Hoffman v Bastian
[2004] WADC 112
•3 JUNE 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HOFFMAN -v- BASTIAN [2004] WADC 112
CORAM: O'BRIEN DCJ
HEARD: 24 & 25 MAY 2004
DELIVERED : 3 JUNE 2004
FILE NO/S: CIV 173 of 2003
BETWEEN: KYNAN HOFFMAN
Plaintiff
AND
JACQUELINE BASTIAN
Defendant
Catchwords:
Claim in detinue - Turns on own facts
Legislation:
Nil
Result:
Plaintiff's claim partially successful
Representation:
Counsel:
Plaintiff: Mr M L Segler
Defendant: Mr P N Bevilacqua
Solicitors:
Plaintiff: Shane Michael Brennan
Defendant: Biddulph & Turley
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Casey Interiors Pty Ltd (In Liq) v Specialised Roofing Systems Pty Ltd (1993) 115 FLR 96
Parr v Ash (1876) 14 SCR (NSW) 352
O'BRIEN DCJ:
Introduction
The plaintiff's action is against the defendant in detinue. The parties were in a de facto relationship for around nine years. This action concerns the division of property on separation. The plaintiff claims that when they separated, the defendant wrongfully retained certain items of his property as outlined in the schedule to his statement of claim and has refused to return it despite requests to do so. The defendant denies that the property in dispute belongs to the plaintiff. The defendant did concede during the course of the trial that some of the items specified in the annexure belong to the plaintiff.
Claim in detinue
In her defence the defendant denied that she wrongfully retained the items. In relation to certain of them, she pleaded that the plaintiff had taken possession of them between November 2001 and 5 April 2002. In evidence she said that she assumed this to be the case. The defendant pleaded an agreement in relation to other items. The pleadings left a lot to be desired on both sides. However, the case has been argued on the basis that the defendant wrongfully retained the property listed in the annexure and refused to deliver it up despite a request by the plaintiff through his solicitors to do so.
The evidence is that in or around October 2002, the plaintiff's solicitors wrote to the defendant demanding return of the property in question. The defendant refused to deliver up the property. There does not seem to be any dispute that the prerequisites for a claim in detinue have been made out. The real issue is which party is entitled to the property. Essentially this is a matter of fact.
It is not in dispute that the plaintiff must prove on the balance of probabilities:
•That the plaintiff is entitled to possession of the item (under consideration);
•That the defendant wrongfully retained possession of the item;
•That the plaintiff demanded delivery up of the item;
•That the defendant refused to return the item.
I encouraged settlement throughout and at the end of the trial but regrettably it seems that the relationship has soured to the point where resolution other than by the court is impossible. As I indicated at the end of the trial, the parties want a decision as to their property. I anticipate the decision in relation to some of the items will not end the conflict. This type of action is best dealt with in the Family Court where a definite decision can be made based on principles which are not available to the District Court in a case of detinue.
The relationship between the parties
In 1993 the parties commenced a de facto relationship. It ended towards the end of 2001. At the time of separation, they were living in a house they had bought together in Rookwood Street Mount Lawley ("the Mount Lawley house"). The house was sold and the proceeds were to be divided. The agreement as to the division of the proceeds is in dispute.
On 5 April 2002 ("removal day"), the defendant moved to a house she bought in Swansea Street East Victoria Park ("the Swansea Street house"). The plaintiff testified that for a short time from 5 April 2002, he lived in that house while arranging his own accommodation. Other evidence does not support this but it does not seem to be of particular relevance. The plaintiff moved to a unit above a mechanic's workshop in Graylands Road Claremont ("the unit"). I find that this most likely took place on removal day. The owner of the workshop and unit is Mr Ross Cupper.
It is not in dispute that on removal day the parties were at the Mount Lawley house when their property was transported to either the Swansea Street house or the unit.
Credibility
This case boils down to an issue of credibility. Essentially it is a case of word against word. The plaintiff claims the property in question is his and the defendant claims otherwise. Each party has given an explanation about most of the items in dispute. There is some evidence which might shed some light on credibility generally and/or in the context of evidence in relation to a particular item.
There was evidence from Mr Cupper that the plaintiff approached him to give false evidence at the hearing of an application made by the defendant for a violence restraining order ("VRO") against the plaintiff. Mr Cupper said he refused to so do. The plaintiff denied that he asked Mr Cupper to do that. Mr Cupper impressed me as an impartial witness. However, even if I accept Mr Cupper's evidence it does not automatically follow that the plaintiff is a person who is likely to manufacture evidence to suit his own ends.
