Perpetual Trustees and National Executors of Tasmania Limited and Elizabeth Perkins v Florence Beryl Perkins, David Barclay Perkins and the Art Gallery Board
[1989] TASSC 53
•6 October 1989
Serial No 51/1989
List "A"
CITATION:Perpetual Trustees And National Executors of Tasmania Limited and Elizabeth Perkins v Florence Beryl Perkins, David Barclay Perkins and the Art Gallery Board [1989] TASSC 53; A51/1989
PARTIES: Perpetual Trustees And National Executors of Tasmania Limited
PERKINS, Elizabeth
v
PERKINS, Florence Beryl
PERKINS, David Barclay
ART GALLERY BOARD (THE)
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 128/1988
DELIVERED ON: 6 October 1989
DELIVERED AT: HOBART
JUDGMENT OF: Green CJ, Neasey and Wright JJ
Judgment Number: A51/1989
Number of paragraphs: 38
Serial No 51/1989
List "A"
File No FCA 128/1988
PERPETUAL TRUSTEES AND NATIONAL EXECUTORS OF TASMANIA LIMITED AND ELIZABETH PERKINS v FLORENCE BERYL PERKINS,
DAVID BARCLAY PERKINS AND THE ART GALLERY BOARD
REASONS FOR JUDGMENT FULL COURT
GREEN CJ
NEASEY J
WRIGHT J
6 October 1989
Orders of the Court
The appeal is allowed.
The judgment of Underwood J, dated and entered on 7 day of October 1988, whereby judgment was entered for the respondents, with costs and consequential orders, is set aside, and in lieu thereof, judgment is entered for the appellants.
That the respondent Florence Beryl Perkins deliver up the portrait of John Perkins to the appellants' solicitors, Messrs Page Seager or to any person nominated by them in writing to receive the portrait.
That the respondent the Art Gallery Board deliver up the portrait of Emmely Francis Perkins to the appellants' solicitors, Messrs. Page Seager or to any person nominated by them in writing to receive the portrait.
That the application of the third respondent, the Art Gallery Board, against the first and second respondents, be reserved for further argument.
Serial No 51/1989
List "A"
File No FCA 128/1988
PERPETUAL TRUSTEES AND NATIONAL EXECUTORS OF TASMANIA LIMITED AND ELIZABETH PERKINS v FLORENCE BERYL PERKINS,
DAVID BARCLAY PERKINS AND THE ART GALLERY BOARD
REASONS FOR JUDGMENT FULL COURT
GREEN CJ
6 October 1989
This is an appeal against the dismissal of the appellants' claims against the respondents for the delivery of two portraits or their value or damages for their wrongful conversion. One is a portrait of Emmely Perkins (deceased) which was painted by the colonial artist Benjamin Duterreau and the other is a portrait of John Perkins (deceased) which was painted by an unknown artist. In 1985 Emmely's portrait was sold by the respondent David Barclay Perkins to the respondent the Art Gallery Board of South Australia. The other portrait is in the possession of the respondent Florence Beryl Perkins.
The dispute primarily involves the following members of the Perkins family:
John Perkins (deceased): the subject of one portrait
Emmely Perkins (deceased): wife of John Perkins and the subject of the other portrait
William John Allan Perkins (deceased), (Allan): grandson of John Perkins
Nora Perkins (deceased): wife of Allan Perkins
Joan Perkins (deceased): daughter of Allan and Nora Perkins; the first appellant is the personal representative of her estate.
Muriel Atkins (deceased): daughter of Allan and Nora Perkins; the first appellant is the personal representative of her estate.
Elizabeth Perkins: daughter of Allan and Nora Perkins; the second appellant
William Allan Perkins (Bill): son of Allan and Nora Perkins
David Barclay Perkins (deceased) (David): son of Allan and Nora Perkins
Florence Beryl Perkins: widow of David Perkins; the first respondent
David Barclay Perkins (Tim): son of David and Florence Perkins; the second respondent.
When I need to refer to them collectively I shall refer to Joan Perkins, Muriel Atkins and Elizabeth Perkins as "the sisters".
