Connor v Bourke [2013] QDC 71

DISTRICT COURT OF QUEENSLAND CITATION: Connor v Bourke [2013] QDC 71 PARTIES: KAY LORRAINE CONNOR (Plaintiff) And ROBERT THOMAS BOURKE (Defendant) FILE NO/S: 3561/09 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 22 April 2013 DELIVERED AT: Brisbane HEARING DATES: 25, 26 March 2013 (written submissions: 2 April and 5 April 2013) JUDGE: Dorney QC, DCJ ORDERS: A. The judgment of the Court is that: 1. The Defendant pay to the Plaintiff the amount of $119,035.00 (exclusive of interest). 2. The Defendant return the following specified goods to the Plaintiff (by delivery up to the Plaintiff’s solicitors): a) a Diamond Ring (described in Item 3 of Exhibit 10); b) a Diamond (described in Exhibit 11), or pay its assessed value of $4,000.00; c) a Cluster Diamond Ring (with Emerald) (described in Exhibit 12). B. The Court directs that: 1. Both parties file, and serve, written submissions, if any, on interest and costs by 4pm 26 April 2013. CATCHWORDS: Debt – monies lent – detinue – where claim only for “delivery up” Civil Proceedings Act 2011 (Qld) ss 58, 81, 82 Evidence Act 1977 (Qld) ss 15A, 16, 17 Supreme Court Act 1995 (Qld) Uniform Civil Procedure Rules 1999 (Qld) r 897 (repealed) -- 1 of 21 -- 2 General and Finance Facilities Ltd v Cook's Cars (Romford) Ltd [1963] 2 All ER 314; [1963] 1 WLR 644 R v McGregor [1984] 1 Qd R 256 R v Suresh [1998] HCA 23; (1998) 72 ALJR 769; (1998) 153 ALR 145 Wade Sawmill Pty Ltd v Colenden Pty Ltd t/as Pilks Pine [2007] QCA 455 COUNSEL: C C Wilson for the plaintiff P N Nolan for the defendant SOLICITORS: John Nagel and Co for the plaintiff Kerin Lawyers for the defendant -- 2 of 21 -- 3 Introduction [1] The plaintiff claims, in the latest iteration of her statement of claim – for which leave to amend was given at trial - $128,395.00 as monies alleged to be due and owing to her by the defendant, by way of loans, as well as delivery up, now, of 3 pieces of jewellery. Although there is also claimed damages for conversion in the sum of $6,050.00, no evidence was led as to value for that purpose. Finally, interest is claimed under a Bill of Sale dated as made 30 March 2009 and, cumulatively, pursuant to statute (identified both in the claim and the latest statement of claim as pursuant to the Supreme Court Act 1995). [2] For his part, the defendant, in the latest iteration of the defence – for which leave was given at trial – denies that any sum is owing at all (because he alleges he paid all loans made by the plaintiff, in cash and kind, back) and proffers various responses to the items which are still the subject of the claim for detinue. [3] The trial was listed for, and took, 2 days. The only witness in the plaintiff’s case was the plaintiff herself. For the defendant, he gave evidence along with Darryl John Iseppi. Both parties elected for written Submissions (which were duly filed on 2 April 2013 and 5 April 2013, respectively by the defendant and the plaintiff). The plaintiff’s Submissions filed second in time, raised for the first time “new” (rather than purely corrective) amendments to the claim and statement of claim. While, in the circumstances, I might have given leave for purely corrective purposes, or (if foreshadowed at the very least before the defendant’s Submissions were filed and served) leave for any “new” causes of action, I refuse leave in this case. But, because the defendant, though granted the opportunity to respond to the plaintiff’s submissions, did not do so, and since it was always open, given the evidence, for the plaintiff to claim delivery up, or recovery, of the Diamond or its value assessed at $4,000.00, I will permit that to be agitated. And, as I did give leave during the hearing to amend the enumeration of the Bank Account details in paragraphs 3(a) and 3(c) for a fifth amended statement of claim, the plaintiff has had leave to file a new pleading reflecting that only. As to the late reference to the Particulars, the details of it were not put to the defendant and, therefore, should not be able to be relied upon now. Background [4] It is not in dispute that the defendant had a business of trading in second-hand jewellery. In his evidence-in-chief, he described his then occupation as Managing Director of Jewellery Auction and Sales, asserting experience in jewellery of some 16 years to that time. He stated that his dealings with the plaintiff concerned buying, selling and repairing jewellery and that the plaintiff lent him money which was wholly evidenced in a Bill of Sale executed on 30 March 2009 [Exhibit 4]. [5] The defendant further stated that, in the relevant period in 2009, he was in a “sort of crossover period” in that he was involved in another business, Jewellery Auction House, in which he had a third share (presumably with a Mr and Mrs Childs). The -- 3 of 21 -- 4 defendant stated that he was “then looking more to go by” himself, even though he was not an auctioneer. [6] With respect to the reason behind why the defendant said that he paid all the loan monies back (asserted to be in late May 2009), he stated that, unless it was paid back, “it had to be that (the plaintiff) was a 50 per cent partner in any new business” that he did (emphasis added). The Bill of Sale expressly provided for the timing of payments “back”. Its Recitals reference the plaintiff “assist(ing)” the defendant in his business. The defendant’s assertions about the monetary relationship that he had with the plaintiff were to the effect that, besides being the source of buying, selling and repairing jewellery for her, the arrangement was that she lent him money – though he further stated, in cross-examination that he “didn’t ask (her) for a loan” - for the purposes of him buying jewellery for his prospective auction in June. This would be inconsistent with the defendant’s assertion of having no more need for funds after entering into the Bill of Sale at the end of March 2009; unless I were to accept that sufficient funds had, by then, been lent – some 2 ½ months prior to the auction. And it was also his case that the only time that a “partnership” was mentioned was by way of that specific ultimatum issued by the plaintiff to him that if he did not agree to that kind of commercial relationship he would have to repay the sum then owing under the Bill of Sale. It must be again remarked, at this stage, that the Bill of Sale detailed its own repayment regime (see Clause 2) to which both were contractually bound to honour. [7] It is clear from the defendant’s answers in cross-examination that he did not accept that the true arrangement was that he and the plaintiff had a “partnership”, concerning the holding of an auction at the Broncos Leagues Club on 14 June 2009, for which the money that she advanced was to be for payments undertaken by the defendant for the purchase of jewellery and that the defendant would arrange for the auctioning of such jewellery, as well as the associated publicity. [8] As to the plaintiff’s evidence, she stated that from her initial discussions with the defendant she believed that he was an auctioneer and had a second-hand dealer’s licence. In terms of their commercial relations, the plaintiff stated that the defendant had said to her that he needed a “partner” and that she thought that, since she had been on her own for some ten years, that would be “a lovely interest” for her. In particular, the plaintiff stated that the defendant wrote on a pad what was required for the arrangement for an auction: that it would be at the Broncos Leagues Club at Red Hill; that the defendant had to hire the room; that the defendant had to do flyers; that letterbox drops had to be done; and that the defendant had to pay for an ad in the Courier-Mail. All these were said to be part of a list of approximately eight items. The plaintiff then said that the defendant told her how much silver and gold jewellery was required and that he asked that she “buy all the jewellery” (emphasis added). Further, the plaintiff stated that