Gabriel v Gabriel
[2005] VSC 158
•9 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 7206 of 2000
BETWEEN:
| GEOFFREY NICHOLAS GABRIEL and ORS (according to the Schedule attached) | Plaintiffs |
| v | |
| ISABEL GABRIEL and ORS (according to the Schedule attached) | Defendants |
AND BETWEEN:
| HILARY OATES | Plaintiff by Counterclaim |
| v | |
| GEOFFREY NICHOLAS GABRIEL | Defendant by Counterclaim |
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JUDGE: | Hargrave J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 6, 9 May 2005 | |
DATE OF JUDGMENT: | 9 May 2005 | |
CASE MAY BE CITED AS: | Gabriel v Gabriel | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 158 | |
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Adjustment of the interests of domestic partners in property – s. 285 of the Property Law Act 1958 (Vic) – Conn v Martusevicius (1991) 14 Fam LR 751 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the fifth Defendant | Mr D. Baker | Cash & Stavroulakis |
SCHEDULE OF PARTIES
| GEOFFREY NICHOLAS GABRIEL | First Plaintiff |
| GEOFFREY NICHOLAS GABRIEL (As Trustee of the estate of Elsie Winifred Gabriel) | Second Plaintiff |
| ASTON GROVE PTY LTD (ACN 077 883 053) | Third Plaintiff |
| ASTON LANE PTY LTD (ACN 077 883 062) | Fourth Plaintiff |
| APPOLO CHASE PTY LTD (ACN 058 812 310) | Fifth Plaintiff |
| McKENZIES OF MELBOURNE PTY LTD (ACN 087 320 616) | Sixth Plaintiff |
| HUNGRY KING PTY LTD (ACN 077 865 742) | Seventh Plaintiff |
| ISABEL GABRIEL | First Defendant |
| KELLY ANNE NADENBOUSCH | Second Defendant |
| BARRY MARSHAL | Third Defendant |
| DI PARTRIDGE | Fourth Defendant |
| HILARY OATES | Fifth Plaintiff |
| KELLY ANNE NADENBOUSCH | Plaintiff by Counterclaim |
| GEOFFREY NICHOLAS GABRIEL | First Defendant by Counterclaim |
| GEOFFREY NICHOLAS GABRIEL (As Trustee of the estate of Elsie Winifred Gabriel) | Second Defendant by Counterclaim |
| HILARY OATES | Plaintiff by Counterclaim |
| GEOFFREY NICHOLAS GABRIEL | Defendant by Counterclaim |
HIS HONOUR:
In this proceeding Geoffrey Gabriel and a number of his associated companies as plaintiffs sued a number of parties including the fifthnamed defendant, Hilary Oates, who I will refer to as Mrs Oates. There has already been a trial of certain issues before the Honourable Justice Nettle. As a result his Honour determined whether certain items of personal property, mainly antiques, paintings and jewellery, were owned by Mr Gabriel personally or by someone else other than the estate of Mr Gabriel's late mother, or were owned by Mr Gabriel as trustee of his late mother's estate.
His Honour's determinations are recorded in his reasons for judgment given on 2 April 2004, and in paragraph 6 of his orders of 6 April 2004. That paragraph identifies the property by reference to detailed schedules attached to the orders made by Master Wheeler on 2 September 2003 in this proceeding. Mrs Oates accepts that she is bound by these findings.
In his statement of claim Mr Gabriel and his companies made claims against Mrs Oates that she took certain items of jewellery, antiques and other chattels and, notwithstanding demands, those items have not been returned. He claims damages. Mrs Oates has counterclaimed against Mr Gabriel. She seeks repayment of loans, damages for conversion of a car, damages for breach of agreement and orders under Part IX of the Property Law Act 1958, which I will call "the Act".
The relief sought under the Act is to adjust the interest of Mr Gabriel in the chattels found by Nettle J to be the property of Mr Gabriel personally or of someone other than the estate of his late mother. By way of adjustment Mrs Oates seeks that all of the property of Mr Gabriel in these chattels be transferred to her.
With the exception of a large and valuable chandelier, all of these chattels, which were found to be the property of Mr Gabriel, are stored at a location known to Mrs Oates. I will refer to these as "the stored chattels".
The evidence before me is that they had a value of $149,862 in 1994 but that this value has fallen considerably since that time.
The chandelier is affixed to premises known as Langford in Walcha in New South Wales. This property was previously owned by Mrs Oates. However, when she was forced to sell it to pay the debts of Mr Gabriel and his related companies, the contract of sale specifically excluded the chandelier from the property sold. I will refer to this item simply as "the chandelier". It was worth about $15,000 in 1994. In evidence Mrs Oates said that it would be worth less now. I accept this.
There is a prospect that there may be liens over the stored goods and the chandelier, or some of them. These matters are not before me and will need to be resolved at a later time if a difficulty arises.
The trial proceeded in the absence of Mr Gabriel. After hearing evidence I was satisfied that there had been sufficient attempts to inform him of the fact that the matter had been listed for trial and that he had been notified of the trial date. I infer that he has chosen not to attend and be represented. Accordingly, under rule 49.02 I proceeded to hear the case in his absence.
