(b) Dressing Room
132The dressing room is immediately adjacent to the main bedroom. The photographic evidence shows a high degree of disorder in the dressing room, as though Mr Tatar had pulled clothes off racks and strewn them around the room. The dressing room shows his clear desire to create as much disorder and chaos as possible in this room in the course of that evening.
133Both Mr Tatar and Ms Naylor had a taste for luxury goods. I am prepared to infer this from the way they presented to the Court and from some of the items that appear in photographs of their apartment. But the real issue is how many luxury goods they actually owned. As with the main bedroom, the dressing room is alleged to have contained some jewellery, which I will deal with below. But the dressing room is also alleged to have contained furs and leather coats and expensive items of clothing. In my view, consistent with her character, Ms Naylor would have dealt with such expensive portable items in the same way as she would have dealt with jewellery, when she was admitted to the property on 29 October. It is necessary now to go to the detail of the individual items in the dressing room.
134(18) Ten Women's Business Suits custom made by Stephen So, Hong Kong. Ms Naylor's evidence was that she looked in the cupboards in the dressing room on the 29 October and the ten business suits she claims to have owned were absent, even before any removal trucks had come. She said she could not see any of these business suits on the floor of this room in the photographs. She agrees that none are visible in the photographs - and Vines, image 4936 seems to confirm this. But she says that the suits were present on the morning of the 29 October and she was unable to pick them up and take them away, because she did not have enough packaging and assistance.
135I accept that Ms Naylor used a mixture of jackets and skirts as business suits, which were purchased, as she said, from Steven So in Hong Kong. But she had trouble in evidence identifying the suits beyond various shades of grey and blue. If she actually had ten suits, in my view, given her interest in clothes and luxury items she would have been able to describe their differences in more detail. I infer that she had four of these suits, but no more. This is consistent with her desire to present herself well. I am prepared to infer that she was not able to pack these and take them away in the time that was available to her. Although they were valuable, they were disposed of as rubbish by the removalists, because they were mixed up with other rubbish. But these items were of sufficiently obvious value that they should have been kept by the removalists. It was not reasonable to have disposed of them.
136Mr Vines says that the photographs of this area show that these items were not present on 29 October. Certainly it is difficult to see any such business suits apart from jumbled material in the photographs taken on 29 October. But they could easily have been jumbled up with other material and were not separately discernible. It is probable in the time available that she could have picked up one or two of these suits. And for that reason I am prepared to infer that two of them were left behind. Thus the plaintiffs can make out a claim for two suits. This inference is supported by Mr Tatar's production of a credit card receipt that may relate to some of these suits. Mr Tatar says that he attempted to telephone Mr So in April or May of last year but was unable to make contact with him. I do not accept that evidence. I infer what I do about these suits from my observations of Ms Naylor and the photographs.
137This conclusion is consistent with the other photographic evidence from Mr Vines. His photographs were taken in two days after the police photographs and they do show less clothing in the dressing room and the associated bathroom. Mr Vines questions why Ms Naylor would leave such large quantities of expensive clothing there. Mr Vines is partly right. If she owned ten suits she probably would have removed more than half of them. But finding the valuable in the chaos of the less valuable was not easy in the time Ms Naylor had available on 29 October. Ms Naylor gave evidence that Mr Tatar purchased these ten women's suits for her in 2009. She says that he arranged the purchase and she had a fitting session for one of the suits. It seems the others were then made according to that fitting. I generally accept her evidence as to there being suits purchased in this way but, not ten, only four.
138Although there were no receipts tendered for all these suits, I accept that Ms Naylor thought Mr Tatar was handling that part of the case preparation. Mr Tatar does seem to have been more closely involved in preparing the materials for presentation in the proceedings, and therefore the absence of receipts to support items more likely to be owned by Ms Naylor is slightly less telling against her than the same absences would be against him.