The factual background appears from the following findings by the learned trial judge which are not contested:–
"Prior to World War II, "Woodville", 220 Davey Street, Hobart was the Perkins family home. Initially, Emmely's portrait was hung in the hallway of the family home but in 1944 possession of John's portrait passed from another member of the family to Allan and Nora, and from that time on both portraits were hung in the drawing room at Woodville. When the portraits were first hung in the drawing room Allan and Nora and their four daughters were all living together at the family home.
The starting point in the search for title to the two portraits is the fact, agreed between the parties, that on the 1 January 1946 they were owned by, and in the possession of Allan. Although not an agreed fact, it was common ground that both portraits remained in the same position on the walls of the drawing room at Woodville between 1946 and 1967.
By his will, which was admitted to probate on the 19 January 1951, Allan left the whole of his estate to his wife Nora, who continued to live at Woodville with three of her daughters until her death in 1964.
By her will Nora bequeathed 'all [her] household furniture and effects' (excepting some items the subject of earlier specific bequests) to her daughters, Elizabeth, Joan and Muriel in equal shares.
…
After their mother's death the three daughters, Elizabeth, Joan and Muriel (a war widow) stayed on at Woodville until 1967 when the family home was sold as it was too big for the three of them to manage. Elizabeth, Joan and Muriel bought and lived in a smaller house at 2 Fitzroy Place where the survivor, Elizabeth, resides to this day.
When Woodville was sold in 1967 the three daughters decided that the house at Fitzroy Crescent was too small and otherwise unsuitable for the portraits and so they were passed to their brother Bill who was then living at 561 Sandy Bay Road. Both Elizabeth and Bill gave evidence that in 1967 Bill was entrusted with possession of the portraits 'on long loan'. After this lapse of time I have little confidence in the accuracy of either witnesses' memory of the conversations which attended the transfer of possession to Bill but, I am satisfied that when possession of the portraits was given to Bill, none of the three daughters said anything which amounted to words of gift.
John and Emmely's portraits were hung in Bill's home and remained there until July 1975 when Bill moved to Oyster Cove. At that time, possession of the portraits was transferred by Bill to David. They were taken to David's home at Jordan Hill Road, Hobart. There was some dispute upon the evidence about the circumstances attending this transfer of possession. Elizabeth claimed it was effected without her knowledge but as before, whatever those circumstances may have been, there was no evidence to suggest that the transfer of possession was accompanied by any words of gift to David by either Bill, Elizabeth or her two sisters.
Tim had left home some time prior to the portraits arriving at Jordan Hill Road and was living in another State. David, who was in ill health, then lived there with his wife, Beryl. Not long after their removal to Jordan Hill Road, Beryl and her husband had the portraits restored and later valued.
At Christmas time 1979 Tim returned to Tasmania for a visit and saw his parents. He gave evidence that towards the end of that visit, not later than the 2 January 1980, his father referred to the portraits, then hanging on the wall, and said 'You know Tim these will be yours. I would like to give them to you now and you are free to take them.' Tim said that he thanked his father but declined to take them as he knew that his father was attached to them. This conversation was repeated on subsequent visits by Tim to Tasmania; once in 1980 and once in 1983 by which stage his father's health was failing rapidly.
The paintings remained in Beryl's possession at Jordan Hill Road after her husband's death in 1984. In 1985, approaches were made to Beryl and Tim by the Art Gallery Board of South Australia to purchase Emmely and, following some negotiations, Tim sold Emmely to the Board in that year for $55,000. Tim did so in the belief that he was the owner by reason of the gift to him by his father. Shortly after the sale of Emmely, Tim asked his mother to send John over to him in New South Wales. Accordingly, Beryl packed the portrait up and sent it but, by reason of intervention by the solicitors for the plaintiffs, transmission was interrupted and the portrait returned to Beryl at Jordan Hill Road.
In July 1985 written demand for the return of Emmely and John was made on behalf of Elizabeth and the executor of Joan's estate to the Board and Beryl respectively. In April 1987 similar written demands were made on behalf of the executor of Muriel's estate. The demands were not complied with and the refusals gave rise to these proceedings."
