Dowse v Sims [2013] QDC 326

DISTRICT COURT OF QUEENSLAND CITATION: Dowse v Sims [2013] QDC 326 PARTIES: NICHOLAS PATRICK DOWSE AS EXECUTOR OF THE ESTATE OF PETER PHILLIP DOWSE (plaintiff) v LEE ROGER SIMS (defendant) FILE NO/S: 4442/12 DIVISION: CIVIL PROCEEDING: Trial ORIGINATING COURT: Brisbane DELIVERED ON: 18 December 2013 DELIVERED AT: Brisbane HEARING DATE: 12 & 13 December, 2013 JUDGE: Reid DCJ ORDER: 1. It is declared that the 2007 Mercedes Benz Sprinter 311 CID MWB van be part of the assets of the estate of the deceased Peter Philip Dowse. 2. Order the defendant return the said motor vehicle to the plaintiff forthwith and direct that he do all things necessary to allow transfer of the vehicle registration to the plaintiff. 3. Order that the costs of effecting transfer of registration of the said motor vehicle to the plaintiff be borne by the plaintiff. 4. Liberty to the parties to apply to me for further directions, upon giving 2 days notice in writing to the other party. 5. Order that the defendant pay the plaintiff’s costs of and incidental to the action, including any reserved costs, to be agreed or failing agreement to be assessed on an indemnity basis. CATCHWORDS: Gift – Bailment – Onus of proving gift – intention – credit of witnesses COUNSEL: E Gass for the Plaintiff S R Grant for the Defendant -- 1 of 15 -- 2 SOLICITORS: Nicholas Dowse Colwell Lyons Lawyers for the Defendant [1] The plaintiff is the executor of the estate of his late father, Peter Phillip Dowse (hereinafter “the deceased”), who died on 8 April 2012. He seeks a number of orders including a declaration that the deceased was the owner of a 2007 Mercedes Benz Sprinter 311 CDI MWB van (hereinafter “the motor vehicle”) and that the motor vehicle forms part of the assets of the deceased’s estate. He also seeks orders restraining the defendant from disposing or otherwise dealing with the motor vehicle, an order for recovery of its possession and damages for wrongful detention, conversion, breach of bailment or breach of contract, together with interest and costs. Background [2] It is admitted in the pleadings that the plaintiff is the sole executor and trustee of the deceased’s estate and that he was granted probate by the Supreme Court of New South Wales on 9 October 2012. [3] The deceased and the defendant were friends and had a common interest in an organisation called the Cab Drivers’ Association of Queensland Inc (hereinafter “CDAQ”). The defendant is the secretary of CDAQ, although he pleads in his defence that the organisation is “non-operational”. [4] It was discussed between the defendant and the deceased that a van would be useful to CDAQ. It was proposed that a vehicle be purchased through Mr Shane Holley and that it be fitted out for use as a mobile office to suit the requirements of CDAQ. -- 2 of 15 -- 3 That was done. It is common ground that the deceased provided the whole of the purchase price of $21,210, and also paid for the cost of fitting out the motor vehicle as an office. The vehicle was however registered in the defendant’s name and a receipt was provided by Mr Holley to enable this to occur. It stated that Mr Holley had sold the motor vehicle to the defendant. Mr Holley gave evidence this was done to allow the vehicle to be registered in the defendant’s name. Pleadings [5] The central dispute concerns the question of whether legal ownership was transferred to the defendant. [6] The plaintiff alleges that it was agreed between the deceased and the defendant that the deceased would retain ownership of the vehicle (para 10(b) of the statement of claim), that the defendant would take proper care of it (para 10(e) thereof), use it as CDAQ’s mobile office (para 10(f) thereof), would also use it to perform tasks for the plaintiff when he requested it (para 10(h) thereof) and, importantly, return it to the deceased on demand (para 10(f) thereof). The plaintiff also alleges that in mid-2011 “CDAQ failed” (para 13 of the statement of claim). The plaintiff alleges the defendant retained possession of the motor vehicle and in about March 2012, shortly before the deceased’s death on 8 April, had CDAQ markings removed from it, thereafter using it for his own personal use (para 14 of the statement of claim). The plaintiff also alleges that in May 2012 the defendant advertised the motor vehicle for sale. -- 3 of 15 -- 4 [7] Subsequently the plaintiff has demanded return of the motor vehicle – orally on 21 May, 13 June, 22 July and 18 October 2012, and in writing on 22 May, 15 June and 20 July of that same year. [8] The defendant maintains that the motor vehicle was given to him by the deceased unconditionally (see para 3(b)(i) of the defence). He says that gift is evidenced by the fact that the deceased instructed Shane Holley to provide a receipt for the purchase of the vehicle by the defendant, despite the deceased providing all of the funds to enable its purchase (para 3(b)(i) of the defence) and by the fact that the deceased said to him “well, the vehicle’s yours”, or similar words, in May 2011 and June 2011 (para 3(b)(iii) and (iv) of the defence). I shall refer to these