Lindrum v Perpetual Trustee Company Limited (Re Estate of Irene May Ellis)
[2023] VCC 1328
•4 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Family Property List |
Case No. CI-22-03872
IN THE MATTER of the Estate of IRENE MAY ELLIS, deceased
| JANNE CLARA LINDRUM | Plaintiff |
| v | |
| PERPETUAL TRUSTEE COMPANY LIMITED (ACN 000 001 007) (in the Will called The Trust Company (Australia) Limited) (as executor of the Estate of IRENE MAY ELLIS, deceased) | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12, 15 and 19 May 2023 | |
DATE OF JUDGMENT: | 4 August 2023 | |
CASE MAY BE CITED AS: | Lindrum v Perpetual Trustee Company Limited (Re Estate of Irene May Ellis) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1328 | |
REASONS FOR JUDGMENT
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Subject:FAMILY PROPERTY
Catchwords: Oral declaration of trust – bailment – gift of historically significant items – limitation of actions – laches defence
Legislation Cited: Limitation of Actions Act 1958, s5, s22
Cases Cited:Nolan v Nolan [2004] VSCA 109; Webb v Ryan [2012] VSC 377; Krsteski & Anor v Jovanoski [2011] VSC 166; Pullen & Anor v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27; Masters Home Improvement Pty Ltd v North East Solution [2017] VSCA 88
Judgment: Plaintiff’s claim dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J D Catlin | Princeton Legal |
| For the Defendant | Mr J L Smith | Velocity Legal |
HIS HONOUR:
Introduction
1Walter Lindrum AM, MBE, OBE (1898 - 1960) (“Walter”) is a much-loved historical figure in Australia. He is often considered to be the greatest player ever seen in the sport of billiards, with some 57 world records to his credit, many still standing. Walter Lindrum is also referred to as one of the Australian all-time great sporting heroes along with cricketer, Sir Donald Bradman and cyclist, Sir Hubert Opperman. At his death in 1960 newspapers called him the 'Bradman of Billiards'.[1]
[1] Sporting Hall of Fame biography, Exh EY
2Enjoying remarkable talent, his contributions to Australia in his sporting and charitable pursuits and endeavours were of great significance, and his legacy today survives in part due to the efforts of his descendants to preserve various items of memorabilia (“memorabilia”) which to this day are located in the billiard room of the family property at 158 Kerferd Road, Albert Park (“158 Kerferd Road”).
3Unfortunately, a dispute has arisen as to the ownership of that memorabilia between a grand-niece of Walter Lindrum and the estate of his deceased niece, Irene May (also known as Dolly) Ellis (13 May 1922 to 10 January 2019) (“Irene”).
4The plaintiff, Janne Clara Lindrum, claims a quarter share of the value of the memorabilia allegedly converted by the deceased, and delivery up to her of all of the remaining assets in the collection held by the defendant, Perpetual Trustee Company Limited (“Perpetual”) being the executor of Irene’s estate.[2] Whilst it clearly has sentimental value to the Lindrum family, and is of some historical significance, the plaintiff’s interest in the market value of the memorabilia might be as little as $25,000.[3]
[2]Amended Statement of Claim dated 28 October 2021, paragraph 18
[3] Exhibit CR
5The basis of the plaintiff’s claim, in summary, is as follows:
(a) upon Walter Lindrum’s demise, all of his estate was inherited by his then wife, Beryl Lindrum. Upon her death in 1965, by her last will executed 20 September 1963, Beryl Lindrum bequeathed the memorabilia to the plaintiff’s father, Horace Lindrum (“Horace”) and to Irene in equal shares.
(b) on an unknown date in 1966, an alleged oral trust was settled at 158 Kerferd Road, Albert Park by Horace and Irene (“Trust”), with particulars of the Trust provided as follows
“The Trust was oral to the effect alleged and took place in the television room of 158 Kerferd Road between Horace Lindrum, [Irene], Joyce Lindrum [the plaintiff’s mother] and the Plaintiff in 1966”;[4]
[4] Amended Statement of Claim, paragraph 12
(c) further particulars of the Trust were provided upon request as follows:
“The meeting took place in the television room at the subject property.
Present at the meeting were:
The plaintiff’s father
The deceased
The plaintiff’s mother
The plaintiff
The deceased agreed to be the Trustee for the descendants, being the plaintiff and the plaintiff’s sister [Tam Lindrum]. It was ‘accepted’ that the plaintiff’s mother, who had played such an important role in her husband’s life, would step into his shoes if he passed away.”
(d) the alleged terms of the Trust were that:
“(a)the memorabilia would remain in situ at the former Lindrum family home at 158 Kerferd Road, Albert Park until either Irene Ellis sold the Lindrum family home or passed away;
(b)the memorabilia would stay together as a collection;
(c)upon the sale of 158 Kerferd Road the collection would remain in-tact;
(d)the beneficiaries of the collection were Horace Lindrum and [Irene], and their descendants;
(e)upon the death of either Horace Lindrum and [Irene] the collection would remain with their descendants;
(f)the beneficiaries of the collection were Horace Lindrum and [Irene] and their descendants.”[5]
[5]Amended Statement of Claim, paragraph 13
(e) the plaintiff asserts that Irene converted trust property[6] (the memorabilia) to her own use,[7] as a result of which she has suffered loss and damage.
[6] Trust property is particularised at [14] of the statement of claim and includes various memorabilia;
see also 22 December 2021 particulars at [7] and [14]; Expert report of John Holmes, Exhibit EI
[7]Amended Statement of Claim, paragraph 17
6The Trust was never documented, and both putative settlors are now deceased. The plaintiff’s father, Horace, passed away in 1974.
7The plaintiff’s mother, Joyce Lindrum – the only other witness to the meeting said to have occurred in 1966 - passed away on 25 October 2016.
8In the alternative, the plaintiff alleges a bailment of the memorabilia:
13A. Further and in the alternative the arrangement orally made in or around 1966 was that the 50% share of Horace Lindrum in the memorabilia was made available to the deceased for her use.[8]
[8] Amended Statement of Claim, par. 13A
9The terms of the bailment alleged, and its breach, were to the same effect as those of the Trust.[9]
[9] Amended Statement of Claim, par. 13B, 17A
10In brief, the plaintiff’s claim fails for the following reasons:
(a) firstly, the existence of the Trust depends entirely upon the Court accepting the plaintiff’s evidence as to its settlement. I reject the plaintiff’s evidence as to her recollection of the settlement of the Trust;
(b) secondly, if the Trust was settled in 1966, the defendant has comfortably succeeded in establishing the defence of laches;
(c) thirdly, in the absence of the existence of the Trust, the plaintiff’s claim as a beneficiary within the meaning of Nolan v Nolan[10] became statute barred in 1980, pursuant to s22 of the Limitation of Actions Act 1958;
(d) finally, accepting that the Lindrum family is likely to have discussed informally the ownership of the memorabilia following Beryl Lindrum’s death in 1965, on the evidence as a whole I am satisfied that during his lifetime Horace Lindrum gifted his interest in the memorabilia to the deceased.
[10][2004] VSCA 109
11Surprisingly, the plaintiff made no attempt in either her written opening and closing submissions, or otherwise, to address the requirements of the formation, or the type, of trust alleged.[11]
[11] Other than in the plaintiff’s closing submission, at [1(b)] - “there was an agreement, bailment or trust preserving Horace’s share of the memorabilia in situ until [Irene] died.”
12The alternative claim advanced in bailment[12] also fails. In that respect:
(a) the relationship in 1965 comprised a bailment of memorabilia then existing at 158 Kerferd Road, in respect of Horace’s half share under Beryl’s Will, to Irene as bailee;
(b) by refuting the plaintiff and her mother’s claim to a half interest in the memorabilia throughout the course of 1998 and 1999, Irene converted the property;
(c) any cause of action in bailment or conversion arose at the latest in 1999, and is now statute barred pursuant to s5 of the Limitation of Actions Act 1958.
[12] Further Amended SOC dated 5 June 2023, filed pursuant to order dated 22 May 2023
13My reasons for these findings are set out in greater detail below.
Relevant principles
14The plaintiff bears the burden of proving the existence of an agreement which gave rise to a trust or bailment.
15The plaintiff is bringing a claim against a deceased estate. In such case the court should treat the plaintiff’s evidence with caution where it relates to dealings with the deceased person. In Webb v Ryan,[13] Whelan J said:
An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it……[14]
[13] [2012] VSC 377
[14] Ibid at [22]
16It is well established that the court will treat uncorroborated evidence of statements said to have been made by persons now deceased with caution.[15]
[15] Krsteski & Anor v Jovanoski [2011] VSC 166 at [25]-[27] and cases cited therein, including in Weeks v Hrubala [2008] NSWSC 162 in which Young CJ in Eq said that a case of a person suing a deceased estate the court normally looks for some sort of corroboration even though, as a matter of law, corroboration is not absolutely necessary
17In order to establishment a trust there must be certainty of intention to create a trust, subject matter and objects/beneficiaries. The essence of a trust is the holding of property by its legal owner (the trustee) for the benefit of others (the beneficiaries). Doing the best I can, it appears that the plaintiff alleges a fixed private express trust.
18It is critical to the nature of the trust that the trustee has title to the trust property. In contrast, the bailee does not have title to the property held pursuant to the bailment relationship. In distinguishing between the relationships of bailment and trust, it is necessary to discover the intention of the owner of the property at the time of transfer of the property. If the owner intends to transfer ownership, as opposed merely to part with possession, no bailment arises.[16]
[16] See Dalpont and Chalmers, Equity and Trusts in Australia, 3rd Ed, 2004, [15.50-60]
19The common law relationship of bailment arises where a bailor transfers personal property to be held in the possession of a bailee for her own use. She holds the property upon a condition to redeliver it to the bailor (or at his discretion) after the lending. A mere contract of bailment does not create a trust.[17]
[17] See Palmer, Bailment (3rd Ed, 2009)
20A trustee or bailor may owe similar duties including a duty of care and fiduciary duties.
