1 At the commencement of the hearing, there were two proceedings. I ordered that they be heard together. In the first proceeding, the plaintiff, an owner of an expensive BMW motor vehicle, sued a company which had serviced and repaired the vehicle, seeking damages for breach of a contract of bailment in that the company failed to re-deliver the vehicle after the service was completed. In that proceeding, the company joined as a third party a person who it alleged stole the vehicle from its premises. He was later joined as a second defendant to the proceeding on the application of the owner of the motor vehicle. In the second proceeding, the person who was alleged to have stolen the vehicle brought a proceeding seeking damages against the body responsible in this State for the registration of motor vehicles, alleging that it negligently registered the vehicle, which led him to believe that it was not a stolen vehicle.
Parties
2 The plaintiff in the first proceeding, Safari 4 x 4 Engineering Pty Ltd ("Safari"), purchased a BMW M5 motor vehicle in June 2000 from the first defendant, Doncaster Motors Pty Ltd. The first defendant ("Doncaster Motors") at all material times was a motor vehicle dealer conducting the business of purchasing and selling motor vehicles, and servicing and repairing them at its premises at 812 Doncaster Road, Doncaster.
3 The third party, Samuel Maxwell Kettyle ("Mr Kettyle"), was originally joined as a third party in the first proceeding, and on the morning of the commencement of the hearing, leave was granted to Safari to join him as a second defendant. Mr Kettyle was born on 19 June 1970. During the year 2000, he conducted a business through a company called Crown Colour FX Pty Ltd ("Crown Colour") and had operated that business for approximately five years. He was the only director and shareholder of the company in 2000. Crown Colour carried on the business of repairing motor vehicles, involving panel beating and spray painting. The company's business was the performance of small jobs, and the company was employed by a number of car dealers. Mr Kettyle travelled from car dealership to car dealership to carry out the works, and on some occasions the vehicle to be repaired was taken to his home, where he performed larger jobs in his garage.
4 In the second proceeding, Mr Kettyle was the plaintiff and he sued Roads Corporation trading as VicRoads ("VicRoads"). VicRoads is a statutory corporation pursuant to s.15 of the Transport Accident Act 1983. It is the body responsible for the registration of motor vehicles in this State. It issues certificates of registration of motor vehicles registered in this State and, in addition, compiles and keeps records relating to such motor vehicles.
The two proceedings combined
5 The first proceeding was instituted in 2001. The plaintiff was Safari and Doncaster Motors was defendant. The latter joined Mr Kettyle as a third party to the proceeding, and on the first day of trial he was joined as second defendant by the plaintiff. Because Doncaster Motors had a third party claim against Mr Kettyle, it was ordered that its third party notice be treated as a claim for indemnity and/or contribution between defendants. The second proceeding was instituted in 2006. It was ordered that the proceedings be heard together and that the findings of fact made by the Court would bind all parties to the combined proceeding.
Dispute
6 The circumstances which brought the parties to Court can be briefly stated. On 29 June 2000, Safari purchased from Doncaster Motors a 2000 model BMW M5 motor vehicle ("BMW") for $158,667. Its registration number was QCZ 577. Safari purchased the vehicle tax free and its replacement value was in the order of $212,000. It was a V8 sports sedan and a very expensive motor vehicle. By 4 November 2000, the BMW had travelled 1,423 kilometres and on that day, Safari's managing director, Mr Peter Luxon, delivered the vehicle to Doncaster Motors at its premises. He requested that the vehicle be serviced and that the interior trim of the vehicle be changed. He also asked Doncaster Motors to address a number of complaints he had concerning the vehicle. By Monday 13 November 2000, the works had been carried out and an employee of Doncaster Motors, Mr Donaldson, took the vehicle for a test drive between 11.47 and 11.54 am. The vehicle was then parked in an area described as the "holding car area" at the premises of Doncaster Motors. The car's key was then placed on a key board in an internal office in Doncaster Motors. Mr Luxon was informed that he could collect his vehicle, and he indicated that he would collect it either on Tuesday or the following day. The only way that one could drive the vehicle was to use the vehicle's key. There was no other way of starting the vehicle.
