Ainsworth v Breaux

[2009] VCC 1231

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-09-01329

AINSWORTH	Plaintiff
v
BREAUX	Defendant

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	27-30 July 2009
DATE OF JUDGMENT:	5 August 2009
CASE MAY BE CITED AS:	Ainsworth v Breaux
MEDIUM NEUTRAL CITATION:	[2009] VCC 1231

REASONS FOR JUDGMENT

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Couper QC	Rigby Cooke Lawyers Mr. Ben Wyatt
For the Defendant	Mr M Clarke	Francisdaniel Lawyers Mr. Gaspare Sirianni
HIS HONOUR:
Introduction

1 On 27 June 2007 the “KDH Ainsworth Family Trust” which was established on 14 March 1996 with the Plaintiff as trustee (“the trust”) paid the sum of $10,000 to Mercedes Benz Brisbane (“the dealer”) as deposit on a Mercedes Benz ML63[1] (“the vehicle”). The trust carries on business in Queensland under the registered business name “Hastings Holdings”.[2]

[1] Ex P-1 Affidavit of Leis CB95 #15 & Cheque at CB139 & CB181

[2] Ex P-1 Affidavit of Leis CB 94 #9-12.

1. On 5 November 2007 the dealer issued a tax invoice to “Hastings Holdings Pty Ltd” for the vehicle showing balance due of $177,513.31.[3] On 12 November 2007 the trust paid the sum of $177,513.31 to the dealer.[4]

   [3] Ex P-1 CB143 and also P-2 at CB 184

   [4] Ex P-1 Affidavit of Leis CB 95 #16 & cheque and receipt at CB140 and at Ex P-2 at CB 185.

2. On 13 November 2007 a New Vehicle Contract for the vehicle was signed by Plaintiff who is named as “the customer”. The company name “Hastings Holdings is crossed out and the name “Veda Appreciation Trust” inserted.[5] That was in error and nothing turns on the point. There are two CRN numbers referred to “81145067” and “41086289”.

   [5] Ex P-1 CB142. See also Ex P-2 CB179

3. It is common ground between the parties that on 26 November 2007 they were living together in a de facto relationship and the Defendant was pregnant to the Plaintiff. On that day together they collected the vehicle from the dealer in Brisbane. It is also common ground between the parties that on the day of delivery the vehicle was registered in the name of the Defendant.

4. At issue in this proceeding is which of the parties is the owner of the vehicle and entitled to possession of it.

5. The Defendant presently has possession of the vehicle. The Plaintiff asserts he owns the vehicle as trustee of the trust and he seeks an order that the Defendant return it to him. The Defendant asserts that the vehicle was registered in her name on 26 November 2007 because the Plaintiff gifted the vehicle to her and she has possession as lawful owner.

6. On 30 March of 2009 the Plaintiff transferred the registration of the vehicle from the Defendant’s name to his own name. He did so without the knowledge or consent of the Defendant and he falsified documents in so doing.

7. The Statement of Claim seeks relief in the form of an order for delivery up of the vehicle and damages for its detention. In submissions the Plaintiff abandoned relief in the form of damages no evidence having been led on that issue.

9 The Defence and Counterclaim asserts that the Plaintiff gifted the vehicle to the Defendant on 26 November 2007 and wrongfully transferred the vehicle to himself on 30 March 2009. It further asserts that the Defendant is entitled to ownership of the vehicle, to be registered as its owner and to possession of it. It seeks orders inter alia that the Plaintiff transfer registration of the vehicle to the Defendant.

10 In the Reply and Defence to Counterclaim the Plaintiff denies the Defendant’s assertions as to ownership and otherwise joins issue with the Defendant. It also pleads in paragraph 10A that if there were the making of a gift that was in breach of the terms of the trust. In submissions that claim was abandoned by Mr. Couper Q.C. who appeared on behalf of the Plaintiff.

Summary of the evidence

11 In summary form the Plaintiff says he had previously purchased seven other vehicles

from the same dealer and each had been purchased in the name of the trust. That

evidence was uncontested.

12 In Queensland before a person can purchase a car the purchaser must have a “Customer Registration Number” or “CRN” as it is abbreviated.

13 The Plaintiff says he had such a number and this is not in dispute. The CRN was 41086289.

14 However, in October 2007 the Queensland Government introduced legislative changes designed to prevent persons stealing or adopting another person’s CRN. The changes ensured that when a person purchased a vehicle and gave a CRN that person had to produce proper identification identifying himself or herself as the person actually holding the CRN. Different weighting in terms of points is attributed to various forms of identification be it a driver’s license, Medicare card, passport or whatever. In short the person applying for registration has to produce sufficient identification to satisfy a threshold of 100 points.

15 The Plaintiff’s case is that when attempts were made to register the vehicle in his name as trustee as in past dealings it was realised that his CRN was blocked by the Queensland Transport Computer system. The block was not released until application was made by Adri Steyl an employee of the dealer made application on behalf of the Plaintiff to remove the hold on or about 30 July 2008[6] when the Plaintiff registered yet another Mercedes vehicle, a C63 model, in his name. That vehicle is not relevant to this proceeding except peripherally. The Defendant says he purchased it for his own use having gifted the vehicle to her the previous November and that I should interfere this subsequent purchase as confirmation by the Plaintiff of the gift. I do not draw that inference. I conclude it was just another Mercedes vehicle purchased by the Plaintiff and no more. The purchase of this further vehicle is further relevant only in the chronology because it pin points the time when clearance was lifted by Queensland Transport on the Plaintiff’s CRN.

[6] Evidence of Adri Steyl Trancript pages 128-129 and CB216-219

16 On the 26 November 2007 when the Plaintiff came to collect the vehicle he completed a “New Individual Customer Application” and provided as identification his United Kingdom driving licence, his Medicare Card and his VISA card.[7] The system rejected the application because it would not recognise the United Kingdom Driving licence as a form of identification.

[7] Ex P-4 CB210

17 The Plaintiff says that he and the Defendant had planned to drive to Northern and Central Queensland in the vehicle the following day and wanted the vehicle. He says he asked the Defendant if the car could be registered in her name because she had appropriate forms of identification with her, namely a current driving license. The Plaintiff says that the Defendant agreed. With the Defendant’s agreement a second New Business Application form for a CRN to be given to the Defendant was then made. The Defendant provided a current driving license as identification.[8] This was accepted by the computer system and the vehicle was thus registered in the name of the Defendant.

[8] Ex P-4 CB213.

18 The Defendant says on the day the vehicle was delivered at the dealership in a private conversation between her and the Plaintiff in an area set aside for customers to sit and relax the Plaintiff told her he was giving her the car because he loved her. She thanked him and told the Plaintiff she loved him too. That conversation is denied by the Plaintiff. He says, inter alia, it is not his style to use such words. Thus what occurred on the day of delivery at the Mercedes Benz dealership in Brisbane is very much in dispute.

19 The Plaintiff’s case is that when all of the facts are examined his version of events is the most likely the correct one. He argues that his version is supported by the evidence of a number of witnesses from the dealer as to what occurred on that day. Further he argues that in a number of emails exchanged between himself and the Defendant in February and March of 2009 the Defendant made admissions which are totally inconsistent with the version of events which she now puts before the Court.

20 The Defendant on the other hand contends that neither the Plaintiff nor witnesses called on his behalf are witnesses of truth and I cannot and should not rely upon anything they say in this court. In such a case the Defendant argues that I should prefer the evidence of the Defendant as to what occurred at the dealer on 26 November 2007. If I accept her evidence the vehicle was a gift by the Plaintiff to her. The Defendant contends that the gift was complete by the delivery of the vehicle to her and by the Plaintiff agreeing to register the vehicle in her name and further by paying to re-register the vehicle in November 2008 when it fell for renewal.