21The defendant bears the ultimate onus in proving any limitations defence raised. In Pullen v Gutteridge,[18] the Court of Appeal held that it was for the defendant to plead that the plaintiff’s cause of action is statute-barred, satisfy the burden of proof if they wish to rely on it:
“… With all respect to those who have thought otherwise, we cannot accept that it is the plaintiff who bears the burden. It is for a plaintiff to plead and prove elements of his cause of action. If the accruing of the cause of action in time is no part of the cause of action, the plaintiff need not allege or prove it… It is for the defendant to plead and prove non-compliance with the requirements of statute of frauds; the approach in Dawkins v Lord Penrhyn (1878) 4 App Cas 51 and other cases suggests that the principle should be the same for both the statute of frauds and a statute of limitations which bars the remedy.”[19]
[18] Pullen & Anor v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27
[19] Ibid p 74
22Masters Home Improvement Pty Ltd v North East Solution[20] provides a useful summary of the principles that apply to drawing an inference in a civil case:
The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probable inference’ from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.
[20] [2017] VSCA 88
Background
Uncontroversial/established facts
23The members of the Lindrum family relevant to this proceeding are:
(a) billiards player, Walter Lindrum;
(b) Walter’s third wife, Beryl;
(c) Walter’s niece, Irene (also known as Dolly; daughter of Walter’s sister Florence);
(d) Walter’s nephew, Frederick Charles (also known as Billy) Dunn (Irene’s brother);
(e) Walter’s nephew, Horace, the son of Walter’s sister, Clara;
(f) Horace’s wife, Joyce;
(g) Horace and Joyce’s daughters, Janne (the plaintiff) and Tammy.
24Irene was born in May 1922, shortly after the Lindrum family established a billiard parlour in Flinders Lane where Walter became a champion player.
25In the 1920s, both Horace and Irene were taken in and raised in Walter Lindrum’s household.
26In 1928, Walter’s parents purchased 158 Kerferd Road, Albert Park, where Irene continued to live with them, together with Horace and Walter.
27In 1936, Horace moved to the UK and also became a champion billiards player.
28In due course, after inheriting 158 Kerferd Road, Walter married Beryl.
29In 1959, Horace and his family returned to Australia and settled at Freshwater, New South Wales.
30Walter died intestate in 1960, and his estate passed to Beryl. After his death, the billiard parlour was operated in partnership by Beryl, Horace, Dolly and her brother, Frederick Dunn.
31Upon her death in 1965, Beryl’s will, dated 20 September 1963,[21] stipulated that 158 Kerferd Road was gifted to her trustee upon trust to sell and pay the balance of the proceeds to Irene. This was converted to an in specie gift, and Irene remained at 158 Kerferd Road.
[21]CB 1164, exhibits EN and EO
32By clause 7 of Beryl’s will, she bequeathed to her children, Horace and Irene, in equal shares:
“all the treasured records, pictures and other commemorative items relating to my late husband’s [Walter Lindrum] career as a Professional Billiardist together with the contents of the billiard room at 158 Kerferd Road, Albert Park”;[22]
[22]Clause 7 of the Will of Beryl Lindrum, deceased
33The inventory of Beryl’s estate in her probate documents[23] set out the memorabilia the subject of the gift, pursuant to clause 7.
[23]CB 827
34Upon Horace’s death in 1974, his will dated 27 May 1973[24] stipulated that he bequeathed all real and personal property to his wife, Joyce, and should she not survive him, equally to his daughters, being the plaintiff and Tammy. Horace’s share in the memorabilia was not included in the inventory of assets in his will. Horace’s wife, Joyce, was executor of the will, and prepared the inventory.
[24]Exhibit ER
35On 24 November 1997, Irene entered an agreement with the Sport Australia Hall of Fame by which she donated the memorabilia to the Sport Australia Hall of Fame.[25] The “memorabilia” included “all photographs, newspapers clippings, trophies, prizes, awards, billiard equipment, including the late Walter Lindrum’s personal billiard table, clothing and mementos.”
[25]Exhibit R
36On 15 December 1999, Irene cancelled the Sport Australia Hall of Fame agreement, stating, “If it were to remain in place, this will add substantial complications to my Estate upon my death.”[26]
[26]Exhibit EY
37On 30 November 2012, Irene executed her last will and testament, by which she gifted the memorabilia to the National Gallery of Victoria:[27]
“as to any other memorabilia associated with the billiard career and charitable benevolence of my late uncle WALTER ALBERT LINDRUM presently located at my residence at 158 Kerferd Road, Albert Park, Victoria, I GIVE the same to the National Sports Museum and I DIRECT my Trustee in its sole and absolute discretion to determine whether to transfer the same in specie or to arrange for the sale of such items and the net proceeds to be distributed to the National Sports Museum for its general purposes It is my wish with respect to any such items transferred in specie to the National Sports Museum that the National Sports Museum place such items on public display in recognition of my late uncle;..”
[27]Exhibit EK, clause 3d(ii)
38On 22 July 2014, a guardianship order under s19 of the Guardianship Administration Act 1986 was made on the basis that Irene had a disability, and was, by reason of that disability, unable to make judgments about her personal circumstances. Guardians were appointed. Administrators were later appointed in 2015.
39On 25 October 2016, Joyce died, leaving her estate to the plaintiff and her sister, Tam Lindrum, who were also named as joint executors.[28]
[28]Exhibit ET
40On 10 January 2019, Irene died, with probate granted on 9 April 2019.
41Irene had exclusive possession of the memorabilia from 1965 until she passed away on 10 January 2019.
42Over that period of 54 years, she showed it off to guests, loaned it to archivists and researchers, sold or donated a few select pieces and ultimately, by the terms of her last Will, gifted it to a museum.
The meetings in 1966
43Critical components of the respective claims of the parties relate to the recollections of the plaintiff and her sister Tam Lindrum of two meetings in the 1960s.
1966 meeting
44Then fifteen years old, Janne’s evidence included that:
(a) at the time of Beryl’s death in 1965, Horace was overseas touring in South Africa.[29]
(b) a meeting took place in 1966 in the television room of the Kerferd Road property where Irene and Horace discussed the memorabilia. Joyce and herself were in attendance;
[29] T 47, L 1
45The plaintiff’s evidence was as follows:
Q: Yes. (To witness) So, as best you can in sequential order, the exact words you recollect were spoken by whom identifying whom?
A: Horace, my father, um, joked, 'Which end of the billiard table would you like to have. The book end or the other end,' because it had been left to both of them. And then there was a discussion as to, um, what should happen, so Horace said, 'I don't have a place to house the memorabilia, and because dignitaries have been coming here for such a long time and seeing the memorabilia here, um,' he called her Dolly, um, 'What do you think about leaving in situ,' and Dolly thought that was a good idea, Irene thought that was a good idea. And, um, Dad said, 'Well, it should out of respect to where it's been, Dolly, um, remain in situ until such time as you either sell the house or – or you – you pass away. What do you think?' And, ah, Irene said, 'Yes, I agree, the – I will, ah, be' – I remember the word trust – trust and trustee being used, and that, um, that Dad said that ultimately Janne and Tammy should be the beneficiaries of this, um, memorabilia and take it into the future, um, for the Lindrum name and – and Dolly said, yep, yes, she agreed to – to that, and the meeting was over. Um, there was mutual agreement.[30]
[30] T 49-50
46When asked by her counsel, Mr Catlin, why her recollection of a meeting over 50 years ago was accurate, she replied:
Yes, it was in the afternoon, and I was wearing, um, paddle pushers and a midriff top because, um, Beryl, Aunty June, was very stylish. She was a tall slim woman and, ah, very fashionable and, ah, I – I think as a young teenager I – I wanted to, ah, ah, look like her – try to look like her. Um, so, yes, ah, ah, lemon midriff top and paddle pushers. … I remember that…. I think it was spring…[31]
[31] T 50-51
1966 gift
47Tam Lindrum gave evidence in chief that in 1965 following Beryl’s death:
WITNESS: …my father made it clear that everything was gonna stay intact at 158 [Kerferd Road] with Aunty [Irene].
COUNSEL: When you say 'made it clear,' do you recall what was specifically said?
WITNESS. He – he said, 'These items are yours.'[32]
[32] T 284
48Tam Lindrum’s evidence included that in 1966, there was a more serious conversation between Horace and Irene where she was present. Tam recalled that during this conversation, Horace squarely relinquished all of his entitlement to the memorabilia to Irene:
Q: What happened in 1966?
A: It was – it was much more of a serious conversation that my father was- was relinquishing, um, his… entitlement to those items, and – and they were to stay with Auntie [Irene].
Q: Well, when you say it was a ‘more serious discussion’, what is it that causes you to describe it as being more serious?
A: Because he actually said, ‘They will always be – they will always – they have always been your items and they will always be your items.’[33]
[33] T 284, L 21-29
49Mr Smith, counsel for the defendant, quite properly conceded that I should place little weight on Tam Lindrum’s evidence given she was then only eight or nine years of age, at the time, and that the conversations (if they occurred) were over 50 years ago.
50Tam Lindrum’s evidence under cross-examination also included that she “was witness to a conversation [between her mother and Horace] where it was discussed at Collaroy Plateau, where he had said many times that all items were Auntie Dolly's,” and that her mother and your father specifically discussed that Irene had been clearly given the memorabilia.[34]
[34] T 318
The evidence
51Each party called a number of witnesses, whose evidence was adduced orally in the usual fashion. In addition a number of documents from the jointly prepare court book were tendered, to which I will refer as necessary in the course of these reasons. I have read all of the tendered material.
52The plaintiff gave evidence over the course of two days; and in addition she called Keith Ricketts, Paul Cosgriff and John Carrigan as witnesses.
Janne Clara Lindrum
53Janne Lindrum had intimate knowledge of the contents of the billiard room at 158 Kerferd Road. In the period of 1953 to 1954,[35] she lived with her family at Page Street which is around the corner from 158 Kerferd Road.[36] She regularly attended 158 Kerferd Road, visiting between two to four times a week.[37] Upon return from England in 1959, the plaintiff’s family resided in Freshwater, NSW and would drive down to 158 Kerferd Road around two to three times a year.[38] During these visits, she had free reign of the property.
