Chow v Chang
[2021] VMC 1
•10 February 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
CIVIL DIVISION OF COURT
Case No. K13234180
| MAURICE CHOW | Plaintiff |
| v | |
| SIWEN CHANG | Defendant |
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MAGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 January 2021 |
DATE OF DECISION: | 10 February 2021 |
CASE MAY BE CITED AS: | Chow v Chang |
MEDIUM NEUTRAL CITATION: | [2021] VMC 001 |
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CATCHWORDS – Civil Complaint - Conversion and Detinue – Disputed Ownership of a Pomeranian Dog – Whether a Gift - Domestic Animals Act 1994 (Vic), Companion Animals Act 1998 (NSW).
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr D Dalli | Aston Legal Group |
| For the Defendant | Ms F Milnes | McDonald Legal |
HER HONOUR:
INTRODUCTION AND OVERVIEW
At the centre of this dispute is a white male Pomeranian dog named Kobe (‘the Dog’). The dispute arises in the context of a previous intimate relationship between Mr Maurice Chow, the plaintiff in this proceeding, and Ms Siwen (also known as Marina) Chang, the defendant. The Dog has been in the possession of Ms Chang since the time the relationship broke down in November 2019.
Mr Chow seeks relief in the form of an order that the Dog be returned to his possession as the rightful owner. Ms Chang, on the other hand, contends that she is the owner of the Dog and it should remain in her possession. She alleges that the Dog had been purchased for her by Mr Chang as a gift.
At the commencement of the hearing, Mr Chow applied for leave to amend his pleadings. Upon hearing oral submissions from both parties, leave was refused. The original complaint was filed and served in 17 December 2019 to which a defence dated 24 January 2020 was filed. Ms Chang’s solicitors opposed the application on the grounds that the amendments were significant and would require amendments to the defence. The proposed amended statement of claim struck out the whole of original pleadings and added extensive particularisation of disputed matters, as well as expanding on the prayer for relief to include damages for loss of use and enjoyment of the Dog. Mr Chow’s solicitors had apparently forwarded a proposed amended statement of claim to Ms Chang’s solicitors in October 2020. There was no response to the proposed amendments to the pleading nor was the matter raised again by Mr Chow’s solicitors even though the matter had in the meantime apparently been the subject of appropriate dispute resolution (which was unsuccessful). Accordingly, rather than the matter being delayed, the defendant consented to the matter proceeding on the original pleadings.
The matter was heard over one day (via WebEx) with both parties giving evidence. Mr Chow also called a friend, Ms Cordelia Chang. Oral and written submissions were delivered and documents were tendered into evidence by consent.
For the reasons that follow, I find that plaintiff has failed to discharge the burden of proof that he is, as he claims, the lawful owner of the Dog. The plaintiff’s claim is therefore dismissed. I further find that Ms Chang is the lawful owner of the Dog which is to remain in her possession.
THE EVIDENCE
It is convenient to consider the evidence in this matter in chronological order.
From about June 2017, Mr Chow and Ms Chang lived together in an intimate relationship in rented accommodation in Southbank.
Some time after the intimate relationship was established, Ms Chang began asking Mr Chow to buy her a dog or a puppy as a gift. Mr Chow was resistant to the idea, at least initially. For example, Ms Chang had sent him screen-shots of a puppy with a message “bday gift please” to which he replied, “no pets baby”. Another time, in response to a message from Ms Chang with a screen-shot of a rescue dog, Mr Chow wrote: ‘Daddy is busy making money. No time for a doggy like this’. There were various exchanges of text messages such as:
· Ms Chang: ‘[Heart emojis]. Buy me a dog lol” to which Mr Chow replied “Lol [laughing emoji] yes madam”.
· Ms Chang: ‘I just want a dog’ [kissing and puppy-face emojis] to which Mr Chow replied: ‘[Kissing emoji], I know’.
· At later point, after an exchange as to the merits of dog ownership, Mr Chow texted Ms Chang: ‘Can you stop being a pain in the bum bum [sic] and get us a god damn cutie dog’.
When asked why she had not simply bought a dog herself, Ms Chang said in cross-examination it was because she could not afford it and that Mr Chow earned four times what she did.
Mr Chow said that from around January 2018 the couple began searching for a dog and began looking into types of breeds. Both parties said Mr Chow had asked Ms Chang to undertake most of the research of breeds and breeders as he was then very busy with the start-up of a new business. Mr Chow did some research himself including speaking to his friend, Ms Cordelia Chiang, who had a Pomeranian. He concluded that a Pomeranian was a suitable breed in terms of temperament and to live in an apartment. At one point, he sent Ms Chang text messages stating: ‘That’s why I need a white one. I know what I like’. At another point, Mr Chow sent Ms Chang a text message stating: ‘it’s massive. I’m looking into others. I don’t want breeds to be loud. Or dependent. Too noisy. And demanding’.
Ms Cordelia Chiang, an auditor by occupation, had been friends with Mr Chow since about 2008. She said that because she owned a Pomeranian herself, Mr Chow had, in early 2018, asked her about temperament and attributes of the breed.
