Catherine Marie Smith as administrator of the estate of the late Keith Raymond Seaman v Seaman - [2015] WADC 67

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CATHERINE MARIE SMITH as administrator of the estate of the late KEITH RAYMOND SEAMAN -v- SEAMAN [2015] WADC 67

CORAM: PRINCIPAL REGISTRAR MELVILLE

HEARD: 27 JANUARY 2015 & 28 MAY 2015

DELIVERED : 18 JUNE 2015

FILE NO/S: CIV 3007 of 2013

BETWEEN: CATHERINE MARIE SMITH as administrator of the estate of the late KEITH RAYMOND SEAMAN
Plaintiff
AND
TREVOR RAYMOND SEAMAN
Defendant

Catchwords:

Natural justice - Assessment of damages

Legislation:

Civil Judgments Enforcement Act 2004
Family Provisions Act 1972
Rules of the Supreme Court 1971

Result:

Damages are assessed at $103,188

Representation:

Counsel:

Plaintiff: Ms C Holyoak-Roberts
Defendant: In Person

Solicitors:

Plaintiff: Leonard Cohen Legal
Defendant: Not applicable

Case(s) referred to in judgment(s):

Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Briginshaw v Briginshaw (1938) 60 CLR 336
Parker v Transfield Pty Ltd [2000] WASCA 382
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Rolland v Bank of Western Australia (unreported; FCt SCt of WA; Library No 980498; 3 September 1998

PRINCIPAL REGISTRAR MELVILLE:

Background

On 13 September 2013 the plaintiff commenced proceedings for damages caused by a fire on 11 September 2013 at the residence of the late Keith Raymond Seaman. The fire was caused by the defendant who was subsequently charged and on 20 January 2014 convicted of criminal offences in relation to the fire. He is currently imprisoned as a result thereof.
On 26 May 2014 the plaintiff obtained interlocutory judgment in default of the defendant's appearance to the writ and by a chamber summons dated 11 September 2014 applied for an assessment of damages.
The order sought was that 'damages be assessed at $80,000'. By an 'amended chamber summons for assessment of damages' dated 2 October 2014 the plaintiff sought a further order that 'the plaintiff's solicitors be entitled to pay the estate the sum of $80,000 from the funds held in trust on behalf of the defendant from his share of the estate of the deceased, the late Keith Raymond Seaman'. On 2 October 2014 the assessment of damages was listed for hearing on 11 November 2014.
On 15 October 2014 the court received correspondence from the defendant, including a letter dated 29 September 2014, in which he stated he had on 28 August 2014 been served with a copy of a default judgment made 26 May 2014. He said this was the first time that he had become aware of the default judgment and that he was not notified of any hearing of the matter on or around 26 May 2014. At this point I would observe this letter is also annexure TRS1 to one of his affidavits sworn 26 January 2015.
In a letter to the plaintiff's solicitors dated 2 September 2014, found in the affidavit of Raphael Kurganoff at Annexure RK22, the defendant made the point that the default judgement says damages are to be assessed. However, his comment as to the 'hearing' evidences a misconception held by the defendant as to the process associated with the plaintiff obtaining judgment in default of appearance. Default judgment was entered by way of an administrative act upon the plaintiff filing the judgment paper and an affidavit of service. No hearing had taken place. In this letter, the defendant also 'sought permission to apply for a re‑hearing of the matter'.
By letter dated 7 October 2014, also received by the court on 15 October 2014, the defendant acknowledged he had received a copy of the chamber summons for assessment of damages filed 18 September 2014, which summons had been given a return date for 2 October 2014.
In view of the above described correspondence from the defendant a directions hearing was convened on 7 November 2014 at which the defendant attended by video‑link. The special appointment for the assessment of damages was vacated and the matter adjourned to 2 December 2014 to give the defendant the opportunity to obtain legal advice.
On 2 December 2014 the defendant again attended by video‑link. There had been no application made to set aside default judgment. Various procedural orders were then made including orders requiring any application to set aside default judgment to be filed and served no later than 20 January 2015 and directing the defendant to include in any affidavit in support of the application to set aside default judgment the following:
(a)why a memorandum of appearance had not been filed;
(b)why an application to set aside the default judgment had not been earlier made; and
(c)why he said he was not liable to pay the judgment.
The plaintiff's application for assessment of damages was listed for 27 January 2015 with further orders being made that the assessment of damages proceed by affidavit unless ordered otherwise and that by no later than 20 January 2015 any party requiring any witness to be available for cross‑examination to advise the opposing party's solicitors.
As at 27 January 2015 the court had not received any application to set aside default judgment. The defendant by this time having had at least 20 weeks to apply to set aside the default judgment and not having done so, the assessment of damages proceeded. The assessment of damages also proceeded without any affidavit material from the defendant who having had some 16 weeks (calculated from the date of his letter dated 7 October 2014) to file any affidavit bearing on the assessment and some 7 ‑ 8 weeks from 2 December 2014, had not done so.
It is necessary to set out this history given the defendant's several comments that he was 'entitled to be heard'. I have interpreted this as a complaint he was being denied procedural fairness or natural justice.
Prior to the hearing of 2 December 2014 the defendant filed a document that purported to be an affidavit. However the document was unsworn and accordingly did not constitute evidence for the purpose of those proceedings. Nevertheless, the document was considered on the basis that the contents were in the nature of submissions. Regarded in that light, the essence of the defendant's submissions were that he had difficulty in obtaining legal advice, had difficulty being properly informed of the progress of the proceedings by the plaintiff's solicitors, challenged the expertise of Julie Cockerel, the deponent of an affidavit filed by the plaintiff in support of establishing the value of the property, challenged comments that he had intentionally and maliciously caused damage to the property and challenged other aspects of the application for letters of administration, including how assets of the estate had been dispersed, whether the assets of the estate should include shares owned by the deceased and raising other facts that might be relevant to an application under the Family Provision Act 1972.