The learned trial judge proceeded to a consideration of whether the appellants had discharged the burden of proving that they were the owners. His Honour considered a number of pieces of circumstantial evidence including the omission of any reference to the paintings in the affidavits of assets and liabilities in the estates of Allan and Norah Perkins and the omission of any such reference to the paintings in a list prepared by the sisters of a large number of items of personalty in respect of which they wished to make special provision in the event of death. The learned trial judge found that he was:–
".... unable to conclude that it is more probable than not that Nora owned the portraits immediately prior to her death in 1964 or that Elizabeth, Joan and Muriel became the owners thereafter. As a result, the plaintiffs have not discharged the onus of proof that their right to possession of the portraits is any greater than that of the defendants."
Although his Honour found that it was "not at all unlikely" that either Allan or Nora Perkins made an inter vivos gift of the paintings "perhaps to David" or made themselves a trustee of the paintings, the cestui que trust being someone other than the sisters, those possibilities did not form the foundation of his conclusions. It should also be noted that his Honour did not find for the respondents on the basis of any finding that title had been transferred to David or Tim Perkins. His Honour's essential findings were that the appellants had not discharged the burden of proving that they were the owners of the portraits and that therefore they had not discharged the onus of proving that their right to possession was any greater than that of the respondents.
In my opinion a finding that the appellants had not proved that they had acquired a proprietary interest through the estate of Nora Perkins or had become owners in some other way was not sufficient to finally determine the appellants' claims. In order to sustain an action in conversion or detinue it is not necessary to prove ownership: what is sometimes referred to as a possessory title derived from the fact of possession is sufficient to give the right to bring an action for conversion or wrongful detention. Thus, in Pollock and Wright, Possession in the Common Law, the learned authors state at p93:–
"... possession confers more than a personal right to be protected against wrongdoers; it confers a qualified right to possess, a right in the nature of property which is valid against every one who cannot show a prior and better right."
Further, as Jordan CJ said in Gatward v Alley (1940) 40 CJ 174 at 180:–
".... de facto possession of a chose in possession is prima facie evidence of ownership, and also of itself creates a legal right to possess which is enforceable against anyone who cannot prove that he has a superior right to possess: any person who interferes with this legal right, without being able to prove a superior right, is therefore a wrongdoer." (My emphasis).
See also Field v Sullivan [1923] VLR 70. It follows that in order to determine whether the appellants have shown that they had sufficient title to sustain these actions against the respondents consideration needs to be given to what legal consequences flowed from the fact that they were in possession of the portraits from 1964.
Although it is not easy to fit in with statements to the effect that it is the fact of possession which is significant and that the means by which that possession was obtained is immaterial, it is possible that for policy reasons a wrongdoer such as a thief might not be able to avail himself of the rule referred to in Gatward v Alley: see Prosser on Torts, 5th ed, p103. However in this case there is no suggestion that the sisters wrongfully came into possession of the portraits. As well there was not sufficient evidence to show that anyone other than the sisters were the owners. Prima facie therefore the sisters' possession gave them sufficient title to bring these actions. However, the respondents submit that the sisters lost any possessory title upon which they might have been able to rely when they transferred possession of the portraits to Bill Perkins in 1967. Although this transfer is referred to in the trial judge's findings which I have set out above it is necessary to consider the circumstances surrounding it in a little more detail.
Elizabeth Perkins gave evidence that because there was nowhere in the house which was suitable for the hanging of the portraits she or one of her sisters offered them to David Perkins on "long loan" but he declined. She said that she then offered the portraits to Bill Perkins on "long loan" and he agreed and that thereupon they were delivered to him within a week of their moving into Fitzroy Place. She said that she still considered the portraits as belonging to her. Save for some cross–examination directed to testing her evidence as to the reason for lending the portraits to Bill and some cross–examination in which it was suggested that David had said in response to her offer to him that a loan was inappropriate no suggestion was made in cross–examination that she had not delivered the portraits to Bill or that she had not had the conversation with him that she claimed to have had.
