Long and Long

[2016] FCCA 1098

FEDERAL CIRCUIT COURT OF AUSTRALIA

LONG & LONG [2016] FCCA 1098

Catchwords:
FAMILY LAW – Property – enforcement − whether party bailee of property pending collection husband − whether party liable in detinue.

Legislation:

Family Law Act 1975 (Cth), ss.79A(1)(b), 117

Applicant: MR LONG

Respondent: MS LONG

File Number: DGC 537 of 2012

Judgment of: Judge Phipps

Hearing dates: 18, 19 November & 4 December 2015

Date of Last Submission: 4 December 2015

Delivered at: Dandenong

Delivered on: 19 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Trim

Solicitors for the Applicant: Julie Taylor

The Respondent: Appearing on their own behalf

ORDERS

1. That the wife within 14 days nominate a date on which the husband may attend between 9.00am and 4.00pm at Property S to collect the following items:

   (a)(omitted) 12 feet offset discs for (omitted) tractor;

   (b)Makita 14 inch wood drop saw; and

   (c)1800mm × 1800mm steel plate purchased from (omitted).

2. That there be no order as to costs.

3. Otherwise all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Long & Long is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 537 of 2012

MR LONG

Applicant

And

MS LONG

Respondent

REASONS FOR JUDGMENT

1. The parties settled their matrimonial property dispute with final orders made by consent in the Family Court of Australia on 18 October 2013.  Among other things, the order provides that the husband is entitled to collect various items of equipment and machinery located on the wife’s farm where the parties lived during their cohabitation.  This necessarily involved the husband attending at the farm to collect the items.  These proceedings are a dispute about some of those items.  The order also provided for the husband to return a bulldozer to the wife.

2. The original claim by the husband was for about 28 items then upon their collection he would return to the wife a (omitted) Bulldozer.

3. The wife’s response initially proposed alternative orders:

   a)An order pursuant to s.79A(1)(b) the Family Law Act1975 (Cth);

   b)In the alternative compliance with the orders by the applicant is impractical and should be set aside; and

   c)In the alternative an order varying the order to enable compliance.

4. An amended response filed on 5 November 2015 added the following:

   a)That the husband was entitled to collect the items in the schedules only up until 18 December 2013 (unless otherwise agreed in writing between the parties) and after that the items remaining shall remain the property of the wife;

   b)That the husband return the property of the wife the items removed by him from the wife’s property:

   i)the wife’s tools, 2 long heavy chains owned before marriage, four load binders, being half of the new ones bought which the husband removed, steel poled scaffold, two lengths of steel rope;

   ii)the wife’s motorbike trailer plus the crate given to her as a present prior to the marriage;

   iii)block of steel benchtop from the old shed near the dairy taken in lieu of the steel plate at the carport removed in April 2015; and

   iv)pasture harrows removed in April 2015.

   c)The husband pay the wife the amount of $2,000 to repair damage to the bulldozer;

   d)The amount of $3,000 for reinstatement and repair of the wiring to the pump;

   e)That upon payment to the wife the sum of $6,500 by the husband and the completion of re-stumping of the shed the wife will make the gantry beams available for collection at an agreed place and time no later than 21 days after the completion of the re-stumping upon the proviso the husband has returned to her the items listed in (b);

   f)The husband pay to the wife the amount of $300 to enable her to ensure the removal of the steel plate in front of the carport and the reinstatement of the area and the wife shall make the steel plate available for collection at an agreed time and place no later than 21 days after completion of the reinstatement upon the proviso the husband has returned to her the items listed above.

5. A consent order on 24 March 2015 provided:

   a)the husband attend at Property S to commence removal of items he is to retain pursuant to order 5 of the final orders dated 18 October 2013 except for the steel plate near the  carport and the steel beams underneath the shack on dates as follows between 9.00am and 4.00pm:

   i)Tuesday 14, 21 & 28 April 2015;

   ii)Thursday 16, 23 & 30 April 2015.

   b)The wife is to ensure that all the husband’s items are present at Property S from 13 April 2015, to the extent she is aware of the whereabouts;

   c)On or before Tuesday, 14 April 2015, the husband to return to Property S the (omitted) Bulldozer, and that failure to do so will result in the wife refusing the husband access to collect the husband’s items.

