Byatt and Byatt
[2008] FMCAfam 250
•1 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BYATT & BYATT | [2008] FMCAfam 250 |
| FAMILY LAW – Contravention – coin collection – whether delivered up. |
| Federal Magistrates Court Rules 2001 (Cth), r.16.02 |
| Abbott GJ & Nairn NB (Eds), Economic Growth in Australia 1788-1821 (Melbourne: Melbourne University Press, 1969) Ludowyk F, “Brass razoo: Is it but a breath of wind?” MacDonald G, Australian Coins and Banknotes (7th Ed.) (Lavington : Greg MacDonald Publishing, 2000) |
| Applicant: | MR BYATT |
| Respondent: | MS BYATT |
| File Number: | LEC 226 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 19 September 2007 |
| Date of Last Submission: | 19 September 2007 |
| Delivered at: | Sydney (by Scarlett FM by telephone) |
| Delivered on: | 1 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Fahey |
| Solicitors for the Applicant: | Foot, Law & Co |
| Counsel for the Respondent: | Mr S L Kissie |
| Solicitors for the Respondent: | Thompson Wheelahan & Hampshire |
ORDER
That that part of the application which alleges that the respondent without reasonable excuse failed to deliver the entire coin collection to the applicant’s solicitors be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Byatt & Byatt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT COFFS HARBOUR |
LEC 226 of 2007
| MR BYATT |
Applicant
And
| MS BYATT |
Respondent
REASONS FOR JUDGMENT
Introduction
A coin known as the 1813 Colonial Holey Dump[1] is central to the outcome of this case. The 1813 Dump, and its even more illustrious counterpart, the 1813 Colonial Holey Dollar[2] were the first locally struck coins in the colony of New South Wales, and are highly prized possessions of coin collectors, with less than three hundred 1813 Dollars and about a thousand 1813 Dumps known to exist.[3]
[1] “1813 Dump”.
[2] “1813 Dollar”.
[3] G. MacDonald, Australian Coins and Banknotes (7th Ed.) (Lavington : Greg MacDonald Publishing 2000) at p.24 (“Australian Coins and Banknotes”). Australian Coins and Banknotes is exhibit A1 in the proceedings, having been tendered as an exhibit because of certain markings included in it by the Applicant. See also: (“Perth Mint”).
The significance of the 1813 Dump and 1813 Dollar lies in the history of currency in the early years of the colony of New South Wales. A brief overview is necessary.
Prior to 1812 rum was the primary currency of, and method of payment in, the young colony of New South Wales.[4] Coinage in circulation in the colony was, as often as not, taken out of the colony by visiting traders. Governor Lachlan Macquarie endeavoured to resolve the coinage crisis by commandeering 40,000 Spanish dollars which arrived in the colony in 1812.[5] The Spanish dollar was traded internationally at that time, and had a value of roughly four shillings and nine pence to five shillings. Governor Macquarie had the Spanish dollars punched by the convicted forger William Henshall: producing an outer ring (the 1813 Dollar) and inner plug (the 1813 Dump).[6]
[4] Australian Coins and Banknotes at p.24; HV Evatt, Rum Rebellion (Sydney: Angus & Robertson, 1975) Ch IV and XIV-XVI; Crowley FK “The Foundation Years, 1788-1821” Ch 1 in Greenwood G (Ed), Australia. A Social and Political History (Sydney: Angus & Robertson, 1955) at p.31: wages were paid in rum “[b]ecause much could be achieved by a little rum, it reached a high value”.
[5] Australian Coins and Banknotes at p.24; MJE Steven “The Changing Pattern of Commerce” Ch 10 and “Exports other than Wool” Ch 15 in Abbott GJ & Nairn NB (Eds), Economic Growth in Australia 1788-1821 (Melbourne: Melbourne University Press, 1969) at pp. 182 and 301-302; Perth Mint.
[6] Australian Coins and Banknotes at p.24; Perth Mint.
The obverse of the 1813 Dollar was stamped on the inner ring “New South Wales 1813”, and the reverse “Five Shillings”. The obverse of the 1813 Dump was stamped on the outer edge with “New South Wales 1813” and a crown in the centre, while the reverse was centrally stamped “Fifteen Pence”.[7]
[7] See the pictures of the 1813 Dollar and 1813 Dump in Australian Coins and Banknotes at p.24.
Governor Macquarie’s combined valuation of the 1813 Dollar and 1813 Dump at six shillings and three pence, which was more than the value of its silver content, made it unattractive to traders to remove the 1813 Dollar and 1813 Dump from the colony as they would be instantly devalued.[8]
[8] Australian Coins and Banknotes at p.24.
The 1813 Dollar and 1813 Dump were demonetised and recalled in 1829: those returned were melted down.[9]
[9] Australian Coins and Banknotes at p.24; Perth Mint.
On the evidence before the Court it appears that today an 1813 Dump of the most common type[10] in average condition has a catalogue value of around $20,000, and in better than average condition has a catalogue value of up to $50,000.[11]
[10] There are several different types of 1813 Dump as several different dies were used when striking the coins: Affidavit of Mr Byatt, sworn 11 September 2007, Annexure C (“Applicant’s 11 September 2007 Affidavit”). Annexure C is a letter dated 5 September 2007 from a Rare Coin Specialist.
[11] Affidavit of Mr Byatt, sworn 11 September 2007, Annexure C (“Applicant’s 11 September 2007 Affidavit”).