[35] T 30, L 7-8
[36] T 27, L 26-28
[37] T 28, L 10-11
[38] T 30, L 14-15
54On 11 May 1998, Janne’s solicitors at the time, Hunt & Hunt, received a letter from Doyle & Kerr Solicitors who were the legal representatives of Irene.[39] The letter provided:
“2. The Gold Championship Cup had been given to Mrs Ellis by Walter Lindrum prior to his death. The Gold Cup did not form part of the Estate of either Walter Lindrum nor his wife…”[40]
[39] Exhibit AT
[40] Ibid
This was the first time Janne was informed of the gift of the gold cup by Walter to Irene.[41]
[41] T 44, L 29
55During examination-in-chief, Janne was shown a note written by Walter bequeathing the Gold Cup to Irene dated 4 December 1958.[42] She disputes the validity of Walter’s signature.[43] She is familiar with his signature since it is incorporated on cues manufactured by Peradon.[44]
[42] Exhibit C
[43] T 45, L 7
[44] T 46, L 21
56In cross examination, counsel for the defendant, Mr Smith showed the plaintiff a letter dated 24 April 1963 from Coltman, Wyatt & Anderson Solicitors, then acting on behalf of Beryl, addressed to Horace.[45] The letter provided:
“Ms Lindrum has asked us to ascertain from you your views concerning the gold cup owned by the late Mr Lindrum. So far as Ms Lindrum is concerned, she is quite happy for Ms Dunn to have the cup. But Ms Lindrum at the moment is unable to ascertain whether or not Ms Dunn wishes to have the cup. In the event that Ms Dunn does not desire to take the cup, Ms Lindrum is prepared to purchase the cup at its probate valuation and we shall be glad if you will confirm with us your approval to this proposal.”
[45] Exhibit AE
57Mr Smith suggested to Janne that this letter is consistent with Walter’s gift of the gold cup to Irene:
Mr Smith: It was the case that Walter died intestate, wasn’t it?
Witness: Yes.
Mr Smith: And so, everything went to his wife?
Witness: Yes.
Mr Smith: And yet that letter suggests that Ms Lindrum [Beryl] feels that if Ms Dunn [Irene] does not want the cup, she will buy it from the estate. So do you not agree that that suggests that Ms Lindrum [Beryl] did not consider herself to be the owner of the cup?
Witness: I don’t – don’t accept that proposition.[46]
[46] T 81, L 28-31 and T 82, L 1 -3
58During cross examination, it was also put to Janne that Beryl’s Will specifically bequeathed a royal tie pin and cufflinks to the National Gallery, and that Janne has no entitlement to these items. Janne recalled the gift but insisted that she retained a twenty-five per cent interest in these items.[47]
[47] T 83, L 21-29
59On 29 May 1973, the eve of his last overseas trip, Horace made Janne his power of attorney,[48] and prepared his last will at the same time.
[48] Exhibit K
60While her father was overseas, Janne dealt with a number of legal letters as Horace’s power of attorney overseeing the dissolution of the partnership in the business at Flinders Lane. She said that Horace gave his one-third share of the business to Irene,[49] however she denied any knowledge of Horace gifting Irene his share of the memorabilia during this period.[50]
[49] T 61, L 30
[50] T 62, L 9-11
61Prior to this proceeding, the plaintiff had no knowledge of the statutory declaration made by Frederick Dunn,[51] and refuted its contents.
[51] T 78, L 1
62She asked about the conversation in 1973 at the Flinders Lane premises referred to in Frederick Dunn’s statutory declaration where Horace confirms his gifting of his share of the memorabilia to Irene. She insisted that the conversation between Horace and Irene did not occur, and refused to concede that the conversation could have happened in her absence:
Mr Smith: So it’s entirely possible that that conversation as recorded there could have occurred in your absence, do you accept that?
Witness: No.
Mr Smith: … You don’t accept that your father could have had a conversation with Irene and told her that she could have his share of the billiard table, you don’t accept that could have happened without your knowledge?
Witness: No.
Mr Smith: I see. Were not Horace and Irene like brother and sister though? Could they not have had a conversation like that in your absence, without you knowing?
Witness: Well, they could have, except my father wasn’t in Australia, so he couldn’t have been attending in 1965…[52]
[52] T 87, L 14-27
63She said her father was overseas during this period.[53]
[53] T 88, L 26-31 and T 89 L 1-10
64On 4 February 1998, Janne instructed solicitors to write to Irene asserting her interest in the memorabilia. Irene’s solicitors responded:
“Our instructions are that your reference to the contents of the billiard room at 158 Kerferd Road, Albert Park as being jointly owned and [sic] not correct. Our client denies that there was ever any agreement between herself and the late Horace Norman William Lindrum or later any of his beneficiaries in relation to the contents of the billiard room…
In view of the fact that it is now over 30 years since the death of Beryl Elaine Lindrum any claim which your clients may wish to make in relation to the contents of the billiard room are clearly Statute barred.”
65When cross-examined about this letter, Janne agreed that she immediately understood that Irene rejected the proposition of Janne having an interest in the memorabilia. Despite this, she did not commence proceedings.[54]
[54] T 107, L21-26 and T 108, L 1-8
66Following further correspondence in which Janne expressed concern that certain items of the memorabilia had gone missing, again she did not instruct her solicitors to commence proceedings. When asked why, Janne replied:
Witness: The concern… was the state of Irene’s health at the time. She was 76 years old. My mother was 75. My mother had been through significant trauma with the Stage Development proceedings, and we made it a decision that the best way to deal with it as a family would be for my mother to go and visit Irene when the matter was settled; the Stage Development, which my mother did, and they would sort through the issues, which they did as a family.[55]
[55] T115, L 14-22
67In 2011, Janne was contacted by Mr Paul Cosgriff and they had a meeting:
Mr Catlin: … And does he come and see you?
Witness: Yes.
Mr Catlin: Yes. And do you have a conversation?
Witness: Yes.
Mr Catlin: And what does he say?
Witness: Ah, he says that he represented people from the National, um, Museum, but he wasn’t able to tell me who those people were, um, but they, ah, wanted to put forward a proposition which was that they acquired the billiard – Lindrum family billiard table for $100,000 on the basis that the table would remain in situ until Irene passed away.[56]
[56] T 72, L 1-9
They did not speak about any other memorabilia aside from the billiard table.
68In 2013, Janne’s understanding was that certain memorabilia items had been placed in a safe in custody of Westpac Bank in Collins Street due to an attempted robbery at the Kerferd Property. The rest of the memorabilia remained in situ.[57]
[57] T 72, L 22-27
69Upon Joyce’s death in 2016, Janne recalled a conversation with her sister, Tam:
Mr Catlin: … What were the discussions about?
Witness: I said to [Tam], ‘Are you happy for the memorabilia to remain in situ as per the arrangement that had been made in 1966,’ that is that it stayed in situ until Aunty [Irene] passed away or elected to sell the house. And we mutually agreed that that was to be the case…
… Um, I agree, and we both had to then, ah, independently of each other, instruct the solicitor acting in the estate.[58]
[58] T 73, L 14-26
70At the time, Robbins Watson Solicitors acted for Joyce’s estate, and Janne and Tam communicated with the firm separately.[59]
[59] T 74, L 2
71On 27 September 2017, Robbins Watson sent a letter to Irene on behalf of Joyce’s estate.[60] The letter requested an acknowledgment of the interest of the late Mrs Joyce Doreen Lindrum-Gillan’s estate in the memorabilia based upon the terms of Beryl’s and Horace’s will. When asked why she was instructing a letter of this kind to be sent, Janne responded:
Witness: Well, our mother had passed away and, ah, she had stepped into the shoes of our father, and so there had to be a discussion at that point as to what should happen.[61]
[60] Exhibit BR
[61] T 74, L 8-11
She did not discuss this letter with Tam Lindrum at the time despite Tam also being being an executor.[62]
[62] T 74, L17
72In 2018, Janne spoke with Mr John Carrigan from Perpetual, who she understood to be an executive overseeing all of Irene’s affairs. Janne had an issue in relation to security of the memorabilia. She was copied into an email Tam wrote to Mr Carrigan which provided:
“… Noted you have acknowledged our late Mother’s rights under our late Father’s Will.
The items classified “memorabilia”, including the billiard table, hold significant historical value, have national significance and could not be replaced. I wonder what provision is in place to protect these items given 158 Kerferd Road is currently vacant?...”[63]
[63] Exhibit CE
73After Irene’s death in 2019, Janne spoke with Mr Domenic Madrigrano after being referred to him by Mr Carrigan. Janne understood Mr Madrigrano to be the person overseeing Irene’s estate, and was her principal point of contact at this stage.[64] She was communicating with Mr Madrigrano both via email and verbally over the phone.[65]
[64] T 76, L 23-28
[65] T 76, L19
74On 23 December 2019, Janne emailed Mr Madrigrano in relation to the memorabilia:[66]
Mr Catlin: … Why are you sending – so in that letter, could you just read it, please? All right, so it’s not controversial that Irene dies in January 2019, so what are you pressing for in that letter, just broadly?
Witness: Um, yes, I had told Mr [Madrigrano] that there were items that were missing. And Mr [Madrigrano] said, ‘Well if there are missing items then there needs to be compensation’. And I was putting this letter before him to press the point.[67]
[66] Exhibit CU
[67] T 76, L 8-16
75Mr Catlin asked Janne about any recollections she had of her phone conversations with Mr Madrigrano:
Mr Catlin: And how many telephone conversations do you think you had with him?
Witness: Oh, 10, or 20, there were a lot of conversations.
Mr Catlin: All right. And why are you speaking to him on the phone, just about the memorabilia, anything specific that you recall?
Witness: Yes, he told me that there would be, ah, various people present, including a representative from the National Sports Museum and other party – interested parties. And he also offered me the opportunity if I wanted to, to purchase, um, the memorabilia. And I asked for the inventory, so that was kind of the starting point.