Mrs Oates met Mr Gabriel in July 1987. At this time she was divorced, well and successfully employed and financially secure. Mrs Oates gave the following evidence of her situation at that time:
"At that time I was the sole proprietor of the property at 12 Lloyd Street, North Balwyn. In addition I owned a Datsun motor vehicle which I had purchased in 1982 for $17,000 and I had between $100,000 and $120,000 invested on, I believe, fixed deposit with the Commonwealth Bank in Kew, and $53,156 invested in an investment account. I had further amounts invested in a savings account. I no longer have records of these but I believe the amount was between $30,000 and $50,000. In addition, I owned the contents of the house which were worth approximately $20,000. Furthermore, I was employed as deputy principal head of the junior school of Ruytons girls School at a salary of approximately $35,000 per annum."
Mr Gabriel and Mrs Oates commenced their domestic relationship, as defined by s.275 of the Act, in October 1988 when Mr Gabriel moved into the home, then owned by Mrs Oates, in Lloyd Street, North Balwyn. Section 275 of the Act defines "domestic relationship" in the following terms:
“275. Definitions
(1) In this Part-
.....
'domestic relationship' means the relationship between two people who, although not married to each other, are living or have lived together as a couple on a genuine domestic basis (irrespective of gender);
.....”
In order to enliven the jurisdiction under Part IX of the Act it is necessary for Mrs Oates to satisfy me of certain matters specified in s.280 of the Act. Section 280 provides:
“280. Conditions for making of order- living within the State etc.
A court may make an order under this Division only if it is satisfied-
(a)that one or both of the domestic partners lived in Victoria on the day on which the application was made; and
(b) that-
(i)both partners have lived together in Victoria for at least one third of the period of their relationship; or
(ii)substantial contributions of the kind referred to in section 285(1)(a) or (b) have been made in Victoria by the partner making the application.”
First, it is necessary under s.280(a) that Mrs Oates satisfy me that she was living in Victoria on the day she made the application. I am satisfied of this. Second, Mrs Oates must satisfy me either that she and Mr Gabriel lived together as domestic partners in Victoria for at least one-third of the period of their relationship, or that she has made substantial contributions of the kind referred to in either of paragraphs 285(1)(a) or (b) of the Act.
In 1994, after living in Kew for a time, Mr Gabriel and Mrs Oates moved from Victoria to New South Wales. On 16 July 2000 their domestic relationship ended when Mr Gabriel moved out of the home in New South Wales in which he had been cohabiting with Mrs Oates. Accordingly, the total duration of the domestic relationship was 11 years and nine months.
Mr Gabriel and Mrs Oates lived together in Victoria for five years and three months; this is more than one-third of their time together. Accordingly, I am satisfied that the conditions specified in s.280(b)(i) of the Act has been met. As will appear, I am also satisfied that the conditions specified in s.280(b)(ii) have been met. Mrs Oates made very many substantial contributions of the kind mentioned.
Accordingly, I have jurisdiction under s.285 of the Act to adjust the interests of Mr Gabriel and Mrs Oates in any property owned by either of them. As will appear, the only property capable of adjustment is the interest of Mr Gabriel as owner of the stored chattels and the chandelier. There are no assets of Mrs Oates which fall to be considered in the adjustment process under s.285.
Mrs Oates swore a number of affidavits in which she set out in detail the history of her domestic relationship with Mr Gabriel. In summary, during the course of the domestic relationship Mrs Oates lost all of her assets and her livelihood. Her assets were all lent to Mr Gabriel or one of his companies, and never repaid, or were used to purchase the New South Wales property in which he resided until it was sold to pay off the debts of Mr Gabriel and related companies. In one case, Mr Gabriel simply sold Mrs Oates' car without her consent and did not account to her for the proceeds.
Mrs Oates also ceased to work at the insistence or suggestion of Mr Gabriel. This was principally necessitated by the move to New South Wales, a decision made by Mr Gabriel. Mrs Oates devoted her energies to caring for Mr Gabriel and in assisting him to run the farm in New South Wales and otherwise to perform tasks related to his business activities.
Mrs Oates is now unemployed, perhaps unemployable, and on a widow's pension. She has no assets. She lives with her mother or her sisters.
Mr Gabriel's financial position is not known. He did not appear and called no evidence. All that is known is that he owns the stored chattels and the chandelier and that they, at least, are available for adjustment. The inference is open that he owns other assets but has deliberately not appeared or given evidence so as to avoid subjecting such other assets to an adjustment claim under s.285 of the Act. For reasons appearing hereafter I draw this inference.
It is first necessary to deal with a number of common law claims made by Mrs Oates. First, Mrs Oates claims two amounts of $20,000, a total of $40,000, in respect of loans made to Mr Gabriel which have not been repaid. The first loan was made in October 1988 when Mr Gabriel asked Mrs Oates for a loan to assist him in a business venture. Mrs Oates lent the money. It has not been repaid. The second loan was made in 1989. The circumstances or purpose of the loan are not clear but the evidence is. The money was lent and it has not been repaid.
Next, Mrs Oates purchased from Mr Gabriel a white Mercedes motor vehicle for $25,000. This occurred in 1990. In 1992, Mr Gabriel tricked Mrs Oates into signing a piece of paper and it later transpired that this was a notice of disposal of the vehicle. I received evidence that the vehicle was sold by Mr Gabriel to Chapman Motors for the sum of $59,000 on 9 July 1992. There has been a clear conversion of the motor vehicle, which was the property of Mrs Oates, and she is entitled to damages for that conversion in the sum of $59,000.
