NEILL v CAREW-NEILL (Civil Dispute)
[2016] ACAT 53
•8 February 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NEILL v CAREW-NEILL (Civil Dispute) [2016] ACAT 53
XD 1020/2015
Catchwords: CIVIL DISPUTE – dispute over correct owner of a motorcycle
List of
Texts/Papers cited: Butterworths Australian Property Dictionary (Lexis Nexis 1997)
Michael Bridge, Personal Property Law (Blackstone Press Ltd, 1996)
Tribunal: Senior Member J Lennard
Date of Orders: 8 February 2016
Date of Reasons for Decision: 1 June 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1020/2015
BETWEEN:
BRIAN FRANCIS NEILL
Applicant
AND:
JULIE CAREW-NEILL
Respondent
TRIBUNAL: Senior Member J Lennard
DATE:8 February 2016
ORDER
The Tribunal Orders:
ACAT finds that the applicant, Brian Francis Neill is the legal owner of the Harley Davidson motorcycle with ACT registration 63028.
The respondent Julie Anne Carew-Neill, shown on the relevant registration papers as Julie Neill, shall on or before 28 February 2016, do all things necessary and complete and execute all documents required to transfer registration of the Harley Davidson motorcycle with ACT registration 63028 to the applicant Brian Francis Neill.
……………Signed………..
Senior Member J Lennard
REASONS FOR DECISION
Background facts
The applicant and the respondent were married. They divorced in 2014 and between the years 2000 and 2013 were separated from time to time. At the time of the purchase of the disputed motorcycle they were living in the same house but apparently separated.
This is an application in relation to the ownership of a 2004 Harley Davidson Softail motorcycle. The motorbike was purchased from Mr Wayne Clark on 15 May 2013 at a price of $8000.
The registered operator of the motorcycle is the respondent. The respondent has insured the motorcycle. The motorcycle is not currently registered for use on the road.
The motorcycle has at all times been in possession of the applicant. The applicant has a motorcycle rider’s licence and is the only person who has ridden the bike.
Evidence was that from the date of purchase on 15 May 2013 to the date of separation in September 2013 the motorcycle was kept at the premises where both parties lived. In September 2013 the applicant moved out of the family home and removed his personal possessions, tools of trade, musical items and the motorcycle. The motorcycle remained in the possession of the applicant.
The application
The applicant maintains that a verbal agreement was reached between the applicant and the respondent regarding financial matters, in relation to matrimonial property and for the purposes of finalising the divorce. The applicant states that an express term of that verbal agreement was that the applicant was to retain ownership of the motorcycle.
The applicant conceded that at the time of purchase, registration of the motorcycle was transferred from the seller (Wayne Clark) to the respondent, using the name Julie Anne Neill. The document headed ‘application to transfer the registration of the vehicle’ appears to have been signed J Neill and is dated 15 May 2013.
The applicant gave evidence that at the time of purchase of the motorcycle he was in the process of dissolving a former business partnership, and had a large unpaid tax bill. Registration was transferred to the respondent’s name to avoid a potential claim against it by creditors. The applicant asserted that the parties had a verbal contract whereby the respondent had agreed to transfer the motorcycle to the applicant’s name once his financial matters had been dealt with.
The respondent appeared to dispute this evidence, but her evidence was confused and contradictory. She offered the following explanations for the registration of this motorcycle in her name:
(a)They were a close family and this was intended to be a family bike.
(b)The bike had always been intended for their son, but had not been transferred to his name because this would affect his ability to obtain Austudy payments.
(c)Her money was used to buy the motorcycle.
During the course of the hearing, she regularly referred to the motorcycle as ‘my asset’. The respondent provided no independent or corroborating evidence in relation to her claims.
The respondent claimed that she was a bona fide purchaser for value and without notice of any other claim of the motorcycle; that she was the legal owner and that the applicant had possession of the motorcycle under bailment. The respondent said she had cancelled the bailment and wanted possession of the motorcycle returned to her. The respondent offered no explanation of the circumstances giving rise to the bailment.
It was uncontested by the respondent that she had raised no objection at the time of separation to the removal of the motorcycle from her premises by the applicant. It was also uncontested by the respondent that she had taken no formal or legal steps to assert a right to possession of the motorcycle.
The respondent gave oral evidence that she approached the police for assistance in recovering possession of the motorbike, but apart from the letters complaining about the conduct of the police, there was no evidence of any investigation by the police, or of any conversation between police officers and the applicant.
The seller of the motorcycle gave evidence by phone as to the circumstances surrounding the sale of the motorcycle. His evidence is summarised as follows:
(a)All negotiations were conducted with the applicant.
(b)As far as the seller was concerned he had sold the bike to the applicant.
(c)He would not have been prepared to sell the bike to the respondent. He knew the applicant, knew he would ride the bike and that he would take care of it.
