Hampson v Jackson
[2025] QDC 36
•28 March 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Hampson & Ors v Jackson [2025] QDC 36
PARTIES:
Harry Edmund Edgar Hampson
(First plaintiff)
and
Greta Rose Kathleen Hampson
(Second plaintiff)
and
Edmund John Cedric Hampson
(Third plaintiff)
and
Ava Elizabeth Grace Hampson
(Fourth plaintiff)
and
John James Edmund Hampson, by his litigation guardian, Pepita Marie Hampson
(Fifth plaintiff)
and
Edmund Cecil Cedric Edward Hampson
(Sixth plaintiff)
and
Clayfield Administration Services
ACN 607 567 484
(Seventh plaintiff)
v
Carmen Louise Jackson
(Defendant)
FILE NO:
2346 of 2024
DIVISION:
Civil
PROCEEDING:
Separate question hearing
ORIGINATING COURT:
Brisbane District Court
DELIVERED ON:
28 March 2025
DELIVERED AT:
Brisbane
HEARING DATE:
28 November 2024 and 13 December 2024.
JUDGES:
Byrne KC DCJ
ORDERS:
1. Within seven days of the delivery of these reasons, the parties are to provide my associate with an agreed form of Order consistent with these reasons.
2. If the parties are unable to agree on an agreed form of Order, other than as to costs, both parties are to file and serve written submissions, not exceeding five pages, within 21 days of the date of delivery of these reasons, with a view to the issue being determined on the papers.
3. If the parties are unable to agree on the appropriate order as to costs, both parties are to file and serve written submissions, not exceeding five pages exclusive of any other material that is to be filed in support of the submissions, within 21 days of the date of delivery of these reasons, with a view to the issue being determined on the papers.
CATCHWORDS:
BAILMENTS – REMEDIES – PARTICULAR REMEDIES – DETINUE – where the sixth plaintiff and the defendant were in a romantic relationship – where the plaintiffs and the defendant lived together in a residence at Hamilton – where after the termination of the relationship, the plaintiffs vacated the Hamilton residence and the defendant remained – where the plaintiffs brought a claim in detinue for the return of certain property – whether the property listed as Items 1-32 are in the actual or constructive possession of the defendant and should be ordered to be returned to the plaintiffs.
COUNSEL:
Mr. A.J.H. Morris KC for the plaintiffs.
Mr M.T. Brady KC for the defendant.
SOLICITORS:
Plastiras Lawyers for the plaintiffs.
Agility Law Group for the defendant.
Background
The sixth plaintiff (“Mr Hampson”) had been in a romantic relationship with the defendant. From June 2023, they lived together, with some of their children of previous relationships, in the defendant’s house in Hamilton, although it seems that Mr Hampson’s children also resided with their mother for periods of time.
Although there is some dispute about the precise dates, the relationship suddenly terminated in very late July 2024 or very early August 2024, when Mr Hampson and the defendant were holidaying in Italy. The defendant returned to Australia within a few days, and Mr Hampson returned sometime later again, apparently on or about 12 August 2024. It seems that Mr Hampson’s children did not live in the premises while Mr Hampson and the defendant were absent. A dispute arose about Mr Hampson collecting property from the premises said to be owned by him, five of his children and an entity associated with him. As a consequence, the plaintiffs collectively commenced an action in detinue seeking orders for delivery up of the subject personal property, and for damages.
Each of the first to fifth plaintiffs are children of Mr Hampson, and who each from time to time both visited and left items in the shared residence. The seventh plaintiff is a business entity which Mr Hampson stood behind.
When the proceedings commenced, there was a long list of property the subject of the Claim. On 13 September 2024, Porter KC DCJ made orders to facilitate the swift progress of the matter. In part, that resulted in a few items, in respect of which ownership was then in dispute, being held by the plaintiffs’ then-solicitor until further order of the Court.
On 22 November 2024, the defendant consented to summary judgment for the majority of the items the subject of the Claim, including those held by the plaintiffs’ then-solicitor. Further to that Order, a hearing was listed before me to determine the following specific questions:
“(a) who owns or is entitled to lawful possession of the items listed as paragraph 1(i) to (xxiii).
(b) where the said items are located.
(c) whether an order should be made for the return of the property to the Plaintiffs and the terms of such order.
(d) whether any items alleged by the Plaintiffs in the Reply not to have been surrendered to them either at all (i.e. “missing”), or surrendered to them in an incomplete manner (i.e. “incomplete”), are in the possession of the Defendant.”
It is common ground between the parties that those questions need to be considered in the context of an action in detinue or, depending on the findings made, tortious actions for conversion or trespass. In my view, there is much duplication between the first three questions and the last one. Regardless, the plaintiff carries the onus of proof.
It is relevant to understand the nature of the items in dispute. Some are of substance while others are relatively minor. Although the above order refers to 23 items, by the time of this hearing there were 32 items the subject of the hearing:
Item No. as per pleadings Description Items the defendant contends by her pleadings that have been retrieved by the plaintiffs. 1. 54 Two computer hard drives. 2. 60 Thermal Monocular. 3. 84 Remote control for Hitachi television. 4. 89 Crystal glasses. 5. 58/95/98 Mine certified purple endless chain. 6. 58/95/98 Tupperware containers. 7. 58/95/98 Three or four peacock feathers. 8. 107 Four-wheel drive recovery chain (or snatch strap) with gloves in grey and black case. 9. 112 Two red coloured gym weights. 10. 113 Handheld dumbbells and black weights. Items the defendant contends by her pleadings that she was not in possession of at the date of separation and she is not in possession of at the date of the hearing. 11. 22 A battery powered personal mirror. 12. 30 Legs for a computer screen. 13. 44 One pair of black RM Williams boots. 14. 58/95/98 One masonry drill bit set. 15. 58/95/98 One trolley. 16. 58/95/98 TP Link modem and extenders. 17. 58/95/98 Small white timber folding table. 18. 58/95/98 Plastic collapsible table. 19. 58/95/98 Metal ashtray. 20. 58/95/98 Timber cutting board. 21. 58/95/98 Lunch boxes. 22. 58/95/98 Metal coasters and holder. 23. 58/95/98 Butcher’s gambrel hook. 24. 58/95/98 240/12-volt portable refrigerator. 25. 58/95/98 Ladder. 26. 58/95/98 Step ladder. 27. 58/95/98 Key for antique clock. 28. 64 Lids for small pots of Baccarat 10-piece stoneware cooking set. 29. 70 Knife for Baccarat meat carving set. 30. 84 Legs for LG wall-mounted television. 31. 100 Metal stand constructed of wire mesh compromising a number of wire baskets. 32. 122 GME handheld 4-watt CB radio, rechargeable handheld spotlight, two handgrips for exercising hands.