Next, a common law claim was made by Mrs Oates pursuant to an agreement between her and Mr Gabriel to contribute equally to the purchase of a property in Walcha, New South Wales called Langford and an adjoining property. I will collectively refer to these properties as "Langford". This claim requires some explanation.
The plaintiff swore in her affidavit of 6 February 2004 in paragraphs 31 and 32 as follows:
“31.In November 1988 Gabriel informed me of a property he had seen at 84 Argyle Road Kew which reminded him of his Beaumaris house. He told me that the agents had informed him that the house would sell for between $500,000 and $600,000. On 19 November 1988, when I arrived to attend the auction I learned that he had purchased the house for $820,000. He asked me to contribute towards the deposit and on 21 November 1988 I withdrew $36,000 from my investment account and paid it toward the deposit. Gabriel told me that the house would be in both our names, however, he then decided that it should be placed in a company name and finally, he placed it in my name. I believe that the deposit was in the vicinity of $80,000.00. The balance of the purchase price was borrowed from Bendigo Building Society who were informed by Gabriel that he would make the repayments. Gabriel had other dealings with the Bendigo Bank and was well known to the bank staff. My salary was then $36,249.00 per year and I would not have contemplated purchasing the house unless Gabriel agreed to repay the mortgage monies .....
32.I had intended to let my home at Lloyd Street and to live with Gabriel but at his urging I agreed to sell the home in order to contribute to the purchase of the Argyle Road property. I contributed $305,749.00 towards the purchase of the property. In February 1989 we both moved to the Argyle Road property to live there together as man and wife.”
In paragraph 43 of her affidavit Mrs Oates swore as follows:
“43.In December 1992, Gabriel and I, at his suggestion, travelled together and went to inspect a property at Inverell, Myall Creek Station, because Gabriel owned in excess of 500 cattle that needed to be placed on land and fed. The Inverell property was not considered suitable by Gabriel and we returned to Melbourne through Walcha, New South Wales, where we saw the property known as 'Langford' and a property 'Burraki' at Yarrowitch, which was situated some 70 kilometres from Walcha. The Langford property comprised 50 acres and adjacent to it was 20 acres which contained stables and a shed. Langford was for sale at $520,000.00 and the adjacent land at $140,000.00. Burakki comprised 3500 acres and was available for purchase at approximately $2.5 million. Gabriel urged me to purchase Langford and the adjacent property with him and I agreed. He said that I should leave all the business side of things to him. We purchased Langford and the adjacent property in 1993. Gabriel said that the two properties would be registered in my name in order to recognise my monetary contribution. Gabriel purchased Burakki in the names of certain of his companies in which he had interests. In order to raise the finance for the purchase of Langford I sold the house at 84 Argyle Road for $790,000 and, at Gabriel’s request, I resigned from Ruytons and in July 1993 we moved from Argyle Road to 35 Alexandra Avenue, South Yarra, where we continued to live as man and wife and we traveled together from South Yarra to Walcha on a number of occasions. We resided at 35 Alexandra Avenue, South Yarra until 31 December 1993 and then moved to my sister’s house in Croydon for a couple of weeks before moving to Langford.”
In an earlier affidavit sworn on 24 June 2002 Mrs Oates swore in paragraph 15 as follows:
“15.In 1992, the plaintiff urged me to buy a farm property, Langford, at Walcha, New South Wales, together with him. We sold the Argyle Road, Kew, property for $790,000 and I contributed approximately $327,000 of my share in the Argyle Road property towards the purchase price of Langford. In addition, after the plaintiff had made enquiries concerning my superannuation entitlements, and at his urging, I paid $150,000 of my superannuation monies, plus a further $52,000 of funds which I had, toward the purchase of Langford. I also paid $60,000 to a company, Melbrook Pty Ltd, in which the plaintiff was the principal shareholder and a director, in order to help reduce that company’s overdraft to a bank.”
It is clear from this material that the property at Langford was identified and purchased at the suggestion of Mr Gabriel. The total cost was $660,000. Initially Mrs Oates contributed about $327,000 or 50 per cent of that purchase price. She has given oral evidence of an agreement reached between her and Mr Gabriel that the balance of the purchase moneys would be paid by Mr Gabriel, and that, although the property was eventually placed in her name, it was agreed that it would be a joint asset of the parties. However, before settlement of the purchase it was apparent that Mr Gabriel could not come up with the balance of the moneys. He asked Mrs Oates to contribute further sums and she did so. Her contributions totalled $529,000 of the $660,000 purchase price.
Mrs Oates said in evidence that finance was taken out on a short term basis or a bridging basis to enable the settlement of the purchase of the Langford property to occur. Mr Gabriel said that he would repay any such finance and procure the situation that Langford was unencumbered. In this way he would ensure that he contributed one half of the purchase consideration for the Langford property. I accept this evidence as establishing an agreement between Mr Gabriel and Mrs Oates that they would contribute equally to the purchase price of the Langford property (the "equalisation agreement"). This has not occurred. Mrs Oates has paid $199,000 more than her 50 per cent share of her purchase consideration. In these circumstances I find that Mr Gabriel has breached the equalisation agreement and that Mrs Oates is entitled to recover from him by way of damages the sum of $199,000.