The application
The Court is dealing with that part of a contravention application relating to an alleged coin collection of the Applicant Husband, and which alleges that on 9 February 2007 the Respondent Wife, without reasonable excuse, “failed to deliver the entire coin collection” to the Applicant Husband’s solicitors.[12]
[12] Contravention Application, 5 April 2007.
Order
Delivery up of the entire coin collection[13] to the Applicant Husband’s solicitors was ordered by consent by this Court on 28 September 2006.[14]
[13] “Collection”.
[14] Order 24 of Orders of Jarrett FM, 28 September 2006 (“Order”).
The coins making up the Collection were not listed in the Order, and no date for delivery up was specified.[15]
[15] In the absence of a specified date of effect, an order takes effect on the date when it is given or made : Federal Magistrates Court Rules, 2001 (Cth) r.16.02.
Applicant Husband’s Evidence
On 25 October 2006 the Applicant Husband’s solicitors wrote to the Respondent Wife’s solicitors claiming that not all of the coins had been delivered up by the Respondent Wife.[16] Seemingly, the Respondent Wife had delivered up a box of coins to the Applicant Husband’s solicitors together with a list of those coins,[17] some time earlier.[18]
[16] Applicant Husband’s Affidavit sworn 27 March 2007, (“Applicant Husband’s 27 March 2007 Affidavit”) Annexure B, being a letter from the Applicant Husband’s solicitors to the Respondent Wife’s solicitors dated 25 October 2006 (“25 October 2006 Letter”).
[17] “Wife’s October 2006 List”.
[18] A copy of the Wife’s October 2006 List is attached to the 25 October 2006 Letter.
The 25 October 2006 Letter says that a “larger box” which was “full of coins” had not been delivered up.[19] It is relevant to note that the boxes referred to were, it appears, toolboxes.
[19] 25 October 2006 Letter, p.1.
The 25 October 2006 Letter sets out the coins said not to have been delivered up by the Respondent Wife. They are:
“(1) Novelty Coins -
(i)Grundy’s.
(ii)Telstra Tower.
(iii)Centre Point.
(iv)Australia Square.
(v)Circular Quay Ferries.
(2)Overseas coins and notes from New Zealand and America – approximate value $700.00.
(3) New Guinea and English coins and notes.
(4) 1 Brass razoo.
(5) 1 set x 2up coins with tosser.
(6) 2 sets Moscow Olympic coins.
(7) 9 Crowns.
(8) A number of half Crowns.
(9) 8 Florins.
(10) 46 Shillings.
(11) 43 Sixpences.
(12) 41 Threepences.
(13) 82 Half pennies.
(14) 142 Pennies.
(15) 1 x 1813 Dump.
(16) 34 $1.00 notes.
(17) A number of $2.00 notes.
(18) 19 Round Captain Cook 50c pieces.
(19) 2,786 Octagonal 50c pieces.
(20) 35 Round New Zealand 50c pieces.”
The 25 October 2006 Letter goes on to point out that:
a)the 1813 Dump “is conservatively estimated around $25,000 to $30,000”;[20] and
b)failure to deliver up the coins will be considered a breach of the Order.[21]
[20] 25 October 2006 Letter, p.2.
[21] 25 October 2006 Letter, p.2.
[22] Applicant Husband’s 27 March 2007 Affidavit, Annexure B (“1 November 2006 Letter”).
The Respondent Wife’s solicitors replied, with some vigour, on
1 November 2006[22]advising that:
a)all coins had been delivered up;
b)the coins were in the smaller of the two boxes;
c)a second box had:
(i) its locks broken by the police;
(ii) it contained ammunition; and
(iii)its contents removed by the police;
d)the Respondent Wife still had the second box, but it was empty and it contained no coins, and she had no idea if that box contained coins at the time it was opened by the police as she was not present when they opened it; and
e)suggested a joint audit of the coins delivered up.[23]
[23] 1 November 2006 Letter, p.1.
On 19 December 2006 the Applicant Husband’s solicitors wrote to the Respondent Wife’s solicitors:[24]
[24] Applicant Husband’s 27 March 2007 Affidavit, Annexure B (“19 December 2006 Letter”).
a)seeking the key to the box in which the coins earlier delivered up were stored;[25]
b)enclosing a List of Coins[26] the Applicant Husband said he had prior to separation;[27]
c)stating that a large number of coins “are missing as per the attached list”;[28] and
d)that advice to the Applicant Husband indicated that:
i)in the week commencing 20 November 2006 the Respondent Wife had delivered six boxes of shotgun pellets to the police in G;
ii)the Respondent Wife had advised [persons named] on
8 November 2006 that the boxes had been taken by the police with firearms after [person named] requested that they be picked up; andiii)on 10 February 2006 a valuer listed only three boxes, that list being made after police retrieved “the firearms” in December 2005.
[25] 19 December 2006 Letter, p.1.
[26] “Husband’s 19 December 2006 List”. This List, although headed List of Coins actually refers to both coins and banknotes.
[27] 19 December 2006 Letter, p.1.
[28] 19 December 2006 Letter, p.2.
The 19 December 2006 Letter went on to give the Respondent Wife notice that unless the Applicant Husband was provided with:
a)a key to allow inspection of the coins in the box provided by the Respondent Wife; and
b)all other coins in the list provided by the Applicant Husband,
then the Applicant Husband would bring proceedings for contravention of the Order, and to set aside the Order.[29]
[29] 19 December 2006 Letter, p.2.