In these reasons I will refer to the items by the number in the lefthand column. None of those items includes the property that was held by the plaintiffs’ then-solicitor. In the end result, the property the subject of this hearing is said to have been owned by the fourth and fifth plaintiffs, and Mr Hampson only.
Factual Overview
It is clear that the breakup was acrimonious. Not only did the defendant leave Italy within days, Mr Hampson did not chase her. The pleadings reveal that there had been discussions while in Italy about Mr Hampson moving his property out of the house.
On 12 August 2024 the fifth plaintiff sent a text to the defendant’s son asking if he (the defendant’s son) could put a medication script that had been left at the house in the letter box to be collected. Separately, on the same day Mr Hampson texted the defendant asking if he and his son could attend the residence “to get a few things”. There was no specification as to what was to be collected. Although the defendant sent a text message to Mr Hampson that evening, there was no reply to, or acknowledgement of, the fifth plaintiff’s text message.
By their pleadings, the plaintiffs alleged that the third, fourth and fifth plaintiffs attended the Hamilton residence and were refused entry by the defendant’s mother. The defendant put their attendance in issue in her Defence.
There was correspondence, including the text message sent by the defendant on 12 August 2024 that shows that the acrimony was ongoing. Broadly speaking, the defendant indicated, in effect, that Mr Hampson could only retrieve his property after he had paid her monies she asserted he owed her. She also said she did not want him otherwise attending the Hamilton property. After subsequently obtaining legal advice, she accepts that she was wrong to have taken that approach.
On 22 August 2024 the defendant had a large quantity, but not all, of Mr Hampson’s property (“the goods”) transported by removalists to a rural property at Gregor’s Creek, near Esk (“the farm”), owned by a company she and her father were directors of. Mr Hampson’s work vehicle was also transported, separately, to the farm. The property was about a one hour and 40 minute drive from Hamilton. Mr Hampson had earlier stored other property of his at this property (“the bailed property”). The defendant did not keep an inventory of the goods sent. Once delivered, they were kept in a shed, on the trailer that had been used to transport them.
Proceedings were commenced the same day. There is no suggestion that the goods were moved to the property as a reaction to the commencement of proceedings.
On 13 September 2024 the defendant attended the shed (“the defendant’s shed visit”). As I understood her evidence, she was looking for the items mentioned in the schedule of items attached to the Statement of Claim. While it was far more extensive than the 32 items presently the subject of dispute, and an amended schedule of items was filed by leave that same day, none of that particularly matters as she did not keep a comprehensive list of the items she did locate, although some photos were taken of some of the goods. Whatever list was kept, it was not tendered.
On 17 September 2024, Mr Philip, the operations manager of a debt collection business, was engaged by the defendant to attend the Hamilton residence to supervise a visit by Mr Hampson’s then solicitor, Mr Martin, and his daughter, the fourth plaintiff (“the first house visit”). They were visiting to look for items of the plaintiffs’ that had not been transported to the farm. They were limited to looking for items that had been moved into the garage. Mr Philip testified that items that were removed were ticked off a list he had been given. That list was not tendered.
On 20 September 2024, Mr Hampson went to the farm to collect the goods (“the plaintiffs’ first shed visit”). He was accompanied by Mr Martin and an unidentified male. Mr Quinn had been engaged by the defendant, through Mr Philip, to monitor what occurred. The evidence is not uniform as to precisely what occurred, but I accept Mr Quinn’s account that the process was haphazard and rushed, and that Mr Hampson and his associates seemed to be in a hurry to load the goods into the hired Pantech truck. It is broadly consistent with Mr Hampson’s testimony.
Mr Quinn was unable to keep a proper list of what was taken. There is a dispute between Mr Hampson’s testimony and Mr Martin’s as to who kept a partial list of property recovered. Accordingly, there is no reliable evidence as to what was retrieved. In any event, no list has been tendered.
For the most part, Mr Martin testified as to not recalling seeing various items that he was questioned about, rather than positively asserting that it was or was not there. That is consistent with the rushed nature of the collection of items that day.
On 30 September 2024, Mr Plastiras, the plaintiffs’ solicitor, and the fourth plaintiff attended the Hamilton residence (“the second house visit”). Mr Philip was again there. On this occasion a piano was professionally removed. On Mr Philip’s account, they also “looked through the property” for other items. As a result, a four-wheel drive recovery kit in a black box was retrieved. There is a dispute as to whether that is item 8 or not. Mr Martin did not testify about this visit, and the fourth plaintiff was not called.
Mr Hampson tendered an affidavit from Mr Plastiras, who was unavailable to testify. In essence, he deposed that, amongst other things, the 32 items in dispute were not located in the residence. Notably he also deposed that he could not locate another item that was then in dispute, a card game named “Cards against Humanity”. This item was in dispute at the commencement of the hearing, until Mr Hampson, frankly and commendably, testified “I did find that”.