the defendant also told her that “our second auction” might be held in Toowoomba; and that they subsequently did go to Toowoomba to explore potential auction places. The intimate, sexual relationship between them – which she asserted but he denied - began before they went to Toowoomba. The plaintiff adamantly denied that the defendant has ever repaid any loan monies back. She also asserted that, when asked about her diary -- 4 of 21 -- 5 entry for 14 June 2009, she “still had hope that (she) was dealing with an honest person” who “would “would repay (her) after (her) auction”. [9] As at early 2009, the plaintiff, besides owning the unit where she resided, had liquid assets in the form of deposits in 2 bank accounts with the Commonwealth Bank of Australia (“CBA”). The first account (bearing CBA Account Identification Number: 76 4104.5006311) contained an amount of approximately $152,000.00. The second account (bearing CBA Account Identification Number: 76 4128.5001989) contained some $7,000.00. [10] It was not in dispute that amounts were transferred from the former of those accounts to an account of the defendant (bearing Account Number: 064-166; 10294957) and that the total amount transferred between 6 March 2009 and 3 June 2009 was $107,135.00. It is also not in dispute that, up to 30 March 2009, $76,100.00 was advanced by such transfers and, necessarily, from other sources. The plaintiff in the latest of her amended statements of claim detailed further amounts that she alleged were taken from the first account, in cash, and paid directly to the defendant. These totalled $17,200.00. With respect to the second account, the latest pleading alleged that cash withdrawals of $4,060.00 were paid to the defendant as well. It is the plaintiff’s case that all these sums were “lent and advanced” and that they became the subject of the Bill of Sale, whether loaned before or after the Bill of Sale. [11] As pleaded, the defence case is that - despite paragraph 3(c) of the fifth further amended defence of the defendant stating that the plaintiff “lent and made advances” to the defendant in the sum of $107,135.00 - $31,035.00 of that was paid for jewellery purchased by the plaintiff from the defendant or for work undertaken by the defendant at the plaintiff’s request including, but not limited to, the refitting, reshaping and design of items of jewellery [as further stated by paragraph 3(d)] with the balance of $76,100.00 being paid in cash and kind in discharge of the Bill of Sale. [12] As noted, the defence case is that the defendant made repayment of all amounts outstanding, in late May 2009. Credibility [13] Although there were 15 relevant exhibits in this relatively short trial, given the way that it was conducted and the allegations made, the actual determination of what, if anything, is recoverable depends primarily upon whose version of the relevant events is accepted. [14] In general terms, for the reasons which will be explored next, I accept that the plaintiff gave an honest and forthright, if at times confused (at least at the level of detailed recollection), account concerning the relevant events. I further find that the defendant was neither a reliable historian nor a credible witness, particularly concerning the nature of the monies paid to him from the plaintiff and whether he -- 5 of 21 -- 6 made any repayments at all to her. As for the third witness, I accept that Mr Iseppi was not shaken in his limited account of relevant events. But I also conclude that the acceptance of his evidence does not weaken in any material way the evidence given by the plaintiff. The plaintiff [15] The plaintiff kept extensive diary notes for the period in question [which was between late 2008 (according to the defendant), or early 2009 (according to the plaintiff), and mid 2009]. That diary became Exhibit 2. While it was primarily used by the plaintiff to refresh her memory as to specific incidents and conversations, having been admitted as an exhibit (in circumstances where learned counsel for the defendant accepted that it should be so because of his intent - which he fulfilled - to cross-examine, at large, on it), it has effect more widely than simply as a source of more detailed recollection on the plaintiff’s part. As remarked by McPherson J in R v McGregor,1 “the whole document becomes evidence”: at 265. The absence from it of detailed particulars of all payments made by the plaintiff is no more curious than the absence of particulars of intimacy (although there is the occasional oblique such reference, such as the defendant “left early for work”). [16] The first point of significance about that diary, and the plaintiff’s evidence in general, is that there were numerous telephone calls notated which were said by the plaintiff to have been made to her by the defendant. In the defendant’s evidence, he denied the majority of those calls. Such denials were consistent with the defendant’s further denial of there being any real emotional, much less sexual, relationship between him and the plaintiff. Since I accept the plaintiff’s assertions that she made the diary entries faithful to actual events on the days designated - apart from any specific entries dealing with sums of money in the “Notes” (such appeared at the end of every week) - I accept that those numerous phone calls were made by the defendant to the plaintiff. While the significance of such calls is not major, it does bolster the plaintiff’s statements that there did develop a close emotional, and eventually sexual, relationship between her and the defendant. In early 2009, the plaintiff was aged in her mid 60s, had been divorced for 10 years or so, and had not been in a personal relationship with anyone after her marriage ended, having lived alone since her divorce. As she stated, although she was “taken aback” by his approaches initially, since she had been on her own for 10 years and had been “very down” after her divorce and her mother’s death, and since she thought he was a “gentleman” (from being “very charming, polite”, including the use of “pet” names for her), it soon developed into an intimate relationship whereby the defendant used to come over to the plaintiff’s house and stay “one night a week, sometimes twice” and on each such occasion there was sexual intercourse. According to the plaintiff, this began in March 2009 and ended just prior to a proposed auction of jewellery in which both the plaintiff and the defendant were to be involved (which was to occur on 14 June 2009). Confirmatory of the existence of this intimate relationship is the plaintiff’s casual reference to the defendant’s impotence on the last such occasion. From her demeanour in the witness box, although at times she was condemnatory about what she alleged the defendant had done to her - even at times being 1 [1984] 1 Qd R 256 at 265. -- 6 of 21 -- 7 somewhat acerbic - I accept that she recalled these relationship events both honestly and reliably. [17] A significant issue concerning credibility arises from Exhibit 9. It was twice dated 23 May 2009. While described as a “receipt document”, it was proffered by the defendant as an acknowledgement by the plaintiff that she had been repaid all monies lawfully owed to her “on or about” 23 May 2009, both by way of jewellery work arranged by the defendant to be performed for her ($7,100.00) and by cash (in the sum of $69,400.00, inclusive of interest). [18] According to the plaintiff, when she signed at the bottom of Exhibit 9 there was no other handwriting on it. She never said she dated it. She stated that she had been requested to so sign by the defendant at the end of April 2009 or “something like that”. When taken to her diary, she refreshed her memory from an entry of 30 March 2009 in which she had written, “Blank Invoice Rob asked me to sign”. The plaintiff stated that the defendant had told her that the document was for the purpose of buying some second hand jewellery and that he needed the document to fill it out for any