Perpetual Trustees and National Executors of Tasmania Ltd v Perkins

[1988] TASSC 99

Serial No B31/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:Perpetual Trustees and National Executors of Tasmania Ltd v Perkins [1988] TASSC 99; B31/1988

PARTIES:PERPETUAL TRUSTEES AND NATIONAL EXECUTORS OF TASMANIA LIMITED

PERKINS, Elizabeth

v
  PERKINS, Florence Beryl

PERKINS, David Barclay
ART GALLERY BOARD, The

FILE NO/S:    2329/86, 218519/85, 1246/87, 1247/87

DELIVERED ON:  7 October 1988
JUDGMENT OF:  Underwood J

Judgment Number:  B31/1988
Number of paragraphs:  45

Serial No B31/1988

List "B"

File Nos 2329/86

2185/1985

1246/87

1247/87

PERPETUAL TRUSTEES AND NATIONAL EXECUTORS
OF TASMANIA LIMITED and ELIZABETH PERKINS
v
FLORENCE BERYL PERKINS and DAVID BARCLAY PERKINS and THE ART GALLERY BOARD

REASONS FOR JUDGMENT  UNDERWOOD J

7 October 1988

1. Four separate actions were instituted and later consolidated by order of the Master to recover possession of two portraits, one of Emmely Frances Perkins nee Watchorn and the other, of her husband John Perkins. The former was painted by the colonial artist Benjamin Duterreau and the latter by an unknown artist of the same period. For convenience, I shall refer to these portraits, as do members of the Perkins family, as "Emmely" and "John" respectively.

1. John's portrait is in Hobart at Florence Beryl Perkin's home. In 1985 Emmely's portrait was sold by David Barclay Perkins for $55,000 to the Art Gallery Board of South Australia and is now in South Australia.

1. Until 1985 both portraits had been in the possession of various members of the Perkins family for over a century. Elizabeth Perkins and the Perpetual Trustees Limited, as executors of the estates of her two sisters, Joan Perkins and Muriel Atkins, claim that they are the owners as tenants in common of Emmely and John and are entitled to an order for their possession or payment of their value and damages for detention and/or conversion.

1. Ownership is the threshold question for determination in the resolution of these proceedings. In order to deal with the evidence on this issue it is necessary to set out some genealogy of the Perkins family, whose members will thereafter be referred to in these reasons by their first, or commonly assumed first, names in order to avoid confusion.

1. John and Emmely Perkins' son William, had 14 children by his marriage to Jane Eliza Winter. One son was a practitioner of this court, Colin Perkins. He died in 1969. The eldest son, William John Allan Perkins (Allan) married Nora Perkins. Allan died in 1949 and Nora died in 1964. Of this marriage there were six children; David Barclay Perkins (the elder son) who died in 1984, Nora Vincent, William Allan Perkins (Bill), Elizabeth Perkins, Joan Perkins who died in 1986 and Muriel Atkins who died in 1981. The last mentioned three daughters or their executors are the plaintiffs in this action.

1. David Barclay Perkins married the first defendant, Florence Beryl Perkins (Beryl). Of this marriage there were three children of whom only one, the second defendant and eldest son, David Barclay Perkins Jr. (Tim) need be referred to for the purpose of these proceedings.

1. 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.

1. 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.

1. 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.

1. 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.

1. The plaintiffs' claim to ownership depends upon the validity of the proposition that title to the paintings passed to Nora by virtue of the provisions of Allan's will and to Elizabeth, Joan and Muriel by virtue of the provisions of Nora's will which was admitted to probate on the 9 July 1965.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. In order to succeed in an action for detinue the plaintiffs must establish, on the balance of probabilities, that, at the time of demand for the return of the paintings they were entitled to their possession and it was common ground in this case that such right to possession could only exist as an incidence of ownership. In order to succeed in an action for damages for conversion, the plaintiffs must first establish, on the balance of probabilities, that, at the time the defendants intentionally did an act or acts inconsistent with the owners' title to the portraits, they were then the owners.