The plaintiff gave very detailed evidence about the time and circumstances in which the various items were acquired. The defendant's evidence was not so detailed. However, I accept that it can be difficult to recall such details so long after the events.
Mr Peter Bastian, the defendant's former partner, testified that during Family Court proceedings he questioned the defendant about the sideboard and she replied that it belonged to the plaintiff. The defendant denied that she was asked such a question in those proceedings. I cannot make a finding one way or the other given the conflicting accounts. This is an example of evidence adduced to bolster the account of a party which falls into neutral territory.
It is also said that the plaintiff's account vacillated as he gave evidence. Examples cited by the defendant's counsel might at first blush support this contention. I do not regard the evidence of Ms Jung who testified that the defendant made certain "admissions against interest" to her concerning the ownership of the property to be reliable evidence. However, in the end result, I must make a decision based almost solely on the evidence of each of the parties. I do so accepting that each has now a firmly entrenched position generally and as to particular items. It may be that the parties have reflected on arrangements made when relations were more cordial and since then consider them to be unreasonable or unfair.
Basis of my decision
In my view, this case should be determined considering the following:
The general financial and proprietary relationship of the parties during the relationship;
The evidence relating to individual items in dispute;
The agreement, generally and as to the particular items, on separation relating to the division of property.
Financial arrangements during the relationship
I am satisfied that the relationship between the parties relating to financial issues was as follows. During the relationship each party was employed for some of the time. Initially they kept separate finances. After some time, they pooled their money. They may not have contributed equally to the pooled funds.
The parties operated a joint cheque account at the St George Bank. Both contributed funds to that account. The plaintiff held an ANZ visa credit card in his name which was linked to another ANZ account. The defendant was authorised to operate the visa card and was a secondary cardholder. Both the plaintiff and the defendant contributed funds to the visa account. Funds from the St George account were also paid into the visa card account.
The visa card was used to pay day‑to‑day living and household expenses and to purchase antiques and collectables.
The plaintiff testified under cross‑examination that there were many times when he would purchase items and pay for them himself but on other occasions funds from the joint account would be used.
Ownership of property acquired during the relationship
The parties had a mutual interest in collecting antiques. (As this action involves a dispute about certain items which may or may not be antiques, for the sake of convenience I shall refer to the disputed items as "antiques"). The plaintiff testified that he has always had an interest in collecting antiques. He described it as his "passion". He said he would regularly go to auctions and has collected hundreds of items over the years. He said that during the course of the relationship that the defendant would accompany him to auctions. The plaintiff testified that the defendant's interest was mainly in collecting "collectables", for example, glass wear from the 1930s. She did not acquire an interest in antiques until their relationship commenced but even then did not have any knowledge or expertise about antiques. The plaintiff testified that he was the one who possessed the relevant expertise about antiques.
The defendant testified that she also had a long standing interest in collecting "old" things. She said that she and the plaintiff jointly collected various items during their relationship and both learnt a lot from books and other research. The defendant testified that she knew as much about antiques as the plaintiff did.
I find that whatever the respective knowledge and expertise of the parties, they were both interested in collecting antiques and did so during the course of their relationship as a mutual interest and hobby.
Findings as to the financial arrangements and the ownership of property acquired during the relationship
The visa card which was paid from time to time with funds from the joint St George account, was used by each for various purposes including the payment of day to day expenses, general household expenses, the purchase of antiques and other collectables. The evidence supports a finding that although the visa card was in the plaintiff's name, the defendant was a secondary card holder and authorised to use the card for her own and joint purposes. Subject to my findings in relation to specific items, I am of the view that generally speaking, antiques and other items of furniture and household goods bought during the relationship were regarded as joint property. It is not possible on the evidence to make a finding as to the proportion of each party's contribution to the pooled funds. In my view, if there was any extra contribution by one party or another, that did not affect the arrangement.
Not all items bought by one or other of the parties during the relationship whether from joint funds or otherwise became joint property. Certain items were bought as gifts by one party for the other using joint funds. There would be times when one party bought an item for his or her own use and benefit. This type of arrangement is typical of many financial and proprietary arrangements between people in a marriage like relationship. Most often the arrangement is not reduced to writing or even the subject of any discussion, formal or otherwise. These arrangements usually come about through established practice and a mutually agreed but informal understanding between the parties.
