Discussion
100Before dealing with the way in which the plaintiff puts its case against the second defendant, it is important that I make some observations and findings about the history of ownership of plate 116, or more accurately the right to display. I should also add that there is a paucity of official records dealing with precisely who owned the right to display and/or for that matter who had possession of the plate 116, such as to provide any real certainty prior to 1986. The evidence seems to suggest that prior to that date both individuals and corporate entities had exercised the right to display. Immediately prior to 1986 and perhaps for some time it seems MSA exercised such a right.
101Plate 116 was it seems initially attached to a vehicle purchased by a Mr Leopold Simonson. At this point probably and for a period thereafter the plate was on a car personally owned by him rather than any corporate entity. The position is not entirely clear but perhaps of no moment ultimately.
102Mr Leopold Simonson died in 1960. At that point Mr John Simonson (the father of the second defendant) took over the running of the family business.
103From about 1960 until it seems his retirement in 1986, plate 116 was affixed to a car or cars used by Mr John Simonson and perhaps others but was it seems probably affixed from time to time to cars owned by a corporate entity within the Simonson family group of companies including MSA.
104It will be recalled that an important factor put forward by the plaintiff as to why a trust of an express kind was created in relation to plate 116 is the contention that there was a custom of MSA to permit plate 116 to be displayed on a vehicle used by one of its senior employees or directors or a spouse thereof, and that on resignation or retirement of the employee or director it would be returned to that company for the use of another senior employee or director or spouse thereof. Mr Bruce Simonson gave evidence to that effect, which was to some extent corroborated by Mr Alan Russell.
105However, I am by no means satisfied that the custom existed or at least was at all times adhered to, and indeed on one view of the evidence it was simply discontinued in 1986. It would appear probable that up to 1960 it was in the name of Mr Leopold Simonson, or a corporate entity, or perhaps both. It may well have been thereafter and until 1986 registered in the name of a corporate entity in particular MSA, however in 1986 all that changed when Mr John Simonson retired.
106Upon his retirement in 1986 and in line with company policy Mr Simonson was permitted to purchase the two vehicles which had been allotted to him as part of his employment package. He did so, and it seems it is uncontroversial that plate 116 and hence the right of display was transferred with one of those vehicles that he had purchased at the time of his retirement. That vehicle was either initially registered in his name but on the evidence could have equally have been registered in the name of his wife. Until 1994, Mr Simonson and or his wife had it seems possession and control of plate 116 and the right to display.
107It is common ground that upon retirement he ceased to be a director or an employee of MSA or of any other corporate entity in the family business. There may be little doubt that, as he was described as the patriarch of the Simonson family, he unsurprisingly thereafter maintained an interest in the affairs of the family business. But importantly his taking both the possession and control of the plate and affixing it to whichever car or cars he or his wife drove in the period 1986 through to 1994 Mr Simonson in effect discontinued or ignored the so called custom if it ever existed. There is also no doubt that the incoming managing director, Mr Bruce Simonson, was well aware that Mr John Simonson took the plates and was using them as if his own, and yet took no step to recover them on behalf of MSA or any corporate entity. It follows he was well aware that the custom, if it ever existed, had been discontinued or ignored by Mr John Simonson.
108Relevantly during the period 1986 to 1994 no one from MSA ever approached Mrs Marjorey Simonson about the return of the plate.
109Therefore during the period 1986 to 1994 Mr Simonson and/or his wife not only had physical possession of plate 116 but behaved as if they owned it, along with the right to display. There is little doubt that Mr Simonson had been instrumental in the success and prosperity of the family business. There is no evidence as to the actual level of his retirement benefits but as the patriarch and an important driver perhaps in the prosperity of the family business it clearly would have come as no surprise to other members of the family that he took plate 116 with him perhaps as a memento. I find it entirely probable given his status within the family business in NSW and in particular MSA that in effect he was given plate 116 by MSA, but more accurately the right to display. There is no evidence of whether Mr Simonson paid any consideration for the plate as opposed to payment for the motor vehicles. But even assuming no consideration was paid by him, as I have said, I find it entirely unsurprising given his status within the group and his long association with the family business that he would be given in absolute terms title and ownership of the right to display upon his retirement.