jewellery she bought for the auction. I do not find that so signing is so inconsistent with her other behaviour – particularly that arising from their intimate relationship – that it is “difficult to imagine”. The plaintiff gave evidence that on 23 May 2009 she was seriously ill in hospital, having had a kidney infection that had turned to septicaemia. The plaintiff gave further evidence that she was not discharged until 27 May 2009. Balancing the alleged circumstances surrounding the creation of the Exhibit 9 and the alleged incidents relevant to it as deposed to by the defendant, I accept the plaintiff’s version of how her signature came to be put on that particular document; and I conclude that the references in it to the jewellery work being done, and money being paid to her, are false. Thus, I conclude that no cash sum of $69,400.00 - or some similar such sum - was given to the plaintiff personally, or in any other way, by the defendant. I reject any contention that the plaintiff was in the habit of keeping a substantial “nest egg” of cash (particularly in face of her assertion - which I accept - that she did not have it after she bought the $17,500.00 ring). In dealing with this matter, the plaintiff was forthright in volunteering that she had answered an interrogatory by stating that she had signed the document on 23 May 2009, stating further that she no longer stood by that answer, particularly given her serious illness at the time. That evidence was given in examination-in-chief. There was no cross-examination on it, possibly because the defendant later in the trial sought, and obtained, leave to amend the defence to allege that the payment, stated to have been made by the defendant to the plaintiff, was “on or about” 23 May 2009. While, as will be seen, the plaintiff’s recollection of the detail of the money lent is confused, there can be no doubt concerning the bulk of the monies claimed as being lent. Her general memory of what happened was not undermined; and it can be surmised that any large sums at all (in the 2 accounts that she had) were seized upon and then pleaded without a thorough investigation by her or her advisors. As for the insurance claim involving Suncorp, I do not accept that any embellishment that did occur – and I have no reservations that she truly believed, but could not prove beyond speculation, her suspicions regarding the stealing of the ring under concern – destroys or significantly adversely affects her general credit. -- 7 of 21 -- 8 The defendant [19] Another relevant “credibility” document is Exhibit 13. It is dated 2 July 2009. Although the referenced date is 24 June 2009, that, unlike 14 June 2009, was not a “Sunday”. It is an obvious error. The plaintiff was cross-examined on the inconsistency between a diary entry for that date and her recollection, in cross- examination, of how it originated. Whether the plaintiff wrote it in the defendant’s presence or sent it by letter, there is no understanding of how the substance of it was formulated except by accepting the plaintiff’s explanation that she was told the very information (by the defendant) that was reduced to writing. If so, it is completely inconsistent with the defendant’s evidence that nothing was “owed” by him after late May 2009. The document was produced to court from the defendant’s possession. Thus, the only logical conclusion, particularly in light of the defendant’s failure to address the matter at all, is that Exhibit 13 did represent the plaintiff’s understanding at the time (i.e. that she would be entitled to some of the “proceeds” of the auction). This is consistent with her view of the arrangement that she stated existed about both parties having an interest in the mentioned auction. [20] As earlier summarised, I accept the plaintiff as a credible witness, overall. [21] I have already canvassed that aspect of the evidence led about whether there was an intimate relationship between the defendant and the plaintiff. The defendant completely denied any such relationship and, as I have already canvassed, denied the numerous phone calls asserted by the plaintiff, as well as denying the use of any pet names other than “Darl” – which he stated that he probably used for every female client. As correctly submitted by the defendant, any such relationship does not bear upon the causes of action in this proceeding. But the plaintiff’s explanations for the completely different recollections about most matters, especially concerning who “held” the security for the Bill of Sale (i.e. not her, except for “one day”) and whether there was a major payment of cash from the defendant to the plaintiff in late May 2009, also struck me as truthful and consistent with the personal relationship that she described. Her non-disagreement with a proposition put in cross-examination that she “gave the jewellery back” when “the money was paid over” demonstrates her confusion about the import of the timing. Her payments, rather than her agreement that she was, indeed, repaid money in late May 2009, appear to have been her focus in the context of the questions. [22] But what I found most concerning about the defendant’s evidence – besides his assertion that he “didn’t actually ask her” for the loan monies - was his complete lack of detailed recollection about what he alleged in his defence to be “Jewellery purchased by the Plaintiff from the Defendant” and the “work undertaken by the Defendant at the Plaintiff’s request including, but not limited to, the re-fitting, re- shaping and design of items of Jewellery between the days 1 November 2008 and 3 June 2009”: see paragraph (3)(d) of the fifth further amended defence of the defendant. When cross-examined on the issue, he asserted that he had documents relevant to such matters. What is clear is that, even though there was filed on the -- 8 of 21 -- 9 defendant’s behalf a Certificate of Explanation of Duty of Disclosure dated 25 March 2013 (Exhibit 1), no such documents were asserted to be available to be tendered to evidence such purchasing or work. While the defendant did put some blame for a lack of precise recollection on being “bashed” in 2010, he, conversely, had a clear recollection about some of the 4 items of jewellery which were the subject of the plaintiff’s claim for conversion (as well as a clear denial about the 4th). Given that there was no particularisation at trial of this alleged jewellery purchased by the plaintiff from the defendant or of the alleged work undertaken by the defendant at the plaintiff’s request [stated to be in the sum of $31,035.00, and the subject of the allegation in paragraph 3(d) of the fifth amended defence of the defendant] and no particularisation of the jewellery work said to be worth $7,100.00 in Exhibit 9, the contrast between such complete lack of such particularisation and the accuracy of the memory of the things previously mentioned strongly suggests that the basis of the unparticularised matters is untrue. There is one exception to that – although it was not either the subject of cross-examination by the defendant of the plaintiff or the subject of express evidence by the defendant. The diary shows that on 4 April 2009 the plaintiff wrote that she “(b)ought” scrap gold for $4,100.00. Since that sum was part of the $107,135.00 claimed by the plaintiff, any recovery seeking that sum of $4,100.00 must be rejected accordingly. [23] I have come to this adverse view regarding the credibility of the defendant without considering the effect of his convictions. Exhibit 15 is the combined: Verdict Judgment Record concerning 3 convictions in 2006 in the Magistrates Court for “false and misleading” entries in both the pawnbroker and the second-hand dealer registries; and a QPS record of outcomes in, primarily, 3 District Court convictions in 2000 for dishonesty offences. The latter informed the former. Although there is the general prohibition on impeaching a party’s own witness [see s 17(1) of the Evidence Act 1977 (Qld)], the