Manning v Weston

[2012] QDC 338

DISTRICT COURT OF QUEENSLAND

CITATION:

Manning v Weston [2012] QDC 338

PARTIES:

JOHN FREDERICK MANNING
(plaintiff)

v

KARINA LOUISE WESTON
(defendant)

FILE NO:

D21/2008

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

9 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

19, 20 March 2012

JUDGE:

McGill SC, DCJ

ORDER:

Judgment for the defendant

CATCHWORDS:

TROVER AND DETINUE – Cause of action – action to recover money in cash tin – credibility – failure to discharge onus of proof.

COUNSEL:

The plaintiff appeared in person
A G McKean for the defendant

SOLICITORS:

The plaintiff was not represented
Charltons lawyers for the defendant 

1. This is an action strictly speaking for detinue in respect of a quantity of cash in a tin box.[1]  The plaintiff says that a tin cash box containing a quantity of cash which belonged to him had been hidden by him in a motor vehicle before the defendant wrongfully took possession of the vehicle, and was missing later when the police searched the vehicle.  He invites me to draw the inference that the defendant located, removed and kept the box and the money it contained, something the defendant denies.  The defendant’s case is that she knows nothing about any money in a tin box and if it ever existed, she did not take it.  The parties were for a time in a de facto relationship, but that relationship had come to an end prior to the time when the motor vehicle was removed.

   [1]Such an action is possible, although detinue does not ordinarily lie for unascertained goods such as currency:  Bullen & Leake, Precedents (3^rd ed 1868) p 312.

1. The parties did not even agree on who owned the motor vehicle, a panel van, although it was common ground that it had been owned originally by the plaintiff.  He said he had owned it for some 15 years; it was unregistered but driveable: p 20.  The defendant claimed that, before the relationship between them developed, she purchased the vehicle from him, and that thereafter it was, and indeed remained hers.[2]  The plaintiff denied this, and said that the vehicle was in his storage shed during the relationship: p 23.  His account was that he had previously had in a safe deposit box at the bank a tin box containing a quantity of cash, but about six months before the end of the relationship he removed this box and its contents from the safe deposit box, and hid it in the back of the vehicle: p 21.  During the relationship the defendant had been to the bank while he had accessed this box, and she had come into the bank when he removed the tin box from it, and she was present when he hid it in the panel van.[3]  After the relationship broke down the vehicle was removed from the storage shed; he saw it afterwards in a different shed, and later recovered possession of it.  However, the box and its contents were not there.

   [2]Defendant pages 49, 24-5, 45.

   [3]The defendant denied all of this: pp 50-51

1. There is very little independent confirmation of any part of the plaintiff’s story.  That he had at one time a safe custody box with a particular bank was confirmed by an officer of the bank,[4] who was called in circumstances which suggested that he thought that she would be able to confirm that on a particular day the defendant was at the bank when he removed the tin box from safe custody.  However the bank officer was not able to recall that, though she said that on a particular day he did attend the bank and had access to the safe custody box.  There is no evidence to confirm the existence of the money, or its amount, nor is there any independent evidence to confirm that it was hidden in the back of the van.  These matters depend entirely on the evidence of the plaintiff, who carries the onus of proof.

   [4]This is also confirmed by the bank document Exhibit 9, which dates the removal as 26 July 2006.

The plaintiff’s version

1. The plaintiff said that he had been a self employed furniture removalist for some time, and met the defendant when he moved her possessions from Bundaberg to her sister’s place in Brisbane: p 19.  Subsequently they started a relationship and she moved into his premises in Bundaberg; he was vague about when this occurred.  Eventually he broke off the relationship, and she accused him of assaulting her and took out a protection order against him.  In connection with this he was ordered to return to her about six items, which he returned, but he complained there were other actions taken by her against him.  For example, the police came to his premises on one occasion to say that his truck had been deregistered, and it emerged that it had and he had to re-register it.[5]  While the police were speaking to him about this the defendant came to his premises and went in, ostensibly to collect some property of hers, although he did not see her remove anything.

