Rayhill v W O'Connor Removals Pty Ltd

Facts

1. Evidence tendered in the Local Court was capable of establishing that Colleen Lewis had resided at 9 Robson Road, Kenthurst ("the Kenthurst property") for some years up to 7 March 2013. I will return to identify the evidence of her occupancy of the property later in these reasons. The Kenthurst property comprised a very large three-storey residence set on a substantial block of land. The grounds were improved with a swimming pool, tennis court, fountains and a circular driveway. All of these appear from photographs (Ex SGC1) to which the Plaintiff objected but which were rightly admitted in evidence.
2. In the course of submissions I was informed of the decision in Lewis v Condon [2013] NSWCA 204, a proceeding between Louise Lewis (the Plaintiff's sister) and the Trustee. At first instance in that case evidence was led about dates of transfer of ownership of the Kenthurst property and concerning the terms of a trust binding the registered proprietor. Findings were made on those subjects in the Court of Appeal. However, neither the Plaintiff nor the Trustee was a party to those proceedings and findings therein are not binding upon them. There was no evidence before the Magistrate as to legal and beneficial ownership of the Kenthurst property. I must determine the present appeal upon the evidence tendered in the Local Court.
3. The documents tendered to the Magistrate did not include a title search of the Kenthurst property nor a copy of any mortgage. Correspondence between the Trustee's solicitors and Gadens Lawyers, the solicitors for ANZ Bank, in March 2013 showed that the property had been mortgaged to the Bank (Annexures G and I - all references to Annexures are to documents identified in the Trustee's affidavit). No documents were received in evidence to show who was the registered proprietor and mortgagor.
4. On 28 February 2013 solicitors for the Trustee wrote to DC Legal, the solicitors who then represented Colleen Lewis, notifying her to attend at the Trustee's office on 6 March 2013 "to answer various questions relating to her personal property". Colleen Lewis did not attend.
5. On 6 March 2013, a firm of auctioneers named Raffan Kelaher and Thomas Pty Ltd was engaged by someone, the evidence did not show whom, to arrange for the removal of a large quantity of furniture from the Kenthurst property, most of it to be auctioned and some to be put into storage. The auctioneers in turn engaged W O'Connor Removals Pty Ltd to attend the property and remove the furniture.
6. Mr Thomas of the auction house and Mr Bissell and his men from the removalist company duly attended the Kenthurst property from 7:00am on 6 March 2013. Mr Bissell gave evidence on affidavit that "members of the Rayhill family were present" but he did not specify whom. Those persons directed Mr Bissell which items were to be taken to the auction house and which to storage. Mr Bissell caused two large truckloads of furniture to be taken to the auctioneers' premises in Leichhardt. Late in the day he took one truckload, which had been directed to be placed into storage, to his own company's depot in Belmore. The truck was unloaded the next morning, 7 March 2013, and the goods were put into storage where they have remained ever since. These are the items disputed in the Local Court and in this appeal.
7. Some time before March 2013 there must have been a default under the mortgage of the Kenthurst property to the ANZ Bank because the evidence further showed that on 7 March 2013 the Bank took possession of the property (Annexures G and I).
8. On 7 March 2013 the Trustee learned that a large quantity of furniture had been removed from the Kenthurst property and wrote to the solicitors representing Colleen Lewis requiring an inventory of what had been removed and details of where the items were stored (Annexure D). By this letter notice was given that the removal had been without the Trustee's consent and that the goods were not to be disposed of without the Trustee's approval. Further, Colleen Lewis' solicitors were informed that the Trustee proposed to issue a summons for public examination of herself "and numerous others".