Bill Perkins gave evidence that one of the three sisters, speaking as he understood it on behalf of the others, asked him to "house" the portraits. He said that the request made to him was "That I look after them for their – because they were their property". In cross–examination he agreed that he did not remember the conversation "specifically", but he remembered being asked "to look after them". Subsequently he moved to another house which was too small for the paintings and at his request David Perkins took possession of the portraits. Upon hearing that David Perkins had had the paintings restored and valued he gave evidence that he said to David that the paintings "belong to the girls" and that David Perkins agreed with him. Some questions were asked in cross–examination about the conversation Bill Perkins said he had had with David Perkins, but nothing was put to him in cross–examination suggesting that the conversation with the sisters had not taken place.
The only finding made by the learned trial judge about the transfer of possession to Bill was that which I have set out above, viz:–
"After this lapse of time I have little confidence in the accuracy of either witnesses' memory of the conversations which attended the transfer of possession to Bill but, I am satisfied that when possession of the portraits was given to Bill, none of the three daughters said anything which amounted to words of gift."
But although the learned trial judge was not prepared to place reliance upon the accuracy of the witnesses' memory of the conversations, he made no finding suggesting that he rejected their evidence as to the substance of the transaction. In my view, in the absence of any cross–examination of either witness suggesting otherwise, and in the absence of any evidence to the contrary and in the light of the trial judge's finding that whatever the transaction was it was not a gift, the only inference which can reasonably be drawn from that evidence is that the portraits were entrusted by the sisters to Bill Perkins for an indefinite period of time and that he would have been liable to return them on demand. That conclusion can be tested by asking what Bill Perkins' defence could have been to an action in detinue in the event of his having refused a demand to return the paintings to the sisters. In the absence of any suggestion that ownership had been transferred to him by gift or in some other manner and in the absence of any contract or of any suggestion that the portraits had been entrusted to him for any particular period of time there would have been no basis upon which he could have refused to return the paintings.
In my view the only conclusion reasonably open on the evidence is that Bill Perkins received possession of the portraits from the sisters upon the understanding that he would keep them and return them according to their directions. In my opinion such a transaction has all the essential characteristics of a gratuitous bailment: see Pollock and Wright, Possession in the Common Law 163 and Halsbury's Laws of England, 4th ed, vol 2, para 1501.
As this was a gratuitous bailment revocable at will the transfer of possession by the sisters to Bill Perkins did not have the effect of extinguishing their possessory title. In United States of America and Republic of France v Dollfus Mieg Et Cie SA and Bank of England [1952] AC 582 at 611 Lord Porter posed the question:–
"Can those who assert a possessory title to goods but make no claim to the property in them be said still to retain possession after they have entrusted those goods to a bailee to hold on their behalf?"
After some discussion of the authorities his Lordship concluded that:–
"... the better opinion is, I think, that where the bailor can at any moment demand the return of the object bailed, he still has possession. See Pollock and Wright on Possession (1888), p166; Beal on Bailments (1900), p40; and Halsbury's Laws of England, 2nd ed, Vol I, p775, sub tit. Bailment. In each of the authorities referred to the right of the bailor is limited to a case of gratuitous bailment, a requisite which, in my opinion, is fulfilled in the present case."
In my view the evidence established that the appellants had title by possession and that that title was not extinguished by the delivery of the paintings to Bill Perkins. The respondents were not able to impeach that title by showing that they had a superior right to possession and they may not rely upon any rights arising from their possession of the portraits which they derived from Bill Perkins for, as Donaldson LJ observed in Parker v British Airways Board [1982] 1 QB 1004 at 1009, persons in the position of the respondents have no more right to assert any rights arising out of their possession than did the jeweller to whom the chimney sweep's boy had given the jewel in Armory v Delamirie [1722] 1 Stra 505.
