Googe v Spoljaric

[2017] WADC 99

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   GOOGE -v- SPOLJARIC [2017] WADC 99

CORAM:   GETHING DCJ

HEARD:   6-8 JUNE 2017

DELIVERED          :   10 AUGUST 2017

FILE NO/S:   CIV 3969 of 2016

BETWEEN:   DARIUS GOOGE

Plaintiff

AND

LJUBICA SPOLJARIC
First Defendant

MARIO IVKOVIC
Second Defendant

Catchwords:

Contract - Whether initial contract varied by a subsequent contract

Contract - Allocation of money paid by a debtor where there are two contracts pursuant to which the debtor owes money

Contract - Breach - Termination - Breach of essential term - Serious breach of non­essential term - Repudiation

Contract - Remedies - Specific performance - Damages

Tort - Detinue - Conversion - Trespass to goods - Remedies - Order for delivery up of property

Legislation:

Nil

Result:

Plaintiff's claim against first defendant successful
Plaintiff's claim against second defendant dismissed

Representation:

Counsel:

Plaintiff:     In person

First Defendant              :     Mr J G Kitto

Second Defendant         :     In person

Solicitors:

Plaintiff:     Not applicable

First Defendant              :     Kitto & Kitto

Second Defendant         :     Not applicable

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

Ailakis v Olivero [No 2] [2014] WASCA 127

Amann Aviation Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; (1987) 162 CLR 549

ANZExecutors and Trustees Ltd v Humes Ltd [1990] VR 615

Associated Newspapers Ltd v Bancks [1951] HCA 24; (1951) 83 CLR 322

Australian Goldfields Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98

Avenue (WA) Pty Ltd v Plazaline Pty Ltd [2007] WASC 173

Bahr v Nicolay [No 2] [1988] HCA 16; (1988) 164 CLR 604

Bavins v London & South Western Bank [1900] 1 QB 270

Black Diamond Group Pty Ltd v Manor of Maluka Pty Ltd [2015] 1 Qd R 180

Butler v Egg and Egg Pulp Marketing Board [1966] HCA 28; (1966) 114 CLR 185

Chep Australia Limited v Bunnings Group Limited [2010] NSWSC 30

City Motors (1933) Pty Ltd v South Aerial Super Service Pty Ltd [1961] HCA 53; (1961) 106 CLR 477

CLC Corporation v Cambridge Gulf Holdings NL (1997) 25 ACSR 296

Commissioner of Taxation v Sara Lee Household & Body Care [2000] HCA 35; (2000) 201 CLR 520

Dougan v Ley [1946] HCA 3; (1946) 71 CLR 142

Douglas v Cicirello [2006] WASCA 226

Dowsett v Reid [1912] HCA 75; (1912) 15 CLR 695

DTR Nominees Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423

EE McCurdy Ltd (in liq) v Postmaster-General [1959] NZLR 55

Egan v State Transport Authority (1982) 31 SASR 481

Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95

Eskin, Erenli & Balkaya v Trewin (Unreported, SCt of Vic; 8307/91; 15 June 1995)

Fullers' Theatres Ltd v Musgrove [1923] HCA 12; (1923) 31 CLR 524

GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; (2008) 128 FCR 1

General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Goldsbrough Mort & Co Ltd v Quinn [1910] HCA 20; (1910) 10 CLR 674

Gollan v Nugent [1988] HCA 59; (1988) 166 CLR 18

GT Corporation Pty Ltd v Amare Safety Pty Ltd [2008] VSC 143

Hobbs v Petersham Transport Co Pty Ltd [1971] HCA 26; (1971) 124 CLR 220

Holroyd v Marshall (1862) 10 HLC 191, 11 ER 999

Hungerfords v Walker [1989] HCA 8; (1989) 171 CLR 125

Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338

International Advisor Systems Pty Ltd v XYYX Pty Limited [2008] NSWSC 2

J C Williamson Ltd v Lukey & Mulholland [1931] HCA 15; (1931) 45 CLR 282

Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351

JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16

Konings v Commonwealth Bank of Australia [2016] WASCA 122

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623

Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406

MacKenzie v Albany Finance Ltd [2004] WASCA 301

Marist Brothers Community Incorporated v Shire of Harvey (1994) 14 WAR 69

Mehmet v Benson [1965] HCA 18; (1965) 113 CLR 295

Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65

Morison v London County and Westminster Bank Ltd [1914] 3 KB 356

Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65

MTI v SUL [No 2] [2010] WASCA 58

Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148

Pargiter v Alexander (1995) Aust Torts Reports 81-349

Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204

Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146

Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd as Trustee for Golden Asset Pty Ltd [2012] WASC 443

Re Attorney‑General (Cth); Ex Parte Skyring [1996] HCA 4; (1996) 70 ALJR 321

Re MAS Food Industries (Australia) Pty Ltd (in liq); Ex parte Charles Philippe Louis Nilant as liquidator of MAS Food Industries (Australia) Pty Ltd (in liq) [2000] WASC 155

Re Peatling, deceased [1969] VR 214

Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd [1968] HCA 64; (1968) 120 CLR 516

Rehins Pty Ltd v Debin Nominees Pty Ltd [No 2] [2011] WASC 168

Robinson v Harman (1848) 1 Exch 850, 855; (1848) 154 ER 363

SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26

Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620

Smart v Prisoner Review Board (WA) [2012] WASC 48

South Dowling Pty Ltd v Cody Outdoor Advertising Pty Ltd [2005] NSWSC 391

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 83 ALJR 390

Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd [1957] HCA 10; (1957) 98 CLR 93

Tallott v City of Stirling [2017] WASCA 126

Tallott v City of Stirling [No 2] [2015] WASC 483

Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2005] NSWSC 951

The Public Trustee (WA) v Brumar Nominees Pty Ltd [No 2] [2012] WASC 337

Tobin v Dodd [2004] WASCA 288

Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632

Turner v Bladin [1951] HCA 13; (1951) 82 CLR 463

Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38; (1998) 192 CLR 603

Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113

Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21; (2015) 47 WAR 547

Wade Sawmill Pty Ltd v Colenden Pty Ltd [2007] QCA 455

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387

Wellington City v Singh [1971] NZLR 1025

Wentworth v Rogers [No 5] (1986) 6 NSWLR 534

Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184

GETHING DCJ: 

1. Overview

1. In the first few months of 2013, Darius Googe, the plaintiff, entered into two contracts to purchase two country taxi plates, CT 191 and CT 199, from Ljubica Spoljaric, the first defendant.  Mr Googe was able to use each plate whilst he was paying off the purchase price by way of instalments.  Under the contracts, he would not become the registered owner of the taxi plate until payment had been made in full.  There is an issue as to whether Mr Googe initially paid a deposit of $20,000, as he asserts, or $10,000, as Ms Spoljaric asserts.

2. In September 2013 Mr Googe and Ms Spoljaric came to an arrangement by which the instalments paid towards the purchase of taxi plate CT 199 would be put towards the purchase of taxi plate CT 191, and taxi plate CT 191 would be formally transferred from Ms Spoljaric to Mr Googe.  The precise terms and legal effect of this arrangement are in issue.

3. In the first few months of 2014, Mr Googe only paid instalments in relation to one of the taxi plates.  He says that this is because the effect of the arrangement with Ms Spoljaric in September 2013 was a legally enforceable variation to reduce the amount of the purchase price for taxi plate CT 191 to $150,000, an amount which he says he paid off in November 2013.  This left only the payments for taxi plate CT 199, which he says he paid as due.

4. Ms Spoljaric says that there was no legally enforceable variation to reduce the purchase price for taxi plate CT 191.  This meant that Mr Googe had an ongoing obligation to pay the instalments for both taxi plates CT 191 and CT 199 throughout the first half of 2014.  This, she says, he did not do, with the effect that he was in breach of the contract for taxi plate CT 199, entitling her to terminate the contract and remove the taxi plate from Mr Googe's vehicle.

5. It is common ground that taxi plate CT 199 was removed from Mr Googe's vehicle in the early evening of 29 May 2014.  Mr Googe says it was removed by Mario Ivkovic, the second defendant.  Ms Spoljaric says that it was removed by her son, Tomislav Spoljaric, on her instructions.

6. Mr Googe seeks specific performance of the contract for the purchase of taxi plate CT 199 as well as damages in contract and tort against Ms Spoljaric.  He also asserts that Ms Spoljaric holds taxi plate CT 199 on trust for him.  Against Mr Ivkovic, Mr Googe seeks remedies in tort and equity arising out of the allegation that he removed taxi plate CT 199 from Mr Googe's vehicle, as well as an assertion that he is currently in possession of this taxi plate.

7. The action was tried before me on 6, 7 and 8 June 2017.

8. For the reasons which follow, Mr Googe is entitled, among other alternate remedies, to specific performance of the contract for the purchase of taxi plate CT 199.  His claim against Mr Ivkovic should be dismissed.

9. At the commencement of the hearing an agreed bundle of documents was tendered by consent, which became exhibit 1.  I will refer to the documents in the agreed bundle by the reference 'AB' followed by the page number.

1. Issues arising for determination

1. Prior to the commencement of the trial, I sent the parties a draft outline of the issues requiring determination in the trial.  This was the subject of a number of discussions with Mr Googe, Mr Ivkovic and counsel for Ms Spoljaric during the trial.  I prepared a final version which was circulated to the parties at the conclusion of the trial, which they were invited to use as the basis for preparing written closing submissions.  I subsequently received written closing submissions from Mr Googe and counsel for Ms Spoljaric.

2. The issues which I am required to determine have been narrowed somewhat from the document which was circulated based on the issues which ended up not being in dispute and the factual findings which I have made.  Based broadly on the issues document, and in light of the evidence adduced by the parties, the following issues arise for determination:

   •How much deposit did Mr Googe pay Ms Spoljaric at the beginning of April 2013 in relation to the purchase of taxi plates CT 191 and CT 199?

   •Did the parties agree to vary the terms of the contract for the purchase of taxi plate CT 191 in September 2013 and, if so, in what terms?

   •Did Mr Googe breach the terms of the contract for the purchase of taxi plate CT 199 (CT 199 Contract)?

   •Who removed taxi plate CT 199 from Mr Googe's vehicle on 29 May 2014?

   •Did Ms Spoljaric breach the terms of the CT 199 Contract by arranging for her agent to remove taxi plate CT 199 from Mr Googe's vehicle in May 2014?

   •Is Mr Googe entitled to damages for breach of the CT 199 Contract?

   •Is Mr Googe entitled to an order for specific performance of the CT 199 Contract?

   •Is Mr Googe entitled to any remedy against Ms Spoljaric in equity?

   •Is Mr Googe entitled to any remedy against Ms Spoljaric in tort?

   •Is Mr Googe entitled to any remedy against Mr Ivkovic in tort?

   •Is Mr Googe entitled to any remedy against Mr Ivkovic in equity?

   •What final orders are appropriate?

3. In determining these issues, I have had regard to the fact that Mr Googe and Mr Ivkovic appeared in person, whilst Ms Spoljaric was represented.

4. There are some well-established general principles providing guidance on the level of flexibility and assistance which is to be provided to a litigant in person.  A litigant in person is entitled to some leniency in relation to compliance with the court rules:  Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (Judgment of the Court). The court should approach the documents in which a litigant in person articulates their claim with some flexibility: Wentworth v Rogers[No 5] (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J). The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which a litigant in person sets out their case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form: Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed). A 'frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy': Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (Brennan, Deane, Toohey, Gaudron & McHugh JJ); Ibrahim [21]; Glew [10]; Tobin [14]. In Re Attorney‑General (Cth); Ex Parte Skyring [1996] HCA 4; (1996) 70 ALJR 321, 323 Kirby J stated:

   [I]t is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not previously been seen and which may have merit.  Vigilance, and not impatience, is specially required where that person is not legally represented.

5. A court ought to assist a litigant in person to the extent consistent with the interests of justice.  What the court ought to do will depend upon the nature of the case and the litigant's capacity to understand the issues in the case:  Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113, [15] – [16] (Reasons of the Court); Konings v Commonwealth Bank of Australia [2016] WASCA 122 [12] (Reasons of the Court); Tobin [14]. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored: Van Der Feltz [15] – [16]; Konings [12]; Tobin [14].

6. The court must not intervene to such an extent that a position of neutrality cannot be maintained or a litigant in person is given a positive advantage over another party: Konings [12]. The court also needs to ensure that any latitude given to a litigant in person does not deprive the other party of its rights to procedural fairness and a fair hearing: Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; (Judgment of the Court); MTI v SUL [No 2] [2010] WASCA 58 [42] ‑ [43]; (Newnes JA, with whom Pullin & Buss JJA agreed); Glew [10].