9. Also on 7 March 2013 the solicitors for the Trustee wrote to the removalist company, advising of the Trustee's appointment on 14 May 2012 and asserting that ownership of most of the furniture and household effects of the Kenthurst property had passed to the Trustee under s 58(1), Bankruptcy Act (Annexure E). The solicitors sought confirmation that the company would not release any items in its possession without the Trustee's prior consent. The removalist company accepted and has acted upon this direction from the Trustee. On 16 March 2013 the Plaintiff requested that the goods be delivered up to her but the company refused in light of the letter from the Trustee's solicitors of 7 March 2013. On 14 March 2013 the company issued to the Trustee an inventory of the goods held (Annexure H).
10. There is no evidence of the Trustee having made any similar request to the auctioneers that they should hold for the Trustee so much of the furniture as had been delivered to their auction rooms on 6 March 2013. Perhaps the Trustee was not aware of the fact that some of the property had been taken directly to the auction rooms for sale.
11. On 10 April 2013 the Plaintiff wrote to the solicitors for the ANZ Bank concerning "removal of belongings from 9 Robson Road, Kenthurst" (Annexure I). The relevant part of this letter is as follows: "I am writing to seek the removal of items which have been in storage at 9 Robson Road, Kenthurst in which title vests with me in accordance to my late father's will Michael Rayhill who was deceased in November 2011. These items include "Hypoxi" brand fitness equipment and related materials… and three, 40 foot shipping containers on the said property currently labelled with my name, which contain fitness and beauty equipment and my father's personal effects from his home which I inherited in accordance with his will. The fitness and beauty equipment came from my late father's business in which I managed that closed due to his death in November 2011."
12. The letter is ambiguous as to whether it is intended to refer solely to personal property which was still located on the property as at 10 April 2013 or whether it also referred to goods which had been there up to 6 March 2013 and which were removed that day. A copy of the will of the late Michael Rayhill was attached but did not establish that any of the furniture or effects which were or had been at the Kenthurst property had been bequeathed to the Plaintiff.
13. An affidavit of the Plaintiff was read in the Local Court proceeding in which she asserted that items 1 to 5 and 7 and 8 in the list of disputed goods annexed to the Statement of Claim had originally been owned by her paternal great uncle, Samuel Raihel. No evidence was given and nor were any documents tendered to show how if at all title to these goods had passed from her great uncle to herself. For example, there was no evidence of physical delivery having occurred or of there having been any accompanying words of gift. There was no document recording the transport of the goods at the time of the alleged gift. The Plaintiff did not even depose to a date or place of delivery of any of the supposed gift items.
14. At par 14 of the affidavit she deposed that items 6, 7, 8, 9, 10 and 11 had been purchased by her. However at the hearing she withdrew and did not press this assertion with respect to items 7 and 8, which was obviously in conflict with her evidence referred to at [17] above. Again, with respect to the alleged purchases, no invoice or delivery docket was identified in or annexed to the affidavit. The deponent gave no details of date, place, price or identity of seller in relation to any of the items.
15. In oral evidence under cross examination the Plaintiff asserted that some of the thirteen items had been purchased by her and some had been given to her. In re-examination the Plaintiff's counsel was permitted to ask her to identify which items had been given and which purchased. The Plaintiff testified that in all cases the gifts came from her great uncle, Samuel Raihel. These were items 1 to 5 and 7, 8 and 9. As to 9, this was in conflict with her affidavit in which she had said this item had been purchased. The Plaintiff said she had purchased items 12 and 13, exercise equipment. This was in conflict with her letter of 10 April 2013, on one reading of it. There she had asserted that items of the same description had been left to her by her father under his will and had come "from my late father's business". Her oral evidence was limited to one word answers, "purchase" or "gift" as each article was referred to in her counsel's questions. This evidence in re-examination gave no more detail or verification than the affidavit had done.