   [5]Plaintiff p 27.  The defendant admitted she had deregistered the truck, she said on legal advice after the relationship ended, because it was registered in her name: p 29.

1. Subsequently police spoke to him about a complaint she had made about there being a knife and a gun in his shed: p 20.  This was a self storage shed in which he had property, including the panel van.  After he spoke to the police he went to the shed, unlocked the padlock on the door with his key, and found that the panel van was gone: p 20, p 22.  A couple of other items were missing, but most things that he had there were still there including various items which had been in the panel van or placed behind it: p 25.  He was concerned to recover the panel van, but recovered it himself later.  His greater concern was to recover the tin box and its contents, which had been hidden between the right rear wheel arch and the right tail light in the panel van: p 21.  He complained about the theft to the police on 5 September 2006.[6]

   [6]This emerged during his cross-examination.  I do not recall and have no note of whether the date was put to him, or whether he refreshed his memory from a document.

1. He said that after the van and the cash tin were removed from the shed he restarted the relationship with the defendant for a short time, in the hope of recovering those items.[7]  During this period she admitted to him that she had the van and the money, and at one stage claimed to have put the money in another safe deposit box.  The defendant showed him where the panel van was, but said the money was not there because she had put it in a bank: p 30.  He asked for the return of the cash but she told him various stories to put him off: p 31.  At one stage she told him that it was in a safe deposit box in the bank in Maryborough and on 29 September 2006[8] he went down with her to Maryborough, and took her to the bank, but she did not return the money, instead taking refuge in an office where she telephoned the police and had him charged with breach of the protection order: p 33.  She did not voluntarily return either the van or the money, and as a result he again broke off the relationship.  She told him that she wanted to rent her house out and he moved her property into storage, but it was subsequently moved again by someone else: p 29.  After the relationship came to an end again the plaintiff went to the shed where the panel van was stored and took it back: p 37.

   [7]Plaintiff p 26.  He also claimed she had told him she would return the car and the money if he resumed the relationship (p 29) and later that she would not return the money because if she did he would leave her: p 32.  She denied this, but said he was the one who wanted the relationship to continue:  p 4.

   [8]This date is from the defendant’s statement to the police about the incident made that day, Exhibit 1

1. Unfortunately there is no transcript of the evidence for the early part of the afternoon.[9]  After lunch the plaintiff called Ms C Barnes, a customer service officer with the Commonwealth Bank in Bundaberg, who was able to confirm that the plaintiff had a safe deposit box at the bank.  She had some recollection of seeing some sort of box kept in it, on occasions when the plaintiff accessed that box.  The plaintiff had to sign in and out in order to access the box, so the bank had records of this; she had not brought those records to Court.  She did not know the defendant, either as a customer or otherwise, and did not recall having attended the plaintiff at the bank at a time when the defendant was with him.  There was a different branch of the bank at a shopping centre in Bundaberg.  She was not cross-examined. 

   [9]Apparently those responsible for monitoring the courthouse at Bundaberg were located at another centre and were sent home in anticipation of flooding at that centre.  It was not until the latter part of the afternoon that someone elsewhere realised that the link to the Bundaberg courthouse had failed and that my court was not being recorded.  I did not know at the time that that was the situation.