On 2 October 2024 Mr Hampson again attended the farm with a solicitor (“the plaintiffs’ second shed visit”). Mr Philip was again there. Mr Hampson collected some weight/gym equipment, but he denied in evidence retrieving the specific items that are numbered 9 and 10. No photos were tendered of what was retrieved. It is not perfectly clear, but it seems that all of the goods that were transported to the property were retrieved by the end of this second visit.
In the course of the hearing, photos were tendered[1] through Mr Hampson of things that he asserted were some of the items in dispute in situ in the Hamilton residence.[2] There was no dispute that they were taken in the Hamilton residence, but the ownership of some of them was in dispute. Mr Hampson could not recall when the photos were taken, although he thought it was soon after he moved into the Hamilton residence. It was not in dispute on the pleadings that he moved into that house in June 2023. He took the photos so he had some evidence of what possessions of his and the children were in the residence. I find they were taken soon after June 2023.
[1]Collectively exhibit 15.
[2] Items 4, 7, 8, 9, 10, 11, 16, 18, 19, 25, 26 and 31.
Similarly, Mr Hampson did not testify as to when he had seen any of the items in dispute before travelling to Europe, although some, by their very nature, are more likely to have been proximate to that time than others.
Two affidavits and one unsworn statement were tendered in Mr Hampson’s case from other people who were not available to testify. They were admitted without objection.
The first plaintiff provided a statement to the effect that he left Australia on 24 June 2024 and has not returned. In response to a pleading, he denied having the RM Williams boots (item 13) with him when he left Australia, and denied that they had been sent or delivered to him since he left Australia. Similarly, the fifth plaintiff provided an affidavit deposing that he was not in possession of the RM Williams boots.
Further, an affidavit under the hand of the third plaintiff was tendered in response to one of the defendant’s pleadings. He deposed that, although his father had gifted him some Baccarat cookware when he moved to Melbourne, he was not gifted any small pot lids (item 28), and he would have no use for them. There was no evidence adduced about when he moved to Melbourne, but there was no suggestion that it was not before Mr Hampson went to Italy. Mr Martin testified that when at the Hamilton residence, that is on 17 September 2024, he saw a set of pots that had no lids.
In the course of submissions, I raised with the plaintiffs’ Counsel the fact that there was no direct evidence as to when any of the subject items were last seen. He contended, in effect, that it would be inappropriate to take account of that when there was no cross-examination on the topic. I disagree.
While this is not a case where, in my view, minute reliance on the express terms of the pleadings can found the basis of findings, whether express or inferred, both the Defence and the Rejoinder were clear that there was a category of times that the defendant contended had been returned to the plaintiffs, and a category where it was denied that they were in her possession at any relevant time. The plaintiffs bore the onus on the hearing. The failure to prove an issue in evidence-in-chief did not oblige the defendant’s Counsel to paper it over in cross-examination.
Credibility assessment
Each party criticised the honesty and reliability of the other’s evidence. Subject to some specific observations, I found both Mr Hampson and the defendant to be generally honest, and I consider that there is no real need for caution before acting on either of their accounts, notwithstanding the issues I note below.
I found Mr Hampson to be particularly stern when testifying, perhaps even angry. I consider that is likely attributable to the recency of the breakup and an associated determination to prove his point, as well as a perception that the defendant had wronged him in relation to his firearms licence since her return to Australia.
Whatever the reason, it is of concern that he has pursued this matter in respect of some really quite trivial items. I say that recognising that he has received the benefit of a summary judgment for the greater part of his overall claim, and that a few of the items the subject of the hearing before me may be of a notable value. Nonetheless, the willingness to pursue the matter to the death raises concerns about the reasonableness of his testimony.
I accept there had been efforts by the defendant to resolve proceedings. She submits that is a matter which should be factored in favourably to her in the assessment of her credibility and reliability. I benefitted from submissions from both Counsel as to who was at fault for those efforts not succeeding. I need not make detailed findings about that for present purposes. It is sufficient to say that both parties, on occasions, were not willing to submit to the requests or demands of the other in those negotiations. Having said that, I accept the defendant’s evidence that she surrendered some items that she believed she owned in an effort to avoid the time and expense of court proceedings.
As to some of the language used in the correspondence concerning efforts to settle the proceedings, I do not attribute the at times demeaning and abusive language used in some of the correspondence to the party whose representatives were writing it. They will have given instructions, but cannot be held responsible for the precise language used.
Subject to one issue, I found the defendant to be straightforward in her testimony. She did not appear to be trying to hide anything, including when she was in the invidious position of being, at times, robustly cross-examined over issues where she clearly did not appreciate the point that was sought to be made.
While her conduct in refusing to allow Mr Hampson to obtain his property until a sum of money had been paid is not admirable, I gained the impression that the initial vigour with which she had attempted to protect her position had been replaced with a resignation of submission to the process by the time of this hearing.
The fact that she had sent the goods, and Mr Hampson’s work vehicle, to the farm was heavily criticised. At one point the defendant testified to the effect that she no longer wanted to see his goods and sent them to the farm because it would be convenient for him, given his other property was stored there. Given the clearly acrimonious nature of the relationship breakdown, the transportation of the goods to the farm is explicable. Whether it would in fact be convenient for Mr Hampson is open to debate, but they were sent to a place to which he had access, to which he had to attend at some time to collect the previously stored items and which would not incur ongoing costs to the defendant.
I was initially less forgiving of the same explanation being applied to the work vehicle. It seemed to me that the obvious solution was to park it on the road, either outside the defendant’s residence or wherever Mr Hampson was then living. On reflection, the former option still meant she would be looking at it, and either option meant that Mr Hampson would still have to get access to the keys, and thereby potentially come into contact with her. She was able to ensure that did not occur by sending all the property to the farm. While taking the vehicle out to the farm is not entirely logical, I note that it incurred expense, regardless of to whom the invoice was addressed, which the other options would not have. I do not accept that it evidences vindictiveness.