110The break or discontinuance of the so called custom to the knowledge of relevant family members and/or MSA militates against any notion of any express trust.
111I should also observe that MSA never attributed any value to plate 116 in 1986 or at any time. In so far as it may be suggested in some way that there should be presumed a resulting trust in MSA's right to display after his retirement, such a presumption would easily be rebutted given Mr Simonson's status and the circumstances of his taking possession and his exclusive use of the plates and hence the right to display for what should properly be seen in 1986 as an indefinite period going forward.
112It was put by the plaintiff that the custom continued in some way even after 1986 because Mr Simonson kept an active interest in the family business, including MSA, but the facts are entirely against such a proposition and I reject it as a plausible argument. What happened after 1986 is entirely at odds in the way the matter is pleaded. To keep an active interest is a far cry from what is pleaded as the custom.
113Mr John Simonson, it seems, had both a close and trusting relationship with his son in law Mr Bruce Hardy. They had a conversation in 1994, the terms of which are not challenged, in which Mr Simonson asked Mr Hardy what he should do with plate 116. Mr Hardy suggested that he was perhaps the last person that should be asked about the issue, but that his view was that it should be put into the name of the eldest child in the family. That of course was the second defendant.
114The second defendant alleges that at or about this time she too had a conversation with her father. Her father asked her would she "like" the number plate on "mum's car". The second defendant says that shortly after she had a conversation with her mother in which she asked whether it was acceptable for her to "have" the number plates, to which her mother answered that if it was alright with her father then she was content for that to occur.
115It was not put to either Mr Hardy, or the second defendant that these particular conversations with Mr Simonson did not in fact take place. Rather it was put that they should or could not be characterised as Mr Simonson intending to make a gift of the plate, and hence the right to display. I am satisfied that neither conversation was inherently improbable and indeed I accept that both of these conversations in fact occurred. It appears to be common ground that in or about 1994 after these conversations took place the second defendant transferred plate 116 from her mother's car to a car that she was then driving and which was owned by MSA. There is nothing to suggest that the second defendant made any payment to either of her parents in respect of plate 116.
116In my view, in 1994 Mrs Hardy's father Mr John Simonson, along perhaps with her mother, intended to give the second defendant the right to display plate 116 absolutely. In other words they were relinquishing any further claims or control over it. They obviously considered the matter and wanted their daughter to have that right. It was entirely a matter for the second defendant in turn, it seems to me, as to which vehicle she chose for the purposes of displaying the plate.
117During the period 1994 to 2004, the second defendant drove a number of motor vehicles provided by MSA and from time to time transferred plate 116 to whatever vehicle was then supplied to her.
118In summary then, when one considers such materials as are available as to the ownership of the right to display plate 116 it seems to me that what occurred in 1986 with the consent and knowledge of MSA, including individuals such as Mr Bruce Simonson, is that Mr John Simonson took physical possession and control of the plate and with it the right to display. His conduct in not only treating the plates as his own to the knowledge of all concerned having purchased both vehicles but thereafter paying registration and other fees associated with the exercise of the right to display are consistent with his clearly asserting and enjoying absolute ownership of the right to display.
119After 1986 no person, director or otherwise in the family business sought to challenge Mr Simonson's possession of and/or control over the plate. It would have been obvious that he had the plate, continued to use it and did so to the knowledge of MSA. As I have also observed, those concerned therefore must have been acutely aware that even in the event that some custom had previously existed it had been brought to an end in 1986.
120The gift to the second defendant again could hardly have escaped the attention of relevant persons and that she thereafter had effective possession and control over the plate.
121There is no evidence that in 1994 a choice was made by the second defendant to make a gift of the right to display to MSA, nor was she asked to do so. There is no evidence that either Mr Simonson or his wife requested their daughter to transfer the right to display the plate to MSA, nor is there any evidence that MSA urged the second defendant to return it to the family business. The only evidence available is that she merely chose to have it affixed to a vehicle which then happened to be provided for her exclusive use at that time by MSA.
