Clark v Crosswell
[1989] TASSC 79
•2 February 1989
Serial No. B1/1998
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Clark v Crosswell [1989] TASSC 79; B1/1989
PARTIES: CLARK P F
CLARK A M
v
CROSSWELL D
CROSSWELL M
FILE NO/S: 737/1988
DELIVERED ON: 2 February 1989
JUDGMENT OF: Green CJ
Judgment Number: B1/1989
Number of paragraphs: 25
Serial No B1/1989
File No 737/1989
P F CLARK & A M CLARK v D CROSWELL & M CROSSWELL
REASONS FOR JUDGMENT GREEN CJ
2 February 1989
This is a claim for the return of a racing greyhound dog named "Port Summer" and for other relief. By order of the Master the issues of ownership and liability have been tried before the trial of the issue of damages.
On 23 December 1988 I pronounced judgment and made orders. I now publish my reasons.
The dog was one of a litter born on 10 January 1986 owned by the defendants who had been professionally engaged in training and racing greyhounds. As a result of his disqualification as a trainer by the Tasmanian Greyhound Racing Board, and because of a back disability, D Crosswell had resolved to dispose of his greyhound establishment and to sell some or all of his dogs. On 11 October 1986 he attempted to sell the dogs by auction but almost no interest was shown by any potential purchasers. Between the 11 October and 31 October 1986 D Crosswell handed over possession of Port Summer together with another greyhound dog from the same litter named "Captain Port" to the plaintiffs. Captain Port is not the subject of these proceedings and for convenience of exposition I shall hereafter refer only to Port Summer although some findings and assertions in these reasons are in fact also applicable to Captain Port. Soon after handing over possession of the dog, the defendants moved to a property known as Braeside. Port Summer commenced racing on 5 October 1987, and won its first race on 5 November 1987. At some time in 1987 possession of Port Summer was delivered by the plaintiffs to the defendants who thereafter trained the dog and who remain in possession of it. The plaintiffs have demanded the return of the dog but the defendants have refused to do so. The plaintiffs made arrangements between themselves as to the ownership and possession of Port Summer, but for the purposes of these proceedings, I shall treat them as having had the same interest in Port Summer at all material times.
The plaintiffs' case is that when D Crosswell gave them possession of the dog in October 1986 he transferred ownership of the dog by way of gift. The plaintiffs allege that the gift was effected by the delivery of the dog to A Clark with an intention to pass title to it to the plaintiffs. The plaintiffs allege that on or about 6 November 1987 they gave possession of the dog to the defendants pursuant to an agreement which was entered into at the same time, whereby the defendants agreed to train the dog for the plaintiffs in consideration of a fee and a share of any prize money payable in the event of the dog winning a race. The plaintiffs' case is that the contract was determinable on notice and that the defendants were obliged to return the dog on demand.
The defendants' case is that the dog was never the subject of a gift but that possession was delivered in October 1986 pursuant to an agreement whereby the defendants leased the dog to the plaintiffs on condition that if the plaintiffs trained the dog, the defendants would be paid 50% of first prize money, whilst if the defendants trained the dog, the plaintiffs would be liable to pay $30 per week in fees and the defendants would be entitled to one third (according to D Crosswell's evidence) or 30% (according to the defence) of first prize winnings. The defendants claim that initially the plaintiffs trained the dog, but that in about February or March 1987, the plaintiffs returned the dog to the defendants for about 6 weeks for breaking in. After a further period of about 6 weeks during which the dog was with the plaintiffs having a spell, it was returned by the plaintiffs to the defendants for training and has virtually been in the possession of the defendants ever since.
I turn to consider the issue of whether a training and leasing agreement was entered into at the time when possession of the dog was handed over in October 1986 as alleged by the defendants.
In July 1987, Paul Clark signed a card headed "Application for Change of Ownership of an Un–Named Greyhound and Naming Same". Immediately under his signature the following words appeared:
"I/We, the undersigned, being the registered breeder(s) of the Greyhound described in this application for transfer of ownership, and which is number 3 and ear brand TXO 072 on my/our litter registration form, do hereby consent to such transfer to Paul Clark.
Signature of Breeder(s) (Sgd) D J Crosswell".
The dog was nominated for its first race by the use of a form which showed the "Owner's/Lessee's Name" as "Paul Clark" and the trainer as "Allan Clark". By a document dated 12 November 1987 and signed by Margaret Crosswell, the Tasmanian Greyhound Racing Board was notified that Port Summer was now being trained by Margaret Crosswell. It is accepted by all parties that the foregoing documents were brought into existence and lodged with the Board pursuant to the rules of the Board, and that the rules were binding on all parties.