The division of property on separation
The plaintiff testified that on separation the parties made an agreement as to the division of property. Certain items of furniture ("the furniture") were the subject of an agreement which was linked to the proceeds of the sale of the Mount Lawley house. Various antique items and some power tools were the subject of another agreement.
In my view, whatever agreement the parties made as to the division of property on separation, it was not necessarily governed by whether certain items were jointly or personally owned during the relationship or whether or not they were purchased with joint or personal funds. It seems certain that an agreement was struck either on the removal day or sometime beforehand that each party would take their respective personal effects. The evidence is vague but it supports a finding that there were one or more discussions as to who should take what items. There may have been some vacillation as time went on. This is the sort of arrangement I would expect where parties are attempting to divide up property which may have been regarded as joint property during the relationship but which technically may have been purchased by one or other of the parties using his or her own funds.
There was evidence of a handwritten note which was discussed by the parties on 4 July 2002. The plaintiff testified that the defendant presented a list of items to him as being her views on the division of property. The defendant said that she was merely listing what she had contributed to the relationship, in order to support her claim to some of the property. The plaintiff said that he wrote his entitlement on the note and they agreed that was to be the division of property generally. The defendant testified that the plaintiff did not write on the note in her presence.
I am unable to determine whose version of events is to be believed. However, I do not accept on either version of events that this note had any significant probative weight as to the agreement struck relating to the division of the property. In my view, any agreement was made most likely on or before the removal day.
The defendant testified that the agreement between the parties was that each should take their personal effects. She said that on removal day the plaintiff removed what he wanted and left the remainder of the property that was to be hers.
On the morning of trial and during the course of evidence, the defendant agreed that certain of the items in dispute belonged to the plaintiff. These include the welder (11), the candelabra (10), the shelves from the gentleman's press (7), the Metters rotating canister (9), the childhood scooter (23), the plaintiff's paperwork (22), the Goddens book (19), the fishing rod (8), the storybooks (17), negatives of the photographs (21), the painting (5) and the marble top (18). The defendant conceded some of these items always belonged to the plaintiff. With respect to the candelabra and rotating canister, she relinquished her claim on them. The evidence does not enable me to make a finding in relation to the whereabouts of the painting, the fishing rod, the storybooks, the marble top or the scooter. The plaintiff has not proved that the defendant wrongfully retained these items.
The proceeds of the sale of the Rookwood Street house
The plaintiff testified that the division of the sale proceeds was agreed in the context of the division of certain items of furniture. The net proceeds of the Mount Lawley house were $250,000. The plaintiff said that the split was to be half each. According to the plaintiff, the defendant wanted to buy a house and needed more cash. Accordingly, they agreed that she would get an extra $25,000 and the plaintiff would take the furniture in exchange. The dispute about the furniture only relates to the 1880s English oak sideboard.
The defendant testified that she received $190,000 from the proceeds of the sale of the Mount Lawley house. She said that the agreement was that she was always to receive $190,000 of the sale proceeds and that her share was larger than the plaintiff's because he had lost a lot of money in share trading during the relationship and the extra was to compensate her for that. This was not put to the plaintiff in cross‑examination when he was explaining how he came to forgo $10,000 in exchange for the furniture. However, during cross‑examination of the defendant, the plaintiff's counsel produced a "loan" agreement evidencing a loan by the plaintiff to the defendant in the sum of $45,000. The plaintiff made no mention of this in his evidence in chief. The defendant explained that although the parties agreed that she should receive $190,000 of the proceeds, the plaintiff demanded more and threatened to hold up the sale of the Mount Lawley house unless he received another $40,000. The defendant was expecting a $40,000 inheritance and in effect that is what she agreed to give the plaintiff.
There was no evidence as to why the "loan" document referred to the sum of $45,000 given it was supposed to reflect an agreement in relation to the inheritance of $40,000.
I am far from satisfied that I have been told the full story by either party as to the agreement relating to the proceeds of the sale of the Mount Lawley house given the way the case has been conducted on both sides.
I intend to determine the position of the sideboard based on evidence other than that relating to the proceeds of the sale of the Mount Lawley house.
What was agreed in relation to the items taken to the Swansea Street house
The plaintiff testified that on the sale of the Mount Lawley house, he organised and paid for all the goods to be transported to the Swansea Street house. His unit was not ready for occupation at the time. However, he said that he did take a few items to the unit.
The plaintiff testified that the leather lounge suite was too big to move to the unit. He said the defendant wanted to use it for a time and he agreed to that. The sideboard was also too big to move to his unit and so was transported to the Swansea Street house. About 5 or 6 packing boxes of items belonging to the plaintiff were also taken there.