Ms Chang said she had done the majority of the communications with different breeders before deciding on the Pomeranian breed and selecting a breeder with whom she had at least 15 exchanges.
In September 2018, once a breeder had been selected, the Dog was chosen and purchased from the breeder (who operated in New South Wales). Ms Chang chose the Dog’s name.
Mr Chow said it was untrue that the Dog was purchased as gift for Ms Chang. He had he wanted a dog himself. There was never a discussion of the Dog being a gift.
It was not disputed that Mr Chow paid the breeder the sum of $4,300 being the purchase price for the Dog. Although the monies came from Mr Chow’s account, the receipt of the transfer of payment to the breeder stated the monies were from ‘Marina’. In cross-examination, Ms Chang denied that Mr Chow had written ‘Marina’ as an indication that the Dog was intended to be a gift for her, but rather, as Mr Chow contended, for mere identification purposes for the breeder who had been in communications with her.
By about October 2018, the Dog had been couriered by the breeder to Melbourne and began residing at the shared residence of Mr Chow and Ms Chang. It was not disputed that Ms Chang took two weeks’ annual leave to settle the Dog into his new home.
In about November 2018, Ms Chang resigned from her full-time employment which she said was so as to be the Dog’s primary carer. In cross-examination, she denied the true reason she gave up work was because of issues with management in the workplace. Ms Chang arranged vaccinations and vet checks and paid also for items related to the Dog’s care and well-being. Ms Chang shared group texts with friends regarding ‘my puppy’ and created numerous social media posts about the Dog’s arrival and thereafter including that she ‘had been waiting for this moment for so long’. She taught the Dog tricks.
Mr Chow said that by the time the Dog arrived, he had flexibility in his work hours and he could spend time with him in the early morning before work and after 2:00 pm when he finished working. He also taught the Dog tricks, attended vet checks and paid items related to the Dog’s care and well-being.
By 13 November 2019, Mr Chow and Ms Chang’s intimate relationship had broken down. Ms Chang said, on that date, she said moved out of their shared residence and took all her personal possessions including the Dog. Ms Chang said that when she was packing her things, Mr Chow had begged her not to take Kobe. She agreed did not take with her other gifts from Mr Chow such as a mobile phone and a laptop.
On 14 November 2019, Ms Chang, without being requested by Mr Chow to do so, transferred the sum of $4,300 into the account of Mr Chow. At the time of the hearing, that sum is held in trust by Mr Chow’s solicitors. In cross-examination, Ms Chang denied transferring that sum to Mr Chow because she knew the Dog was Mr Chow’s property. She said she paid the money because she did not want Mr Chow to ‘lose face’ or think she had taken advantage of him after he paid the original sum for the Dog and also that she did not want to owe him anything. When asked whether she knew Mr Chow wanted Kobe back, she conceded that he was emotional when she was leaving with the Dog and did not want Kobe to go.
It was not disputed that Mr Chow demanded that Ms Chang return of the Dog by way of text message on 13 November 2019 and by way of solicitors’ letters on 20 November 2019 and 4 December 2019.
By way of other documentary evidence relied upon by Ms Chang, there was:
a. A NSW Certificate of Identification for a male Pomeranian dog named ‘Kobe’ regarding microchip implantation on 10 September 2018 that stated: ‘Owner Details: Miss Siwen Chang’.
b. An Australasian Animal Registry Registration Certificate (undated) in relation to the registered microchip of ‘Kobe’, a male Pomeranian dog stating, ‘Owner Information: Siwen Chang’.
c. An Australian National Kennel Council Ltd Certificate of Limited Pedigree of the Dog issued 3 May 2019 certifying that ownership was transferred from the breeder to Ms S Chang on 20 September 2018.
d. City of Melbourne correspondence addressed to Ms Chang dated 8 October 2019 confirming registration of ‘Kobe.’
When asked why he wanted Kobe back, Mr Chow said he loved him and that it was unfair for Ms Chang to have the Dog which he had purchased. In cross-examination, Mr Chow said the explanation for the ownership and registration documents being in Ms Chang’s name was because she had dealt with the breeder, she took care of the household administration and he was too busy with his business. He also Ms Chang had taken advantage of the situation in registering the Dog with the council in her name prior to leaving the relationship. He had tried to register the Dog but was informed Kobe was already registered by Ms Chang.
In cross-examination, Ms Chang agreed that after the relationship had broken down, she contacted police complaining about Mr Chow’s conduct towards her. She disagreed the police then decided to withdraw an application on her behalf for a family violence intervention order against Mr Chow. She said she then withdrew the application on the advice of a family violence advocate because had lacked any detail of Mr Chow’s conduct during the relationship.
ANALYSIS
The legal and evidentiary burden of proof rested with Mr Chow to establish that he is the lawful owner of the Dog, with an entitlement to immediate possession. On the other hand, the burden of proof was on Ms Chang to establish on the balance of probabilities that the Dog was gifted to her.
