Aboud v Aboud

[2009] NSWDC 183

Reported Decision: 9 DCLR (NSW) 180

District Court

CITATION:	Aboud v Aboud [2009] NSWDC 183
HEARING DATE(S):	13-15 May 2009, 22 May 2009 and 29-30 June 2009
JUDGMENT DATE:	24 July 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Perfected gift to defendant on donative intention and delivery being established. Verdict for the defendant against the plaintiff; parties to be heard on costs.
CATCHWORDS:	GIFT - Household effects - Oral gifts of chattels inter vivos - Common family home - Onus - Standard of proof - Words of gift - Essential requirements - Donative intention - Delivery - Whether gifts perfected - Costs
LEGISLATION CITED:	Civil Procedure Act 2005, s 93(1)
CASES CITED:	Bashall v Bashall [1894] 11 TLR 152 Broughton v Beard Watson & Co Ltd [1943] 44 SR (NSW) 62 Cole, In Re, A Bankrupt; ex parte The Trustee of the Property of the Bankrupt [1964] 1 Ch 175 Corin v Patton (1989) 169 CLR 540 Evans, In Re [1946] St R Qd 20 Everett, In Re; Executor Trustee & Agency Co of South Australia Ltd v Everett [1917] SALR 52 Flinn v White [1950] SASR 195 Grundel v Registrar General (unreported, McLelland J, NSWSC, 19 June 1990) Horsley v Phillips Fine Art Auctioneers Pty Ltd [1995] NSWSC 78 Nolan v Nolan [2003] VSC 121 See v See (1946) 63 WN (NSW) 181 Thomas v The Times Book Co Ltd [1966] 2 All ER 241
TEXTS CITED:	"Transfer of Choses in Possession between Members of a Common Household" (1953) 11 Cambridge Law Journal 355
PARTIES:	Ethel Martin Aboud (by her tutor Ian Samuel Aboud) - Plaintiff Rosemary Ellen Aboud - Defendant
FILE NUMBER(S):	No 71 of 2007 (Coffs Harbour); No 4461 of 2008
COUNSEL:	Mr AF Fernon for Plaintiff Mr GA Elliott for Defendant
SOLICITORS:	Slater & Gordon Lawyers for Plaintiff Boettcher Law for Defendant

JUDGMENT

1 This regrettable litigation concerned the ownership of various household effects accumulated during nearly 60 years of marriage by a couple and used in the family home for the raising of their three children. Following the death of the father in April 2004 and the physical infirmity of the mother in late-2006, a dispute arose between the siblings as to the household effects which resulted in the daughter removing them in October 2006 from the family home into her sole possession and an attempt by the eldest son, on behalf of his mother as her guardian and attorney, to recover them. The mother vacated the family home, known as “Montoro” in Cargo Road at Orange, in September 2006 and the eldest son took her to live with him at Taylors Arm near Nambucca Heads. The daughter continued to reside at Montoro until about January 2008. The recovery proceedings were commenced in this Court at Coffs Harbour on 19 December 2007 and later transferred to the Sydney list for hearing. This is the present action.

Context of the dispute

2 It is helpful in understanding the issues between the parties to review the circumstances in which they arose. It seems that the father, Louis Aboud, for many years operated through a family company, General Publishers Pty Limited, a very successful publishing business and he established at least two family trusts which held much of the family’s assets; otherwise, there was the Montoro property and its contents. There was a deal of evidence in the proceedings about the management of the family company, assets and the operation of the trusts, particularly in the few years immediately prior to the death of Mr Louis Aboud, which led to tensions in the relationship between the three siblings. Indeed, litigation as to provision from the trusts after the father’s death occurred in October 2005 initiated by the youngest son in his mother’s name against the eldest son and daughter. Further, an action was taken in the Supreme Court of New South Wales in 2007 for possession of Montoro with claims and counter-claims by the eldest son, as tutor for his mother, and by the daughter; that action eventually settled in favour of the mother. Proceedings also occurred in the Guardianship Tribunal concerning the status and legal capacity of the mother and, as I was informed, continued proceedings in that Tribunal are scheduled for August 2009. It is apparent that this saga has a way to go.

3 Nevertheless, I do not propose to further recite the evidence given in those contextual respects as it is sufficient for present purposes in viewing the witnesses to note the existence of a long-running and unfortunate family dispute about personal property. It is relevant, however, to observe that the parties estimated the time required to hear this action was one day. It took six days of hearing and the reliance on detailed written submissions with schedules as to each of the various pieces of property in issue­ - it was never a one or two day case. This, I think, goes to the question of costs regardless of the outcome of the proceedings.

4 In the circumstances as they emerged it is appropriate to also record that on at least three occasions the Court suggested, even urged, the parties to endeavour to compromise their differences in an amicable settlement. At one stage, it occurred that mediation may be a proper course so as to try to avoid family matters of a personal and somewhat sensitive nature being subject to public scrutiny. However, that course was not pursued as it became apparent the parties were intractable in their respective positions and an imposed resolution was necessary. Even so, it ought to be acknowledged that the parties pre-trial were able to reduce the number of pieces of property in dispute from 626 as originally claimed to 162 and during the trial a further reduction of disputed items to 117 pieces was made. This aspect also, in my view, is relevant to the question of costs.