The Applicant Husband’s 19 December 2006 List lists the coins and banknotes in categories, for example, Crown, Half Crown and $2.00 note, and against each category lists:
a)the number that there should be;
b)the number on the Respondent Wife’s October List;
c)the number missing; and
d)the average price depending on year.
The Court notes that the Applicant Husband’s 19 December 2006 List under the heading “Number that there should be” has:
a)a number of categories for which the number is said to be “Unsure”;[30]
b)a number of categories where the number is below 10;[31]
c)two categories ascribed a monetary value;[32] and
d)a number of categories where the number is greater than 10, but in each case an exact multiple of 10, a 100 or 1000.[33]
[30] Those categories are Half Crown, New Guinea Coins, English Coins and Notes, Grundy’s, Telstra Tower, Centre Point, Australia Square, Circular Quay Ferries.
[31] These categories are, together with the number specified, as follows: 1813 Dump (1); Brass Razoo (1 set); 2 Up Coins with Tosser (1 set); Moscow Olympic Coins (2 sets); Display Sheets of Coins (7 sets).
[32] The two categories and their value are: Coins and Notes from America - $500.00; Coins and Notes from New Zealand - $200.00.
[33] Those categories and the numbers are: Crown (10); Florin (10); Shilling (50); Sixpence (50); Threepence (60); Halfpennies (100); Pennies (200); $1.00 note (50); $2 note (30); 50c round Captain Cook (20); 50c Octagonal (3,000); 50c Round New Zealand (40).
No joint inspection or audit of the coins delivered up by the Respondent Wife ever took place.[34] The Applicant Husband did ultimately inspect the coins delivered up by the Respondent Wife at his solicitor’s office.[35]
[34] Applicant Husband’s 11 September 2007 Affidavit, at paras. 5-6.
[35] Applicant Husband’s 11 September 2007 Affidavit, at para. 8.
On 26 April 2007 the Respondent Wife’s solicitors wrote to the Applicant Husband’s solicitors[36] advising that:
a)at the Applicant Husband’s suggestion a search of the linen press (in the former matrimonial home)[37] had been conducted, and that “several coins were found there including the “Holy Dollar Dump”;[38] and
b)a further floor to ceiling search was conducted of the remainder of the Home, and “a significant number of coins were located including coins that do not appear” in the 19 December 2006 List.[39]
[36] Applicant Husband’s 11 September 2007 Affidavit, Annexure A (“26 April 2007 Letter”)..
[37] “Home”.
[38] 26 April 2007 Letter, para 3.
[39] 26 April 2007 Letter, para 4.
The Respondent Wife subsequently produced a number of other coins, including a Commemorative Holy Dollar Dump.[40]
[40] Applicant Husband’s 11 September 2007 Affidavit, at para. 3.
The Respondent Wife’s solicitors invited the Applicant Husband’s solicitors and the Applicant Husband to inspect the further coins.[41]
[41] 26 April 2007 Letter, para 5.
The Commemorative Holy Dollar Dump, the existence of which there appears to be no dispute about, is not listed as such in the Australian Coins and Banknotes List. However, Australian Coins and Banknotes lists a “Colonial Dump” which is a replica of the 1813 Dump and which was issued in Sydney in 1993 in limited numbers.[42] This Colonial Dump has not been marked by the Applicant Husband as a coin that he has in the Collection and it is not therefore part of the Australian Coins and Banknotes List.
[42] Australian Coins and Banknotes at p.204.
At some later stage the Applicant Husband and his solicitors attended the Respondent Wife’s solicitor’s office to inspect the further coins.[43] Following that inspection the 2 May 2007 Letter was sent to the Respondent Wife’s solicitors requesting production of:
a)the 1813 Dump; and
b)all photos of the coins (those photos alleged to have been kept in a cupboard near the front door of the Home).[44]
[43] Applicant Husband’s 11 September 2007 Affidavit, Annexure A, being a letter of 2 May 2007 (“2 May 2007 Letter”).
[44] 2 May 2007 Letter, paras 2 and 3.
A number of pertinent facts and issues arise from the Applicant Husband’s oral evidence. They include:
a)the Applicant Husband has not seen the coin collection since about February 2005;
b)the Applicant Husband’s 19 December 2006 List was compiled from memory, based on a “rough idea” of the coins in the collection;
c)the Applicant Husband says that in late 2000 or early 2001 he marked off the number of coins and banknotes he had against the corresponding entry for the coins and banknotes in Australian Coins and Banknotes;
d)the Applicant Husband photographed the coins (but not seemingly the banknotes), he said for insurance purposes, following a break in at the Home in 1997, but:
i)there is a dispute as to the type of photos taken;
ii)he has never seen the photographs that he took; and
iii)that photos taken and tendered in evidence do not appear to be of a collection as extensive as that alleged by the Applicant Husband, and whilst some coins and banknotes are readily or generally identifiable, many are impossible to identify;[45]
[45] They are Exhibit R2.
