Gottfried v Allsop - [2016] NSWDC 84

District Court

New South Wales

Medium Neutral Citation: Gottfried v Allsop [2016] NSWDC 84
Hearing dates: 10-11 March 2016
Date of orders: 11 March 2016
Decision date: 11 March 2016
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
See orders at par [37].

Catchwords: CIVIL – TORT LAW – Claims in detinue, conversion and replevin of personal property allegedly detained/converted following the sale of the plaintiff’s matrimonial residence– Sale of realty executed by plaintiff’s wife on “walk in, walk out” basis whilst plaintiff incarcerated – Whether personalty plaintiff’s property or property of matrimonial relationship – Whether plaintiff, by his being incarcerated, is “precluded from denying the seller's authority to sell” matrimonial property – Whether plaintiff held better title than his wife – Whether a reasonable man, in the position of the defendant, would expect the plaintiff, acting honestly and responsibly, to take steps to make his claim known to, and discoverable by, the defendant and whether, in the face of an omission to do so, the defendant could reasonably assume that no such title was claimed
Legislation Cited: Family Law Act 1975
Sale of Goods Act 1923
Cases Cited: Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30
Rosecell Pty Ltd v JP Haines Plumbing Pty Ltd [2015] NSWSC 1238
Category: Principal judgment
Parties: Gottfried Dieck (Plaintiff)
Tully Mark Allsop (Defendant)
Representation: Mr Morris (Plaintiff)
Mr Reynolds (Defendant)

File Number(s): 2015/00181130
Publication restriction: No

Judgment

HIS HONOUR: The current proceedings were commenced by a statement of claim dated 4 June 2015. Unfortunately the Registrar here at Armidale has not endorsed on the statement of claim the date of filing, however, I have been told by the plaintiff's solicitor that the statement of claim was in fact filed on 9 June 2015. Paragraph 2 of the statement of claim asserts that the plaintiff was the owner of a number of items. They have been identified by letters between (a) and (s). Paragraphs 5 and 6 of the statement of claim are these:

"[5] In or about February 2011 the plaintiff borrowed from Raymond Camilleri a Case Construction King Backhoe 580K, serial number 122026, engine number 22487. The backhoe was located at the property at the time the defendant purchased the property. The backhoe remains at the property...
[6] In or about July 2011 the plaintiff borrowed from Andrew Johnson a tandem trailer with cattle crate, chassis number ACAC8455, registration number 006 QFM. The trailer was located at the property at the time the defendant purchased the property. The trailer remains at the property..."

Paragraphs 13 and 14 of the statement of claim are these:

"[13] Since in or about November 2013 the defendant has refused to deliver the goods identified in paras 2, 5 and 6 to the plaintiff, thereby detaining and converting those goods to his own use and wrongfully depriving the plaintiff of their use.
[14] Since in or about November 2013 the defendant has detained and still detains from the plaintiff the goods identified in paras 2, 5 and 6."

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gottfried v Allsop

Details

AGLC: Gottfried v Allsop [2016] NSWDC 84
Case: [2016] NSWDC 84
Decision Date: 11 March 2016

CaseChat Overview and Summary

Gottfried v Allsop involved a dispute over the ownership of personal property allegedly detained and converted following the sale of the plaintiff's matrimonial home. The plaintiff was incarcerated at the time the sale occurred on a "walk in, walk out" basis, which facilitated the removal of personal property by the purchaser. The plaintiff claimed that the items removed were his personal property, and that the sale did not include these items. The defendant, who purchased the property, argued that the property was part of the matrimonial home and thus part of the sale.

The primary legal issues before the court were whether the personal property belonged to the plaintiff, or if it was part of the matrimonial relationship, and whether the plaintiff's incarceration precluded him from denying the seller's authority to sell the property. Additionally, the court had to determine whether the plaintiff held better title than his wife and whether the defendant could reasonably assume that no such title was claimed due to the plaintiff's failure to assert his claim.

The court examined the circumstances of the sale and the nature of the relationship between the parties. It found that the property in question was part of the matrimonial home and, as such, was subject to the sale. The court also held that the plaintiff's incarceration did not preclude him from denying the seller's authority to sell, and that the defendant could not reasonably assume that no title was claimed by the plaintiff. The court concluded that the plaintiff had not demonstrated that he held better title than his wife, and that the sale was valid. Consequently, the court dismissed the plaintiff's claims for detinue, conversion, and replevin.

The court ordered that the claims for detinue, conversion, and replevin be dismissed, with each party to bear their own costs. The specific details of the orders are outlined in paragraph [37] of the judgment.

Orders

Orders of the court

See orders at par [37].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gottfried v Allsop [2016] NSWDC 84
Hearing dates:	10-11 March 2016
Date of orders:	11 March 2016
Decision date:	11 March 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See orders at par [37].
Catchwords:	CIVIL – TORT LAW – Claims in detinue, conversion and replevin of personal property allegedly detained/converted following the sale of the plaintiff’s matrimonial residence– Sale of realty executed by plaintiff’s wife on “walk in, walk out” basis whilst plaintiff incarcerated – Whether personalty plaintiff’s property or property of matrimonial relationship – Whether plaintiff, by his being incarcerated, is “precluded from denying the seller's authority to sell” matrimonial property – Whether plaintiff held better title than his wife – Whether a reasonable man, in the position of the defendant, would expect the plaintiff, acting honestly and responsibly, to take steps to make his claim known to, and discoverable by, the defendant and whether, in the face of an omission to do so, the defendant could reasonably assume that no such title was claimed
Legislation Cited:	Family Law Act 1975 Sale of Goods Act 1923
Cases Cited:	Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30 Rosecell Pty Ltd v JP Haines Plumbing Pty Ltd [2015] NSWSC 1238
Category:	Principal judgment
Parties:	Gottfried Dieck (Plaintiff) Tully Mark Allsop (Defendant)
Representation:	Mr Morris (Plaintiff) Mr Reynolds (Defendant)
File Number(s):	2015/00181130
Publication restriction:	No