5 The household effects concerned were each photographed and catalogued. They comprised furniture (mainly antique dining tables, occasional tables, chairs, bedside tables and cabinets), mirrors, silverware, glassware, crystal dinner sets, plates, crockery, cutlery, figurines, fine china, paintings, bric-a-brac, objets d’art and the like. Although no formal valuation of such effects had been made, it was suggested in evidence that the worth of the items remaining in dispute would be in excess of $200,000. Certainly, from the photographs the various pieces appear to be in good taste and condition; clearly they amount to a not insignificant value. For instance, ten antique dining chairs were purchased in March 1986 for $22,000.

Factual background

6 The plaintiff, Ethel Martin Aboud, and Mr Louis Aboud were married shortly after the end of the Second World War when she was age 20 years and they migrated to Australia where they lived at Coogee until moving to Bellevue Hill in about 1960. During that period three children were born from the marriage – Ian Samuel Aboud in 1948, David Aboud in 1951 and the defendant, Rosemary Ellen Aboud, in 1953. Mr Ian Aboud left the family home in about 1967 to make his own life and his brother David moved to Brisbane in 1972; Miss Aboud, however, continued to reside with her parents, or in very close proximity to them, for a period of almost 43 years in Sydney, London and at Montoro; she never married. Mr and Mrs Aboud moved from Sydney to London in 1988 where they resided until moving to New Zealand in 1994 and then to Montoro in 2001. Despite those moves over long distances, it seems they transported most of their personal and household effects with them. Apart from living with her parents in Sydney and London, Miss Aboud visited them twice around Christmas time in New Zealand and then moved to reside with them at Montoro in July 2002. On the other hand, both of her brothers had no such close contact with the parents in a familial sense, although Mr David Aboud was concerned with the management of the family business.

7 In 2003 and 2004, as Mr Ian Aboud said, there had been some turmoil and a lot of trouble in the management of the family business, including the appointment and removal of directors and as involving the role of a cousin. Tensions developed between Mr Louis Aboud and his two sons. It was during discussions about those events that the sons visited Montoro but, because of the family tension, visits were infrequent. In any event, as it happened, Mr Louis Aboud died in April 2004 and in December 2006 Miss Aboud was removed as a director of the family company; Mr Ian Aboud had earlier resigned as a director in late-2003 but was re-appointed in December 2006. Mr David Aboud proceeded to attend to the affairs of the business according to his belief about his late father’s wishes for the distribution of family monies from the trusts and, it would seem, animosity arose between him and Miss Aboud concerning that issue. Also, it would seem, tension arose from Mr David Aboud’s discovery that he was not a beneficiary of his mother’s estate as his brother and sister were joint and equal beneficiaries, although there was a suggestion a new will had been made by the plaintiff which excluded Miss Aboud. As I have said earlier, no findings here need, or even can, be made on those types of issues but, at the least, they provide the milieu of events in which what relevantly occurred is to be seen.

8 In September 2006, Mrs Aboud left Montoro to stay with Mr Ian Aboud at his Taylors Arm property – he said “my mother came to stay with me” whereas Miss Aboud said “Ian came…and took my mother from our house.” At that time, Mr Ian Aboud had his mother examined by a medical practitioner as to her mental state due to his observation she had significant trouble with her short-term memory. In November 2006 Dr John O’Callaghan, a consultant physician in geriatric medicine, assessed Mrs Aboud, then 80 years of age, as requiring residential care whereupon Mr Ian Aboud, as his mother’s guardian and attorney from 24 October 2006, decided to sell Montoro to provide funds for her care. In a report dated 24 April 2008, Dr O’Callaghan said Mrs Aboud suffered from Alzheimer’s dementia of mild to moderate severity and expressed the view she lacked capacity to give evidence in any court proceedings.

9 In the meantime, in late-September/early-October 2006 Mr Ian Aboud and Mr David Aboud went to Montoro for the purpose of collecting all documents relating to their mother, their late father and the family companies because of concerns about the operation of the family companies. Miss Aboud was not at home when they arrived, it would seem no prior advice had been given to her of the proposed visit, but nevertheless they entered the house by an unlocked door and conducted a very thorough search. The search included looking into all drawers and cupboards and, interestingly, even an inspection of Miss Aboud’s bedroom and looking under her bed. The search lasted for two to three hours and on leaving they took some personal effects and clothing for Mrs Aboud, small pieces of china, a couple of paintings and various documents (some of those documents were personal to Miss Aboud and were later returned to her on request). As the two brothers were driving out of the property Miss Aboud drove in but neither paused to speak. It is to be noted that at this time in early-October 2006 Mr Ian Aboud did not have any power of attorney for his mother until it was granted on 24 October 2006 after the power of attorney in favour of Miss Aboud was revoked on 28 September 2006 from its original grant in April 2005 when Mrs Aboud made a will in which her daughter was the sole beneficiary; after the revocation of the power of attorney, Mrs Aboud made a new will excluding her daughter as a beneficiary.