I do not find it necessary to explore further the trial judge's reasons for concluding that the appellants had not discharged the onus of proving that they were the owners, nor do I find it necessary to express any view about that conclusion because for the reasons I have given I am satisfied that whether or not they were the owners the evidence established that the appellants had a sufficient possessory title to entitle them to bring these actions. As the other ingredients of their causes of action were established and as the respondents did not show that they had a superior title I am satisfied that upon the evidence before the learned trial judge the appellants were entitled to judgment.
The respondents pleaded that the appellants' actions were barred by s6(1) or (2) of the Limitations Act 1974 which provides as follows:–
"6–(1) Where –
(a)any cause of action in respect of the conversion or wrongful detention of a chattel has accrued to any person; and
(b)a further conversion or wrongful detention of that chattel takes place before he recovers possession of the chattel,
no action shall be brought in respect of that further conversion or detention after the expiration of 6 years from the accrual of the cause of action in respect of the original conversion or detention.
(2) Where –
(a)a cause of action has accrued to any person in respect of the conversion or wrongful detention of a chattel; and
(b)the period limited for the bringing of that action and any action in respect of any further conversion or wrongful detention of that chattel has expired; and
(c)he has not during that period recovered possession of the chattel, his title to the chattel is extinguished."
The conversion relied upon comprised a purported gift of the portraits by David Perkins to Tim Perkins in December 1979.
The only evidence to support that allegation was that given by Tim Perkins when he said that on about 3 or 4 January 1980, during the course of a visit to his father David Perkins, the latter:–
"... specifically made a point of saying to – about the portraits to me, that, 'You know Tim, these will be yours, and I would like to give them to you now and you're free to take them.' I thanked my father and said, it's very generous, or something to that effect, but I would rather that you look after them for me here, I know you derive pleasure from viewing them and they are in your house and I really haven't room in our place at this stage, but thank you for the offer and we left it at that."
In cross–examination this exchange took place:–
"Now, you say you made a visit to Hobart at Christmas '79–'80 and it was during that visit that your father first offered the paintings to you?....That is correct.
And you declined to take them. ......... I accepted the offer but declined to take possession of them."
In order to prove that there has been a conversion of property it is not sufficient to prove a mere assertion of ownership by the respondent: some "dealing" with the property is required. Thus, even a sale of goods does not amount to a conversion until delivery has taken place: Lancashire Wagon Co v Fitzhugh (1861) 6 H & N 502; 158 ER 206; Edelstein v Schuler & Co [1902] 2 KB 144 at 156. In this case the mere statement by David Perkins of his intention to give the portraits to Tim Perkins would not have been sufficient to constitute his act a conversion. The trial judge found that Tim Perkins' evidence showed that the words of gift were "unaccompanied by any act of delivery". In my view if the evidence were not such as to establish that there had been a sufficient act of delivery to complete the gift then a fortiori there was insufficient evidence to establish that there had been a sufficient "dealing" to constitute a conversion.
In my opinion there should have been judgment for the appellants.
In view of the nature of the property this is a clear case in which it would be appropriate to order that the portraits be delivered up to the appellants.
In my opinion the appeal should be allowed, the judgment should be set aside, judgment should be entered for the appellants against the respondents and the following orders should be made:–
1That the respondent Florence Beryl Perkins deliver up the portrait of John Perkins to the appellants' solicitors, Messrs Page Seager or to any person nominated by them in writing to receive the portrait.
2That the respondent the Art Gallery Board deliver up the portrait of Emmely Francis Perkins to the appellants' solicitors, Messrs. Page Seager or to any person nominated by them in writing to receive the portrait.
Proceedings were taken by the third respondent against the other two respondents in which it sought orders that it be indemnified against the appellants' claims in the event of their action being successful. On the face of it it would appear that the third respondent is entitled to the orders it seeks but as no court has made the findings necessary to support its claim I think that we should hear further submissions from counsel before making any orders in respect of those proceedings.