7 Some time during the night of Tuesday-Wednesday, 14-15 November 2000 the BMW was stolen from the premises. Safari made a demand upon Doncaster Motors to redeliver the vehicle to it but Doncaster Motors failed to do so.
8 Mr Kettyle, in the course of Crown Colour's business, was present at the premises of Doncaster Motors on Tuesday 14 November 2000 performing work on another BMW motor vehicle. It was a relatively small job and his company charged $120 for the work. By November 2000, Mr Kettyle had been performing jobs for Doncaster Motors over a period of approximately three to four years, and would have been present at the premises about two to three times per month over that period. The evidence revealed that he was a trusted contractor and that he was free to move throughout the premises.
9 Mr Kettyle gave evidence that he met a person called Robert Costa in or about February-March 2002. He stated that the latter was involved in buying and selling motor vehicles and that Mr Costa requested him to perform work on a BMW M5 motor vehicle. This he did, and after discussions, he agreed to purchase the motor vehicle from Mr Costa.
10 On 30 April 2002, Mr Kettyle became the registered owner of a 2000 BMW M5 sedan, which he said he purchased from Mr Costa for $115,000. Its registration number was ROA 439. Its colour was silver, which was the same colour as Safari's BMW.
11 On 29 September 2003, Mr Kettyle left his BMW motor vehicle with an automotive repairer who carried on business in a service Station in Doncaster Road, Doncaster, to perform an investigation into an engine problem. As a result of a number of enquiries made, it was ascertained later that day that the said vehicle was in fact the vehicle which had been stolen in November 2000 from Doncaster Motors. The police were informed and the vehicle was seized. Subsequently, there was an interpleader summons issued in the Magistrates' Court and on 12 April 2005, the Magistrates' Court at Melbourne ordered that the police deliver the BMW to AMP General Insurance Limited or its nominee. Mr Kettyle was represented by lawyers in the interpleader proceeding, but in the end did not contest the proceeding. He was ordered to pay costs of $1,250 as the losing party. On 20 April 2006, the BMW was sold for $40,000.
12 Safari claims the replacement value of the vehicle, namely $212,009.70, less the net proceeds of sale and the amount received from Mr Kettyle for costs, together with the costs incurred, including legal costs, in recovering the BMW, such costs totalling $36,960.45. These sums are claimed from the defendants Doncaster Motors and Mr Kettyle. The said defendants deny liability.
13 In the second proceeding, Mr Kettyle seeks against VicRoads the sum of $115,000, which he alleges he paid for the vehicle when he purchased it on 30 April 2002. His claim is in common law negligence.
Second proceeding compromised
14 On the fifth day of the combined trial, during the case of Mr Kettyle and after he had been cross-examined for some days by counsel appearing for all parties, the proceeding brought by him against VicRoads was compromised and orders were made that the proceeding be dismissed and that there be no order as to costs. This left the first proceeding, which involved a claim in bailment by Safari against Doncaster Motors, a claim for conversion against Mr Kettyle by Safari, and a claim brought against Mr Kettyle by Doncaster Motors for indemnity and/or contribution for conversion.
First proceeding part compromised
15 After the hearing had finished and the Court had reserved its decision, it was informed that the proceeding brought by Safari against Doncaster Motors had been compromised. The Court has not made any orders in respect to the claim. The Court has not been told what the terms of the compromise are. This judgment will deal with the remaining issues in the proceeding, namely the claims by Safari and Doncaster Motors against Mr Kettyle.
Facts
16 Many of the basic facts were not in dispute. However, there was some argument as to the inferences that one might draw from the basic facts.
17 On or about 29 June 2002, Safari purchased a 2000 BMW M5 motor vehicle for the sum of $158,667. It was a brand new vehicle. The purchase was sales tax exempt. Its replacement value was in the order of $212,000. It was a special BMW 5 Series motor vehicle. It had a V8 motor and was a very high powered sporting sedan. Safari's managing director, Mr Luxon, purchased it for what he described as "engineering purposes". His company was involved in high performance engineering. The vehicle was silver in colour with a black interior, and was registered QCZ 577. The vehicle was fitted with all of the M5 features, with additional options of rear blinds and extended heritage leather. It was a prestige, powerful car. Few were sold in Australia.