76On 16 April 2020, Janne was served a Notice pursuant to s30 of the Administration and Probate Act 1958.[68] This was the first time Perpetual informed her that she had no right to ownership in the memorabilia.[69]
[68] Exhibit B
[69] T 77, L 23-25
Keith Lindon Andrew Ricketts
77Keith Lindon Andrew Ricketts is an orchardist with a deep interest in Walter Lindrum’s life. He authored a book entitled “Walter Lindrum – The Phenomenon.”[70] In writing this book, one of his main sources of information was Irene. He met with her for an interview about two or three times before the publication of the book in 1982[71] and they maintained communication until 2016.[72]
[70] T 184, L 31
[71] T 195, L 23
[72] T 189, L 9
78Mr Ricketts evidence included Irene had said to him that Horace told Irene, “You can have the table”.[73] When asked, if in fact, Irene was referring to all the memorabilia, Mr Ricketts responded:
I had an – an overwhelming impression from my contact with [Irene] that the memorabilia was hers from as early as I can remember my involvement with her. There was never any mention of anyone else being entitled to any of it.[74]
[73] T 197
[74] T 198
Mr Ricketts formed this view due to the way Irene spoke about the memorabilia and her intention to preserve it and Walter’s memory.[75]
[75] T 198, L 16
79Mr Ricketts then had a conversation with Irene in around August 1998, when “she informed him that she had agreed to forgo half of the memorabilia, to hand it over to Janne – or, in due course, it would become the property of Janne Lindrum.”[76]
[76] T 194, L 11
80In cross examination, Mr Ricketts said that
My clear understanding of that is that …that Perpetual, the trustees - I think Perpetual were the trustees at that stage. Anyway, the trustees had - I don't know whether 'recommended' is the right word. Um, but they were the ones that pushed her in the direction of signing over half the memorabilia. She - ah, well, she was far from happy in doing it; far from happy.”[77]
[77] T 198, L 29
81Mr Smith suggested that Mr Ricketts was mistaken on the year of this conversation since Perpetual Trustees did not take over Irene’s affairs until around 2015 and that in 1998 Irene was vehemently maintaining her right to ownership of the memorabilia. Mr Ricketts clarified that he was unsure whether it was Perpetual who were the trustees at the time,[78] however remained adamant that the conversation occurred in 1998 and that Irene was pushed in that direction by a trustee or advisor at the time.[79]
[78] T 199, L 7
[79] T 199-202
82It is likely that Mr Ricketts is mistaken, as the plaintiff does not say she made an agreement with Irene in 1998 - the agreement that is sued upon is in 1966. It is also inconsistent with the plaintiff’s case, in that it suggests Irene is giving up an interest in something that already belongs to her.
83In his obituary for Irene published on 28 May 2019, Mr Ricketts wrote:
Dolly was fiercely loyal to the Lindrum name, and ensured that the Kerferd Road billiards room, complete with memorabilia was preserved. It is still intact, virtually as Walter left it with his untimely death in 1960. This will change following Dolly Lindrum's passing and due to an arrangement which Dolly reluctantly made with other more distant relatives of Walter. The future of the collection is uncertain – there is a need for a philanthropic individual or group to secure this collection so that it stays in its rightful home, Melbourne.[80]
[80] Exhibit Z
Paul Cosgriff
84Paul Cosgriff is a retired air traffic controller who was also an international referee for professional snooker. He knew Irene and had attended 158 Kerferd Road on a number of occasions in his capacity as part of the Victorian Billiards and Snooker Association. These attendances were often in the company of other people.
85During about five to eight of these attendances, Irene expressed that she was feeling pressured by Janne:[81]
A: … Janne felt that she had a strong, um, right to the memorabilia. And she was talking to, ah, [Irene] in regard to the fact that she felt that there needed to be some sort of determination made about her rights to the memorabilia…
[81] T 175, L 23
Mr Cosgriff’s understanding was that Janne communicated her concerns to Irene directly.[82]
[82] T 183, L 31
86Mr Cosgriff was asked if he would be willing to get in touch with Janne to confirm what her concerns were and what she wanted to achieve.[83] Thus, he met with the plaintiff in 2011 which is the meeting referred to in his email to her dated 23 October 2013.[84] In the email, Mr Cosgriff wrote:
“I was firmly of the opinion that the Lindrum Memorabilia (including the Table) are the property of the Lindrum family and any future dealings with those articles are totally within the province of your family. Accordingly, after Dolly’s passing, you and your sister will be the sole arbiters of the best manner in which these items should be used.
…
Would you and your sister consider the sale of all the Memorabilia items and the Table, resident at Kerferd Road, Albert Park to the VBSA & their supporters?...”
[83] T 155, l 7; T 163, L 4
[84] Exhibit BX
87Mr Cosgriff’s understanding was that all the memorabilia was owned by Irene, based on the fact that Irene had lived in the Kerferd Road address for about eighty years and was the owner of the house.[85] He also gave an example where Irene was asked if she had the authority to allow the release of some newspaper clippings that had been arranged into folders for study, and she approved. Mr Cosgriff took this as Irene having ownership of the memorabilia.[86] He said:
Witness: It was always understood by everybody in the room that everything in Kerferd Road belonged to Irene at that stage, and therefore any other issue of ownership was to be determined within the family.[87]
…
His Honour: Mr Cosgriff, what words, if any, did Irene express to you about who owned the memorabilia in the billiard room at Kerferd Road?
A: Any words that Irene spoke to me were about the fact that she was the curator of everything in the house and therefore the owner, as far as I was concerned, okay? If there was any part of it that she had already allocated to anybody else, I had no idea. As far as any future direction on where any items were to go, that was an internal family consideration.[88]
Q: Did Irene make any references to assertions by Janne Lindrum or Tammy Lindrum or Joyce Lindrum to ownership of the memorabilia?
A: She made reference to possible claims, but she never used the word 'ownership'. My understanding was that all the memorabilia was in the ownership of Dolly.[89]
[85] T 179, L24
[86] T 180, L 21
[87] T 156
[88] T 177
[89] T 179
88When pressed by Mr Catlin about the contents of his email which suggested a belief that Janne had ownership rights to the memorabilia, Mr Cosgriff explained:[90]
Q: Okay, So, just to be clear, when the words, ‘Would you and your sister consider the sale of all the memorabilia items and the table’, what do you say those words mean?
A: They mean that there was a group of people in Victoria that wanted the memorabilia to stay together in one collection. And they were under the impression, from whatever Dolly had said to them, that if there was some money offered to Janne and Tammy, then that might enable them to say all the memorabilia can stay together. Then, the memorabilia staying together, would go wherever [Irene] directed it.
[90] T 182, L 18
John Carrigan
89Mr Carrigan was employed by Trust Company of Australia (later absorbed by Perpetual) in various positions for twenty-one years. He eventually held the position of Manager Lifestyle Assist which dealt with the power of attorney service of Perpetual.[91]
[91] T 208, L 22-26
90Mr Carrigan first dealt with Irene’s account with Perpetual in 2015 when Irene moved from being a “will client” to an “asset management client”. Mr Carrigan was in direct control of Irene’s file in relation to asset management. This involved assistance in terms of helping to pay bills and looking after some general items for her. His involvement with her account did not include the preparation of wills as this was handled by the Estate Planning Department, led by Ms Eliza Newson.
91On 27 September 2017, Robbins Watson Solicitors (on behalf of the executors of the estate of Joyce) sent a letter to Mr Carrigan, an estate manager at the defendant, asserting an interest of the estate of Joyce in the memorabilia.[92]
[92]Exhibit BR
92Mr Carrigan said he would have referred the letter from Robbins Watson Solicitors to the internal legal team of the Estate Planning Department, either Ms Newson or Andrea Brown, and awaited sign off from the legal team before sending a response.[93] He did not have any access to any of Irene’s wills, and it was of no concern with his ongoing management of Irene’s (then) current affairs.[94]
[93] T 210, L 13-20
[94] T 211-212
93On 5 October 2017, Mr Carrigan responded to Robbins Watson Solicitors, stating:
“We are aware of the late Mr Horace Lindrum’s interest in the said Memorabilia of the late Mr Walter Lindrum and acknowledge his rights as tenants in common and therefore subsequently the late Mrs Joyce Doreen Lindrum-Gillan. We understand that all of the Memorabilia remains in the possession of Mrs Ellis (Irene) and is still situated at her property in Kerferd Road, Albert Park.”[95]
[95]Exhibit BS
94Tam Lindrum sent an email to Mr Carrigan on 21 February 2018, which stated, “Noted, you have acknowledged our late Mother's rights under our late Father's Will.”[96]
[96] Exhibit CE
95In other email correspondence between Mr Carrigan and the plaintiff and Tam Lindrum in 2018, Mr Carrigan proceeded on the basis that Joyce’s estate retained an interest the memorabilia.
96During this period, Mr Carrigan was not alerted by the Estate Planning Department that there was a statutory declaration by Frederick Dunn contradicting these claims,[97] or that there were previous communications between Irene and the plaintiff’s solicitors in 1998 and 1999.[98] He simply relied on the conclusion that was passed down from the legal team to him.[99]
[97] T 215, L 10; Exhibit O
[98] T 217, L 26-30; see paragraphs [117] to [136] of these reasons
[99] T 218, L 3-5
97Overall, Mr Carrigan’s evidence was of limited assistance on the issue of whether a relationship of trust or bailment arose in 1966. His conclusion in the letter of October 2017 is irrelevant to the question of whether Horace gifted his interest in the memorabilia to Irene, but may bear on the question of the question of delay on the part of the plaintiff in seeking to enforce her rights from 2017.
98The defendant as part of its case called evidence from the plaintiff’s sister, Tam Lindrum, and one of its employee trust managers, Domenico Madrigrano.
Tam Lindrum
99Tam Lindrum is the daughter of Joyce and Horace, and the plaintiff’s younger sister. She was in regular communication with Irene before she passed. Although she resided in Sydney, her work in the pharmaceutical industry usually took her to Melbourne monthly, or every other month. She would visit Irene each time, and stayed at 158 Kerferd Road on a number of occasions.[100]
[100] T 278, L 23-29
100Upon Irene’s death, Tam Lindrum inherited 158 Kerferd Road, where she now resides.[101]
[101] T 279, L 18-19
101She believes that Joyce and Janne’s dispute with Irene concerning the memorabilia has no merit:
Mr Smith: Okay. And now, can I take you back in time to your father – well, why was it that you did not side with your mother and your sister?
A: Because they were making claim to items that didn’t belong to them.
Mr Smith: Okay. And why do you say those items that did not belong to them?
A: Because they were owned, ah, by Auntie [Irene].[102]
When asked why she adopted this position, Tam responded:
Witness: Because my father had already said on a number of occasions that the items should remain with Auntie Dolly.
[102] T 282, L 22-25
102Irene showed her the statutory declaration of Frederick Dunn at the Kerferd Road property:
Mr Smith: And why did it come to be shown to you?