learned counsel for the defendant, perhaps mindful of McHugh J’s reference in Suresh v R2 to “blunt(ing)”, opened up the District Court convictions in examination-in-chief. Section 16 of the Evidence Act permits the questioning, as happened, by the plaintiff’s learned counsel. Regardless of the exact width of the effect of such permitted questioning, where, as here, the convictions are for dishonesty offences, they do tend to weaken confidence in the defendant’s trustworthiness and, thus, bolster my conclusions just expressed. No question about the applicability of s15A of the Evidence Act was raised. Mr Iseppi [24] Although Mr Iseppi’s evidence was led by the defendant for the purposes of corroborating the alleged payment by the defendant to the plaintiff sometime soon after 23 May 2009 in the sum of $69,400.00, it is clear, from the totality of the evidence given by this witness, that he did not see the completed document (which became Exhibit 9) filled out (even though he was the one who told the defendant what words were to be used in that document) and that he did not observe either the defendant’s alleged recovery of the jewellery box (which was the security for the Bill of Sale) or the alleged payment of the almost $70,000.00 from the defendant to the plaintiff. 2 [1998] HCA 23; (1998) 72 ALJR 769; (1998) 153 ALR 153: at [18]. -- 9 of 21 -- 10 [25] Given that there was no clue as to the likely veracity, or not, of his recollection which could be detected from his demeanour in the witness box and given that there was no concession in cross-examination or any presentation to him of any document inconsistent with his evidence, I am content to accept, generally, the evidence of Mr Iseppi. [26] Any inferences contended to arise from his evidence favourable to the defendant are reliant on speculation, in light of other credibility findings. This is because the acceptance of Mr Iseppi’s evidence is still generally consistent with an acceptance of the plaintiff’s evidence. Mr Iseppi expressly stated that the auction “at the Broncos” was one of the defendant’s “own” operations, so “(the defendant) had to finance it himself”. Of course, that was before sometime in mid/late May 2009 when those two persons were involved in arranging for Exhibit 9 to be drawn up and executed. Mr Iseppi’s evidence does not require acceptance of the payment of cash from the defendant to the plaintiff in late May 2009, does not require the rejection of the plaintiff’s assertion that she never had the ongoing custody, possession or control of the contents of the jewellery box which was the security for the Bill of Sale (and the consideration for the payment by Mr Iseppi), and does not provide any support for the nature and extent of jewellery allegedly sold by the defendant to the plaintiff or for work done on the plaintiff’s jewellery, either generally or as appears in Exhibit 9. Accordingly, there is no significant inconsistency between accepting what Mr Iseppi has stated in the witness box and accepting the plaintiff’s evidence about those major issues in this case (in preference to that advanced by the defendant). [27] Exhibit 9, paradoxically for the defendant, provides some support for the plaintiff’s version of events through the prism of Mr Iseppi’s evidence. Mr Iseppi was the author of the words that were used by the defendant in composing Exhibit 9. While he was unable to recall when the document was drawn up at his “premises and in (his) presence” – conceding in cross-examination that he only saw the original document for the first time in Court in its completed form – the form of words were formulated by him for the purpose of ensuring that the payment of money by Mr Iseppi was to be made following the “completion of any transactions that had taken place previously” (emphasis added). These included – on information which can only have come from the defendant (a fact implicitly conceded by Mr Iseppi) - the appearance of the words, “NO AUCTION PARTNERSHIP”, as part of the particular terms required by Mr Iseppi. That is inconsistent with the defendant’s own sworn evidence about the absence of any commercial relationship with the plaintiff concerning the relevant “auction” to be held at the Broncos Leagues Club and implicitly inconsistent with the reference, maintained by the defendant, to a “future” partnership being simply a threat made by the plaintiff. Clearly, even if the payout were not to have been made, no threat by the plaintiff to that effect could be made good. It is, hence, inherently unlikely. It is also implicitly inconsistent with Mr Iseppi’s assertion that the only “transaction” that he was informed about by the defendant was the “loan agreement”. Rather, it is much more consistent with the plaintiff’s version of the arrangement that she asserted that she had with the defendant. In consequence, the documentary part of Mr Iseppi’s evidence, to this extent at least, is partly confirmatory of the plaintiff’s evidence concerning an actual business involvement of the plaintiff with the defendant that needed from Mr -- 10 of 21 -- 11 Iseppi’s perspective to be terminated, and is inconsistent with the defendant’s denial of such an arrangement. Bill of Sale [28] Exhibit 4, as indicated, was dated as made 30 March 2009. It is not in dispute that, according to its terms, the plaintiff had made an advance to the defendant to that date of $76,100.00. Recital B stated that the defendant had requested the plaintiff “to assist the (defendant) in the operation of the said business” carried on by the defendant “as a Jeweller”. The Bill of Sale further stated, that, in consideration of any further advances that the plaintiff in her absolute discretion “may” make “in favour of the defendant”, whether by advancing money “or doing other things”, the defendant “HEREBY COVENANTS AND AGREES” with the plaintiff “as follows”. It is clear from the definitions in Clause 1 that the security concerned an “all monies” facility and that the “Principal Sum” was wide enough to include all relevant monies that this Court finds were lent. [29] In addition, by Clause 2, provision was made for repayment of “the Monies Hereby Secured” as follows:  $15,000.00 (together with all interest due and owing) on or before 4 September 2009; and  the balance of “the Principal Sum” (together will all interest due and owing at that time of payment) on or before 6 March, 2010. [30] Interest was to be paid at the rate of 5% per annum, calculated and adjusted on a monthly basis: see Clause 1.2.2. The “Monies Hereby Secured” meant both the Principal Sum and interest on it: see Clause 1.2. [31] Clause 3 of the Bill of Sale provided for compound interest. [32] The only other aspect of the Bill of Sale that is relevant to the pleaded cases was the “option” contained in Clause 10. This gave the plaintiff the right, upon the defendant failing to pay the whole or any part of the “Monies Hereby Secured” strictly in accordance with the requirements of the Bill of Sale or upon failing to observe any requirement, to exercise that option, thereby making it lawful to exercise the powers conferred both by the relevant legislation (presently inapplicable) and those under Clause 10.2 itself. In the circumstances of this case, the only relevant consequence of any breach of Clause 10.1.1 or Clause 10.1.2 was to give to the plaintiff the right to exercise the option that the relevant monies became “immediately due and payable”. [33] Lastly, the Schedule to the Bill of Sale set out various items of jewellery designated as the security provided for the “Monies” (which were detailed in 6 Valuation Certificates appearing in Annexure “A”). -- 11 of 21 -- 12 Conclusions about payments of $107,135.00 [34] As has been noted, the receipt by the defendant of this amount from the plaintiff is not in dispute. The actual entries appear in the defendant’s own bank account (Exhibit 16) as entries between 6 March 2009 and 3 June 2009, although, as analysed below, the amount is not the total