Procedural fairness and natural justice

A party to litigation is required, as a matter of natural justice, to be given a reasonable opportunity to present his case. This includes a reasonable opportunity to investigate the allegations that are being made against him, to present his case, to challenge his opponents case and generally to be given a reasonable opportunity to be heard. To be heard is to be not only allowed to speak but also to be listened to.
The Court of Appeal in Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 at [57] said:
It is trite law that the principles of natural justice require that a party be given a reasonable opportunity to present their case. However, what is necessary to satisfy that requirement in a particular case cannot be determined in the abstract but only in the context of the case. Thus, as Brennan J pointed out in J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, while the principles of natural justice apply to courts:
That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings. (456)
In the context of this case, in my view the rules of natural justice require consideration to be given to the amount in issue and the cost and time involved in resolving the dispute, including the cost incurred by, and time to be spent by, the other party. A party, having made his submission once has been heard. To allow him to engage in repetitiously making the same submissions which were understood the first time around does nothing for giving him a reasonable opportunity to present his case and works an injustice to the other party who must endure the cost of having to hear the same repetitions. It also constitutes a waste of the court's time that should be devoted to the needs, not only of the litigants immediately before it, but also other litigants in the court. Once questions arise as to whether the other party is being put to unnecessary expense or the court's time is being wasted then questions arise as to what constitutes a reasonable opportunity for the defendant to be heard.
In this case the defendant had been on notice of the default judgment since at least that date of his letter of 28 August 2014. By no later than his letter of 7 October 2014 he was aware that the plaintiff was seeking an assessment of damages. This gave him some 16 weeks to prepare for the assessment of damages that took place on 27 January 2015 and 20 weeks to apply to set aside the default judgement.
In the course of his various submissions it became apparent that the defendant was preoccupied with the idea that the plaintiff had no right to claim ownership to the property and that the pre‑fire value of the property was greater than allowed by the plaintiff's expert.
For the reasons given later in this judgment, on having allowed the defendant to speak on these issues and having listened to him I formed the view there was no merit to his submissions.
In his closing address the defendant returned to these matters. After allowing him some time to repeat these arguments, and mindful of the costs being incurred in allowing this, and his point being well understood, I stopped him and reserved my decision.
In my view the defendant had been given a reasonable opportunity to prepare any applications and affidavits necessary to give effect to any argument to set aside default judgement, to defend the assessment of damages and to speak in his defence. His submissions were repetitious and largely irrelevant. In my view it was unreasonable to expect the plaintiff and the court to have to spend more time and money in continuing to listen to the same point being made over and over again.
This matter was relisted for further hearing on 28 May 2015 to hear from the parties on my power to make one of the orders sought on the plaintiff's amended summons. The order sought was
The Plaintiff's solicitors be entitled to pay the estate the sum of $80,000 from the funds held on trust on behalf of the defendant from his share of the estate of the deceased, the late Keith Raymond Seaman.
As it happened, on or about 27 May 2015 the plaintiff advised the court she abandoned her pursuit of this order.
However, on 25 May 2015 the defendant had lodged a chamber summons seeking to set aside the default judgement and seeking an order that the action be remitted to the Supreme Court, supported by two affidavits sworn on 26 January 2015. The defendant's summons was amended to include a further order namely that the time by which the defendant file and serve his application to set aside the default judgement be extended to 28 May 2015. With the consent of the plaintiff the application insofar as it sought an extension of time to bring the application and to set aside default judgement was argued then and there.