e)the Husband effectively conceded that the photos tendered in evidence could in fact have been taken as early as 1998 or April 1999, but said that the coins in those photos constituted only a part of the Collection;
f)that in December 2005 the Applicant Husband had completed a Form 13 Financial Statement in which he had valued jointly held household assets specified as “Trailer, tools, sporting gear, jewellery, collectibles” at $40,000.00 (with his 50% share valued at $20,000.00), [46] and which did not make any specific reference to the Collection or any coin within the Collection;
[46] Applicant Husband’s Financial Statement sworn 9 November 2005, Part Item 43 (“Applicant Husband’s Financial Statement”).
g)The Applicant Husband attributed the following values to the following items:
i)a box trailer valued at $500.00 - $1,000.00;
ii)tools valued at $20,000.00;
iii)sporting gear valued at around $5,000.00;
iv)jewellery valued at $5,000.00 - $10,000.00,
which, if the sworn Applicant Husband’s Financial Statement was correct, values the Collection, on the best case for the Applicant Husband, at a maximum of $9,500.00 (assuming that it is the only “collectible”);
h)the coin collection, and in particular the 1813 Dump, was not specified as a valuable item on any relevant insurance policy;
i)the Applicant Husband says that he discovered he had the 1813 Dump in 2000 after a visit to the Royal Australian Mint in Canberra and has thereafter kept it in a locked box, but also identifies in his affidavit material a commemorative type case which he says held the 1813 Dump;[47]
[47] Applicant Husband’s 11 September 2007 Affidavit, Annexure D.
j)the 1813 Dump had not been taken to a coin valuer for valuation;
k)no one other than the Applicant Husband’s parents had allegedly seen the 1813 Dump;
l)the Applicant Husband:
i)accurately described the 1813 Dump as about the size of a five cent piece, with 15 pence, a little crown and 1813 stamped on it;
ii)inaccurately said that:
(i)there was a “portrait” of “King George or King Edward or something” on the 1813 Dump;
(ii)it was an Australian coin;
(iii) the 1813 Dollar had Australia written on it;
(iv)that just 15 pence and a crown appeared on the 1813 Dump;
l)he had 3000 “octagonal” 50 cent pieces just “thrown…loose” in the “bottom” of a toolbox;
m)that the Applicant Husband claimed to have put the pencil marks indicating the number of coins and banknotes he held in his copy of Australian Coins and Banknotes, but that the book had only come back in to his possession in the 6 to 8 weeks prior to the hearing commencing on 19 September 2007, and although he had not seen the coins since February 2005, he prepared the 19 December 2006 List based on “an average” of the coins that should have been there, which must have been prepared from memory as he did not have a list of the coins other than that contained in Australian Coins and Banknotes;
n)the Applicant Husband said that he found the 1813 Dump at the back of a shopping centre in South G when he was 9 or 10 years old, that he was with some “mates” and that they started to find coins and went around picking up coins;
m)the Applicant Husband was keeping the coins to be part of the estate for his children;
n)the Applicant Husband says that the photos of the coins that he says were taken for insurance purposes were kept in a cupboard at the front door of the Home; and
o)denied that:
i)the 1813 Dump did not in fact exist in his collection; and
ii)the extent of his coin collection was that photographed and appearing in Exhibit R2.
Applicant Husband’s father’s evidence
The Applicant Husband’s father gave evidence that he had seen the 1813 Dump amongst a “heap of other coins” at a family barbeque and that he was not “100 percent interested” at that time but that from paperwork he had seen since (and in particular the Applicant Husband’s affidavits in these proceedings, which he had read) the 1813 Dump was the coin in question.
The Applicant Husband’s father also said that his son had originally thought that he had an 1813 Dollar and it was not until the son checked his coins against photos he took at the Royal Australian Mint (which are not in evidence) that he realised that he had an 1813 Dump, then valued at $5,000.00, and a number of other coins valued at between $200.00 and $3,000.00.[48]
[48] It is seems clear that the valuations attributed to the coins in the Collection (leaving aside the 1813 Dump) by the Applicant Husband are significantly overstated throughout and are based on coins in uncirculated, gem or proof condition. From the photos in Exhibit R2, and given that the majority of the coins have been kept loose in a box (or bags – see Exhibit R2), the non-commemorative and non-novelty coins do not appear and are unlikely to be in uncirculated, gem or proof condition, and are more likely to be in one of the lower grades of condition, and therefore only worth a fraction (1-5%) of the estimates given by the Applicant Husband. It was possible (in 2000) to buy a complete set of Australian pre-decimal coins from halfpennies to florins (with about ten of the rarest coins excluded) for less than a $1000: Australian Coins and Banknotes at pp.43-44. An example is the badly marked 1911 Australian penny in exhibit R2 – its value might vary from $1.00 (in the worst condition) to $12,250.00 (in proof condition): Australian Coins and Banknotes at p.48.
Under cross-examination the Applicant Husband’s father said that he had prepared his affidavit independently of the Applicant Husband’s mother’s affidavit. Both affidavits, formal parts excluded, are identical, word for word.
Applicant Husband’s mother’s evidence
The Applicant Husband’s mother gave evidence that:
a)she and her son found the Australian Coins and Banknotes book (containing the Australian Coins and Banknotes List) towards the “tail end” of 2006 in a box of books sent over to the Applicant Husband from the Respondent’s Mother;
b)the Applicant Husband told his mother after he had returned from a holiday in Canberra that he had the “middle part” of the 1813 Dollar;
c)said that she had discussed with her son when she had given him the tablecloth protector appearing in the photos of the coins, and although she acknowledges that it could be the one she gave the Respondent Mother, she disputed the date at which the Respondent Mother had been given the tablecloth protector; and
d)the Applicant Husband’s mother said that the 1813 Dump was the size of a threepence – “like a one cent coin” – and the colour of a one cent coin.