Claims and cross-claims

1. By her Statement of Claim in the Local Court the Plaintiff sought relief only against the removalist company. She asserted that she was at all material times the owner of the disputed goods and sought orders restraining the company from delivering them to any person other than herself. The Plaintiff claimed an order that the articles be delivered up to her and damages be paid for their detention.
2. The removalist company filed a first cross-claim against both the Plaintiff and the Trustee claiming storage fees in respect of having held the goods since 6 March 2013. Its claims were in the alternative because, as has been mentioned, the removalist company did not take a position as to whether the true owner was the Plaintiff or the Trustee.
3. The Trustee's claim that the goods had been the property of Colleen Lewis and had vested in him was made by way of a second cross-claim. He sought a declaration that the goods formed part of the bankrupt estate and a declaration that the Plaintiff was not the legal or beneficial owner.

Magistrate's decision on Plaintiff's claim - Ground 5

1. The Magistrate correctly found that the Plaintiff bore the onus of proving that the goods were her property. She could not obtain the orders which she sought on her Statement of Claim, for delivery up of the goods and damages against the removalist company for their detention, unless she discharged that burden. For reasons which disclose no error, his Honour found that the Plaintiff had not proved her case. The Magistrate noted the complete absence of documentary evidence to support her claim that any of the property was given to her or purchased by her; the absence of any particulars regarding the dates, circumstances, identity of seller and/or price in relation to any of the purchases; the lack of evidence to explain why these items of furniture and personal effects were at the Kenthurst property in March 2013 (given that the Plaintiff resided in her own house at Umina) and the absence of any dates or other particulars regarding the circumstances of the claimed gifts. His Honour noted significant contradictions with respect to the source of some of the items, as between the Plaintiff's oral evidence, her affidavit and the letter of 10 April 2013.
2. Even if this were an unrestricted appeal from the decision of the Local Court, there would be no reason to differ from the Magistrate's conclusion that he could not rely upon the Plaintiff's evidence - which was the only evidence proffered - to satisfy him on the balance of probabilities that she had acquired title to these goods. The Plaintiff's case was devoid of documentary evidence of the kind that a genuine owner of such goods would be expected to be able to produce; there was no explanation for the absence of such records. The Plaintiff's evidence consisted solely of her bald, uncorroborated, unparticularised and partly self contradicted assertions. Some of the articles are distinctive and are alleged by her to be valuable. For example, a three-quarter grand piano said to have been purchased and to have a value of $4,500. A bona fide claimant would be able to say when she acquired such an item, from whom and for how much. The same could be said for some of the other purchased items: a black designer entrance mirror valued at $4,500 and exercise equipment valued at $51,500.
3. Certainly no error of law is shown, as would be necessary to support an appeal under s 39(1), Local Court Act 2007 (NSW). The question whether the Plaintiff purchased or was given any of these articles is a pure question of fact. It is not even a question of mixed law and fact, with respect to which a ground of appeal might be entertained with leave under s 40(1). In any event leave has not been sought. The Plaintiff's general complaint about the dismissal of her ownership claim, Ground 5, must be dismissed.