It is less clear to me that the defendant’s dealings with police concerning Mr Hampson’s firearms licence were not motivated, at least in part, by some vindictiveness. I had trouble following some of her evidence about this topic, and the logic behind it, at times. I was left with the impression that her motivation for contacting police was not entirely motivated by a concern for ensuring she was not liable for an offence under the Weapons Act, nor altruism. This occurred at a time when her protection of her position was more spirited than I detected when testifying, but it remained a matter that raised some concerns about the reasonableness of her evidence.
Contrary to the plaintiffs’ submissions, I did not think that the supposed inconsistency between her accounts of when Mr Hampson threatened to drive the defendant out of Hamilton amounted to much. While the distinction is correct as a matter of strict application of the English language, the defendant’s explanation seemed to me to be plausible when applying ordinary considerations of English expression.
The plaintiffs also sought to make something of the defendant’s asserted refusal to allow the fifth defendant access to his medical script on 12 August 2024, and then in not allowing the third, fourth and fifth plaintiffs access to Hamilton residence on 15 August 2024.
There is in fact no evidence that the defendant knew of the fifth plaintiff’s text message to her son either at the time it was sent, or by 15 August 2024. The lack of provision of the script cannot be sheeted home to her.
The defendant acknowledged that the three children were not allowed access to the Hamilton residence by her mother on 15 August 2024. She explained that there had not been any arrangement, and that she didn’t want to have anything to do with Mr Hampson. Impliedly, she saw the children as an extension of him.
With the benefit of hindsight, the visit on 15 August 2024 could have been handled much better, but the explanation is not irrational. Nor does it demonstrate vindictiveness towards the plaintiffs. Also, it too occurred at a time when she was more protective of her position than I sensed was the case when she testified. I do not consider this detracts in any meaningful way from the assessment of the credibility and reliability.
The credibility and honesty of the remaining witnesses was not tested. I found them honest and, to slightly varying degrees, reliable in their recollections. That variability does not affect any of my findings.
As such, issues of fact in the hearing are unable to be determined on the basis of credit or reliability. They will require a close assessment of the evidence adduced, and the inferences arising from it.
Consideration
There is a well-known, but logically confounding, phenomenon that, when moving residence, items of property inexplicably go missing. It usually, but not always, concerns smaller, or less valuable items. Sometimes they turn up later, sometimes much later. Sometimes they don’t. Although I am unaware of any empirical study to support the proposition, it seems to be related to the phenomenon where one of a pair of socks sometimes goes missing in the wash. People will honestly believe that the items were packed, or put in the wash, but either be mistaken, or have overlooked them at the end of the process.
That phenomenon has some basis in fact in the circumstances of this matter; for example, the allegations and subsequent location of the “Cards against Humanity” game. It can also be seen to have played a role in the amendments of the Schedule to the amended Statement of Claim (“ASOC”). Also, it was only at the hearing that the plaintiff abandoned a claim concerning an exercise bike.
Of a similar vein, the plaintiffs’ Counsel accepted there must be a possibility that some items, impliedly those of less value or size, may have gone missing before the break down of the relationship.[3]
[3]Ts 2-88
Further, the very generic description of some of the items has, I accept reasonably, led to some confusion on the defendant’s part as to what was being sought. The pleadings were, quite frankly, confusing, on occasions contradictory and were complicated by the, at times, moving positions adopted. This is all no doubt partly attributable to the speed with which the proceedings were commenced, and progressed to the present hearing. This is a case where findings or inferences open from rigid adherence to the precise terms of the pleadings is not always going to be appropriate.
The possibility of mistake is enhanced in this matter by the lack of precise lists of property being sent and received being kept, and none (whatever their level of accuracy) being put into evidence. That is in the context of the collection of items from the plaintiffs’ first shed visit being at least rushed – each Counsel referred to it as being chaotic, leading to the real possibility of a distortion of recollections of what was seen in the shed on that day. There is no evidence that a list of the items that had been retrieved was later compiled by the plaintiffs.
As an overarching observation to my specific factual findings, I do not accept it to be a reasonable possibility that someone could have stolen any of the items in dispute. While the shed in which the items were stored had minimal security, and accepting that a number of different people potentially had access to the shed, most (although admittedly not all) of the items were of trifling value in used condition and would be, in my view highly unlikely to attract anyone’s attention. In any event, it is simply speculative to suggest that theft from unknown persons may have occurred. There is no suggestion of any other instances of theft from the property at any time.
Against all that background, I turn to consider the items individually, with a brief outline of my reasons for the individual findings.
Item 1
This is a concrete example of both of the earlier mentioned phenomenon, and of the changing nature of the pleadings.
This item was not one of the 23 items in respect of which the order was originally made for this hearing. It had earlier been described as “2 hard drives”. For the purposes of this hearing, that became one hard drive previously attached to an Apple computer.
This change was apparently precipitated by an acceptance by Mr Hampson that the two hard drives were retrieved. He maintained that when he had last seen the hard drive now complained about, it was connected to an Apple computer by a USB cable in the downstairs family room. He said it was so attached when he left for Europe. He accepted that he retrieved the Apple computer and the power cord for it. He also accepted that he received a number of other hard drives.
The defendant believes that there was no hard drive attached to the Apple computer. She also testified to having searched the Hamilton premises for another hard drive and not finding any.
I find that the hard drive attached to the Apple computer, if one ever was attached to it, was returned to the defendant, or made available for him to collect at the farm. Exhibit 14 shows that a number of hard drives and other computer accessories were delivered to the farm. It does not make sense that this would be withheld, especially where there is no evidence of any particular value attaching to its contents. I accept that it is not at the Hamilton residence; neither the defendant nor those who attended on the second house visit located it there.