The defendant's application for an extension of time and to set aside judgment

The general rule is that when default judgement has been regularly entered it will not be set aside unless the court is satisfied there is a defence on the merits. This requirement has been expressed in a number of different ways all largely to the same effect, such as whether the defendant has presented a credible defence which if argued on the merits would have a real prospect of success, or whether there is a reasonably arguable defence on the merits. The setting aside of a default judgement involves exercise of an unfettered discretion to do justice to the parties having regard to the particular circumstance of the case: per Rolland v Bank of Western Australia (unreported; FCt SCt of WA; Library No 980498; 3 September 1998, Parker v Transfield Pty Ltd [2000] WASCA 382.
This does not require the court to form a provisional view as to the probable finding of fact at trial. What must appear is that the affidavit material is not inherently implausible and if accepted at trial the defendant would have a real prospect of success.
The relative prospects of successfully mounting a defence are relevant in dealing with the question of the delay in bringing the application. The greater the prospect of a defence on the merits the more likely the delay in bringing the application will be forgiven. However, this is not the only consideration. Other considerations are relevant including prejudice to the plaintiff who has some interest in the judgement the court has given her, the length of the delay, the explanation for the delay including whether the delay was deliberate and if the applicant has failed to comply with orders for the bringing of the application, the reasons for it.
The application filed by facsimile on 25 May 2015 needs to be considered not only by reference to the fact that the application was, in the end, made more than four months after the time by which the defendant had been ordered to file and serve it, namely 20 January 2015, but in the context of a default judgment having been entered on 26 May 2014, a period of one year prior, and in circumstance where the defendant was aware of the existence of that default judgement since at least 28 August 2014.
An application such as this needs to be supported by evidence. Evidence is in the nature of sworn testimony, in this case affidavit, and exhibits. Evidence is not constituted by unsworn statements proffered to the court by way of miscellaneous correspondence or oral representations. This is a vital distinction which the defendant appeared to have some difficulty either understanding or accepting or both.
Any application of this sort requires an explanation for the delay. In the affidavit evidence filed by the defendant there is no explanation for the delay between 27 January 2015 and 25 May 2015. The affidavits filed are, as observed above, dated 26 January 2015.
In the absence of an affidavit explaining why nothing was done by way of seeking an extension of time for the filing of an application to set aside the default judgement the application fails at the first hurdle and I would dismiss it.
If I am wrong to do so then I turn my mind to the question of whether the default judgement should be set aside in the event an extension of time for the bringing of the application be allowed. This again requires consideration of the explanation advanced by the defendant in allowing this to occur.
The defendant in one of his affidavits sworn 26 January 2015 at par 4, together with Attachment TRS1 to the other affidavit, addresses why he did not enter an appearance. The explanation distils to him having been served with the writ on 12 May 2014 at a time when he was not in a condition to effectively deal with it, an implication that he needed legal advice to deal with it, that there was no form for filing an appearance attached to the writ and that prison security would not assist in filing of the court documents and actively discouraged him from doing so. He explained in that letter that he was in prison after having being discharged from medical facilities following treatment for his burns and post-traumatic stress disorder.