File No FCA 128/1988
PERPETUAL TRUSTEES AND NATIONAL EXECUTORS OF TASMANIA LIMITED AND ELIZABETH PERKINS v FLORENCE BERYL PERKINS,
DAVID BARCLAY PERKINS AND THE ART GALLERY BOARD
REASONS FOR JUDGMENT FULL COURT
NEASEY J
6 October 1989
The facts in this case have been fully set out in the judgment of Green CJ, which I have had the advantage of perusing in draft form, and in reasons given by the learned trial judge, Underwood J. Therefore there is no need for me to repeat the facts. As I understand the reasons for judgment of Underwood J., his Honour treated the question whether the appellants could prove that they owned the portraits as being determinative of whether they could succeed in recovering possession of them from the present possessors, the respondents. His Honour did not, however, treat possession by the respondents as giving them a possessory title good against anyone who could not show a better title, and therefore good against the appellants unless they could. This I understand from the passage in his reasons which reads:
"As against the plaintiffs, evidence of possession by the defendants does not prove a better right to possession as their possession was derived from the first plaintiff and her two sisters; nemo dat quod non habet."
With respect I do not think that is a correct view, because the respondents' possession was not derived from the three sisters. They were merely prior possessors for this purpose; and in any case, as his Honour said elsewhere in his judgment, it is the fact of possession which confers a possessory title good against anyone who cannot show a better – Pollock and Wright, Possession in the Common Law, p93; Field v Sullivan [1923] VLR 70 at p84; Gatward v Alley (1940) 40 SR(NSW) 174 at p 179.
But I do not think it matters whether his Honour's view in that regard was right or not, because as he rightly said, the appellants relied on ownership, and if they could not prove that they could not succeed against the respondents. In any event, resolution of this case depends in my opinion more upon a correct assessment of the probabilities than it does upon technicalities of the law of bailment and possession. There is a substantial body of circumstantial evidence here, and this is not a case in which the ability of the appellate court to draw inferences of fact is inhibited to any material degree by assessments made by the trial judge about credibility of witnesses. His Honour did not favour the credibility of any witness over another or others, but treated them all as telling the truth as they believed it, though he was not favourably impressed by the accuracy of recollections of conversations. There remain many facts which are undisputed or are settled by the findings of the trial judge, and in respect of them we are in as good a position to draw inferences as he was – Warren v Coombes and Another (1978–79) 142 CLR 531. In this overall assessment of probabilities, with respect I differ from the the trial judge. I think it should have been held that the appellant Miss Elizabeth Perkins, and her deceased sisters, the late Miss Joan Perkins and Mrs. Muriel Atkins, whose estates are represented by the other appellant, were at all relevant times the owners of both portraits.
Two salient facts which in my view have not been given the weight they deserve are the existence of the wills of Allan and Nora Perkins, respectively. When those two facts are given their due meed of significance, it seems to me that the remainder of the fact pattern falls fairly securely into place; even though there remain a number of puzzling circumstances. That the portraits were as at 1 January 1946 owned by and in the possession of Allan Perkins; that Allan died in 1949 leaving the whole of his estate to his wife Nora; that Nora continued to live in "Woodville" with her three daughters, Elizabeth, Joan and Muriel, until she died in 1964; that during the period 1949 to 1964 the portraits continued to be hung at "Woodville"; and that Nora died leaving a will which bequeathed "all (her) furniture and effects" (with the exception of some specific bequests) to those three daughters, are all agreed facts. Naturally it was disputed by the respondents at the trial that the portraits passed to the three daughters by the will of Nora, but it is not disputed that Nora Perkins' will was so expressed as to include and pass the portraits if she owned them at the time of her death.
On that statement of part of the known facts, if those sisters did not become owners of the portraits at their mother's death, it is necessary to postulate that some action of either Allan or Nora Perkins had the effect of divesting whichever one of them took that action of the property in the pictures. The learned trial judge of course recognised that, and he decided that:–
"Having regard to the family's perception of these portraits it is not at all unlikely that either Allan or Nora made an inter vivos gift, perhaps to David, the elder son, in much the same way as Tim said his father purported to make a gift of the portraits to him in 1979 … Similarly, it is not at all unlikely that either Allan or Nora made themselves a trustee of the portraits, the cestui–que trust being some member of the family other than Elizabeth, Joan or Muriel."