1. The cross-examination of the plaintiff occurred during the period for which there is no transcript.  Accordingly I shall set out more fully than usual the substance of what was said then on the basis of my notes of the evidence at the time.  The plaintiff said that he did removals all over Australia but only had one truck at a time and had no employees.  When necessary he would use people on a sub-contract basis, but usually only one at a time.  His work hours varied and he could work up to seven days a week, but did not make much profit from the business.  He had to pay from his income the costs of the truck which was on finance, GST, general running costs and any other costs of the business.  Child support was also taken out; he declined to state how much.  He said that the money in the safe deposit box with the Commonwealth Bank had been accumulated over a period of time from money put in regularly, though the amounts varied.  It represented his life savings, and he was now in his forty’s.  He decided it was safer in the box and did not need to invest it.  He did not know how much money he earned.  He declined to answer when asked whether he had paid tax on the money that was in the box.  He did not recall whether there was any collateral security in respect of the finance on the truck, but if there was it was on his property.  When it was put to him that the house had been put up as collateral, he said he did not recall but he did not have a house then.[10]  He rejected the suggestion that the money never existed.  He said that the relationship ended in May 2005, or later.  He helped the defendant move to Brisbane and delivered her belongings to a particular address.  Some were stored in a shed which he paid for.  He never gave the defendant a set of keys to his storage shed, but she would have known the combination on the lock on the gate to the yard which gave access to the shed as a result of her going there with him.  He did not know that she had a key to the padlock.  He had a key to it with his truck key, and he also had set of keys at home which were available to her while she was there.  He denied that he gave her a key.  The panel van was a 1976 Holden which had always belonged to him; he said the defendant had a van but it was a different one.  When asked if he had ever made a statement that he had sold her the van he said that this was made because of a legal dispute with a former partner.  He identified a copy of his affidavit said to be in Family Court proceedings (exhibit 16), but said that paragraph 9 was not correct.[11]  The van referred to in the affidavit was the same as the one that had been taken.  He did not actually sell the van to the defendant.  He was then asked whether he was a law abiding citizen, and gave a slightly evasive answer.  He conceded that he had taken the law into his own hands on an occasion when police didn’t do anything about people who were doing things to him.  When it was put that he had been convicted of an assault he denied that he had pleaded guilty and said that he was found guilty by a jury.  He said that the plaintiff had $70,000 of his and got someone to bash him and the police didn’t help him, and that he smacked someone (a friend of hers) and two of his cars, and drove a truck through his house.  He recovered possession of his panel van by breaking a lock on a shed, opening it and taking the van back.  He put the money into the panel van on the day he closed the safety deposit box.  The defendant was with him when that occurred; when he got to the bank, she just turned up there.  She had gone with him to the bank previously when he put money into the box; at that time he trusted her, 100 percent, before she robbed him.  He said that the defendant was with him when he put the money into the panel van, he did not move it around, $70,000 was there the whole time and he knew how much was there.  He asked her to give it back and she wouldn’t (or didn’t) give it back.  He believed that she was lying.  She approached him once and told him that she would take him to get the money.  He did not agree with her version as set out in her statement, exhibit 1.  The police charged him with a breach of the domestic violence order.  He treated the defendant really well all the time during the relationship, but he was not home much and that irritated her.  He did not recall being angry with her though there may have been arguments.  He did not ever say that he treated her badly except in a letter from prison, when he was hurt by the break up of the relationship.  When he wrote it he was depressed, unhappy and just trying to recover.  He thought the protection orders were unjustified, were taken out to stop him from coming near her.  He thought she was having an affair.  He had complained to the police on 5 September 2006 about the theft of the van and the money.  He believed the defendant and her friend put the knife and the BB gun (that the police had spoken to him about) into the shed.  The police were more concerned about the gun and the knife than about his van and his money.  He did not think they tried to get evidence.  The police told him that they searched the panel van and did not find any money.  He put it there at a time when he was going through a custody dispute with a former partner, in case she got access to the safe deposit box.  It was his car and he put it where no one would ever find it.  When he complained to the police he said the amount was $70,000.[12]  He always had said that it was $70,000 cash.  He was asked whether he told the police about the money being in a tin box; unfortunately I did not note his answer.  His former partner was going for the house in the Family Court case.  He tried to defend this claim in the Court.  He agreed that he did tear down the house after the Court proceedings, but when asked whether this was because of the property settlement order he declined to answer on the grounds that this would incriminate him.  When asked whether this action was his being vindictive he said he just wanted his money back.  He was angry at the time, he had been pursuing the matter for five years and he was still angry that she took his money.  In re-examination he nominated a particular person, said to be a friend of the defendant, who had bashed him.

   [10]His affidavit in other proceedings of 2 March 2006, Exhibit 16, said he purchased a truck in April 2005 with a loan from a finance company, having put up his house “as a sarety”: para 15.