10 Shortly after this visit, Miss Aboud during a period of a few days arranged for the whole of the household effects in Montoro to be removed and placed into storage for safe-keeping. In February 2007, originally said by Mr Ian Aboud in his affidavit to be in about March or April 2007, he and Mr David Aboud again went to Montoro, as he said, “for the purpose of checking on the house and the furniture” as he “was worried that [his sister] may have sold some of the furniture or taken it for her own use.” He said Miss Aboud was present at the time but refused entry to her brothers and called the police; the police attended but, after making enquiry, declined to take any action. On looking through windows, Mr Ian Aboud noticed that furniture previously in the house was no longer there; he described the position as the house being “stripped bare.” For her part, Miss Aboud challenged him as having earlier removed her personal property and household effects.

11 Thereafter, Mr Ian Aboud asked Miss Aboud to vacate Montoro but she refused. Hence, as indicated earlier, the possession proceedings in the Supreme Court commenced in March 2007. On 19 December 2007, the present proceedings were commenced for recovery of the household effects.

The claim and the defence

12 This is an action in detinue. Mrs Aboud as plaintiff, by her son Mr Ian Aboud as tutor, seeks orders pursuant to s 93(1)(a)-(c) of the Civil Procedure Act 2005 that the defendant, Miss Aboud, forthwith deliver to her the goods still presently in dispute, pay to her an amount equivalent to the assessed value of such goods or, at the defendant’s option, deliver to the plaintiff such goods or pay to the plaintiff their assessed value; plus costs. It was pleaded that by removing the goods from Montoro and placing them in storage the defendant became the bailee on behalf of the plaintiff as owner of them and, therefore, subject to the plaintiff’s direction to return the goods. In so refusing to return the goods, it was pleaded the defendant had breached her duties as bailee so that the plaintiff was entitled to the relief sought.

13 The defendant admitted the subject goods, along with those as to which ownership was resolved by the parties, were located at Montoro and were removed by her into storage at Moss Vale at the end of 2006/early-2007. The exception was a set of Georg Jensen silverware which received special attention in the proceedings and which will be referred to later. Bailment of the goods was denied and ownership of them was said to vest in the defendant, including the Georg Jensen silverware, so that the plaintiff’s claim should be dismissed.

14 It was conceded by the defendant that the disputed goods at one stage belonged to her mother and/or father but that they were gifted to her by her parents or one of them so that she became the owner thereof. Thus, as the case was argued, if the gift not be established then the plaintiff is entitled to the return of the goods or payment of their assessed value at the defendant’s option; if the gift be made out then the defendant is able to retain the goods as her own property.

Whether an effective gift – principles of law

15 It is necessary to emphasise that the onus to establish the making of an effective gift is on the defendant to prove and not on the plaintiff to disprove a gift was made: Thomas v The Times Book Co Ltd [1966] 2 All ER 241 at 244. So much was accepted by the defendant’s counsel here. It was common ground also that a gift of chattels between living persons requires two things to be shown: first, an intention on the part of the donor to make a gift; and, second, delivery of the chattel concerned from the possession of the donor to the donee. As Mansfield J stated (for the Full Court) in Re Evans [1946] St R Qd 20 at 29-30:

“It is therefore clear that the person seeking to establish a gift of chattels must show (a) an intention on the part of the alleged donor to make a gift and (b) that that intention has been effectuated by deed or by delivery. If delivery is relied upon, an intention to make a gift must be established positively and in contra-distinction to a mere permission to have the use and enjoyment of the chattel.”

16 In so stating the position, Mansfield J referred (at 29) to the considerable number of judicial decisions on this aspect and said the true position was as stated by Lord Esher MR in Bashall v Bashall [1894] 11 TLR 152, which was followed by the Full Court of New South Wales in Broughton v Beard Watson & Co Ltd [1943] 44 SR (NSW) 62, to the effect that “[i]t is clear law that in order to pass property in chattels by way of gift mere words are not sufficient, but there must be delivery. This requirement is as essential in the case of husband and wife as in a case of two strangers.” The Full Court in Evans found there had been no gift from a husband to his wife of certain household items and, in refusing special leave to appeal to the High Court because no question of general importance was involved and litigation should be discouraged, Latham CJ commented (at 33) that “[t]he great difficulty in these cases is applying the principles of law to the particular facts.” And, so I might mention, it is the situation in this case where so many goods are involved and the relevant events occurred over a period of quite some years during a relationship of parents/daughter then one of mother/daughter.

17 As to satisfaction of the first requirement that the donor evince an intention to make a gift, the question arises whether words of gift or some other means, such as conduct, are sufficient. For instance, in Horsley v Phillips Fine Art Auctioneers Pty Ltd [1995] NSWSC 78 Santow J expressly stated (at 12) that oral words of gift with delivery were required which, with gift by deed, were the only means available at common law. However, in Nolan v Nolan [2003] VSC 121, Dodds-Streeton J reviewed the authorities in some detail and concluded, by drawing on what Mason CJ and McHugh J observed (albeit as obiter dictum) in Corin v Patton (1989) 169 CLR 540 as follows (at [138]-[140]):

“[138] If donative intention and delivery only are essential for a valid gift of chattels, that intention must nevertheless be made manifest and expressed with certainty. Words of present gift show ‘an intention to give over property to another, and not to retain it in the donor’s hands for any purpose, fiduciary or otherwise.’ Words of gift are usually necessary to achieve that certainty in relation to matters such as defining the extent of the benefit the donor intends to confer.