In submissions for the plaintiff, it was said that, on the evidence, Mr Chow is the lawful owner of the Dog and is therefore entitled to immediate possession of the Dog. It was Mr Chow who purchased the Dog from the breeder. So, ownership therefore passed from the breeder to him in consideration of the purchase price. Further, at no stage, did Mr Chow ever gift, nor did he ever intend to, gift the Dog to Ms Chang. At most, Mr Chow had expressed an intention to give Ms Chang the right to use and enjoy the dog whilst they were in an intimate relationship. In removing the Dog from the former shared residence and then failing to deliver him up, Ms Chang had done so wrongfully and had committed an act of detinue. In continuing to possess the Dog and failing to surrender the Dog to Mr Chow, she acted inconsistently with his rights to immediate possession and committed an acted of conversion.
For Ms Chang, it was submitted that, on the weight of evidence, Ms Chang was the lawful owner of the Dog which had been purchased for her and at her request by Mr Chow as a gift in the context of the intimate relationship. Upon leaving the relationship, she had lawfully removed her personal property, including the Dog. The fact of the Dog being purchased for her as a gift was supported by the numerous and contemporaneous exchanges of text messages between her and Mr Chow. Additionally, her ownership of the Dog was supported by documentary evidence in relation to the receipt of purchase, the certificates of microchip registration at the time of and prior to the purchase from the breeder and with the Council.
In essence, this was a factual dispute in which the credit of the witnesses was central to my decision. I formed the view that Ms Chang was a witness of truth who appeared to be doing her best to give accurate responses to the questions asked of her. She made appropriate concessions that were adverse to her interests including that Mr Chow was emotional and did not want Kobe to go and had begged her not to take the Dog. On the other hand, I formed a somewhat less favourable impression of Mr Chow’s evidence. I found some of his answers to be attempts to mislead the Court, such as saying he bought a dog because he wanted a dog which is inconsistent with multiple contemporaneous test messages that demonstrated his reluctance to acquire a Dog.
As both Counsel submitted, the fact of the dog being registered in Ms Chang’s name does not, of itself, establish or constitute statutory ownership in Victoria according to Domestic Animals Act 1994 (Vic). In that Act, an ‘owner’ is defined as a person who ‘keeps or harbours the animal or has the animal in his or her care…’[1] Counsel for the Defendant referred also to the definition of ‘owner’ in the Companion Animals Act 1998 (NSW).[2] In my view, the ownership of the Dog is governed by the law of Victoria given that is the State in which the Dog has been cared for since its purchase from the breeder. Even if I am wrong, the NSW Act’s definition does not advance matters in favour of either party given ‘owner’ is defined, in the alternative, to mean: the owner in the sense of being the owner of the animal as personal property; the person by whom the animal is ordinarily kept; the registered owner.
[1] Domestic Animals Act 1994 (Vic), s.3(1)
[2] Companion animals Act 1998 (NSW), s.7
Weighing the whole of the evidence, and having, as I said, the benefit of observing all the witnesses give evidence to the Court, I preferred Ms Chang’s version of events as being more probable. The weight of evidence, particularly of Ms Chang and corroborated by the content of the contemporaneous text messages such as ‘buy me a dog lol’ and ‘bday gift please’, satisfied me that, as a matter of fact and law, Mr Chow purchased the Dog with the intention of gifting it to Ms Chang. I find that Mr Chow purchased the Dog at her request and to accede to a dearly held wish of hers in the context of a then loving relationship. I find, on the evidence, in spite of Ms Chang’s pleas to be given a dog, Mr Chow was resistant to the idea of acquiring a dog but ultimately acceded to her request saying playfully ‘yes madam’ and ‘Can you stop being a pain in the bum bum and get us a god damn cutie dog’. In my opinion, when weighing the oral evidence and the content of the contemporaneous text messages, it is simply implausible that he purchased the Dog for himself intending Ms Chang merely to have enjoyment of it.
Whilst I accept Mr Chow did his own researches, I am of the opinion he did so more to ‘sign off’ on Ms Chang’s wish for a Pomeranian rather than because he had a particularly strong interest in acquiring a dog himself. I also accept that Mr Chow warmed to the idea of a dog being part of their lives (such as the message to ‘get us a god damn cutie dog’). Mr Chow became fond of the Dog and enjoyed aspects of pet ownership as a member of the household. However, that does not, in my view, in any way alter the fact that, as I have found, in weighing the whole of the evidence and on the balance of probabilities, he bought the dog as a gift for his then intimate partner, Ms Chang.
Finally, I formed the impression that Mr Chow was an astute person who was starting up and running a business. Whilst, as I have said, nothing turns upon it in respect of the statutory definition of ‘owner’, I find that as a matter of probability and, notwithstanding that he was busy at the time the Dog was acquired, if he had intended to be the owner of the Dog himself, he would have ensured that the documents referred to him accordingly. I find therefore that the evidence as to the microchip registration and the purchase receipt stated to be from ‘Marina’ (event though the money came from Mr Chow) further supports my finding of the Dog being purchased by Mr Chow intending Kobe to be a gift for Ms Chang.
CONCLUSION
The plaintiff’s claim is dismissed with costs. The parties are invited to make submissions or file minutes of consent regarding costs or ancillary matters.
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