7. These principles governed the manner in which I conducted the trial and have decided the issues in dispute.

1. Background facts

1. Many of the facts relevant to the determination of this dispute are not in issue.  It is instructive to state these facts at the outset.  Within this context, I will also identify the issues in dispute.  The facts set out in this part are not in issue, and I find them to have been proven on the balance of probabilities.

2. Mr Ivkovic (the second defendant) is the son-in-law of Ms Spoljaric (the first defendant), being married to her daughter Bozana.

3. Ms Spoljaric has a son Tomislav Spoljaric.  At the time of the events in question, Tomislav was married to Alicia Kingdom (though they have since separated).

4. Also involved in the matters the subject of this case is Ms Spoljaric's former husband, Ivan Spoljaric.  The two of them separated a number of years before the events in dispute.  (For ease of reference, I will refer to Tomislav Spoljaric and Ivan Spoljaric by their first names).  Ivan is Tomislav's father and Bozana's stepfather.

5. For many years prior to the events in dispute Ms Spoljaric and Ivan operated a taxi business in Port Hedland.  The taxi business was initially known as Carlindie Cabs.  At some stage before the events in dispute, Ms Spoljaric commenced using a second business name, Hedland Taxis.  Some advertising was done to promote the name Hedland Taxis.

6. As at the beginning of 2013, between them Ivan and Ms Spoljaric owned or controlled 14 taxi plates.  As at this time, Ms Spoljaric was the registered owner of five taxi plates and Ivan was the registered owner of four taxi plates.  By controlled, I mean taxis that used either Carlindie Cabs or Hedland Taxis as their despatch service and which carried the livery of one or other business on the vehicle.

7. Around the beginning of 2013, the day‑to‑day management of the combined business was in the hands of Mr and Mrs Ivkovic.  Mr Ivkovic was primarily responsible for the cars, drivers and the allocation of work.  Ms Ivkovic 'did the paperwork' (ts 266) for both businesses, including arranging advertising, organising maintenance, business development and managing customer complaints and enquiries.  Any problems they could not deal with were elevated to either Ivan or Ms Spoljaric.

8. Each of Carlindie Cabs and Hedland Taxis had a telephone number.  The two telephone numbers went through to the same despatch operator who dealt with all the taxis owned or controlled by Ms Spoljaric and Ivan.  The dispatch operator would answer telephone calls from members of the public and transmit job information via a private radio service to the taxi drivers.  Specifically, the driver would receive the customer's pickup address, destination and other details.  For this service, the drivers were charged a cab rank fee, which was a fixed amount per week.  It included the provision of a two-way radio transceiver in the taxi car for the private radio service.

9. At the beginning of 2013, Mr Googe was one of the drivers working for Carlindie/Hedland Taxis, and was known to all the people to whom I have referred so far.

10. Around this time Mr Googe had some discussions with Ms Spoljaric about purchasing taxi plates CT 191 and CT 199.

11. At the beginning of March 2013, Mr Googe and Ms Spoljaric came to an initial agreement for Mr Googe to purchase taxi plate CT 191 on terms by which Mr Googe would pay the purchase price by way of instalment.  Pursuant to this initial agreement, Mr Googe paid some money to Ms Spoljaric by way of deposit.  There is an issue as to how much.  Mr Googe says it was $20,000, Ms Spoljaric says it was $10,000.  This issue is the subject of pt 4.

12. Shortly after the deposit was paid, Ms Spoljaric gave Mr Googe taxi plate CT 191 and a radio system.  Mr Googe then affixed taxi plate 191 to a car and commenced using the car, working for Carlindie/Hedland Taxis.

13. On 22 April 2013, Ms Spoljaric and Mr Googe executed a short written agreement recording the terms on which Ms Spoljaric agreed to sell, and Mr Googe agreed to purchase, taxi plate CT 191 (CT 191 Contract).  The document is in the following terms (AB 2):

    This is a contract made between the Seller, Ljubica Spoljaric, and the Buyer, Darius Googe, for the same of Seller's Country Taxi Plate CT 191.

    The Country Taxi Plate is CT 191.

    The date of sale is 22^nd April 2013.  Buyer agrees to pay to Seller the purchase price of $170,000 to be paid $4,000 monthly. 

    A deposit of $90,000 to be paid 22^nd April 2013.

    If buyer is four payments late, he forfeits deposit and all other payments previously made.

    The buyer must pay $300.00 weekly to the seller as payment for rank fees.

    The seller will transfer the plate into the buyers name once all payments are made in full.

14. It is not in issue that the CT 191 Contract is a binding and enforceable contract, which contains at least the express written terms.  Nor is it in issue that, pursuant to the CT 191 Contract, Mr Googe was entitled to possession of taxi plate CT 191, subject to the terms of that contract.

1. On or about 15 May 2013, Ms Spoljaric and Mr Googe executed a short written document recording an agreement by which Ms Spoljaric agreed to sell, and Mr Googe agreed to purchase, country taxi plate CT 199 (CT 199 Contract).  The document is in the following terms (AB 3):

   This is a contract made between the Seller, Ljubica Spoljaric, and the Buyer, Darius Googe, for the sale of Seller's Country Taxi Plate CT 199.

   The Country Taxi Plate is CT 199.

   The date of sale is 15^th May 2013.  Buyer agrees to pay to the Seller the purchase price of $170,000.00 to be paid $4,000 monthly.

   If the buyer is four payments late, he forfeits all payments previously made.

   The buyer must pay $300.00 weekly to the seller as payment for rank fees.

   The seller will transfer the plate into the buyers name once all payments are made in full.

2. Mr Googe signed the CT 199 Contract.  Ms Spoljaric did not; rather her name was printed in the signature panel.  She did not dispute that her name was recorded with her authority (ts 298).

3. It is not in issue that the CT 199 Contract is a binding and enforceable contract, which contains at least the express written terms.  Nor is it in issue that, pursuant to the CT 199 Contract, Mr Googe was entitled to possession of taxi plate CT 199, subject to the terms of that contract.

4. Around the end of May 2013, Ms Spoljaric gave Mr Googe taxi plate CT199.  Mr Googe then affixed taxi plate CT 199 to a car and commenced using the car, working for Carlindie/Hedland Taxis.

5. From March 2014, taxi plate CT 199 was affixed to a Toyota HiAce vehicle, a 7‑seat minivan owned by Mr Googe.

6. From time to time, Mr Googe drove one of the taxis to which the taxi plates he was acquiring from Ms Spoljaric were affixed.

7. There was a well-established arrangement for taxis owned or controlled by Carlindie/Hedland Taxis to be operated by drivers who were not the owners of the taxi plate.  The driver would take the gross proceeds of the shift, deduct the fuel used, and then split the remaining proceeds 50:50 with the owner.  Mr Googe used this approach for much of the period between when he took possession of the two taxi plates until 29 May 2014.  Two of the drivers he used were Marlene Ebid (who gave evidence at the trial on his behalf) and Frank Njiru (who gave evidence at the trial on behalf of Ms Spoljaric).

8. From the beginning of April 2013 until the end of 2013, Mr Googe paid all the cab rank fees due under the two contracts.  It is common ground that Mr Googe made the payments set out in the following table by way of instalments of the purchase price.  Aside from the initial receipt, the designations in the table were entered by Mr Googe at the time he transferred the funds from his account by electronic funds transfer.  (For ease of reference, I have annotated this table in italics to reflect the common position that 'car 13' is a reference to taxi plate CT 191 and 'car 7' is a reference to taxi plate CT 199):

Date	Amount	Plaintiff's designation
4 April 2013	$10,000	Receipt no. 0700 Car No 13 (CT 191)
22 April 2013	$80,000	[undesignated]
6 May 2013	$1,000	[undesignated]
6 May 2013	$1,000	[undesignated]
2 June 2013	$4,000	Plat payment CT 191
5 June 2013	$4,000	Payment 4 taxi 199
1 July 2013	$4,000	CT 199
1 July 2013	$4,000	CT 191
31 July 2013	$4,000	Plat pay CT 199
31 July 2013	$4,000	Plat payment CT 191

2 September 2013	$4,000	[undesignated]
2 September 2013	$4,000	[undesignated]
30 September 2013	$4,000	Plate repay car 7 (CT 199)
2 October 2013	$4,000	Plat payment CT 191
31 October 2013	$4,000	Plate repay car 7 (CT 199)
2 November 2013	$4,000	[undesignated]
29 November 2013	$4,000	Plate repay car 7 (CT 199)
Total	$144,000

1. To this total, a further amount of $1,000 needs to be added.  This was transferred by Mr Googe by electronic funds transfer to Ms Spoljaric on 3 December 2013.  This payment was undesignated.  The payment was not in the initial table provided by counsel for Ms Spoljaric (exhibit 3).  Ultimately counsel for Ms Spoljaric did not contest that this payment had in fact been made (ts 278).  I find that it was made.

2. As I indicated in the introduction, in September 2013 Mr Googe and Ms Spoljaric came to an arrangement by which the instalments paid towards the purchase of taxi plate CT 199 would be put towards the purchase of taxi plate CT 191, to allow the purchase of taxi plate CT 191 to be completed and the plate transferred to Mr Googe.  The precise terms and legal effect of this arrangement is in issue, and is the subject of pt 5.

3. At the beginning of 2014, Ms Spoljaric informed Ivan that she wanted to separate the two businesses, Carlindie Cabs and Hedland Taxis.  Some time was required for Ms Spoljaric to acquire and install a private radio system in the taxis to be taken over by Hedland Taxis.

4. At some stage before 1 May 2014, Ivan called a meeting of all the taxi plate owners and drivers who worked with Carlindie Cabs and Hedland Taxis.  Mr Googe was present at the meeting as was at least Tomislav, Mr Ivkovic and Ms Ivkovic.  There is some dispute as to what occurred at this meeting, but this is not an issue which I need to resolve.

5. Mr Googe later had at least one conversation about the separation of the businesses with his two drivers Ms Ebid and Mr Njiru.  By this time, they were both driving the Toyota HiAce with taxi plate CT 199.  Ms Ebid and Mr Njiru both expressed a preference to stay with Hedland Taxis.  On that occasion, Mr Googe told them that he proposed to move taxi plate CT 191 to Carlindie Cabs and keep taxi plate CT 199 with Hedland Taxis.

6. On approximately 1 May 2014 Carlindie Cabs and Hedland Taxis split into two separate businesses.  At this time, Mr Googe's two taxis were with Hedland Taxis.  Hedland Taxis paid for new signs to go on Mr Googe's two taxis.  Since this split, Carlindie Cabs and Hedland Taxis have acted in competition.  In particular, they no longer share a common despatch system, with the telephone numbers going through to separate despatch systems.  After the split, Mr Ivkovic and Ms Ivkovic continued to do the work they were doing previously for Hedland Taxis, but did not do any more work for Carlindie Cabs.

7. On 2 May 2014 Mr Googe and Ms Ivkovic had a Facebook conversation about the rank fees that would be payable by Mr Googe, the contents of which are not relevant to the determination of the issues I have identified.

8. From 1 January 2014 to 29 May 2014, Mr Googe paid Ms Spoljaric all cab rank fees due under the CT 191 Contract and CT 199 Contract.  He also paid a number of amounts of $4,000 by way of instalments.  Specifically, it is not in issue that he made the following payments, the designations again being provided by Mr Googe in the course of making the electronic funds transfer:

Date	Amount	Plaintiff's designation
2 January 2014	$4,000	Car 7
1 February 2014	$4,000	[undesignated]
1 March 2014	$4,000	[undesignated]
9 April 2014	$4,000	[undesignated]
20 May 2014	$4,000	Payment for car 7
1 June 2014	$4,000	[undesignated]
Total	$24,000

1. As I have already noted, it is common ground that a reference to 'car 7' is a reference to CT 199.

2. Whilst the amounts paid are not in issue, the characterisation of the payments is in issue – see pt 6.

3. On 29 May 2014, taxi plate CT 199 was removed from Mr Googe's Toyota HiAce vehicle.  The circumstances in which it was removed are in issue, and is the subject of pt 7.

4. In the days after 29 May 2014, taxi plate CT 199 was affixed to a Toyota Camry vehicle, the registered owner of which was Ms Ivkovic.  From that time until the date of trial, this vehicle and taxi plate has been used by Hedland Taxis.  Mr Ivkovic and Ms Ivkovic have each driven this vehicle on numerous occasions.  Ms Spoljaric continues to be the registered owner of taxi plate taxi plate CT 199.