Browne v Dunn - Ground 6

1. Ground 6, the complaint with respect to alleged failure to apply the rule in Browne v Dunn, is raised upon the Plaintiff's assertion that the Trustee's counsel should have put to her in cross examination that she had not acquired the goods through purchase or gift. Further, that because she was not challenged in those terms the Magistrate should not have treated her evidence as insufficient to discharge her burden of proof.
2. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 26E Hunt J expressed the rule in these terms: "Unless notice has already clearly been given of the cross examiner's intention to rely upon [matters from which an inference can be drawn to contradict the witness' evidence], it is necessary to put to an opponent's witness in cross examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings." (Emphasis added).
3. His Honour further said at 26G: "It would in many cases be wrong, unreasonable or even perverse for a tribunal of fact to reject evidence upon which there has been no relevant cross examination. I am satisfied with the description that it would usually be unfair to do so where the rule in Browne v Dunn has not been complied with and where the witness has not otherwise been given the opportunity to deal with the suggestion now made for the first time in final address." (Emphasis added).
4. It is notable from those passages, as in many others where this rule has been considered, that its application depends upon whether or not notice has been given to the witness, other than through cross examination, of the manner in which a case contrary to the witness' contentions is sought to be made. It is a rule of fairness. There may be no need for the cross examiner to put to the witness the basis of possible contradiction of his or her evidence, upon which reliance will be placed in closing addresses, if the witness is already fully aware of those matters and has failed to say anything in chief which would explain them away.
5. For example in Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 the respondents had clearly raised a case that conversations between two solicitors had resulted in a variation of a deed of settlement, by which an obligation to pay a sum of money thereunder was deferred. The respondents called their solicitor, who had been party to the conversations, to prove the oral agreement. The appellants read an affidavit of the other solicitor who was said to have engaged in the conversations but it contained no reference to them. The respondents did not require this second solicitor to attend for cross examination on her affidavit and hence did not put the conversations to her.
6. It was held that the rule in Browne v Dunn did not preclude the respondents from submitting that the evidence of their own witness to these conversations should be accepted and that on the basis of them an oral agreement for variation should be found. Beazley JA (as her Honour then was) held at [72]: "The appellants were aware of the conversations to which [the respondents' witness] deposed and of the respondents' reliance on those conversations as the basis of the variation for which they contended, namely, for the deferral of payment. If the appellants wished to contest the conversations, they should have called [the other witness to the conversations] to give evidence. They did not do so although [she] had attended court in response to a subpoena issued at the instance of the appellants. The respondents were under no obligation to require her to be called so as to cross examine her on evidence that the appellants had not seen fit to obtain from her, either by way of further affidavit evidence or orally at the trial. …I do not consider that there was any aspect of fairness that required the respondents to question [the other witness] as to the conversations…"
7. Before the Magistrate in the present case the Plaintiff was well on notice that her claim to be the owner of the subject goods was in dispute. The Trustee's second cross-claim expressly pleaded, in par 5: "The goods are not the property of Melissa Emily Rayhill". In advance of the hearing the Plaintiff also had the affidavit of the Trustee in which he deposed, inter alia: "On each any every occasion that I have requested the Plaintiff to provide any evidence of ownership of the items listed by W O'Connor, she has failed to provide me with any documents which would evidence ownership."
8. The Plaintiff was on notice, without cross examination, to produce any documents which would corroborate her claim or, if documents such as one would expect her to hold (invoices, receipts, delivery documents) were unavailable, to explain why. The Trustee's affidavit had annexed to it documents from which it would be concluded that the home in which the goods had been located was occupied by her mother. If the Plaintiff had more evidence to give, beyond what was in her affidavit, to explain why the goods were in the Kenthurst property and thereby to rebut the inference that her mother had owned them, she was on notice and had every opportunity to give that additional evidence.
9. When the Trustee submitted to the Magistrate at the conclusion of the case that the Plaintiff's claim of ownership should be rejected, no unfairness arose merely because counsel had not gone through the formality of questioning her, during cross examination, along the lines "I put it to you that these items were neither given nor sold to you". The only stage of her evidence at which the Plaintiff purported to discriminate, one by one, which of the listed items she alleged had been given to her and which had been purchased was in re-examination - after which the Trustee's counsel could not have challenged her evidence further in cross examination without leave.
10. There was no unfairness to the Plaintiff from the course of the evidence, on any reasonable application of the rule in Browne v Dunn, and Ground 6 is dismissed.