allegations later as they are, in my view, critical to consideration of this matter. The defendant also alleges that he paid routine maintenance and insurance costs of the vehicle (para 3(b)(v) of the defence). The defendant does not admit any agreement between he and the deceased to “set the vehicle up as a mobile office for the CDAQ” but says that it was nevertheless his intention that the van would become a mobile office which he would use, as part of his work with the CDAQ (para 6(c) and (g) of the defence). Specifically the defendant denies there was any agreement for the defendant to return the motor vehicle to the deceased upon demand (para 6(i) of the defence). He admits refusing to return the vehicle despite the plaintiff’s demands (para 10 of the defence) but says that he has done so because the motor vehicle is legally his. [9] It should also be noted that despite the claim in the statement of claim for damages for wrongful detention, conversion, breach of bailment and/or breach of contract, the statement of claim makes no attempt to plead facts relevant to loss. Indeed no -- 4 of 15 -- 5 allegation as to the value of the motor vehicle is made. Nor was evidence as to loss presented. It seems to me the claim is in reality for a declaration of ownership and recovery of possession of the vehicle. This is perhaps understandable in circumstances in which McGill SC DCJ made an order on 12 December 2012 prohibiting the defendant from disposing of the motor vehicle or diminishing its value other than as might occur through its use in the ordinary and proper course of a delivery business. The trial [10] At the trial a bundle of documents was admitted into evidence by agreement between the parties. Much of it contained documents passing between the deceased and/or the plaintiff and persons other than the defendant, or between the defendant and others, or other material disclosed by the parties as being relevant to the issues in the proceedings. So too did the defendant’s counsel tender a number of other such documents, particularly through cross-examination of the plaintiff. [11] The plaintiff’s counsel referred me to Hughes v National Trustee Executors and Agency Coy of Australasia (1979) 143 CLR 134 and Walton v R (1989) 166 CLR 283 as supporting the admission of those documents as original evidence of the deceased’s intentions when purchasing the motor vehicle. [12] Proof of such intentions by proving a person’s statements are an accepted means of proving the person’s intentions in circumstances where it is material to prove what the person’s intentions were. Statements of others based on their belief as to the intentions of the deceased are not admissible evidence of such intentions. In order to determine the deceased’s intention it is in my view necessary to consider what the -- 5 of 15 -- 6 deceased said at the time of the alleged gift or what had been said by the defendant and the deceased to one another to determine whether the van had been a gift or not. In considering what had been said, it is also relevant to consider what each may have written or said about those discussions, particularly in so far as such statements may be inconsistent with the parties stated case, but statements of others as to the intentions of the deceased, or of the defendant are in my view not admissible. [13] Because the deceased is of course unable to give evidence, the plaintiff must rely on other evidence to prove its case. That other evidence includes evidence of Annmaree Robinson, who was the deceased’s de facto partner for many years, about what the defendant said to her about the motor vehicle. [14] Other evidence called in the plaintiff’s case was often conclusions as to what the witnesses believed had been arranged. Some of it was hearsay evidence of discussions the deceased was said to have had. In that respect it was often unhelpful. In any case, what weight I might have given that evidence was to some extent obviated by the defendant’s evidence that he had discussions with the deceased in May and June 2011 in which the deceased said that the van was the defendant’s. It was this evidence that he said he relied on as justifying in his mind that the deceased had given him the vehicle. I shall return in greater detail to what the defendants said about those conversations later. [15] The crucial evidence which I do rely on in this case was that of Annmaree Robinson. [16] She had been present at a dinner in 2010 at the home where she and the deceased lived in Kangaroo Point. She said she first met the defendant at this time. Another -- 6 of 15 -- 7 witness, John Rahilly, was also present. They discussed CDAQ and the idea of purchasing a van as a mobile office. Subsequently Ms Robinson became aware the deceased had purchased such a van in late 2010. Thereafter she saw the defendant driving a van from time to time performing, she said, “CDAQ work”. She also said that he assisted a number of times in moving furniture for herself and the deceased. [17] She said that following discussions she had with the deceased in early 2012, in which the deceased said he needed to sell the