   [11]Exhibit 16 is entitled in the District Court but appears to have been prepared by the plaintiff personally and the proceedings may have been in the Family Court, as both parties said in evidence.

   [12]I have a note “ref to $60[000]” but do not recall if this was something put to him, or something he said or agreed to.

The defendant’s version

1. The defendant said that she met the plaintiff around the end of 2004, through an acquaintance, and then employed him as a removalist when she moved to Brisbane in January 2005: p 45, p 27.  She said later that before this she had purchased the panel van from him: 49.  She had moved to Brisbane to further her daughter’s interest in ballet, and lived there with her sister: p 10.   While she was in Brisbane he would visit her from time to time, and she helped him with his business, but her daughter did not get on with the plaintiff.  In May 2005 she moved back from Brisbane to Bundaberg, and began to live with the plaintiff in his house: p 46. 

1. She was aware at this time that the defendant was going through a dispute with a former partner in the Family Court, as a result of which the partner received an interest in his house and he was ordered to hand the keys over to her solicitor on 30 June 2006: p 46.  Prior to that time he totally gutted the house: p 30.  She said she left the relationship that time (p 47) although she later said that there was an occasion when she wanted to leave the relationship around August 2006,[13] she agreed to meet the plaintiff at a storage shed where her property was stored, and on that occasion he struck her on the side of her head: p 48.  As a result she applied for and obtained a protection order: p 14.  She later said she left on around 12 August 2006, the day she was hit: p 51.  After she left she initially stayed with friends and then in a caravan park, then she and the plaintiff began to live in his truck: p 50. 

   [13]In her affidavit sworn 30 September 2010, Exhibit 10 she said this occurred on 15 August 2006.

1. After a time they reconciled but she began to move her belongings to another storage shed at a different part of Bundaberg; she was not able to move back into her house because it was tenanted at the time: p 52.  For a time she went to work in the Maryborough branch of her employer, but the plaintiff found her there and she returned to Bundaberg and moved back into her residence.  Then the plaintiff turned up and pestered her until she let him stay there.  To stop him from coming around, she moved out of the house and arranged for it to be tenanted again, but then was living in the truck with him until 20 December 2006: p 53.

1. In the meantime she had taken the panel van from the plaintiff’s shed with the assistance of a friend of hers; she had a key to the shed which he had given her in May 2005 (p 49), and he had told her the combination on the lock on the yard where the shed was located: p 53.  They loaded the panel van on a trailer and took it away: p 54.  She went back on subsequent occasions to make sure that she had collected all of her belongings, and on the last of these occasions she found a rifle in the shed.  She reported this to the police, who met her at the shed; she let them in and they took possession of the rifle, issuing a field property receipt: exhibit 19.[14]  She had a phone call from the police about the van and wanting to search it, and she let them do so, and they questioned her over some missing money: p 56.  Some time later the plaintiff broke into her storage shed and took the panel van back.  In early 2007 she moved to Canberra,[15] but returned to Bundaberg in January 2009: p 5-6.  She began to run a removalist business by June 2010: Exhibit 7.

   [14]Dated 30 August 2006; this was the last time she went there: p 32.

   [15]Her affidavit sworn 29 September 2008 said December 2006 (para 9) but she was making bank transactions in Bundaberg until early March 2007: Exhibit 3, Exhibit 4.

Defendant’s Bank Statements

1. The plaintiff sought to rely on financial records disclosed by the defendant to show that the amount of money that she spent in the period after the break up of the relationship could only have been explained by her having some significant additional amount of cash available, on his case the cash taken from the panel van.

1. Exhibit 3 is a statement on a Westpac account in the name of the defendant from 2 September 2005 until 1 May 2007; there is a gap between 1 December 2005 and 3 July 2006.  There were from the beginning of September 2006 payments from time to time in various amounts identified as internet banking payments “LLordTfr”, which may relate to rent on her house that was rented out.  There are also Newstart deposits, but from July 2006 there were regular fortnightly deposits from “Bundaberg and DIWBDGP Pays”, the last of which was on 9 October, and there were also deposits from SPS Australia Pty Ltd on 31 July and 14 August.  Apart from that, the deposits in the balance of this exhibit are mostly deposits by Newstart, though there are a small number of transfers from other accounts in modest sums, a deposit on 13 September of $724.50 which is not otherwise identified, and one on 9 October of $250, apparently made in South Australia.