Magistrate's findings on the Trustee's second cross-claim - Grounds 2, 3, 4

1. In his reasons of 19 March 2015, when considering whether the Trustee had established that Colleen Lewis had owned the disputed goods so that they vested under the Bankruptcy Act, the Magistrate attached no weight to the photographs which the Trustee had tendered of the contents of the Kenthurst property (Ex SGC1). These had been taken on 7 March 2013 and were incapable of proving even the appearance of the subject goods (which had been removed the day before), let alone their ownership.
2. Affirmatively, his Honour based his finding that Colleen Lewis had owned the goods upon three aspects of the evidence, which I summarise as follows together with comments thereon: 1. Failure of the Plaintiff to produce documentary evidence of her ownership, despite repeated requests. This was a good reason for not upholding the Plaintiff's claim to the goods but did not constitute any evidence that Colleen Lewis had owned them. 2. A number of invoices and receipts, obtained by the Trustee from Colleen Lewis, relating to her purchase of various items of furniture and household effects. Some of these vouchers dated from 1992. His Honour characterised the descriptions in these documents as "broadly consistent" with the descriptions of items that are the subject of the dispute. However broad consistency was not sufficient to give the documents any evidentiary value at all. The evidence did not permit the Magistrate to identify any of the disputed goods as being amongst those which the documents showed had been bought by Colleen Lewis over the years. 3. A written application for finance made by the Plaintiff in July 2011 in connection with her purchase of a house at Umina. In this document the Plaintiff was required to disclose her assets and liabilities and she asserted ownership of $50,000 worth of home contents. The Magistrate relied upon the circumstance that she now asserted, in the proceedings before him, that the disputed goods had a value of $90,000. He said "there does not appear to be a basis for the discrepancy between this value and the estimated value in the finance application and [there] is a basis to infer that, as at that date, if the property had been owned or given to [the Plaintiff] then it would have been included as part of finance application". This does not follow. Assuming that the Plaintiff had truthfully stated the value of her assets in 2011 at $50,000 that would be no evidence at all of what moveables she may have owned a year later when the Trustee was appointed on 14 May 2012 or two years later when the disputed goods were removed from Kenthurst to storage. Further, even if this evidence had any weight to undermine the Plaintiff's assertion of ownership, it certainly could not contribute anything to a positive case that Colleen Lewis owned the goods.
3. The Magistrate characterised the evidence relied upon by the Trustee as "limited" but concluded "on balance, that there is a basis to infer that, as at 14 May 2012, the disputed property was owned by [Colleen] Lewis". He therefore upheld the Trustee's claim for a declaration of ownership and other relief. The Trustee's claim could not, in law, be upheld on this basis. The materials identified by the Magistrate amounted to no evidence of the point upon which the Trustee's claim depended. It was an error of law to have concluded that the matters referred to by his Honour were some evidence of Colleen Lewis' ownership as at the relevant date.
4. However that is not the end of the matter. In accordance with Rule 50.16, Uniform Civil Procedure Rules 2005 (NSW) this Court has the powers and duties of the Local Court including powers and duties concerning "the drawing of inferences and the making of findings of fact". By subr (6) this Court may make any finding which ought to have been made in the Local Court. In the present case this requires that I should examine the evidence which was available to support the Trustee's claim - being different from the evidence which the Magistrate erroneously relied upon - and make a determination whether, on the competent evidence, the Trustee discharged his burden of proof.

Admissibility of documentary evidence - Ground 1

1. In relation to Ground 1, in which the Plaintiff argues that the Magistrate wrongly admitted certain evidence, I can confine my consideration to those of the annexures to the Trustee's affidavit which are material to the fact finding which I must undertake under r 50.16. This is a very odd ground because a number of the items said to have been wrongly admitted were in fact excluded by the Magistrate. The relevant annexures, with descriptions and my conclusions upon them, are as follows: F - Letter from the Trustee's solicitors to the solicitors for the ANZ Bank enclosing a copy of the finance application of Colleen Anne Lewis to the ANZ Bank dated 29 January 2010. On the face of this it is a business record. Its status as such is supported by other documents and evidence in the case establishing that a loan was made on security of a mortgage of the Kenthurst property. The document was, however, excluded by the Magistrate. H - Inventory of furniture and effects removed by W O'Connor Removals Pty Ltd into storage on 6 March 2013. The provenance of this was established by Mr Condon's affidavit and it was correctly admitted. In any event its contents were not in dispute. It corresponded with the Plaintiff's list attached to her Statement of Claim. I - Letter from the Plaintiff to Gadens Lawyers, acting for ANZ Bank, dated 10 April 2013. This was signed by the Plaintiff, using a signature which prima facie matches that on her affidavit. It was adequately authenticated and correctly received in evidence. L - Copy affidavit of Grahame W Brook filed in the Family Court 20 May 2004 annexing a valuation of the Kenthurst property. This was admissible at least for the limited purpose of establishing that the property had been the subject of dispute between Colleen Lewis and her late husband, in the Family Court, in 2004 and to provide a description of the property. It does not appear that the Trustee attempted to prove the value of the property, as at May 2004, through this document. In any event the Magistrate excluded it. P - Police report to NRMA Insurance Ltd concerning a break and enter to the Kenthurst property and larceny of items belonging to Colleen Lewis on 23 June 2012. This is a business record and its provenance from NRMA Insurance Ltd was established by the Trustee, making it admissible. S - Receipts, agency agreement and sales advices issued by Raffan Kelaher and Thomas Pty Ltd in respect of goods removed from the Kenthurst property and sold. These are business records and they were admissible but the Magistrate excluded them as irrelevant. T - Consent orders of the Supreme Court dated 26 September 2006. The copy of these orders as tendered bears a stamp of the Court seal and the Registry's date stamp of the entry of the orders on 30 November 2006. The document was thus sufficiently authenticated to be received into evidence. However it was objected to and not pressed by the Trustee. SGC-1 - Photographs of the Kenthurst property taken on 7 March 2013. These were relevant and admissible to show residual contents after the removal of furniture on 6 March 2013.