The following factors, however, tell against such a conclusion, and in my view suggest the opposite. First, there is no evidence, direct or circumstantial, to indicate that either Allan or Nora took any such action, other than his Honour's reference to the "family's perception of these portraits". What his Honour had previously said about that perception was:–
"Throughout the whole period [1946 to 1964] Woodville was the meeting place for family reunions at Christmas time and on other similar occasions. At these gatherings the portraits were a frequent topic of conversation, probably initiated in the main by Elizabeth, Joan or Muriel, and it was generally accepted in the family that possession of the portraits would remain in the family and, generally, be passed from eldest son to eldest son. At this time it was commonly believed that the portraits had no monetary value."
The learned judge also wrote later in the reasons about conduct of the sisters, after the portraits were handed over to David, which showed their attitude towards the portraits, but in drawing an inference as to what Allan or Nora might have done, presumably his Honour was referring to the family's attitude during their lifetimes. With respect, I cannot see any inference flowing from the family attitude to the pictures during the lifetimes of Allan and Nora which might support a likelihood that either would have made an inter–vivos gift to or a declaration of trust in favour of any of the sons or daughters. There would have been no point in transferring the property in the pictures to any one family member if they were intended to or thought likely to pass from eldest son to eldest son. In any event, no reason is apparent for doing so while the parents were or one was living, and "Woodville" was still thriving as the family headquarters. And if an outright gift of the ownership in the portraits was made to David, or a declaration of trust made in his favour, to his knowledge, during the lifetimes of either Allan or Nora, it is incredible that David would never have made any claim or suggestion to that effect before possession was handed over to him by William, entirely on William's initiative, it would seem; and incredible that no other surviving member of the family knew about such a postulated disposition.
Once it is inferred on what seems to me to be a strong balance of probabilities that no disposition of the portraits was made by either Allan or Nora during their lifetimes after 1946, that is enough to warrant, indeed require, a further inference that the property in the pictures passed by their successive wills to the three sisters. Such a conclusion would in turn be sufficient to ground a judgment in favour of the appellants, but before holding that the property in the pictures passed to the three sisters at their mother's death, of course it is right to look at the subsequent story in order to see whether the events which happened place any barrier in the way of forming such an inference.
It seems to me that the history of family events after Nora's death tends to support overall the proposition that Joan, Elizabeth and Muriel owned the paintings; though there are a number of puzzling elements. In the first place, the disposition of the paintings up to the point where they came into David's hands is quite consistent, I think, with ownership by the sisters; though it cannot be understood except in reference to the sisters' attitude to the portraits. As to that, I agree entirely with the learned trial judge's evaluation; namely that they did not regard them as having monetary value (or, I would add, if they did, the aspect of monetary value was not significant to them because they looked on the portraits as essentially family property), and that they were at all times until the pictures were sold concerned only with possession and not with ownership. On that basis, when they could no longer house these artifacts adequately, it would have been natural to them to look to the family member best able to do so, who was William. The fact that at that point they did not ask David, though William asked him when it was no longer appropriate for William to house them, is probably significant, and certainly shows they had no idea that David had any claim to ownership at that time. Probably it shows that neither William nor David did either.
The fact that William kept the portraits for some eight years while he had a suitable house, and turned them over to David when he no longer had, is consistent with the idea of the portraits as family property, to be housed by the family member best able to do so. It is curious that William did not consult with his sisters before he passed the paintings to David, though his failure is explicable by the central idea of suitable housing by a family member; and William seems by his later actions, after the sale, to have recognised that he made a mistake in not consulting, and to have done his best to rectify it. Even David's telling his son Timothy, some four years after he had come into possession, and when he was in ill–health, that "these will be yours. I would like to give them to you now and you are free to take them", is not necessarily inconsistent with this central idea; although Timothy's evidence was that he always understood from his father that the pictures were his (Timothy's) to sell. However, apart from technical questions of possessory titles and onus of proof, David could not pass the property in the pictures unless he had it himself, and I have already stated reasons for inferring that it is highly improbable that he ever did.