6. Other terms provided for the point of access, notification if the time became inconvenient and the husband being accompanied by third parties.  The order contain notations:

   a)The wife intends to argue that it is not practicable to comply with the orders relating to the husband removing the steel plate and steel beams referred to in order 1 herein, and pending the hearing of this matter the husband maintains his right to remove them;

   b)The husband believes he will require more than the time provided for in these orders to collect all of the husband’s items.  If this cannot be negotiated with the wife, the husband reserves his right to seek orders for more time in the next Court date;

   c)The wife intends to argue the husband is not entitled to retain the (omitted) Discs.

7. After the order of 24 March 2015 the husband, with the assistance of others, attended at the wife’s property and retrieved a number of items.  He delivered the (omitted) Bulldozer.  The wife alleges the bulldozer was returned with the headlights and tail lights missing, it required a new battery, it had a rusted bonnet and the clutch on one of the steel tracks was worn out.  She claims $2,000 for the cost of repairs.

8. By the end of the hearing on 4 December 2015 the items the husband was claiming were:

   a)40 foot gantry beams × 6.  These beams are the beams under (omitted) Shed;

   b)(omitted) 12 feet offset discs for (omitted) tractor;

   c)1800mm × 1800mm × 50mm steel plate;

   d)Makita 14 inch wood chop saw (A mistype for drop saw); and 

   e)Posthole digger;

   f)(omitted) Harrows;

   g)Damages or compensation for a Log Beak.

9. The wife’s claim at the commencement of the hearing was as set out in the amended response.

10. The steel beams, six in number, referred to in the notation to the 24 March 2015 order were at the time of the October 2013 order underneath a shed or shack known as “(omitted) Shed”.  At the hearing of the dispute the wife’s position was that the husband was entitled to the beams but he should replace them with stumps.  The husband’s position was that he was only required to put temporary support under the shack and this could be done by using wooden pallets that are on the wife’s property.

11. At the end of the hearing on 4 December 2015 I had come to the conclusion that the husband was entitled to remove the six beams.  The evidence showed that in practical terms this meant lifting the shed, removing the beams and then putting adequate temporary support under the shed.  The dispute over the posthole digger and (omitted) Harrows was resolved.  The wife had found them on the property.  I made orders on 4 December 2015:

    a)That commencing 22 February 2016 and concluding 26 February 2016 the husband attend at Property S with such equipment and assistance as necessary and remove the 6 steel beams under the building “(omitted) Shed” leaving the building with adequate temporary support on material supplied by the wife;

    b)That the wife permit the husband to attend as directed in paragraph (a) and supply material as described in paragraph (a); and

    c)That the husband attend on 14 December 2015 at Property S and collect the posthole digger and the (omitted) harrows referred to in the order made 18 October 2013.

12. The order made in the Family Court of Australia on 18 October 2013 provided for the wife to transfer her interest in a property at Property L to the husband, the husband refinance the mortgage over the property and pay the wife two amounts which totalled $15,000.  It provided that the wife be solely entitled to her farm property at Property S.  So far as the current dispute is concerned the order had the following paragraphs:

    5. That the husband be at liberty to collect from the Wife’s property all of the items in Annexure A hereof and the items marked with a line in Annexures B and C hereof and where there are two of any item the husband shall only be entitled to one of those items.

    6. That the husband shall return to the Wife the (omitted) Bulldozer.

    7. That for the purposes of paragraphs 5 and 6 hereof each party shall cooperate with each other as to making the items available and as to providing access to the items at reasonable times and the parties may use such reasonable assistance as is necessary to collect and deliver such items.

    8. That save as otherwise provided herein the parties each retain any real or personal property in their possession as at the date of these orders and each forgoes any claim to any superannuation interests, pension payments and insurance benefits in the name of the other.

13. The steel beams are in Annexure A.  The item is:

    40’ long gantry beams 10’’ × 6’’ approx (6 under (omitted)’s old shack, 5 near road near pine logs plus pile of beams & steel (omitted) railing & army budge beams & yellow gantry beams (provided none are attached to said shack.