Evidence of the Plaintiff

21 The Plaintiff gave evidence that he first ordered the vehicle in late June 2007[9] before

he had made re-acquaintance with the Defendant. He said that he paid the deposit on that date of $10,000 by a cheque drawn on the account of the trust. He later paid the balance of the purchase price by a second cheque drawn on the account of the trust.

[9] Transcript 147

22 The Plaintiff went to the dealer in August 2007 and had discussions about the vehicle. By that time he had formed a relationship with the Defendant who accompanied him to the dealer and she was shown and looked at other vehicles and she had a test drive of a SLK350 model.[10] He was asked specifically:

“After the occasion when Ms Breaux went for that test drive, did you and she discuss the idea of the purchase of a sports car?---There'd been numerous discussions about, about vehicles. I took the approach that if I was going to buy or the trust was going to buy a vehicle, then I would speak with her about what sort of vehicle that she would like to drive, rather than just necessarily buying a vehicle that, that might just suit me. So I was showing a degree of consideration I suppose.

MR COUPER: Mr Ainsworth, as between you and Ms Breaux, who was it who raised the idea of the purchase of a sports car, as the type of car to buy?---Well, we, we had a number of discussions. We had one fairly solid discussion about what sort of car that - if Gamble had a car that she, that she'd prefer to drive, what would it be. Because I didn't particularly mind which car I drove. There were two cars, I just wasn't overly concerned. I was more concerned about being a decent, a decent partner and if she was going to do errands and go out and do her things during day, that she wasn't driving a vehicle that was something that she didn't particularly like. Perhaps an overly large car or a car that just didn't suit her needs.”[11]

[10] Transcript 148.

[11] Transcript 148-9.

23 I interpret this evidence not as evidence suggesting the Plaintiff intended to gift a Mercedes motor vehicle to the Defendant but as evidence that if he were to acquire a Mercedes motor vehicle for her use the model would have to be suitable for her needs.

24 To this end the Plaintiff did in fact purchase an SL500 model Mercedes from a car

dealer named Dial-a-Car an outfit operated by on Konrad Gallaher who gave evidence.

The Plaintiff was asked:

“Was there any discussion between you and Ms Breaux either before or after you purchased that vehicle about the ownership of the SL500?---No. There was - in my mind there was no need to discuss it. It was a - it's a company asset, it was bought for her use and my use but it was - if there was a choice of buying a second vehicle I would be a decent partner and show some consideration. I wasn't going to go and buy her a, you know, a tractor to drive around. I was going to buy her something that she'd reasonably like.”[12]

[12] Transcript 149-150.

25 I accept that evidence which was largely uncontested. The Defendant did not suggest that there was a specific agreement that she would own the SL500 and that vehicle was never registered in her name. However, the Defendant did contend that the SL500 vehicle was purchased specifically for her and even though it was not registered in her name it was nonetheless her car. This is important. The Defendant uses the fact that the Plaintiff purchased the SL500 vehicle to argue that the vehicle in question was purchased to replace the SL500 after it was realised she was pregnant with the SL500 being a two door sports car no longer suitable for her needs. I reject that argument. I find that whilst the Plaintiff may have purchased the SL500 for use by the Defendant it was never his intention that car be a gift to her. He merely purchased it in the name of the trust and made it available for her use. That is all.

26 Concerning the vehicle in dispute, the Plaintiff said that he discussed with the salesman at the dealer, namely Matthew Roe, registering the vehicle in what he termed the “usual name” meaning the trust which is the name in which other vehicles purchased by him from the dealer had been processed.

“Did you discuss with Mr Roe, prior to the delivery date, the name in which the car would be registered, the ML63?---I just said, yeah, just the usual. Put it in the same name. It will be, you know, nothing's different from the - from usual. I think the discussion was actually - I think the discussion was a day or two before. It was, it was more of a call from him, to say well, you know, is there anything different or is it going to be just like before. I guess we were a little bit complacent in that respect, that it was always the same, so he was just double checking it was always going to be the same, the same as before.

HIS HONOUR: Mr Ainsworth you mentioned a number of cars that you've purchased previously?---M'mm. Yes, Your Honour.

The ML63. How many was it?---Well, excluding the ML63, it was seven vehicles prior.”[13]

[13] Transcript 150-151.

27 As to what occurred in relation to registration of the vehicle the Plaintiff was asked and gave evidence:

“Can I ask you about the events on that day, concerning registration of the vehicle. What can you recall about the events concerning the registration of the vehicle?---Well I recall when I went in at midday being asked to provide the usual forms of ID, which was photographic ID and the like and - so that the vehicle could be registered and then received a phone call later on in the day that the ID wasn't sufficient because of some changes and then it was a case of well what do I need to do, it's like well we'll keep going, keep trying to get the car registered and another call, we can't get it registered because of, you know, problems with the ID, do you have more ID, no it's down in Melbourne at the house, I can't it to you today, I am not going back to Melbourne for a week because I have to visit some service stations, new and existing in Central and Northern Queensland and thus it was either deliver the car today or deliver it - or go down and get the ID from the house and come back and we were going to be put back a week to ten days.

Let's take this in stages a bit. Can you go in that book please to p.210 and that's a document entitled, "New individual customer application". In the right-hand column just above mid page, is that your signature?---It is.

Dated 26 November 2007. If you go to the next page, 211, there is a photocopy of a Visa card, a Medicare card and a driver's licence. Are they respectively your Visa card, your Medicare card and your United Kingdom driving licence?---Yes they are.

Do you recall how it came about that you were signing that document and providing the driver's licence and cards?---Yeah, I mean it was a requirement to provide identification and the procedure had changed and I mean, as far as I'm aware that was a new document and I mean it flitted past my eyes fairly quickly, but it was a matter of signing these new forms that Queensland Transport had generated to lift the standard of evidence for - of identity.

Were you told - I just want to be clear about this, whether your application to have the vehicle registered in your name was successful or not?---No, no, it didn't succeed the first time round or the second time round, there was obviously some things going on in the back rooms of Mercedes and Queensland Transport which were causing a - you know, a fair degree of consternation.

You have told us that you had proposed to go to Central and

North Queensland?---M'mm.

What day had you proposed to leave on that trip?---We'd

planned to go the following morning.

Did you discuss the question, on 26 November this day, did you discuss the question of how the vehicle might be registered with Ms Breaux?---Well I mean - we just - it wasn't discussed at length, it was the only option left to register it in Gamble's name, to get out the door that afternoon and I'm aware that registration doesn't confer ownership, I've known that for a long time and therefore there was an element of trust, a reasonable level of trust between Gamble and myself and I just said well, how about we just do that to expedite matters, so.

Did Ms Breaux agree with that?---She said that's fine, yeah.

Can I ask you - let's take the period up to and including 26 November 2007, including the day you took delivery of the vehicle. Did you say anything to Ms Breaux to indicate or suggest that she would have ownership of the ML63?---No, not at all.

In particular, on 26 November 2007 whilst at the Mercedes Benz dealership did you say these words or words to this effect, This is your car, I love you and it will be in your name?---No I didn't.

If we can take the period after 26 November 2007, did you at any time say anything to Ms Breaux to indicate or suggest that the ML63 would be hers as a gift or that she owned it or would own it?---No.”[14]

[14] Transcript 153 to 154.

28 It can be seen that the Plaintiff denies any conversation with the Defendant wherein he told her that he loved her and that he was gifting her the vehicle.