1. The balance in the account was mostly quite low, almost always under $1,000 and frequently under $100, and my overall impression from it is of someone who was spending the relatively modest amounts that came in fairly quickly.  If the defendant came into any large sum in cash during this period there was nothing in this exhibit to suggest that she put any of it into this bank account.

1. Exhibit 14 covers the plaintiff’s Westpac bank account from 2 May 2007 to 10 December 2007.  The account usually had quite a modest amount of money in it.  It went over $1,000 on 5 July 2007 after a deposit of family allowance of a little more than that sum, but otherwise it was never above $1,000 except for a deposit of over $4,000 family allowance on 17 August 2007; by 28 August the balance was down to $32.08, though there had been transfers out during this period totalling $1,200.  The only deposits to the account are some other family allowance payments, deposits of Newstart allowance, three payments of child support, one deposit of $39 which is coded with a name, and a deposit of $100 on 5 December 2007 related to “Weston Instore ACT”.  There were also a significant number of transfers into the account from another account, mostly in relatively small amounts, although there was a transfer of $600 on 30 August 2007.  Many of these, particularly in the early part of the period, match amounts which were transferred out of the defendant’s Westpac home loan account as shown by the statement in that account, exhibit 4, although there were other transfers which did not match that account, and some transfers shown in exhibit 4 which did not match any transfers in shown on exhibit 14.  In the latter part of exhibit 14 there are still a significant number of transfers which do not match entries in exhibit 4.  Overall there are no significant cash deposits, and the impression is of someone who is spending fairly quickly the relatively modest payments which she receives, and to some extent trying to avoid going into debit by transferring money between accounts.

1. Exhibit 2 is a set of statements on a Commonwealth Bank account between October 2005 and December 2010; it appears to have received generally little use.  There are deposits or credits shown on this account, usually at Woolworths or Big W stores at various places, and usually of quite modest sums; it is not possible to tell from these statements whether these represent cash deposits or transfers from some other account.  The transactions do not appear to match any transfers in exhibit 4.  It is difficult therefore to understand just what their significance is, but overall the position seems to be that there were credits from time to time into this account in connection with which amounts were withdrawn or spent, ordinarily at Woolworths or Big W stores, and it appears that money was transferred or deposited into this account specifically in order to enable it to be used in this way.

1. This was occurring from at least October 2005, there being five such deposits between $20 and $150 between then and January 2006, and five deposits totalling $165 in March and April 2006.  There was one for $10 on 10 July, and a further six in the period from 18 July to 2 October 2006, the period when on the plaintiff’s case the defendant came into a large sum of money; the largest of the credits is $200 on 18 August; the smallest $20 on 4 September.  The pattern continued up until November 2007, after which it does not appear that the account has been used; the closing balance remained the same until the last statement to 1 December 2010.  My examination of the figures suggests that there may have been a slight increase in the amount credited in this way in the latter part of 2006, though there is really insufficient material prior to that time to be confident that this represents a real change in the defendant’s behaviour; it certainly does not demonstrate that the defendant came into a large sum of money in about August 2006. 

1. The home loan account exhibit 4 runs from 7 June 2006 to 7 June 2007.  There was a substantial debit balance at all times on this account; on 9 June 2006 it was just over $54,000 and on 7 June 2007 it was just over $52,000.  In June 2006 there was a payment in identified as wages for $582 on 19 June, and a similar payment attributed to “SPS Australia Pty Ltd” on 7 July and 17 July, and payments of $606 similarly identified on 29 August, 11 September, 25 September and 9 October.  Apart from that, there were credits of $150 every seven days during June and on 7 July 2006, but the first thing that looks like a cash deposit was on 14 November 2006 at Kempsey of $385, followed by deposits of $115 on 20 November, $360 on 27 November and $164.40 on 1 December.  There were various deposits in the first half of 2007 most of which are not identifiable, though some are shown as “Ascot Real Estate” which presumably was rent on the house, and some are identified as transfers.  Apart from these, there were six deposits of round figures ranging from $100 to $800 between 27 December 2006 and 12 February 2007, totalling $2,800, and a further deposit of $2,000 on 14 February 2007, with a further four deposits of between $175 and $1,200 between 19 February and 14 March 2007.  This produces a total of unexplained deposits of $7,575 between late December 2006 and mid March 2007, which seems a lot, but the deposits then stop and only amounts shown as rent are deposited into this account thereafter until 7 July 2007.[16]