The plaintiff testified that on 4 July 2002 he went to the Swansea Street house. There was an argument about the items which had been transported to the house previously. There was also an argument about his travel companion on a holiday which was planned in the near future. The plaintiff testified that the defendant was upset and wanted him to take everything then and there. He said that he was unable to fit everything into his car. The defendant helped load the car. The plaintiff said that he would need a removalist to remove the rest of the items and the defendant agreed. Evidence from the defendant's son, Luke Bastian, generally supports this account.
To some extent this evidence supports the plaintiff's account that some of his property was moved to the Swansea Street house until he obtained suitable accommodation. The defendant agreed that the two heavy toolboxes were taken to the Swansea Street house for storage, as they were too big to take to the defendant's unit.
The plaintiff then went on his trip. On 15 July 2002 the defendant was granted an interim VRO against the plaintiff. According to the plaintiff, this effectively blocked him from retrieving his property from the Swansea Street house. The VRO was not confirmed on its return date. Some time later the plaintiff was charged with "serious" criminal offences. The defendant is a witness for the prosecution. Whatever hope there was of an amicable or at least a civil settlement of this matter seems to have been lost in the last couple of years.
The evidence supports a finding that on removal day, both the plaintiff and the defendant directed which items should be taken to the unit and which items would be taken to the Swansea Street house. Evidence from Mr Searle who was assisting the move is to the effect that the plaintiff and the defendant were relating to one another in a civil way and there was no overt dispute or hostility. He said that the plaintiff took around three or four trailer loads of property away and that the defendant was directing the removalists what to do.
In my view, there may not have been any specific agreement reached before the removal day as to who should take particular items. It is not possible to determine the agreement in relation to every specific item based on the general financial arrangements the parties had during the relationship. In other words, it would not be appropriate to determine that all property was joint property on the basis of those arrangements. There is no alternative but to consider each item in dispute individually, but those arrangements will have some bearing on my decision in relation to individual items in dispute.
Findings in relation to individual items (numbered as per annexure A)
The Worcester fish figurine
The plaintiff testified that the defendant bought this item as a gift for him when she was on a trip to New Zealand on 4 November 1998. It was paid for with the visa card. He said that there was an agreement that he would take his gifts on separation and that he had not asked the defendant for the return of any gifts which he had given to her during the relationship.
The defendant testified that the figurine was definitely not a present for the plaintiff. She said it was joint property. It was one of the items which were included in a number of items the parties agreed she should retain on separation.
On balance, I find that the fish figurine was part of the collection of antiques collected jointly and is joint property.
The leather lounge suite
The plaintiff testified that the leather lounge suite which he bought about four and a half years ago in his own name on an interest free loan from Harvey Norman's and which he is still paying off, was too big to be moved to the unit. He said the defendant wanted to use it for a time and he agreed to that.
The defendant testified that it was agreed that she should retain the leather lounge suite as the plaintiff had lost so much money on shares during their relationship. This contention was not put to the plaintiff during cross‑examination.
On balance, I think it more likely than not that the plaintiff bought the lounge suite and that he accepted the responsibility of paying for it as the loan was in his name. I find it more likely than not that the plaintiff agreed that the defendant could use the lounge suite for a period of time pending obtaining her own furniture. I am not satisfied that the defendant's evidence relating to the lounge suite being "compensation" for share losses is reliable. Accordingly, in my view, the lounge suite belongs to the plaintiff, was not the subject of any agreement whereby the defendant should retain it on separation, and should be returned to him.
The Calyx collection
The plaintiff testified that he had been collecting Calyx porcelain for many years. The plaintiff described the calyx collection as his "pride and joy". He had about 60 pieces. He bought the pieces from garage sales and auctions. In particular he bought a jardine for $500 after he was contacted by the author of a book on the subject, and tracked it down and bought it. He said that he bought a jug referred to as an "aboriginal" jug in a garage sale for $2.00. This piece turned out to be very rare. He said that the defendant was present when it was bought. He said that on occasions the defendant found a few pieces and bought them for him.
The defendant testified that she bought the jug at a garage sale. Her evidence was to the effect that it was a joint collection. She sold the collection because she needed the money.
In early July 2002, the defendant contacted the plaintiff and told him that a person was interested in buying the collection which was then stored at the Swansea Street house. The plaintiff went to the house and met the potential buyer outside the house.