I find that Mr Hampson is entitled to possession of the hard drive, if any, that had been attached to the Apple computer, that the precise location of it is unknown but it is not in the possession of the defendant, and that no order should be made for the return of the property.
Item 2
It is, in effect, common ground that Mr Hampson owned such an item. The defendant believed that it was in its box which had been sent to the farm, because the box felt heavy enough to have something in it when she saw it on the defendant’s shed visit. She did not look inside the box. Mr Quinn, a firearms dealer, testified that he was familiar with that type of thermal monocular and that he saw the box during the plaintiffs’ first shed visit, but did not look inside it. He said that the monocular weighed about 400 grams, so it was “not very heavy”.
Mr Hampson testified that the monocular was “always” kept out of the box and in a neoprene bag, which he collected from the farm. He did not look inside the bag on the day but, when he did later, the monocular was missing. He said that he had spoken with Mr Quinn at the shed, who told him that he had seen the monocular in the bag. That conversation was not put to Mr Quinn, but it is evidence that it was at least thought that it was at the shed. The defendant did not suggest she had looked inside the neoprene bag during the defendant’s shed visit.
I do not know where the monocular is currently located, but the plaintiffs have not satisfied me that it is in the possession of the defendant. They have also failed to satisfy me that it was not at the farm shed and available for collection, if not actually collected, on 20 September 2024. Accordingly, no order should be made for the return of the item.
Item 3
It is common ground that this television and remote control was Mr Hampson’s, and that he brought it to the Hamilton residence. The defendant testified that she had the television professionally dismounted from the wall, and that the remote was put in a bag attached to the back when it was all sent out to the farm. She denied having a remote still at her premises. She tendered an invoice for the dismounting. It made no reference to a remote control, but neither would it be expected to.
Mr Hampson accepted that he collected the television from the farm, but denied that there was a remote control there. Mr Martin similarly denied seeing a remote control, saying “No, I didn’t see any remote or – or – or legs for that matter. It was just a – just a flat screen”. This television was mounted in the main lounge. The remote was likely to be regularly used, and had it been earlier missing it is likely it would have been noticed. The weight of the evidence favours Mr Hampson’s account, although the defendant may well believe that the remote was sent to the farm.
Accordingly, I find that Mr Hampson is entitled to possession of item 3. I cannot make any precise finding as to where the item is, but I find it is in the actual or constructive possession of the defendant, and that an order should be made for its return.
Item 4
There is no dispute that these glasses were the property of Mr Hampson. In essence the account of the defendant is that the glasses were packaged and sent to the farm. Mr Hampson denies that they were collected.
I have no reason to prefer one account over the other and so, given the onus of proof, the plaintiffs have failed to satisfy me that they were not at the farm shed and available for collection, if not actually collected, on 20 September 2024. I cannot find where the item is presently located, but I find that it is not in the possession of the defendant. Accordingly, no order should be made for the return of the item.
Item 5
There is no dispute that Mr Hampson purchased this item, and hence was its owner. He denied that it was at the farm. When shown a photo of a bucket containing what appears to be a chain, he denied that the subject item was this stye of chain, and said it was a towing chain. He said that both chains would not fit into the bucket as the gearshift section of the subject chain that controls the pulley was about 20 centimetres. It is unclear to me whether Mr Hampson took possession of the bucket.
Mr Martin testified that he did not recall seeing this item. Then again, neither did he know what the item was.
The defendant testified that she was familiar with the item. She looked into the bucket and saw the subject chain, as well as another chain, at the farm on the defendant’s shed visit. She said the bucket had a width of about 30 centimetres.
While there is no fixed scale in the photographic exhibit,[4] a perusal of it suggests, when compared with other common items in the photo, that the defendant’s account is not necessarily improbable or impossible.
[4]Exhibit 6.
I have no reason to prefer one account over the other and so, given the onus of proof, the plaintiffs have failed to satisfy me that the item was not at the farm shed and available for collection, if not actually collected, on 20 September 2024. I cannot precisely find where the item is now located, but I am satisfied that it is not in the defendant’s possession. Accordingly, no order should be made for the return of the item.
Item 6
Mr Hampson accepts that a number of Tupperware containers were sent to the farm. He however specified the ones he said were missing as red Décor brand containers with a clear lid. He did not say how many containers there were. I cannot find that level of particularity in the pleadings, or in any correspondence between the parties that was tendered.
The defendant testified that multiple Tupperware containers were put in a box and sent to the farm. She was not asked about the detail Mr Hampson gave in cross-examination. She was not asked if any containers of any sort were still at the Hamilton residence.
On the state of the evidence I am satisfied that the plaintiffs have established that the specific containers referred to by Mr Hampson were not sent to the farm. Given the lack of specificity of the defendant’s evidence on this issue, it is likely that they are in the possession of the defendant, likely at the Hamilton residence. Mr Hampson is entitled to possession of them, and an order should be made for their return to him.
Item 7
It is common ground that the container in which the peacock feathers were displayed at the Hamilton residence was sent to the farm. The defendant asserts that the feathers were similarly sent. Mr Hampson denies they were there.
I cannot discern any sensible reason why the feathers would not be sent if the container was. The plaintiffs have failed to satisfy me that they were not at the farm shed and available for collection, if not actually collected, on 20 September 2024. I cannot precisely find where the item presently is, but I accept it is not in the defendant’s possession. Accordingly, no order should be made for the return of the item.