1. How much deposit did Mr Googe pay Ms Spoljaric at the beginning of April 2013 in relation to the purchase of taxi plates CT 191 and CT 199?

Positions of the parties

1. It is common ground that at the beginning of April 2013, Mr Googe paid Ms Spoljaric the sum of $10,000 by way of bank cheque in relation to the purchase of taxi plate CT 191.

2. There is a dispute as to whether Mr Googe also paid Ms Spoljaric the sum of $10,000 cash at the same time, also in relation to the purchase of both taxi plate CT 191 and taxi plate CT 199.  Mr Googe says he did.  Ms Spoljaric says he did not.  This issue does not involve Mr Ivkovic.

Documents

1. There are two documents in evidence relevant to this issue.

2. The first is a receipt on Carlindie Cabs stationery (AB 1).  It is dated 4 April 2013, with the time recorded as '1509'.  It relates to 'CAR No 13'.  It is common ground that this is a reference to the car on which CT 191 was affixed.  The customer is 'Darius K Googe'.  The receipt is for: 'Deposit for Plate $10,000'.  Mr Googe completed the receipt in his handwriting, and signed it.  Ms Spoljaric also signed the receipt and inserted the figure '10,000' next to pre-printed words 'Total (Inc GST)'.

3. The second is a document that Mr Googe obtained from the Commonwealth Bank (AB 85).  It is in the following terms:

   Confirmation of transaction Receipt No T309420651956 Dated 04/04/2013

   Darius George went in to the Port Hedland branch on the 04/04/2013 and withdrawed $20100.00 from his savings acc 6192 1023xxxx and bought a bank cheque for $10000 payable to Ljubica Spoijanic [sic] and cash of $10000 broken up in $3000 - $100 and $7000 - $50 within the same transaction.

Mr Googe's evidence

1. Mr Googe gave evidence that in April and May 2013, he and Ms Spoljaric entered into two contracts by which she sold him the two taxi plates under what he described as 'vendor finance'.  The contracts required him to pay $4,000 per month, per plate (ts 15).

2. Mr Googe gave evidence that at the beginning of April 2013 he gave Ms Spoljaric two amounts of $10,000.  The first a $10,000 bank cheque.  The second was an amount of $10,000 cash, for which the receipt was made out (ts 16, 44).  One amount of $10,000 was for the deposit.  The other was for the payments of the instalments.  Of this amount, $7,000 was for CT 191, being April and May, and $3,000 was for CT 199, being for May (ts 57).  He says that the CBA document ([55] above) supports his evidence.

3. He also gave evidence that the two payments of $1,000 on 6 May 2013 were to be allocated one to each contract (as set out in the table at [38]).

Ms Spoljaric's evidence

1. Ms Spoljaric gave evidence that Mr Googe commenced working for her around the end of 2012.  In early February 2013, Mr Googe came to her and asked whether there was any chance of him buying a taxi plate from her.  Ms Spoljaric wanted to talk to the person who was then driving the taxi as she wanted to give the driver priority in buying the taxi plate.  The driver was not interested, so Ms Spoljaric agreed to sell the taxi plate to Mr Googe.  The agreement was made around the end of February or beginning of March 2013.  This was taxi plate CT 191.  Nothing was put on paper at that time.

2. Ms Spoljaric said that the deposit was to be paid in two payments, $10,000 first then $80,000 paid on 22 April 2013. In relation to the receipt referred to at [54] above, Ms Spoljaric's evidence was (ts 296):

   This document Darius bringing together with a cheque and asking me make sure I'm giving for him evidence that he's giving me cheque of $10,000.  I'm never see any cash or anything else.  He's give me cheque which one I'm depositing on my business account in Commonwealth Bank.

3. Ms Spoljaric gave evidence that Mr Googe did not give her any cash in addition to the bank cheque for $10,000 (ts 297).  She also confirmed that she signed the receipt and inserted the figure $10,000 at the bottom of the document.

4. Once the $10,000 had been paid and the receipt given, Ms Spoljaric gave Mr Googe taxi plate CT 191 to begin using.

5. At some later stage, Ms Spoljaric asked her daughter‑in‑law, Ms Kingdom, to type up the contract, which she did. The typewritten document reflected the agreement made (set out at [29] above) (ts 322).

6. Around a month later, Mr Googe again approached Ms Spoljaric asking for the chance to purchase another plate. Ms Spoljaric said that as Mr Googe was doing 'very well' with the first plate and had paid her the $90,000 deposit, she would give him the chance to buy another plate (ts 297 - 298). This agreement was made in May 2013. This agreement was also typed up by Ms Kingdom (set out at [31] above).

Determination

1. For four reasons, I prefer Ms Spoljaric's evidence to that of Mr Googe.

2. The first reason is that the documents do not assist Mr Googe.  The bank information relied on by Mr Googe (above [55]) only shows that he withdrew $10,000 in cash at the same time as he obtained the bank cheque for Ms Spoljaric for the $10,000.  It does not prove that he gave this money to Ms Spoljaric.  Neither does the receipt (above [54]) prove that the second amount of $10,000 was paid.

3. The second reason is that Mr Googe does not refer to the second payment of $10,000 in the documents which were filed on his behalf at all stages in the action up to trial.  In cross-examination, counsel for Ms Spoljaric drew Mr Googe's attention to the Reply to First Defendant's Statement of Defence filed on his behalf on 9 February 2015 (exhibit 6).  This document contains a table of payments, which only refers to one payment of $10,000 on 4 April 2013.  In the Papers for the Judge filed 31 May 2017 (folio 80), Mr Googe says that Ms Spoljaric 'had received monies totalling $168,000 for payment for Country Taxi 191 ... and Country Taxi 199'.  It is apparent from the tables of payments set out at [38] (totalling $144,000) and [46] (totalling $24,000) that the amount of $168,000 does not include the cash payment of $10,000 asserted by Mr Googe. 

4. Mr Googe accepted in cross-examination that, until the commencement of his evidence, his position had been that a total amount of $168,000 had been paid under both contracts, which did not include the additional $10,000.  His explanation was that he received additional information in late May 2017 about the $10,000, being the information from CBA (see [55]) above) (ts 259 - 261).  I do not regard this explanation as being satisfactory.  Given the obvious importance of this case to Mr Googe, and the central significance of the precise amounts paid, it is inherently improbable that Mr Googe would have forgotten a cash payment of $10,000 throughout the duration in which the dispute has been the subject of litigation.

5. The third reason is that the payment of a deposit of $10,000 is consistent with the documents which the parties subsequently executed (set out at [29] and [31]).  These provide for a deposit of $90,000 for the CT 191 Contract and no deposit for CT 199 Contract.  Ms Spoljaric's evidence is that the deposit was paid by way of the initial $10,000 bank cheque and the $80,000 electronic funds transfer on 22 April 2013.

6. The fourth reason is that the evidence given by Mr Googe about the allocation of the second $10,000 is inherently implausible in the light of the objective evidence.  His evidence was that of the $10,000, $7,000 was for a monthly payment on taxi plate CT 191 and $3,000 was for a monthly payment on CT 199 (ts 57).  However, the document evidencing the CT 199 Contract was not executed until 15 May 2013.  The document evidencing the CT 191 Contract was executed on 22 April 2013.  Had there been an agreement in place for the purchase of taxi plate CT 199 as at 22 April 2013, then common sense suggests that it would have been typed up and executed on that date at the same time as the contract evidencing the purchase of taxi plate CT 191.  The fact that this did not occur, coupled with the fact that the document evidencing CT 199 Contract provides for a date of sale of 15 May 2013, strongly suggests that the contract for the purchase of taxi plate CT 199 was not made until after 22 April 2013, and indeed closer to 15 May 2013.  I accept Ms Spoljaric's evidence that the agreement for CT 199 was not made until May 2013 and the document evidencing it was executed shortly afterwards on 15 May 2013 (ts 298).

7. For these reasons, I accept Ms Spoljaric's evidence and find that only one amount of $10,000 was paid on 4 April 2013. 

1. Did the parties agree to vary the terms of the CT 191 Contract in September 2013 and, if so, in what terms?

Positions of the parties

1. It is common ground that in September 2013 Mr Googe and Ms Spoljaric came to an arrangement by which the instalments paid towards the purchase of taxi plate CT 199 would be put towards the purchase of taxi plate CT 191, to allow the purchase of taxi plate CT 191 to be completed and that taxi plate to be formally transferred to Mr Googe.

2. Mr Googe's position is that this arrangement was part of an enforceable agreement to vary the CT 191 Contract in September 2013, the essence of which was the purchase price of taxi plate CT 191 would be reduced to $150,000.  It was in this context that it was further agreed that payments made to date pursuant to the taxi plate CT 199 Contract would be allocated to the purchase of taxi place CT 191 and that future payments would be allocated to the CT 191 Contract until the purchase price of $150,000 had been achieved.  This meant that Mr Googe could shortly pay the $150,000 and have the registration of the taxi plate CT 191 transferred to him.

3. Ms Spoljaric's position is that she agreed to assist Mr Googe by allowing him to proceed to register the transfer of taxi plate CT 191, notwithstanding that there was still $56,000 outstanding towards the purchase price of taxi plate CT 191.  The arrangement was part of this assistance.  There was no agreement, let alone a legally enforceable one, to reduce the purchase price for taxi plate CT 191.

4. This issue does not involve Mr Ivkovic.

Relevant law

1. Parties to an existing agreement may vary or extinguish some of its terms by a subsequent agreement:  Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd [1957] HCA 10; (1957) 98 CLR 93, 112 (Dixon CJ & Fullagar J), 144 (Taylor J); Commissioner of Taxation v Sara Lee Household & Body Care [2000] HCA 35; (2000) 201 CLR 520, 534 [23] (Gleeson CJ, Gaudron, McHugh and Hayne JJ) (Sara Lee); GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; (2008) 128 FCR 1 [226] (Finn J).  A variation by contract involves two contracts, the existing one (which may or may not continue to exist) and the new one (the contract of variation):  N Seddon, R Bigwood and M Ellinghaus, Cheshire and Fifoot - Law of Contract, (LexisNexis Butterworths, 10^th ed, 2012), [22.3];  Sara Lee 533 [22]; GEC Marconi [226], [1424]; GT Corporation Pty Ltd v Amare Safety Pty Ltd [2008] VSC 143 [113] – [114] (Robson J). As with any contract, the onus is on the party asserting the existence of the second contract to prove that the second contract was made: GT Corporation [162] – [163]; Ailakis v Olivero[No 2] [2014] WASCA 127 [76] ‑ [78] (Martin CJ, with whom Buss & Murphy JJA agreed). The ordinary rules governing the formation of a contract apply equally to the contract of variation: GEC Marconi [226]; GT Corporation [114]. Those rules are well established, and for present purposes may be summarised in the following terms:

   (a)the issue of whether Mr Googe and Ms Spoljaric entered into an enforceable variation contract is to be determined objectively by drawing inferences from what the parties said and did in the course of their dealings;

   (b)this requires an assessment of what would objectively be conveyed by what was said or done, having regard to the surrounding circumstances in which those statements and actions happened;

   (c)the surrounding circumstances include the dealings and communications between the parties over a period of time and the commercial circumstances, known to the parties, surrounding those dealings and communications; and

   (d)the dealings and communications between the parties after the formation of the alleged concluded and binding agreement may be taken into account in determining, objectively, whether the parties intended to form such an agreement if so, on what terms;

   (e)the uncommunicated subjective motives or intentions of the parties are irrelevant; and

   (f)a concluded contract may arise in circumstances where it is difficult to identify an offer and an acceptance with absolute precision, provided that the whole of the evidence reveals an intention to create a contract upon terms which were able to be sufficiently identified.

   See generally:  Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 [25] (Gaudron, McHugh, Hayne & Callinan JJ); Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21; (2015) 47 WAR 547 [97] – [110] (Buss JA, with whom McLure P & Newnes JA agreed); Ailakis [66], [73] – [77]; Marist Brothers Community Incorporated v Shire of Harvey (1994) 14 WAR 69, 75 (Pidgeon J), 86 (Rowland J), 90 (Seaman J); GEC Marconi  [224] – [232]; GT Corporation [114].