   [16]In an affidavit sworn 29 July 2010 Exhibit 12 the defendant said she sold property in January and February 2007 to raise money before she moved interstate.  Her mother said she had not deposited money to the defendant’s account: p 66.

1. It is possible that during this period the defendant was relatively slowly feeding into this account, in a way which was intended to be inconspicuous, parts of a large sum of cash which came into her possession in about August 2007, but there are obviously other possible explanations for this.  The defendant was not cross-examined about these deposits, so I am left in a position where I cannot properly draw an adverse inference against her on the basis of them.  Overall, then, these statements do not provide any support for the plaintiff's allegation that the defendant came into some significant sum of money in the latter part of 2006.

1. Two other matters were referred to by the plaintiff; that a new roof was put on the defendant’s house, and that she had at some time thereafter obtained a car and a truck which she now uses for a removalist business.  The defendant said however that the new roof was organised and paid for by her mother at a time when she was away from Brisbane (p 7 and p 36), that was supported by evidence from her mother (p 60), and this evidence was not shown to be false.  She drives a car borrowed from a friend of her mother: p 7.  As to the truck, the defendant produced documents which suggest that it was obtained with the assistance of bank finance as she said: p 8, exhibit 21.  Again this was not shown to be false, and overall I do not consider that this material provides any support for the plaintiff’s case.

The plaintiff’s credibility

1. There are a number of factors which in principle justify doubts about the plaintiff’s credibility.  The most significant is that he admitted an affidavit he had sworn in other court proceedings contained at least one statement which was false.  He conceded that he had taken the law into his own hand when dissatisfied with what the police were doing in response to his complaints, and that he had been convicted by a jury of assault.  He agreed that when an order was made against him by the Family Court in respect of a house that he owned he had largely dismantled it, evidently with a view to frustrating that order.  He had also concealed assets from the other party to those proceedings, including the cash the subject of this action.[17]

   [17]The defendant was complicit in having his truck transferred into her name: p 29-30.

1. There was also one inherent implausibility in his story:  according to exhibit 9, the bank document, he withdrew the packet or box from the bank on 26 July 2006.  He said that this occurred some months before the relationship came to an end (p 21), but on his own version there had been two domestic violence orders made against him, the first one on 21 August 2006, and the defendant moved out when the second one was made: p 19-23.  The defendant said that the relationship broke up for the first time in June 2006, but the plaintiff did not give any particular date for when it broke up.  Nevertheless, it must have broken up prior to the time when his truck was deregistered, which was the occasion when he said the defendant must have taken the keys to the shed (that date was also not proved).  The plaintiff said that the defendant had happened to come into the bank at the time when he was removing the money from it, which would be consistent with his not having chosen to tell her that it existed or what he was doing with it, and might be something that would have occurred in late July notwithstanding that the relationship was obviously not strong at that stage, but it is difficult to believe that after that time the plaintiff would have shown the defendant where he was hiding this money, as he claimed.  It is more than a little surprising that the plaintiff would have trusted the defendant about this matter at all, particularly since during the relationship they kept their financial affairs separate.[18]  But it strikes me as particularly implausible if, as appears likely, by this time the relationship between them was breaking down.

   [18]Defendant p 48; this was not contradicted or challenged in cross-examination.