14. The shack was originally on stumps next to its location on the beams.  The husband had made up the beams into a frame and then dragged the shack onto them.  The description of how they were placed and photographs show that they were not attached to the shed.  The shed rested on them and stayed there by reason of its weight.  This was the condition when the order was made on 18 October 2013.  The words “provided none are attached to said shack” are handwritten which suggests the parties, or at least one of them, had some doubt about whether there was any method of attachment.  Apart from that both parties knew that the shed was on top of the steel beams.  The only way for the husband to collect them was by removing them from underneath the shack.

15. The wife’s assertion that collection of the beams was impractical is not correct, nor her other assertion that the husband should replace the shack on stumps or pay for the cost of replacing on stumps.  The removal was practical although it would require suitable equipment and effort.  The husband’s proposal was that he should replace the steel beams with wooden pallets belonging to the wife already on the premises.  The wife’s response to that was the area is wet and the pallets would rot.

16. The husband could not be required to go beyond the expense involved in removing the steel beams.  The order does not say so.  In practical terms, the steel beams had to be replaced with something and to make the order work that something had to be supplied by the wife.  It is a necessary implication in the order.

17. The log beak is in Annexure B.  The item is:

    Excavator with log break rock bucket

18. The excavator and bucket have been collected by the husband.  Log break is a mistype for log beak.  A log beak is a device that fits onto the end of the arm of an excavator and picks up logs.  It has disappeared.  It was on the premises in the first part of 2014 but was not by March 2015 when the order of 24 March 2015 was made.  The husband now claims the cost of replacement, $9,350.  This is the cost of the purchase of a second-hand log beak and its modification to suit the husband’s excavator.  Adequate expert evidence proves this is a reasonable cost.

19. The husband’s claim requires some explanation of the circumstances in October 2013 and what occurred afterwards.  The items in the three annexures which the husband was to collect number about 105.  Some are large pieces of machinery and equipment and others are broadly described collections of items of various sizes.  They were in various parts of the wife’s dairy farm, a hilly property of over 200 acres.  The log beak, when last seen by the wife, was out in a paddock.  It was in one position in October 2013 and she had moved it or had it moved to another position for shelter.

20. Following the orders the husband attended at the premises on 16 occasions up until December 2013 and collected a number of items.  At that time the wife took the view that he had two months to collect the items and was not entitled to attend after 18 December 2013, although in correspondence between her and the husband’s solicitor in early 2014 she did make an offer that he could attend on one more day.

21. By 18 December 2013 the husband had not returned the (omitted) Bulldozer to the wife.  Correspondence commenced between the husband’s solicitor and the wife which resulted in a stand-off.  The husband, through his solicitor, said he would return the bulldozer after he collected his items.  The wife wanted the bulldozer returned first.

22. The order of October 2013 required the parties to cooperate.  The wife based her view that two months was the time to collect the items on what she says she was told by her barrister at the time the settlement was negotiated.  She said her barrister told her that he and the other barrister had agreed that two months was the time.  This time limit is not in the order and so was not part of the conditions under which the husband was to collect the items.  Of necessity, the implication must be that the time was to be a reasonable one in all the circumstances.

23. So far as the log beak is concerned I do not need to decide what was a reasonable time.  After December 2013 the wife refused the husband permission to attend at her farm.  Then the stand-off commenced with the husband saying he would not return the bulldozer until he had collected his items and the wife demanding the return of the bulldozer before the collection.  The October 2013 order required the parties to cooperate for the collection of the items.  Both were in breach.

24. The wife was the away for a period in 2014, commencing late May in (country omitted) and then Sydney and she had some significant medical treatment.  It was after she returned to the farm that she observed that the log beak was no longer there.  Given the poor relationship between the parties and the distrust between them, I consider it reasonable that the wife would not permit the husband to attend while she was away.

25. The log beak was still at the wife’s farm at the point where the wife would have permitted him to come on the premises if he had returned the bulldozer.