motor vehicle, and also another vehicle that is not relevant to these proceedings, and that she should talk to Kayleen Harper, his former personal assistant about doing so, she spoke to the defendant a number of times about the motor vehicle. [18] She said she initially spoke to him over the phone. She said the defendant said during that conversation that he wanted to purchase the van and was trying to raise funds to enable him to do so. He said he was trying to do so through family members. [19] She said she had similar conversations with the defendant at least six to eight times. She said he told her he was thinking of converting it into a campervan. Importantly she said that following one such conversation, and at the defendant’s request, she, on 13 March 2012, emailed him, attaching to her email details of the deceased’s expenditure on the motor vehicle. The email (Document 33 of Ex. 2) said: “Hi Lee As discussed, please find attached the costs associated with the van. I’ve had a chat with Pete, and he would definitely prefer to sell his vehicle to you. So let us know what you want to do. Thanks heaps. … -- 7 of 15 -- 8 Ann” Attached to the document was a list of expenses that the deceased had made, totalling $28,017.36, associated with the purchase and fit-out of the vehicle. [20] Ms Robinson said she received no written response to this email but gave evidence that the defendant subsequently told her he would check prices at auctions to see what such motor vehicles were selling for. She said that the deceased had told her that the defendant could buy it for $17,000 to $19,000 and that she passed this information on to the defendant. [21] She said she had similar such discussions, in person or on the phone, about 6-8 times, in which the defendant continually discussed borrowing from friends and family to buy the van. [22] During cross-examination, and in response to questions from me, Ms Robinson gave evidence consistent with the contents of a statutory declaration (see pps. 10 and 11 of document 56 of Exhibit 2) about some such conversations. She affirmed in particular an occasion in March 2012. She said she was sitting in the van when the defendant indicated he needed some more time to get funds to buy the van. She also recalled a similar discussion, referred to in that statutory declaration, on the night of the state election of 24 March 2012. [23] Subsequently in late May 2012 she was told by the plaintiff that the defendant was advertising the van for sale on the internet. This was of course after the deceased’s -- 8 of 15 -- 9 death. She said she then rang the defendant. She said that for the first time the defendant asserted that the deceased had given him the van as a gift. [24] In response she wrote an email on 27 May 2012 to the defendant (document 42 of Exhibit 2) which, so far as relevant, said as follows: “As discussed, you know at no stage did Peter offer you the van as a gift. Peter and I had numerous conversations around him wanting to sell it and he had asked Kay to arrange for it to go to the auctions. Around this time you told both Peter and I you wanted to buy it. Peter’s instructions were quite clear, you had first option to buy or it would be sent to the auctions. I recall you saying several times you were trying to raise the funds and asked for more time as you had to speak to your brother-in-law. I recall our conversation on 7 March 2012 where I asked you again about buying the van and to have a chat with Peter if you wanted to buy it, as he wanted it sold. Your response was you were still negotiating with your family around funds as you were hoping to convert it into a camper van and would get back to us over the coming weeks. On 13 March 2012 you requested the costings on the car. You told me this was because you needed them to work out your offer. You told me you had checked out what they were going for at the auctions ... approx $23,000/$24,000. This was discussed with Peter and he said he would be happy to take between $17,000 and $19,000 for the car if you wanted to buy it. So in fact, Peter was willing to sell it to you for a lot less than what you are now trying to sell it for.” [25] She said in evidence that the defendant did not respond to that email either. That is not disputed. [26] In my view the defendant’s failure to respond to document 42, sent on 25 May 2012, or to document 33, sent on 13 March 2012, is important. Both were on their face inconsistent with the defendant’s case that the van was a gift. I find the reason he did not respond, asserting the van was a gift, is because he did not dispute the contents of the emails, especially that of 13 March. Instead he continued to indicate -- 9 of 15 -- 10 he was attempting to raise funds to purchase the van and convert it into a campervan. [27] I reject the defendant’s evidence as to the conversations he said he had with the defendant in May and June of 2011 in which he said the defendant told him the van was a gift to him. In his evidence he said: “HIS HONOUR: You were driving in the car?