and Re Cole were explicable because joint de facto control of the furniture, (based on being permitted to use and enjoy it) did not suffice to establish pre-existing possession.

1607. In Horsley v Phillips Fine Art Auctioneers Pty Ltd, Santow J held that the intended donee, the mother, had (jointly with her husband) physical control and therefore custody of the chattels. On one view, she also had exclusive possession of the house and therefore of the rooms in which they were situated. The fact that the mother had such custody or possession jointly with her husband was, in his view, irrelevant.

1610. On Santow J's findings, there was no joint custody or possession between the putative donors and donee. Although not deciding the question, Santow J was inclined to think that shared control between a putative donor and donee should not be fatal. He observed -

"This is especially where there is no suggestion of shared control between putative donor and donee. I do not need to decide whether the feature, absent here, should be fatal to an effectual gift, though I am inclined to think it should not be fatal."[138]

1614. In Horsley v Phillips Fine Arts Auctioneers Pty Ltd, Santow J questioned the authority of Re Cole and Hislop v Hislop because the cases failed to deal with custody as a separate basis from possession. His Honour considered that, "They appear to have proceeded on an implicit, and I suggest, questionable assumption. That is, that where goods are in the shared use of the putative donor and donee, but where the putative donor has the superior right to those goods through ownership of the home in which kept [sic] that necessarily precludes a finding of custody on the part of the claimant donee".[139]

1617. Santow J's observation may suggest that the purported donors in Re Cole and Hislop v Hislop had de facto mixed possession, but a superior right to the goods, not because they had legal ownership of the goods, but because they had legal title to the house in which they were situated. However, the reference to "possession following title" in those cases related to the title to the chattels, not title to the residence in which they were situated.

1620. Horsley v Phillips Fine Art Auctioneers Pty Ltd did not concern a common establishment or a situation of shared control and Santow J's observations were therefore obiter dicta.

1623. In Tudberry v Sutton,[140] a case decided after Horsley v Phillips Fine Art Auctioneers Pty Ltd, Judge McGill S.C. strongly reaffirmed the primacy of the requirement for an identifiable act of delivery. He considered that recognised exceptions based on prior possession or custody should not be extended. In Tudberry v Sutton, the deceased's sister and her family resided in his house, visiting from interstate, while he was gravely ill in hospital. The sister gave evidence that her brother expressed an intention to make an immediate gift of a memento to her children (his niece and nephew). The sister selected and named two paintings in her brother's house, informed him, and he appeared to nod assent. The sister then removed the paintings from the brother's residence. The brother subsequently died.

1626. Judge McGill S.C. held that there was no valid gift. He adverted to the necessity for the donor to give, rather than the donee to take, possession.[141] He questioned the status of Thomas v Times Book Co Ltd, which he identified as the only decision in which the taking of possession by the donee had been upheld. He considered that if it correctly decided that an effective delivery had occurred, such delivery was effective not because the donee took possession with consent, but because, on proper analysis, the custodian of the place where Thomas had mislaid the manuscript gave it to the donee in the capacity as the bailee of the donor. Nevertheless, Judge McGill S.C. concluded that, taken at face value, the decision in Thomas v Times Book Co Ltd is "simply wrong and is an example of a hard case making bad law".[142]

1629. Judge McGill S.C. considered that Santow J's unqualified extension of prior possession to prior custody in any capacity at all in Horsley v Phillips Fine Art Auctioneers Pty Ltd failed to accord with the tenor of applicable authority and with the underlying governing principle that delivery is the formal step which effects the gift.

1632. He considered that the only case where mere custody, as distinct from possession, is legitimately within the exception would be where the donee is in the degree of physical control that would otherwise require the donor first "to retake" the chattels.[143] That would have been the case in both Re Stoneham and Horsley v Phillips Fine Art Auctioneers Pty Ltd, as the donees were in exclusive occupation of the residences in which the chattels were situated. It would not be the case where the donor and donee occupied a common establishment and where there was only "such custody as is afforded by actual use from time to time".[144] In such cases, mere words of gift unaccompanied by any further act of delivery would not suffice. Some manual or constructive act of delivery would be necessary "unless the donee already has `such a degree of possession that there would have to be re-delivery before there could be delivery'."[145] On that basis, Re Cole was correctly decided.