139(19), (25), (51) Versace leather jacket, Silver fox coat, black Cashmere Overcoat. The plaintiffs claim that these items are missing. The plaintiffs allege that they ranged in value from $3,500 (for the leather jacket) to $9,500 (for the silver fox fur coat). Like the jewellery these are small, portable items. Had they existed, Ms Naylor would have targeted them upon her return to the premises on 29 October. I do not accept that she was at that stage so shocked and incapable of making judgments herself or giving instructions to Ms Stanton, who was with her, that she could not try and find these items and retrieve them, if they existed. I am not prepared to infer that these items then existed in the premises. There is no insurance evident in respect of them. There is no purchase evidence in respect of them. There is no evidence that Ms Naylor went hunting for them on 29 October.
140(20) Approximately 25 pairs of shoes. Ms Naylor claims that she lost about 25 pairs of shoes in the removal, of which two or three pairs were recovered, together with a numerous odd shoes not belonging to a pair. In my view part of this claim can be accepted. Careful of her appearance and presentation, it is likely in my view that Ms Naylor owned a number of pairs of shoes. Although I do not accept her evidence that she owned 25 pairs. Shoes by their nature would be difficult to pair up and take away in the chaotic scene that no doubt greeted Ms Naylor when she had to remove items within a short time on 29 October. It is equally unlikely that such items could have been readily destroyed by Mr Tatar on his rampage: special attention would need to be given to such small items to do them much damage. In my view it is reasonable to infer that Ms Naylor had a dozen pairs of shoes and that she was able to take away half a dozen pairs. The other half a dozen were thrown out by the removalists. It is probable in my view that the removalists did not bother to spend time matching up any pairs and seeing whether they had any value and retaining them. But they were valuable and obviously so. Thus about half a dozen pairs of those shoes would have been lost. The first defendant has not explained their loss.
141(21), (28) Approximately 20 sets of lingerie, La Perla, YSL and Ravage; hosiery numerous. I am prepared to infer that Ms Naylor owned some of these items for the reasons explained generally before: that she was careful of her appearance and had a taste for luxury. But the claim is excessive in my view. I am prepared to accept that less than half of this claim can be made out: six sets of lingerie and six items of hosiery. All of these small items, although they had some value, would be difficult to retrieve but are unlikely to have been destroyed in Mr Tatar's rampage, because they would either have to have been unpackaged by him before destruction or other special attention given to their destruction. They were probably thrown out by the removalists. But like Ms Naylor's business suits they could have been separated from the other clothes without too much effort as they were luxury items. The claim will be made out to that extent.
142(22), (23), (24), (26), (27) Six Evening wear couture items, Ostrich Handbag, Lizard Handbag, Reading glasses, Five Sunglasses. The plaintiffs contend that these items were missing. One should be cautious about making judgments concerning the lifestyle of a witness simply by his or her appearance. But I am prepared to accept from her overall presentation: that Ms Naylor had an interest in fine clothing and couture; and that she had, as she claims, a number of expensive evening wear and couture items of fine quality made by Lanvin, Armani, Chanel, Alexander McQueen and Christian Lambortin. But I am only prepared to accept she had three of those items, not the six claimed. Moreover my judgment of Ms Naylor was that she would have been astute on 29 October to find reasonably portable items of significant value within the time available to her. I do not accept that the three items that she owned were entirely missing. In my view she would have been likely to have found two of them in the time she had available, an inference I draw from the time she had available and her well-developed sense of self-interest that she should carry away portable items that she could find. Thus I am prepared to allow one couture item as having been lost, but no more.
143Ms Naylor would have required accessories for such handbags (items 23 and 24). But I do not accept that she had particularly expensive handbags, of the kinds claimed. If she did, in my view, she would have taken away such readily portable items, especially because the ostrich handbag is claimed to be worth $1,500 and the lizard handbag $500. Ms Naylor said that she would not able to carry any handbags away with her on either the 27 or 29 October, except for the one that she had in court with her. I do not accept that evidence. In my view she did take away any handbags of value. Reading glasses and sunglasses (items 26 and 27) are small, easily crushable items that were likely to have been destroyed in the course of Mr Tatar's activity on the night of the 25 October. I am prepared to accept Ms Naylor and Mr Tatar had reading glasses and sunglasses. But I am not prepared to infer that any of them survived Mr Tatar's rampage and then were not collected. In all probability they were destroyed and probably thrown out by the removalists as garbage.