---So and in it I said the TWU still haven’t got about the proposal I put to them, but it looks good and I said that, if that goes ahead I’ll use the van as it is to attract drivers to sign them to the TWU and they can fix me up with as coordinator, pay me as that. And he said, well, it’s yours. Meaning the van. And I said, yeah, but Peter you put money into this, I think you should be compensated, so if I get anything back with it we should work out the arrangement and he said, talk about that down the track. He said, we’ll talk about it down the track. MR GRANT: And did you talk about it down the track?---Well, I raised the matter again in – a couple of weeks after that, again driving in the car and I said, again, about the TWU, still waiting for that to come back, but all looks good, Bob Giddens has already spoken to the Taxi Industry Advisory Committee, said we’re going ahead, told the Minister, so it’s only a matter of time, and I’ll use the van then and they will have to pay me for it, so if I get some money from it I want to compensate you and he said, forget it. When I told him I was using the van first I – he said the van’s yours again. And then when I said, but you should be compensated, he said, forget it, and that was the last time we spoke about it HIS HONOUR: So was it only then, that is, perhaps the middle of 2011, that you, for the first time, realised the van was yours?---Yes, the first time that I definitely that it was mine unencumbered with any obligation to pay anything. Up until that stage, we had never really discussed it. The cancer only got announced in January, your Honour, and that sort of threw a spanner in the works for a lot of things, too. From that point on, I drove him around, unpaid, to help him as a sort of symbol of support. I’m a cancer survivor myself. And you say those two conversations were in about June?---May – toward the end of May and June. I’d probably think on a Tuesday or a Wednesday, but it was usually through the week that we would attend to business or just go for a copy. I saw him very regularly, even after the cancer was diagnosed because sometimes he just wanted to get out of the house. But I regularly drove him to doctor’s appointments and things. ” -- 10 of 15 -- 11 [28] If that conversation had occurred the defendant would, in my view, have responded to the email of 13 March 2012, at a time the deceased was still alive, and mentally still competent, by asserting that it was a gift so that the matter could be resolved with the deceased. He did not do so. The reason he did not, I find, was because no such conversations had taken place. [29] Moreover the defendant, when he gave evidence, said that he had met the plaintiff at the Aquilla Coffee Shop on 13 June 2012 to discuss the matter. He said that he told the plaintiff of these alleged conversations the defendant said he had with the deceased in May and June 2012. The plaintiff gave no evidence of such conversations. During his cross-examination, it was not suggested to the plaintiff that at this meeting at the Aquilla Coffee Shop the defendant had told him of those alleged conversations. I was initially concerned that this was a matter that the defendant’s counsel had not put to the plaintiff during cross-examination but that concern was obviated by the defendant’s own evidence that he had not told his counsel that, at that meeting of 13 June, he had in fact told the plaintiff about those conversations. [30] As is apparent from the defendant’s evidence set out in [27] hereof, these conversations in mid 2011 were critical to the defendant’s belief the motor vehicle was given to him as a gift. In my view it is inherently improbable that if they had been mentioned by the defendant in conversation with the plaintiff on 13 June that the plaintiff would not have given such evidence. He would have recalled it. He impressed me as a careful and precise witness. The fact that the defendant did not tell his counsel about such conversations assists me in concluding that the conversation did not occur. The defendant’s assertion that it did left me with the -- 11 of 15 -- 12 impression that it was a matter he made up as he gave evidence. I specifically reject his assertion that he told the plaintiff about those conversations at that meeting at the Aquilla Coffee Shop on 13 June. [31] I also reject the defendant’s evidence that the alleged conversations of May and June 2011 occurred. His own evidence was that up until that stage he was not clearly of the view that the van was a gift. Although it is the deceased intention in whether he gave the van to the defendant as a gift which is important I find there was no statement by the deceased to that effect in May or June 2011. [32] The Defendant also relies on the following matters which it is said would cause me to conclude that the deceased gave the motor vehicle to the defendant as a gift at the time it was purchased – (a) The fact that it was registered in the defendant’s name at the request of the deceased. (b) The fact that the defendant did not register any encumbrance on the van despite his long business experience with the sale and purchase of motor vehicles and despite his being aware of the ability