Respondent Mother’s evidence
The Respondent Mother said that:
a)during the marriage she was not aware of, and did not recall ever seeing, the 1813 Dump;
b)the nine photos constituting Exhibit R2 were the photos of the Collection that existed; and
c)the photos constituting Exhibit R2 were located in the cabinet at the front door of the Home, where the Applicant Husband says that he had stored the photos of the Collection;
d)she had searched the Home and found no other photos of coins;
e)says that subsequent to the delivery up of the coins in the toolbox she undertook a search of the Home and found coins in a little safe in the hallway, in towels and sheets in cupboards, above wardrobes, and generally “all over the place”;
f)the tablecloth protector appearing in Exhibit R3 is the only tablecloth protector she has ever had and was given to her by the Applicant Husband’s mother, and those photos were taken on or around October 1996, whilst the photos constituting Exhibit R4, in which the same tablecloth protector appears, were taken in April 1999 at the birthday party of one of the children;
g)that she arranged insurance of the household contents after discussion with the Applicant Husband, and at no time did he raise the question of insuring the coins, either as a collection or in relation to individual coins;
h)denies having withheld any coins, or having otherwise dealt with any coins other than those delivered to the solicitor for the Applicant Husband, and said she would be quite happy for the Collection to be held on trust for the children of the marriage;
i)that the coins which were initially delivered up by her were not found by her, but by a policeman (who had come to the Home to collect guns and ammunition), and at that time she did not inspect the coins, but simply put them into the cabinet (presumably the cabinet at the front door);
j)she prepared an inventory (the Wife’s October 2006 List) later when she opened up the box, and did so on the basis that it would take hours, and presumably considerable expense, to have it done by a solicitor;
k)denied that she had tried to prevent or hinder an inspection of the Home by the Applicant Husband, saying that various dates had been exchanged which for a variety of reasons (the Applicant Husband’s working arrangements and school holidays being two examples) were unsuitable, but said that she wanted to be present during the inspection as the Home was her house;
l)agreed that she went overseas to Disneyland in 2001, but did so on the basis of a “special” advertised in a Sydney paper;
m)said that she got a part time job to fund the Disneyland trip;
n)recalls the family visit to the Royal Australian Mint in Canberra in 2000 and says that she does not recall the Applicant Husband saying anything about there being valuable coins which he had in the Collection, but says that had it been said, she would have recalled it because she would have sought the money for house extensions;
o)she did not recall the Applicant Husband taking any photos of the coins in the Collection with a copy of The Daily Examiner (a local regional paper) in the photos (as was alleged by the Applicant Husband);
p)she did not think that the Applicant Husband was that interested in coin collecting, but that he just bought “little sets of things”;
q)there was only one box of coins ever found by her;
r)the Police took away another box which she understood was full of ammunition;
s)says that she delivered up the commemorative case in which the Applicant Husband says the 1813 Dump was stored;
t)says that the Applicant Husband used to throw coins in the wardrobe or the side drawer and had been doing it for years;
u)that the box of books (in which Australian Coins and Banknotes was subsequently found) was sent over to the Applicant Husband in about June 2005, a couple of months after he left the Home; and
v)that she did not think to look in the safe earlier because the coins which were alleged to be missing were said to be 3000 coins in a box, but after it was clarified, and in particular that the 1813 Dump (amongst other coins) was being sought, she searched the entire house and all the sheds and the safe and delivered up the further coins then found to the Applicant Husband’s solicitor.
Issues
In order to determine whether the “entire” Collection has been delivered up the Court must make findings as to:
a)whether there is a Collection;
b)if there is a Collection, the size and nature of that Collection;
c)if there is a Collection, whether the “entire” Collection was delivered up;
d)whether the “entire” Collection was able to be delivered up.
Was there a Collection?
There is no dispute that the Applicant Husband had a Collection. The real issue is the size and nature of that Collection.
The size and nature of the coin collection
Before dealing with the size and nature of the Collection a few general observations are necessary.
The Applicant Husband has a Collection. For example, Exhibit R2 reveals, set out on a tablecloth protector:
a)loose coins from different countries, of different denominations and in different condition (some, for example, appear to be badly tarnished or even burnt);
b)coins in bags;
c)miscellaneous boxed commemorative or novelty sets of coins; and
d)a few Australian banknotes (of one, two, five and ten dollar denominations) set out, together with another unidentified and unidentifiable banknote or banknotes.
The evidence establishes that the coins were not stored or catalogued in any systematic way, and that they do not appear to have been graded.[49] Rather the collection was scattered – with coins loose in a toolbox or toolboxes, and in various places in and about the Home.
[49] As to the importance of grading coins (and banknotes), particularly for the purposes of valuation, see Australian Coins and Banknotes at pp.6 and 9 and especially pp.12-15. See also footnote 49 above.
As the Court observed in the course of the hearing the Applicant Husband is not a sophisticated collector. On reflection he is probably not even a typical collector. Rather, he is a collector by random accumulation[50] of:
a)some old coins that he seems to have picked up by the way throughout his life;
b)some modern coins and banknotes, and in particular fifty cent pieces that he threw loose into a toolbox (or wardrobe or cupboard) as he saw fit; and
c)commemorative and novelty sets ordered from time to time.