However these assertions are lacking particulars and detail. He gives no real explanation as to the nature and extent of his condition or how his condition impaired his ability to respond. Nor do I consider the professed need for legal advice compelling. The filing of an appearance is simple and could have been done by doing little more than writing to the court if need be purporting to do so. The completion of a prescribed form although desirable is, in the end, not necessary. By the Rules of the Supreme Court 1971, O 2 r 1, failure to comply with the requirement of the rules in respect of form or content shall be treated as an irregularity and shall not nullify the proceedings.
I accept it is unlikely that an unrepresented layman is likely to know this and might be concerned that there exists a prescribed form that unless completed will result in rejection of any attempt to enter an appearance. However no evidence on affidavit, or otherwise, was given that the defendant had such an expectation and even if he did in my view he should at least have made some attempt to prevent judgment by attempting to enter an appearance. Legal advice is not required for this and the consequences of not doing so are clearly and unequivocally spelled out in the writ itself.
Further I do not find his attempts to attribute responsibility to the prison guards as persuasive. It was the defendant's responsibility to enter an appearance, not the prisons guards and he proffers no explanation for why he says they had an obligation to assist him, if in fact they did. I do not see how that explanation is relevant unless he attempted to enlist their help, of which there is no evidence and, if there was, this would seem to me to be inconsistent with an explanation that he was in not fit state of health the take action to enter an appearance or that he could not enter an appearance in the absence of legal advice.
Finally, his assertion the prison guards actively discouraged him from filing an appearance is not supported by any detail as to how they purported to discourage him or how whatever it was that they are supposed to have said or done, or not said or not done, in fact discouraged him.
The rest of the affidavits and materials annexed thereto demonstrate little in attempts by the defendant to enter an appearance or set aside judgement. Annexure TRS1 being a letter to the District Court Registry dated 29 September 2014 contains his request for a 'rehearing' of the matter on or around 26 May 2014, a request that manifests a misconception that a hearing took place following which judgement was entered for the plaintiff. He explains that he had been served with the judgement on 28 August 2014. However no explanation is proffered for the ongoing failure to attempt to file an appearance in ignorance of the fact judgement had been entered in the meantime. He goes on in that letter to explain that he was hoping to resolve the dispute without court proceedings which to my mind is telling in so far as it demonstrates no effort to enter an appearance or to apply to set aside the judgement with any sense of urgency.
At pars 2, 3 and 4 of one of his affidavits he gives further evidence to explain his delay. He says he was separated from his materials between 29 October 2014 and 10 November 2014 that he was confused by the paperwork and needed legal advice. He does not explain how the separation from his material for 12 days impaired his ability to apply to set aside the default judgement. Nor does he explain the nature and extent of any confusion or need for legal advice or how it impacted on his ability to apply to set aside the judgement.
It is difficult to see how the requirement that an application be made to set aside the default judgement and the requirement to write down the reasons for the delay and the nature of any defence, as understood by the defendant, should engender confusion or require legal advice. The truth of this appears to be borne out but the eventual affidavits which demonstrate the real issue the defendant has as to his liability is in respect of the plaintiff's legal authority to bring the action as administrator of the estate and his opinion that the property in respect of which damages are claimed does not belong to the plaintiff and, further, belongs to him. It seems to me these propositions and the reasons and any evidence in support of them are easily reduced to writing, as in fact was done by way of the affidavits sworn 26 January 2015.