[139] Nevertheless, in my opinion, the better view, as expressed in the dictum in Corin v Patton , is that donative intention need not be manifested by words of gift. Although donative intention would normally be manifested, and its extent defined, by words, unusual circumstances may be imagined where other means fulfil those functions.

[140] If a valid gift may be effected without words of gift in unusual cases, the putative donee who seeks to rely on alternative means of establishing donative intention, would bear the onus of proving the existence of a present, unequivocal donative intention, attended by the requisite certainty as to object, extent, and whether the gift would take immediate effect.”

18 I think the views of Dodds-Streeton J are important in considering the present case as to any donative intention of the plaintiff of the very many subject goods to the defendant over a period of years and in the somewhat special circumstance where the defendant resided with her parents for more than four decades in a joint household but where, as the evidence to be dealt with will show, in the latter years she provided support and care in that household. I propose to follow his Honour’s approach as to donative intention.

19 Delivery of the goods concerned, as Santow J said in Horsley (at 13), was necessary to complete a gift of chattels. His Honour then relevantly added (at 13-14)

“Delivery in this circumstance means the voluntary transfer of possession of the goods to another, whether by means of the physical transfer of the property itself or by some constructive delivery. Constructive delivery will be appropriate where...the chattels are bulky or consist of a collection of pieces or articles not readily susceptible of manual delivery: Lock v Heath (1892) 8 TLR 295; Rawlinson v Mort (1905) 21 TLR 774.

…Importantly though, the delivery need not be made at the time of the gift. Delivery may occur prior to or contemporaneous with or subsequent to the words of gift: In re Stoneham; Stoneham v Stoneham [1919] 1 Ch 149…

…
where possession has remained in the donor, words of present gift may not suffice without delivery…But if the goods are already in the possession (or custody) of the donee, an effective oral gift of those goods may be made without the need for any further delivery, because delivery has occurred prior to the words of gift: In re Stoneham; Stoneham v Stoneham [1919] 1 Ch 149; Elder's Trustees and Executor Co Ltd v Gibbs [1922] NZLR 21; Pascoe v Turner [1979] 2 All ER 945… .”

20 It is apparent that Santow J contemplated delivery either by an actual change of possession or constructively so. His Honour cited with approval what Herron J stated in See v See (1946) 63 WN (NSW) 181 at 183 in presently significant respects as follows (at 14):

"Manual delivery not necessary to complete a verbal gift of furniture, for the facts may disclose that there has been such a change in possession consequent on the gift as is sufficient to effectuate it: Kilpin v Ratley [1892] 1 QB 582… ."

21 Also of present significance, Santow J referred to an article by Thornley entitled "Transfer of Choses in Possession between Members of a Common Household" (1953) 11 Cambridge Law Journal 355 at 358 where the learned author said:

"Where s 70 chattel is itself physically transferred there may nevertheless be a constructive delivery sufficient to pass ownership to the grantee. Thus words of gift uttered by the owner, and words of acceptance by donee who is already holding the chattels concerned as bailee for him, change the character of the donee's possession so as to constitute a constructive delivery which will pass the title: Alderson v Peel (1891) 7 TLR 418; Re Stoneham [1919] 1 Ch 149. The same is true where the donee merely had custody of the chattels as the donor's servant; the custody becomes possession, and the title passes."

22 However, by reliance on Flinn v White [1950] SASR 195, Santow J in Horsley emphasised (at 15) that “in order for a gift to be held to be effectual in such circumstances, that is to say, where there is no further act of delivery or change of possession, it must first be established that the donee already had possession, or, at the least, custody of the chattels at the time of the words of gift.”

23 Finally on this aspect of delivery, reference should be made to what Murray CJ said in Re Everett; Executor Trustee & Agency Co of South Australia Ltd v Everett [1917] SALR 52 at 58 that “[d]elivery in this connection does not necessarily mean manual delivery. What is required is that the donee should have possession. He may already be in possession, but, if not, he must be put in possession by some mode which the law recognises as sufficient to invest him with possession.” And, as Harman LJ, with whom Pearson LJ and Pennycuick J agreed, said in Re Cole, A Bankrupt; ex parte The Trustee of the Property of the Bankrupt [1964] 1 Ch 175 at 187 “[i]f the chattels be many or bulky there may be a symbolical delivery…”

24 With those principles in mind, I turn to the facts of this case.

The evidence

25 Given the onus on the defendant to affirmatively establish gifts of the household effects were made to her by the plaintiff, of course according to the ordinary civil standard on the probabilities, counsel for the plaintiff submitted that the defendant’s evidence should be viewed “with caution, especially as [the plaintiff] is not available to challenge her evidence; reference can be had to the analogous claims of gifts against deceased estates because the alleged donor cannot challenge the evidence.” Reliance was placed on Grundel v Registrar General (unreported, McLelland J, NSWSC, 19 June 1990) and Nolan v Nolan [2003] VSC 121 at [146]. The plaintiff here, on the medical evidence, has a mental infirmity disabling her from giving evidence. I have to say this aspect, as I remarked during the proceedings, caused me some concern. Nevertheless, Mr Ian Aboud has been appointed her guardian and this action was brought by him as the plaintiff’s tutor – there was no challenge to that position. I will, therefore, treat the defendant’s evidence with caution but, for myself, I think a more apt word would be with “care.”