Item 8
I have earlier referred to the dispute as to whether this item is the four-wheel drive recovery kit that was recovered on the second house visit. Mr Hampson testified that the item that was recovered on that occasion was similar to his, but was not his. He has identified his by a photo that forms part of exhibit 15, showing it in a cupboard at the Hamilton residence. When shown exhibit 8, he accepted that was the item brought home by the fourth plaintiff, but denied it was the subject item. Indeed, it clearly is not a four-wheel drive recovery kit.
The defendant testified, in effect, that she thought the item in exhibit 8 was what was sought. They had also put out her son’s recovery kit, which was in an orange bag, and which had been given to him by Mr Hampson. It was not accepted.
Noting that the premises had been specifically but unsuccessfully searched for this item during the second house visit, and that there was no evidence as to when it was last seen at the premises, the plaintiffs have failed to satisfy me that the item was at the Hamilton residence at the relevant time. Accordingly, I cannot find where the item is located, but I am satisfied it is not in the defendant’s possession. There should be no order should be made in these proceedings for the return of the item.
Items 9 and 10
In effect, Mr Hampson testified that he recovered other weights at the farm, but not the red coloured ones that could be seen as part of exhibit 15, nor the handheld dumbbells and black weights that are shown in another photo comprising exhibit 15. The defendant testified that all weights had been sent to the shed, and that these items were no longer at the house. I also note that they apparently were not located during the second house visit.
In my view they are not likely to be items that would be withheld for some specific reason, especially when other weights were sent to the farm. It was not suggested that the defendant had any use for them. On the other hand, of those who were at the shed at various times and refer to weights and the like being collected, namely Mr Martin, Mr Quinn and Mr Philip, none claim to have seen red weights nor dumbbells. That is so even though there is reference to black and green weights. Further, Mr Martin was unchallenged on his evidence that they weren’t visible on the video taken by Mr Quinn during the plaintiffs’ first shed visit. The subject items were obvious by their size and weight, and were unlikely to have been missed in their entirety.
It can be accepted that Mr Hampson is entitled to possession of them. The weight of the evidence supports that they were not at the farm on 20 September 2024. I am unable to say where they are presently located, but I find that they are in the actual or constructive possession of the defendant, and an order should be made for their return.
Item 11
Notwithstanding what was pleaded, the defendant testified that the mirror was hers, and that she owned two such mirrors. She tendered two receipts for mirrors of that type, one of which pre-dated when the fourth plaintiff moved into the residence, and the other before the trip to Italy.
Mr Hampson’s testimony was that the photograph of it was showing it in the fourth plaintiff’s bedroom. There was no proof of purchase produced by him.
Further, it is significant that the fourth plaintiff apparently did not claim ownership when the residence was searched during the second house visit. There is no evidence from the fourth plaintiff that the item depicted in the photograph was in fact owned by her.
I find that item 11 is owned by the defendant, that it remains in her possession and that no order should be made for the return of the item.
Item 12
This item was associated with the computer screen mounted on the wall of the bedroom used by the fifth plaintiff. Although he provided an affidavit touching on certain matters, it did not touch on this item. Mr Hampson testified that he last saw them at the Hamilton residence, but did not say where they were or when they were last seen. The defendant testified that she had looked for these legs, and television set legs, and not found any.
In my view, these are precisely the sort of items that can be easily misplaced, either during a move of residence, or before or after. They were not located during the search during the second house visit.
The fifth plaintiff is entitled to possession of this item, but the plaintiffs have failed to satisfy me that they were at the Hamilton residence at the relevant time and, if I am wrong about that, that they were not delivered to the farm for collection on 20 September 2024. As such, I am unable to determine where they are currently located, but I find they are not in the possession of the defendant. Accordingly, it is not appropriate to make an order for their return.
Item 13
It can be accepted that this item was not sent to the farm; the defendant testified that when she realised they were not there during the defendant’s farm visit, she looked where Mr Hampson’s shoes were kept, and elsewhere in her home, and did not find them. It can also be taken from that evidence that she did not think it likely that Mr Hampson had taken them overseas.
I have earlier noted the affidavit evidence touching on this issue. The affidavits were admissible under s. 92 of the Evidence Act 1977, but the weight to be given to them must be assessed in light of the fact that the authors were not cross-examined. On the other hand, there was no request that they be cross-examined. Although their evidence has less weight than it might otherwise have given its manner of delivery, it has some weight.
There is no issue that Mr Hampson is entitled to possession of the item. On the state of the evidence, I am satisfied that although the defendant no doubt thought they had been sent to the farm, they were not. They are not the sort of item that is usually misplaced in everyday living, I cannot make any precise finding as to where the item is, but I find it is in the actual or constructive possession of the defendant, and that an order should be made for its return.
Item 14
Mr Hampson testified that the last time he saw the item it was in a drawer in the garage. He did not say when that was. In cross-examination, he accepted that the first time this item became part of the litigation was when his Reply was filed. That, in itself, suggests that it was not an item of significance, and indeed it is unlikely to be of significance to a man occupied as a water proofer. It is no doubt one of the menial tools that come and go in the course of the trade. If retrieved from the farm, it is an item that is easily overlooked.
The defendant testified that she has searched her house for the item and not found it.
Mr Hampson is entitled to possession of this item, but the plaintiffs have failed to satisfy me that it was at the Hamilton residence at the relevant time and, if I am wrong about that, that it was not delivered to the farm for collection on 20 September 2024. As such, I am unable to determine where it is currently located, but I find it is not in the possession of the defendant. Accordingly, it is not appropriate to make an order for its return.
Item 15
This item is more fully described as a collapsible trolley with wheels used for cutting materials. Mr Hampson testified that it was last seen on his work vehicle, which was parked in the garage at the residence in Hamilton. He did not say when it was last seen, but given it was on his work vehicle, it can be assumed it was not a long time before he left for Europe. The defendant testified that she had searched her residence and did not locate the item.