122It was not put to the second defendant in cross examination that in choosing to have the plate registered in the name of MSA she was intending to give absolute title to MSA either in recognition of some custom or otherwise.
123In transferring or facilitating the transfer of the plate I am satisfied she was not intending to give absolutely any property in the right to display in the plate to MSA. Following discussion with her father she gratefully accepted his gift, as it were, which she undoubtedly thought was of some significance to him and her mother. Given the circumstances in which she obtained physical possession and control of the plate, I would regard it as inconceivable she would immediately give it and the right to display absolutely to MSA.
124On that basis and on my view of the facts, a resulting trust would be presumed in her favour, whereby MSA whilst it acquired the legal title to the right to display thereafter held her equitable or beneficial interest in the right to display on trust for her. Given the circumstances in which she received the plate and maintained exclusive use and control of it through the decade 1994 to 2004 would in my mind not rebut the existence of that resulting trust but rather fortify its continued existence in her favour.
125At no time during the period 1994 to 2004 did any person in the family raise the matter of the plate with her or complain about her exclusive use of the right to display the plate. The plaintiff says that what occurred during that period was consistent with the custom as alleged as her husband was a director and/or senior manager of at least MSA. However I regard that as a rather glib response and indeed mere coincidence that in that decade the cars that she drove and upon which the plate was displayed from time to time were conveniently supplied by MSA.
126By 2003, according to Mr Bruce Simonson, the shareholders and directors became increasingly concerned about the unsatisfactory financial performance of the trading business operated through MSA. It was simply not operating profitably. A decision was taken some time during 2003 by an Executive Committee seemingly made up mainly of shareholders and directors of the two main Simonson family companies, MSA and the plaintiff, that the trading business should be sold.
127The trading business which included the stock and goodwill was in fact sold in or about April 2004. At that time the trading business had more than 100 employees and substantial assets including stock, racking, forklifts and computer systems.
128In or about April 2004 Mr Hardy and Mr Bruce Simonson resigned as directors of MSA. The other directors also resigned either in April or earlier in that year. All persons were paid out their respective entitlements including retrenchment entitlements.
129Mr John Simonson, understandably very concerned about the fate of the business which he had assisted to prosperity, came out of retirement to take an active role as a director of various companies including MSA. As at 2004 he had been in retirement for some 17 years and was 82 years old. He became involved in discussions concerning the sale of the assets of the trading company and thereafter remained actively involved in the business until at least August 2007, when MSA was deregistered. During this time he was at least on the boards of MSA and the plaintiff.
130On the other hand, Mr Hardy clearly played a significant role in the sale of the assets of MSA. He remained after 2007 when MSA was deregistered and was involved in other aspects of the business of the plaintiff and other family companies until 2012. However after his resignation in April 2004 he became a consultant for a period and later that year it seems became an employee although it is not entirely clear which corporate entity in fact employed him.
131As part of the sale process directors it seems were offered the opportunity to purchase cars that had been allotted to them during their period of service. Mr Hardy purchased two vehicles, as did indeed Mr Bruce Simonson. The vehicles were purchased at a written down value. Mr Hardy gave evidence that he recalled being present at a meeting in 2004 with Mr John Simonson and Mr Alan Russell. Either Mr John Simonson or Mr Russell asked why there were two vehicles left to be sold to which Mr Hardy indicated that they were the two which he was entitled to purchase. Again either Mr Simonson or Mr Russell asked Mr Hardy could in effect expedite the transfer of them out of MSA. I accept such a conversation took place.
132At this meeting it is uncontroversial that plate 116 was simply not discussed.
133MSA had retained a Mr Molloy, an independent auditor who assisted the company in the sale process and indeed had been MSA's auditor from 1994 to 2007. There is no evidence he considered the plate of any value or more to the point no evidence anyone ever drew his attention to it to be included in any list of assets.