In my view there has been a very lengthy delay in bring the application from the time the defendant first knew of the default judgement in August 2014. It is also brought more than four months after the time ordered for doing so. The sworn evidence explaining the delay between 26 May 2014 and October 2014 demonstrates no efforts to apply to set the judgement aside and the explanation is that he wanted to resolve the issue without legal proceedings. There is no sworn explanation for the delay between 20 January 2015 and 27 May 2015. The explanation for the delay is poor and in light of this poor explanation I need to consider the merits of the defence described in the affidavit material.
The affidavit material filed by the defendant at its highest amounts to a challenge to the plaintiff's legal capacity to bring the action as administrator of the estate and to dispute she is the owner of the land.
However the evidence found within the affidavit of Raphael Kurganoff, demonstrates the plaintiff was granted letters of administration of the estate of the late Keith Raymond Smith by the Supreme Court on 25 September 2008, some five years before the defendant set fire to the property. The Supreme Court having issued letter of administration to the plaintiff means that her capacity to act as administrator of the estate in good against the world including the defendant unless and until such time it should for any reason be revoked. The defendant does not take issue with the fact the Supreme Court has granted letter of administration to the plaintiff but challenges the lawfulness of it, a matter that this court cannot involve itself in.
As to the question of ownership of the land, there is no dispute that the lawful owner of the land was the late Keith Raymond Seaman at the time of his death. This being the case it follows the land forms part of the estate in respect of which the plaintiff has letters of administration.
The defendant in par 11 of one of his affidavits alleges the land was a gift to him by his father, but he produces no evidence that the land, if it was a gift, was ever transferred to him. He alleges that alternatively he has an equitable interest in the land and that he had a beneficial interest in the land pursuant to a constructive trust or resulting trust. He does not condescend to any particulars as to how these trusts may have been created other than perhaps by reference to the 'gift' of the land to him or that he has made some financial assistance to his late father.
However, none of this detracts from the fact that the land forms part of the estate of the late Keith Raymond Seaman the value of which was diminished by the criminal acts of the defendant and respect of which the plaintiff by reason of the grant of letters of administration has the legal authority to institute proceedings to recover.
In my view the defendant has failed to demonstrate any credible defence which if argued on the merits has any reasonable prospect of success and accordingly the application to set aside the default judgement is dismissed.

Assessment of damages

The plaintiff's case

The case presented by the plaintiff on the question of assessment of damages is simple. The plaintiff says that the value of the property prior to its damage by fire was $700,000 and that after the fire it had a value of $620,000.

The plaintiff's evidence

The evidence relied upon by the plaintiff was constituted by affidavits of Raphael Kurganoff sworn 4 September 2014 and 29 October 2014 respectively, an affidavit of Julie Cockerel sworn 13 August 2014, and a copy of the contract for sale of 1460 Park Road, Hovea which is also found in the affidavit of Raphael Kurganoff dated 29 October 2014.
The defendant had not advised the plaintiff's solicitors that he required any of the witnesses to the affidavits for cross‑examination. That being the case I proceed on the basis that where factual evidence is not cross‑examined upon, prima facie it should be accepted, but mindful that the evidence need not be accepted where there is a credible body of evidence of a substantial character in direct contradiction of the non‑cross‑examined evidence. In this regard I would apply and adopt the principles dated by the New South Wales Court of Appeal in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [110] ‑ [112]. Those principles also apply to the absence of cross‑examination of an expert with the prima facie position of accepting that evidence being subject to exceptions such as the report being illogical, inconsistent, based on incorrect or incomplete histories or based on unfounded assumptions.
At Annexure RK11 is a photocopy of a photograph of the damaged property. The photograph depicts the still smoking embers of a large part of the house on the property with what appears to be two firefighters in the middle of a heavily destroyed area.
At Annexure RK15 is a copy of a contract for the sale of 1460 Park Road, Hovea for the amount of $620,000.
At Annexure RK13 is the transcript of the arraignment of the defendant in the District Court of Western Australia on 20 January 2014. The transcript shows that the defendant was charged that on 11 September 2013 at Hovea he wilfully and unlawfully destroyed a house and that house was destroyed by fire.
The transcript shows that the defendant pleaded guilty. In the statement of material facts the prosecution advised the court the fire engulfed the residence causing extensive damage valued at approximately $350,000 and the property was demolished. His counsel, on the defendant's behalf, accepted those facts as true.
In my opinion the acceptance of those facts by the defendant constitutes an admission against interest that the fire caused $350,000 worth of damage. This was in my view a significant admission against interest, as the value of the damage is relevant to any sentence, in this case a term of imprisonment, that was to be imposed. The sentence imposed for causing damage of $350,000 must be considered likely to be heavier than a sentence to be imposed for damage of $80,000 or less.