18 Mr Peter Luxon drove the vehicle on about three occasions after its purchase.
19 On Saturday 4 November 2000, Mr Luxon delivered the BMW to the premises of Doncaster Motors for a service and to have the interior trim changed. Mr Luxon agreed to leave the car for a period of about 10 days. The works were carried out and by Monday 13 November 2000 had been completed. A senior employee of Doncaster Motors, Mr Donaldson, road tested the vehicle between 11.47-11.54 am on Monday 13 November 2000. Having completed the road test, Mr Donaldson placed the car key on a peg board in an internal office. Mr Luxon was informed that day that his vehicle was ready to be collected. He stated that he would pick up the vehicle either the following day or the day after, being Wednesday 15 November 2000.
20 When Mr Luxon delivered the vehicle to Doncaster Motors he left the car key with it. Evidently, he also left a leather pouch containing two other keys in the glove box of the vehicle. It is impossible to start the car without using the key. There is no other way of starting the vehicle.
21 The BMW was parked in a fenced area on the side of Doncaster Motors' premises facing a cyclone fence. The Doncaster Motors premises are situated on the south side of Doncaster Road. They comprise a rectangular building, which contains a service area, a display area for motor vehicles, and a spare parts area. The building faces Doncaster Road and runs east-west. Located between the front of the building and Doncaster Road is a vehicle display area. Down the left hand side of the building, namely the eastern side, is a driveway which meets a set of steel gates running from the side of a main building to a cyclone fence. The steel gates are very solid and slide back during the day and are closed at night. If one proceeds down the driveway through the steel gate area, one moves into what is called a holding yard, where vehicles are parked parallel, and at right angles to a cyclone fence on the eastern side. If one proceeds further down, there is an area where vehicles are parked and beyond that is another steel gate. Behind that is a carport where Mr Kettyle carried out work repairing dents and scratches on motor vehicles. To the east of the cyclone fence and fronting Doncaster Road was a former McDonald's restaurant, which, at November 2000, had ceased to operate and had been acquired by Doncaster Motors. Behind the McDonald's and to the east of the cyclone fence was a fairly large car parking area, which was enclosed. At the eastern end of that area was Darcy Street, and across the exit to Darcy Street on the evening of 14-15 November was a single steel boom gate, similar to a farmyard gate, which was chained and padlocked.
22 After the premises were closed at night, the steel gates on the northern end of the holding yard were closed and locked, as was the boom gate leading out into Darcy Street. The car holding area was floodlit during the night, and situated at intervals along the cyclone fence were alarm sensors. Located on the eastern end of the main building and directed towards the car holding area was at least one, and perhaps more, cameras which turned. The security system was operated by an off premises security company. The evidence in relation to the security was somewhat vague and was given by Mr Peter Kaiser, the service manager. No person was called from the security company to explain the security system and its operation. Mr Kaiser's evidence led to the conclusion that if a sensor was activated, it would send a non-audible signal down to the security company's premises. Mr Kaiser thought the cameras would then turn towards the area where the sensor was located. However, there was a degree of uncertainty about his evidence.
23 Within the main building was an internal office, which had a door on either side. On one side of the room were sliding windows facing into the Service Department. On the other side of the office was the display area for new vehicles. During the course of the day, people would move in and through the office. The office was occupied by three employees. I am satisfied that from time to time during the course of the day none of those persons would have been in the office. Situated in the office was a key board, approximately two metres high by about a metre wide, attached to the wall. The key board had 98 pegs on it. Customers' cars at the premises, when serviced, were given a number which was recorded on a card, which was then hung from the mirror of the vehicle. The same number was placed on a card attached to the key and the key was then placed on the key board below the appropriate number. Any person who was permitted to walk through the office and who did not in any way attract any attention to his or her presence in that office could, at some convenient time during the course of the day, have removed the key without any other person knowing that fact. It is presumed that Mr Donaldson, when he completed the road test on Monday 13 November 2000, lodged the key on the peg board under number four. No counsel argued to the contrary. Hanging from the rear vision mirror of the vehicle was a card with the number 4 noted on it. Mr Donaldson parked the car at right angles to the cyclone fence on the eastern side of the holding yard, approximately 15 to 20 metres south of the wall and closed steel gate situated between the side of the main building and the cyclone fence. The area beyond the cyclone fence where the vehicle was, was an open area, comprising a nature strip approximately two to three metres wide and then a bitumen surfaced road.