(d)He had signed a blank transfer of registration form which had been completed by the applicant.
The oral evidence of the parties and the documentary evidence provided to the Tribunal established the following:
(a)The applicant was the only person who had ridden the bike since its purchase from Mr Clark.
(b)The applicant paid the purchase price in cash to Mr Clark.
(c)The respondent does not have and never has had a motorcycle rider’s licence.
(d)The parties’ son does have a motorcycle rider’s licence; he has his own bike and has never ridden this motorcycle.
(e)The respondent has insured the motorcycle, which was purchased for $8000, for the sum of $21,100. She has falsely informed the insurer that the vehicle is garaged at her residence in Griffith, ACT. She has falsely informed the insurer that her son and she are registered riders.
(f)The respondent was not involved in any of the negotiations leading up to the purchase of the motorcycle.
(g)At the time of the purchase of the motorcycle the applicant had overdue tax payments and was being pursued by a collection agency.
(h)The applicant commenced Federal Court proceedings to recover the motorcycle.
The Tribunal notes that the respondent was extremely emotional, irrational and confused. She has taken great exception to a third party with whom the applicant now resides; she believes that they are in a romantic/sexual relationship (even though each of them denies this). She continues to refer to herself and the applicant as a ‘close family’. It is evident that the respondent has spent a lot of time making complaints to police, ombudsman and others, but there is no evidence of any specific formal legal steps being taken by her to recover possession of the motorcycle.
The incidents of ownership
The issue before the Tribunal was ‘who is the legal owner of the motorcycle’?
The applicant asserts ownership based on the following:
(a)He paid the purchase price.
(b)He negotiated all details of the sale.
(c)He has always been the person in possession of the motorcycle.
(d)The motorcycle was registered in the respondent’s name for financial reasons and the applicant asserts a verbal agreement between the parties that registration will be transferred to his name when the financial matters had been dealt with.
The respondent asserts ownership based solely on the fact that she has been the registered operator of the motorcycle. She gave evidence that the motorcycle was not currently registered but that following a transfer of the registration to a third party, she had been in correspondence with Road User Services, and she provided written evidence that Road User Services had undertaken not to transfer registration of the motorcycle to a third party except at her direction.
The applicant gave evidence that he had owed a debt to the third party. He had determined to satisfy the debt by transferring ownership of the motorcycle to that third party.
Proprietary interests in chattels are defined in terms of possession and ownership. Ownership is largely expressed in terms of the vocabulary of possession since possession is in the normal state of things, the outward sign of ownership. With regard to chattels, ownership amounts to the best available possessory right.
Ownership is defined by the Butterworths Australian Property Dictionary, (Lexis Nexis 1997), at pages 172 to 173 as the right, recognised by law in respect of a particular piece of personal property to exercise the rights to possession, use, exclusion of others and to alienate personal property to others. Possession of goods, that is effective actual control of the goods, raises a prima facie presumption that the possessor is the owner.
Possession is largely a matter of fact. Possession of a chattel gives the possessor rights which may be asserted against the rest of the world. As a legal concept possession may be seen as consisting of two elements: first, the exercise of factual control over the chattel; and, secondly, the concomitant intention to exclude others from the exercise of control. The presence of this second element more than anything serves to differentiate the legal meaning of possession from its looser lay equivalent of ownership.[1]
[1] See for a full discussion Michael Bridge, Personal Property Law (Blackstone Press Ltd, 1996) at pages 11 and following
It was not disputed by the respondent that the applicant has had possession of the motorcycle since its purchase, that he removed it with his other personal belongings at the time of separation of the parties, and that he had been the person riding the motorcycle.
Registration of a motor vehicle may be evidence of ownership but is not conclusive evidence of ownership. There are a variety of reasons for registering a motor vehicle, including:
(a)revenue raising by governments;
(b)to ensure roadworthiness of the vehicle; and
(c)to permit the owner of the vehicle to operate the vehicle on the roads.
The Tribunal finds on the balance of probabilities that at the time of purchase of the motorcycle it was the intention of both parties that the applicant should be regarded as the owner of the motorcycle but for financial reasons the respondent became the registered operator of the motorcycle.
The Tribunal finds that at all times since the purchase of the motorcycle the applicant has been in possession of the goods. The applicant has exercised actual effective control over the motorcycle and had, in view of the Tribunal validly exercised his right to alienate the vehicle by delivering possession and ownership to a third party.
………………………………..
President M-T Daniel
For and on behalf of Senior Member J Lennard
HEARING DETAILS
FILE NUMBER: | XD 1020/2015 |
PARTIES, APPLICANT: | Brian Francis Neill |
PARTIES, RESPONDENT: | Julie Carew-Neill |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | Julie Heinz, Infinity Legal |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member J Lennard |
DATES OF HEARING: | 29 January 2016 |
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