1. Significantly for present purposes, for there to be an enforceable variation contract, each party must receive consideration for any obligation or promise which it is said that they made: Ermogenous (105); GEC Marconi [218]; GT Corporation [116], [166] – [167].

Mr Googe's evidence as to the initial conversation

1. Mr Googe gave evidence that in September 2013 he had a conversation with Ms Spoljaric on the front lawn of Ms Kingdom's house in Port Hedland.  The conversation lasted about 20 minutes.  He said that Ms Spoljaric was trying to entice him to purchase from her an additional taxi plate and a private taxi plate which she owned.  She wanted $95,000 for the private taxi plate.  Mr Googe was 'quite happy to try to buy it' (ts 16).  He gave evidence that 'during this conversation I'm not sure how it came about but we agreed to vary the contract of CT 191 to $150,000 and continue on with the second contract as is' (ts 15).  They agreed to 'drop the payments to only one contract which would be $4,000' (ts 16).  Mr Googe said that by September 2013 he had paid a total of $146,000.

Ms Spoljaric's evidence as to the initial conversation

1. Ms Spoljaric gave evidence that at the beginning of September, Mr Googe came to her house in Perth.  As to what occurred, her evidence was as follows (ts 300 [sic]):

   Beginning in September, he's come to my place and he's asking me for helping him for transfer plate to CT-191 on hims name, and I'm asking him why.  And he's bringing to me papers from the ANZ Bank and he's asked, 'Please help me, I need to finance from the ANZ Bank', and ANZ Bank is asking him it's owner of the plate or it's not.  And then he's telling that the plate is not on hims name.  Then is told him that is plate is need to be on hims name for giving him financing.  And this time, when he's asking me, I try to help him, and it's talking together about how he's paid the rest of money.  And he's told me all payments which one is to this date, it's come on CT-199, it's going for CT-199, make sure it's paid, be the payments altogether.  And I'm agree with this and this time when I'm checking how much it's exactly five for both plates, it's somewhere around $110,000.  And it's promised me it's keep paying a rest of the money every month for CT-199 and CT-191, the - what is different between how much it's paid and between price, which one is in contract, $170,000 …

2. Ms Spoljaric's evidence was that at the time this initial conversation took place Mr Googe had paid her all the instalments that were due in relation to the purchase of the taxi plates (ts 301).  She said that Mr Googe told her the reason he needed money from the bank was to purchase a new car, as the car he then had was a 'very bad car to use as a taxi' (ts 304), and that he was looking to get a bus that would generate better income.  She did not know how much money he was going to borrow (ts 304 ‑ 305).

Documents lodged

1. It is clear that between mid-September and mid‑November 2013 the necessary documentation was lodged in order to effect the transfer of taxi plate CT 191 from Ms Spoljaric to Mr Googe.

2. In evidence, there are two versions of a document entitled 'Application to Buy a Country Taxi Licence'.  This is a Department of Transport (DOT) form.  The first is at AB 4.  The stated purchase price is $150,000.  It is stated to be for 'CT 191'.  Mr Googe gave evidence that this document was completed in his handwriting, including his signature.  It is dated as being signed on 12 September 2013.  It is also signed by Ms Spoljaric, though there is no date against the signature.  Her signature is in a box entitled 'Owner 2 Signature'.  I observe that this is somewhat at odds with the context of the document and signature box, as those matters make it clear that it is the signature of a second purchaser of the taxi plate in question which is required, and not that of the vendor of the taxi plate.  The document has a date stamp on it to the effect that it was received by DOT on 21 October 2013.  Mr Googe's evidence is that he did not recall how this document came to be completed (ts 18 - 24).  There is no evidence as to how this document came to be submitted to DOT.

3. The second version of the same DOT form is exhibit 3.  Mr Googe gave evidence that he filled in this form in his handwriting, including his signature.  It is dated as being signed on 17 September 2013.  Again, the document relates to taxi plate CT 191 and has a stated purchase price of $150,000.  It contains two stamps.  The first is a stamp to the effect that it was received by DOT on 19 September 2013.  The second is from the Magistrates Court of Western Australia, South Hedland, to the effect that the document had been received on an illegible date in September (with the year also being illegible).  The document also bears a Western Australian Stamp Duties Cash Register Imprint.  This, on the evidence before the court, was a slip of paper required to be glued to the front of the form following payment of stamp duty (ts 23).

4. The next document is a 'Transfer Duty Statement', an Office of State Revenue (OSR) form (AB 5 - 7, 9).  This document was completed by Mr Googe, identifying the dutiable property as being taxi plate CT 191, with a value of $150,000.  The document identifies that the 'transaction has not been effected or evidenced by an instrument in hard copy form'.  It is signed by Mr Googe and dated 17 September 2013.  The signature block that Mr Googe signed is in the form of a statutory declaration.

5. Mr Googe was cross-examined to the effect that he lied in this document as there was in fact a document evidencing the transfer, being the CT 191 Contract which I have referred to above ([29]).  His response was that he was 22 at the time and not experienced, and he filled out the form based on what he was told by staff at the South Hedland Magistrates Court (who look after OSR matters) and Ms Spoljaric.  Nothing turns on this issue.

6. The next document is a stamp duty receipt (AB 8).  The instrument and consideration is: 'Taxi Licence $150,000'.  The duty is assessed at $3,990, which is recorded as having been paid on a credit card.  Mr Googe gave evidence that he paid the stamp duty at the Magistrates Court in South Hedland (ts 21).

7. The next document is a DOT form entitled 'Application to Sell A Country Taxi Licence' (AB 10).  Mr Googe gave evidence that he completed in his handwriting on this form the reference to the Country Taxi Licence number, 'CT 191', and the price of $150,000.  His evidence is that he was told by Ms Spoljaric to fill in what he could, which he did, and then gave it to her.  She then completed the remainder of the document and signed and dated it 14 October 2013 (ts 114).

8. Ms Spoljaric's evidence is that she completed all the details in the Application to Sell a Country Taxi License (AB 10) save for the purchase price of '$150,000' and to circle the word 'No' in response to a question:  'Is this license financially encumbered?'.  The details she completed were: her name and address, driver's license number, phone number, email address, signature and date (being 14 October 2013).  She gave evidence that when she completed this document, the box with the sale price in it was blank, and it was blank when she gave the document (otherwise completed) to Mr Googe (ts 301-302).

9. On or just after 12 November 2013 Mr Googe received a letter of that date from DOT advising that approval had been granted for the transfer of CT 191 from Ms Spoljaric to him (AB 14).  The letter advised that for 'the transfer to be effected, we now require … [a] letter from the seller stating they have been paid in full for the taxi plates [and] [p]ayment of the transfer fee by the buyer'.

10. The next document is a letter from Ms Spoljaric to DOT, with a stamp to the effect that it was received by DOT on 12 November 2013 (AB 11).  It is in the following terms:

    This is to certify that taxi plate number CT 191 is paid in full by Darius Googe and I would appreciated if you proceed with the transfer of this plate from my name Ljubica Spoljaric to the buyer's name Darius George.

    If you require any further information, please do not hesitate to contact me on my mobile number…

11. Ms Spoljaric gave evidence that Mr Googe had prepared this document and gave it to her to sign, which she did.  She also gave evidence in the following terms (ts 303):

    KITTO, MR:  All right.  Now, the document says that taxi plate CT-191 is paid in full and you've asked the Department to transfer - to transfer the plate into his name?---Correct.

    All right.  What do you say about that statement?---This time I already talk with him about payment and it's promised me it's keep paying to 170,000 before it's paid in full.

    Right.  So when you say it is paid in full, was that the truth?---Is not truth.

    But it's not true because you were trying to help him or it's not true because ‑ ‑ ‑?‑‑‑Correct.  I'm try to help him.  That's the only reason I'm sign these documents.

12. Shortly after 14 November 2013, DOT issued a 'Country Taxi Transfer Certificate' recording that taxi plate CT 191 had been transferred from Ms Spoljaric to Mr Googe with effect from 14 November 2013 (AB 12).

13. Ms Spoljaric received a letter from DOT dated 15 November 2013 confirming that the transfer had been effected (AB 13).  This letter does not specify the purchase price.

14. Ms Spoljaric said that after the meeting at the beginning of September, Mr Googe came to her house in Perth a couple of times to give her documents to sign.  She was living in Perth at the time for medical reasons (ts 303).

15. She denied any agreement with Mr Googe to lower the purchase price to $150,000, asking rhetorically why she would do such a thing (ts 304, 324).  She did not see any form which had a sale price of $150,000 on it (ts 334 ‑ 335).

Subsequent conduct

1. There are two relevant aspects of the conduct of the parties after the taxi plate was transferred in November 2013 until 29 May 2014 which are relevant to the question of whether a variation contract was entered into.

2. The first is that during this period Mr Googe went from regularly making two $4,000 payments per month in 2013, to only making one $4,000 payment per month in the first part of 2014.  Moreover, on the two payments that were designated to a taxi plate, the reference was to 'car 7' being taxi plate CT 199 (see [46] and [47] above).

3. The second is that neither Ms Spoljaric, nor Ms Ivkovic (ts 269), who managed the books for Ms Spoljaric, raised with Mr Googe in 2014, prior to 29 May, that he was behind in his payments.

4. Ms Spoljaric gave evidence that in the first half of 2014 she continued to live in Perth for medical reasons.  Her health was very poor, resulting in a number of extended stays in hospital.  She was not checking whether Mr Googe was making his payments every month, but when she did check everything looked okay to her (ts 309 - 310).  I accept this explanation.

5. She referred to a telephone conversation between the two of them in which Mr Googe had asked for free rank fees for a year.  She declined, and told him that he had to follow both contracts he had signed (ts 309 ‑ 310).  This conversation appears to have taken place in the context of the separation of Carlindie Cabs and Hedland Taxis (ts 310 ‑ 311).

6. Around the middle of May 2014, Ms Spoljaric became concerned that Mr Googe might move to Carlindie Cabs.  The source of her concern was information provided by the taxi drivers working for her.  This was the catalyst for her to check how much Mr Googe had paid her in relation to taxi plates CT 191 and CT 199.  She discovered that Mr Googe had still not paid the full amount of $170,000 for taxi plate CT 191 and had missed four payments for taxi plate CT 199.  The missing payments, on her analysis, were for January, February, March and April 2014 (ts 318).  She had it in mind to contact Mr Googe and ask him what had happened with the four missing payments (ts 311, 317).

7. Before Ms Spoljaric made contact with Mr Googe, she received a telephone call from Tomislav informing her that Mr Googe had moved taxi plate CT 191 to Carlindie Cabs and was planning to move taxi plate CT 199 there the next day.  She was very upset.  She told Tomislav that Mr Googe had missed four payments, and that he was to go and remove the taxi plate and radio from Mr Googe's car.  Tomislav subsequently called her to say that he had removed the plate and that it was in his car (ts 312).  I return to the issue of the removal of the taxi plate in pt 7 below.

Determination

1. There is nothing in the oral evidence given by Mr Googe and Ms Spoljaric which would provide a basis for me to conclude that one or other is lying or materially mistaken in their recollection of the relevant conversations.

2. Mr Googe referred to his bank statements in the agreed bundle (AB 71 ‑ 83) and made the submission that throughout the period of September to November 2013 he was spending money in Port Hedland on a daily basis, supporting his testimony that the initial meeting took place in Port Hedland and not in Perth.  However, there were transactions on 26 and 27 October (AB 74) and 30 October to 9 November (AB 74 ‑ 75) which appear to be from businesses in Perth, indicating Mr Googe was in Perth on at least some occasions during this period.  This material is thus also consistent with Ms Spoljaric's evidence that after the meeting at the beginning of September, Mr Googe came to her house in Perth a couple of times to give her documents to sign.

3. As I have indicated, it is common ground that in September 2013 Mr Googe and Ms Spoljaric came to an arrangement by which the instalments paid on taxi plate CT 199 would be put towards the purchase of taxi plate CT 191, to allow the purchase of taxi plate CT 191 to be completed and the plate transferred to Mr Googe.  From the documents it is apparent that the effect of the conversation was that, in mid-September 2013, Mr Googe commenced the process of applying to transfer taxi plate CT 191 from Ms Spoljaric to himself.  It is also apparent from the documents that Ms Spoljaric consented to the transfer occurring, and that the transfer did in fact occur.

4. Beyond that, the documents are consistent with the position of both parties, that is, either:

   (a)that Mr Googe and Ms Spoljaric agreed to vary the terms of the CT 191 Contract to reduce the purchase price to $150,000; or

   (b)that Ms Spoljaric would assist Mr Googe to obtain finance by allowing him to become the registered owner of taxi plate CT 191 notwithstanding that he had not paid the purchase price in full.