26. The husband puts his claim for payment by the wife of the cost of a new log beak as damages for detinue or for breach of the wife’s duties as a bailee or in negligence.  None of these provide the answer.  The answer must come from the terms of the order and the known circumstances at the time the order was made.

27. When the order was made the log beak was out in the open in a paddock.  The husband knew this because he had left it there.  One of the husband’s arguments is that the wife should have secured it in some way or insured it.  Neither is correct.  When the order was made the log beak was in the open in a paddock.  The husband was entitled to collect it.  The wife was not required to do anything to it.

28. The husband had access to the wife’s premises on 16 days between October 2013 and December 2013.  He could have had access for more days and longer times than he did on those days.  His explanation is that he required assistance and the friend who was assisting him is a dairy farmer and so had limited time.  That might be so but the evidence shows that the husband could have collected all the items well within the two months if he had employed the necessary resources.  Once the order was made on 24 March 2015 he was able to collect a significant number of items over six days.  He could have had access after that date if he returned the bulldozer

29. If the log beak had disappeared immediately after the order was made in October 2013 the husband would have had no cause for complaint.  The wife’s obligation under the order went no further than to cooperate with the husband.  She had no obligation to deliver the log beak to the husband.  She had no obligation beyond permitting the husband to come onto the premises to collect it.  She did not deprive him of possession and so it is not the tort of detinue.

30. The husband was not entitled to make the return of the (omitted) Bulldozer conditional upon his collecting the items.  He was obliged to return the bulldozer and the implication is that that would be in a reasonable time, and that certainly would have been within two months.  The parties are equally at fault for the stand-off which resulted once correspondence started.

31. Given that the wife had no obligation beyond cooperating with the husband so that he was at liberty to collect the log beak she had no responsibility to keep it safe.  The risk that it might disappear was always there.  The risk was on the husband.  The wife had no obligation to insure it.  The husband could have done so if he wished to.  There is no basis for finding that the wife is liable in damages to the husband for the loss of the log beak.

32. She was not a bailee.  The husband did not put the log beak into the wife’s possession in circumstances where she was obliged to return it.  The circumstances of the log beak were governed by the order of October 2013.  The husband was at liberty to collect the log beak and the husband and wife had to cooperate with each other.

33. The husband is entitled to the (omitted) 12 feet offset discs for (omitted) tractor.  This is in Annexure B with a line next to it.  The wife’s argument is based on an interpretation of the final words in paragraph 5 “and where there are two of any item the Husband shall only be entitled to one of those items”.

34. An item in Annexure A is “Set of (omitted) discs trailing offsets”.  These are in the husband’s possession.  The wife argues that since he already has one set of discs he is not entitled to another one.  This is not the correct interpretation of paragraph 5.  Paragraph 5 allows the husband to collect “all of the items in Annexure A hereof and the items marked with the line in Annexures B and C hereof.  The three Annexures A, B and C are tables with each item contained in a separate row or box.  The qualification applies when there are two of the items described in one of these separate rows or boxes, not if there are similar or even identical items in separate boxes.  The latter is two items not “two of any item”.

35. The wife makes the same argument for the Makita 14 inch wood drop saw.  It is in Annexure C.  An item in Annexure A is “10’’ Makita drop saw on green stand”.  The husband has this saw and so the wife argues that there are two items and so she is entitled to keep the 14 inch saw.  This is not the correct interpretation.  The husband is entitled to the 14 inch saw.

36. The husband is entitled to be 1800mm × 1800mm steel plate purchased from (omitted).  Except for the claim that the husband had agreed to keep another piece of steel the wife ultimately did not dispute the husband’s entitlement but says it should be on condition that he fill in the depression the removal will leave or pay an amount to her for the cost of doing so.  The steel plate is on the ground in front of the carport.  Over time it has sunk down into the ground but not a great distance.  The ground around is not paved in any way and the top of it is more or less level with the ground.  A vehicle can drive across it to enter the carport.

1. The wife says the depression will become muddy and will restrict or prevent access to the carport.  The steel plate was in this position when the order was made on 18 October 2013.  Paragraph 5 allows the husband to collect the items.  The steel plate can be collected by lifting it without disturbing the ground any further.  There is no implied requirement for the husband to fill the depression left once the steel plate is removed.