1635. In reiterating a preference for continued observance of the strict requirement of delivery, and confining the exception of pre-existing possession to strict limits, Judge McGill S.C. noted "I suspect that part of the reason for the survival of the rule in its strict form has been a desire to prevent a deathbed gift inter vivos or donatio mortis causa from evading statutes which require wills to be made in a particular form, coupled with a general suspicion as to the genuineness of claims of oral gifts from persons who were either unable to dispute them (because they were dead) or happy to connive at them (because they were bankrupt). There is, however, in my opinion, no justification for relaxing these rules.[146]

1638. Judge McGill S.C. held that the temporary residence of the deceased's sister as a guest in his house did not confer custody of the premises or the chattels therein, although the owner was temporarily absent. The exception did not apply, because re-delivery to the donor was not necessary in order to complete the gift.[147]

1641. In my opinion, there is force in Judge McGill S.C.'s insistence on maintaining delivery as a pre-eminent independent requirement. In the absence of an unambiguous act, the enforcement of voluntary transfers against donors and their successors in title could produce unjust outcomes. That approach does, on occasion, result in the failure of some purported gifts which were genuinely intended. However, greater harm may result from undue relaxation of the delivery requirement, particularly in the context of common establishments. A proliferation of claims between cohabitants, trustees in bankruptcy and executors, together with increased uncertainty in the determination of such claims, may result. In my opinion, the principles expressed in The National Trustees Executors and Agency Company Limited and Re Cole should be maintained.

1644. In the present case if, contrary to my findings, the relevant documents expressed Sidney Nolan's clear donative intention or acknowledgment of Cynthia's owernship, the plaintiff must also establish a delivery of the paintings.

1647. There is no direct evidence of any act of delivery, whether manual or constructive, by Sidney Nolan to Cynthia.

1650. In the present case, it is undisputed that Sidney Nolan and Cynthia occupied a common matrimonial home during the course of their marriage.

1653. The question arises whether there is any basis on which the plaintiff can discharge the onus of establishing delivery.

1656. As set out in paragraphs 43 to 46 above, there is no evidence that the paintings in dispute were situated in the Nolans' matrimonial home during the course of their marriage.[148] Other than for the period from 1974 to mid 1976 (in relation to "Hare in Trap" 1946 and "Italian Crucifix" 1955) and the periods of the relevant exhibitions, there is no evidence as to where the paintings were situated.

1659. Further, other than for the period from 1974 to mid 1976 there is no evidence of Cynthia's level of access to, or power, rights of user and control over, any of the paintings in dispute.

1662. Given such lacunae, the liberal approach of Santow J in Horsley v Phillips Fine Art Auctioneers Pty Ltd to pre-existing custody in a common establishment, even if extended, cannot assist the plaintiff to establish delivery in the present case.

1665. There is no evidence that Cynthia was, at any stage, in possession of "Royal Hotel" 1948. There is evidence that Cynthia caused 26 paintings including "Hare in Trap" 1946 and "Italian Crucifix" 1955 to be despatched to Australia in 1974 and that she exercised control and dominion over "Hare in Trap" 1946 and (probably) "Italian Crucifix" 1955 until at least June 1976.

1668. Cynthia at that time took possession of the paintings in question and assumed the rights of an owner in relation to them. There is no evidence that Sidney Nolan delivered possession to Cynthia. On the contrary, he did not know of, or consent to, her actions. If, contrary to the views expressed in Tudberry v Sutton, a valid delivery may be established by the donee's taking possession with the knowledge and consent of the donor, that did not occur in the present case. Unauthorised appropriation by the purported donee could not constitute a valid delivery on any view. In the circumstances, the plaintiff has failed to establish the essential element of delivery.