24 On Tuesday 14 November 2000, Mr Kettyle, on behalf of his company Crown Colour FX Pty Ltd, was at the premises of Doncaster Motors carrying out some work to a BMW. The work involved repairs to a front bumper bar on the vehicle. Mr Kettyle signed an invoice that day for the repairs, for which a charge of $120 was made.
25 As stated, Safari's BMW was stored in the holding yard at right angles to the cyclone fence. It was stored there on the night of Monday 13 November 2000, and the following day and night.
26 On the evening of 14 November 2000, the alarms at the premises were activated and the gates locked. The evidence as to whether the flood lights, which are illuminated by a timer switch, were actually operating on that night is questionable. In some respects, the evidence concerning the security arrangements given by the service manager of Doncaster Motors, Mr Kaiser, was somewhat vague. His vagueness can be put down to the passage of time. However, Doncaster Motors was the party that was in the position to call evidence relating to the security measures and the operation of same on the night of 14 November. Mr Kaiser gave evidence that he called in an electrician the following day because it was suggested the lights were not operating, and that no fault was found. The evidence also revealed that a person could attend at the box where the switches were and turn off the automatic timer switch without difficulty and quickly. I find that the floodlights were not illuminated on the night of 14-15 November 2000. No party called evidence of the video that would have been taken on that night, nor did Doncaster Motors call any evidence from any of the owners of the business, who apparently had seen the video. Accordingly, what the video showed was not placed before the Court. However, a report tendered in evidence suggested that the video did not record the actual theft.
27 Mr Kaiser arrived at work at about 7.00 am the following morning, being Wednesday 15 November 2000. It was reported to him at around 7.30 am that morning that somebody had cut through the cyclone fence opposite to where the BMW car was parked. The car was apparently driven out into the adjoining area and through the boom gate area, after the padlock and chain had been removed and the gate lifted. The time taken to remove the vehicle would have been a matter of a few minutes. Gaining access to the area adjoining the holding car area beyond the cyclone fence involved cutting the chain holding the boom gate. This could have been achieved in a matter of seconds, and would have opened the escape route. The next step was to cut the cyclone fence using bolt cutters. This would have taken no more than one minute. The activity could have been carried out without activating the sensors located inside the cyclone fence. I find that the person who effected the theft had the key to the car. That person could have opened the car doors before crossing through the cyclone fence, and it would have taken no more than 30 seconds to enter the car, start it and commence to move through the hole in the fence. Once through the fence, it would have taken less than 30 seconds to drive out of the premises through the boom gate.
28 Mr Kaiser informed the Court that if a sensor was activated, a signal went back to the security office, which was some kilometres away, and it was expected that an employee of the security company would attend the premises. However, that person could not enter any part of the Doncaster Motors premises if he or she did attend. There is some evidence that the sensors were activated on four occasions between 11.10 pm and 12.52 am. Whether or not any security person did in fact attend the premises is unknown. There was no evidence as to when the theft took place. On the morning of 15 November 2000, sunrise would have occurred at around 6.00 am. I find that some time between the closing of the premises at or around 7.00 pm on Tuesday 14 November and 7.00 am on 15 November, the car was stolen from Doncaster Motors' premises. I find that the main building had not been broken into that night and I further find that there was no intruder in the building on that night who removed the key. I find that the key was taken by somebody between about 12.00 noon on 13 November and 7.00 pm on the evening of 14 November. Mr Kettyle, who was present during the day on 14 November, would have had an opportunity to take the key. I do not accept his evidence that he never went into the internal office between the Service Department and the display room. It was open, and if he had ventured into that office, he would not in any way have attracted any attention or suspicion. I am satisfied that the person responsible for the theft took the key during business hours and it is most likely that that occurred on 14 November 2000. There was no dispute that the only way the vehicle could have been moved was by somebody using the key to the vehicle.