I infer from the evidence that Mr Gabriel used the Langford property as security for advances to him or to companies associated with him so that he could conduct various speculative business dealings. These business dealings were unsuccessful. Mr Gabriel could not repay the amounts owing to the bank which were secured over the Langford property. Instead of being the sole owner of Langford as an unencumbered property, in accordance with the intent of the equalisation agreement, Mrs Oates found that the bank sought possession of the property and a monetary judgment against her. A monetary judgment in the sum of $1,131,395 was entered against Mrs Oates and Mr Gabriel jointly by the National Bank of Australia. Even following a sale of the Langford property for the sum of $495,000 or thereabouts, the amount still owing under that judgment well exceeds $600,000 together with interest.
In respect of this liability, which was incurred on behalf of Mrs Oates by Mr Gabriel in order to promote his business activities and interests, Mrs Oates has had to suffer this judgment for some time. I have heard evidence that she paid $10,000 towards it by $2,000 instalments over five months. Apparently on this basis the National Bank will not pursue her further in respect of the unsatisfied judgment. The National Bank has reserved all of its rights against Mr Gabriel, but apparently cannot find him to achieve any satisfaction. These matters are relevant to the claim under s.285 of the Act to which I now move. Section 285 of the Act is in the following terms:
“285. Order for adjustment
(1)A court may make an order adjusting the interests of the domestic partners in the property of one or both of them that seems just and equitable to it having regard to -
(a)the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both the partners; and
(b)the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the domestic partners to the welfare of the other domestic partner or to the welfare of the family constituted by the partners and one or more of the following -
(i) a child of the partners;
(ii)a child accepted by one or both of the partners into their household, whether or not the child is a child of either of the partners; and
(c)any written agreement entered into by the domestic partners.
(2)A court may make the order whether or not it has declared the title or rights of a domestic partner in respect of the property.”
Section 285 provides a wide discretion to a court to adjust property owned by domestic partners, in a manner which seems just and equitable to the court.
The basis upon which the jurisdiction has been exercised has been considered in a number of cases. In Conn v. Martusevicius[1] Vincent J of this court said at page 754:
"Whilst the rights conferred upon an applicant by the Victorian provisions are by no means as extensive as those which can arise under the De Facto Relationship Act 1989 New South Wales upon which it appears to have been based, it is, in my opinion, reasonable within its ambit of operation to adopt a similar approach to that followed by the courts with respect to the New South Wales legislation, according to which a judge:
'… should proceed, first, to identify, and value the assets of the parties; second, to determine whether any, and if so, what contributions of the type contemplated by s.20(1)(a) and (b) have been made by each partner; third, to determine whether in the circumstances, the contributions of the applicant have already been sufficiently recognised and compensated for; and, finally, to determine what order is called for in order that the applicant's contributions be sufficiently recognised and compensated for'."
[1](1991) 14 Fam LR 751
This statement of principle was taken from a New South Wales case, D v. McA[2]. There have been a number of other cases in this state which have considered the extent of the jurisdiction under s.285.
[2](1986) 11 Fam LR 214 at 228 per Powell J
In Robertson v Austin[3] Nettle J was content to adopt the statement of principle of Vincent J in Conn and similar statements of principle have been made in Lovegrove v Richards[4] by Balmford J and in Burns v Chazan[5] by Kellam J.
[3][2003] VSC 80
[4][2003] VSC 465
[5][2000] VSC 328
There is no doubt that I have a wide discretion, having regard to all of the circumstances of the case and the context in which the contributions were made.
With this in mind I turn to the contributions made by Mrs Oates to the financial resources of Mr Gabriel and herself during the course of the domestic relationship. In addition to the moneys lent, the motor vehicle taken and sold, and the moneys paid towards the Langford property there were also other contributions by Mrs Oates to the financial resources of Mr Gabriel and his companies and also to the welfare of Mr Gabriel.
As to financial contributions, I will cite some examples. First, at the time of purchase of the Langford property Mrs Oates made available $60,000 to a company Melbrook Pty Ltd of which Mr Gabriel was the shareholder and director in order to reduce that company's overdraft with the bank. That money has never been repaid.
Second, between August and December 1993 Mrs Oates provided a series of further payments for the benefit of Melbrook Pty Ltd totalling $125,282.30. None of this money has been repaid.
Third, in November 1995 Mrs Oates returned to work for a short period when money was tight. She earned $25,000. That money was put towards the joint needs of Mr Gabriel and herself.
Fourth, there is the $10,000 which Mrs Oates has recently paid to the National Bank in respect of the outstanding judgment against her and Mr Gabriel.
Finally, there is a credit card debt which is still being paid off by Mrs Oates. It presently amounts to some $1,800 and in large part this was built up at a time when Mrs Oates was paying for the medical and pharmaceutical needs of Mr Gabriel as a result of heart surgery in 1999 in Sydney.
As to non-financial contributions, Mrs Oates contributed greatly. She lived with Mr Gabriel as a partner for in excess of 11 years and gave him company and support as a de facto wife. She gave up a successful career of 29 years. She worked hard on the property at Langford and did many other unpaid tasks for Mr Gabriel and his company. She helped and supported Mr Gabriel through open heart surgery and rehabilitation in Sydney in 1999. During this period she was his sole carer. She liaised with doctors and managed his medication and paid for it. She stayed in a hostel in Sydney to be near him during this difficult time.