29 Towards the end of 2007 the Plaintiff sold yet another Mercedes vehicle, a C220 CDI model, to his mother for $50,000. At that time he had at least three Mercedes vehicles in the house at Marne St South Yarra, the C220 CDI, the SL500 and the vehicle. There was a space problem and he also had a cash flow problem. This prompted the sale of the C220 CDI followed shortly after in April 2008 by sale of the SL 500. So that he had a vehicle to go to work and do other things in he acquired a new C63 model in July 2008. This evidence is largely uncontested. When sold the proceeds of sale from the SL500 went to the Plaintiff. The Defendant does not contend this was wrong or that the Plaintiff is indebted to her for the proceeds of sale of the SL500 which is somewhat inconsistent with the evidence she has given in this Court and the inferences she wants me to draw.

30 The Plaintiff gave evidence about the breakup of his relationship with the Defendant and of emails passing between them which I shall later refer to. He said that up until the lead up to this proceeding the Defendant had never asserted to him that she owned the vehicle. He was asked:

“MR COUPER: During – in these terms, has Ms Breaux ever personally suggested to you, as opposed to solicitors correspondence, ever personally suggested to you that she owns the ML63?---No, absolutely not.

Has she ever personally suggested to you, that you’d given her the ML63 as a gift?---No, no. That’s an absolute fabrication. Self-serving fabrication at that.

Did you become concerned as to the possibility that Ms Breaux

might sell the vehicle?---Yes, absolutely.

Did you take steps to cause the registration of the vehicle to be

placed in your name?---Yes, I did.”[15]

[15] Transcript 164.

31 The Plaintiff was cross examined by Mr. Clarke who appeared as counsel for the Defendant. He denied ever having any intention to confer ownership of the vehicle on the Defendant.

“MR CLARKE: Well, you say you didn’t tell her that you were going put the car in her name?---I asked her – I asked her after – at the – in the middle of the day whether she would be fine with that, I think it was probably on the telephone I asked – after we had all these problems getting the vehicle registered. But in

terms of – in terms of putting the vehicle in her name in

terms of ownership, absolutely not - - -[16]

[16] Transcript 168.

And a little later:

Now, did you also say – I should finish off by saying – she said she had this conversation – referred to at the bottom of paragraph 5 on p.29 of the court book – at a little area in the dealership where they have a number of chairs, and a little coffee table, did you have any conversation with her there?---No. I – I may have had a conversation with her there, but certainly that conversation did not occur. I wasn’t in the habit of saying “I love you.” It’s just not my style to make

those extemporaneous remarks. I wasn’t in love and it’s not	my style to do that.[17]
And a little later:
MR CLARKE: At the time you instructed Mercedes Benz to register the car in her name, did you intend her to use the car?---Yes, I did intend her to use the car.
I suggest you intended her to have the car?---No, that’s not correct.
What discussion do you say you had with Ms Breaux on that particular day, about registering the car in her name?---The – I just said would you mind registering in your name, we can’t seem to register it in mine, because of ID requirements
today. Would you be happy to have it your name for the moment?”18
(My emphasis added)

[17] Transcript 170. 18 Transcript 174 19 Transcript 171

32 The Plaintiff denied the suggestion that in putting down a deposit on the C63 model 26 November 2007 that he was buying another car for himself the implication being that the vehicle when purchased was solely a gift for the Defendant and that being the case he acquired the C63 model for his use.19

Evidence of the Defendant

33 The Defendant suggested that there was a deliberate decision between her and the Plaintiff to acquire a four door vehicle for her rather than a two door sports coupe, a suggestion that ignores the undisputed fact that the Plaintiff had ordered the vehicle in June 2007 before he even met the Defendant.

“MR CLARKE: Yes, Your Honour. (To witness) What's your version of events?---Yes, we looked at two door Mercedes earlier in the relationship, and then we decided to go for the four door four wheel for me, because it was more applicable to transporting the children and so on.”[20]

[20] Transcript 250 21 Transcript 253

34 I found much of the Defendant’s evidence difficult to understand and certainly unconvincing. At times it was rambling and unresponsive. I got the clear impression at times that she was making the evidence up as she went along. For example, at transcript page 253 line 18 through to line 11 on page 254 the Defendant was totally unresponsive. In my judgment the Defendant had a version of events in her mind that she wanted to advance even though it was at odds with proven facts. She said at one point that the vehicle was purchased by her and the Plaintiff “off the floor” as if the vehicle was displayed at the dealer for sale and she and the Plaintiff came in and purchased it.21 Such evidence flies in the face of undisputed verifiable facts especially the facts that the vehicle was ordered in June 2007, the specifications discussed in August and September 2007 and the vehicle was fully paid for before the parties arrived at the dealer on 26 November 2007.

35 When the Defendant was asked about the events at the dealer on 26 November 2007, where she did respond directly, she said inter alia:

“Continue about what happened on that day?---We were there for quite some time. I gave the Mercedes dealership my - my ID, and they took a while - they took quite a while to process it. We - we're probably there - it feels like maybe an hour and - an hour and a half, two hours and Kjerulf and I were sitting in - in the middle of the dealership. There was two chairs that face each other - actually three - and a wee table and we had coffee and so on, and he was conducting business over the phone, and he - he grabbed my legs and - and - that's just you, I'm putting it in your name."[22] before I handed my ID - and he said, "This is your car, I love

(My emphasis added)

[22] Transcript 254 23 Transcript 255 24 Ex P-4 CB214-219

36 The Defendant said that the conversation was not overheard by others. It was a private conversation. She went on to say that she drove the car from the showroom23.

37 The Defendant said that the Plaintiff would have had his passport with him for identification on the day because he often travels overseas and carries it in his briefcase. The clear implication of this is that if lack of suitable identification of the Plaintiff was the real reason why the vehicle was registered into her name then why didn’t the Plaintiff simply provide his passport on 26 November 2007. In my judgment the Defendant made up this evidence in the witness box. The suggestion was never put to the Plaintiff in cross examination by counsel for the Defendant even though Ms. Steyl had made it clear that provision of a passport would have been sufficient for identification purposes as it later proved to be.24 I reject any suggestion by the Defendant that the Plaintiff had his passport with him at the dealer on 26 November 2007. I note the suggestion came as a non responsive answer:

“Were you required to produce any documentation or identification to Mr Roe or anyone else at Mercedes Benz on that day, 26 November, 2007?---Yes, absolutely it was very basic, just my - my drivers licence. I - I don't know what other pieces I - but just things I had handy and the - Mr Ainsworth always has his passport in his briefcase which travels with him, it

doesn't stay at home when we're away, because he does

tend to travel overseas quite frequently.”[25]

(My emphasis added)

[25] Transcript 256

38 The Defendant was tested about the events on 26 November 2007 in cross examination. She said:

“Let’s come to 26 November 2007, the day when the ML63 was collected from Mercedes Benz in Brisbane, do you know the day I'm talking about?---Yes I do.

Why did you go to the Mercedes Benz dealership in Brisbane

on that day?---To pick up a new car.

As I understand it, you say that you went into the showroom and had a look round for a car with Mr Ainsworth, is that right?---We had a look at all the different cars, all the different models, yes.

Do you say that there happened to be in the showroom at that time, an ML63 vehicle?---I felt that we'd chosen that vehicle out on that day.

What do you mean you felt that?---Well that's what, that's

the way I remember it an he said this will be your car.

Just, if you would, give me your best recollection of the events which took place from the time you and Mr Ainsworth walked into the dealership on that day?---The way I see it, we walked around and looked at all the different models of cars and we're talking like the long, the long - cars that are family wagons, all the different cars and the black Mercedes four- wheel drive was the car that - that we decided would be - best suit me, as I was pregnant and then Mr Ainsworth chose out another vehicle and we - we sat in the middle of the dealership whilst this - whilst Matt ran around and did paperwork and we chatted and he did - conducted business on the telephone.

Where was the ML63 in the showroom?---It was in the -

inside the showroom at the front.

So it was what, sitting on the showroom floor amongst

other cars, was it?---Yes, it was.