There remains the evidence of failure to include the paintings in the affidavit of assets and liabilities of either Allan or Nora, and the omission by the three sisters to include them in their lists of chattels to be disposed of post mortem. Those pieces of evidence tell against the proposition of ownership by the sisters, but I would not give them the amount of significance I think the learned trial judge did. The first part of that evidence can probably as a matter of decision to omit, or at least advice to do so, be laid at the door of the late solicitor Colin Perkins. He was solicitor for his brother Allan Perkins' estate; his sister–in–law, Nora, being Allan's sole executor. Then, when Nora died in 1964, Colin and David were her executors, and Colin the solicitor to her estate.
There was evidently some query to Colin from the Commissioner for State Taxes in regard to Allan's estate as to "the low value shown for 'furniture' in Woodville", and Colin replied with the unlikely on its face but perhaps true answer that only one chair in the house had been Allan's property, the rest being Nora's. No mention was made of the portraits in the affidavit in either estate. There can of course be no suggestion of impugning the reputation of the late Mr Colin Perkins, but the discussions he had with the Commissioner for Taxes it would appear were being conducted at arm's length, and I think it would be quite unjustified to draw any inference about the ownership of the portraits from the respective affidavits of assets and liabilities; especially if, which again seems an unlikely proposition, Mr Colin Perkins himself thought the Duterreau portrait was of no value. If on the other hand he knew it did have value, and that his brother had owned it, it is curious that he did not explain to the Commissioner why Allan had not owned it at the time of his death.
The other matters, of the sister' omission of the portraits from their lists of disposable assets, and of Elizabeth's saying to David's widow that if the (more valuable) portrait was to be sold it should have been offered to her first, are I think much less puzzling. The sisters simply did not look upon the paintings as their disposable property, and were not concerned with questions of ownership or value until the sale took place. When it did, the two survivors acted as one would have expected them to act when the questions of disposition and value did come into prominence, assuming their basic belief in their ownership once they thought and were advised about it. Elizabeth's saying that the portrait should have been offered to her first can easily be attributed to her puzzlement and perturbation at the turn events had taken. I think it is probable that if Timothy had retained custody of the paintings as other family members had done before him, nothing would have been heard from the sisters of their claims to ownership because the question would not have entered their minds.
In result, I have no difficulty in concluding on the balance of probabilities that the appellants discharged their onus of proof; and that at the time the portraits were handed to William, the sisters, Joan, Elizabeth and Muriel owned them, and they never lost that ownership. As to the issue concerning ss.6(1) and 6(2) of the Limitations Act 1974, I agree with the reasons given by the learned Chief Justice for holding that the respondents' contention fails. The appeal should succeed. I agree with the orders which the Chief Justice proposes.
File No FCA 128/1988
PERPETUAL TRUSTEES AND NATIONAL EXECUTORS OF TASMANIA LIMITED AND ELIZABETH PERKINS v FLORENCE BERYL PERKINS,
DAVID BARCLAY PERKINS AND THE ART GALLERY BOARD
REASONS FOR JUDGMENT FULL COURT
WRIGHT J
6 October 1989
There are several pieces of circumstantial evidence in this case which could be viewed as possibly inconsistent with the appellants' claim. However, for the reasons advanced by Neasey J., I am of the opinion that the correct inference is that the sisters Joan, Elizabeth and Muriel acquired ownership of the portraits by testamentary bequest and did not divest themselves of such ownership. Neither singly nor collectively do the several pieces of evidence relied upon by the respondents lead me to a contrary conclusion.
The same consequences follow if one tests the appellants' claims by reference only to the sisters' lawful possession of the portraits at the time that they were entrusted to William Perkins on "long loan". I agree with the Chief Justice that that transaction had all of the hallmarks of a gratuitous bailment and that consequently the appellants have a possessory title which of itself enables them to succeed.
I also agree with the Chief Justice's reasons for holding that the Limitation Act 1974, s6 does not bar the appellants' claim. Accordingly, I am of opinion that the appeal should succeed. I agree with the order proposed by the Chief Justice.
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