1672. In this proceeding, the cases for the plaintiff and the defendants have been clearly presented and well-argued. For the reasons set out above, in my opinion, the plaintiff has failed to establish the requisite elements of donative intention and delivery in relation to the three paintings. I conclude that a valid gift of the paintings to Cynthia, on which the plaintiff's claim to relief in this proceeding depends, is not made out.

1675. Given my finding that a valid gift of the three paintings is not established, it is unnecessary to consider the defences and the arguments in reply. In order to avoid undue delay, I shall not consider them comprehensively or in any detail. I observe, however, that had a gift of the paintings to Cynthia been established, in my opinion a defence based on the Limitation of Actions Act 1958 (Vic), at least, would have been made out.

1678. I consider that Sidney Nolan's conduct in assuming the rights of an owner in relation to the paintings from a date in late 1976 would have constituted conversion[149] and the right of action of Cynthia's trustees would have been barred after the expiration of a six year period pursuant to the Limitation of Actions Act. I do not accept the plaintiff's submission that, in such circumstances, Sidney Nolan would assume the status of a constructive trustee to whose conduct no limitation applies by virtue of s.21 of the Limitation of Actions Act. It is recognised that a donor who has completed all elements of a gift save for the transfer of legal title may be constituted a constructive trustee for the donee while the donor retains legal title.[150] However, the present case concerns an alleged gift of chattels. If a gift of chattels were complete and valid, the donor would necessarily be divested of legal title to the chattels. There is no legitimate role for a constructive trust in such circumstances and no precedent for it has been identified.

1681. As the additional constructive trusts pleaded by the plaintiff are all predicated upon the primary constructive trust allegedly imposed on Sidney Nolan, I shall not consider them further.

1684. In my opinion, the plaintiff's claim must fail and the proceeding should be dismissed.

[1] Young v Murphy [1960] 1 VR 279.

[2] MCC Proceeds Inc v Lehman Brothers International (Europe) "The Times", London, 14 January 1998.

[3] (1998) 44 NSWLR 432.

[6] [1971] VR 613.

[7] [1923] HCA 60; (1923) 33 CLR 538.

[8] Per Sir Thomas Plummer MR in Marquis Chomondeley v Lord Clinton (1820) 2 Jac. E.W.I, 139-40; [1820] EngR 550; 37 ER 527.

[9] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242.

[10] Per Stuart V.C., Howard v Fingall (1853) 22 LTOS 12.

[11] Crossley Vaines on Personal Property, London 1973 at 301, Fisher, S. "Commercial & Personal Property Law", Butterworths, 1997 at 451.

[12] In re Stoneham; Stoneham v Stoneham [1919] 1 Ch 149 at 153.

[13] [1964] Ch 175.

[16] [1990] HCA 12; (1989-1990) 169 CLR 540.

[18] Richards v Delbridge (1874) LR 18 Eq. 11 at 15 per Jessel, M.R.

[19] (1885) 15 QB 447.

[21] (1904) 29 BLR 814.

[22] (1885) 31 Ch D 1 at 8, 9.

[23] [1960] 2 All ER 241.

[25] [1915] HCA 14; (1915) 19 CLR 544.

[27] [2002] VSC 320.

[28] [1915] HCA 14; (1915) 19 CLR 544 at 548-9.

[29] [2000] VSC 551.

[36] Plunkett v Bull; The Perpetual Executors and Trustees Association of Australia Limited v Wright [1917] HCA 27; (1917) 23 CLR 185, Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785.

[37] [1959] HCA 8; (1959) 101 CLR 298.

[38] [1982] USCA2 433; 678 F. 2d 1150.

[39] Per Cussen J in R v Parker [1912] VicLawRp 32; [1912] VLR 152 at 160.

[40] [2002] HCA 59 12 December 2002.

[43] [1979] 2 NSWLR 193.

[45] [1967] VicRp 61; [1967] VR 566.

[46] [1999] VSC 326 (23 August 1999).

[47] [1970] WAR 170.