Is that right?---It was, it was up near the window because I

remember when they let it out.

Before you went to the dealership on that day?---Yes.

Did you and Mr Ainsworth discuss why you were going

there?---We were going to pick up a car.

Going to pick up a car?---Yes.

Not going to select a car, going to pick up a car, is that right?---Yes, we were but then he went around all the different vehicles to make sure that he was getting the car that he wanted and we decided on - I felt that we decided on the ML63 that date, but my memory could be wrong I'm sorry but I believe that's the way things happened.

It is plain, is it not, that Mr Ainsworth had chosen an ML63 and signed a contract for it by 25 June 2007, correct?---I don't know if that's correct or not but the evidence does show that.[26]

And a little later:

MR COUPER: I just want to understand what the sequence of events was on that day at the dealership. You have come - you've looked at all the cars, Kjerulf has asked you, you say, which one do you like the best and you've picked out the ML63 as the car that you want?---Yes, we chose that, thought that was the best one - both of us did.

What happened next?---We drove out of the showroom. Kjerulf

(indistinct) - - -

There must have been something happened before you drove out of the showroom. You say you've just picked out a car off the showroom floor, what happened next?---We sat down in the middle of the showroom and whilst they put the car into my name and we had a cup of coffee and Kjerulf did business, we were there just nearly two hours I think, about an hour-and-a-half, two hours.

So you picked out the car and then you've sat around for an hour-and-a-half or two hours you say?---M'mm.

While the vehicles being put in your name?---M'mm and then we drove - and I believe we had a bit of lunch and then Kjerulf did some errands[27].

[26] Transcript 276-277. [27] Transcript 282-283.

And a little later:

MR COUPER: Can I suggest this to you, that whilst you were at the dealership, Mr Roe spoke with Mr Ainsworth in your presence about the fact that attempts to register the vehicle in Mr Ainsworth's name - - -?---No.

- - had been unsuccessful?---No.

Mr Ainsworth, in your presence, suggested to Mr Roe that the vehicle be registered in your name because you had a current Australian drivers licence?---He put it in my name.

Were you present during a conversation when Mr Ainsworth suggested to Mr Roe that the vehicle be registered in your name?---Yes.

There was only one such conversation?---He just asked me for my ID because he was putting it in my name.

You knew because Mr Ainsworth had told you that Mr Ainsworth had attempted to have the vehicle registered in his name and that had been unsuccessful?---No, I'm sorry because it was a very romantic moment and he didn't tell me that. Had I thought he was doing - just registering in my name for no good reason, I don't think I would have agreed because I don't, I wouldn't want the parking ticket.

Sorry, could you just say that again?---If he'd said he was just putting it in my name for the heck of it I wouldn't have

let him because I wouldn't want the parking tickets or the

speeding fines attached to my drivers licence.[28]

[28] Transcript 284-285.

And in conclusion:

Let us come back to 26 November, 2007. Can I suggest to you that the events of that day proceeded in this way. That you and Mr Ainsworth attended the Mercedes Benz dealership to collect the ML63 which had already been ordered by Mr Ainsworth a couple of months beforehand and you knew that to be the case?---I'm sorry sir but it could be a problem with my memory but I felt that we picked the car out on the day.

You were aware, because you spoke both to Mr Ainsworth and Mr Roe about this fact, that Mr Ainsworth attempted to have that car registered in his name and the attempt was unsuccessful, correct?---In my recollection he did not, he just gave me the car. It wouldn't be terribly romantic had he done it that way, that's for sure and I wouldn't have agreed to it because he drives like - like a - like very fast and I would have my points taken off my licence.

We are back to this - - -?---That's just the way I see it sir,

that's all I can say.

You wouldn't have assisted Mr Ainsworth to collect the car that day when he was very keen to do so, by putting it in your name, because you say you had a fear about getting points off your licence, is that what you're saying?---He put the car in my name because it was my car, I would not register somebody else's car under my identification as I've had a very good record up until now, thank you.

Did you regard registration in your name as being the indication

that you owned the car?---Yes and it being gifted to me.

The SL500 wasn't registered in your name, was it?---No, it

wasn't.

And you made no enquiry about what name the SL500 was

registered in?---No, I didn't bother.

You didn't - - -?---It wasn't in my name.

- - because you knew it wasn't your car, correct?---It was my car, he gave it to me but I wasn't particularly worried at that time that it wasn't in my name. I barely saw that car.[29]

[29] Transcript 300-301

Can we be clear about this, that I suggest to you Mr Ainsworth never made a gift of the SL500 to you?---Well you can suggest it but it's simply not true.

A sequence of events designed to suggest that the SL500 was sold to ease a cash flow problem and the ML63 was bought as a substitute for it, picked out by you, is simply an invention by you, correct?---Sir that's not true.

I suggest to you that the SL500 was sold in - removed from the garage and sent to Queensland, at the earliest in late January 2008?---I can't recall. I just don't know what date it left.

I suggest to you that the car which was sold in October to ease the immediate cash flow problem, was the silver Mercedes four- door car, the C220?---We sold both.

I'm suggesting to you in October what was sold was the C220. Do you agree or not?---That's the car we took up to the farm, yes.[30]

Can I suggest this to you, that Mr Ainsworth did not say to you on 26 November 2007, I'll use the words you've used in your affidavit so we're clear. He did not say to you: "This is your car, I love you and it will be in your name" or anything like that on that day?---He did say that sir.

Do I understand you to say that just came completely out of the blue?---We were sitting in the showroom and he said - I was pregnant, we'd been looking for a car to choose it out - and he said: "I'm going to put this car in your name."

So your context is the story about going to the dealership on that day to choose a car and that context, you choose the car, then he says I love you - - -?---We made sure the car was going to be appropriate for children, yes. I would not have driven out there in a two-door car if that had been ordered.”31

(My emphasis added)

Emails

[30] Transcript 302 31 Transcript 304

39 The Defendant was cross examined about a series of emails exchanged between her and the Plaintiff in February and March of 2009. As I have said the Plaintiff relies upon these emails as evidence of admissions made by the Defendant against her interests. The point being that what she says in them is inconsistent with her evidence in Court that the Plaintiff had gifted the vehicle to her.

40 Before going to the cross examination it is important that I set out the emails:

“On 22 February 2009 there was an email exchange between

the Plaintiff and the Defendant.[32] Inter alia the exchange

included:

Plaintiff: Will you need a car to loan for a while?

Defendant: Thank you.”

[32] Ex P-6 CB14 33 Ex P-6 CB15 34 Ex P-6 CB16 35 Ex P-7

41 On 23 February 2009 there was a further exchange of email between the Plaintiff and the Defendant33. Inter alia the exchange included:

“Defendant: Regarding car, the 4 wheel drive would be of great assistance. I need a car to take my sculpting and painting gear back and forth, which includes heavy stuff like canvasses and a heavy tool kit to work from. The red light ticket I received was taken from the back so you can’t see who’s driving. I left it on your desk. I hope you will nominate yourself and pay the bill. I don’t really want to lose any points but I’m not positive it was you driving.

Plaintiff: I’ll check the date. You can use the car if you keep it clean and safe.”

42 On 26 February 2009 there was yet a further exchange of emails between the Plaintiff and the Defendant.34 Inter alia the exchange included:

“Defendant: Thanks again for the car, it’s nice and clean I am starting a bronze statue in class and would not be able to do without it.

Plaintiff: Great. Please keep it clean until you return it.”

43 On 8 March 2009 an email exchange between Plaintiff and Defendant includes inter alia the following exchange:35

“Defendant: 35 How long do you plan to let me use the car?

Plaintiff: For a fortnight.”

44 The Defendant was asked about these emails by Mr. Couper in some detail. Her evidence is revealing. The Defendant said that after the first email exchange which I have set out above she sought legal advice. On her evidence the further exchanges were sent after she had consulted with her solicitor.