26 Mrs Rosemary Blundell: In so viewing the defendant’s evidence, however, I found assistance from that of her aunt, Rosemary Blundell, who swore an affidavit but was not required for cross-examination. Mrs Blundell is the younger sister of the plaintiff and who was first married to Mr Louis Aboud’s brother, Joe Aboud; following his death in 1981 she re-married. She said that with her first husband and son John they were frequently in the homes of the plaintiff and her husband. In addition, she said both her second husband and son were directors from time-to-time of the Aboud family company, General Publishers.

27 Mrs Blundell was shown the folder of coloured photographs in evidence containing the present items in dispute and was able to comment on 17 of them as being seen by her in the defendant’s flat in Chelsea in London, when she visited for about four days in the late-1990s, or in a small house rented by the defendant at Bellevue Hill in Sydney in 2000 which she visited frequently and another house at Paddington visited less frequently by her; two other items seen in the defendant’s London flat, a table base and top were thought likely to be those appearing in the photographs. Interestingly, Mrs Blundell recognised some of the items from her own childhood in Ireland and as having later become possessions of the plaintiff and Mr Louis Aboud.

28 When the defendant moved from Bellevue Hill to live with her parents at Montoro in 2002, after they returned from New Zealand, Mrs Blundell said the garage at Montoro was adapted into two rooms for the defendant to use and where she put a lot of her possessions.

29 As to the relationship between the plaintiff and the defendant, Mrs Blundell deposed:

“Ethel (plaintiff) doted on Rosemary (defendant). On many occasions over the years as it became clear that Rosemary was not going to marry, Ethel said to me remarks such as:

‘Everything I possess is going to Rosemary because she hasn’t married so I’m giving her everything.’
‘All my possessions are for Rosemary.’
‘Of course, all my possessions will go to Rosemary.’

By ‘all my possessions’ and ‘everything I possess’ I understood Ethel to be referring to her furniture and the furnishings and contents of her house. For most of Louis and Ethel’s married life it was my understanding from both Louis and Ethel that this was the extent of Ethel’s property. These remarks were made on occasions when we were admiring or discussing some attractive item, or when we were chatting about Rosemary.”

30 The defendant: Four affidavits were sworn by the defendant and read in the proceedings. She was vigorously cross-examined on each of them, particularly as to the conversations she had over the years with her mother as to the various disputed items. I found her to be an impressive witness who gave careful and thoughtful evidence. She was somewhat tense, perhaps understandably in the circumstances, and became defensive of what she clearly saw as her right to the subject goods arising from a long-standing relationship with her parents and, in particular, her mother. The events which occurred after her father’s death as involving her brothers, such as their visit to Montoro in September 2006 when she was away from the house and the moving of her mother to live with Mr Ian Aboud brought obvious offence as she was tested on them; she cogently maintained the intention to continue living at Montoro with her mother. I am satisfied the removal by the defendant of the furniture and other household effects from Montoro in September/October 2006 was a sincere desire on her part to protect what she saw as her possessions from an intruding threat by her brothers. It needs to be added, in order to understand this conduct by her, and emotionally draining as it must have been, that the contact her brothers had with the parents over their adult life, particularly that of Mr Ian Aboud, was but slight and infrequent. It increased following the death of Mr Louis Aboud and, I have to say, the visit by Mr Ian Aboud and Mr David Aboud to Montoro in September 2006 when they searched the house, including the defendant’s bedroom and under her bed, does them no credit – as Mr David Aboud admitted in evidence, they did so for their own purposes and interests.

31 However, and even given the context in which the various events occurred as I have outlined it earlier, the question still arises whether the defendant has made out the essential requirements to constitute at law perfected gifts of the disputed goods. In that respect, I accept her evidence and now turn to its sufficiency to make out her case.

32 The defendant said she resided with her parents at he family property at Bellevue Hill for the first 33 years of her life, during which period from about 1973 to 2000 she worked for the family business, General Publishers, both in Sydney and London in various sales and marketing roles. In 1987 she moved to London and was followed by her parents in 1988 where they worked in the London office of General Publishers. The defendant lived in a rented flat near that of her parents and they spent most of the time together. In 1995 Mr and Mrs Aboud moved to Auckland, New Zealand and the defendant visited them on two occasions at Christmas. The defendant then returned from London in 2000 and resided in rented accommodation in Bellevue Hill and later in Paddington. In 2001, her parents purchased Montoro and moved to live there from New Zealand in that same year. At her father’s request, often repeated, the defendant finally moved to Montoro in July 2002.

33 It seems from an affidavit she swore on 13 April 2007 in the Supreme Court possession proceedings, tendered into evidence by the plaintiff in the present proceedings, that the defendant’s father encouraged her to move to Montoro where she could “help me with my paperwork. I’ll pay you $300.00 per week. We can convert the garage into guest rooms for you to live in.” In that same affidavit, the defendant deposed:

“20. From about July 2002 until my father's death on 23 April 2004, I lived with and cared for both of my parents at the Orange property. During that time I provided services for my parents including cooking meals for them, organising and driving my parents to medical and other appointments, assisting my father with paperwork for his businesses, caring for my parents' three (3) dogs and a further five (5) dogs which belong to me, gardening in the large gardens and general maintenance of the Orange property.