A: It was shown to me because I had said what my side – that I agreed with, um, what Auntie [Irene] was – was saying, that the memorabilia belonged to her. And [Frederick] Dunn had – had seen and – and heard my father also say that those items belonged to Auntie [Irene].
Mr Smith: All right. So she shows you the statutory declaration and what explanation did she give you for having such a document?
A: She was always worried that, when something happened to her, that the memorabilia was – was not going to be on display for all the public to have access to and see.[103]
[103] T 287, L 2-13
103When cross-examined about the letter from Robbins Watson to Mr Carrigan dated 27 September 2017,[104] she said that the plaintiff exerted duress over her by refusing to settle Joyce's estate unless the letter was sent.[105] Tam agreed she never sought to correct Mr Carrigan’s letter of 5 October 2017, pointing out that it was a matter for the defendant to answer the letter from Robbins Watson, and for Mr Carrigan to say why he wrote the response. Further:
“But the intention of this letter was to - to get my mother's estate settled. And it wasn't going to be settled until Janne had this letter sent.’ [106]
[104] Exhibit BR
[105] T 325 and 327
[106] T 327
104She was cross examined about her email of 21 February 2018, and agreed that it was an “unambiguous statement that [her] mother's rights, flowing from [her] father, subsist”, but denied that it was a dishonest email. She acknowledged that it was inconsistent with her position that the memorabilia was solely owned by Irene:
Witness: I do acknowledge the inconsistency, but at the same time, I did want to make sure that the memorabilia was protected, um, given that it was going to eventually go to, or hopefully go to the Sporting Hall of Fame. So but – I do acknowledge that in order to settle my mother’s estate, there was correspondence that needed to be set.
…
Given that it was outside in the billiard room, um, just wanted to make sure that the property was completely, um, secured. Ah, we make sure that, ah, there was a fire smoke detector in there that – all efforts had been made to secure the – the memorabilia in the billiard room.[107]
[107] T 291, L 20-31 and T 292, L 1-5
105Mr Carrigan emailed the plaintiff on 16 June 2018, enquiring, 'Have you had a chance to discuss this matter with Tammy yet as to your half of the memorabilia?' This email was forwarded on to Tam Lindrum that same day. Mr Catlin squarely put to her that this was another opportunity to say to the plaintiff, 'This is all nonsense. You have no rights.' Her explanation for not doing so was because, “I trying to finalise my mother's estate.”[108]
[108] T 330
106When asked why she did not join the plaintiff in this litigation to press for the same entitlement under Beryl’s will, she responded that it was not hers to pursue.[109]
[109] T 293, L 7-8
107Tam Lindrum often discussed with her mother, Joyce, the issue of the extent of Irene’s ownership of the memorabilia, and said that they agreed to disagree.[110]
[110] T 333
Domenico Madrigrano
108Mr Domenico Madrigrano commenced employment with the Trust Company of Australia in July 1995. When the Trust Company of Australia was absorbed by Perpetual in 2013, Mr Madrigrano continued working with them and is now in the position of Senior Trust Manager.
109Mr Madrigrano was assigned Irene’s client file after her death in January 2019,[111] and the estate administration came under his carriage and responsibility.
[111] T 240, L 9
110In the following months after Irene’s death, Mr Madrigrano searched 158 Kerferd Road for valuables or further asserts that might not have been known to him through the will packets.[112] In his search, he found the handwritten note dated 4 December 1958, that made reference to a gold vase,[113] correspondence in a folder titled ‘Lindrum Hotel’, and a Sotheby’s catalogue which disclosed the gold cup and the gold pocket watch which had been sold at auction.[114]
[112] T 242, L 27
[113] Exhibit C
[114] Exhibit 1
111Mr Madrigrano received various communications from the plaintiff, and these detailed her position that she had an interest in the memorabilia through her mother, Joyce’s estate. Mr Madrigrano commenced preparing a report as to the veracity of this claim. He said:
It was my wish that, um, all the parties who were interested in the memorabilia could hopefully get together and resolve the outcome of where this memorabilia should ultimately… hopefully find a proper and appropriate place to be… displayed and exhibited as per Mrs Ellis’s wishes in her will.[115]
[115] T 249 L 18
112He concluded that the memorabilia was solely owned by Irene.[116] His report does not refer to Tam Lindrum hearing Horace say he had gifted the memorabilia to Irene.
[116] T 250, L 12
113In cross-examination, Mr Madrigrano was asked about the file note made by Eliza Newson.[117] He would have read the file note at the start of the administration but does not recall specifically referring to it. When further pressed, Mr Madrigrano changed his answer and said he did not rely on the file note since its contents were already covered by his research into Beryl’s will and the provisions within it.[118] The file note was stored in a different area (estate planning) to his area of the business.
[117] Exhibit AC, see paragraph [139] of these reasons
[118] T 263, L 7
114Mr Madrigrano did not read any of Irene’s prior wills and was not aware of the language used in her previous wills.[119] Mr Catlin asked Mr Madrigrano whether the use of language in the previous wills, specifically the words “in which I have an interest” when pertaining to the memorabilia, should have been taken into consideration in the writing of his report, Mr Madrigrano responded:
A: Ah, no, because her last will was quite clear: ‘The balance of my personal chattels including my remaining sporting memorabilia’.
… I think it’s the last will that – that speaks for the – for the deceased. It’s not the prior wills.[120]
[119] See paragraph [145] of these reasons
[120] T 266, L 21
115Mr Madrigrano was not aware of the letter from Mr Carrigan to Robbins Watson Solicitors dated 5 October 2017.[121]
[121] T 269, L 8;
116Mr Madrigano’s evidence and his conclusion as to ownership of the memorabilia is of very little relevance to my task.
Disputed matters
Correspondence between solicitors in 1998 and 1999
117On 26 January 1998, Irene informed Joyce that Horace had gifted his share of the memorabilia to Irene. Joyce did not believe this to be correct, as her husband had not mentioned this to her.[122]
[122]July 1998 agenda for a family meeting prepared by Joyce: Exhibit P, JCB 605
118At or about this time, Mr David Marriner, a property developer, announced his intention to launch a chain of boutique hotels and resorts around Australia named after the late Walter Lindrum.
119These events sparked correspondence between solicitors for the plaintiff on the one hand (Hunt & Hunt; later Tzovaras Yandell), and Irene (Doyle & Kerr) which dealt in part with the issue of the memorabilia.
120On 4 February 1998, Hunt & Hunt wrote to Irene in the following terms:
We note that the contents of the billiard room are owned jointly by you and our clients. Further, we note that it was agreed between you and the late Horace Norman William Lindrum, and then subsequently between you and his beneficiaries, that the contents of the room should remain in the room until you vacated the property.[123]
[123] Exhibit AL
121The reference to two agreements: one between Irene and Horace, and another later agreement between Irene “and his beneficiaries” is not reflected in the further amended statement of claim. The plaintiff blamed her lawyers for any inconsistency with the case she brings in this proceeding.[124]
[124] T 105-106
122Doyle & Kerr responded by letter dated 12 February 1998, denying the plaintiff’s claim over the memorabilia:
Our instructions are that your reference to the contents of the billiard room at 158 Kerferd Road, Albert Park as being jointly owned [are] not correct. Our client denies that there was ever any agreement between herself and the late Horace Norman William Lindrum or later any of his beneficiaries in relation to the contents of the billiard room. Further, Mrs Ellis instructs us that she owns the billiard table in that room in her own right as it was given to her by Horace Lindrum prior to his death. ...
In view of the fact that it is now over 30 years since the death of Beryl Elaine Lindrum any claim which your clients may wish to make in relation to the contents of the billiard room are clearly Statute barred.[125]
[125] Exhibit AM
123On 23 February 1998, Hunt & Hunt sought particulars of any agreement between Irene and Horace transferring his right in title to “the contents of the billiard room at 158 Kerr Road” to Irene.[126]
[126] Exhibit AN
124On 2 March 1998, Doyle & Kerr refused to proffer any undertaking on behalf of Irene in relation to items which were personal to her, but confirmed their instructions that in a conversation at 158 Kerferd Road in approximately 1966, Horace gave his interest in the billiard table to Irene; and provided details of a conversation between Horace and Frederick Dunn in 1973 when:
“…Mr Dunn commented to Horace Lindrum that he had a half interest in a table at Albert Park to which Horace Lindrum replied, “I’ve given my half to Dolly”.”[127]
[127] Exhibit AP
The letter goes on to state that since approximately 1966, Irene had considered herself and had acted on the basis of her owning in her own right the billiard table referred to in paragraph 7 of Beryl’s will.
125On 26 March 1998, Frederick Dunn made a statutory declaration to the effect that Horace had gifted his share of the memorabilia to Irene:
10. Subsequent to the death of our aunt Beryl Elaine Lindrum in 1965, the said Horace Norman Lindrum visited the residence at 158 Kerferd Road, Albert Park and discussed the bequest under Clause 7 of the Will. At that time, my sister advised me that Horace had given his share of the Billiard Table referred to in the Inventory to her for her own use and benefit absolutely.
11. During a subsequent conversation which took place at 317 Flinders Lane, Melbourne on the closure of the public Billiard Room, I discussed with Horace the allocation and ownership of the contents of the Billiard Room, at the residence at 158 Kerferd Road, Albert Park.
Horace made the comment to my sister (inter alia) “… which half of the Billiard Table do you want [Irene], the baulk end or the spot end..”, to which [Irene] responded (inter alia) “…. I don’t care.” Horace then said (inter alia) “It’s yours, [Irene] I’ve already given my half share of all the items in the Billiard Room to you…”.[128]
(emphasis added)
[128] Exhibit O; JCB 603
126The conversation at 317 Flinders Lane took place in 1973.[129] Frederick Dunn also declared that he had subsequent conversations with Horace who confirmed this gift to Irene. Since then, it was his and Irene’s understanding that the contents of the Billiard Room at 158 Kerferd Road were owned absolutely by Irene.
[129] T88
127This is the only written evidence from a contemporary witness who was an adult at the time of the alleged gift from Horace to Irene. The declaration was prepared in anticipation of litigation, and I infer that Irene was prepared to defend the allegations being made against her. It is significant evidence in support of the defendant’s denial of the claims made against it.
128On 27 April 1998, Hunt & Hunt made multiple demands for information regarding certain memorabilia items, and again seek an undertaking “that the … joint assets will not be dealt with without our client’s prior written approval.”[130] The letter referred to the plaintiff being in possession of copies of letters written after 1966 acknowledging joint ownership of the assets in the billiard room at 158 Kerferd Road.