“Will you need a car to loan for a while?" Now that is a question that Mr Ainsworth asked you in the email, correct?---Yes, this is where we've got - the emails have been so chopped up that yes, will I need a car for a while, that's when I started to speak to Gaspare, when I received that email and (indistinct) that's actually an email from ages ago, we sorted out (indistinct) carry on, sorry?

I just want to be clear about this. As soon as you got this email, February 2009, you went to speak to Gaspare which is Mr Sirianni, your solicitor, correct?---Yes because my jewellery, all my assets were in Kjerulf's safe and he was regarding to my car as a loan and I said to - Gaspare said don't write any more emails.

Whatever email you chose to write, I take it you would have written honestly and without attempting to be deceptive, is that fair?---Actually I was - was trying to be a little bit guarded because I was frightened if I'd - if I'd made movements to keep my - well to - when I saw he was talking about lending - loaning me the car I realised that his intentions were to repossess my car as he did Fleur's and I knew that he had my Rolex watch and my jewellery and that they're my assets and I was afraid that if I started a dispute he would not - before I received my things back - that he would not give me

my jewellery back, which was worth nearly as much as the	car.[36]
Let's look a little above the middle of that page, "Regarding car, the four wheel drive would be a great assistance. I need a car to take my sculpting and painting gear back and forth", and it continues on. That was part of your email to Mr Ainsworth, correct?---Yes, I was talking about my - my sculptor classes. I was trying to conduct a conversation with him that wasn't - was lighter then we'd been having - - -
Your response there was a response to the question Mr Ainsworth had posed in his earlier email, "Will you need a car to loan for a while", correct?---Yes, possibly.
Possibly it was, wasn't it?---Yes - - -
HIS HONOUR: It's the day after, was it not?---Yes, probably is, yes.
MR COUPER: So he asks you in effect, "Do you want to borrow a car"? and your response is, "Yes, the four wheel drive would be a great assistance." You are requesting to borrow the four wheel drive, are you not?---No.
What do you say your email was intended to mean?---It was intended to mean that he knew what I was doing, I was going to art classes and I was trying to create a space that was a bit nicer so that we would possibly reconstruct our relationship, but to no avail.
I'll ask you my question again, it's plain, is it not, that your email was taking up his invitation to borrow a car by saying in effect, "I'd like to borrow the four wheel drive"?---It's plain the whole situation - the conversation has been taken out of context. You have no idea of the situation I was in really, emotionally and so forth, so - - -
Would you agree with me - - -?---I did not feel I was borrowing my own car, lending it, or borrowing it.
Would you agree with me that the one thing you don't say in any of your emails is, "I don't need to borrow a car, because the four wheel drive car is mine, and I intend to use it"?---And I also would - I'd also like to get my jewellery out of the safe without him saying, "Well fine, use the car but I'm keeping your jewellery." He'd already - it's hearsay what we had a discussion about and I - - -
Are you suggesting now that you were trying to be deceptive in your response to his offer to lend you a car?---Why would he loan me my own car. He was the one being deceptive posing that into questions, not speaking to me on the phone and putting it in emails, so that he'd have an argument like this to have later over the car.
If you thought he was being deceptive - and apparently you had your solicitor's advice - why didn't you email back saying, "What are you talking about, the four wheel drive is mine"?---Why didn't do that, because my jewellery was in the safe, and I felt he had a gun to my head.
When did you collect your jewellery?---Well my watch was still in the shop. I - I don't remember now, but it was - no, I don't remember. I'd have to look through my statements, I don't know.
Did Mr Ainsworth give you your jewellery back by the end of February?---I think it was March.[37]
Let us deal with the part which is part of the email. Would you look a little above the middle of the page, you say, "Thanks again for the car, it's nice and clean. I am starting a bronze statute in class, and would not be able to do without it." Mr Ainsworth's response is, "Great, please keep it clean until you return it." In that email you were thanking him for lending you the ML63 four wheel drive vehicle, correct?---Not for lending it to me.
Well you say you were thanking him for it - - -?---Well I'm glad he hadn't repossessed before I - so I could go to class.
What do you say you were thanking him for?---I say I was thanking him for the car.
And why did you think you should thank him for the car if he
hadn't lent it to you - - -?---So that he didn't become violent, or abusive towards me.[38] [38] Transcript 290
It’s time I asked the hard questions." Then come down to line 35 you see there - this is what you asked Mr Ainsworth - "How long do you plan to let me use the car?"?---Yes, I was wondering how long it'd be until I had to put it away somewhere, because I knew he'd try and repossess it like he had with Fleur. I'm asking him the hard questions, because I couldn't get a straight answer if he was away with somebody, if he was coming home, if - what he was doing. I had no idea where he was. He disappeared overseas. He left me my car, I didn't see him again and I'm asking these questions because I need to know my stand, and I really didn't want to have to employ a solicitor. I wanted to sit down and talk with him. I wanted to talk about the car, I wanted to talk about getting a home of my own, and - and he - he moved me into a hotel. It's just horrendous, so - yes, that's why I'm asking the hard questions, and shortly after I moved the car.
Well let me understand what you say. Are you saying that the question - "How long do you plan to let me use the car" should be understood to mean, "How long would it before you attempt to steal my car?"?---Yes.
And just explain to me why we should read the question that way - - -?---Because he took Fleur's car out of her backyard when - when she was sleeping one night with the baby seats in it, and I fell that he had a history of Indian giving, considering I'd just been through the custody battle with him, and so I felt that he would try and take any assets he'd given me back, as he did with Fleur.”[39]

[39] Transcript 292-293

[36] Transcript 286-7

[37] Transcript 288-9

(My emphasis added)

45 The Defendant was also cross examined about what she had said in an earlier affidavit about the emails. She took the opportunity to tell me that the Plaintiff was bi-polar in a clear attempt to demonstrate to me that his evidence might be unreliable for that reason.

“Could I ask you to go please in the volume to p.30?---Yes.

This is a page of the affidavit which you swore on 6 April 2009. Can I ask you to look at paragraph 10 where you say, "I found the Plaintiff's comments and emails that he was lending me the car as very weird, as I have always had possession of the vehicle, and started to question his motives by the statements. On seeking legal advice my solicitors advised that these were self serving statements, and it probably would be best not to respond to them." And you say, "I also chose not to respond to these self serving comments." Well that's not true is it? You responded to the comments by accepting an offer of a loan of the car, correct?---I didn't accept anything, I stopped speaking to him after that. I just wanted - my - my girlfriend told me that I should ask the hard questions, because maybe everything was all right. Maybe he was going to come back, maybe he was just having bipolar episode.[40]

[40] Transcript 292-3

46 I reject the Defendant’s explanation of the emails exchanged. From what the Defendant said in them it is clear that during the course of the various exchanges she did not regard herself as the owner of the vehicle and acted in a way inconsistent with her being the recipient of the vehicle as a gift from the Plaintiff. Had the Plaintiff gifted the vehicle to the Defendant as she claims during a conversation with the Plaintiff on 26 November 2007 she would not have said what she admits in the email exchange. Further, apart from what the Defendant said in her explanations when cross examined about the email exchange there is no evidence that the Plaintiff threatened the Defendant with violence at any time or that he ever threatened to withhold her Rolex watch and other jewellery which she had agreed be placed in his safe prior to separation. Neither of these matters were put to the Plaintiff by counsel for the Defendant when he was cross examined.