Although there is no evidence as to the size of the item, it is likely to be of a size that would not be easily missed. Mr Martin testified that he did not see a folding trolley during the plaintiffs’ first shed visit.
The defendant testified that she has searched her house and has not found it. Her evidence was silent as to having a specific recollection of it being sent to the farm.
There is no doubt that Mr Hampson is entitled to possession of the item. Although I consider it finely balanced, I am persuaded that the plaintiffs have established that the item was not sent to the farm. On that basis, I find that the item is in the actual or constructive possession of the defendant, and that an order should be made for its return. I cannot make any precise finding as to where the item is.
Item 16
This item is shown in one of the photos in exhibit 15. It is said to be taken in the garage. There is no evidence when it was last seen. Mr Hampson accepted that it was “probably” the case that the item was not identified with particularity until after the last visit to the house, but he wasn’t sure. I note that, while there was a modem identified in the schedule to the ASOC, it was not this one. This raises some doubt about whether the item was in fact in use at the relevant time.
The defendant testified that she had searched for the item at the residence and not located it. It also was not located during the search in the course of the second house visit.
Given the uncertainty as to the presence of the item at the relevant time and the fact it has not been located after searches were conducted, the plaintiffs have failed to satisfy me that the item was at the Hamilton residence at the relevant time. Accordingly, I cannot find where the item is currently located, but I accept that it is not in the possession of the defendant. No order should be made for the return of the item.
Items 17 and 29.
In each instance, Mr Hampson failed to testify that the items were at the Hamilton residence at the relevant time, and there was no other evidence they were. Although in each instance there was evidence from the defendant about searching for them, there was no positive evidence that they were there in the first place. The plaintiffs have failed to satisfy me that the items were at the Hamilton residence at the relevant time. Accordingly, I cannot discern where the items are located, and no order should be made in these proceedings for the return of the item.
Item 18
Although a photo found in exhibit 15 was referred to in the context of the table shown therein not having been returned to him, in cross-examination Mr Hampson accepted that the defendant owned two plastic tables that were “indistinguishable” from his. As such, he did not know which tables were identified by others in the search during the second house visit. He also accepted that it was “probably” the case that the item was not identified with particularity until after the last visit to the house, but he wasn’t sure. I note that, there was no such item described in the schedule to the ASOC. This raises some doubt about whether the item was in fact in use at the relevant time.
The defendant testified to having two tables of the type shown in the photo. She has looked for another and not found it.
The uncertainty as to whether Mr Hampson’s table was in fact at the Hamilton residence at the relevant time means that the plaintiffs have failed to satisfy me that the item was at the Hamilton residence at the relevant time. I cannot find where the item is located, but I am satisfied it is not in the possession of the defendant. No order should be made for its return.
Items 19, 20, 21, 22 and 27.
Item 19 is seen in one of the photos that comprise exhibit 15. None of the rest of these items are captured in that exhibit. There is no evidence when any of them were last seen. Mr Hampson testified that “from recollection” item 27 was kept in the back of the clock it was associated with. His demeanour in giving that answer reinforced the view that he was in fact unsure where it was kept.
He accepted that it was “probably” the case that the items were not identified with particularity until after the last visit to the house, but he wasn’t sure. I note that none of these items were described in the schedule to the ASOC. This raises some doubt about whether the item was in fact in use at the relevant time.
The defendant testified that she had searched for the items at the residence and not found them. She stated that she had her own cutting board, but not one owned by Mr Hampson.
In my view, these are precisely the sort of items that can be easily misplaced, either during a move of residence, or before or after. They were not located in the search during the second house visit.
Mr Hampson is entitled to possession of these items, but the plaintiffs have failed to satisfy me that they were at the Hamilton residence at the relevant time and, if I am wrong about that, that they were not delivered to the farm for collection on 20 September 2024. I am unable to determine where they are currently located, but I find they are not in the possession of the defendant. Therefore, it is not appropriate to make an order for their return.
Item 23
I make the same finding in respect of this item, but there is an additional consideration. The above items are obviously of relatively small size. This item may not have been, but there was no evidence led as to the size, construction or weight of it. Accordingly, I am unable to take into account the likelihood of it being overlooked, a factor that may, depending on the evidence, have assisted the plaintiffs.
Item 24
This is an item of some size, said to measure about 600 mm x 150 mm x 500mm.[5] It is used as a portable fridge-freezer in the car when camping. He last saw it either at the Hamilton residence or at the farm. He did not say when that was.
[5]Although the transcript records the measurements as being in centimetres, that must be a slip of the tongue, or a mis-transcription.
The defendant testified that she had searched for the item at the residence and not located it. I note that it also was not located in the search during the second house visit. The defendant did not testify to, and was not asked about, specifically having any recollection of the item, nor to having seen it during the defendant’s shed visit.
I have been left in a state of confusion about where Mr Hampson was referring to when he mentioned possibly last seeing it at the farm. It seems logical that he would have been referring to the place at the farm where his other items had been stored for some time. If so, it was not in the possession of the defendant, at least for the purposes of this litigation. The evidence is silent as to whether Mr Hampson has recovered the bailed property from the farm, and so it is silent as to whether he has searched through that property for this item.
It is possible that he might have been referring to somewhere else, but it is not clear where that was, and what connection, if any, the defendant had to that time or place. He holds the onus of proof.
Given that uncertainty in the evidence, the plaintiffs have failed to satisfy me that this item was in the possession of the defendant at the relevant time. I am unable to determine where it is currently located, but I find it is not in the possession of the defendant. Therefore, it is not appropriate to make an order for its return.
Item 25
This item is said to be depicted in one of the photos comprising exhibit 15. To my eye, it shows a non-descript aluminium folding ladder. I cannot discern any particular markings on it that would mark it as being a particular ladder. Mr Hampson did not testify as to when he last saw it.