These documents are inconsistent with the defendants' case but support the plaintiffs' claims that they are the owners of the dog and support their evidence that they trained the dog until the defendants took over training after the 5 November 1987. The defendants' explanation of the circumstances in which these documents came into existence is thus of significance.
D Crosswell gave evidence that at the time when the dogs were marked and named, one of the plaintiffs asked him in whose name they should be registered and he replied that "they could put them in their name rather than muck around with lease papers". A form of the lease agreement which under the rules was required to be registered with the Board has been tendered in evidence. It is not obvious why its completion and registration should have been regarded as complicated or as involving undue "mucking around". When asked in cross–examination how he explained the apparent inconsistency between the date of the notification of change of trainer and his evidence as to when the defendants took over training, D Crosswell claimed that the notification was delayed deliberately because one or both of the plaintiffs thought that they could obtain better odds from bookmakers if they, rather than the defendants, who were better known and more experienced, were shown as the trainers. For convenience I shall hereafter refer to that alleged plan or arrangement as the conspiracy. In giving that evidence D Crosswell also said that the conspiracy provided the explanation for the dog being "in Mr Clark's name and trained by Mr Clark" and for the dog being "left in Mr Clark's name from the start". In other words, D Crosswell was claiming that the objective of securing better odds from bookmakers not only explained why registration of the change of trainer was delayed, but also explained why the earlier documents showed one of the plaintiffs as the owner notwithstanding that on the defendants' case, the defendants remained as owners throughout.
The documents to which I have been referring and which D Crosswell sought to explain were tendered as exhibits by the plaintiffs before either of them was cross–examined. The explanation given by D Crosswell would, if accepted, be capable of having a considerable effect upon the significance of those documents and what conclusions could be drawn from them, and yet the allegation of a conspiracy was not put to the plaintiffs in cross–examination, nor was it mentioned in counsel's opening of the defendants' case or in the examination in chief of D Crosswell. Those considerations lead me to regard the evidence alleging a conspiracy with serious reservations. But further, insofar as the defendants' evidence about the conspiracy is also advanced in order to explain why the documents show one of the plaintiffs as the owner of the dog, it appears to me to be in conflict with D Crosswell's evidence of the conversation about who should be shown as owner which he claims to have had with the plaintiffs when the dog was marked and named. If, as he claims, it was because of the conspiracy that the dogs were left in Mr Clark's name, "from the start", there would have been no occasion or reason for the plaintiffs to have even asked the question as to who should be shown as owner. But even if the asking of that question could be explained in some way, it is difficult to understand why D Crosswell would then have given to the plaintiffs as a reason for putting the dogs in the name of one of the plaintiffs a reason (viz. to avoid mucking around with leases) which the plaintiffs would have known was false. Insofar as D Crosswell in his examination in chief adopted the explanation of why the dogs were put in the name of the plaintiffs which he said he gave to the plaintiffs as the explanation he also gave to this court, then it is obviously in conflict with the explanation based upon the existence of a conspiracy which he gave in cross–examination.
I reject D Crosswell's evidence of the existence of the conspiracy relating to bookmakers.
I am not satisfied that D Crosswell has given any adequate explanation as to how the dates or the contents of the documents to which I have been referring can be reconciled with the defendants' case.
Mrs Crosswell gave evidence of hearing a conversation between D Crosswell and both the plaintiffs about training and leasing the dog which was in similar terms to that deposed to by D Crosswell. But her evidence suggests that that conversation took place after the plaintiffs had taken possession of the dog and after the defendants had moved to Braeside.
Mr D T Oldham gave evidence that three or four months before the dog first raced, he heard a discussion between D Crosswell and the plaintiffs to the effect that "If David (Crosswell) was to train (the dog) it was $30 a week and one third of the stake money but if the Clarks trained (it) it was 50% of the winning stake money."
Mr K E Hilder gave evidence of hearing a conversation between the plaintiffs and D Crosswell at a time in 1987 before the dog first raced, during which "The Clarks asked David what was his fees ... and David told them that it was $30 and a third of the winnings". He said that D Crosswell said nothing else about his fees and that there was no other discussion about the conditions under which D Crosswell would train the dog, save that A Clark asked Mr Hilder, "What he thought of the conditions".
In my view, the evidence of Mrs Crosswell, Mr Oldham and Mr Hilder is inconsistent with the defendants' case. If it was the case that in October 1986 an agreement had been reached along the lines deposed to by D Crosswell, then there would have been no occasion for any discussion at all in 1987 along the lines indicated, and a fortiori any discussion in 1987 about what terms would apply if D Crosswell were to train the dogs, the plaintiffs' inquiry about what D Crosswell's fees would be, and A Clark's request for advice from Mr Hilder as to the terms which were being discussed, would have been quite inconsistent with D Crosswell's claim that a concluded agreement had already been entered into in October 1986.