47 The Defendant said that in late March 2009 she intended to sell the vehicle and to that end took it to Central Motor Auctions. She also obtained a roadworthy certificate on the vehicle and had some work done on it in order to have it pass inspection.[41] In cross examination it became clear that the Defendant’s thinking was that she could use the fact that she had possession of the vehicle as a bargaining chip to extract a payment of money from the Plaintiff. I accept that as the fact. This is what she said:

“You thought the best way of dealing with this issue was if you got rid of the car then you could keep the money and it would be Mr Ainsworth's problem, correct?---Well eventually I thought that that probably would be the best solution for me finding new accommodation and not being destitute but I didn't like the whole thing it was all a bit revaluating quite honestly.

It was all a bit revaluating because - - -?---I loved that car.

You loved that car, you knew that you didn't own the car but you

wanted to keep it, correct?---He gave me the car.

Did you also think that the car might be a useful bargaining chip in trying to persuade Mr Ainsworth to give you some money?---Yes, I did.

You thought as long as you held onto the car that would be incentive for Mr Ainsworth to give you a cash payment? ---Yes.[42]

Corroboration Evidence

Evidence of Matthew Roe

[41] Ex D-9

[42] Transcript 297

48 The Plaintiff called Matthew Paul Roe the person who sold the vehicle to the Plaintiff and tendered his affidavit sworn 29 May 2009 as Exhibit P-2 (CB 170). In the affidavit he said, inter alia, that the dealer had sold 6 or 7 Mercedes vehicles to the Plaintiff since 2001 and he produced the documents relating to the purchase of the vehicle which included the contract to supply the vehicle first entered into on or about 25 June 2007 before the Plaintiff had renewed acquaintance with the Defendant[43]. The contract is in the name of the Plaintiff with a reference to Hastings Holdings and Veda Appreciation Trust. There are two CRN numbers referred to namely 81145067 and 41086289 being the CRN of the Plaintiff. A deposit of $10,000 was paid by the Plaintiff on 25 June 2007.

[43] A copy of the contract signed on that date is found at CB179.

49 Roe said that on 29 August 2007 the Plaintiff and the Defendant attended at the dealership “to discuss the delivery of the vehicle and some additional options the Plaintiff wished to include”.[44] After some discussion about the vehicle it was then agreed that Roe would take the Defendant on a test drive of another vehicle namely an SLK-350 type Mercedes. That was done at 3.35pm that day.[45] He was able to corroborate the fact from his records kept.

[44] Ex P-2 Affidavit of Roe #11-14

[45] Ex P-2 Affidavit of Roe #13.

50 According to the evidence of Roe he had telephone contact with the Plaintiff about the delivery of the vehicle in September and October of 2007. On 5 November 2007 he issued a tax invoice for the delivery of the vehicle wrongly addressed to “Hastings Holdings Pty Ltd”.[46] That was an error by Roe. However, Hastings Holdings is the business name registered to the “KDH Ainsworth Family Trust”.

[46] Ex P-2 CB184.

51 There was a telephone conversation between Roe and the Plaintiff on 8 November 2007 during which Roe informed the Plaintiff of the expected delivery of the vehicle on 3 or 4 December 2007. Also during that conversation the Plaintiff inquired as to the availability of an SL55 Mercedes vehicle.

52 On the following day, 9 November, the Plaintiff attended at the dealership in Brisbane and arrangements were made for delivery of the vehicle on 26 November 2007 as the Plaintiff would be in Brisbane that day. During the course of discussions on this day Roe said that he asked the Plaintiff what entity the vehicle was to be registered in and the Plaintiff informed him that the vehicle was to be registered in the name of the family trust as had been done before and Roe assured that this would be done. None of this evidence was challenged.[47]

[47] Ex P-2 Affidavit of Roe #24

53 The Plaintiff paid the balance of the amount owing for the vehicle after deposit by

cheque in the sum of $177,513.31. The cheque was drawn on the account of the

“KDH Ainsworth Family Trust”.[48]

[48] Ex P-2 Affidavit of Roe #24

54 Roe said that the Plaintiff and the Defendant both attended upon him at the dealership on 26 November 2007 “in the mid afternoon”.[49] He went over the vehicle with the Plaintiff explaining differences with its operation from previous models owned by the Plaintiff. According to Roe the Defendant played no part in this, said little or nothing and simply observed what was happening. The Plaintiff signed the “vehicle delivery certificate” as “The customer” shown at CB 192.

[49] Ex P-2 Affidavit of Roe #26

55 Roe said that it was getting late in the afternoon he went to register the vehicle using the details he held on the computer from previous dealings but the registration attempt was rejected. He was informed by Adri Steyl that the registration of the vehicle in the name of the Plaintiff was rejected because the CRN number of the Plaintiff had been suspended.

56 Roe said that given the lateness of the hour and the fact that the Plaintiff wanted to take the vehicle that day the Plaintiff suggested that the vehicle be registered in the name of the Defendant “as she had a current drivers license; it would be quick and easy and I could organise at some future point in time for the registration of the vehicle to be altered accordingly. I recall Mr. Ainsworth saying to me that this would be an interim measure and that I was to apply for a new Customer reference Number. Ms. Breaux was present at that time in the company of Mr. Ainsworth and myself when he said that.”[50]

[50] Ex P-2 Affidavit of Roe #32

57 Roe said that he did not witness any conversation between the Plaintiff and the Defendant whereby the Plaintiff said that he loved the Defendant and was giving her the vehicle:

“HIS HONOUR: You were not present at any conversation where Mr Ainsworth said, "This is your car, I love you and it will be in your name", to which Ms Breaux replied, "I love you, thank you"?---No.

You didn't hear that?---No.[51]

[51] Transcript 107 Roe xxn.

58 He said the Plaintiff drove the vehicle away with the Defendant as the passenger. He was challenged in cross examination that his evidence as to who drove the vehicle away was not correct. He said his recollection was correct.[52] In my view nothing turns on which of the parties drove the vehicle away from the dealer.

[52] Transcript page 105

59 Also on the 26 November 2007 the Plaintiff paid a deposit $5,000 on the delivery of another Mercedes vehicle. Initially it was to be an SL63 model but on 23 January 2008 the contract was changed to the delivery of a C63. A copy of the contract is shown at CB 195. This is the vehicle that Roe acknowledged in cross examination that he had wrongly referred to as having been sold in January 2009 instead of January 2008. Nothing hinges on this error save that the Defendant contends this demonstrates Roe’s recollection maybe faulty. In my view this is a minor matter and nothing turns on it.

“HIS HONOUR: We don't have the original form in front of us Mr Roe but if you look at p.195, do I understand your evidence to be that the vehicle that this contract originally related to was a Mercedes Benz SL63 roadster and that was signed in November of '07 and then on 23 January '08 the contract was changed and "SL63" was crossed out and "C63 sedan" was put in?---Yes that's correct.

The date was changed down the bottom right-hand

corner?---Yes.

Is that why you thought that it was January '08?---Correct.

MR CLARKE: Did anything occur in January this year in relation to Mr Ainsworth, in relation to any vehicle?---Could have been, I can't remember exactly.

You can't remember. But you do remember what occurred

in November 2007 and January 2008?---In certain

circumstances, yes.[53]

Evidence of Adri Steyl

[53] Transcript 115 Roe xxn.

60 The Plaintiff also called Ms. Adri Steyl a stock controller registration clerk at Mercedes Benz Brisbane. She explained the new points system of identification.

“What was the result of the changes that you found?---Well, according to the documents, if you would like to apply for a customer reference number, you need to have 100 points check and you need to fill in an application form and that would need to be submitted to Queensland Transport.

If a customer had an existing CRN, but had not provided sufficient proof of identity previously, what would happen when you attempted to register a new vehicle using that CRN?---You won't be able to register it because there would be a screen would come up and say that there's insufficient evidence of identity and we need to follow procedure and get the evidence and fill in the application form. So you won't be able to register the vehicle.