of the money that I find was so advanced as a loan. [35] As also earlier noted, the defendant alleges that part of that sum (namely, $76,100.00) - which was the sum outstanding at the time of the execution of the Bill of Sale (and acknowledged therein) - was repaid, with interest, in late May 2009 [partly by an actual payment in cash and partly by an alleged off-set for the sale of jewellery and work performed at the plaintiff’s request (on jewellery)]. That, by the very nature of the difference in accounting for it must be seen to be distinct from any of the $31,035.00 paid by the plaintiff to the defendant which was asserted by the defendant to have been paid exclusively “after” 30 March 2009 – but how there is no overlap with the money admitted by paragraph 4(c) of the fifth amended defence to add up to $42,035.00 was never fully explored at trial (especially where part was a further total sum of $29,935.00 paid up to mid-May 2009, and $12,100.00 thereafter). The maths attempted does not compute. As was attempted to be explored in cross-examination of the defendant, the amounts paid to his bank account up to the execution of the Bill of Sale fell $11,000.00 short of $76,100.00, (i.e. $65,100.00 only). Despite the defendant’s protestations about being “very good at maths”, he eventually conceded that the “missing” $11,000.00 must have been sourced from the plaintiff’s cash, though he initially gave explanations inconsistent with the Bill of Sale or his own pleadings (to the extent that the latter has any great significance). The only conclusion that is more likely than not is that there was an additional $11,000.00 sourced from the plaintiff’s bank accounts which the defendant received, not through his bank account, but through cash payments; and that this formed part of the $76,100.00 set out in the Bill of Sale. The sum of $7,000.00 and the sum of $4,000.00 (being part of $26,000.00) withdrawn from the plaintiff’s CBA Account Number 76 4104.500631 on 4 March 2009 and 17 March 2009, respectively, do, on balance, provide an adequate (i.e. on the balance of probabilities as the more likely explanation of the source) answer to the “missing” $11,000.00. Since I have rejected that alleged repayment by the defendant in cash and kind as being false, it can be determined that the preliminary sum of $76,100.00 has not been repaid. [36] Furthermore, as to the balance of the $107,135.00 plus the $11,000.00 (namely, $118,135.00), apart from the already discussed $4,100.00 on 15 April, I have also rejected the defendant’s evidence that those monies were simply payments by the plaintiff to the defendant both for the purchase of jewellery and for work undertaken by the defendant at the plaintiff’s request. I expressly reject the defendant’s assertions that he did not need any money after entering the Bill of Sale. It is more probable that the plaintiff’s assertion that she was to buy all the auction jewellery is true, particularly where the auction was then still 2½ months away [in circumstances where his financial document (Exhibit 16) shows how bereft of publicly saved funds he was during most, if not all, of that period]. Accordingly, I -- 12 of 21 -- 13 conclude that the sum of $76,100.00 plus $42,035.00, though minus $4,100.00, has also not been repaid. [37] In summary, on the determinations that I have made, the plaintiff has a valid claim for repayment of $114,035.00. It is to be noted that the division of any sum into the figures of $76,100.00 and $31,035.00 as, respectively, antecedent and subsequent to the Bill of Sale “payments” made by inter-bank transfers is purely a construct of the defendant. This is demonstrated by the post Bill of Sale acknowledged transfer payments being $42,035.00 (and not $31,035.00). Recovery of further $21,260.00 (or only $5,000.00)? [38] The sum of $21,260.000 is the total of the sums set out in sub-paragraphs (b) and (c) of paragraph 3 of the fifth amended statement of claim. The defendant denies that the constituent parts of that total were ever paid to him, much less that they were “lent and advanced”. [39] As was canvassed in the cross-examination of the plaintiff, and partially addressed earlier, there were other amounts in the original statement of claim which were abandoned by the time of trial. They represented amounts of $1,468.00, $1,251.00 and $1,593.00 which were stated originally to have been withdrawn from the plaintiff’s Account Number 76 4128.5001989 and paid to the defendant in cash on 24 February 2009, 24 March 2009 and 21 April 2009, respectively. As became apparent, those withdrawals by the plaintiff were used to pay Bankcard bills and provide cash for the plaintiff herself. Those changes do raise some concern in my mind, as I earlier remarked on. And they are compounded, to some extent at least, by the vague nature of some of the answers given by the plaintiff in her evidence with respect to other sums which are constituent parts of the $21,260.00. It will be necessary to canvass all such matters, in turn. [40] I will deal first with the amounts withdrawn from Account Number 76 4128.5001989. Although the plaintiff’s Submissions state that she now abandons such related claims, I intend to canvass them so as to completely address the evidence led at trial. The first of these was the sum of $1,000.00 on 20 February 2009. That date was one on which the plaintiff conceded that she bought a ring from the defendant, after some haggling, for $17,500.00. Her explanation for having a large amount of cash in her possession at that time was that her younger son was living overseas, and travelling, and that she was very worried about the possibility of him getting sick and the need to travel to him “or something like that”. In cross-examination, the plaintiff conceded that she might only have had $16,500.00 (i.e $1,000.00 short). When her attention was specifically drawn to the $1,000.00 withdrawn on 20 February 2009, she conceded that she “probably” had “a thousand dollars short of what he” (presumably) wanted. She then conceded that, if he was coming over, she could have “had to get another thousand dollars”. Finally, she expressly conceded that the particular $1,000.00 withdrawn on 20 February 2009 “no doubt” would have been the extra money needed to pay for the ring. -- 13 of 21 -- 14 [41] The next amount is $1,060.00 on 7 April 2009. The diary entry for that date acknowledges that the plaintiff went to her bank at Carindale. Also in the diary entry for that day is a reference to sending off money to “John Nagle”. When cross- examined about that, she indicated that the amount that she remembered was $1,010.00. It also accords with the plaintiff’s Deposit Receipt of that date to an Account Number ending “7532” – clearly not the defendant’s: see Exhibit 7 “H”. That sum is merely $50.00 different from the withdrawal of that date. Thus, I am not satisfied on the balance of probabilities that the withdrawal of $1,060.00 on 7 April 2009 was a cash sum which was paid, in full or in part, to the defendant. [42] The next amount is $1,000.00 on 24 April 2009. Again there is a diary entry reference of going to the plaintiff’s bank at Carindale and then going back to the post office to “Pay Bills”. When questioned about what the bills were, the plaintiff’s memory about such bills was a total of $465.00 (approximately). The plaintiff confirmed that such bills would be those paid at the post office. Thus, again, I am not satisfied on the balance of probabilities that the sum of $1,000.00 on 24 April 2009 was paid to the defendant. [43] The last amount is $1,000.00 on 29 May 2009. Again, the diary entry for that day refers to paying an electricity bill, her Bankcard, hospitalisation and medication costs and $70.00 for a DVD and three CDs. In cross-examination the plaintiff conceded that the Bankcard amount of $656.00 “would be true”. So, again, I am not satisfied on the balance of probabilities that the $1,000.00 was paid to the defendant in cash on 29 May 2009. [44] Thus, in