The plaintiff said that he discussed the collection with the buyer for around an hour. The buyer offered $5000 for the collection and bought it for that sum at a later date. In the meantime, the plaintiff contacted the buyer and told him that the collection did not include the Aboriginal jug. The buyer's evidence is to the effect that each party took part in the discussions regarding the value of the collection. Each referred to it as his or hers respectively. The plaintiff agreed to the sale and was prepared to accept $5000. The defendant was reluctant to accept $5000. About a week later the defendant agreed to sell the collection for $5000 and the buyer paid by cheque payable to the defendant.
In my view the evidence establishes that the calyx collection had been collected over a number of years by each of the parties separately and together. The buyer's evidence established that the parties regarded the collection as joint property, particularly given that the plaintiff was prepared to allow the defendant time to consider the purchase price. I find that it was joint property. There is no reliable evidence to establish one way or the other whether there was any specific agreement that one party or the other should be entitled to the collection after separation.
It follows that the plaintiff's claim in detinue in relation to the calyx collection must fail.
Blue glass lamp
The plaintiff testified that he saw the lamp at a lamp shop in Maylands when walking with the defendant. Sometime later she surprised him by presenting it to him as a gift. He said they agreed that he should have the lamp. He said there was another blue glass lamp which he said he agreed the defendant could retain.
The defendant testified that she bought the lamp using joint funds. It was not a gift for the plaintiff. She said that on removal day the plaintiff did not indicate that he wanted the lamp and the defendant took it. In my view, it is more probable than not that the lamp was a gift to the plaintiff from the defendant. She should return it to him.
Old inlaid box
The plaintiff testified that the defendant bought the box for him as a gift. They had it restored. They agreed that he would take the box when the relationship ended. The defendant testified that the box was hers and she used it as a jewellery box. Although it was not the subject of any specific agreement on removal day, it was one of the items which were in the collection of property generally agreed that the defendant should take.
In my view, the plaintiff has not established on the balance of probabilities that the box was a gift from the defendant or that there was an agreement on removal day that he should take the box. It is more likely that not that the parties regarded the box as the defendant's property given her unchallenged evidence as to its use. The plaintiff fails in his claim in detinue in relation to the box.
31 (formerly 12). Bosch drill
The plaintiff testified that this drill was part of his power tool collection bought by his parents about 5 years ago but could not be sure. He said he used the drill when restoring houses. The evidence establishes on the balance of probabilities than the Bosch drill belongs to the plaintiff. There is no evidence of any agreement to the contrary. The defendant should return it to the plaintiff.
32 (formerly 13). Hitachi circular saw
The plaintiff testified that after some of his tools were stolen, he bought the saw with the proceeds of his insurance claim. This was about 4 or 5 years ago. He last saw the saw at the Swansea Street house on 4 July 2002. I am satisfied that the saw is the personal property of the plaintiff. The defendant should return it to the plaintiff.
Bible from New Zealand
The plaintiff testified that he bought the bible when he and the defendant were visiting New Zealand. His credit card records indicate that it was bought on 30 August 2000 for $225. The plaintiff described the bible in glowing and detailed terms and obviously has an attachment to it.
The defendant testified that she bought the bible and it belongs to her. She said it was one of the item included in the general pool which the parties agreed she should take on removal day.
Given the plaintiff's detailed evidence about the bible and attachment to it, it is more probable than not that the parties regarded it as his. There is no evidence of any specific agreement to the contrary. The defendant should return it.
15 & 16. Jarrah column and antique trolley dumb waiter
The plaintiff testified that these items were included in the contents of a stable of property bought at an auction of estate items. He bought all items for $1300 and sold many of them the next weekend for a large profit. He arranged for each item to be restored.
The defendant testified that these items were joint property.
In my view, these items were regarded as joint property and there is no evidence of any specific agreement to the contrary.
Wembley ware native shaving mug
The plaintiff testified that this item is a "rather crude [shaving] mug with an Aboriginal-type face" he said that this item was a gift purchased on his credit card for a birthday or Christmas. He wanted it for two reasons as it commemorated the 1956 Olympics and it is an example of Australiana. The visa card statement reveals that this item was purchased on 15 December 1998.
The defendant testified that she bought it and it became part of the parties' Wembley ware collection.
It may be that the plaintiff specifically wanted the shaving mug. However, on balance I find that it was joint property and formed part of the general Wembley ware collection. He therefore fails in his claim in detinue in relation to this item.
Cutlery set
The plaintiff testified that his parents gave the cutlery set to the parties when they became engaged. He last saw it a couple of weeks before separation. He said it was agreed that he should take the cutlery set.