[130] Exhibit AS
129Despite requests, these letters have never been produced by the plaintiff.
130On 11 May 1998, Doyle & Kerr replied providing a response as to the issues raised, and refused to provide an undertaking:
Our client claims absolute ownership of the Billiard Room but has instructed us to indicate that she has no immediate intention of disposing of the items contained therein which she has had in her possession and cared for a period of well in excess of thirty years.[131]
[131] Exhibit AT
131On 10 June 1998, the plaintiff herself writes to Doyle & Kerr, seeking an undertaking and making allegations including that Walter’s trophies and inscribed memorabilia appear to have ‘disappeared’.[132]
[132] Exhibit AU
132By 28 August 1998, the plaintiff is using a different solicitor, Tzovaras Yandell and is threatening a damages claim in relation to the Marriner issue.
133On 13 November 1998, Irene swore an affidavit in the Federal Court proceedings in relation to the dispute concerning naming rights for the proposed Lindrum Hotel chain. Her evidence in that proceeding was entirely consistent with the defendant’s position in this proceeding. Irene deposed that, at a meeting with Mr Marriner in 1997, she said:
“I actually have a lot of memorabilia relating to Uncle Walter’s career. Most of it is going to be given to the Hall of Fame, but if you want to use reproductions of some of it in the hotel, then you’re welcome to do so.”
134On 8 February 1999, Tzovaras Yandell sent a facsimile to Doyle & Kerr in no uncertain terms:
We are instructed to advise that our clients have the right, title and interest in the one-half share of the memorabilia and effects relating to the careers of the late Walter Lindrum in accordance with the provisions of the Will of the late Beryl Elaine Lindrum and are no longer prepared to consent to your client, [Irene] remaining in a caretaking role. Accordingly, please advise within seven (7) days as whether your client… will co-operate in relation to the division of these assets or whether there is some truth in affidavit evidence provided to the Federal Court that Irene has promised property that does not belong to her to a third party.
…
Your client … will be held responsible for all further loss suffered by our clients should she attempt to convert their property. In this regard we seek your client’s written assurances that none of the aforesaid memorabilia or effects have been converted and the same are not intended to be converted.
We await your early response, however in in the meantime, should further evidence of your client’s intentions to convert any of the memorabilia or effects come to our clients attention they reserve the right to seek immediate injunctive protection of the interest in such assets without further notice. [133]
[133] Exhibit BD
135On 1 March 1999, Doyle & Kerr replied to that letter comprehensively. Not a backward step is taken. No undertakings are given.[134] The letter states, in part:
Mrs Ellis has cared for the memorabilia for 33 years and is·of the view that it is, after this period of time, her sole property. Many items in the Billiard Room at 158 Kerferd Road, Albert Park are the property Mrs Ellis having been given to her personally over the years whilst she was in the Billiard business. Further, for historical purposes, the contents of the Billiard Room should not under any circumstances be split as they would lose much of the historical value. Mrs Ellis denies holding the contents of the Billiard Room on trust for Horace Lindrum’s Estate.
[134] Exhibit 4
136In a further letter dated 10 March 1999 from the plaintiff and her mother, Joyce to Doyle & Kerr, yet another (unpleaded) version of the basis of a claim against Irene is put, being that Irene “accepted a ‘caretaker role’ in exchange for which she received our consent to operate a business with her husband…” without any rights to deal with Horace’s share of the memorabilia.[135]
[135] Exhibit BG
137There is no evidence Irene responded to this letter.
138I regarded as significant that:
(a) there are a number of inconsistencies in the claims made against Irene in the correspondence referred to above;
(b) none of the letters sent by or on behalf of the plaintiff assert an oral trust as alleged in this proceeding; and
(c) the plaintiff takes no further step by way of instituting proceedings or otherwise to assert or protect the claimed interest in the memorabilia in the period from 1999 until she commenced this proceeding in 2022.
The Newson file note
139On an unknown date, most likely in November 2012 shortly prior to Irene executing her last will, a file note was created recording a phone conversation between Eliza Newson, estate planning solicitor with the defendant, and Irene. Given its detailed consideration at trial, a reproduction of the first page of the note[136] is set out below:
[136] Exhibit AC
140It is the only page which bears Ms Newson’s stamp and signature. It is consistent with the defendant’s estate planning solicitor confirming Irene’s instructions in relation to her last will. I accept that it records Irene’s instructions.
141I find that the second and third pages of the file note tendered record views of Ms Newson, but do not record instructions from the deceased in the eight-minute telephone attendance. Those further pages contain errors (it refers to Joy’s will, not Beryl’s), further notes in different handwriting and unanswered queries. Ultimately the notation “obviously gifts of memorabilia only relate to Dolly’s share” appears to me to be a conclusion or opinion reached by an officer of the defendant based on Beryl’s will and other unknown considerations.
142I accept the defendant’s submission that this evidence amounted to no more than the ruminations of Ms Newson, and may not be adduced as evidence of Irene’s intentions or instructions.
143The last will Irene is a critical component of the defence to the claim because it unequivocally asserts an absolute interest in the memorabilia. It is not in dispute that Irene had testamentary capacity at the time she executed her last will.[137]
[137] Exhibit BQ
144Shortly after she executed her last will, an order was made appointing a guardian, as Irene was incapable of managing her own affairs. So it was her last word on the subject.
Significance of Irene’s previous wills
145Several of Irene’s wills revoked prior to executing her last will were tendered.[138] The first three of those wills, ending with the will dated 17 December 1996, directed all of the memorabilia located at 158 Kerferd Road to be donated to the Australian Gallery of Sport and Olympic Museum free of all costs.[139]
[138] Exhibit EJ
[139] Clause 4(ii), JCB 1097
146Her later will dated 10 March 1998[140] included the qualifying phrase memorabilia “in which I have an interest or own in my sole right”. This phrase was removed from her will dated 26 November 2010, and does not appear in her later will dated 11 October 2011 or, critically, her last will dated 30 November 2012.
[140] See also wills dated 19 September 2002, 17 December 2003 and 19 May 2009
147The plaintiff sought to make much of this, and submitted that I should infer that the words “in which I have an interest” reflected Irene’s own view at the time that Horace held a one half interest in the memorabilia. In my view, the wording reflects the existence of a dispute with the plaintiff rather than an admission against interest. In any event, her last will did not include these words.
Plaintiff’s credit
148Counsel for the defendant, Mr Smith submitted that the plaintiff was an unimpressive witness.
149I accept the defendant’s submission that I should reject the plaintiff’s evidence as to the settlement of an oral trust or bailment in 1966.
150A deal of the plaintiff’s evidence lacked inherent probability, detail and support from objective evidence corroborating her version of events.
151In addition to the inherent probability of aspects of the plaintiff’s evidence, in particular the 1966 meeting, I accept the submission that there were other aspects of her evidence which were unsatisfactory, which indicated that she was not a reliable witness. I was referred to a number of passages of transcript and exhibits which make good that assertion:
(a) the plaintiff maintains a claim to an entitlement in this proceeding to Walter’s royal tie pin and cufflinks which had been bequeathed by Beryl to the National Gallery of Victoria in her 1963 will;[141]
(b) her evidence that her father, Horace, was out of Australia for the entire year in 1973, and so could not have had a conversation with Mr Dunn at 317 Flinders Lane in 1973.[142] I reject that evidence. It is not in dispute that Horace executed a power of attorney in May 1973 and only travelled overseas for part of the year;
(c) her dogged certainty, 50 years later, that Horace did not once attend the Lindrum Billiard Boom in Flinders Lane, Melbourne during 1973;[143]
(d) her refusal to concede that it was even possible that Irene and Horace could have had a discussion about ownership of the memorabilia in her absence;[144]
(e) the plaintiff’s conflicting accounts, inconsistent with her statement of claim, of what had been “agreed” by Irene at various different times (referred to above);[145]
(f) her unreliability extended to her evidence of an agreement between Irene and Joyce after the conclusion of the solicitor correspondence in 1999, which was never documented or pleaded, and which emerged for the first time in cross-examination. It was not in issue that the plaintiff and her mother had issued proceedings in the Federal Court in 1998 over a dispute as to the rights to use the name Lindrum in connection with a hotel chain operated by a developer. I find that this makes it improbable that she would not document an agreement in the context of the subsisting dispute about ownership of the memorabilia occurring at the same time;
(g) her inability or refusal to produce documents she testified existed and which she relied on both in her oral evidence[146] and in the correspondence between solicitors in 1998 in support of her position. These documents included various letters by which Irene was alleged to have recognised Horace’s share in the memorabilia, and an inventory of the memorabilia said to have been made by her mother, Joyce in 1980. Ultimately in cross examination she conceded that notwithstanding the contents of letters sent in her own name and on instructions by her solicitors, there was never any acknowledgement of joint ownership by Irene in writing in a letter or any other written form.[147] The inventory from 1980 was never produced.
[141] T 83; see Will of Beryl dated 20 September 1963, clause 4(b): Exhibit EO
[142] T 88-89
[143] T 89
[144] T 90
[145] and see T 105 -106
[146] Eg T 129 L3
[147] T 110 L7 to 111 L3
Credit of Tam Lindrum
152It is difficult to reconcile correspondence sent or authorised by Tam Lindrum in 2017 and 2018 with her evidence that Horace had gifted his share of the memorabilia to Irene unless I accept that she was being pressured by the plaintiff in the context of finalising their mother’s estate.
153She also appeared defensive at times during a robust cross-examination, and I had some difficulty with her evidence that she had not discussed Irene’s testamentary intentions prior to her last Will.
154On one view the inconsistency in the evidence - including Tam Lindrum’s instructions to the solicitors in the context of the administration of the Estate of Joyce, her correspondence with Mr Carrigan, wording in Irene’s previous wills and Irene cancelling the Sport Australia Hall of Fame Agreement in 1999 - may be explained by the unsettling, persistent, pressuring conduct of the plaintiff towards an elderly woman to recognise a claim to the memorabilia which was lacking in foundation.