21. In about late 2002 I also assisted with the arrangements for the conversion of the garage at the Orange property into two (2) self-contained guest rooms and I helped to paint those rooms and arrange for them to be carpeted once the conversion was complete. I also arranged for the construction of a deck area close to the guest rooms and, once the deck was complete, I decorated it with pot plants which I had purchased. I recall that my parents used to enjoy sitting on the deck area to have afternoon tea and to admire the view of the garden. I also built and installed shelving in the guest rooms. Once the guest rooms were complete, I had the use of those rooms, although I continued to sleep in one of the bedrooms in the main house.

22. I did not ever accept any payment from either of my parents for the work I carried out for them at the Orange property.

24. I recall that, shortly before his death in April 2004, my father said to me words to the effect of ‘I want you to stay here and look after your mother. You two will be on your own here now and they will all be at her.’ By ‘they’ I clearly understood my father to be referring to my brothers Ian and David.

25. Following my father's death in April 2004, I continued to reside with my mother at the Orange property from 2004 until 2006. During that time I have been solely responsible for looking after my mother and I have been solely responsible for her care on a full time daily basis by undertaking the following tasks or duties for her: cooking meals, cleaning the house, laundry, gardening, taking my mother to medical and other appointments, taking my mother shopping, and assisting in the management of my mother's financial affairs such as attending to banking and payment of her bills.”

34 In that same affidavit, and as to which the defendant was challenged as being inconsistent with her claim that certain goods were gifted to her, she referred to incurring expense in “removal of my mother’s furniture into storage for safekeeping in October 2006.” The defendant’s explanation was that some of the goods were her mothers and some, about 80 per cent, belonged to her (including the disputed items). Clearly, of the original goods removed from Montoro, in excess of 600 pieces, not all were said by the defendant to have been hers and, as it has transpired, only 117 remain in dispute. I do not see that earlier statement by the defendant as wholly or at all inconsistent with the true position in what must be seen as a complex of events.

35 Each of the disputed items was identified, photographed and indexed by Peter James Hodges, a paralegal in the employment of the plaintiff’s solicitor. The parties themselves then summarised the various pieces. The defendant’s evidence attended to each of the items concerned by reference to when, where and in what circumstances the alleged gifts were made. It is obviously impracticable here to attempt a dealing with each item separately and, indeed, the evidence from both parties viewed them in groups. I will follow that approach. The 117 disputed items may be grouped as follows –

Group	Number of Items
(1) During residence in London	54
(2) Gifts from father	4
(3) During residence at Montoro from mother	59
Total:	117

36 As to the items in Group (1), the defendant gave evidence that they were among many items of furniture, display items and other effects given to her by her parents to enable the furnishing of a new flat occupied by her in Fulham, London which she moved into in 1988. She said her parents, who were about themselves to move into a new flat in Belgravia, London, told her in words to the effect – “We can’t fit all of our furniture into our place and we want you to have some of the unwanted pieces.” She duly transferred the items into her flat and, eventually, had them transported to her flats in Sydney in 2000 and then to Montoro in July 2002.

37 Included in the Group (1) items were three pieces of furniture which were left by the defendant’s parents in London when they moved to New Zealand in 1995. She said she asked her father about these being left and said he responded – “If you can get them back, they’re yours.” She did so and they eventually found their way to Montoro.

38 Four items constituted Group (2), being a backgammon set, backgammon board, figurines and a framed print. The defendant said she and her father played backgammon at Montoro and, in 2003 shortly before his death, he told her – “You have them”, whereupon she put them in the linen press; they were previously kept in a cupboard in her father’s office. As to the framed print, the defendant said her father told her in 2003 – “I want you to have this”; the print was kept in her father’s office on the wall and remained there until after his death. As to the figurines, the defendant said they were a present to her from her father on one of his visits to Sydney from New Zealand when he said – “This is for you”; the defendant responded – “Thank you” and said she took the figurines to her flat and then, eventually, to Montoro.

39 Very many items comprise Group (3), 59 in total, and were made up of china, silverware and miscellaneous items of furniture, glassware, figurines, photo albums, crockery, serving dishes, dinner sets and assorted bric-a-brac. As to the china, the defendant said that in 2005 around the time of her birthday in April, about 12 months after the death of her father, her mother told her – “”You can have these, I don’t want them any more. There’s no space.” The defendant had shelves made on which to place the display china pieces and, as to their disposition, said in her affidavit – “I accepted her gift but wanted to leave the china pieces where they were for our shared enjoyment, instead of putting them in my rooms.” The defendant deposed that on several later occasions her mother said to her – “I’ll never use them again, Rosemary. I’ve had my day with them. You take them. I want you to have all the china.”