2. The wife alleges that when the husband attended at her farm on 30 April 2015 he took a block of steel which was at the dairy.  The wife said she told him it was not on the list.  He said it went with a set of legs he removed from the property earlier that month.  She says she said to him he could have it instead of the steel plate and that he said “I am not going to argue, whatever”.

3. The conversation the wife alleges, if it took place as she alleges, is not sufficiently certain enough to amount to an agreement to vary the order or waive compliance.  From the evidence of both parties I cannot form any conclusion about the block of steel.  The wife says it was part of a steel bench from the dairy.  Without more I cannot determine whether it was part of a description in one of the other items.  Even if the husband did take it I am not satisfied that there was agreement to take it instead of the steel plate.

4. The first of the wife’s claims in her amended response is the return of the wife’s tools, 2 long heavy chains owned before marriage, four load binders, being half of the new ones bought which the husband removed, steel poled scaffold, two lengths of steel rope.  While there is some dispute about whether or not these items were removed by the husband, the wife’s evidence is that they were all removed after separation in 2010 and before the making of the order on 18 October 2013.  They are covered by paragraph 8 of the order, the residual ownership clause, under which each party retains property in their possession unless otherwise provided in the order.

5. These items were in the possession of the husband on 18 October 2013.  They are not specifically provided for in the order so paragraph 8 means that the husband is entitled to retain them.

6. The next item is the motorbike trailer and crate.  During the hearing the husband agreed to return these items.

7. The next item is block of steel benchtop from the old shed near the dairy taken in lieu of the steel plate at the carport removed in April 2015.  I have already dealt with this.

8. The wife claims $2,000 to repair damage to the bulldozer. The (omitted) Bulldozer belongs to the wife’s nephew.  It was on the farm at Property S but was moved by the husband to an area in the (omitted) and used there by the husband well before October 2013.  He says in October 2013 the bulldozer was in the same condition as when returned.  The wife is unable to contradict this.  The order of October 2013 does not require the bulldozer to be in any particular condition when it is returned.  The implication is that it be returned in the condition it was in at the date of the order.  The only evidence is that it was.

9. The wife claims $3,000 for reinstatement and repair of wiring to a pump.  The pump was on a creek and was used to pump water to the second dwelling on the property and some dams.  The pump is in Annexure A.  The husband was entitled to remove it.  He was not obliged to replace it.  The wife alleges wires were cut.  I am satisfied the husband, or someone on his behalf, did no more than was necessary to remove the pump.  It may have been discourteous on the husband’s part to remove the pump without informing the wife and so giving her the opportunity to replace it but the October 2013 order did not require him to do this.

10. The result is that the husband is entitled to collect the (omitted) 12 feet offset discs for (omitted) tractor, the Makita 14 inch wood drop saw and the 1800mm × 1800mm steel plate purchased from (omitted).

11. The husband applies for an order that the wife pay his costs, but limited to his barrister’s costs, $7,700. Costs are provided for in s.117 of the Family Law Act 1975 (Cth).

12. The financial circumstances of the parties are that each owns substantial property.  The husband’s submission is that the wife’s farm is valued at $900,000.  There is no direct evidence before me in these enforcement proceedings but a dairying property of 200 acres at (omitted) must have substantial value.  Although it does have substantial value, I am satisfied the wife’s income is modest.

13. The husband submits that the proceedings have been brought about by the wife’s failure to comply with the orders.  That may be so but he also failed to comply with the order.  He did not return the bulldozer.  In addition, I am satisfied that if he had employed adequate assistance and resources he could have collected all the items not in dispute by 13 December 2013.  The wife permitted access during this period.

14. Following the return of the bulldozer pursuant to the order of 24 March 2015, the wife continued to dispute items as already described.  Nonetheless, the husband has been unsuccessful in significant parts of his claim.  The items he has recovered and will recover following the return of the bulldozer are of modest value.  The appropriate exercise of discretion is to make no order for costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 19 May 2016