5. As to the payment evidence up to the date of transfer, 14 November 2013, the payments made by Mr Googe between 30 September (that is after the initial conversation) and 2 November 2013 continued the pattern of payments of equal amounts on both cars.  Mr Googe was cross‑examined to the effect that this was inconsistent with his version of the variation agreement as all the payments should all have gone towards taxi plate CT 191.  Mr Googe responded that although the agreement to vary was entered into in September 2013, it was not to take effect until he had paid the total amount of $150,000, which he did not do until 2 November 2013.  The amount of $150,000, he says, comprises the payments set out in the table at [38] up to and including 2 November 2013 (totalling $140,000) and the $10,000 initial cash payment (ts 39).  Upon this total amount being paid, Ms Spoljaric signed the letter at [90] and the transfer proceeded.

6. Mr Googe's explanation that by 14 November 2013 he had paid $150,000 is not supported by the evidence; I have found that the $10,000 cash payment was not in fact made to Ms Spoljaric.  Given my observations above [66] – [70], his evidence on this point has the hallmarks of a recent and convenient reconstruction.

7. For these reasons, I am of the view that the payment evidence up to the date of transfer, 14 November 2013, does not provide any assistance in the determination of the issue.

8. There are two aspects of the subsequent conduct of the parties that, at first blush, appear to support Mr Googe's position.  The first is that in the documentation lodged with the DOT and OSR, the purchase price is stated to be $150,000.  The second is that subsequent to 14 November 2013, Mr Googe went from regularly paying two $4,000 payments per month to regularly paying only one $4,000 payment per month throughout the first half of 2014 (see [46] above). 

9. However, this conduct is unilateral action by Mr Googe.  I am not satisfied on the balance of probabilities that Ms Spoljaric saw or signed any document which, at the time when she signed it, recorded a purchase price of $150,000.  In his closing submissions, Mr Googe refers to communications between the Australian Taxation Office (ATO) and Ms Spoljaric in which he asserts she acknowledges a purchase price of $150,000.  However, these documents were not in evidence at the trial, and no oral evidence was given on this issue.  The only correspondence from the ATO in evidence is a letter addressed to Mr Googe (AB 29).  It does not contain a statement to the effect that the purchase price of taxi plate CT 191 was $150,000.  Nor is there any evidence of this document having come to the attention of Ms Spoljaric.  Nor was Ms Spoljaric cross‑examined on this issue.  There is no primary fact from which it could be inferred that Ms Spoljaric agreed to reduce the purchase price of the CT 191 Contract to $150,000.  The surrounding circumstances thus, in my view, do not provide any assistance as to which parties' position is to be preferred.

10. I find myself in the same position as Robson J in GT Corporation.  At the close of evidence 'my mind is in equilibrium on the issue of whether or not the parties contracted' to reduce the purchase price for taxi plate CT 191: GT Corporation [162] - [165]; Re Peatling, deceased [1969] VR 214, 225 (McInerney J). Accordingly, the issue falls for determination based on the onus of proof. It is Mr Googe who has asserted the existence of an enforceable contract to reduce the purchase price for taxi plate CT 191. Is it he who has the onus of proving the existence of this contact. He has failed to do so. This has the effect that, notwithstanding the transfer of taxi plate CT 191, both the CT 191 Contract and the CT 199 Contract continued to be enforceable according to their initial terms.

11. There is a further reason why Mr Googe's argument that there was an enforceable contract to vary the purchase price under the CT 191 Contract must fail.  As I have mentioned, for there to be an enforceable variation contract, each party must receive consideration for any obligation or promise which it is said that they made: Ermogenous [105]; GEC Marconi [226]; GT Corporation [116], [166] – [167]. In the present case, even if I were to find that Mr Googe and Ms Spoljaric did make an agreement to reduce the purchase price for taxi plate CT 191, there is no evidence that Mr Googe gave any consideration for the promise by Ms Spoljaric to reduce the purchase price. In the absence of consideration, there is no enforceable contract.

12. The situation in which the parties come to an informal arrangement to vary the way in which a contract is performed which does not constitute an enforceable variation to their contract is not uncommon.  As Finn J remarked in GEC Marconi [230, reference omitted]:

    The need frequently arises in relational contracts of significant duration to adjust terms to accommodate changed or unforeseen circumstances.  For that reason it is common for such contracts to make express provision for variation.  Nonetheless, and notwithstanding their contract, parties in an ongoing business relationship equally commonly … regulate their relationships in accordance with what they consider is fair and reasonable or commercially necessary at particular points in time rather than by reference to a priori rights and duties arising under a contract … .

1. Did Mr Googe breach the terms of the CT 199 Contract?

Positions of the parties

1. Ms Spoljaric's position is that Mr Googe breached the term of the CT 199 Contract requiring him to pay the purchase price of $170,000 by monthly instalments of $4,000.  This, she says, he did by missing the January, February, March and April 2014 payments.

2. Mr Googe's position is that he made all monthly payments required, including one each month between January and June 2014.

3. It is not in issue that Mr Googe paid all rank fees due on the CT 191 Contract and CT 199 Contract.

Relevant law

1. Based on my findings in pt 5, from the commencement of each contract at least until 29 May 2014 both the CT 191 Contract and the CT 199 Contract continued to be in force according to the terms initially agreed.  Each contained an ongoing obligation for Mr Googe to pay $4,000 per month.

2. The present case does not involve a running account to which various credits and debits are made; rather it involved two distinct contracts (see generally:  MacKenzie v Albany Finance Ltd [2004] WASCA 301 [111] (EM Heenan J with whom Malcolm CJ and Le Miere J relevantly agreed)).

3. The general principles of contract law governing the appropriation of payments where the debtor owes multiple distinct debts to the creditor are laid out by EM Heenan J in MacKenzie.  His Honour sets out the following principles which are of present relevance ([113] – [114]):

   (a)the debtor has the first right to specify the debt or debts to which a payment is to be appropriated, and the creditor is bound, if she takes the money, to apply it in the manner directed by the debtor;

   (b)if the debtor desires to appropriate the payment in a particular way, that need not be done in express terms, but it must be communicated to the creditor or be capable of being inferred from the circumstances in which the debtor has made the payment;

   (c)where no appropriation is made by the debtor, payment to one or other of the obligations outstanding is at the creditor's choice; and

   (d)where the right of appropriation is exercisable by the creditor, it need not be made in express terms, but may be signified by bringing an action or in any other way which demonstrates the creditor's intention.

Findings as to payment

1. The evidence as to when payments were made, and the extent to which Mr Googe designated the payment to a particular contract, is not in issue and is set out above [38] and [46].  Based on the principles set out above ([120]), I make three findings.

2. First, the actions of Mr Googe in providing with each payment the information set out in the column headed 'plaintiff's designation' (above [38] and [46]), is a sufficient communication of Mr Googe's intention. When giving evidence, Mr Googe sought to disavow any suggestion that the payment designations he made had any meaning (ts 102). I reject this evidence; there is a clear and compelling inference from the fact that Mr Googe went to the trouble to insert payment designations when undertaking the electronic funds transfers that he intended these designations to have the meaning which on their face they bear.

3. Second, where there are two payments of $4,000 made within a day or so of each other, the circumstances are sufficient to infer that Mr Googe intended one payment to be designated to each contract.

4. Third, for the reasons set out above [70], I find that the CT 199 Contract was not entered into until around the sale date specified in the contract, being 15 May 2013.  Accordingly, the CT 199 Contract was not in existence when the two payments were made on 6 May 2013.  Accordingly, I find each of the two $1,000 payments on 6 May 2013 to be allocated to the CT 191 Contract.

5. Applying these three findings leads to the following position as regards the payments in 2013 to the point of transfer on 14 November 2013, with the figures in the columns marked 'CT 191' and 'CT 199' being my findings with the information in italics in the column headed 'Plaintiff's designation' being added by me:

Date	Plaintiff's designation	CT 191	CT 199
4 April 2013	Receipt no. 0700 Car No 13 (CT 191)	$10,000
22 April 2013	[undesignated]	$80,000
6 May 2013	[undesignated]	$1,000
6 May 2013	[undesignated]	$1,000
2 June 2013	Plat payment CT 191	$4,000
5 June 2013	Payment 4 taxi 199	$4,000
1 July 2013	CT 199	$4,000
1 July 2013	CT 191	$4,000
31 July 2013	Plat pay CT 199	$4,000
31 July 2013	Plat payment CT 191	$4,000
2 September 2013	[undesignated]	$4,000
2 September 2013	[undesignated]	$4,000
30 September 2013	Plate repay car 7 (CT 199)	$4,000
2 October 2013	Plat payment CT 191	$4,000
31 October 2013	Plate repay car 7 (CT 199)	$4,000
2 November 2013	[undesignated]	$4,000
29 November 2013	Plate repay car 7 (CT 199)	$4,000
Total	$116,000	$24,000

1. The arrangement by which the instalments paid towards the purchase of taxi plate CT 199 would be put towards the purchase of taxi plate CT 191 to allow the purchase of taxi plate CT 191 to be completed and the plate transferred to Mr Googe (Payment Arrangement), is appropriately characterised as an arrangement to change the designation of payments made.  The effect of the Payment Arrangement was that, although a payment on the CT 199 Contract was to be treated as compliance with the obligations under that contract, it was to be allocated to the CT 191 Contract.  In other words, it is not open to Ms Spoljaric to assert that Mr Googe breached the terms of the CT 199 Contract by making a payment under that contract which was allocated, pursuant to the Payment Arrangement, to the CT 191 Contract.  Were it necessary for me to do so, I would have found that Ms Spoljaric was estopped from making this assertion:  Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 428 - 429 (Brennan J).

2. So although by the date of transfer Mr Googe is treated as not having made any payments reducing the amount owing under the CT 199 Contract, given the Payment Arrangement, he is not in breach of the CT 199 Contract.  

3. As a result of the Payment Arrangement, the $24,000 paid in relation to the CT 199 (above [125]) Contract is to be transferred across to the CT 191 Contract.  So as at 29 November 2013, a total of $140,000 had been paid towards the purchase of taxi plate CT 191.

4. As to the position after transfer, as I have found, both contracts continued according to their terms after the date of transfer.  To comply with the two contracts, Mr Googe was required to pay two amounts of $4,000 per month, one on each contract, both of which would be allocated to the CT 191 Contract until such time as the purchase price of $170,000 was paid in full. 

5. Two payments in 2014 had designations attached to them.  The reference to 'car 7' for the January and May payments is sufficient to constitute an election by Mr Googe to allocate those payments to the CT 199 Contract.

6. As to the undesignated payments in 2014, one of three conclusions may be reached.  The first is that the effect of the Payment Arrangement was for otherwise undesignated payments on both the CT 191 Contract and the CT 199 Contract to be allocated to the CT 191 Contract until such time as the purchase price of $170,000 was paid in full.  The second is that the Payment Arrangement constitutes an election by Ms Spoljaric to allocate any undesignated payments to the CT 191 Contract until such time as the amount of $170,000 was paid in full.  The third is that the pleadings in par 9.2 and par 14(a) of Ms Spoljaric's defence dated 16 January 2015 constituted an election to treat all undesignated payments as going to the CT 191 Contract until such time as the purchase price was paid in full.  In each case, the conclusion is the same: undesignated payments are to be allocated to the CT 191 Contract.

7. Applying these conclusions, the following result is reached:

Date	Plaintiff's designation	CT 191	CT 199
3 December 2013	[undesignated]	$1,000
2 January 2014	Car 7	$4,000

1 February 2014	[undesignated]	$4,000
1 March 2014	[undesignated]	$4,000
9 April 2014	[undesignated]	$4,000
20 May 2014	Payment for car 7	$4,000
1 June 2014	[undesignated]	$4,000
Total	$17,000	$8,000

1. The practice adopted by Mr Googe was generally to pay the monthly payment for a particular month in the first few days of the next month.  On the evidence before me, this occurred without objection from Ms Spoljaric.  Using that practice, and amalgamating the payments which I have found to be designated to the CT 199 Contract, the following position is arrived at:

Date paid	Month due	Plaintiff's designation	Amount
5 June 2013	May  2013	Payment 4 taxi 199	$4,000
1 July 2013	June	CT 199	$4,000
31 July 2013	July	Plat pay CT 199	$4,000
2 September 2013	August	[undesignated]	$4,000
30 September 2013	September	Plate repay car 7 (CT 199)	$4,000
31 October 2013	October	Plate repay car 7 (CT 199)	$4,000
29 November 2013	November	Plate repay car 7 (CT 199)	$4,000
2 January 2014	December	Car 7	$4,000
January 2014
February
March
20 May 2014	April	Payment for car 7	$4,000
May

1. From this table, it is apparent that Mr Googe failed to make the payments for January, February and March 2014 on the CT 199 Contract.  Given Mr Googe's practice of paying the instalment for a particular month in the first few days of the following month, and Ms Spoljaric's acquiescence in that practice, I find that Mr Googe had not breached the CT 199 Contract by failing to pay the instalment due in May 2014 at the time the plate was removed on 29 May 2014.