Evidence supporting inference of Colleen Lewis' ownership

1. There were established by the evidence before the Magistrate two significant circumstances indicating that Colleen Lewis occupied the Kenthurst property. First, her report to police in respect of a break and enter to the property on 23 June 2012 (Annexure P) records that she showed the investigating police evidence of the break in and reported that she discovered it "when [she] returned from dinner out". This is a clear indication that she was then living in the house at Kenthurst.
2. Secondly, Annexure N is a police report provided to NRMA Insurance concerning a break in at 405A The Entrance Road, Erina Heights on 13 November 2008, reported by Colleen Lewis. According to the report, Colleen Lewis told police that the property was her holiday home and not her permanent residence. Annexure O is the NRMA's business record of communications with Colleen Lewis concerning both the break-in at Erina Heights and the subsequent event at Kenthurst in June 2012. She had made claims for both. It is noted in the report that "the Insured advised she was living between the subject property and her property at Dural". This was said in response to enquiries by NRMA claims officers as to whether the property at Erina Heights had been occupied at the date of the burglary there, 13 November 2008. Colleen Lewis is recorded as having told the NRMA claims officer that "she eventually decided to sell [the Erina Heights house] as she owned a large property in Dural and was spending a lot of time travelling between the two". Dural is a locality which adjoins Kenthurst. The evidence contained no suggestion that Colleen Lewis had any connection with any property in the Kenthurst-Dural area apart from the subject property.
3. Taking these items of evidence together there is a clear inference that from November 2008, at the latest, up to 7 March 2013 Colleen Lewis occupied the Kenthurst property. There was no evidence before the Magistrate of any other person having occupied the property in that period. There was no evidence to displace the inference, which otherwise arises, of continuous occupation over these years.
4. The circumstance that the subject disputed items were, up to 6 March 2013, located in the home which Colleen Lewis occupied is prima facie evidence that those items were in her possession and were her property. That inference could of course have been rebutted or displaced by affirmative evidence that some other person was the owner, together with an explanation of why that other person's personal property should be in Colleen Lewis' home. But there was no persuasive rebutting evidence. The Plaintiff's assertion in that regard was justifiably dismissed by the Magistrate on the balance of probabilities.
5. The goods had been in the removalist's storage for two years by the date of the hearing in the Local Court. There was no evidence that any claim had been made in respect of them by any person other than the Plaintiff and the Trustee (the latter claiming through Colleen Lewis). If title to the goods lay with a third person it would be expected that a formal claim would have been made to the removalist company at some time during those two years and that the company would, at the least, have brought that further claim to the attention of the Local Court. After all, the removalist company had, by its first cross-claim, effectively interpleaded the Plaintiff and the Trustee upon learning of their competing assertions of title.
6. In saying that there was no claimant to the disputed items other than the Plaintiff and the Trustee, I include that Colleen Lewis herself was not a claimant. The Trustee's assertion in the Local Court was that the subject items had been acquired by Colleen Lewis prior to the Trustee's appointment and that the property had therefore vested in the Trustee on 14 May 2012 pursuant to s 58(1)(a), Bankruptcy Act. Even if the goods had been acquired after that date they would have vested in the Trustee upon acquisition, pursuant to s 58(1)(b), unless the goods fell outside the concept of "property divisible amongst the creditors of the bankrupt", by the operation of s 116(2) and Regulation 6.05 of the Bankruptcy Regulations 1996 (Cth). Colleen Lewis did not come forward, either as a witness or as a party seeking to be joined, to attempt to prove either that these goods had never been acquired by her or that they had been acquired post sequestration but that by reason of some exemption under s 116 they were not "after-acquired property" within the meaning of subs 58(1)(b) and s 58(6).