summary, none of the amounts which total $4,060.00 referable to Account Number 76 4128.5001989 is recoverable in this proceeding from the defendant, as the plaintiff belatedly concedes. [45] Turning, then, to the plaintiff’s second CBA account of 76 4104.5006311: the first entry is an amount of $7,000.00 on 4 March 2009. The plaintiff, in examination-in- chief stated this was the first amount in time that she paid to the defendant in cash. No cross-examination was undertaken about this particular payment. Consequently, on the balance of probabilities, I find that that sum was paid by the plaintiff to the defendant and it was not a gift: see, also, the plaintiff’s responses in cross- examination that she was not “giving” (the defendant) money to help him along, which, although following questions about sums of money after the execution of the Bill of Sale, is acknowledged as a much more general answer. In any event, I find that this cash amount is the initial part of the “missing” $11,000.00 referable to the Bill of Sale figure. The diary provides support for this $7,000.00: see “Notes” for the week ending 15 March 2009. It has already been accounted for above. [46] The next amount is $200.00 on 13 March 2009. The context is that the sum of $5,700.00 was withdrawn on that date in cash and it is not in issue that $5,500.00 was paid by way of bank transfer to the defendant on that date. Therefore, there remains in contention the balance of $200.00. The diary entry for that day refers to the need to have money “ready” if the Avon lady (Tracy) came. In cross- examination the plaintiff admitted that that delivery would cost $25.00 (an entry -- 14 of 21 -- 15 appearing to that effect on 12 March 2009). I am not satisfied on the balance of probabilities that the additional $200.00 was cash paid to the defendant on 13 March 2009. [47] The next amount is the sum of $4,000.00 on 17 March 2009. The context for this is that $26,000.00 was withdrawn on that date from this account. It is not in contest that $22,000.00 was the subject of a bank transfer between the plaintiff and the defendant. The concern is thus with the balance of $4,000.00. There is nothing by way of date entries in the diary which might explain what the additional sum might have been for; but in the “Notes” entry for the end of the week containing 17 March 2009 there is as a reference $24,000.00. It appears to be different from the $24,000.00 referable to 6 March 2009 (because of the entry to that effect the end of the previous week). The plaintiff’s evidence-in-chief revealed that plaintiff “might have kept (the $4,000.00) at home”. In Exhibit 6, referable to 17 March 2009, there is a withdrawal for $4,000.00 and the correction by adjustment of an error for the same amount. The plaintiff explained that that was the result of an error by the teller. But because of the analysis earlier done, I am satisfied on the balance of probabilities that the sum of $4,000.00 was paid by the plaintiff in cash to the defendant on 17 March 2009, as the balance of the “missing” $11,000.00 forming part of the $76,100.00. But it is not doubly recoverable. [48] The next amount is $5,000.00 on 3 April 2009. The context for this is that there are admitted bank transfers from the plaintiff to the defendant on that date, separately, of $5,000.00 and $8,500.00. As can be seen from Exhibit 6, there were two withdrawals on that day. The first was $5,000.00 and the second was $13,500.00. Thus, the figure in question can only be the difference between $13,500.00 and $8,500.00. CBA Deposit Receipts for this date show that the later amount as deposited at approximately 1.42pm (with the earlier deposit occurring at approximately 9.46am). Complicating this issue is Exhibit 3 which is described as a “Purchase Docket” and dated 3 April 2009. It is undisputed that it is in the defendant’s handwriting. It refers to a total payment of $13,500.00 “paid in full today” (being 3 April 2009). The payment is referable to two pieces of jewellery with a purchase price of $19,000.00 “less” $5,500.00 for radio and advertising accounts. As explained by the plaintiff, after she had given the defendant “cash”, the defendant came back subsequent to a meeting said to have been held with a Mr Fleming (whom the defendant stated had demanded money) and, thereafter, the defendant brought back the receipt which is Exhibit 3. It is therefore probable, given withdrawals by the defendant from his own account on 3 April 2009 of $6,000.00 and $3,650.00, that, together with a further cash sum of $5,000.00, he was then able to pay that amount that appears in Exhibit 3 of $13,500.00. There is nothing in the defendant’s evidence which would gainsay such an occurrence. This should be seen in the context that the plaintiff stated that the reason for the second visit to her CBA branch was because the defendant had asked for more money and that the teller had put the balance of $5,000.00 in cash in “a Commonwealth envelope” for her and that when the plaintiff got back into the defendant’s car she handed it to him. The plaintiff does not state why this document (Exhibit 3), which seemingly had nothing to do with her, at least in any direct way, was given to her by the defendant. For his part, the defendant states that Exhibit 3 was for a purchase by the plaintiff, through the agency of the defendant, of the two rings that appear in that document. The specific problem that I have with that is that fact was not put to the plaintiff in -- 15 of 21 -- 16 cross-examination. Even further, the explanation which I have accepted about the sums advanced, in general terms, is that they were advanced by the plaintiff to the defendant for the defendant to purchase jewellery which was then to be the subject of sale by auction in mid-June 2009. Exhibit 3 can be seen to be such a purchase. If so, then Exhibit 3 is something that has at least some relevance to the “arrangement” between the plaintiff and the defendant concerning that auction. Some support for that conclusion is to be obtained by the reference in Exhibit 3 towards radio and advertising accounts. Accordingly, taking the evidence in its totality, I am satisfied on the balance of probabilities that the sum of $5,000.00 was paid in cash by the plaintiff to the defendant on 3 April 2009 by way of loan. [49] The last amount on this claim is $1,000.00 on 28 April 2009. The actual withdrawal on that date was $6,000.00. The plaintiff’s diary entry for that date, in contrast to almost all other date references to sums of money she lent the defendant, specifically refers to a bank withdrawal of $6,000.00. Although the diary entry for this date refers to a Bankcard bill of some $1,600.00, City Council rates of approximately $235.00, registration of $482.00 and also a payment to the Body Corporate, the plaintiff in cross-examination did not concede that the withdrawal of $6,000.00 was for the payment of those amounts. This is to be seen in the context of the plaintiff saying that she “presume(d)” that it would have been transferred into the defendant’s account – which it was not. The words she used were that she “certainly didn’t use it, so (she) must have taken it out to give it to him”. Although, in cross-examination, the plaintiff was referred to the payments that she made on 28 April 2009, it was never put to her that the withdrawal of that day was for the purpose of paying those amounts. Instead, the plaintiff made the unchallenged statement that “that was the day I drew another $6,000.00 for Mr Bourke”. The problem I still have is that the present amended pleading of the plaintiff claims only $1,000.00. Thus, viewing the totality of the evidence, particularly being mindful of the conflicting levels of certainty expressed here by the plaintiff, I am not satisfied on the balance of probabilities that the amount claimed of $1,000.00 for 28 April 2009 should be allowed. Interest [50] Since I have concluded that the unpaid amount of that sum which was lent and advanced by