No doubt Mr Gabriel also contributed towards the joint needs of himself and Mrs Oates. He must have provided her with some company and support. Although Mrs Oates spoke of Mr Gabriel with bitterness and resentment, describing him as a selfish bully, she stayed with him for in excess of 11 years. However, the fact remains that Mrs Oates contributed all of her net worth to the joint needs of herself and Mr Gabriel and in making loans to Mr Gabriel, and companies controlled by him, for his business ventures. As a result, Mrs Oates has lost all of her assets and her career.
On the other hand, Mr Gabriel received large sums of money over the years of the continuation of the domestic relationship which, apart from some contribution towards the joint needs of himself and Mrs Oates, was either frittered away in unsuccessful and speculative business activities and property acquisitions or else has been secreted away, perhaps overseas.
There was evidence that Mr Gabriel received a number of large sums, which were far in excess of that needed to fund the joint needs of himself and Mrs Oates. I will give a number of examples.
First, he received approximately $2.5 million from the auction of goods, principally antiques and so on, in 1991. This auction occurred just prior to the receivers taking possession of a rural property controlled by Mr Gabriel known as Seven Creeks. Secondly, he received the sum of $434,993 from the auction of chattels at Langford in New South Wales in 1994. Thirdly, he received some $132,500 in 1999 described as "the Woolworths money". Fourthly, he received the proceeds of insurance money, perhaps some millions of dollars, paid to an offshore company controlled by him called Viscount International Incorporated.
In this regard Ms Nadenbousch, who is the second defendant and the daughter of Mr Gabriel, gave evidence that Mr Gabriel informed her about this company and told her to look into it if he should die. This conversation occurred shortly prior to Mr Gabriel undergoing heart surgery in Sydney in 1999.
Further, Ms Oates gave evidence about statements made to her by Mr Gabriel to the effect that a large insurance settlement had been received by Viscount International in respect of a boat which had been purchased overseas at a cost of between $4 million and $6 million.
There is also evidence of large monetary claims having been made against Mr Gabriel by lenders. It appears that the judgment of the National Bank against he and Mrs Oates is well in excess of $600,000 and remains unsatisfied. Notwithstanding this, I infer from Mr Gabriel's absence at the trial that he is likely to have assets beyond the stored chattels and the chandelier. However, in the absence of evidence I cannot exercise any power under s.285 in respect of any other assets. To do so, I would require evidence as to what the assets are, and their approximate value, so that I can make adjustments.
In all the circumstances I am satisfied that it is just and equitable to order under ss.285 and 291 of the Act that the whole of Mr Gabriel's interest in the stored chattels and the chandelier be transferred to Mrs Oates. Further, in order to assist Mrs Oates to recover possession of these chattels I will declare that she is the owner of those chattels.
I note that Nettle J determined that the stored chattels were owned by Mr Gabriel "or someone else other than" the estate of his late mother. The only person put forward by Mr Gabriel in his claim as being someone else who might have an interest in the relevant chattels are the companies who are plaintiffs together with Mr Gabriel. I received evidence that each of these companies has been deregistered and that each of them was formed after the chattels were acquired. I find that Mr Gabriel is the sole owner of the stored chattels and the chandelier and that none of these companies had any interest in them at the time of its de-registration.
As I have stated, I will also enter judgment for damages and for moneys lent.
Finally, I am satisfied that the claim by Mr Gabriel against Mrs Oates should be dismissed. He has taken no steps to prosecute it and the remainder of this proceeding between he and Mrs Oates was listed before me for trial. Furthermore, on his own evidence his claim has no merit. On 18 July 2003, after making his claim against Mrs Oates, Mr Gabriel swore in an affidavit as follows:
"I have no basis, hearsay or otherwise, for believing that my de facto partner, Hilary Eirene Oates is in possession of my property that was taken from Langford estate, owned by Hilary Oates in Walcha, New South Wales."
As to costs, Mr Gabriel must pay Mrs Oates' costs of the proceeding and of the counterclaim by Mrs Oates against him, including all reserved costs.
As to the form of orders, there will be judgment for the fifthnamed defendant and plaintiff by counterclaim, Hilary Eirene Oates, against the first plaintiff and defendant to counterclaim, Geoffrey Nicholas Gabriel, as follows:
1.In respect of the claim in conversion, judgment for damages assessed at the sum of $59,000, together with damages in the nature of interest to be calculated from 9 July 1992 at the rates fixed under s.2 of the Penalty Interest Rates Act 1983.
2.In respect of the claim for breach of the equalisation agreement, judgment for damages assessed at the sum of $199,000, together with damages in the nature of interest to be calculated from 8 July 2002 at the rates fixed under s.2 of the Penalty Interest Rates Act 1983.
3.In respect of the claim for moneys lent, judgment in the sum of $40,000 together with damages in the nature of interest to be calculated from 8 July 2002 at the rates fixed under s.2 of the Penalty Interest Rates Act 1983.
4.I declare that the chattels described in items 1, 6, 8, 9, 10, 13, 15, 18, 22, 25, 27-29, 36, 38, 43, 44, 48, 49, 51, 55, 57, 61-63, 69, 70, 73, 79, 82, 84-87, 90, 95, 102-104, 106-109, 112, 114, 116, 117, 119, 121-123, 126, 127, 129, 131, 132, 141, 143, 152, 153, 155, 157, 158, 163, 169 and 173 of schedule A and item 2 of schedule B to the orders of Master Wheeler made in the proceeding on 2 September 2003, a copy of which schedule is annexed hereto, were until 9 May 2005 the property of the plaintiff.