29 Doncaster Motors did not have any system of checking whether all the keys were placed on the pegs each night. The evidence revealed that from to time, keys did go missing because an employee inadvertently left a key somewhere, locked a key in a box of tools or took a key home. Doncaster Motors proceeded on the basis that this would occur from time to time, but did not have in place any system to track down keys each night. It would not have been difficult to establish a system to ensure that at the end of each working day, the keys to all vehicles were in the custody of the business in the room where the key board was located. It would not have been difficult to have established a system whereby the keys were locked up overnight to ensure that no person removed any of them. A key audit procedure could have been implemented without any difficulty and would have ensured the safety of the keys each night.
30 On 30 April 2002, VicRoads issued a Certificate of Registration of a motor vehicle described as a "2000 BMW sedan". It was given the registration number ROA 439. Later evidence established that this was Safari's BMW, which had been stolen from the premises of Doncaster Motors. It was registered in the name of Mr Kettyle. According to the Certificate of Registration, the engine number was 60248630 and the vehicle's information number (VIN) was 6T9REPV97R201X025. Evidence revealed that the car had been given a new VIN. Mr Kettyle stated on oath that he did not steal the car and was not involved in the theft. He stated that he purchased the car in April 2002, that the transaction was a bona fide one, and that he did not know at the time of purchase, or indeed later, that it had been stolen. He drove the car from 30 April 2002 until it was seized by the police on 29 September 2003. There is no direct evidence that Mr Kettyle stole the vehicle or was implicated in its theft. However, there are pieces of evidence which provide a circumstantial case implicating him in the theft.
31 Mr Kettyle gave evidence of how he acquired the vehicle. His credibility looms large in the case brought against him that he was involved in the theft. He was cross-examined in excess of two days, and I formed the opinion that he was an unsatisfactory witness whose evidence should not be accepted unless it was corroborated by other evidence or was admitted. He was evasive, and sought during the early parts of his evidence to portray a person who was inexperienced in the area of purchasing and selling motor vehicles, and who did not have a good understanding of buying and selling motor vehicles. He stated that he was ignorant of the Australian regulations concerning importing vehicles from overseas. His version of events did not stand up to scrutiny. Some of it beggared belief. He made a statement to the police on 1 October 2003, and it contains a number of prior inconsistent statements which reflect upon his credibility. It is difficult to be certain about many of the facts which were the subject of evidence given by Mr Kettyle. This was because, first, the alleged vendor Robert Costa was not called as a witness and there were some doubts as to whether in fact he existed. Secondly, documents which purported to have come from Mr Costa raised real questions as to their authenticity and when they were made. Thirdly, some of the documents were inconsistent. Fourthly, the circumstances surrounding the registration of the vehicle do not stand up to scrutiny.
32 The BMW was registered on 30 April 2002 and a request was made for a replacement VIN for the vehicle. A new VIN was provided. The written application in respect to the replacement VIN was tendered in evidence by counsel for Mr Kettyle. An engine number which was noted on the vehicle was contrary to the actual engine number. Later evidence showed that the engine number on the car had not been changed, although the original VIN had been altered. The application was processed by a Ms E. Sofranko, who was a corrupt employee of VicRoads and who has been charged with a number of serious offences involving deception. The evidence led to the conclusion that the actual registration was performed by a corrupt person, who was requested to provide a new VIN without carrying out any of the procedures laid down for when a vehicle which had been rebuilt was presented for registration. According to the application form, the vehicle had a previous registration number in New South Wales and an engine number which was demonstrably false. Any inspection would have revealed the falsity, and it was asserted that the vehicle had a previous VIN which also was false. If anyone had looked at the vehicle at that time, it would have revealed a different VIN, which later evidence established was also false. Mr Kettyle said that Mr Costa arranged the registration. Finally, the service booklet had a number of important pages missing and contained notations of two services allegedly carried out by BMW Melbourne. Again, on further examination, this raises real doubts about the authenticity of the notations in the book.
33 I will later state the reasons why I do not believe Mr Kettyle. For present purposes, I will set out what Mr Kettyle informed the Court as to the circumstances of him acquiring the motor vehicle.