144(29), (30), (65) Diamond drop earrings, Diamond stud earrings, Rolex Yacht master II watch, white gold. The plaintiffs claim that these items were missing. But the diamond drop earrings and the watch are all small, highly portable and valuable. Ms Naylor was in the house for sufficient time on 29 October to find these items if they existed. For the reasons explained before in relation to the jewellery, I am not prepared to infer that these items existed, as she did not go and look for them immediately. She seemed to know the general vicinity where they were all kept. They would not have been difficult to find, had she thought they were there. This part of the claim is not made out. These items were claimed to have the following values: $40,000 (Rolex watch); diamond drop earrings ($15,000) and diamond stud earrings ($9,000).
145And Ms Naylor gave very unconvincing evidence about how she came by items 29 and 30. Schedule A to the Statement of Claim says the approximate date of purchase of these items was 1997. Ms Naylor explained that although she had only been in a relationship with Mr Tatar since 2007, he gave these items to her, well after their purchase. Ms Naylor explained that he gave the items to her in the Pottinger Street house, the subject of these proceedings, "for my birthday".
146But that was impossible. Mr Tatar and Ms Naylor did not move into the subject premises until the second week of November 2009, which was after her birthday that year. Her 2010 birthday was 26 October 2010, the day that Mr Tatar was taken to hospital, not a day where he was in a position to make any gifts to her. Her evidence about when these items were given to her must be wrong. It is another reason to doubt that the items ever existed in her or Mr Tatar's possession. Moreover Ms Naylor was not able to give a very adequate description of what these items of jewellery looked like or how Mr Tatar was able to come up with values of $15,000 and $19,000 respectively for them when they had never been formally valued.
147Also Mr Tatar claims that he purchased the Rolex watch in Hong Kong and brought back into Australia. But as these reasons have earlier stated, he did not declare the watch at customs, although it was allegedly worth $40,000. When asked why he did not do so he said "I don't want to pay duty on it". This rather candid admission of fraud of Australian customs authorities does Mr Tatar little credit. But I doubt that he defrauded custom authorities at all. In my view it is more likely that the Rolex watch never existed in his possession.
148(31) (32) Five Brioni Business Suits, five Zegna Suits. The plaintiffs claim that all of these items are missing. But I do not accept the claims in respect of these items for the following reasons. According to Ms Naylor's account these were men's suits purchased in Hong Kong and she was present at the time some of them were purchased. But she says that she made no attempt to get any receipts for the suits, because she left that to Mr Tatar.
149These business suits are examples of the plaintiffs failing to provide adequate evidence to support their claim. Each of the business suits are claimed to be worth $4,500, making a total, for five suits, of $22,500. If they were purchased in Hong Kong as Ms Naylor says, they were all probably purchased within about 18 months before the proceedings were launched. There seems to be no good reason why Mr Tatar could not have gone back to the Hong Kong retail outlet to obtain proof of purchase, even if he had not retained the receipts himself. It is more likely than not that some kind of business record of the sale of these suits would have been kept within that period. There is certainly nothing in Ms Naylor or Mr Tatar's evidence suggesting that there was anything unusual about the retail outlet from which they were purchased, or that it had closed down, such as to deflect this ordinary inference.
150I am not prepared to infer that Mr Tatar owned these items. Mr Tatar says that he could identify one of the Brioni suits in the police photographs (at page 49). But whatever the item is - and it may indeed be part of a suit - I am not prepared to infer it was a Brioni suit of the kind Mr Tatar claims to have purchased. Whatever it was it seems to be crumpled and could quite reasonably have been discarded. I am not prepared to infer that these suits were ever in Mr Tatar's possession.
151Mr Tatar claims that he purchased the five Brioni business suits in Hong Kong and brought them back to Australia. He has no idea whether he paid for them by credit card or with cash. I have no confidence in his evidence as to how or when these suits were allegedly purchased, which is very vague. Although he does not give precise evidence about the Zegna suits I infer their acquisition is claimed to be of the same kind. But I have no confidence in his evidence about the Zegna suits either.