The affidavit of Julie Cockerel

Julie Cockerel deposed to being a real estate agent registered as such since 2004. She gave evidence that she was experienced in assessing the value of houses and particular homes in Hovea and that she had sold the property at 1460 Park Road, Hovea in the amount of $620,000. She expressed the opinion that the pre‑accident value of the house was $700,000, drawing on her experience as a real estate agent and her knowledge of the value of properties in the area of Hovea. She said at the time of the sale comparative homes sold in the same area for $690,000 and $700,000. Again, the defendant had not advised the plaintiff's solicitors that he required Ms Cockerel available for cross‑examination. He did nevertheless object to the plaintiff's attempt to tender this affidavit. The objection was based on three grounds constituted by:
(a)the assertion Ms Cockerel was not a licensed valuer;
(b)his statement he believed the value of the property was worth more than $700,000;
(c)his assertion Ms Cockerel had no authority to sell the property on the basis the property was not the plaintiff's to sell but was in fact his, the defendant's.
In my opinion the evidence of Julie Cockerel was a combination of statements of fact and the expression of opinion. Insofar as her evidence is constituted by expressions of opinion, I am satisfied that as a real estate agent for 10 years, an occupation I infer necessarily requires the ability to assess the value of houses and properties generally and in the area of Hovea in particular, she has sufficient expertise to provide an opinion. The fact that she may not be a licensed valuer can only be relevant if it is a licensed valuer and a licensed valuer alone who is able to express an opinion. However, experts can come in all shapes and forms. Even experts with the same qualifications can provide differing opinions only one of which might be accepted by a court. The rejection of one expert opinion does not mean that the person proffering that opinion is not an expert. Further the weight of an expert opinion may vary between experts having regard to their experience, opportunity to observe the facts of the particular case before the court, or their understanding of the factual history of the matter on which they have been asked to give an opinion. What is required to be an expert is that the person has knowledge of the subject arising from special study or experience of the subject matter which the court does not have and without which it would be unable to form a sound judgment in the matter.
In my view other persons, such as experienced real estate agents, are also possessed of the necessary degree of special knowledge or experience as to the value of properties in a particular geographical area so as to be regarded as qualified to express an opinion.
Hence, in answer to the defendant's objections it is my view that it is not necessary that Julie Cockerel be a licensed valuer in order to be able to give an opinion as to the value of the property prior to the fire. Further, the fact that the defendant believes the properties pre fire value is more than expressed by Ms Cockerel, goes no way towards undermining the value of that opinion. It is in fact the defendant's contention that the value of $700,000 ascribed to the property prior to the fire understated its value and that the property was worth much more having regard to its sentimental value and the fact that the property had been in the family for several generations. If the real complaint is that Julie Cockerel has undervalued the property prior to the fire, this would only serve to increase the loss suffered by the plaintiff.
Lastly, his objection that the property was not the plaintiff's to sell is irrelevant to the question of Julie Cockerel's ability to express an opinion on the pre‑fire and post‑fire value of the property.
In my view, having arrived at the finding that Julie Cockerel was sufficiently qualified to express an opinion as to the value of the property, the defendant's failure to advise the plaintiff's solicitor that he wanted to cross‑examine her as to any aspects of her valuation means her evidence is prima facie acceptable in the absence of any compelling reason to reject it. I find no compelling reason to reject it.