to assert a claim over title to the motor vehicle on the REVS register. (c) The deceased’s keen interest in supporting the defendant’s activities through CDAQ and his knowledge of the defendant’s need for financial support. (d) The deceased email to the plaintiff of 30.10.10 in which he said “This is a van I am financing for Lee Sims and the CDAQ” which the Defendant submits, meant he was paying for the van to supply to the defendant. -- 12 of 15 -- 13 (e) The length of time the motor vehicle was allowed to remain in the defendant’s possession, even after the collapse of CDAQ. [33] Whilst each of those matters could be relevant to the question of whether the motor vehicle was a gift they do not cause me to so conclude. The onus of establishing that the motor vehicle was a gift rests on the defendant. In determining whether the Defendant satisfies that onus it is also important to bear in mind that the relevant intention is that of the deceased, not what the Defendant may have thought at the time of the gift. It is also important to understand that if the deceased gave the defendant the motor vehicle as a gift at some time, he was not then able to resile from that gift at a later time. Thus, if he gave it as a gift at the time of its purchase and the registration of the vehicle in the defendant’s name, he was not able to resile from that gift in 2012. [34] In my view the deceased’s actions in paying for the van and registering it in the defendant’s name was part of his desire to advance the interests of CDAQ by ensuring the defendant had the use of a mobile office. In my view it was always the deceased’s intention that the vehicle be provided to the plaintiff for the use of the CDAQ, an organisation in which the deceased had a keen interest. Once the use of the van for the purposes of the CDAQ passed, as occurred because of the collapse of the activities of the organisation in about mid 2011, then the van ought to have been returned to the deceased. The deceased inaction in recovering the van earlier was I think explained by his ill health. The defendant’s actions in retaining it, after Ms Robinson on behalf of the deceased had asked for its return, was unjustified. I find that the van was at all times the property of the deceased and the defendant’s retention of it is unjustified. -- 13 of 15 -- 14 [35] In my view the deceased’s actions in having the vehicle registered in the defendant’s name was understandable since it was he who would have the exclusive use of it, for the purposes of the CDAQ. By registering it in the defendant’s name, the defendant would be responsible for any offences or fines pertaining to the use of it. That the deceased’s interest in the van was not requested on the REVS register is explained by the friendship the deceased had with the defendant and the trust he had in him. I am not satisfied the defendant has established the vehicle was given to him as a gift. [36] In so concluding, I am influenced also by the fact I found the defendant evasive and unconvincing as a witness. By contrast I accept the evidence of Ms Robinson about the conversations she had with the defendant. In my view the defendant’s clear statements to her that he was hoping to buy the vehicle by raising funds from family members is entirely inconsistent with his stated case that the van had earlier been gifted to him. [37] I therefore conclude that the vehicle is part of the estate of the deceased. [38] In my view it would however have been encumbent on the deceased to have paid the cost of having the registration of the vehicle transferred to him. This is consistent with his conduct in paying for all costs associated with the purchase and registration of the vehicle. [39] In circumstances in which the plaintiff called no evidence of loss associated with the defendant’s refusal to transfer the vehicle to the deceased in March 2012, I decline to award any sum by way of damages for breach of bailment. I find the -- 14 of 15 -- 15 plaintiff has proved the necessary elements to establish Bailment (See Reynolds & Reynolds v Alumina-Lite Products Pty Ltd [2009] QSC 379 per Martin J). [40] When I gave judgment, the plaintiff asked for indemnity costs because he had made an offer to settle which activated the terms of r 360 of the UCPR. That was not opposed by counsel for the defendant. [41] I order that: 1. It is declared that the 2007 Mercedes Benz Sprinter 311 CID MWB van be part of the assets of the estate of the deceased Peter Philip Dowse. 2. Order the defendant return the said motor vehicle to the plaintiff forthwith and direct that he do all things necessary to allow transfer of the vehicle registration to the plaintiff. 3. Order that the costs of effecting transfer of registration of the said motor vehicle to the plaintiff be borne by the plaintiff. 4. Liberty to the parties to apply to me for further directions, upon giving 2 days notice in writing to the other party. 5. Order that the defendant pay the plaintiff’s costs of and incidental to the action, including any reserved costs, to be agreed or failing agreement to be assessed on an indemnity basis. -- 15 of 15 --