The defendant testified that she had owned many ladders over many years. This is unsurprising for a woman who owns a landscape supplies business. She has searched for Mr Hampson’s ladder and not located it. I note that it was not said to have been located during the second house visit.
Mr Hampson accepted that it was “probably” the case that the item was not identified with particularity until after the last visit to the house, but he wasn’t sure. I note that the item was not listed in the schedule to the ASOC. This adds to the doubt that his ladder was in fact at the residence at the relevant time.
Given that uncertainty in the evidence, the plaintiffs have failed to satisfy me that this item was at the Hamilton residence at the relevant time. I am unable to determine where it is currently located, but I find it is not in the possession of the defendant. It is not appropriate to make an order for its return.
Item 26
This item is also said to be shown in a photo that comprises exhibit 15. He testified that of the two step-ladders shown, the front one is definitely his, but he doesn’t know who owns the other. The item was not recovered from the farm. He did not testify as to when he last saw the item.
I note that the step ladder he referred to is not a generic type of step-ladder. I also note that it was not said to have been identified in the search during the second house visit.
Mr Hampson accepted that it was “probably” the case that the item was not identified with particularity until after the last visit to the house, but he wasn’t sure. I note that the item was not listed in the schedule to the ASOC.
The defendant testified to owning two step ladders. One “used to be” kept in a horse float and the other was in the garage of the Hamilton residence. She said she had searched and not found the subject item.
While I accept that Mr Hampson’s step ladder is shown in the photo, the plaintiffs have failed to satisfy me that this item was at the Hamilton residence at the relevant time. It is the type of item that can be inadvertently left on job sites. I am unable to determine where it is currently located, but I find it is not in the possession of the defendant. It is not appropriate to make an order for its return.
Item 28
Mr Hampson accepts that he received the Baccarat cooking set, but says that it was without the lids. He did not testify about when he received the cooking set.
Mr Martin testified that, at the Hamilton residence, presumably on the occasion of the first house visit, he saw some “pots”, but he did not recall if they were Baccarat brand. He testified in definite terms that he observed there were no lids. He was not challenged on that.
I have earlier noted the tendering of the affidavit touching on this issue. Again, it has some weight.
The defendant’s evidence was brief on the topic. She owned a Baccarat frying pan, but no saucepans. She has searched her kitchen three or four times, because it is a large kitchen. Although she did not expressly testify to having found them, that was the tenor of her evidence. She did not suggest in evidence that Mr Hampson did not own such a cooking set.
I accept that the “pots” seen by Mr Martin was the subject cooking set. It would be very unusual for the one household to have two sets of cooking pans or pots without lids, and there is no suggestion that was the case here. There is also no suggestion that it had been realised earlier that the lids had gone missing for the cooking set. I infer that they were at the Hamilton residence at the relevant time, and I accept Mr Hampson’s evidence that he has not received them.
As a result, I find that Mr Hampson is entitled to possession of the item. I am unable to precisely identify where the item is currently located, but I find that it is in the actual or constructive possession of the defendant, and I make an order for its return.
Item 30
Although listed as the legs for an LG television, there was considerable confusion in the pleadings, and at the hearing, as to whether what was actually being sought were the legs for that brand television, or a Hitachi television. In either event, there was no evidence when either set of legs was last seen since the televisions were wall mounted in the Hamilton residence.
Mr Hampson is entitled to possession of this item, but the plaintiffs have failed to satisfy me that it was at the Hamilton residence at the relevant time and, if I am wrong about that, that it was not delivered to the farm for collection on 20 September 2024. As such, I am residence, presumably shortly after Mr Hampson moved in during June 2023. He said both sets of legs were stored in the garage. He accepted that the defendant owned two televisions at that time; one was an LG and he wasn’t sure about the other.
The defendant testified that, at the time Mr Hampson moved in, she owned two LG televisions. She looked for the legs for this item, as well as for the computer screen (item 12), and did not find them.
Consistent with my findings in relation to item 12, these are precisely the sort of items that can be easily misplaced, either during a move of residence, or before or after. They were not located in the search during the second house visit.
I am unable to determine where the item is currently located, but I find it is not in the possession of the defendant. Accordingly, it is not appropriate to make an order for its return.
Item 31
Mr Hampson described this item and testified that it was last seen in the garage at the Hamilton residence. He did not say when it was last seen.
The defendant testified that she was originally confused by the generic description of the item. Once it was better described, she did not recognise what it was, but searched for it and did not find it. I note that it was not located in the search during the second house visit.
Given the competing versions, the plaintiffs have failed to satisfy me that it was in the Hamilton residence at the relevant time. As such, I am unable to determine where it is currently located, but I find it is not in the possession of the defendant. It is not appropriate to make an order for its return.
Item 32
This compendious item comprises three separate items. Mr Hampson testified that the mobile CB radio was, to his “best recollection” on the dash of his work vehicle. The rechargeable handheld spotlight was kept on the backseat of the vehicle and the handgrips were kept in that vehicle too. The vehicle was locked when he saw it at the farm. None of the items were in the vehicle during the plaintiffs’ first shed visit. He did not testify as to when he last saw the items.
The defendant testified that she couldn’t search the vehicle, but she searched the residence for these items and did not find them. I note that they were not located in the search during the second house visit.
Due to Mr Hampson’s uncertainty as to where he last saw the CB radio, the lack of evidence as to when it was last seen and the fact it has not been located in the searches of the residence, I am not satisfied that the defendant was in possession of any of it at the relevant time.
Similarly, Mr Hampson’s evidence about the location of the other two items was based on a practice, rather than an actual fact at the relevant time. I similarly am not satisfied that they were in the possession of the defendant at the relevant time.
As such, I am unable to determine where this compendious item is currently located, but I find it is not in the possession of the defendant. Accordingly, it is not appropriate to make an order for its return.
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