The defendant testified that she does not know where the cutlery set is. However, she would like it. She said it was a present to them both. It was never part of any agreement that the plaintiff should retain it on separation.
I am not satisfied on the state of the evidence that there was an agreement that the plaintiff should retain the cutlery set. I am not able to make a finding on the evidence as to its whereabouts. I find that it was and remains joint property. The plaintiff therefore fails in his claim in detinue in relation to the cutlery set.
Metabo jigsaw
The plaintiff testified that he bought the metabo jigsaw and the last time he saw it was at the Swansea Street house. Photographs of the steel cabinet were produced depicting various tools including a tool the plaintiff identified as the metabo jigsaw. The defendant testified that she did not have possession of this item.
I accept the plaintiff's evidence that this tool was his and used by him. He was not challenged in cross‑examination about this item specifically. In the absence of other evidence, it would appear that at some stage (when the photograph was taken, about which there is no evidence), the jigsaw was in the defendant's possession.
Accordingly I find that the plaintiff succeeds in his claim in detinue in relation to this item.
Wembley ware koala
The plaintiff testified that he requested the defendant to buy the koala at an auction. He had a particular interest in Wembley ware. He said it was one of the items which the parties specifically agreed he should retain on separation.
The defendant testified that she bought the koala at the same time as the sideboard. She said it was definitely not a gift for the plaintiff.
I find that the koala was part of the jointly owned Wembley ware collection.
Bendigo green frog
The evidence established that the defendant bought this item as a gift for the plaintiff. I am not satisfied that there was any agreement that the defendant should retain it. It is not to the point that at some stage the plaintiff did not like or want the frog. The defendant should return it.
The side board
It is not in dispute that the defendant attended an auction and bought the sideboard and the koala. The defendant said she took a day off work to do so. She said the sideboard was always regarded as "Jaqui's piece" and that the parties paid for its restoration jointly. The plaintiff testified that the defendant bought the sideboard at his request.
It would seem that the sideboard is a big piece and has to be disassembled before it can be moved. On the whole of the evidence I am of the view that the sideboard was bought as joint property. The plaintiff has not established on the balance of probabilities that there was any specific agreement in relation to the sideboard particularly in the context of the division of the proceeds of sale of the Mount Lawley house. I find both parties' evidence in relation to that to be unreliable and incomplete. Although the sideboard was taken to the Swansea Street house, it seems clear that it was too big to store in the plaintiff's unit. Evidence relating to the defendant's request made in the course of an argument on 4 July 2002 that the plaintiff take his possessions then and there was most likely made in the heat of the moment. On balance, I am not satisfied that the evidence establishes one way or the other that there was an agreement in relation to the sideboard on separation. It was and remains joint property.
The [balance of the] power tools and tool cabinet
Photographs were produced which depicted a number of power tools in a steel cabinet at the Swansea Street property. I am satisfied that the plaintiff used such tools in his job as a boilermaker and when he was engaged in restoring houses. The defendant testified that she also used those tools. The evidence does not enable a finding that there was any specific agreement as to the tools. I am not satisfied that they were joint property. It is more likely than not that the tools belonged to the plaintiff, that he used them in his work albeit that the defendant might use them from time to time. I am satisfied on the balance of probabilities that the tools and tool cabinet are the personal property of the plaintiff. The defendant should return them.
I have summarised my findings in relation to the items in dispute in the attached annexure to these reasons.
The plaintiff succeeds in his claim in detinue in relation to those items under the heading "Plaintiff's property" and "Items conceded by the defendant to be the plaintiff's property" and fails in his claim in relation to those items under the headings "Joint property", "Items whose whereabouts is not proved" and "Defendant's property".
ANNEXURE
Schedule of Property
Joint property
Worcester fish figurine
Calyx collection
Jarrah column
Dumb waiter
Shaving mug
Cutlery set
Koala
Sideboard
Plaintiff's property
Leather lounge suite
Blue glass lamp
Bible
Metabo jigsaw
Bendigo Frog
Power tools
Steel cabinet
Defendant's property
Inlaid box
Items whose whereabouts have not been proved
Fishing rod
Story books
Marble top
Welder
Childhood bike
Painting
Items conceded by defendant to be plaintiff's property
Shelves from gentleman's press
Metters rotating canister
Candelabra
"Goddens" book
Photographs (negative)
Plaintiff's paperwork
Childhood scooter
0
0
1