5.Pursuant to s.285 of the Property Law Act I order that the whole of the interest of the plaintiff, Geoffrey Nicholas Gabriel, in the chattels described in paragraph 4 hereof, be transferred to the fifth defendant, Hilary Eirene Oates, by force of this order.
6.I declare that on and from this day Hilary Eirene Oates is the owner of the chattels described in paragraph 4 hereof.
7. The claim by the plaintiff against the fifth defendant is dismissed.
8.The plaintiff is to pay the costs of the fifth defendant and plaintiff by counterclaim, Hilary Eirene Oates, of the proceeding generally including all reserved costs.
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SCHEDULE A TO THE ORDERS OF MASTER WHEELER MADE 2 SEPTEMBER 2003
Item Description Catalogue Reference Admitted as being Trust property Identified by Merrilynne Gabriel 1* “The Dancer”, Oil on canvas, Spanish school, circa 1860, 89cm x 140 cm
973
[P]No 2* “The Brook”, Oil on board, signed Robert Ulman, 1978, 76cm x 93cm 1020 Yes 3* “The Cottage” watercolor, monogrammed, after Miles Birket Foster, 30 x 40cm 940 Yes 4* “The Princess”, after Valasquez, reproduction print 5* “Police waterhole”, oil on canvas, signed Nonia Johnston, 73 x 48cm 982 Yes 6* “The Goldfish”, oil on canvas, signed Granville Dunstan, 132cm x 75cm 982 7* “The Gap”, oil on canvas, signed Nonia Johnston, 76cm x 92cm 990 Yes 8 “The Maidens”, oil on canvas, signed T. Scheelbeek, 1980, 68 x 48cm 9* “Rounding the Horn”, limited edition lithograph, signed in margin Richard Linton 946 HH Webb 10* “Country Landscape”, oil on board, signed R. Paterson, (19)84, 61cm x 91cm 1017 11# “Chateau Chilon”, colour engraving, c1920, 14 x 20cm Yes 12* “The Cut Log”, pencil, signed E. Buckmaster, 17.5cm x 25cm 911 Yes 13 “Still Life”, oil on canvas, monogrammed F.R., 1883, 20cm x 15cm 14* “Enough”, oil on board, signed Lillian Amey, 35cm x 45.5cm 1000 No 15* “Distant views”, watercolor, signed Barnes, 16cm x 27cm 918 16* “Milking time”, watercolor, signed Peggy Shaw, 51cm x 71cm 993 Yes 17* “An old monastery”, limited edition etching, signed in margin 25/50 Harold H Herbert 943 Yes 18# 3 drawer bed side chest 237 Yes 19# 3 drawer bed side chest 237 Yes 20# Early Aust kitchen chair Yes 21* Ceramic column & jardinière, 72cm high, 45cm diameter 684 Yes 22# Church kneeling pew 238 23* 3pc cane side suite 1058 Yes 24# 2 seater settee – French salon style, Upholstery green and pink floral brocade, low scalloped back Yes 25* Pair bronzed figurative table lamps as Spanish soldiers, 95cm high 856 26# 2 seater settee – French salon style Yes 27* Richard Linton 1979 colour Lithograph, signed in margin “Flying Cloud” 946 HH Webb 28* Richard Linton 1979 colour Lithograph, signed in margin “Bounty” 946 HH Webb 29* Sail plan & rigging plan of Cutty Sark (2) 946A HH Webb 30* “Crossing the river”, oil on canvas, signed W H Short, 123cm x 93cm 1019 Yes 31* “Back Lane at the Rocks”, oil on canvas, signed Ivars Johnson, 85cm x 105cm 1021
[P]32# Georges “Georg Jensen” coaster Yes 33* 19th cent. Bronze koro, Chinese, 34 cm diam. 839
[P]Yes 34* Marble top washstand with tiled backboard c1980, Huon Pine, 1.55 x 1.7m 1163 Yes 35# 2 fire screens with tapestry inserts: one 58 cm x 1m; the other 92cm x 90cm Yes 36* 2 leather arm chairs, burgundy leather 1094 37* Late 19th cent. Oak bookcase with foliate carved design 1055
[P]Yes 38* Large oval pedestal dining table with Victorian style pedestal with Ball and Claw Feet, 2.4m long 1089 Yes 39# Half moon hall table Yes 40# 3 drawer bedside chest 268 Yes 41 4 drawer bedside chest 42* 3 drawer dressing table with wing mirrors cabriole feet, 1950, 1.24m wide, 1.5m high, 3 drawers 1138 Yes 43* Over mantel mirror with molded gold col frame, approx. 2m x 1.05m 1067 Yes 44# Bedside 2 drawer cabinet serpentine front Yes 45* 19th cent hand carved overmantle mirror, gilt, 2.1m x 1.34m 1025 Yes 46* Hand carved wooden frame overmantle mirror, 1.25m x 2.04m 1052 Yes 47* Pair Chinese ceramic vases, converted to lamps, circa 1920, 45cm high, Flowers on a brown background 820 Yes 48* Timber pedestal, 90cm high, c1890, Turned 1121 49* Dressing table stool with cabriole feet, Upholstery is pale green floral chintz, buttoned 1139 Yes 50* 19th cent. Cedar credenza with mirror back Admitted [1] Yes 51* 2 brass kero lamps converted to electricity, approximately 50cm high 869A 52# 5 Lois XVI style armchairs, mustard velveteen upholstery Yes 53* 2 brass table lamps with glass shades 553 Yes 54# Bentwood chair and 2 early 20th cent. Kitchen chairs Yes 55* Spelter figurative table lamp, 19th cent., (formerly gas lamp), signed Rancoulet af 844 Yes 56* Mid 19th cent. Japanese cupboard 1027 Admitted