1. On the other hand, he did appear to be genuinely upset over the fact that the money he had hidden had disappeared.  His behaviour in connection with the witness from the bank suggested that he really expected that she would be able to give more helpful evidence than she did give.  Given his response otherwise to the Family Court dispute, it is consistent in my view that he would be concerned to make it appear that he did not have assets which might be seized, and to conceal the whereabouts of a quantity of cash.  Given his other behaviour, that he would have a bundle of cash hidden somewhere was plausible, and he did take something out of the bank in late July 2006.  He could have hidden the money in the van without her knowledge, and she (or someone) may have happened on it as a result.

The defendant’s credibility

1. There is one matter in particular about the defendant’s evidence which struck me as inherently implausible: her account of the purchase of the panel van.  Her explanation for the purchase was that it was for her son who had an interest in cars, in order to further that interest: p 45.  But the son was 18 at the time of the trial, so in early 2005 he would only have been about 12.  That strikes me as very young to be doing up a motor vehicle.  She said that she paid between $5,000 and $8,000 for this, in cash, although she received no receipt: p 24-5.  This was despite the fact that this occurred prior to the time when she was in the relationship with the plaintiff (p 23), indeed prior to the time when he moved her belongings to Brisbane in January 2005.  She said that the vehicle was moved to her house after the sale, but when she moved to Brisbane it was moved back to the plaintiff’s residence until she found somewhere else to keep it: p 49, pp 26-7.  But on the defendant’s evidence that must have occurred before the relationship with the plaintiff developed.  It strikes me as highly implausible first that she would spend so much money on an unregistered vehicle which was not in a fit state to be registered, so that her 12 year old son could work on restoring it, and secondly that at a time when she was not in a relationship with the plaintiff she would in effect let him take it back when she moved to Brisbane almost immediately thereafter.

1. The defendant said that she gave up work at about this time, but had previously been working: p 24.  She did not have a good answer to the plaintiff’s point that she would need proof of purchase to register the vehicle in her name: p 28.  After she took possession of the vehicle again with the assistance of her friend, it was simply put in a shed and nothing was done about it, until the plaintiff retook possession, and it seems nothing has been done since then to recover possession of it.[19]  Overall I found the account of the purchase of the car highly implausible, and I consider a more reasonable explanation is that this was an opportunistic version prompted by the discovery that the plaintiff in his other proceedings had alleged that the vehicle had been sold to her.[20]

   [19]At one time she had her solicitor write a letter of demand for its return; Exhibit 6.

   [20]In 2003: Exhibit 16 para 9.  This was before they had even met, and he admitted that this was not true.

1. There is also an aspect of her account which seems odd in terms of timing.  The time line on her account appears to be as follows: 

June 2006  Parties living together in plaintiff’s house.
             -  Plaintiff demolishes house.
30 June 2006                Parties leave house.
26 July 2006                 Plaintiff removes box from bank.
12/15 August 2006      Parties meet at shed and defendant struck.
21 August 2006  Protection order made, items to be returned.
             -  Defendant finds rifle in shed, tells police.
30 August 2006  Police seize rifle: Exhibit 19.
             -  Plaintiff discovers van and money gone.
5 September 2006        Plaintiff complains to police about theft.

1. The defendant said that the panel van was moved from the shed prior to the temporary protection order made on 21 August 2006.[21]  She also said that after she removed the panel van she went back to the shed to see if there was anything else of hers there, and it was on one of these trips that she came upon the rifle the existence of which she reported to police.  If she had removed the van before he struck her, why would she agree to meet him at the shed?  Would she go back to the shed to remove the van after she had been struck before the protection order was made?  If she had not removed the van before the order was made, why did she not asks for an order for the van as well?  There are at least two possible answers to this last point: she did not want to provoke an argument about the van in the magistrates court, or she did not want to give the plaintiff the opportunity to remove the money.  But they are not the explanation she gave. 

   [21]Defendant p 17, p 22.  This is the date on the order Exhibit 5, although in her affidavit Exhibit 10 the defendant said that the assault was on 15 August 2006, she complained to police the same day, and a temporary protection order was made on 28 August 2006.  She said that this was the second TPO (p 17) although the plaintiff insisted that it was the first: p 16.