40 As to the silverware generally in Group (3), the defendant deposed in her affidavit:

“I believe she lost interest in her silverware following my father’s death. I used to help her clean the silverware while living with her at Montoro every few months. Once, while cleaning she said to me ‘You can have these’, gesturing around the dining room and sideboard, meaning most of the silverware, kept together in the dining area. She often remarked that she was ‘sick of cleaning these’, meaning the silverware and often said words to the effect that ‘I am not of a mind to bother with cleaning the silverware any longer – you take it.’ I left the silverware in the dinning area for our shared enjoyment on the understanding that I would take it with me if I moved from Montoro.”

41 Mention should be made separately of the Georg Jensen silverware dinner service to which the parties each gave special attention. At the time of the above conversation, the defendant said the Georg Jensen set was kept in the sideboard and not displayed with the other silverware. At the time, she said she expressly asked her mother “what about the Georg Jensen set?” to which the response was “No, you take it. I’ll never use it again.” Apparently, this set of silverware was the defendant’s favourite and she often told her mother so. In the period from June to August 2006, the defendant told her mother – “I’m moving the Georg Jensen silver set to my rooms”; her mother replied – “That’s fine darling, it’s yours anyway.” From that time the set was kept in the defendant’s bedroom in a thick plastic bag as after the death of her father the defendant said it was not used as they no longer had formal dinner parties. On leaving Montoro, the defendant took this set with her and did not place it into storage with the other items.

42 The miscellaneous items in Group (3) were many and various. The defendant’s evidence dealt with each of them in turn. I do not find it necessary to do so, other than to indicate that she said they covered items purchased by her in London, Sydney and while living at Montoro, gifts to her during childhood, gifts when she was recovering from a motor vehicle accident after returning from hospital, Christmas gifts to her from her mother, gifts given to her by her parents in London and gifts given to her by her mother at Montoro. On the occasions gifts were made the defendant recited the words spoken by her mother which variously included – “This is for you”; “Well then it’s yours”; “You can have it if you want it”; “This is for you, to make you feel better”; “You can have the other Worcester set”; “Well, you have them dear”; “Well, you can have this, dear. Have the pair of them and that Chinese Madonna too”; “You have them”; “You take these as my Christmas gift”; “Take it darling, because I know you love it”; “Father loved this and I want you to have it now”; “I don’t want these any more, you take them”; and “You can take these.” It will be apparent that some of the items in this group have been in the possession of the defendant for many years (presents at Christmas, items purchased by her and gifts in Sydney and London) whereas others, such as those said to have been given to her at Montoro, remained at Montoro where she lived. Even so, the defendant deposed she dealt with those items in various ways on being given them – kept items in her rooms in the converted garage, had shelving made on which to display items, took items to her bedroom, kept items in her own kitchenette and displayed items by moving them just outside her bedroom or to a nearby hall; it is clear too that some items remained where they had always been kept.

43 Of course, on the plaintiff leaving Montoro with Mr Ian Aboud in September 2006 the defendant was left with actual possession of the contents of the house and there was no evidence as to any arrangement as to the contents and how they were to be dealt with.

44 Messrs Ian and David Aboud: The evidence of these two persons may conveniently be considered together. It was directed to their awareness of the various items being located in their parents’ homes over the years from which they concluded the items were owned by their parents. For instance, Mr Ian Aboud said he was “personally familiar with each of the items indicated as belonging to my mother as they were present in the house in which I was brought up as a child and a young adult. I lived at that house until I was about 19. I lived at that house again briefly when I was about 27. I also visited the property at Orange over the years.” Mr David Aboud’s knowledge of the items came from “seeing those particular items of furniture in my parents’ homes in Sydney, London, Auckland and Orange.

45 Interestingly, Mr David Aboud deposed in an affidavit that over the years his mother had said to him – “David, why don’t you take this? I want you to have it”, by reference to various pieces of furniture. That sounds very similar to the words spoken by the plaintiff to the defendant from time-to-time. However, Mr David Aboud went so far as to say he believed “my parents would have told me if they had gifted furniture to my sister.”

46 Both of these witnesses maintained they could not find the Georg Jensen silverware set during the search of the Montoro house, including of the defendant’s bedroom, in September 2006. Clearly, then, the defendant had already secured it for herself following the conversation with her mother.

47 An aspect of note in the evidence of both Mr Ian Aboud and Mr David Aboud was a very clear attempt to cast the defendant in a bad or somewhat negative light. This related particularly to their visits to Montoro in September 2006 and in February 2007. I have referred earlier to those incidents and will not repeat what occurred. I have to say, to the extent it may be relevant, that the increased attention given by them to family relationships and events after the death of Mr Louis Aboud is interesting. The defendant, of course, had a long-standing and ongoing relationship with her parents, and then potentially with her mother, and provided in latter years much support and assistance to them. I find it unsurprising that the defendant’s parents had over the years given various items to her, in light of their relationship, and I find little utility in the evidence of her brothers in blandly identifying certain items and saying they belonged to their mother in earlier times.

Whether perfected gifts to the defendant

48 In considering satisfaction of the requirements for the making of an effective gift of the various household effects, it is convenient to do so by reference to the grouping of items as earlier identified.