[50] This appears to be an accepted term amongst coin collectors as “accumulation” is defined in Australian Coins and Banknotes at p.17 as “Coins, banknotes or other numismatic items which are unclassified, unsorted and unattributed; in other words, not a pre-planned or organised collection.”
Those few general observations make it apparent that it will be difficult to ascertain the size and nature of the Collection, unless the Court can be satisfied that there exists a list of the coins in the Collection which is accurate, or very substantially so.
There are a number of lists of coins about which evidence has been given, including:
a)the Australian Coins and Banknotes List;
b)the Wife’s October 2006 List;
c)the Husband’s 19 December 2006 List.
The Australian Coins and Banknotes List is said to have been prepared in late 2000 or early 2001 by the Applicant Husband marking off the number of coins and banknotes he had in his collection against the corresponding entry in Australian Coins and Banknotes.
The Applicant Husband prepared the Husband’s 19 December 2006 List based on “an average” and from memory. It is therefore inherently unlikely to be reliable, given the number and nature of the items (coins and banknotes) under consideration. That much is evident from the rounding off of various categories to tens, hundreds or thousands of items. The 19 December 2006 List is certainly markedly different to the Australian Coins and Banknotes List. Those marked differences, as to the numbers of coins and banknotes, are both overestimations and underestimations of up to 150 per cent of the number of coins said to be in the Collection when comparing the 19 December 2006 List to the Australian Coins and Banknotes List.
The Wife’s October 2006 List is again markedly different to both the Australian Coins and Banknotes List and the Husband’s 19 December 2006 List. There is no dispute that the Wife’s October 2006 List is an accurate record of what was returned to the Applicant Husband’s solicitors in October 2006. There does not appear to be a record of the further coins and banknotes provided to the Applicant Husband’s solicitors by the Respondent Wife at a later date after December 2006.
The marked differences between the above three Lists can be seen in the following table showing a sample of the entries in the Lists for some of the more common Australian pre-decimal and fifty cent coins:
Type of coin
Australian Coins and Banknotes List
Husband’s 19 December 2006 List
Wife’s October 2006 List
Florin
15
10
2
Shilling
29
50
4
Sixpence
20
50
7
Threepence
47
60
9
Penny
214
200
58
Halfpenny
141
100
18
Fifty Cent Octagonal
288
3000
214
Fifty Cent Round (Captain Cook)
10
20
1
The differences between the Wife’s October 2006 List and the Australian Coins and Banknotes List might be reduced somewhat by the further coins and banknotes provided to the Applicant Husband’s solicitors by the Respondent Wife after December 2006. However, in the absence of a list it is impossible to conclude to what degree the difference has been reduced.
The Husband’s 19 December 2006 List must be rejected as indicative of the size and nature of the Collection. It is, at best, an approximation; at worst, it is an entirely speculative account of the Collection he had not seen since February 2005. Further, the assertion in the
19 December 2006 Letter that the remainder of the approximated number of coins were “missing” and that this application will be brought if they are not provided to the Applicant Husband must affect the credibility of the Applicant Husband to whom it must have been apparent that the Respondent Wife could not comply because that list was, at best, an approximation. As the Applicant Husband said, he only had a “rough idea” of the number of coins in the Collection, and for some categories in the List he was “unsure” how many coins there were.
The Court is likewise not persuaded that the Australian Coins and Banknotes List is an accurate list of the size and nature of the Collection. It does not include:
a)all of the foreign coins and banknotes said to be part of the collection;
b)any post 2000 coins or banknotes of any type;
c)novelty coins or items (such the so-called brass razoo[51] and the two-up coins and tosser); and
d)any reference to the Holey Dollar Commemorative Dump referred to by the Respondent Wife as having been returned as part of the further coins and banknotes provided to the Applicant Husband’s solicitors by the Respondent Wife after December 2006.
[51] The nature and existence of a “brass razoo” has long been debated and doubted: see Ludowyk F, “Brass razoo: Is it but a breath of wind?” >
Furthermore, given the means of storage of the coins it would in the Court’s view have been inherently difficult to make an accurate list in 2000, 2001 or at any later time. On the evidence some of the coins were in a toolbox or toolboxes. Others were scattered in and about the Home in various hiding places such that the Respondent Wife had to undertake a systematic search of the Home and various surrounding sheds in order to provide the further coins and banknotes provided to the Applicant Husband’s solicitors by the Respondent Wife on after December 2006.
The Court heard evidence that the Australian Coins and Banknotes List was made at the time the Applicant Husband said it was made. He said this List was made in late 2000 or early 2001 after the return of the family from a holiday to Canberra during which they visited the Royal Australian Mint. The Applicant Husband was challenged on this issue and denied that he had made the List later. The photographs said by the Applicant Husband to have been taken of the entire Collection (but which he has never seen) are not in evidence, and the best photographic record are the nine very amateur and unsatisfactory photographs constituting Exhibit R2.
In the Court’s view the Australian Coins and Banknotes List was not, at least in significant part, made later, and in particular it was not made in the latter months of 2006. If it had been it would have been unnecessary for the Applicant Husband to make the 19 December 2006 List which is so significantly at odds with the Australian Coins and Banknotes List.