the plaintiff to the defendant is $119,035.00, it is necessary to determine what of the claimed interest the Court will order with respect to it. [51] Two particular, although not stated to be alternative, bases have been relied upon by the plaintiff. [52] Dealing with interest payable on outstanding sums which come within the ambit of the expression “the Principal Sum”, interest was agreed under the Bill of Sale on such of that sum as was owed from time to time to be at the rate of 5% per annum, calculated and adjusted on monthly balances. The interest could be capitalised under Clause 3 of the Bill of Sale. -- 16 of 21 -- 17 [53] The Notice dated 9 July 2009, if relied on as a default in paying, was premature in terms of the right to exercise the option under Clause 10.2 of the Bill of Sale. This is because Clause 2(i) did not make the initial sum of $15,000.00, together with such interest as was then outstanding, payable until 4 September 2009. The right given to the plaintiff under Clause 2 to notify was a right to notify “such place”, other than the plaintiff’s designated address, at which the payment was to be made. It did not give the right to nominate a date. [54] In so far as the plaintiff relies, for the basis of default, upon the prohibition under the Bill of Sale against the defendant selling or disposing of the “Mortgaged Property”, Clause 8.9 of the Bill of Sale obliges the defendant, until such time as the plaintiff signs a Memorandum of Satisfaction and re-assigns the Mortgage Property, not to, relevantly, assign, pledge, mortgage, encumber, or part with possession, or otherwise dispose of the Mortgaged Property. If that should happen, then, by the confined effect of Clause 10.1.2 and Clause 10.2, the relevant option could be exercisable. [55] Turning back then to the Notice dated 9 July 2009, canvassed earlier, the document was not put before this Court in evidence. It may well be that the Notice stated the alleged “default” on behalf of the defendant to be the alleged breach concerning selling and disposing of the Mortgage Property. But the court is unable to determine that matter without evidence. [56] In consequence, there is no valid basis in evidence for the Court to conclude that the option available under Clause 10.2 was properly exercised. [57] This, in turn, has the consequence that, if interest is still sought to be claimed under the Bill of Sale, it is probably circumscribed by Clause 2. [58] Despite the latest amended pleading referring to the Supreme Court Act 1995, the relevant statutory provision is s 58 of the Civil Proceedings Act 2011 (“CPA”). [59] As designated by s 58(1) of the CPA, the section applies in relation to a proceeding in court for the payment of money, including a proceeding for debt. By s 58(2), the section does not apply in relation to a proceeding for the payment of money for which interest is payable as of right because of an agreement: see paragraph (b). [60] Given the circumstances just outlined here, s 58 does have application provided the plaintiff, as she seemingly has elected for in her submissions, does not rely on the Bill of Sale. [61] By s 58(3) of the CPA, the Court may order that there be included in the amount for which judgment is given interest at the rate the Court considers appropriate for all, or part, of the amount and for all, or part, of the period between the date when the cause of action arose and the date of judgment. Nevertheless, by s 58(4), the section does not authorise the giving of interest on interest: see paragraph (a). -- 17 of 21 -- 18 [62] Since I have received no submissions from the defendant relevant to either the appropriate rate of interest, or when that interest should begin (and on what, if not the whole, sum), I will give the parties leave to file submissions on this issue. Delivery up of jewellery [63] According to the plaintiff’s pleadings, she does not seek damages for detinue for the jewellery items particularised in her pleadings. Rather, she seeks “delivery up” of those 4 items: see paragraph 17(ba) of the fifth amended statement of claim. Somewhat curiously, the amended paragraph 17(c) of the same pleading, in seeking damages, has the words “detinue and/or” struck out, leaving simply the word “conversion”. If the claim were to be for conversion, rather than detinue, then damages would be the relevant claim. Nevertheless, there being no contrary argument on this issue from the defendant, I am content to decide the matter on the basis of detinue. [64] The fifth further amended defence admits that the plaintiff has demanded the return of the “Cluster Diamond Ring and Emerald” and the “Classique Watch”: see paragraph 13(c). As to the demand for return of the “Diamond Ring” and “Diamond”, the defendant has denied such demand: see paragraph 13(a). Nevertheless, by paragraph 13(b) of the same pleading, the defendant denied that he failed to return the Diamond Ring and the Diamond. The reasons will be discussed later. Complicating such pleadings is Exhibit 14. It was tendered, without objection from the defendant, at the end of the plaintiff’s case. That letter, dated 10 September 2010, from the plaintiff’s solicitors to the defendant’s solicitors, demanded that - by the use of the word “requires” – “the return of all the items the subject of the damages claim in our client’s proceedings”. That “demand” would be sufficient to found an action in detinue for 4 four items of jewellery (where the claim for delivery up was not made in any amended statement of claim prior to 29 April 2012). [65] I will deal with the evidence about the 4 items of jewellery, in turn. [66] First, there is the Diamond Ring. It should be noted at the outset that the defendant denied in his pleading that he took possession of it. The plaintiff’s evidence was that the description of this ring appears in Item number 3 of Exhibit 10 (which is in a Certificate of Valuation of Corbettes Pty Ltd dated 19 May 1995). The plaintiff asserted that she gave this ring to the defendant - after refreshing her memory from her diary - on Friday, 23 January 2009 for re-sizing. The plaintiff further asserted that not only had the defendant not returned the ring but also she did not know whether he had done the resizing, stating that the defendant had never asked her for payment and had never even presented her with an invoice. [67] The defence’s evidence - extracted primarily from his cross-examination - is by way of an express denial to a proposition put to him (namely, that the plaintiff gave him a ring for resizing which she said he retained and which she now claimed for the return of it). -- 18 of 21 -- 19 [68] It is to be noted that an earlier question in cross-examination had elicited from the defendant the response that he did not remember “the exact ring” and that the plaintiff had given him a lot of jewellery for work. [69] Because of the findings on credibility that I have made, I intend to make an order for delivering up, being satisfied on the balance of probabilities that the plaintiff did give to the defendant for resizing the ring that is described as Item 3 in Exhibit 10. [70] But, for reasons which will be detailed later, since no valuation evidence was led, the plaintiff may well find herself in difficulties in terms of any enforcement of an order for the return of this ring, if it should be unable to be located. [71] The second item is the Diamond. The defendant admits, in his latest pleading, that he took possession of this piece of jewellery on the plaintiff’s instructions to make it into a ring. He further asserts that it was returned to the plaintiff. [72] With respect to the Diamond, Exhibit 11 is a hand written note, signed by the defendant and dated 17 June 2009, which recites that, on that day, the defendant took possession of this Diamond and that it “is to be returned to and purchased back by original owner or on sold for an amount not less than $4000 – and cash for the diamond is to be returned to (the plaintiff)”. There