HIS HONOUR: This extra evidence is simply to prove that the person nominating the number is the person registered with that number?---That's correct.”[54]

[54] Transcript 124-5

61 Ms. Steyl explained that she processed the purchase of the vehicle in the name of the Plaintiff using his CRN but the system blocked the application. She then spoke with Roe who provided her with the form and identification found at CB 210 which she processed.[55] She received an email back from Queensland Transport advising that the United Kingdom driving licence was unacceptable as a form of identification. The fact that there was (as I find) an attempt to first register the vehicle in the name of the Plaintiff is totally inconsistent with the Defendant’s version of events.

“Can you tell me what steps you had taken in the process, before this form came to be filled out?---Well, when I attempted to register the vehicle and it came up with that box, I spoke to Matt Roee the sales person and asked him if he can get the evidence of identity for Mr Ainsworth and then he provided me UK driver's licence, a Medicare card and a visa application and a Visa card and then I filled in the form and Mr Ainsworth signed it and I submitted it to Queensland Transport or to UBS.

To Queensland Transport, via UBS?---That's correct.”[56]

[55] Ex P-4 CB210

[56] Transcript 126

62 Steyl was asked what happened then.

“So I suggested maybe at this stage just get a passport because

that could be used as admissible identity.[57]

[57] Transcript 127

63 Ms. Steyl identified her signature on the New Individual Customer application for the Defendant copied at Court Book 214 and Copy Allianz Third Party Insurance certificate in name of the Defendant relating to the vehicle.[58] Nothing turns on these documents. The preparation of them naming the Defendant as “the customer” is consistent with the agreement of both parties to register the vehicle in the name of the Defendant. Steyl acted in accordance with this agreement between the parties.

[58] Ex D-5

64 On the day of delivery of the vehicle the Defendant also signed a document entitled “Letter of Authority for Dealer to Sign – For private Registration”.[59] Ms. Steyl identified her signature on the document. The authority from the Defendant authorises Matt Roe of Mercedes Benz of Brisbane “to sign on my behalf to register the registration of the described vehicle purchased in the following name”. The name given was that of the Defendant.

[59] Ex P-3.

65 On or about 30 July 2008 the Plaintiff purchased a new Mercedes C43 vehicle and made application to have it registered in his name. At that point in time the block still existed on use of his CRN at Queensland Transport. Adri Steyl who had been involved in having the Defendant registered as the owner of the vehicle on November 26, 2007 was also involved in what happened on 30 July 2008. She made application to remove the hold on the use of his CRN.[60]

[60] Evidence of Adri Steyl Trancript pages 128-129 and CB216-219

66 The application involved using the same document found at CB210 being a New Individual Customer Application which had been completed by the Plaintiff on 26 November 2007 but which was rejected by Queensland Transport and altering it with white out. A copy of the altered document appears at CB 214 and is part of exhibit P- 4. The reference to the UK Licence on the left hand side of the document and the dates of the signatures on the right hand side have been whited out and the new date 30/07/08 inserted[61]. A give away that the document at CB214 has its origin in the document at CB210 is the fact that both bear the date “26/11/2007” in the top left corner. No one seems to have given a thought to the fact that the document at CB214 was false when submitted.

“The email above that on p.216, 30 July 2008 at 1.12 p.m.: "Hi Adri, EOIs listed on the CRN for Kjerult Ainsworth". What does that indicate?---That indicates that I can register the vehicle, the block has been removed so I can successfully submit application for registration.

“Do you recall whether you proceeded to register a vehicle on that

day?---Yes, I did.”[62]

[61] See generally the cross examination of Adri Steyl at Transcript pages 133-134.

[62] Evidence of Adri Steyl Transcript page 129.

67 At the same time that application was made to lift the block on the use of the Plaintiff’s CRN of 41086289 Adri Steyl also made application to create a CRN for Hastings Holdings (Qld) a registered business name under which the KDH Ainsworth Family Trust of which the Plaintiff is trustee carries on business in Queensland. That CRN number is 97683376.[63]

[63] See email exchange part of Ex P-4 at CB 215-9 and evidence of Adri Steyl at Transcript 130.

68 The Defendant makes much of the fact that by whiteing over the date 26/11/2007 and inserting the date 30/07/2008 in the document it was thereby falsified. It is conceded Steyl had not in fact been present when the Plaintiff signed the document whether on 26 November 2007 or on 30 July 2008. Although this reflects poorly on the Plaintiff in that he allowed the document to be used in this way and on Roe and Steyl for the part they played I cannot and do not reject their evidence for that reason. I accept the evidence given by each of them as to as to what occurred at the dealer on 26 November 2007 which in all material respects corroborates the evidence given by the Plaintiff.

Other evidence called by the Plaintiff

69 The Plaintiff called other evidence from Melanie Leis a chartered accountant employed by Price Waterhouse Coopers. He also relied upon her affidavit and attachments.[64] Her evidence was secondary. She dealt with the treatment of the vehicle as an asset in the books of account of the trust. Her evidence in that regard was largely unchallenged. The vehicle was recorded as an asset of the trust in the asset register of the trust as at 28 November 2007[65]. On 18 December 2007 the Plaintiff advised Leis that the vehicle was for “business use”.[66]

[64] Exhibit P-1 CB93-158

[65] Ex P-1 Affidavit of Leis CB95 #18 & asset register at CB 144 & 145.

[66] Ex P-1 Affidavit of Leis CB95 #19 & email copied at CB 157.

70 She was cross examined for the purpose of discrediting the Plaintiff. The attack focused on the Plaintiff’s taxation affairs the suggestion being that he was less than honest in that regard. He obviously has spent a great deal of money purchasing a number of cars much of which is claimed as a taxation deduction for business use. Whether or not the amounts claimed by the Plaintiff as deductible in his taxation papers can be substantiated I cannot say and I do not have to decide that issue in order to decide this case.

71 The Plaintiff also called Robert Hill an accountant employed by the dealer. It relied upon his affidavit and attachments.[67] That evidence is also not challenged.

[67] Ex P-4 CB201-220

72 Finally the Plaintiff called Konrad Gallaher the proprietor of a business called “Dial a Car”. He gave evidence that related to the sale by him to the Plaintiff as trustee of the trust of the SL500 Mercedes on 22 September 2007 for the sum of $176,500. That car was delivered to Melbourne.

73 On or about 4 April 2008 Gallaher re-purchased the SL500 from the Plaintiff for the sum of $114,000. Again that evidence is uncontroversial. The SL500 was owned by the Plaintiff and available for the use by the Defendant from time to time for a period of approximately six months.

Other Relevant Evidence - March 2009

74 In March 2009 a number of things occurred as each party tried to secure possession of the vehicle for themselves.

75 On 25 March 2009 the Plaintiff completed a “Vehicle Registration Transfer Application”.[68] The application is false in a number of respects. It shows the vehicle as having been repossessed on 25 March 2009 and the odometer reading is nothing but a guess.

[68] Ex D-6

76 On 26 March 2009 the Plaintiff wrote to Vehicle Registry Queensland Transport.[69] The

letter said inter alia:

“The disposer is unknown at the postal address and Business/Residential address documented on the registration certificate. I believe the disposer is experiencing financial difficulty and may be residing overseas”.

[69] Ex D-8 70 Ex D-7 71 Ex D-9

77 Both statements were false to the Plaintiff’s knowledge. The Defendant was living in

premises known to him and paid for by him in South Yarra. He knew that the

Defendant was not overseas.

78 The document was accompanied by a “Safety Certificate” signed by “J Hanna” on 27 March 2009 in which Hanna certified he had inspected the vehicle and gave an odometer reading.70 Both statements were false.

79 Between 20 and 30 March 2009 the vehicle was at the premises of Ultra Tune in South Melbourne. By this time solicitors had been retained by both parties. The Plaintiff’s solicitors had written to the Defendant claiming the vehicle belonged to the Plaintiff and demanding its return. The Defendant’s solicitors claimed that the vehicle belonged to the Defendant.