A finding that some discussions along the lines indicated by these witnesses would not be entirely consistent with some of the plaintiffs' evidence, but it could be reconciled with their claim as it may be the case that some preliminary conversations took place early in 1987 which culminated in the making of the agreement on 6 November 1987 relied upon by the plaintiffs. However, such a finding would be inconsistent with the defendants' case as it would tend to negative their claim that a leasing and training agreement had already been entered into in October 1986. I reject the suggestion made by counsel for the defendants and unconvincingly led from D Crosswell in evidence that the conversations referred to by these witnesses were in some way a restatement of the agreement entered into in October 1986 as being quite contrary to the tenor of their evidence.
It is clear that the time when payments were made by the plaintiffs to the defendants in 1987 is capable of having a considerable bearing on the determination of the issue of when the training agreement was entered into. On the defendants' case, training fees were paid by the plaintiffs for some months before November 1987 and a share in the first prize for the dog's win on 5 November 1987 was paid by the plaintiffs to the defendants. On the plaintiffs' case, no moneys were paid until after 6 November 1987. I find on the basis of the evidence given by the defendants that they kept records of payments of the kind which they claimed the plaintiffs made to them. There is no suggestion that these records are no longer in existence and no explanation for the defendants' failure to produce them has been provided. The absence of this documentary evidence reinforces the doubts I have already expressed about the defendants' version of when the training agreement was entered into. I draw no inferences adverse to the plaintiffs' case from their failure to produce any documentary evidence of their financial dealings with the defendants. I have no evidence that they kept records of the kind which the defendants maintained, and even if I were to infer that it is likely that they kept some accounting records, I have no evidence which would justify a finding that those records were capable of establishing the negative proposition that no payments were made to the defendants before 6 November 1987.
In addition to the reasons I have already given, I found D Crosswell's evidence as to the alleged leasing agreement unconvincing because of his tendency to rationalise upon the basis of what his usual practice was, and his tendency to embellish his evidence as his examination proceeded.
For the foregoing reasons I am not satisfied that possession of the dog was handed over to the plaintiffs in October 1986 pursuant to any leasing or training agreement.
I accept in substance A Clark's evidence as to the circumstances under which possession of the dog was handed over. I find that D Crosswell handed over possession of the dog after he had asked A Clark whether he "wanted" or wished to "have" or would "like" a greyhound. I am not satisfied that the delivery of the dog was made subject to any condition, trust or contract which indicated that it was not a gift or that D Crosswell did not intend that the whole property in the dog was to pass to the plaintiffs. In determining D Crosswell's state of mind when he delivered possession of the dog, I also take into account that because of his disqualification and because of his health he wanted to sever his ties with greyhounds and cease training greyhounds on a professional basis, that he had resolved to dispose of all or most of his greyhounds and greyhound equipment, that the defendants were about to move to premises in Braeside in which they could not lawfully have kept greyhounds without a permit which they did not then have, that he had been unsuccessful in selling the dog at an auction and that although A Clark and D Crosswell were not related and did not have a close personal relationship, they were not, in the non–legal sense, strangers, as they had known and dealt with each other for at least four years.
There is authority for the proposition that the findings I have made give rise to a presumption that a gift was intended: see the observations by Dixon J during argument in Heydon v Perpetual Executors, Trustees and Agency Co (WA) Ltd (1930) 45 CLR 111 at p112 and the application of those observations by Jenkinson J in Joaquin v Hall [1976] VR 788. But I do not find it necessary to place great reliance on that presumption in this case as I am satisfied that D Crosswell unconditionally gave the dog to A Clark and that therefore the plaintiffs are, and have been since October 1986, the owners of the dog. It may be that subsequently D Crosswell regretted his decision to make the gift, but of course after possession had been handed over and the gift had been completed it was beyond his power to revoke it.
I find that on 21 June 1988 the training agreement was determined, the plaintiffs thereupon became entitled to possession of the dog, the plaintiffs demanded the return of the dog and the defendants refused.
For the foregoing reasons I pronounced judgment and made orders in the following terms:
1There will be judgment for the plaintiffs.
2The court declares that the greyhound dog named "Port Summer" referred to in the statement of claim is the property of the plaintiffs.
3It is adjudged that the defendants do deliver to the plaintiffs the said dog.
4There will be judgment for the plaintiffs for damages for the detention of the said dog to be assessed.
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