The Court considers that much, and possibly most, of the Australian Coins and Banknotes List might have been accurate at the time the Applicant Husband made it in late 2000 or early 2001, but only as to the Australian coins and banknotes to which it refers, and subject particularly to what is said below concerning the 1813 Dump. However, the size and nature of the Collection available to the Respondent Wife to deliver up might by the latter half of 2006 have changed, for reasons explained below.
It is therefore not possible to reach a definite conclusion about the size and nature of the Collection. Suffice to say however that for reasons explained below the Court is satisfied that the Respondent Wife has delivered up so much of the Collection that she knew of and has had in her possession in or about the Home.
As indicated at the outset the 1813 Dump is central to the outcome of this case.
The Applicant Husband said that he found the 1813 Dump on a G building site as a boy of nine or ten years old. The Applicant Husband’s age is not in evidence in the proceedings, but as his oldest child is now almost seventeen it is not unreasonable to assume that the alleged finding of the 1813 Dump was at least twenty-five years ago, and possibly more. As a stand alone story the finding of the 1813 Dump is plausible enough. However, difficulties then arise. The 1813 Dump disappears from view until 2000. The boy does not mention it to his parents. The man does not mention it to his wife. The Respondent Wife says that even after the visit to the Royal Australian Mint in 2000 the existence of the 1813 Dump was not mentioned to her. Although the Applicant Husband’s mother says it was mentioned in front of and commented upon by the Respondent Mother at a family barbeque in or about 2000, she says that in an affidavit filed on 5 September 2007, almost five months after the Respondent Mother’s affidavit saying it was not raised in her presence was filed, and in circumstances where the Applicant Husband’s parents have discussed certain aspects of the Applicant Husband’s evidence and their own evidence with each other in preparation for the hearing. That affects their credibility, and the weight to be given to their evidence. In these circumstances the Respondent Mother’s version of events is to be preferred. After the “discovery” of the 1813 Dump in late 2000 there then follows the most inexplicable conduct for the father of a family not in financially commodious circumstances.[52] This very valuable coin is not:
a)taken to a coin dealer to be properly identified;
b)professionally valued;
c)securely stored; or
d)insured.
[52] Applicant Husband’s Financial Statement.
The failure to securely store or insure is even more remarkable when:
a)it is said by the Applicant Husband that the entire Collection was photographed for insurance purposes following a 1997 break-in at the Home; and
b)on the Applicant Husband’s account he knew in 2000 that the 1813 Dump was worth at least $5,000.00, and he now says it is worth a minimum of $20,000.00 and possibly as much as $50,000.00.
Moreover, the 1813 Dump is not mentioned in the Applicant Husband’s Financial Statement which values the entire Collection at under $10,000.00 (on the most generous interpretation for the Applicant Husband). That means that either:
a)the 1813 Dump was not a part of the Collection, and that the Collection was worth much less than is now asserted (bearing in mind that the Applicant Husband’s assertion in these proceedings as to the Collection’s value is probably a gross overestimate for reasons set out above);[53] or
b)the Applicant Husband did not make full and frank disclosure at the time he swore the Applicant Husband’s Financial Statement.
The Court is inclined to the former view.
[53] See footnote 49 above.
The Applicant Husband’s description of the 1813 Dump casts further doubt on whether it is in the Collection. His description of it is in the following respects incorrect:
a)it does not carry a “portrait” of “King George or King Edward or something”;
b)it is not an Australian coin (but rather a New South Wales coin punched out of a Spanish coin);
c)it does not have “Australia” written on it; and
d)not only the words “FIFTEEN PENCE” and a crown appear on it, but also the words “NEW SOUTH WALES” and the date “1813”.
The misdescription by the Applicant Husband is so fundamental that it must cast doubt on the existence of the 1813 Dump in the Collection.
The description of the 1813 Dump by the Applicant Husband’s parents also lacks credibility. They have sworn affidavits which in material respects are identical, word for word. That further reduces the credibility of their evidence.
The Applicant Husband’s father’s description of the 1813 Dump, whilst accurate generally, was, he admitted, a consequence of reading his son’s affidavit material, for at the time he was shown what the Applicant Husband now alleges was the 1813 Dump it was amongst a “heap” of other coins and he was not totally interested.
The Applicant Husband’s mother’s description of the 1813 Dump, was not, in the Court’s view, entirely accurate: it cannot be like both a threepence and a one cent piece as they are fundamentally different coins as to size (both diameter and weight), colour and metallic content.[54] Furthermore, the 1813 Dump was a silver coin.[55]
[54] All threepences had a diameter of 16mm and a weight of 1.41 grams and were until 1944 composed of sterling silver (92.5% silver) and thereafter silver (50% silver), and were silver in colour: Australian Coins and Banknotes pp. 51-53. All one cent pieces had a diameter of 17.53mm and a weight of 2.59 grams and were composed of 97% copper, 2.5% zinc and 0.5% nickel and were essentially copper in colour: Australian Coins and Banknotes p. 73.
[55] Typically, the Spanish silver dollar from which the 1813 Dump was created was said to be 93.5% silver: However, under Spanish law over time the legally defined silver content varied from 93.055% (1497), to 91.666% (1728) and 90.27% (1772), while actual assay testing showed varying results including 92.5% and 91.666% (1626), 90.6255 to 92.5% (1703), 90.5% to 93.3% (1702 to 1717) and 90.6% (1765) and 90.2844% (1772): Sumner WG “The Spanish Dollar and the Colonial Shilling” (1898) American Historical Review 607 at pp.609, 611, 613-617 (“Sumner”). Thus, it was always a silver coin, and it “was universally taken for granted … in the [American] colonies that “Spanish plate” was on the sterling standard (.925)[or 92.5%]”: Sumner at p.614.