155It seems likely that, whilst not deliberate, Tam Lindrum’s support of Irene’s position over the years, and her own entrenched views have coloured the reliability of her evidence concerning what occurred in 1966. Together with the inherent difficulty of recollections from over 50 years ago, I give no weight to her evidence about discussions in the 1960s between Irene and Horace as to ownership of the memorabilia. It is likely that her evidence was not based upon any specific memory of events so long ago. I am, however, prepared to accept her account of later, casual references to Horace gifting his share on the basis that it is consistent with established facts and the apparent logic of events.
The issues
156I had the benefit of written opening and closing submissions from both parties, in addition to oral closing submissions which exposed the issues set out above.
157The resolution of the plaintiff’s claim turns on the existence of the alleged oral trust; in the alternative, a bailment.
158If the Trust was settled, the plaintiff must overcome the defence of laches; and if the bailment is made out, I must consider whether this claim is statute barred.
159I must also consider whether Horace gifted his share of the memorabilia to Irene.
160I will briefly address the parties’ key arguments – which took the form of both written and oral submissions – in making findings in relation to these issues.
The alleged Trust
161The first time the plaintiff alleged the precise use of the words “trust” and “trustee” during a meeting 57 years ago was in the context of this proceeding, commenced in 2022.
162I regard the plaintiff’s evidence concerning her recollection of the meeting in 1966, when she was then aged around fifteen years, as utterly preposterous.
163I am not satisfied that the plaintiff could specifically recall the time of day, the season, and what she was wearing at a meeting nearly six decades ago; or, if it occurred, that the words “trust”, “trustee” and “beneficiaries” were used.
164She did not accept when put to her in cross examination that the prospects of her remembering clearly recalling a conversation from 1966 were almost zero; or that she was “recounting a conversation which [she] wish had happened, not a conversation that actually did.”[148]
[148] T 91
165The meeting was never documented specifically or otherwise referenced, yet the plaintiff insisted that this meeting resulted in an oral trust or bailment in the same terms between Horace and Irene.[149]
[149] T 92, L 9-10
166The precise issues ventilated in this proceeding were the subject of intense correspondence in 1998 and 1999 between the solicitors for the plaintiff and her mother, and respectively, Irene, in robust terms. The existence of the Trust was not asserted at that time.
167The observations of McLelland CJ in Eq in Watson v Foxman are relevant:[150]
[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed.
[150] (1995) 49 NSWLR 315 at 318, 319
168In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ said:[151]
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.
[151] (2003) 214 CLR 118 at [31]
169In 1999 Irene was alive and competent, the plaintiff’s mother, Joyce was alive, and another key witness to intra-family conversations as to the ownership and treatment of the memorabilia, Frederick Dunn, was also alive. By the time this proceeding was commenced, each of those persons had passed away.
170In order to be satisfied the certainty of intention requirement of a trust at law, I would have to accept the plaintiff’s evidence of the oral trust. I reject her evidence. Her recollection of a conversation that occurred 57 years ago when she was a child is not credible.
171Having rejected the plaintiff’s evidence, it is difficult to see any other basis for identifying the existence of a trust:
…unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the court ought not be astute to discover indications of such an intention.[152]
[152] Re Schebsman [1944] Ch 83 at p 104
172In the absence of any other evidence as to its existence, I am not satisfied that any oral trust in the terms alleged or otherwise was settled in 1966.
173Nor am I satisfied that I should draw any such inference.
174Mr Catlin relied upon a number of pieces of evidence that did not directly prove the existence of the Trust, but were said to give rise to a logical inference that it existed:
(a) firstly, the Eliza Newson file note from 2012.[153] Ms Newson was at the time the solicitor in charge of Perpetual Trustee’s wills and estate planning department, one of the largest and most well-resourced estate management firms in Australia. Ms Newson did not give evidence. As set out above, I am not satisfied that the second and third pages of the file note record Irene’s instructions;
(b) secondly, the July 1998 family meeting agenda,[154] which records that Joyce did not think that Horace had dispersed his share of the memorabilia. Joyce’s use of the words, “according to my understanding” in her agenda is not consistent with her being a witness to the 1966 meeting as alleged by the plaintiff;
(c) thirdly, the change in wording in Irene’s wills, which was said to demonstrate that Irene knew that she did not have an outright interest in the memorabilia. As set out above, I do not accept that characterisation;
(d) finally, the evidence of Mr Ricketts that Irene had signed over half the memorabilia to the plaintiff in 1998. This seems unlikely in light of the contemporaneous correspondence between respective solicitors, and does not sit comfortably with the plaintiff’s pleaded case.
[153] Exhibit AC
[154] Exhibit P
175In my view such an inference involves speculation. The evidence is not sufficient, when considered with the totality of the undisputed facts, to give rise to the inference sought. It certainly does not have a greater degree of likelihood than the competing inference that no such trust or bailment existed.
176Mr Smith pointed me towards indirect evidence that supported a logical inference that a trust did not exist, including:
(a) the lack of written records of the agreement, particularly significant in light of Irene’s clear attachment to the memorabilia;
(b) the absence of reference to the agreement in Horace or Joyce’s will;
(c) the fact that Horace, Joyce or the plaintiff never contributed towards the cost of insurance or security for the memorabilia.
177In circumstances where there is a conflict about what may have been said at a meeting in 1966, it is entirely orthodox for the Court to seek to resolve the conflict by looking at relevantly contemporaneous incontrovertible evidence found in documents and resolving the controversy by drawing available inferences from those documents.
178In this instance there are no such documents, and later documents either do not suggest the existence of the Trust, or otherwise[155] do not assist the plaintiff’s case.
[155] For example the Dunn Statutory declaration, Exhibit O
179I find that:
(a) there is no contemporaneous or subsequent written record by the parties of the existence of the Trust;
(b) there is no evidence that Horace ever asserted it;
(c) Horace made no reference to the Trust in his will;
(d) Joyce, his widow and executor, made no reference to the Trust or the memorabilia in his estate inventory;
(e) Joyce, likewise made no reference to it in her own will, and her 1980 inventory of assets was never produced by the plaintiff; and
(f) none of Horace or his successors contributed to insurance, or security arrangements in respect of the memorabilia.[156]
[156] T 128 L 4-30, T 132, L 1-22
Laches
180I now turn to consider the defence of laches, on the alternative basis that the plaintiff’s claim of an oral trust is made out.
181The defence in this proceeding alleges that:
23. In the period from 1999 to 2019 when the deceased died, the plaintiff acquiesced in the deceased’s absolute and unconditional ownership of the Memorabilia by failing to commence a proceeding asserting an interest in the memorabilia.
24. By reason of the deceased’s death in 2019 and Frederick Dunn’s death in 2005, the defendant is unable to lead evidence from the central witnesses to the matters alleged by the plaintiff in her statement of claim.
25. By reason of the matters set out in paragraphs 22 to 24, it would be inequitable to permit the plaintiff to press her claim such that:
(a) the claim should be barred; and/or
(b) the plaintiff should be estopped from pressing the claim.
182The authorities contemplate a laches defence being made out in two ways. See Streeter v Western Areas Exploration Pty Ltd (No 2):[157]
"The doctrine of laches comprehends two themes. One is delay implying not just quiescence, but rather acquiescence and assent,and the other is delay involving prejudicial change of circumstances."[158]
(emphasis added)
[157] (2011) 278 ALR 291
[158] Ibid, at [635]
183A prejudicial change of circumstances such as sale of property to a third party is not necessarily a requirement of the defence. In Hourigan v Trustees Executors and Agency Co Ltd[159] the High Court held that a loss of information which would be necessary to ascertain the plaintiff’s exact rights could be considered a change of the defendant’s position. In that case, the plaintiff asserted a trust against executors of his mother's will 15 years after her death and 37 years after the conveyance of the property in question. The Court held that there was no trust, and if there was, it was barred by laches.
[159] (1934) 51 CLR 619
184The plaintiff submits that the laches defence is not made out, on the basis that the plaintiff understood that Irene did not intend to move or otherwise convert any of the memorabilia. This, it was said, is supported by correspondence from 1998, where Irene states that she has no intention to move the memorabilia, and also accords with the plaintiff’s “long term understanding” that the memorabilia would stay housed at 158 Kerferd Road. As such, Mr Catlin submitted that no cause of action for breach of trust crystalised until Irene’s death, and the plaintiff’s recent understanding that the memorabilia was being dispersed.
185The defendant submits that the correspondence between the plaintiff, Joyce and Irene in 1998 and 1999 is crucial in establishing the defence of laches. In this correspondence, Irene makes it clear that she rejects the plaintiff’s claim to an interest in the memorabilia.
186In the context of events said to have occurred in the 1960s, rather than issuing proceedings in 1999, instead the plaintiff waited over 20 years, in which time Frederick Dunn, Irene and Joyce have passed. The defendant has been prevented from calling evidence from Irene and Frederick Dunn. The prejudice to the defendant is very significant, and irremediable.
187I find that due to the plaintiff’s inaction, the defendant has been placed in a situation where it would be inequitable to grant the plaintiff’s asserted remedy. The defence of laches is made out.
188The Carrigan letter of October 2017 may provide some basis for delay on the part of the plaintiff in the context of the laches defence, but only from 2017. I find that the defence had crystalised by 2017, when critical witnesses were deceased or, in Irene’s case, incompetent.
The plaintiff’s claim as a beneficiary under Beryl’s Will
189In the absence of the existence of the Trust or a bailment, any claim the plaintiff has to a half interest in the memorabilia relates to any subsisting interest pursuant to clause 7 of Beryl’s Will. This was not pleaded by the plaintiff, and I did not hear full argument on the point, so it is not strictly necessary to make findings on this aspect of the dispute. Nevertheless the defendant pleaded that the plaintiff’s claim to a half interest is statute barred by reason of s 22 of the Limitation of Actions Act 1958, and to the extent I might be required to do so, I make the following findings.
190Sections 21 and 22 of the Limitation of Actions Act 1958 relevantly provide as follows:
21 Limitation of actions in respect of trust property
(1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action—
(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or
(b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.
…
22 Actions claiming personal estate of a deceased person
Subject to the provisions of subsection (1) of the last preceding section no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of fifteen years from the date when the right to receive the share or interest accrued.
191It is not in dispute that Walter died intestate in 1960, and his estate passed to Beryl.