1. In exhibit 5 one of the orders made was that the plaintiff returned to the defendant property, namely part of a bed and bookshelf.  She said this was her property which the plaintiff had in the storage shed which she told the court she wanted back when the order was sought (p 17), but elsewhere she said that at this time she just went to remove her property from the shed herself because she had a key and it was easier to do that than to go through the process of applying for a protection order: p 33-4.  That she would go to the shed and recover her own property when the plaintiff was not around was plausible enough if she had access to it, except perhaps when she had just been assaulted, but it does not really explain why, at a time when she was going to the shed herself and recovering property, she did ask for this order for this property be returned.  The problem may just be that the defendant is unreliable about timing, but it is difficult to accept this evidence at face value.

Analysis

1. Given the plaintiff’s circumstances and the fact that he was involved in a dispute with a former partner, about which he obviously had strong feelings, the proposition that he had a stash of cash somewhere is plausible.  The defendant was a party to the transfer of the plaintiff’s truck into her name, presumably to keep it out of the hands of the former partner, the plaintiff said in an affidavit that he had sold the panel van to the defendant, and he had largely demolished his house rather than let his former partner have a share of it.  The bank documents do demonstrate that he had at one stage something which was kept in a security box or package at the bank, and that in late July 2006 he took it out.  In these circumstances, I would be prepared to accept, notwithstanding the other reasons to be cautious about the plaintiff’s evidence, that he did have a quantity of cash kept in the security box at the bank, he did obtain it at this time, and he subsequently hid it somewhere.  He may well have hidden it in the back of the panel van.[22]

   [22]The defendant agreed that only she and the plaintiff had keys to this van: p 32.

1. I find it very difficult to believe that, given the timing and the state that the relationship must have been in at that time, he would have informed the defendant about this.  Nevertheless there was no dispute that the defendant took possession of the van, and it was then placed in a different locked storage shed to which she had access.  It was however not shown that she was the only person who could have had access to the van.  Assuming that the plaintiff had hidden some money in the van, and it had in this way come into the possession of the defendant, it remains a possibility that someone else found it and removed it. 

1. The plaintiff complained to the police about the loss of the money as soon as he discovered that the van was missing, and did strike me as genuinely upset about this loss, and overall I am inclined to think that the plaintiff probably did lose a quantity of money which he had stashed in the panel van in this way.  Once one gets to that point, the defendant is the most plausible candidate as the person who found it and took possession of it, though she also seemed genuine in her denials of this and of any knowledge of the money.  If as I suspect she was not actually told or shown that the money was hidden in the van in this way, she probably had no particular reason to be searching the van.  She had a friend who helped her move the van, and obviously he had access to the van at least at some stage; it is possible that he found the money and took it, or that others had access to the van and did so.  I do not accept the plaintiff’s evidence that the defendant admitted to him that she had the money. 

1. Overall therefore I am not persuaded that the plaintiff has discharged the onus of showing on the balance of probabilities that it was the defendant who took possession of the container of money hidden in the back of the panel van.  It follows that the plaintiff’s claim must fail, since it is based on the proposition that the defendant obtained possession of this container and its contents. 

1. There is a further problem with the claim.   In order to recover the amount claimed, it is necessary for the plaintiff to prove not just that the defendant had taken a quantity of cash hidden in a tin box in the back of the panel van, but also the amount of the cash.  There is no objective support for the plaintiff’s evidence in this regard, and nothing in the circumstances of the matter which would enable me to conclude that it was inherently likely that it was any particular amount.  Given the objective bases for concern about the reliability of the plaintiff’s evidence, I am not prepared to accept the unsupported assertion of the plaintiff that the amount of cash involved came to $70,000.  Accordingly, had I have been otherwise persuaded that on the evidence the plaintiff was entitled to succeed, I would have given judgment to the plaintiff only for a nominal amount, perhaps $1,000.

1. In the event however, there must be judgment for the defendant in the action.  I expect that as a result it is appropriate to order that the plaintiff pay the defendant’s costs of and incidental to the action to be assessed, but I will invite submissions as to costs when these reasons are delivered.