134Indeed the plate seems to have been considered by the family, but perhaps more accurately only some members of it, as having some heirloom or memento status. In particular, it seems that Mr Bruce Simonson and Mr Alan Russell held this view. No other relevant members of the board of MSA were called before me and I am by no means satisfied that even its heirloom status was or is shared by all members of the Simonson family. This also tends to detract from there ever being a custom as alleged, but rather that there were a small number of family members who had a particular interest in plate 116.
135On 14 and 15 July 2004 both ownership in the motor vehicle and the right to display plate 116 were transferred into the second defendant's name, however it was only in 2012 when Mr Hardy retired that the second defendant was asked to return the plate.
136Undoubtedly during the early part of 2004 there were a number of meetings between Mr John Simonson and others in the context of discussing the disposal of assets of the trading company. Mr Russell gave evidence that in or about January 2004 the Executive Committee held the meeting at the offices of Deacons in Sydney which he attended. Present at the meeting were also Mr John Simonson and Mr Bruce Hardy.
137Mr Russell has no recollection of what was said by any particular person at the meeting but gave evidence that he recalled what he described as "unanimous decisions to the effect" that the trading business would be sold and any other assets that were no longer needed (such as furniture, equipment, racking) would be sold otherwise relevantly any "remaining assets" would be transferred to the plaintiff.
138On 13 May a board meeting of MSA was held and attended by Mr John Simonson, Mr Hardy and Mr Russell. In substance it is alleged that the meeting adopted according to Mr Russell what the Executive Committee had in fact resolved and/or recommended earlier in the year. Therefore I am asked to find MSA resolved to transfer for no consideration any remaining assets not sold, which it is submitted necessarily included plate 116.
139There are no contemporaneous minutes or notes of Mr Simonson or Mr Hardy or otherwise of either the meeting in January or the meeting of 13 May save for two and a half pages of handwritten notes taken by Mr Russell during the meeting in May. However it is accepted that neither at the meeting in January nor that of May was plate 116 referred to or discussed. It seems however reasonably clear from Mr Russell's notes of the meeting of 13 May that there was some discussion about motor vehicles but none which are relevant in my view to these proceedings.
140In the circumstances I am not satisfied on the available evidence that MSA resolved as suggested by Mr Russell. However in any event I regard it as fanciful that even if such a resolution were passed it could have been intended that plate 116 was to be regarded as a "remaining asset", to be transferred to the plaintiff only if not sold. First it was never considered an asset nor according to the so called custom was it ever to be sold.
141Importantly however Mr John Simonson must have become aware that not only were the two cars sold to his daughter and son-in-law but that the right to display plate 116 was transferred into his daughter's name. There is no evidence that he or anyone else raised any complaint or comment whatsoever. This is again entirely consistent with him having given the plates and hence the right to display to his daughter a decade earlier an event of which I am satisfied other persons in the MSA were well aware. But of all of the people associated with the company Mr Simonson must have been privy to the transfer of the plate from MSA to the second defendant. Mr Simonson clearly had a special interest in plate 116. Its existence could not have escaped his attention. He was back and involved in running the companies at a time of crisis but nobody sought to raise plate 116 including himself.
142Notwithstanding the fact that the transfer to her in 2004 was without consideration in my view she was entitled to have that occur. She was on my analysis the beneficial owner of the right to display in any event from 1994 and she had in effect permitted MSA to enjoy the legal right to display since then.
143For the reasons I have already given I do not consider that the right to display was the subject of a trust in favour of MSA at any point and certainly not after 1986 could it be regarded as having had a resulting trust in its favour either. The only relevant resulting trust in my view was one in favour of the second defendant from 1994 to 2004.
144My conclusion that there was no express trust is based upon my rejection of the alleged custom as objective fact. Rather than any custom existing in any factual or legal sense I am of the view that in reality what existed was no more than a belief or hopeful expectation of a few male members of the Simonson family. Otherwise as I have said the history of dealings with the plate also simply rebuts any presumption of a resulting trust in favour of MSA.