192Beryl’s final will was executed on 20 September 1963.[160] Upon her passing in 1965, probate was granted on 15 September 1965.[161] In her Will, she bequeathed the memorabilia to Irene and Horace as follows:
“7. I BEQUEATH free of all duties all the treasured records pictures and other commemorative items relating to my late husband’s career as a Professional Billiardist together with the contents of the billiard room at 158 Kerferd Road Albert Park aforesaid unto such of them the said Horace Lindrum and the said Irene May Dunn as shall survive me if more than one equally between them absolutely.”[162]
[160] Last will and testament of Beryl Elaine Lindrum dated 20 September 1963, JCB 1164
[161] Exhibit EP
[162] Exhibit EO
193Horace died on 20 June 1974[163] and his last Will dated 27 May 1973 provided:
"4. I GIVE DEVISE AND BEQUEATH the whole of my Estate both real and personal of whatsoever kind and nature and wheresoever situate unto my wife the said JOYCE DOREEN LINDRUM absolutely.”[164]
[163] Exhibit ES
[164] Exhibit ER
194Horace’s Will further provided that in the event that he is predeceased by Joyce or does not survive him in a period of a month of his death, his estate is bequeathed to his daughters, Janne and Tam, equally.[165] Joyce survived him and did not pass until 25 October 2016,[166] leaving Horace’s share of the memorabilia to her.
[165] Ibid
[166] Exhibit ET
195When Joyce passed away in 2016, her final Will dated 11 October 1996 provided that the residue of her estate after meeting all obligations be divided in equal shares between her daughters, Janne and Tam:
“6. I GIVE DEVISE AND BEQUEATH unto my Trustees the rest and residue of my real and personal property of whatsoever nature and wheresoever situate UPON TRUST to sell convert into money if necessary and to collect the same with power to my Trustees to postpone the sale calling in and conversion or the whole or any part thereof for so long as they shall in their absolute discretion think fit and to pay all my just debts funeral and testamentary expenses and also all Probate Federal Estate Succession and other like duties leviable at my decease in respect of my estate and to stand possessed of the balance of my Estate UPON TRUST for such of my said daughters who shall be living at the date of my decease if more than one as tenants in common in equal shares.”[167]
[167] Ibid
196Horace’s rights, and those of his successors, as a beneficiary of Beryl’s estate accrued at the time of Beryl’s death in 1965. Under s.22 of the Limitation of Actions Act 1958 he had 15 years to enforce his rights.[168]
[168] see Nolan v Nolan [2004] VSCA 109 at [51]
197I find that the plaintiff’s claim as a beneficiary is statute barred.
Bailment; conversion
198I infer from the memorabilia remaining at 158 Kerferd Road following Beryl’s death in 1965 a bailment in respect of Horace’s half share pursuant to Beryl’s will, from Horace to Irene.
199Although a bailment, there is no evidence of the terms. I have rejected the plaintiff’s evidence as to the Trust, and it follows therefore that I reject her evidence as to the terms of any bailment alleged by the plaintiff in the alternative claim.
200I return to the difficulty the plaintiff’s claim faces in that none of the persons involved in the alleged meetings in the 1960s or 1970s was available to give evidence, as they had passed away some years before this proceeding was issued, in some instances decades ago.
201By paragraph 17 of her statement of claim, the plaintiff pleads that Irene converted the memorabilia to her own use.
202If I assume there was a bailment, then the solicitors and correspondence in 1998 and 1999 assumes significant importance.
203If the dealings in respect of the memorabilia in 1966 resolved into a bailment, then any claim for conversion was statute barred if it arose in 1999. Mr Catlin’s submissions were to the effect that the correspondence in 1998 and 1999 did not disturb the bailment. I reject that submission. Irene’s solicitors at this time made it clear in no uncertain terms that she did not recognise any ownership of Horace in the memorabilia. Such conduct was plainly in sharp contradistinction to any bailment arrangement then in place and could not have been understood otherwise.
204There are various ways conversion may arise. In this matter, the potential conversions are:
(a) wrongfully selling a chattel when the Gold Cup was auctioned off by Irene in around 1992; and
(b) wrongfully retaining chattels when Irene’s solicitors rejected the plaintiff’s claim to the memorabilia from February 1998[169] to March 1999.[170]
[169] Exhibit AM
[170] Exhibit 4
205Walter bequeathed the Gold Cup to Irene prior to his death,[171] and accordingly I find that the sale of the Gold Cup in 1992 was not an act of conversion. Nevertheless, arguably the cause of action accrued in 1992.
[171] Exhibit C
206I find that the relevant date of conversion for the purposes of establishing the date the plaintiff’s cause of action arose is 1 March 1999 when Irene, through her solicitors, squarely rejected the claim of Horace’s beneficiaries in relation to the memorabilia.
207Time commences to accrue from the date of conversion and a limit of six years from the cause of action is imposed by section 5 of the Limitation of Actions Act 1958. The period of limitation expired six years later on 1 March 1999.
208A successive conversion does not extend the limitation period: time starts to accrue from the date of the original conversion.[172]
[172] Limitations of Actions Act 1958 (Vic) s 6(1)
209The plaintiff’s claim in conversion is statute barred.
Did Horace gift his interest in the memorabilia to Irene?
210The plaintiff submits:
(a) there is no explanation offered by the defendant as to why Horace would gift the memorabilia to Irene;
(b) I should ignore the 1998 statutory declaration of Mr Dunn;
(c) the letter from Irene to the Australian Olympic Committee on 15 December 1999 is inconsistent with Irene’s absolute ownership of the memorabilia.
211On the basis of all of the evidence, I find that a gift occurred based upon:
(a) the conduct of Irene over the years from 1965 to 2019;
(b) the contents of the Dunn statutory declaration;
(c) Horace never asserting his ownership of half of the memorabilia at any time during his lifetime;
(d) Irene never acknowledging Horace’s purported ownership in the memorabilia at any time before his death in 1975, or since;
(e) the interest not being included in the inventory of the assets and liabilities of Horace’s estate prepared by his wife, Joyce, in December 1974.[173] If it subsisted, I would expect it to have been included because the memorabilia was not in Horace’s possession, on any view, at the time of his death;
(f) Joyce not asserting the interest in her own Will.
[173] Exhibit ES
Was there a further agreement between Horace and Irene in or about 1998 or 1999?
212On 21 December 2021, the plaintiff filed particulars of paragraph 12 of her statement of claim in these terms:
Agreement was reached at a family meeting on 06 July 1998, that the Horace Lindrum family would honour the Trust and not seek to recover the assets unless the deceased sold the house or passed away. In attendance at that meeting were:
The plaintiffs Mother [Joyce]
The plaintiffs eldest son, Michael Ross Lindrum Shortall
The plaintiffs sister, Tam (Tammy) Lindrum
The Plaintiff
213An agenda for this meeting was tendered.[174] The agenda does not refer to any trust. Nor is there any mention of the word ‘trust’ or ‘trustee’ as being expressed in a conversation in 1966 in any other correspondence during 1998 or 1999.
[174] Exhibit P
214Irene was not present at this meeting, so it does not bind her. At the time Irene was represented by solicitors who were asserting on her behalf absolute ownership in the memorabilia.
215In the course of cross examination, the plaintiff alleged a further (non-pleaded) oral agreement in or about 1999 between Joyce and Irene[175] to the effect that Irene undertook not to dispose of items in the billiard room. This evidence was not led in chief. I reject it. It was not documented at the time by her or her lawyers; not referred to when she was self-represented; not pleaded by her when she was represented; and not opened by her counsel.
[175] T 113-114
216I find it glaringly improbable that this later agreement was not documented in the context of the recent exchange of correspondence between the solicitors in 1998 and 1999. I regard the plaintiff’s evidence of this subsequent agreement between her mother and Irene as a recent invention.
The Gold Cup
217The plaintiff’s claim in relation to a gold cup she alleges was given by Beryl to Horace[176] also fails.
[176] Statement of claim, paragraph 11
218It is not in dispute that in 1992, Irene sold a gold cup and a pocket watch formerly owned by Walter Lindrum at a Sotheby’s public auction.[177]
[177] Exhibit 1
219The evidence establishes that the gold cup had been gifted by Walter to Irene in December 1958.[178] A letter sent to Horace from the Lindrum family solicitors, Coltman, Wyatt & Anderson dated 24 April 1963[179] is entirely consistent with the handwritten note.
[178] Exhibit C
[179] Exhibit AE
220The claim appears to be misplaced, as Beryl’s will did not gift the cup, only a picture of it.[180] There is otherwise no evidence of a gift from Beryl to Horace to support this claim.
[180] Exhibit EO, at clause 4(a)
Ruling: Sydney Morning Herald newspaper article
221The defendant objected to the tender of a Sydney Morning Herald article written by Greg Baum entitled ‘The Lindrum Legacy’ dated 14 August 2010.[181] Mr Baum was not called as a witness, and the document was not proved in any other manner.
[181] Exhibit FA, JCB 774
222Mr Catlin sought to show Mr Cosgriff the article to “refresh his memory” as to what he had said to Mr Baum about what Irene had said to Mr Cosgriff. It was also urged upon me that I allow the document to be shown to the witness and ultimately tendered as part of a “newspaper of public record”. For his part, Mr Smith submitted that the article was not Mr Cosgriff’s document, and irrelevant in any event:
Your Honour, the issue is whether there was an agreement reached in 1966 or not, and this witness has no knowledge of that. Now, what he could have knowledge of is statements made by the deceased that are either consistent or inconsistent with the existence of that agreement, but that is it. Now, statements made by him to third parties are utterly irrelevant. So the statement made by him to Mr Baum has absolutely no evidential value.
223On that basis I sustained the objection and Mr Cosgriff was not shown the article.
224I allowed Mr Catlin to lead evidence, however, from Mr Cosgriff about his conversations with Irene, and indicated I would include in my ruling reasons as to why the document is not admissible in this proceeding.
225Conceding that it is second hand hearsay,[182] Mr Catlin submitted that:
in terms of its evidentiary value to you, I say it is an important statement which is consistent with a raft of other third parties' evidence.
[182] See s62, Evidence Act 2008
226In addition to being second hand hearsay, there is no evidence that the maker of the statement, Mr Baum, was unavailable to give evidence.[183]
[183] See s63, Evidence Act 2008
Conclusion
227The plaintiff’s claim is dismissed. I will hear the parties as to the form of final orders and as to costs.
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