is no dispute between the plaintiff and the defendant that that document covers this particular item of jewellery. [73] For the plaintiff’s part, her evidence was to the effect that she had received no communication from the defendant again with respect to this Diamond. [74] The defendant’s version of events was that the Diamond had been sold for, he thought, “the four grand”, although he could not remember to whom he sold it. Further, he asserted that he had paid the plaintiff in July, or August, 2009 that sum. In cross-examination he conceded that he had not produced any evidence of the payment in this proceeding. He further stated that “it’d be cash” and that he could not really remember whether payment had been at “her place or wherever”. [75] Given the findings that I have made about credibility, I do not accept the defendant’s version. It is to be observed that paragraph 12(b) of the fifth amended defence specifically asserts that says “the ring was returned” to the plaintiff. As earlier addressed, I have refused an amendment to add a “new” cause of action for monies had and received. But, even if I were to have allowed the amendments, given the credibility difficulties that I have with the defendant’s evidence, I cannot be satisfied that he did sell it for the figure he “nominated”. Nevertheless, since the defendant’s evidence was that he “thought” that he sold it for $4,000.00 (which is the sum dictated by Exhibit 11), even though I reject his evidence, he could hardly cavil at an order combining recovery of it with an order that, alternatively, the plaintiff be paid $4,000.00 (as its assessed value). [76] Thus, I am prepared to make an order for its return, or payment. -- 19 of 21 -- 20 [77] The third item of jewellery is the Cluster Diamond Ring (with a small Emerald). [78] Since the defendant does not deny the receipt, it is unnecessary to further examine its description. By reference to the plaintiff’s diary entry of 10 April 2009, the plaintiff gave evidence that this item was given by her to the defendant on 10 April 2009. The plaintiff agreed that it was given to the defendant for the purposes of removing a diamond from the centre of the cluster and having an emerald (which was the plaintiff’s birth stone) placed in its stead. The plaintiff asserted that the defendant told her that “he” had done the work but that she found out that he himself did not make jewellery or resize jewellery or anything of that sort, although she only found that out “at a later date”. The plaintiff further asserted that the defendant had not returned the ring to her. Lastly, she asserted that its description was contained in Exhibit 12. This is a valuation dated 12 February 2009 given by The Valuation Centre of Australia. The plaintiff’s learned counsel tendered that document, not on the basis that it was a valuation, but for the purposes of identifying it only. [79] The defendant’s evidence, consistently with his latest pleading, was that the ring remained in the possession of a jeweller whom the defendant had requested to work on it and that it remained there “pending payment” by the plaintiff for the work already carried out on it. In his own evidence-in-chief, he conceded that it was “still available” to him. But the defendant did not maintain, as he could have, that if he himself had a lien for work done, then a specific sum was payable for that work. The best that he attempted to do was to say, without documentary or other support, that the cost was $400.00/$500.00. That estimate, contrary to the context in which it was mentioned, cannot be applicable to the “watch” also, given the return of it without any demand for remuneration. If the charge for any work done had been proved and if work done was established to be what the plaintiff requested, then it would have been open to this Court to make a conditional order for delivery up and payment of the established sum: see [84] of these Reasons. [80] With respect to this item of jewellery as well, because of the findings I have made on credibility, I accept the plaintiff’s version of what has occurred and that she has never been told that there was any money which was due for it (because of work already carried out). Therefore, again, I am prepared to make an order for its return (with the same qualifications about enforcement). A potential problem is a possible lien claimed by any third party jeweller (if that were to be the true position) although that would be complicated by the lack of authority that the defendant would otherwise need to show that he was, in truth, the plaintiff’s agent. Furthermore, given the tenor of the plaintiff’s Submissions, a tender of a specific sum may be, eventually, seen to be appropriate to achieve the desired outcome. [81] The fourth item of jewellery is the Classique Watch. According to the defendant’s latest pleading, that watch was given to his solicitor to hold on trust until suitable arrangements were to be made. [82] In cross-examination, the defendant undertook to the Court to instruct his solicitors to deliver-up this watch to Mr Nagel on behalf of the plaintiff. The plaintiff’s -- 20 of 21 -- 21 Submissions accept that a return has been effected and that, therefore, no order need be made with respect to it. Terms of “delivery up” orders [83] Since the plaintiff has sought “delivery up” for the remaining 3 disputed items of jewellery, it is necessary to remark on what orders this Court can make in such circumstances. [84] The issue was explored by Keane JA in Wade Sawmill P/L v Colenden P/L t/as Pilks Pine.3 He referred to the statement by Diplock LJ in General and Finance Facilities Ltd v Cook's Cars (Romford) Ltd4 to the effect that an action in detinue may result in 3 different forms: (1) for the value of the chattel as assessed, and damages for its detention; or (2) for the return of the chattel or recovery of its value as assessed, and damages for its detention; or (3) for the return of the chattel, and damages for its detention: at [18]. After reference to statutory provisions – now contained in the CPA, Division 1 of Part 13 – Keane JA referred to the exercise of the discretionary powers under statute being informed by considerations akin to equitable principles to achieve a fair and just result: at [23]. He then noted the clear assumption that it is a matter of choice for a successful plaintiff in an action for detinue to seek to recover the chattel in specie, or its assessed value: at [24]. Here, the plaintiff seeks the former only for 2 of the items of jewellery for which no evidence was led as to value. But, as indicated earlier, in the circumstances of the way the evidence unfolded, the evidence will allow for the composite order for the Diamond. As to the interplay between any established lien and an order for a conditional return, Keane JA held that the power derived from a court of equitable jurisdiction being able to make an order giving effect to equitable rights: at [36]. [85] Turning, then, to the statutory provisions for recovery simpliciter: s 81(1) of the CPA states that a judgment that the defendant return specific goods may be enforced by an enforcement warrant. Section 81(3) provides that if such a warrant cannot be enforced, the plaintiff may apply to the court – although it is not clear in any of the recovery circumstances here which further order would be “appropriate”. But that is for another time, and place. It is to be noted that r 897 of the Uniform Civil Procedure Rules 1999 was repealed on and from 1 September 2012. Section 82(2) deals with enforcement for a composite order where value has been assessed. Judgment and Directions [86] There will be judgment: for the plaintiff against the defendant for the sum of $119,035.00; and for the return of the 3 disputed items of jewellery with an alternative recovery of $4,000.00 for the Diamond. I will give directions about filing submissions on interest and costs. 3 [2007] QCA 455. 4 [1963] 2 All ER 314; [1963] 1 WLR 644. -- 21 of 21 --