49 Group (1) – London items: The plaintiff’s counsel conceded as to these 54 items that the requirement of delivery of them to the defendant had been satisfied. I think the concession was properly made because the facts showed that the defendant transferred them for use in her London flat and subsequently transported them back to Australia for use in her flats in Sydney prior to removal to Montoro. However, counsel submitted that donative intention had not been established as, at the least, it was equivocal and as being also open to conclude that the goods were only made available to the defendant for use in London but remained the property of her parents and then of her mother. I disagree.

50 The words of gift spoken here, in my view, meet the test of intention as stated in Nolan in that they manifested an intention to give the various items to the defendant without any apparent qualification. For instance, the defendant was told her parents wished her to have “the unwanted pieces” which could not be fitted into their flat and, if she could get other items back to Sydney “they’re yours.” There was no suggestion that the parents preferred to otherwise place the goods in storage or return them to Australia in order to retain ownership. In any case, as made clear in Nolan, donative intention need not be by words of gift but other means may suffice. I have earlier referred to the special circumstances of the relationship between the defendant and her parents/mother which, in my view, meets this alternative test in satisfying donative intention.

51 I am satisfied, therefore, that the defendant has established the London items comprised a perfected gift to her.

52 Group (2) – Gifts from father: The challenge to these four items was that there was neither donative intention nor delivery. As to intention, I think the words of the defendant’s father are clear as showing he was giving them to her not in any transient sense or for temporary use but as giving her property in them. In the situation where her father was then ill shortly before his death it would make no sense, as I see it, to view the words otherwise. As to delivery, as Santow J concluded in Horsley consistent with the approach in Flinn v White, delivery may be constructively so. And, in Everett, it was accepted that delivery did not necessarily mean manual delivery which was given effect in Cole where symbolical delivery was found sufficient. I regard those cases as support for a finding here that these four items were in fact “delivered” to the defendant.

53 The backgammon set was placed by the defendant in a linen press after it had previously been in her father’s office. The figurines were taken by the defendant to her flat before later being taken with the rest of her belongings to Montoro. The framed print was left on the office wall until after he died when, as I took it, the defendant then removed it.

54 The four items from her father, I am satisfied, were perfected gifts from him as meeting the necessary requirements.

55 Group (3) – Montoro items: Generally, these 59 items related to the period from July 2002 to September 2006 during the defendant’s residency at Montoro but, as indicated earlier, some of them were gifts to her during childhood and some she herself purchased. They may conveniently be considered in three categories of china, silverware and miscellaneous items. The plaintiff challenged these items as not meeting either intention or delivery to be true gifts.

56 As to those items said by the defendant to have been purchased by her, but which are in dispute, and those said to have been gifted during childhood, I am satisfied on her evidence that she owns them. I therefore propose to deal here with those items she alleged were gifted to her at Montoro by her mother.

57 Events as to the china occurred in 2005 about one year after her father’s death and the defendant’s evidence dealt with the words of gift spoken by her mother. Again, like the situation with the items in Groups (1) and (2), I am satisfied those words evinced a donative intention in accordance with the tests laid down by the authorities. Any other view, I think, of what her mother said would be to simply disregard the plain and obvious meaning of the words used. The second requirement of delivery has, I am satisfied, also been established. The defendant had shelves built on which to display the china and she herself resolved to enable the pieces to be mutually enjoyed with her mother – in light of the circumstances and long-standing relationship of the parties, I find that conduct unsurprising once the gift be disclosed so as to constitute a special circumstance to make out, at the least, symbolical delivery in a constructive sense. Certainly, the Georg Jensen silverware was packaged and removed by the defendant to her bedroom.

58 The silverware generally, in my view, was subject to effective words of gift and was on the understanding, given effect as it later turned out, that the items would be taken by the defendant if she moved from Montoro. Delivery was thus complete. In any event, and as a general proposition, in the latter years at Montoro the defendant was the person who, in attending to her mother, used many of these items and was responsible for their care. I have in mind in this respect in finding delivery the adoption by Santow J in Horsley as to a constructive delivery by reference to what the learned author said, as recited above, in the Cambridge Law Journal article on the transfer of chattels between members of a common household.

59 The very many items in the miscellaneous category in Group (3) were the subject of conversations over time between the defendant and her mother. Again, I am satisfied the words spoken were words of gift accepted by the defendant. Delivery of them was effected by the defendant in various ways, as stated above, to such an extent that, in my view, delivery of these items has occurred.

60 It follows, I am satisfied, that these items in Group (3) were perfected gifts in favour of the defendant.

Conclusion

61 For the foregoing reasons, I find that all of the disputed goods in these proceedings were the subject of perfected gifts to the defendant. The tests in that respect of donative intention and delivery have been established. She is entitled to a verdict on the plaintiff’s claim accordingly. I see no reason why costs should not follow the event, even bearing in mind my earlier comments on costs, but I will await hearing the parties on this aspect.

62 The parties suggested it as appropriate for orders to be made in respect of the items originally in dispute but which were settled in favour of the plaintiff or the defendant. I would not have thought it is necessary to do so as it is the subject of an agreement between the parties which they are able themselves, if not already done, to reduce to writing. I will hear the parties on this and on the specific orders proposed.

Orders

63 The parties should draw appropriate orders to give effect to this decision, including as to costs, to be settled at a convenient time.

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