34 Mr Kettyle is now aged 36 years and resides in Donvale. He is married with two children. His first child was born in April 2002, which is the month in which he alleges he purchased the BMW. He conducted his business through Crown Colour until some time around late 2002, and then went into partnership with a man called Michael Daoud. They continued the business for some years. Eventually the partnership was dissolved. Mr Kettyle is now a proprietor of a Charcoal Chicken shop in Forest Hill.
35 Early in his evidence, Mr Kettyle prevaricated about his involvement in buying and selling cars and purchasing prestige vehicles. However, it emerged after some questioning that he had been involved in buying and selling cars over at least three or four years, and that he had purchased about 10 cars each year. Some of them were prestige cars. He also admitted that he had purchased imported vehicles. Despite this, he stated that he was unaware of the Australian regulations concerning imported cars and the requirement that they comply with the Australian Design Rules. Imported cars must have a compliance plate affixed to show that they comply with such rules. Despite being asked a number of times, Mr Kettyle professed ignorance of such matters. I do not believe him. Evidence given by a person experienced in the trade, Mr Mark Grulke, who is now employed as a forensic vehicle examiner at the Victorian Police Forensic Centre, was that it was common knowledge going back many years, that to purchase an imported vehicle required vigilance as to its compliance with the Australian Design Rules. It was a matter discussed from time to time in the media, and was well known amongst those in the motor trade.
36 I am satisfied on the evidence that Mr Kettyle was not an innocent abroad when he was registered as the owner of the motor vehicle on 30 April 2002. He had been working at various car dealerships for a period of approximately eight years, had been involved in a business repairing motor vehicles, had been engaged in buying and selling vehicles for at least three or four years, and had purchased about 10 vehicles each year. He had purchased imported cars prior to April 2002. In my opinion, he would have been very familiar with all that was involved in buying and selling a motor vehicle. In particular, he would have been on guard against any defects of title or mechanical problems. He did, early in his evidence, seek to paint a picture of a man who really was somewhat naïve. I do not accept that he was. Further, the financial evidence revealed that his company was making modest profits during the years 1999 through to 2002. Yet he had considerable cash in the year 2002, when he paid $115,000 in cash for the BMW. When questioned, Mr Kettyle stated that the reason why he had such an amount of cash was because he had been successful in buying and selling motor vehicles. In my opinion, he was an experienced trader in used cars as at April 2002. He also had a very good knowledge of the workings of a car dealership and the servicing of motor vehicles by the year 2000. He knew the premises at Doncaster Motors and its operations.
37 Mr Kettyle stated that he first saw the silver BMW M5 some time around March 2002 when he met a person called Robert Costa. He informed the Court that the latter was a used car dealer carrying on business under the name of Flash Motor Company at premises situated at Factory 2, 32 Roberna Street, Moorabbin. He stated that he met Mr Costa at Pickles Auctions in Tullamarine in or about March 2002, and that they conversed and Mr Kettyle gave him his business card. According to Mr Kettyle, Mr Costa rang some weeks later and requested him to do some work. He stated that, from memory, he worked on two vehicles, one of which was the BMW. Apparently, the work on that car had to be done at Mr Kettyle's home in Donvale because it involved spray painting the bonnet and the front of the vehicle. He said that Mr Costa delivered the car to his home. Mr Kettyle said he charged the sum of $2,000 for that work. However, there was no documentary evidence relating to this transaction. Mr Kettyle accepted that he was obliged to retain business documents for a period of at least five years for taxation purposes.
38 Mr Kettyle gave evidence that Mr Costa told him the vehicle had been imported from overseas and that it had come from Japan. The car was manufactured in Germany and Mr Costa said it had been used in Japan. Mr Kettyle stated that he took it for a test drive and noted that certain electronic equipment had to be attended to, namely the satellite navigation system, the telephone and the television. Mr Kettyle said that he had expressed some interest in purchasing the vehicle and the parties commenced to negotiate. He stated that they eventually agreed on a price of $115,000 but that before the contract was entered into, it was necessary for Mr Costa to have repaired the various items that Mr Kettyle had noted and, secondly, that Mr Kettyle wished to make enquiries of VicRoads to determine title and whether there were any encumbrances noted on the vehicle. He stated that because it was an imported car, he "was hesitant about the asking price". Mr Kettyle stated that he paid an initial deposit of $5,000 in cash and agreed that he would pay a further sum of $15,000 in cash by way of deposit, when the works had been carried out and he had satisfied himself that there were no problems with the title and no financial encumbrances on the vehicle. These discussions took place, according to him, around about the end of April. He stated that after he paid the $5,000, he made contact with VicRoads. He said he was told that the car was not reported as a stolen vehicle, and that there was no financial encumbrance noted on it.