7. On the basis that there were only two claimants to the goods, both of them before the Court, the fact that the Plaintiff's evidence did not sustain her claim is a basis upon which to infer, as I do, that ownership must lie with the Trustee, by vesting from Colleen Lewis under s 58. I find on the balance of probabilities that the disputed goods had been in the ownership of Colleen Lewis from before 14 May 2012. They were in the home she occupied up to 6 March 2013 and they were most unlikely to have been acquired by Colleen Lewis during the preceding ten months (that is, post the appointment of the Trustee). By their description and value these were discretionary and luxury items, for example a Rosewood dining suite valued at $15,000 and the grand piano, entrance mirror and exercise equipment which have been mentioned above. It is apparent that Colleen Lewis was impecunious on and after 14 May 2012. This may be inferred from the bankruptcy itself. She would not have been acquiring items such as this during 2012 and early 2013; she must have held them from before the Trustee was appointed.
8. The failure of the Plaintiff to call her mother, Colleen Lewis, gives the Court considerable assurance in drawing the inferences referred to above. The rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 240 is applicable. Its operation here is entirely consistent with the Court of Appeal's recent analysis of the authorities on this rule in RHG Mortgage Ltd v Ianni [2015] NSWCA 56 at [75]-[96] and [120]-[122].
9. There was no suggestion that Colleen Lewis was unavailable. On the contrary the Plaintiff confirmed in her oral evidence to the Magistrate on 4 December 2014 (at T 42) that Colleen Lewis had recently been a witness in proceedings in the District Court. The Plaintiff led no evidence to explain her failure to call her mother. The evidence in the Local Court shows that Colleen Lewis was not cooperative with the Trustee. On the day appointed for her to attend the Trustee's office to explain the ownership of personal items (6 March 2013), the appointment was not kept and instead three truckloads of contents were removed from the Kenthurst home, without reference to or consent of the Trustee. It would not be expected that the Trustee would have called Colleen Lewis in these circumstances.
10. On the other hand, it would be the most natural thing to expect that if Colleen Lewis could say anything credible, or produce any reliable document, to disavow her ownership of the disputed goods and the vesting of them in the Trustee (thereby to support her daughter's claim against the interests of Colleen Lewis' creditors, claiming through the Trustee), then the daughter (Plaintiff) would have called her. But she did not. I infer that Colleen Lewis' evidence would not have assisted the case mounted by the Plaintiff in opposition to that of the Trustee.
11. For the above reasons, on the balance of probabilities, I find that the goods were the property of Colleen Lewis as at 14 May 2012 and that pursuant to s 58, Bankruptcy Act they vested in the Trustee. That is, I reach the same conclusion as did the Magistrate on the Trustee's claim, albeit on the basis of material in the case which I consider to have been capable of supporting this conclusion rather than on the basis of the material referred to in the Magistrate's reasons, which in my opinion was not so capable.
12. On these findings and having otherwise dismissed the grounds of appeal, there is no reason to disturb the orders made by the Magistrate. Accordingly the orders of the Court will be: 1. The appeal is dismissed. 2. The Plaintiff is to pay the costs of the proceedings in this Court of Mr SG Condon as Trustee for the Bankrupt Estate of Colleen Anne Rayhill.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 August 2015