152Ms Naylor does not assist in relation to either these sets of suits. She says she left it to Mr Tatar to gather evidence about their purchase. In my view the net result of this evidence is that Mr Tatar probably did have suits of average quality but no suit of any particular value, such as a Brioni or a Zegna suit. I further infer that Mr Tatar's rampage was so destructive that such of these suits as have survived the rampage, such as these ordinary quality suits, probably just looked like rubbish and were reasonably treated that way by the removalists.
153Ms Naylor agreed that Mr Vines' photographs (image 4936) do not depict any of these suits on the floor. In my view that is another reason to infer that the suits did not exist. Indeed Ms Naylor gave some puzzling evidence that when she looked in the cupboards on the 29 October most of these business suits were absent even before any removal trucks had come and been loaded. In my view the best explanation of the absence of these suits was not that they were stolen by intruders but that Mr Tatar never owned them.
154(33), (34), (35), (36), (37) & (38) twelve pairs of dress shoes; two pairs of leather slippers; assorted jeans; underwear; socks; sleepwear. These items are all claimed to be missing. They appear to be men's accessories and clothes and some of them luxury items. Ms Naylor's evidence was that there was much more of these items than was found in storage. But there is evidence that some parts of most of these items were found and stored. I am not prepared to infer that Mr Tatar owned any more of these items than Ms Naylor and Ms Stanton retrieved. In my view it is probable that Ms Naylor and Ms Stanton paid far less attention to retrieving Mr Tatar's clothes, accessories and personal items than to retrieving hers. It must have been apparent to Ms Naylor that by the time that she had access to the premises on 29 October that Mr Tatar had probably been responsible for the destruction that had occurred in the premises. Despite their three year relationship, her priorities that day would have been more directed to retrieving items of major value, and then retrieving her own personal items, and only then retrieving what belonged to Mr Tatar. As Mr Tatar was the likely author of the destruction, it was only natural, in my view, for Ms Naylor to give more attention to her own possessions in these circumstances. And that, in my view, is what she did.
155Mr Tatar no doubt did own items of the kind claimed in items 33 to 38 of the Schedule. But in the absence of receipts I am not prepared to infer in his favour that they had any particular value, or were even of the kind claimed. In my view Ms Naylor is simply likely to have left them there and they were treated, not unreasonably as rubbish.
156(39) (40), (41), (42), (43), (44), (45), (46), (47), (48), (49), (50) Fourteen hats, Ten belts including ostrich, Ten white Abelard business shirts, ten Brioni Business shirts, various colours, ten casual shirts, Brioni, ten various shirts, approximately 50 ties; Versace, Hermes, Brioni and Zegna, five sports coats, Zegna, eighteen trousers, evening wear, Armani, evening wear, Boss, camel coloured Cashmere Overcoat. All of these items of clothing and accessories are said to have been missing and not in storage. But Ms Naylor agreed that these items cannot be seen in the photographs of the dressing room area or the nearby bathroom and that she did not know "the extent to which any of them might be damaged or stolen in the incident". Although she denied that some of these items might have been moved out of the house when she was away in Dubbo before the incident, I am not convinced that she had any thorough idea what was in the house when she came back. The absence of these items from the photographs is mysterious, particularly looking at image 4936 of the dressing room, and image 4937 of the nearby bathroom. It seems obvious that some belts and shirts have been taken out of cupboards and strewn around. But they are quite small in number. There are again no receipts in respect of these items. Mr Tatar could give no better evidence as to the absence of such items from photographs such as image 4937. In my view the plaintiffs have not discharged their onus of proof of that these items existed in the apartment between 25 and 29 October.
157The police photographs give a slightly better perspective on this part of the house. But in my view examination of police photographs 48, 49 and 50 does not show anything like the quantity of clothing claimed by the plaintiffs. The police photographs show some casual clothing and perhaps some business clothing of no obviously special value, further undermining the claim for these particular items. In the result I do not find that any of this claimed property existed in the apartment in October 2010.