[1]
Yes 57 Suite of green colored upholstered furniture (modern) 58# White painted throne-style stool, pink velveteen upholstery Yes 59# Small wing back armchair, Upholstery green and black 262 Yes 60* Various furs, wraps, coat Admitted
[1]
Yes 61* “Startled” pair bronze greyhounds, overall height 103cm 887 62* “Landscape with Stream”, oil on board, signed PF Campbell, 41cm x 51cm 949 63* “River landscape”, oil on board, signed PF Campbell, 41c x 51cm 949 64# “End of summer”, oil on board, signed Anne Holmes, 48cm x 73cm Yes 65# “Rocky crag”, oil on board, signed Stanley, 38 x 48cm Yes 66* “Rose still life”, oil on canvas, signed Yukio, 36 x 44cm 928 Yes 67* “Coastal landscape”, watercolor, signed N Gude, 16cm x 24cm 984 68* “Magnolia time”, framed print and “Hooded Warbler”, framed print 947 Yes 69* Pair 19th cent English watercolors. “The waterwheels”, both signed with pencil. 908 70 Framed photo of Kelly Gabriel No 71# Cane Dexter rocking chair 219 Yes 72# Late 9th cent. Firescreen frame Yes 73# 19th cent. Salon armchair, green velvet upholstery Yes 74* Reproduction armchair, green velvet upholstery 1128 Yes 75* Fall front writing cabinet 1133 Yes 76# Pair 19th cent. Balloon back bedroom chairs, Upholstery green background with pink roses Yes 77# Pair 19th cent. Balloon back bedroom chairs, Upholstery green background with pink roses Yes 78* 6 early Victorian style dining chairs with Regency stripe upholstery 1076 Admitted
[1], [2]
Yes 79* Suite 12 dining chairs inc. 6 carvers & 6 uprights circa 1890 1079
[P]Yes 80* 19th cent. Mahogany stand 1172 Yes 81* Oriental circular brass top table, 59cm diameter 855 Yes 82* Cutty Sark, print 946A HH Webb 83# “Still life of Spring flowers”, oil on board, 54 x 75cm Yes 84* “America’s cup”, limited edition print, by Jan Hanson 1983 945 HH Webb 85* “Cutty Sark”, general arrangement – print 946A HH Webb 86* Model of “Cutty Sark” in cabinet 932 HH Webb 87* 10 dining chairs (inc 2 carvers), Louis XVI influence, black leather seats 1088
[P]No 88# 1 floor rug – red borders Yes 89* Brass ship’[s bell, 40cm diameter, 45cm high 878 Yes 90* Modern rug- pale green tones, 208cm x 168cm 901 91* Large porcelain Satsuma saucer dish dragon design blue gilt & red borders, red seal mark, diameter 95cm, broken & repaired 792
[P]Admitted
[1], [2]
Yes 92* Gothic revival Oak armchair with heavily carved back, broken back 1047 Yes 93* Fire screen with tapestry insert 1155 Yes 94# 19th cent. Cavalry sword Yes 95 “The story teller”, oil on canvas, pair, signed Gusselberg, 40 x 50cm 96 “The lake”, oil on board, unframed, signed McDonald, 60 x 50cm 97* Set 3 oriental watercolor signed with red seal, 50 x 34cm 969-971 Yes 98* “Roses”, framed oriental print 962 Yes 99# “Red awnings”, oil on board, signed, 29 x 44cm Yes 100 Framed Print, FM Bennett 101 “Afternoon light”, framed print 102* “Mother and child”, oil on canvas, signed Dorothy Francis, 44 x 58cm 937 No 103* 3 ice bucket stands with dragon decoration to base 641-643 104 Brass circular side table, 37.3cm diameter, England 105# 19th cent. Walnut dressing table with beveled mirror, 4 small drawers and single drawer to top, carved legs and mirror brackets Yes 106* 19th cent. French bronze figure of hunter with boar at his feet, as lamp, 113cm high approx. 862 107 Early wooden column, 106cm high 108* HMV gramophone in decorative walnut cabinet, simulated drawers to speaker box, cabriole legs 1075 109# Corby gent’s valet Yes 110* “Famille rose” ceramic vase as table lamp, 40cm high 813 Yes 111# Leg stool, 110cm Yes 112* 8 bottle E.P ice vessel with 2 handles 634 113* Edwardian flip top side table, the top with tapestry under 1156 Yes 114 19th cent. Pedestal pot table, 63cm high, 31 cm diameter 115# 1920’s oak, rope edge coffee table, 1.5m x 70cm Yes 116 Ceiling light fitting 117* Pedestal coffee table, marquetry inlay, 1.08m x 70cm 1062 Yes 118* Louise XVI style 2 drawer walnut writing table 1101 Yes 119* Piano stool, Ebonised 1035 No 120# Military sword, 19th cent. Yes 121* “Australia bound”, oil on canvas, signed Graham Hedges 944 HH Webb 122* Oriental temple seat as elephant, 60cm wide, 45cm high, dark green orange and yellow 685 Yes 123 Apprentice Glass fronted cabinet 124* Victorian gent’s armchair – gold brocade upholstery 1146 Yes 125# Victorian lady’s armchair – gold brocade upholstery Yes 126* Arts & craft style cabinet with platform base, cupboards abofe & turreted superstructure, brass strapwork 1028