There is also confusion in the evidence of the Applicant Husband’s witnesses as to what coin the Applicant Husband actually said he had when he returned from the Canberra Mint Visit. At least initially it appears that the Applicant Husband appears to have thought that he had the much rarer 1813 Dollar.
Taken as a whole the evidence of the Applicant Husband’s witnesses has not satisfied the Court that any of them actually saw an 1813 Dump in the Collection at any stage.
The Court accepts the evidence of the Respondent Wife that at no stage did she see an 1813 Dump. There is no evidence to support the suggestion made during the hearing that she had somehow, at some stage (even possibly before separation), disposed of the 1813 Dump and otherwise utilised the funds (for example, on the Disneyland holiday). The Respondent Wife did not strike the Court as a person with the wherewithal to surreptitiously dispose of such a valuable coin. If it was not done surreptitiously then the Court can infer it would be easily traceable, and an event of some moment in coin collecting circles.[56]
[56] Perth Mint: “the NSW 1813 … Dump … [is] among the nation’s highest profile rarities.”
The Court has therefore come to the conclusion that the 1813 Dump was not part of the Collection.
Why then is there an entry against the 1813 Dump in Australian Coins and Banknotes? The Court’s view is that it is an error. Given that the Applicant Husband is an unsophisticated accumulator of coins the most likely explanation is that he has confused the Holey Dollar Commemorative Dump or Colonial Dump issued in 1993 with the 1813 Dump, a view supported by the fact that the Applicant Husband stored it in a commemorative type box. The Court considers it likely that the Applicant Husband had a commemorative replica of the 1813 Dump and not the 1813 Dump itself.
Whether the “entire” Collection was delivered up
On the basis of the evidence it appears to the Court that the Respondent Wife has delivered up that part of the Collection she has been able to find in or about the Home. The Respondent Wife appears to the Court to have been diligent in her searches, and once apprised of particulars of what was being sought delivered up further parts of the Collection found on further and thorough searches of the Home and its surrounds.
One reason why the Court considers that the Respondent Wife has delivered up what has been found is that the Wife’s October 2006 List (that is the List before further coins were delivered up after December 2006) includes coins which are potentially very valuable, and which would be unlikely to be returned if the Respondent Wife was seeking to pick off the best parts of the Collection. Two examples, of many, will suffice:
a)a 1920 Australian penny was returned: in all but the two worst grades of condition it is probably the most valuable Australian penny after the famous 1930 penny;[57] and
b)a 1931 Australian penny was returned: in any condition it is one of the ten most valuable Australian pennies.[58]
[57] Australian Coins and Banknotes at p.48.
[58] Australian Coins and Banknotes at pp.48-50.
There is no evidence to support any contention that the Respondent Wife otherwise disposed of any part of the Collection, or has it hidden somewhere pending the passing of these proceedings.
In the above circumstances the Court considers that the Respondent Wife has delivered up so much of the Collection as she been able to find in or about the Home.
Whether the “entire” Collection was able to be delivered up
It is apparent from the evidence that the Collection was scattered within the Home and various sheds or outbuildings adjacent to the Home. Notwithstanding the Court’s view that the Respondent Wife has diligently searched in and about the Home the Court cannot be satisfied that such searches as have been made will have necessarily found all that there is to be found thereabouts of the Collection. Individual coins thus far found appear in some cases to have been secreted in places odd and potentially difficult to access. Whatever might constitute the “entire” Collection it might be that there are bits of it (admittedly very small bits or individual coins) that are yet to be found. It is therefore the Court’s view that it is possible that it has not been possible for the Respondent Wife to deliver up the “entire” Collection.
Another reason the Respondent Wife cannot deliver up the Collection is that she cannot deliver up coins the number and existence of which the Applicant Husband is “unsure” about. How many coins are to be delivered up, and how could this Court ever conclude that the “entire” Collection had been delivered up when the Applicant Husband is not able to tell the Court how many coins are in some categories?
It would also appear that the Collection might have been accessed by third parties. The Applicant Husband points to evidence (the valuer’s letter) that suggests that there may have been three boxes (or toolboxes), of which only two have been found. There may therefore be an additional box missing, and for reasons expressed above the Court does not consider that the Respondent Wife has hidden or withheld such a box. Further, the Respondent Wife was not present when the boxes were opened by a third party looking for guns and ammunition. In those circumstances, and even if the Applicant Husband were able to satisfy the Court as to the size and nature of the Collection (which he cannot), the Court cannot be satisfied that the Respondent Wife was ever in a position to be able to deliver up the “entire” Collection because third parties may have had access to parts of the Collection.
Conclusion
The Applicant Husband has failed to establish:
a)the size and nature of the Collection; and
b)that the Respondent Wife has not delivered up so much of the Collection as she has had in her possession,
and cannot therefore establish that the Respondent Wife has not delivered up the entire Collection.
In the circumstances that part of the application which alleges that the Respondent Wife without reasonable excuse failed to deliver the entire coin collection to the Applicant Husband’s solicitors must be dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: Sandra Gough
Date: 1 April 2008
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0
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