2. In summary terms, I find that Mr Googe was in breach of the CT 199 Contract in failing to make the monthly instalment payments due in January, February and March 2014. 

3. The other consequence of the Payment Arrangement was that until the purchase price of taxi plate CT 191 was paid in full, no amounts would be allocated to paying down the purchase price under the CT 199 Contract.  Pursuant to the Payment Arrangement, the $8,000 of designated payments paid on the CT 199 Contract in 2014 is then allocated to the CT 191 Contract, with the effect that as at 1 June 2014, the total sum of $169,000 had been paid towards the purchase of taxi plate CT 191.  As the amount of $170,000 was never paid in full on the CT 191 Contract, as at 29 May 2014, none of the purchase price of taxi plate CT 199 had been paid.

1. Who removed taxi plate CT 199 from Mr Googe's vehicle in May 2014?

1. It is common ground in the early evening of 29 May 2014, taxi plate CT 199 was removed from the Toyota HiAce vehicle belonging to Mr Googe.  It is further common ground that at the time the taxi plate was removed, the Toyota HiAce was parked in the driveway of Frank Njiru.

2. Mr Googe's position is that it was removed by Mr Ivkovic.

3. Ms Spoljaric's position, and that of Mr Ivkovic, is that it was removed by Tomislav on the instructions of Ms Spoljaric.

4. It is necessary to review the evidence of each witness who gave evidence about this issue.

Documentary evidence

1. The only documentary evidence relevant to this issue is a text message exchange which occurred on Thursday 29 May at 17:31, that is, 5.31 pm (AB 25).

2. Mr Googe sent a message to Mr Ivkovic which read:

   Car 13 has moved as of now, now working for Carlindy and you drive me to do this sorry.

3. I accept that it was Ms Ivkovic who sent the reply, which was in the following terms:

   Np Darius, but first uneed to come over now to bring my radio and i will take my sign down.  After u do that u r free to work for who ever u chose to.

4. It is common ground that 'Np' is shorthand for 'no problem'.

Mr Googe

1. Mr Googe's evidence is that at the beginning of 2014 one of his drivers had been attacked whilst on shift.  He had concerns more generally about the safety of his drivers.  At this time he was not living in Port Hedland.  He returned to Port Hedland at the end of January 2014, and did some shifts driving his taxis.  On one occasion in February 2014 he was attacked by five people.

2. After the split between Hedland Taxis and Carlindie Cabs, Mr Googe began receiving complaints from his drivers that jobs were being despatched unfairly, that Mr Ivkovic was taking all the better jobs instead of the plate holders (ts 29).  After this had been going on for two weeks, he decided to again go to Port Hedland to try and sort out the issue.

3. At this time, he was still concerned about the issue of the safety of his drivers.

4. Mr Googe says he approached Mr Ivkovic about his concerns.  He did so at a meeting on the night of 29 May 2014.  This meeting was at the house of Tomislav and Ms Kingdom.  In addition to Mr Googe and Mr Ivkovic, also present were Tomislav, Ms Ivkovic and Ms Kingdom (ts 31).  At the meeting he raised his concerns about driver safety and unfairness in job allocation.  Mr Googe's evidence is that the meeting got 'really hostile', that he was being 'yelled out' and threatened by Mr Ivkovic and Tomislav (ts 32).  During the meeting, Mr Googe made a telephone call to Ms Ebid, and arranged for her to speak with Tomislav.  Mr Googe was trying to come up with an arrangement whereby he could take one car to Carlindie Cabs and leave one car with Hedland Taxis, 'without any repercussions'.  He was told that he could 'not do anything like that' (ts 32).

5. After this meeting, Mr Googe went back on the road.  He continued to feel that he was being treated unfairly in job allocations (ts 33).  He made the decision to take the car with taxi plate CT 191 on it back to Carlindie Cabs.  His intention was that the other car, with taxi plate CT 199 on it, being the car being driven by Mr Njiru and Ms Ebid, was to stay with Hedland Taxis.

6. Also on 29 May 2014, Mr Googe went around to Ivan's house to discuss the issues.  He asked Ivan if it would be all right if he brought taxi plate CT 191 to Carlindie Cabs and left taxi plate CT 199 with Hedland Taxis (ts 35).  Ivan said that that would not be a problem.  Ivan gave him a radio and he swapped out the radio from the vehicle on which taxi plate CT 191 was affixed and started working for Carlindie Cabs that night (ts 35).

7. Mr Googe then sent a text message to Mr Ivkovic, which is set out at [142] above, and received the reply from Ms Ivkovic.

8. Mr Googe then telephoned Mr Njiru who was at the airport to let him know of his decision to take taxi plate CT 191 back to Carlindie Cabs and leave taxi plate CT 199 with Hedland Taxis (ts 33).

9. Sometime later that evening, Mr Googe received a telephone call from Mr Njiru telling him that taxi plate CT 199 had been removed from the Toyota HiAce which was at Mr Njiru's house.  He went over to Mr Njiru's house and confirmed that this had occurred (ts 35).  The radio had also been removed.

10. He then called Ms Ebid as she was supposed to be working the evening shift on taxi plate CT 199 to tell her that she would not be working (ts 35).

11. He also called Mr Ivkovic.  His evidence of this conversation is as follows (ts 36 - 37, with the questions being asked by me):

    Yes, but a moment ago you said you made a telephone call to the 2nd defendant?---Yes, sorry; yes, I rang the 2nd defendant to find out what's going on and he responded that he's taking the plate, 'It's Ruby's plate and you're going to get - take legal action to get it back or speak to ‑ ‑ ‑'

    When you say 'Ruby's plate', who's Ruby?---The 1st defendant, Ljubica.

    Okay---I call her Ruby, sorry.

    Okay; that's fine.  Now, tell me to the best of your recollection - okay.  How did you know you were speaking to Mario Ivkovic?---I rang his number and he has a very clear accent.

    Okay?---And I've spoke to him on the phone quite a bit.  On the radio I speak ‑ ‑ ‑

    You recognised his voice?---Every day I spend on the radio listening to his voice.

    Okay; and tell me to the best of your recollection exactly what words he said?---I asked him why he took the plate.  He said ‑ ‑ ‑

    Before you go to that, what was the first thing you said on the phone?---I can't remember exactly.

    Okay.  So you asked him ‑ ‑ ‑?‑‑‑I just remember the context of the call.  It lasted, like, four minutes.

    …

    So Frank tells you the plate's been taken?---Yes.  I started driving to Frank's house to confirm it while I rang Mario.

    Yes?---And that conversation lasted about four minutes.  It was a really quick conversation where he said that it's the 1st defendant's plates; that I breached the contract or I breached something or I did something against the law.  I'm not sure of the exact words.

    Yes?---'And you're going to have to get a lawyer to get it back,' and then hung up.

    Okay.  That sounds like a less than four-minute conversation?---It was a bit longer.  There was a bit of - I'm not sure, I'm sorry.

    That's okay.  People are notoriously bad at guessing time.  That's okay.  Okay.  So there's a short a conversation, 'Going to have to get a lawyer,' and so what was - tell me what in terms of what was there in the conversation about who actually took, removed, physically removed the plate?---The 2nd defendant told me on the phone it was himself.

    Okay?---He said, 'I have taken the plate.'

12. Mr Googe's evidence is that the reason why he 'left the company [was] because of safety concerns for myself, my drivers and my vehicles' (ts 25).  His evidence was that it was never his intention to take taxi plate CT 199 away from Hedland Taxis (ts 34).

Alicia Kingdom

1. Ms Kingdom gave evidence that she recalled a meeting late afternoon/early evening when Mr Googe had been invited over to her and Tomislav's house.  Mr Ivkovic, Ms Ivkovic and their children also came over.  They had heard a rumour that Mr Googe was going to take the taxi plates to another company.  Mr Googe had been asked to come to discuss it.  It appeared to Ms Kingdom that Mr Ivkovic and Tomislav were being quite aggressive towards Mr Googe.  Ms Kingdom also recalls Mr Googe raising the issue of the safety of his drivers at this meeting.

2. Ms Kingdom's evidence was that not long afterwards, Tomislav rang the driver that had the taxi plate at his house.  She saw Ms Ivkovic and Tomislav leave her house together to go to the driver's house.  Mr Ivkovic remained at her house with his children.

3. Ms Kingdom said she could only recall one meeting with Mr Googe, and was not sure whether it was on 14 or 29 May (ts 139), though she did confirm that Ms Ivkovic and Tomislav went to remove the plate after the meeting (ts 135).

Dalmar Ibrahim Fahiye

1. Mr Fahiye gave evidence on behalf of Mr Googe.  He is a taxi driver in Port Hedland who at the time of the events in question was a driver of one of the taxis owned or controlled by Hedland Taxis (ts 148). 

2. Mr Fahiye was asked by his 'boss' Mr Ivkovic to go to a meeting.  This was on 29 May 2014.  He went over to Mario and Bozana's house (ts 142).  Also present were Mr Ivkovic, Ms Ivkovic, Tomislav and Ms Kingdom.  He was asked about a conversation he had with Mr Googe earlier that day (or perhaps some days prior – it is not clear).  Mr Fahiye told them that he had a conversation with Mr Googe in which Mr Googe said he was taking one or both of his plates (he could not recall which) to another company.  There was a discussion as to why Mr Googe was considering doing this (ts 142, 156).

Ivan Spoljaric

1. Ivan gave evidence on behalf of Mr Googe.

2. On 29 May 2014, Mr Googe came over to his house.  Ivan recalls the conversation with Mr Googe taking place the same day the plate was taken off Mr Googe's taxi (ts 181).  The meeting occurred before any of Mr Googe's plates had come over to Carlindie Cabs.  Mr Googe told Ivan that he was having some problems with Mr Ivkovic and was sick of the way he was being treated by Hedland Taxis.  Mr Googe asked whether Ivan would be happy to take his plates into Carlindie Cabs, which he said he would be (ts 180).  Ivan recalls Mr Googe saying that he wanted the two plates in two different companies (ts 181).  Mr Googe made it clear to him that the second plate would not be coming over (ts 181).

1. In obtaining possession of the new truck from the driver against the 'strongly expressed will' of the managing director of SASS, City Motors committed a trespass to goods (483, 485).  Dixon CJ concluded (485):

   It must be steadily borne in mind that the [new] truck was in the possession of [SASS] as bailee and the vehicle was wrongfully taken out of that company's possession. The right asserted is simply to regain possession, not to establish a possession not before held. The title of the bailee persists: nothing has happened to destroy or impair it. It follows that he may sue in detinue. The owner or bailor who wrongfully took it from the bailee's possession is compellable to restore it.

2. As to the remedy, Windeyer J stated (491, footnotes omitted):

   At common law a judgment for the plaintiff in detinue required the defendant either to return the chattel to the plaintiff or pay him its value and also to pay damages for its detention. The defendant had an option not to return the chattel, but to keep it and pay its value together with damages…. In proceedings between a bailee and a third party the interest of the bailee in the chattel is its full value…. But where the defendant is the bailor, and thus himself has an interest in the chattel, what is in question is the value of the interest of the plaintiff as between himself and the defendant…

3. Applying this authority to the present case, three conclusions follow.

4. The first is that, under the CT 199 Contract, Mr Googe was a bailee of taxi plate CT 199, and was entitled to exclusive possession of it.

5. The second is that Mr Googe's title to possession as bailee is sufficient to support a cause of action in detinue or trespass to goods, and, by analogy, conversion. 

6. The third is that it is immaterial that the seizure was done by employees or agents of the bailor (in the present case Tomislav) and that the chattel was in the physical custody of an employee or agent of the bailee (in the present case, Mr Njiru).