80 On 27 March 2009, the Defendant had the vehicle assessed as roadworthy in Melbourne by one Rosenberg. It showed the odometer as 27,392 kilometres.71 The vehicle was inspected for this purpose at the place of business of Ultra Tune South Melbourne. The inspection showed that the vehicle had some defects. These were rectified by Ultra Tune and the vehicle made roadworthy.[72] The purpose of the Defendant in having this work carried out to the vehicle was to sell the vehicle by auction at Central Motor Auctions.[73] That could not occur because it had been discovered that the transfer of ownership had been effected by the Plaintiff transferring the vehicle into his name as the registered owner.74

Assessment of the Plaintiff and the Defendant

[72] Ex D-9

[73] T295 74 T297 75 Transcript 170

81 Central to this case is a decision a to what occurred at the dealer on 26 November

2007. That necessarily involves an assessment of the credit of each of the respective

parties.

82 As I have said previously, the Plaintiff is a man given to doing and saying anything to get his own way. In much of his evidence he was unresponsive and he was prepared to blame others at every turn. He said he was a busy man not given to dealing with the minutiae which he left to others to attend to. He grasped every opportunity in giving his evidence to take an unresponsive swipe at the character of the Defendant doubtless in order to press upon me that she was not a witness of truth. In so many ways during the course of his evidence he demonstrated his obsession with himself. He did say that he is not a man given to telling someone that he loves them in what he described as “an extemporaneous remark”.75 That evidence I accept.

83 In submissions senior counsel for the Plaintiff argued that whilst the Plaintiff can rightly be criticised for having broken the law in order to effect the change of registration, as it happened had he not done so the Defendant would have proceeded to wrongly dispose of the vehicle and receive money for it. In written outline of submissions senior counsel said “To take the risk inherent in acting in the way he did is indicative of a man desperately keen to preserve his property.”

84 I insofar as the Plaintiff is a man given to putting himself before anything else I agree with that submission. The Plaintiff is I think a person who would stoop to doing anything to get his own way. That includes taking the law into his own hands. He clearly falsified documents in order to effect the transfer of the vehicle into his name. It is for others to decide whether in so doing he breached Queensland law. The way the Plaintiff went about transferring the vehicle into his name, falsifying documents which he lodged with a government regulatory authority does him little credit. In most circumstances I would have a great deal of difficulty accepting his evidence. However, here his evidence is corroborated by the evidence of other witnesses and by available documentary evidence including email exchanges with the Defendant in February and March of this year. In those circumstances I am prepared to act on the Plaintiff’s evidence.

85 In submissions Mr. Clarke relied heavily upon an attack upon the Plaintiff’s credit. In so doing he was forced to rely heavily upon what the Plaintiff did in March this year to effect transfer of the vehicle into his name. Even if I accepted those arguments, if I accept (as I do) the evidence of Roe and Steyl as to what occurred on 26 November 2007 then the relevant parts of the Plaintiff’s evidence have been corroborated.

86 The Defendant is also an unsatisfactory witness. In giving her evidence she too chose to take an unresponsive swipe at the character of the Plaintiff every opportunity. That did her little credit. She was a witness who had a view of the facts that was divorced from reality. Her evidence on many issues flies in the face of facts proven by evidence independent of the Plaintiff. Her evidence explaining what she meant in the email exchange with the Plaintiff (which I have set out above) may best be described as sheer nonsense and I do not accept it. The evidence of the email exchange is telling upon the Defendant’s case and I am not surprised she had difficulty in giving a plausible explanation for it. The email exchange shows that at the various times of making it the Plaintiff did not regard the vehicle as belonging to the Defendant and she in turn made no mention of the Plaintiff having given her the vehicle on 26 November 2007. Had the vehicle indeed been a gift earlier made a reasonable person would have expected the Defendant to assert a claim of ownership in the email exchange. That is especially so if, as she claimed, she had taken legal advice.

87 I do not accept the Defendant’s evidence. In particular I do not accept her evidence as to what occurred at the dealer on 26 November 2007.

88 I make the following findings of fact:

(a) The Plaintiff ordered the vehicle in June 2007 in his name or in the name of

the trust and paid a deposit of $10,000 using money of the trust;

(b)	At the time that the Plaintiff ordered the vehicle he was not then reacquainted with the Defendant whom he met for a second time soon afterwards and commenced living with her in his home and elsewhere in July of 2007;
(c)	The Plaintiff attended upon the dealer in August and September 2007 and discussed the specifications of the vehicle with Roe;
(d)	The Plaintiff purchased a SL500 Mercedes sports car in September 2007 which was registered in his name and paid for from money from the trust;
(e)	From time to time the Plaintiff permitted the Defendant to drive the Mercedes SL500. The purchase and subsequent resale of the SL500 in April 2008 does not bear upon the question of ownership of the vehicle in dispute;
(f)	The Plaintiff took delivery of the vehicle at the dealer on 26 November 2007. The Defendant who was then pregnant was with the Plaintiff at the dealer on that date. Attempts were made by Roe and Steyl to register the vehicle in the name of the Plaintiff in the same way that six previous Mercedes type vehicles that had been purchased by the Plaintiff had been processed;
(g)	Attempts to register the vehicle in the name of the Plaintiff failed because he was then unable to provide identification acceptable to Queensland Transport;
(h)	The Plaintiff asked the Defendant if she would allow the vehicle to be registered in her name to which she agreed;

(i)         There was no conversation between the Plaintiff and the Defendant at the dealer wherein the Plaintiff told the Defendant that he loved her and was giving her the vehicle and was registering it in her name;

(j)	Neither the Plaintiff nor the Defendant turned their respective minds to the question of which of them was registered as the proprietor of the vehicle until February or March of this year;
(k)	The vehicle remained registered in the name of the Defendant until on or about 30 March 2009 when the Plaintiff effected a transfer of the registration of it into his name. In the meantime the Plaintiff renewed the registration of the vehicle in the Defendant’s name on or about 27 November 2008;
(l)	From the time the vehicle was delivered on 26 November 2007 each of the parties drove the vehicle from time to time as they did other vehicles owned by the Plaintiff;
(m)	On 27 November 2007 the Plaintiff also signed a contract and paid a deposit for the delivery by the dealer to him of a SL63 Mercedes vehicle. The model of vehicle in that contract was later changed to a C63 model which was in fact delivered to the Plaintiff and registered in his name in July 2008. The purchase and delivery of that vehicle does not bear upon ownership of the vehicle in dispute;
(n)	In email exchanges between the Plaintiff and the Defendant in February and March of this year the Plaintiff loaned the vehicle to the Defendant and she has had possession of it since then. The Defendant made statements in the emails in language inconsistent with the rights of ownership which she asserts in this Court. The terms of the lending of the vehicle are contained in the emails exchanged.
(o)	The vehicle is owned by the Plaintiff and not by the Defendant;
(p)	The Plaintiff has requested the return of the vehicle and the Defendant has refused to return it.

89 It follows that I find in favour of the Plaintiff. The Formal orders of the Court will be:

(a)	Judgment for the Plaintiff on the Claim;
(b)	On or before 6.00pm this day the Defendant deliver up to the Plaintiff at his premises at 23A Marne St South Yarra Victoria the Mercedes ML63 Four Wheel Drive motor vehicle Queensland registered number 270 KMS;
(c)	The Defence and Counterclaim are dismissed;
(d)	I order that the Defendant and legal practitioners retained by her return to the Plaintiff’s solicitors copies of all documents discovered by the Plaintiff to the Defendant pursuant to my order of 27 July 2009.

90 I will hear the parties on the question of costs.