39 Mr Kettyle was asked what information he gave to VicRoads to enable the search to have any meaningful effect. He was vague about what he had told VicRoads, and made reference to a VIN or an engine number. He was extremely vague about what he told VicRoads to enable it to respond. When the vehicle was examined by the police after 29 September 2003, it was observed that the original engine number was still intact on the vehicle's engine. Nobody could have given that engine number to VicRoads as this would have revealed that it was stolen. Mr Grulke, the forensic vehicle examiner, inspected the vehicle after 29 September 2003 and the inspection revealed that the original engine number was intact, but very difficult to see without moving some portions of the covering of the engine. The original VIN, which was impressed on to the tower on the offside of the vehicle, had been ground down and a substitute plate was affixed, covering the area where it had been. The tower was then repainted and to the naked eye, the substituted VIN appeared to have been the original number imprinted in the metal of the tower. However, Mr Grulke said that to the trained eye it was obvious that it was not the original VIN. He proceeded to remove the surrounding paintwork, and this revealed a substitute plate affixed to the tower. The original had been imprinted into the surface of the tower. The Certificate of Registration issued on 30 April 2002 revealed a new, substituted VIN.
40 The procedure to obtain a new VIN was by written application made to VicRoads, and if an employee of VicRoads was satisfied of all matters, authority was given to prepare and affix a new VIN. This was apparently done in relation to the BMW on or around 30 April 2002. The new VIN plate was affixed to the tower on the near side of the vehicle.
41 The evidence leads me to the conclusion that Mr Kettyle could not possibly have made any meaningful enquiry of VicRoads because the information that VicRoads had on 30 April 2002 bore no resemblance to anything that was on the vehicle when Mr Kettyle allegedly made his enquiry. If he had used the engine number, he would have either been told that it was the engine number of a stolen vehicle or the enquiry would not have revealed anything. If he had sought to use the VIN that was then on the vehicle on the offside tower of the motor, it would also have revealed nothing. I do not believe that Mr Kettyle made any such enquiry of VicRoads. Further, Mr Kettyle gave vague evidence, despite being questioned on a number of occasions as to the odometer reading of the vehicle when he purchased it. He was vague and evasive, and prevaricated, but was not prepared to accept any particular odometer reading, save that he thought it was fairly low. He stated in cross-examination that the first entry in the service booklet may have been correct, but later said that perhaps the reading noted on the contract of purchase may have been correct. The difference in the readings was of the order of 5000 kms. He drove this expensive prestige car for a period of 17 months. He purchased it for $115,000 cash. It is unbelievable that he would not have noted the odometer reading at the time of purchase. That would be one matter that he would have considered when making a decision to purchase. If it was a low odometer reading, the query would be, was it genuine? If so, then to purchase a $200,000 plus car for $115,000 was a bargain. I do not accept that he was not aware of the odometer reading at the time of registration.
42 He stated that after he had made enquiries of VicRoads, he informed Mr Costa that he would proceed with the purchase and paid him an additional $15,000. He then produced in evidence the first of a number of very dubious documents. He stated that Mr Costa provided the first document on or around 30 April 2002. The document comprised a photostat copy of a driver's licence in the name of Robert P Costa, who was said to reside at 19 Spring Street, Doveton in this State, and a handwritten receipt. There is no 19 Spring Street, Doveton. The evidence revealed that the last numbered house in that street is number 13. The licence number was noted, but this did not exist. Further, the licence bore the date 10 March 2002 as its expiry date, which meant it had expired by the alleged date of the document. Mr Kettyle said Mr Costa had volunteered the receipt. The handwritten part reads -