Conversion

1. The 'essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right to possession of the person who has the property or special property in the chattel':   Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204, 229 (Dixon J); Tallott v City of Stirling [No 2]  [2015] WASC 483 [14] (Chaney J), affirmed Tallott v City of Stirling [2017] WASCA 126 [252] – [253] (Reasons of the Court). The intent required is an intention to deprive or impair the owner's immediate right to possession of the chattel': Penfolds Wines (224, 229) (Dixon J); Tallott [14]. '[B]efore there can be conversion the taking of the chattel must have been without lawful justification, and that it must be shown there was an intention to exercise permanent or temporary dominion over it': Wellington City v Singh [1971] NZLR 1025, 1027 (Quilliam J).

2. By wrongfully dispossessing Mr Googe of taxi plate CT 199, Ms Spoljaric committed the tort of conversion.  Ms Spoljaric intended to, and did, deprive Mr Googe of immediate possession of the taxi plate, and has continued to do so.

3. As to damages for conversion, a plaintiff should 'receive compensation in a sum which, so far as money can do so, will put him in the same position as he would have been in if… the tort had not been committed': Butler v Egg and Egg Pulp Marketing Board [1966] HCA 28; (1966) 114 CLR 185, 191 (Taylor and Owen JJ), (192) (Menzies J); Egan (521);  Chep Australia Limited v Bunnings Group Limited [2010] NSWSC 301 [224] – [226] (McDougall J). 'In most cases of conversion it is, of course, obvious that its application will result in the injured plaintiff recovering the full value of the property converted since that will usually represent the loss that he has sustained by the defendant's wrongful act'. Butler(191).  The 'general rule – that damages in conversion are the value of the goods converted – should give way where necessary to ensure that the plaintiff receives no more than its entitlement under the compensatory principle':  Chep [251]; Butler (191).

4. The general principles are conveniently summarised in the judgment of Wickham J in Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184, 191:

   The rule that damages for conversion are assessed as at the date of conversion is now exemplified as much by exceptions to as by examples of it.  Just as on a rising market a plaintiff might receive consequential damage as at the date of judgment – see Sachs v Miklos [1948] 2 KB 23; [1948] 1 All ER 67; Aitken v Gardner, (1956) 4 DLR (2d) 119 – so he will be deprived of such additional damage if he ought to have mitigated his continuing loss, and likewise will receive only his real damage if there has been some other mitigation between the date of the tort and judgment, such as the return of the goods, as mentioned by Menzies J, in Butler's Case, ibid., or (as I would add) the payment or recovery of part of their value prior to judgment.  It is also permissible in cases where the plaintiff has a proprietary interest in the goods (as in the case of a hire seller) which is subject to the proprietary interest of another (such as a hire purchaser) that the value of that interest should be the measure of the plaintiff's damage.  In a hire purchase situation, the value of that interest will usually be the amount as determined by the agreement as qualified by statute law, namely the 'payout figure'.  This need not always be the measure: cf. Pacific Acceptance Corporation Ltd v Mirror Motors Pty Ltd [1961] SR (NSW) 548; [1960] ALR 796 a case where the value of the goods was less than the payout figure. The criterion for choice will be that stated in Butler's Case, namely 'The broad principle that damages are awarded by way of compensation' – compensation for the wrong of the defendant.  This is not to imply that the same considerations will necessarily apply to a claim by a hire‑purchaser, simple bailee, or a purchaser whether holding only legal title or both possession and legal title.  Contrast The Winkfield, [1902] P 42; [1901‑3] All ER Rep 346, and Healing (Sales) Pty Ltd v Inglis Electric Pty Ltd (1968) 121 CLR 584; [1969] ALR 533, and in which at (CLR) p 603 Kitto J, explains the basis of the decision in Chinery v Viall, ibid.  These cases are not all the same.  See Tort Liability for Damage to Hire‑Purchase Goods by Professor Fleming, 32 ALJ 267 and Measure of Damages in Conversion and Detinue by J P Peden, 44 ALJ 65. This view of the interest of a hire seller and also the choice of the payout figure is sanctioned by authority – Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1 WLR 295; [1967] 1 All ER 117; Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 210 [1970] 3 All ER 664, and on the authority of these cases it does not matter that the defendant is not the other party with a partial interest.

   The choice will depend upon the circumstances of each case and in this case I think it to be the payout figure at the date of judgment.

5. A like observation was made by White J in Egan (527) that 'there are as many exceptions to the general rule as cases within the rule, that damages are to be assessed at the time the injury occurs'.  In Egan White J allowed Mr Egan damages in conversion for both the loss of value of the chattels themselves and the consequential loss of the ability to earn profits from the chattels (528).  In that case, the conversion occurred in 1966, but for various reasons, including STA's wrongful denial of liability, the judgment was in 1982.  His Honour held that the damages were to be expressed in '1982 money terms' as, if assessed in '1966 money terms', Mr Egan would not receive damages reflecting the compensatory principle (528 – 529).

6. Where the chattel converted is a document with intangible rights attached to it (like a cheque), its value includes the intangible rights represented by it:  Morison v London County and Westminster Bank Ltd [1914] 3 KB 356, 365 (Lord Reading CJ); Bavins v London & South Western Bank [1900] 1 QB 270, 275 (A L Smith J), 276 (Collins LJ), 278 (Vaughan Williams LJ). In the present case, the chattel, the taxi plate, carried with it the intangible right to operate a taxi.

7. As is apparent from the passage cited from Western Credits, the measure of damages takes into account the nature of the plaintiff's interest in the chattel.  In the present case, Mr Googe's right to possession was pursuant to the CT 199 Contract, and his interest in the taxi plate was subject to that contract.  As set out above ([240]), with some reservations, I am prepared to find that the value of the taxi plate at the date of judgment is $170,000.  I also find that it had this value at the date on which the act of conversion occurred, 29 May 2014.  However, I have also found that Mr Googe has not paid any of the instalments of the purchase price for taxi plate CT 199.

8. Going back to first principles, the central question is what amount of compensation would place Mr Googe in the position he would have been in had the conversion not occurred, that is, had the taxi plate not been removed from his taxi.  Had it not been removed, Mr Googe would have continued to possess and use the taxi plate consistent with the terms of the CT 199 Contract.  As set out above, he would have made an operating profit of $850 per week, but a net loss of $73 per week until 17 December 2017 when the final instalment of the purchase price would have been paid.  As at 17 December 2017, he would have ended up with an asset with a value of $170,000 (see above [240]).  Inherent in the value of the asset is its ability to produce income in the future.

9. In my view, the appropriate measure of damages to place Mr Googe in the position he would have been in had the tort of conversion not occurred is $170,000 being the value of the property converted at the point in time at which he was entitled to have ownership of the property transferred to him, 17 December 2017.  This is a case in which it is appropriate to depart from the rule that the damages are assessed at the date of breach:  see [221] above.  The form of the judgment would specify that it is not payable until 17 December 2017.  He is not entitled to any consequential losses as he would have made no net profit from the use of the taxi plate until that date, rather a net loss once the instalments were taken from the operating profit.

Detinue

1. 'The essence of the tort of detinue is the wrongful detention of a chattel to which the plaintiff has the right to immediate possession which requires that there be a demand and a wrongful refusal to comply with that demand':  Pargiter v Alexander (1995) Aust Torts Reports 81-349, 62,503 (Zeeman J); Black Diamond Group Pty Ltd v Manor of Maluka Pty Ltd [2015] 1 Qd R 180 [41] (Jackson J). The 'plaintiff must show that, when the demand was made and for so long as the wrongful detention continued, the plaintiff was entitled to possession': Gollan v Nugent [1988] HCA 59; (1988) 166 CLR 18, 25 (Brennan J).

2. For present purposes, there are three substantive elements:

   (a)the plaintiff must have made a demand for the chattel whose possession the plaintiff is entitled to at the time of making the demand;

   (b)the defendant must have refused that demand; and

   (c)where the chattel is in the defendant's possession, the refusal to return the chattel must be unreasonable.

   (The Laws of Australia, Ch 33, par [33.8.920]; Black Diamond[42]). The cause of action is complete when a person entitled to possession of the chattel makes a demand on a possessor and the possessor refuses to return them: Black Diamond[28].

3. The relevant demand is, in my view, contained in a letter dated 4 June 2014 from Mr Googe's former lawyers, Pacer Legal, to Ms Spoljaric (AB 26 ‑ 27).  Although the demand is couched in terms of a breach of contract, there is a clear demand for the immediate return of taxi plate CT 199 'forthwith'.  As set out above, Mr Googe was entitled to possession of taxi plate CT 199 pursuant to the CT 199 Contract at the time the taxi plate was removed, and thus at the time the demand was made.

4. I further find that Ms Spoljaric refused to return taxi plate CT 199, despite a demand from Mr Googe.

5. I also find that taxi plate CT 199) is in the possession of Ms Spoljaric (see further [321]).  Accordingly, the remaining issue is whether the refusal to return the chattel was unreasonable.  In Black Diamond, Jackson J observed that  'the cases recognise that in some circumstances a defendant's failure to respond to a demand may not constitute a sufficient refusal and that a defendant may not have refused sufficiently where the purpose of refusal is to reasonably investigate the plaintiff's right to possession before responding further' [32].  The defendant is 'entitled to reasonable time to inquire into the rights of a claimant':  EE McCurdy Ltd (in liq) v Postmaster-General [1959] NZLR 55, 557 (McGregor J). For example, in EE McCurdy, it did not constitute a detinue for the Postmaster-General to refuse to return a package before commencing interpleader proceedings to have rival claims to the package determined by the court.  The detention was not adverse as the Postmaster had made it clear that he had no interest in the goods, and was willing to perform his duty to deliver up the goods to whichever claimant was lawfully entitled to them (555 - 556).  There was no refusal to deliver up the goods (556).  The genesis of the requirement that the refusal to return was unreasonable is drawn from the 'essence of detinue that the detention should be adverse':  EE McCurdy (556).  There must be a withholding of possession in such a way that it 'may be said to be a conversion to a man's own use':  Burroughes v Bayne (1860) 5 H & N 296, 309; 157 ER 1196, 1201 (Bramwell J); EE McCurdy (557).  So where the defendant has wrongfully detained a chattel, but does not in fact use it, the tort will not lie:  Black Diamond (186-189).  In EE McCurdy, there was no such use of the disputed parcel.

6. In the present case, there was both a refusal to return taxi plate CT 199, as well as ongoing use by Ms Spoljaric.

7. I find that Mr Googe has established a cause of action in detinue against Ms Spoljaric.

8. The modern position as regards remedies for an action in detinue was summarised by Diplock LJ in General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644, 650 - 651 in the following terms:

   ... the action in detinue partakes of the nature of an action in rem in which the plaintiff seeks specific restitution of his chattel.  At common law it resulted in a judgment for delivery up of the chattel or payment of its value as assessed, and for payment of damages for its detention.  This, in effect, gave the defendant an option whether to return the chattel or to pay its value, and if the plaintiff wished to insist on specific restitution of the chattel he had to have recourse to Chancery.  (See In re Scarth, ((1874) 10 Ch App 234 per Mellish LJ (Ibid, 235)).  The Common Law Procedure Act, 1854, s 78, gave the court power to order delivery up of the chattel by the defendant without giving him the option to pay its value as assessed.  Such an order was enforceable by execution, and if the chattel could not be found distraint could be had upon the defendant's lands and goods until he delivered up the specific chattel, or at the option of the plaintiff distraint could be had of the defendant's goods for the assessed value of the chattel.  This, in effect, where the court thought fit to make such an order, gave the plaintiff an option to insist upon specific restitution of his chattel if the defendant did not deliver it up voluntarily; but this remedy was not available unless and until the value of the chattel had been assessed.  (See Chilton v Carrington ((1855) 15 CB 730; [1855] Eng R 173).  This remedy continues to exist under the modern law, but if the plaintiff does not wish to exercise his option to recover the assessed value of the chattel the assessment of its value is no longer a condition precedent to an order for specific restitution. (See Hymas v Ogden ([1905] 1 KB 246; 21 TLR 85, CA; 21 TLR 18, DC); RSC, Ord 48, r 1.) In addition to an order for specific restitution of the chattel or for payment of its value as assessed, the plaintiff was always entitled to damages for wrongful detention of the chattel.

   In the result an action in detinue today may result in a judgment in one of three different forms: (1) for the value of the chattel as assessed and damages for its detention; or (2) for return of the chattel or recovery of its value as assessed and damages for its detention; or (3) for return of the chattel and damages for its detention.