The defendant's evidence

The defendant did not file any affidavit evidence bearing on the assessment of damages. However, he did seek leave to give oral evidence pursuant to order number 4 made 2 December 2014 which was that the evidence on the assessment of damages shall be by affidavit unless the court orders otherwise.
Having regard to the defendant's explanation about difficulties faced in preparing the affidavit due to the fact of his incarceration and limited access to the computer, his limited access to legal advice, his desire or need to avoid dangerous prisoners, and the desire to avoid the bad memories the act of writing down his thoughts on the issue provoked, the defendant was given leave to give evidence on matters relevant to the valuation of the property.
Essentially it was his opinion the property was worth more than $700,000 prior to the fire because it was regarded by him as having sentimental value, being held in the family for 120 years or more. He described it as a man's castle, a property that had a waterfall, overlooked a dam, had an abundance of nature and a property on which he was building an organic garden that could have been marketed as an organic farm.
The evidence relating to the sentimental value of the property has no bearing on the market value of the property prior to the fire. The other evidence may have some relevance to the market value. However, to the extent it was relevant, it seems inevitable it would have been taken into account by Julie Cockerill in assessing the value of the property. It is inconceivable to me that the potential, if any, that the land might be used as an organic farm would not be considered if it was relevant. Whether it could be used as a farm may depend on a range of other factors including government planning approvals and the like. To the extent that the defendant may have been correct in his contention as to the pre‑accident value of the property, which I do not accept, it is irrelevant to his case. It is irrelevant in that it could only serve to increase the value of the property as it was prior to the fire and, therefore, the loss suffered by the estate. Any useful evidence he might have been able to give on the pre‑fire value of the property would only exist if it suggested the pre‑fire value of the property was less than that assessed by Julie Cockerill.
Notwithstanding the limited grant of leave to give oral evidence, his evidence strayed into a challenge, again, as to the plaintiff's capacity to bring the action and her right to claim ownership of the property, contending that his father had orally given the property to him.
In my opinion these issues are irrelevant as it is not open to the defendant to argue this issue in the face of an interlocutory judgment that establishes his liability to the plaintiff in respect of the claim indorsed on the writ of summons, that claim being for damages 'as a result of the arson and criminal damages …. Perpetrated by the Defendant causing an explosion and fire on 11 September 2013 at the residence of the late Keith Raymond Seaman situate at Hovea …'.
The plaintiff carries the burden of proof and is required to prove her allegations, in this case the value of her loss, on the balance of probabilities. This requires me to have an actual persuasion that true value of the loss. It is not an exercise undertaken by way of a mechanical mathematical calculation of probabilities independently of any belief in its reality: see Briginshaw v Briginshaw (1938) 60 CLR 336.
I am satisfied that prior to the fire, properties of a similar type sold in the area of Hovea for values in the region of $690,000 to $700,000. It is clear that the fire to the property as depicted in the photographs must have diminished the market value of the property. I find that the property was in fact sold for $620,000 and this is prima facie evidence of the reduction in market value, in respect of which there is no countervailing evidence.
This admission constituted with the other evidence presented on the value of the property and the consequential loss as a result of the fire satisfies me to the required standard that there was a reduction in market value of at least $80,000.
I find the value of the land has been reduced by $80,000. The evidence also discloses the plaintiff has incurred expenses of $23,188 for demolition costs which is inherently plausible given the destruction to the property wrought by the defendant and which I accept and in respect of which there is no challenge.
Insofar as the plaintiff may also seek to recover $781.70 for legal fees incurred in having the sheriff execute a seizure order issued by the Supreme Court and $80 for the cost of a locksmith, presumably to change the locks so as to keep the defendant from re-entering the property. I would not allow these costs as they do not, in my view, flow from the act of the defendant setting fire to the house.
Accordingly I would assess damages in the sum of $103,188. I would award interest at the rate of 6% per annum on the $80,000 from the date of settlement of the property and on the sum of $23,188 from the date the invoice was paid.