158The findings on these items founds an inference that the plaintiffs' claim has been deliberately inflated in order to maximise recovery in respect of non-existent items. In my view Mr Tatar was quite prepared to put a claim together to include items that he well knew did not exist. The difficulty in this case is to look past that conduct to see whether there is indeed any validity in some of the plaintiffs' claims.
159(52) Evening scarf, Hermes. The plaintiffs say this item is missing. I am prepared to infer from their lifestyles that one of them owned such a scarf. And I accept that it was not retrieved from the storage facility. But what happened to it? In my view it was not destroyed by Mr Tatar but was left on the floor mixed up with less valuable clothing and discarded with that clothing. But the removalists were required to do what is reasonable. And they should have done some sorting. As a result they could have retrieved this luxury item from the mix of clothes Mr Tatar had strewn about the floor.
160(53), (54), (55), (56), Serengeti Sunglasses, Polarised, Serengeti Sunglasses, non-polarised, Zegna Sunglasses, Gucci Sunglasses. The plaintiffs claim that one pair of each of these sunglasses was missing. But in my view, if they ever existed, they are more likely to have been crushed in Mr Tatar's hours of destructive activity on the night of 25 October. Like other small crushable items the sunglasses are unlikely to have survived that activity. But they cannot readily be seen in any of the police photographs. I am not prepared to infer that they ever existed in the premises between 25 and 29 October.
161(57) Two boxes of 28 day contact lenses. These are said to be worth $350 for each box and now, to be missing. I do not accept this claim. Items such as contact lenses used in a 28 day cycle would, if made, have been recent purchases at the time of this incident. No doubt the purchases would have been made from a manufacturer or specialist retailer of such medical items. Receipts proving their existence should have been readily obtainable. None have been adduced in evidence. I am prepared to accept that Mr Tatar or Ms Naylor may have used contact lenses from time to time for vision correction as an alternative to glasses. But I am not prepared to infer that there were any in the house on the evening of 25 October.
162(58), (59) Raincoat, Burberry, five pairs of gloves. The Burberry raincoat seems to have been recovered. In my view any damage to it was likely to have been caused by Mr Tatar on the night of 25 October. I cannot see any gloves, of a kind claimed, in any of the photographs. There are no receipts. This part of the claim is not accepted.
163(60), (61), (62), (63), (64) ten bottles of men's fragrances, Tiffany cufflinks, Mont Blanc cufflinks, Salvatore Feragamo Cufflinks, Tiffany's evening shirt studs. This group of items, which are mostly small personal accessories and jewellery, were the subject of very little evidence. The plaintiffs claim they are all missing. Firstly as to the men's fragrances, nothing is evident in the photographs and I am not prepared to infer they existed. If they did they are likely to have been smashed as they are breakable items that could have been a tempting target for Mr Tatar on the 25 October. There is no objective evidence that any of these cufflinks or shirt studs were in the premises between 25 and 29 October. I am not prepared to infer that they were there merely from Mr Tatar's evidence and Ms Naylor's evidence. These small items cannot be seen in any photographs. Mr Tatar gave some evidence that he had been given Mont Blanc cufflinks by the Intercontinental hotel because of the amount of money he had spent there. But I am not prepared to accept Mr Tatar's evidence that he was given those cufflinks or that he had any others. Ms Naylor said that she saw the Tiffany & Co cufflinks when she was attempting to pack some of her clothing on 29 October. She says they were on glass shelving in the bathroom. But when asked "when you saw them, why didn't you pick them up?" she said "I should have but I didn't". She said, unconvincingly, that she did not even think about picking them up. I do not accept her evidence that she saw them at all.
164Dressing Room - Summary. In the result in the dressing room, the plaintiffs' claim has been made out to a very limited degree. The plaintiffs' claims in respect of the following items are successful: two women's business suits; half a dozen pairs of shoes; six sets of lingerie and six items of hosiery; one couture evening gown; and one Hermes evening scarf. The remaining claims for items in the Dressing Room fail.