[48] Ibid, at 175; See also Lenehan v Queensland Trustees Ltd [1965] Qd R 559.

[49] See Marra Developments Ltd and the Companies Act [1979] 2 NSWLR 193 at 198.

[50] (1980) 2 NSWLR 542 at 548-549.

[52] [1999] VSC 326 23 August 1999.

[55] Morley v National Insurance Co at 567. See also R v Ernst & Ors [1984] VicRp 49; [1984] VR 593 at 596; Weilgus v Weilgus [1959] VicRp 30; (1959) VR 193.

[56] [1954] VR 514

[58] (1993) 31 NSWLR 412 at 435.

[60] Cross on Evidence, Australian edition, paras 35085 - 35090.

[61] [1957] VicRp 32; [1957] VR 221.

[63] [1954] VR 514.

[65] [2001] VSC 484 (4 December 2001).

[69] Cross on Evidence, Australian edition, para 35090.

[70] (1991) 22 NSWLR 717.

[73] See for example, Second Reading Speech, Evidence (Documents) Bill, 31 August 1971.

[74] [1951] 2 KB 937 at 946.

[77] (1995) 56 FCR 481 at 484-5.

[78] [2002] VSCA 59; [2002] 4 VR 332.

[80] [2002] FCA 1294.

[81] Mitsubishi Electric Australian Pty Ltd v Victorian Workcover Authority, supra, at 341.

[84] Hurley v Southwick, supra, at 5.

[85] (1982) NSWLR 409.

[89] [1863] EngR 867; (1863) 10 HL Cas 593 at 614; [1863] EngR 867; 11 ER 1155 at 1164.

[91] Cross on Evidence, Australian edition, para 1265.

[92] Malcolmson v O'Dea, supra, at 614; 1164.

[98] [1899] 2 Ch 121.

[101] Cross on Evidence, Australian edition, para 33815.

[102] Blandy-Jenkins, supra, at 125-6.

[104] [1878] 3 App Cas 641.

[107] 149 ALR 1006.

[109] Re Everett; Executor Trustees and Agency Company of South Australia v Everett [1917] SASR 52 at 58; Olsson v Dyson (1969) 120 CLR 365 at 385.

[110] Re stoneham; Stoneham v Stoneham [1919] 1 Ch 149 at 156.

[111] Winter v Winter (1861) 4 LT 639; Rawlinson v Mort (1905) 93 LT 555.

[112] Horsley v Phillips Fine Art Auctioneers Pty Ltd (1999) 7 BPR [97557[ at 14,367.

[113] Re Stoneham¸ supra, at 153-154.

[114] [1919] 1 Ch 149.

[115] (1890) 25 QBD 57.

[116] In Re Stoneham; Stoneham v Stoneham, supra, at 153-154.

[117] Horsley v Phillips Fine Art Auctioneers Pty Ltd (1996) 7 BPR [97557] at 14,370.

[118] [1905] 29 VLR 815.

[121] [1964] Ch 175.

[125] (1894) 11 TLR 152 at 153.

[130] BC 950 5362 SC NSW, Santow J, 31 July 1995, 5 September, 1995.

[134] Horsley v Phillips Fine Art Auctioneers Pty Ltd, supra, at 10.

[135] [1950] SASR 195.

[136] Horsley v Phillips Fine Art Auctioneers Pty Ltd, supra, at 12.

[138] Horsley v Phillips Fine Art Auctioneers Pty Ltd, supra, at 15.

[140] (1998) 20 Qld Lawyer Reps 13.

[142] Ibid. It is possible to view Thomas v Times Book Co Ltd as an example of constructive delivery by the donor, whose provision of information on the whereabouts of the mislaid manuscript conferred access on the donee to the extent possible in the circumstances.

[148] Mr Danziger-Miles' evidence was to the effect that `Italian Crucifix' 1955 was in the house at some stage, but no date was given.

[149] Penfolds Wines Pty Ltd v Elliot (1946) CLR 204 at 229 - 230 per Dixon J.

[150] Re Rose [1952] Ch 499.