   A judgment in the first form is appropriate where the chattel is an ordinary article in commerce, for the court will not normally order specific restitution in such a case, where damages are an adequate remedy.  (See Whiteley Ltd v Hilt ([1918] 2 KB 808, 819, 824)).

   A judgment in this form deprives the defendant of the option which he had under the old common law form of judgment of returning the chattel; but if he has failed to do so by the time of the judgment the plaintiff, if he so elects, is entitled to a judgment in this form as of right (cf RSC, Ord 13, r 6). In substance this is the same as the remedy in conversion, although the sum recoverable, as I have indicated, may not be the same as damages for conversion, for the cause of action in detinue is a continuing one up to the date of judgment and the value of the chattel is assessed as at that date. (See Rosenthal v Alderton & Sons Ltd ([1946] 1 KB 374)) A final judgment in such a form is for a single sum of money.

   A judgment in the second form gives to the defendant the option of returning the chattel, but it also gives to the plaintiff the right to apply to the court to enforce specific restitution of the chattel by writ of delivery, or attachment or sequestration as well as recovering damages for its detention by writ of fieri facias. (RSC, Ord 42, r 6).  This is an important right and it is essential to its exercise that the judgment should specify separate amounts for the assessed value of the chattel and for the damages for its detention, for if the plaintiff wishes to proceed by writ of delivery for which he can apply ex parte (RSC, Ord 48, r 1) he has the option of distraining for the assessed value of the chattel if the chattel itself is not recovered by the sheriff.  He would be deprived of this option if the value of the chattel were not separately assessed.

   A judgment in the third form is unusual, but can be given.  (See Hymas v Ogden ([1905] 1 KB 246)). Under it the only pecuniary sum recoverable is damages for detention of the chattel. Its value need not be assessed and the plaintiff can only obtain specific restitution of the chattel by writ of delivery, attachment or sequestration. He has no option under the writ of delivery to distrain for the value of the chattel.

   In the ordinary way where an action goes to trial the issues of liability, assessment of value of the chattel, and damages for its detention, are dealt with at the hearing, and final judgment in one or other of the above forms is entered

9. This passage was recently applied in the Australian context by the Queensland Court of Appeal in Wade Sawmill Pty Ltd v Colenden Pty Ltd [2007] QCA 455 [18] (Keane JA, with whom McMurdo P and Daubney J agreed).

10. The position summarised by Diplock LJ is based on the Common Law Procedure Act 1854 (UK) (17 & 18 Vict c 125) s 78 (UK CLPA) which gave the court the power to order delivery up of a chattel by the defendant without giving the defendant the option to pay its value as assessed, being the former common law position.  There was an equivalent provision in Supreme Court Act 1995 (Qld), being s 25 (Qld SCA). That section relevantly provides that the 'court or a judge shall have power if they or the judge see fit to do so upon the application of the plaintiff in any action for the detention of any chattel to order that execution shall issue for the return of the chattel detained without giving the defendant the option of retaining such chattel upon paying the value assessed'. The result is that, if the plaintiff has a good cause of action in detinue, he is entitled to choose to recover the chattel in specie or its assessed value: Wade Sawmill [24]. However, the power to make an order for specific restitution is discretionary, which must be judicially exercised, and which may have regard to factors such as the plaintiff's willingness to do equity (as, for example, by making an allowance for money or labour expended on the improvement of the goods): Gollan (26); Wade Sawmilling [23] – [24].

1. The position is different in Western Australia as there is no equivalent to UK CLPA s 78 and Qld SCA s 25.  The common law position explained by Diplock LJ continues to apply see also City Motors (491)). 

2. Where the chattel is returned and damages are awarded, 'the measure of damages for detention is the losses suffered by the plaintiff by reason of having been deprived of the chattel':  Pargiter (62,504).

3. Mr Googe seeks judgment for delivery up of the taxi plate.  At common law, the judgment he is entitled to against Ms Spoljaric is for delivery up of the taxi plate or payment of its value as assessed, and for payment of damages for its detention.  Whether the taxi plate is delivered up, or payment of its value is tendered, is at the option of Ms Spoljaric.  As set out above, with some reservations, I find that the value of the taxi plate as at the date of judgment is $170,000, though as set out above [297] it should not be payable until 17 December 2017.

4. However, Mr Googe's entitlement to ownership of the taxi plate was subject to payment of the purchase price of $170,000, which he was to do by way of instalments.  Consistent with the approach in City Motors, Mr Googe is entitled to delivery up of the taxi plate on condition that he pays the outstanding balance of the purchase price, being $170,000 (see also Black Diamond [15]).

5. As to the damages for its detention, a taxi plate is an income producing chattel in the same way as a chattel which can be hired out for reward.  In Partiger, Zeeman J stated of this class of case (62,504):

   In a case of detinue, where the plaintiff hires out the chattel to users as part of his business, the normal measure of damages for the detention of the chattel is the market rate at which it could have been hired …  Reasonable costs incurred by hiring a replacement chattel would appear to be recoverable on the same basis.

6. Jackson J made comments to similar effect in Black Diamond [22] ‑ [26].

7. By analogy to this principle, Mr Googe is entitled to damages based on the net income he could have earnt had he had ongoing possession of the taxi plate.  Given the proposed condition as to the payment of the purchase price, on the first scenario set out at [310] his damages for detention are to be assessed without deduction of the purchase price.  As set out above, this figure is $156,400, being the operating profit of $850 per week for the 184 week period from 29 May 2014 to 17 December 2017.  On the second scenario, there is no justification for removing the instalments of the purchase price from the damages for detention.  Accordingly, he is not entitled to any damages for detention.

8. The end result is that Mr Googe is entitled as a remedy in detinue to an order for either:

   (a)delivery up of the taxi plate, on condition that he pays the amount of $170,000, together with damages for detention of $156,400, a net payment to Ms Spoljaric of $13,600; or

   (b)payment of its value as assessed, $170,000, with no damages for detention not payable until 17 December 2017.

   The election as to which of (a) or (b) would be in the judgment is with Ms Spoljaric.  I would require the election to be made before the final judgment is extracted.  However, this is in turn subject to Mr Googe's prior election as to the form in which he takes judgment. 

Trespass to goods

1. The tort of trespass to goods  arises where there is a direct intentional or negligent interference with the chattels of another:  Tallott [12]; Pargiter (62,503).

2. As the decision in City Motors illustrates, by wrongfully dispossessing Mr Googe of taxi plate CT 199, Ms Spoljaric committed the tort of trespass to goods. 

3. As to the remedy for this tort, unlike an action in detinue, in an action for trespass to goods no damages are payable for wrongful detention, that is, to compensate the person entitled to possession for damages arising from being deprived of the use of the chattel:  Pargiter (62,503).  Rather, 'damages in trespass are by way of compensation for the injury done to the chattel by reason of the wilful interference with it, although nominal damages may be awarded where no actual damage occurs':  Partiger (62,503).  The distinction is developed by Zeeman J in Partiger by reference to cases in which the chattel in issue was a share certificate (62,505):

   The chattels involved in those cases were share certificates and not the shares which they represented. No injury was done to the certificates as chattels so that only nominal damages were recoverable in trespass.  The wrongful detention of the certificates prevented the plaintiffs from dealing with the shares to which the certificates related.  Losses flowing from an inability to deal with the shares, which themselves are not chattels, were losses suffered because the plaintiffs had been kept out of possession of the certificates.  Accordingly, such losses were recoverable by way of damages in detinue.

4. In the present case there was no actual damage to the chattel, the taxi plate.  Accordingly, Mr Googe is not entitled to any damages for the action of trespass to goods.

1. Is Mr Googe entitled to any relief against Mr Ivkovic in tort?

Positions of the parties

1. Mr Googe's position is Mr Ivkovic's current possession, and use, of taxi plate CT 199 constitutes a breach of the torts of detinue, trespass to goods and conversion.  He says he is entitled to both an order for the return of taxi plate CT 199 and damages for the loss of use of the taxi plate for the period from 29 May 2014 to the date judgment is given.

2. Mr Ivkovic's position is that as he does not have, and never had, possession of taxi plate CT 199, there is no basis for the grant of any remedy against him in tort.  He never received any benefit from the use of taxi plate CT 199.

Determination - tort

1. The finding set out at [189] means that there is no basis for an action in conversion or trespass to goods on the basis that Mr Ivkovic removed the taxi plate.

2. I also find that Mr Googe has not proven on the balance of probabilities that the taxi plate has been in the possession of Mr Ivkovic.  Rather, at all times it has been in possession of Ms Spoljaric.  Ms Spoljaric as the owner of taxi plate CT 199, and the proprietor of Hedland Taxis, has had the power at all times to direct Mr Ivkovic, and Ms Ivkovic for that matter, to return physical custody of the taxi plate to her.  Mr Ivkovic's use of the taxi plate as a driver for Hedland Taxis was as a licensee of Ms Spoljaric.  He has not asserted any right to withhold possession of the taxi plate from Mr Googe; that has been done by Ms Spoljaric.  In any event, the only demand made for return of the taxi plate was against Ms Spoljaric, that letter identifying that the person alleged to have taken the taxi plate was 'your son', a clear reference to Tomislav, and not Mr Ivkovic (her son in law). 

3. As the taxi plate is not in Mr Ivkovic's possession, nor has Mr Googe proven that he has wrongfully withheld possession of the taxi plate from Mr Googe.  Accordingly, there is no basis for an action in detinue against him.

4. For these reasons, Mr Googe has not established on the balance of probabilities any action in tort against Mr Ivkovic.

1. Is Mr Googe entitled to any relief against Mr Ivkovic in equity?

Positions of the parties

1. Mr Googe further asserts that, if Mr Ivkovic is currently in possession of taxi plate CT 199 in his own right, he holds this on trust for Mr Googe as he stole it.

2. Mr Ivkovic's position is that as he does not have, and never had, possession of taxi plate CT 199, there is no basis for the grant of any remedy against him in equity.  He says he never received any benefit from the use of taxi plate CT 199.

Determination - equity

1. I have relevantly found that:

   (a)Mr Ivkovic did not remove taxi plate CT 199 from Mr Googe's vehicle [188];

   (b)Mr Ivkovic never had possession of taxi plate CT 199 [321]; and

   (c)Although Mr Ivkovic has driven the white Camry on which taxi plate CT 199 is affixed on numerous occasions since 29 May 2014, that taxi being under the control of Hedland Taxis, his use was as a licensee ([50], [321]).

2. Given these findings, and on the evidence before me, Mr Googe has not established on the balance of probabilities that Mr Ivkovic holds taxi plate CT 199 on trust for him, nor any other basis for relief in equity against Mr Ivkovic.

1. What final orders are appropriate?

1. Mr Googe has established an entitlement to relief on four alternate bases:

   (a)damages for breach of contract in the amount of $170,000;

   (b)an order for specific performance of the CT 199 Contract on the terms set out above ([264] – [265]), specifically the tender of $13,600 to Ms Spoljaric;

   (c)damages of $170,000 in tort as a result of Ms Spoljaric converting his possession of taxi plate CT 199 not payable until 17 December 2017;

   (d)in detinue, an order for either (i) or (ii) at the election of Ms Spoljaric:

   (i)delivery up of the taxi plate, on condition that he pays the amount of $170,000, together with damages for detention of $156,400, a net payment to Ms Spoljaric of $13,600; or

   (ii)payment of its value as assessed, $170,000, with no damages for detention, not payable until 17 December 2017.

2. It is his election as to which one of these bases he is given judgment for.

3. He is also entitled to damages of $380 relating to the radio seized.

4. My preliminary view is that Mr Googe is entitled to his costs as against Ms Spoljaric on a party and party basis, to be taxed if not agreed.  Although Mr Googe was not represented at trial, he was represented earlier in the life of the action, and so will have legal costs he is able to claim.  I note that in his written submissions filed 19 July 2017, Mr Googe claims his legal costs by way of damages.  However, those costs may only be claimed through the legal cost recovery process, and not by way of damages.

5. Also for the reasons set out above, Mr Googe's claim against Mr Ivkovic is to be dismissed.  My preliminary view is that Mr Googe should pay Ivkovic's costs of the action, including the summary judgment application, on a party and party basis, to be taxed if not agreed.  Again, although Mr Ivkovic was not represented by the time of the trial, he was represented earlier in the life of the action, and so will have legal costs that he is able to claim.

6. I will hear from the parties as to the form of judgment as well as costs.