[P]Yes 127* Piano corder by Petrot in ebonised case 1035
[P]No 128* Victorian mahogany sideboard of massive proportions, having a frieze drawer above a central door & 2 bowed doors, scrolling columns 1087
[P]Admitted
[1]Yes 129* Late 19th cent. Continental walnut bookcase, 223cm high x 285cm 1097
[P]130* 1 leaf oval extension dining table with ball & claw feet, the legs with carved shoulders, rope edge pattern 1077 Admitted
[2]
Yes 131* Victorian D end 5 leaf extension dining table with heavily carved pedestal on 4 claw feet 1080
[P]132* Hand stitched Indian rug as wall hanging 1.05m x 1.66m 833 Yes 133# Persian prayer rug, 1.7m x 92cm Yes 134* 19th cent. Sideboard / serving buffet with red marble top and galleried superstructure, 1.8m wide, 1.9m high 1034 Yes 135* Small oak writing table with 2 small and 1 long drawer 1162 136* A large gong – Oriental, 59cm wide, 97cm high 790 Yes 137# An early circular foot stool, 30cm diameter, upholstery is embroidered pink and green flowers Yes 138* A large oriental vase with back ground birds and flower decoration, 62cm high 791 Yes 139* 19th cent. Cedar tilt top breakfast table on pedestal with claw feet & carved shoulders 1023 Yes 140* Pedestal 8 drawer desk, 1 x 1.87m 1098 Yes 141# Spelter jewelry casket Yes 142# Shaving mirror Yes 143# Oval 19th cent. Mirro on pedestal base Yes 144* Nest 3 side tables 1171 Yes 145# 2 wall clocks, circa 1900: One in oak with roman numbers, 31 x 10cm; the other painted white, 27 x 110cm Yes 146# Small Satsuma vase, 12cm high Yes 147* David & Hermia Boyd jug, signed 741A Yes 148# Wedgwood breakfast set Yes 149* Gouda ewer vase 769 150* Coalport “Indian Tree” dinner service 678 Yes 151* Sterling silver dressing table st 828 Yes 152# 19th cent. Platter registration mark circa 1870 Yes 153# Famille verte square dish, figurative decoration Yes 154# Various oriental ceramics, ornaments Yes 155* 3 19th cent. Hot water heated plates 761 156# Persian style rug, made in Poland, machine made, 175 x 250cm
Note this is a duplicate of item 88Yes 157# Church Pews 224-
227;
239-
252;
255-
258No 158 Late 19th cent. Pedal organ 159* Rectangular foot stool, upholstered in gold velvet 1111 Yes 160* A circular bronze pressed metal wall plaque depicting Charles Quint, late 19th cent. 957 Yes 161* A circular bronze pressed metal wall plaque depicting Catherine D’Aragon, late 19th cent. 957 Yes 162* Pair Louis XV style fauteuils, with cartouche shaped backs and cabriole legs 1042 Yes 163 A 20th cent. Queen sized bed head board, button back 164* Ceramic stein decorated with medieval feast, hinged lid 669 Yes 165* A Persian design wool rug with figures on horseback and animals on a red field 895 Yes 166* A double bed head with gold velvet buttoned back 1164 Admitted
[2]
Yes 167 19th cent. Bronze two handled vase with enameled floral decoration, Chinese 168# Early 20th cent. Copper coal scuttle Yes 169# Allison baby grand piano with walnut cabinet Yes 170# Late 19th cent. Style settee with carved upholstered back & arms, on cabriole legs, floral fabric. Yes 171 “Priming the Hounds”, framed water colour painting 172# “Still Life with Blue Vase”, water colour, unframed, some foxing Yes 173 A wrought iron stand with 3 twist supports, scrolling stretchers, complete with stainless steel vat. 85cm high
| SCHEDULE B TO THE ORDERS OF MASTER WHEELER MADE 2 SEPTEMBER 2003 | ||||
| 1* | Brass and stained glass hall lamp | 865 | ||
| 2* | 48 light crystal chandelier | 564 | ||
| 3* | Pair of 6 light brass chandeliers | 562 | ||
| 4* | Venetian Glass 8 light chandelier | 556 | Admitted [2] | Yes |
| 5* | Gothic silver Chandelier | 558 | Yes | |
| 6# | 6 Arm Brass Empire style Chandelier | 183 | ||
NOTES [P] Indicates that there is a photograph of the lot in the catalogue (Exhibit 27).
[1]Refer to the document filed by the Geoffrey Gabriel dated 9 February 2001 entitled “Document listing the items which have been removed by the first and second defendants identifying which plaintiff to whom they belong”.
[2]See paragraph 8 of the affidavit sworn by Geoffrey Gabriel on 18 July 2003 and Exhibit “GG6” to that affidavit. Geoffrey Gabriel has there identified various items in the catalogue as being Trust property.
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