1. Although the pleadings of the first and second defendants allege that, in 1978, Elizabeth, Muriel and Joan made a gift of the portraits to David, the allegation was not supported by the evidence. In final addresses all defendants confined their submissions on the issue of ownership to the proposition that none of the plaintiffs had established on the balance of probabilities that, at the time relevant to each cause of action, they were the owners of either portrait. To succeed therefore the plaintiffs must discharge the onus of proof that, at the date of her death in 1964, Nora was the owner of the portraits. The evidence of what occurred between the agreed date of ownership by Allan, the 1 January 1946, and the date of the death of his widow in 1964 can shortly be stated as follows:–

1         Throughout the whole period the portraits remained in the same position on the walls of the drawing room of the family home Woodville.

2         Between 1946 and 1949 the family home was occupied by Allan, his wife Nora and, for at least some of the time, the three daughters.

3         Between 1949 and 1964 the family home was occupied by Nora and, for the majority of the time, the three daughters.

4         Throughout the whole period Woodville was the gathering 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 should 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.

5         The affidavit of assets and liabilities lodged in the estate of Allan contains no reference to the paintings. Nora was the sole executrix, and her brother, Colin, was the solicitor of Allan's estate. With respect to this affidavit of assets and liabilities the Commissioner for State Taxes wrote to Colin on the 19 June 1950 and asked for:

"Your observations regarding the low value shown for 'furniture'. If the balance of the furniture in the deceased's residence is claimed by some other person, upon what grounds is such claim based?"

1. Colin replied by letter dated 22 November 1950:

"With regard to the furniture, the only furniture owned by the deceased was one armchair which had been left to him by his mother the late Jane Eliza Perkins. All the other furniture in the house belongs to testator's widow [sic] and was either purchased by her with her own money or given to her by her parents." (The last sentence obviously, does not refer to the paintings).

6         The affidavit of assets and liabilities lodged in the estate of Nora was sworn by the executors, Colin and David and contained a very detailed list of the chattels in Woodville. This list included over 25 articles shown as located in the drawing room and included "watercolour by Carver" but made no reference to either Emmely or John. Having regard to the size of the portraits and the listing of numerous small articles kept near the portraits in the drawing room the inference is inescapable that the omission of the portraits from the affidavit of assets and liabilities was intentional.

1. To the above summary of the evidence concerning the portraits between 1946 and 1964 can be added the fact that the paintings remained in the possession of the three daughters at Woodville until it was sold in 1967.

1. For the plaintiffs it was contended that, from the foregoing facts, I should be satisfied on the balance of probabilities that the three daughters were the owners of the two portraits at the time possession was transferred to their brother Bill in 1967. For the defendants it was contended that the facts were insufficient to prove on the balance of probabilities that in 1964 Elizabeth, Joan and Muriel became the owners of the portraits. In support of this submission the defendants relied heavily upon the omission of the portraits from the affidavits of assets and liabilities filed in the estates of both Allan and Nora. It was submitted that, having regard to the family attitude to the paintings, it was not at all unlikely that either Allan or Nora transferred ownership to another, probably David the eldest son, during the lifetime of one or the other. Further, on behalf of the defendants it was submitted that there were a number of events which occurred after 1967 which were inconsistent with the plaintiffs' claim that in 1964, Elizabeth, Joan and Muriel became and thereafter remained the owners of both portraits. In substance, the most significant of these events were:–

1         In 1975, not long after the portraits had been moved from Bill's home to David's home David sent them to be restored. Whilst this was being done, Elizabeth, Joan and Muriel engaged the services of the restorer's wife to make a small watercolour copy of each portrait to hang on the wall of their home at Fitzroy Place.

2         Towards the end of 1976, Elizabeth, Joan and Muriel decided to make arrangements for the post–mortem disposition of items of personalty belonging to the three of them. Mr King, of the plaintiff trustee company, took instructions from the three daughters. It was their mutual wish that, after the death of the survivor of the three of them, ownership and possession of these items pass to various members of the Perkins family in accordance with directions in a list dated the 8 November 1976 and signed by the three of them. This list is four pages long and purports to divide over 100 items of personalty between 11 members of the Perkins family. The watercolour portraits made by the restorer's wife are shown on the list as to go to Thomas Vincent, a nephew. The list makes no reference to the original portraits of Emmely and John. I have no doubt that their omission from the list is deliberate. This list concludes with the following words:

"Any of our nieces or nephews may choose any of the contents of the house remaining – such distribution to be under the supervision of our trustees.

Any of the family interested may have any of the family books and/or papers not already allocated. If no one wants any of these they are to be offered to the State Archives. This list is meant to operate after the death of all three of us, or if the survivor(s) wish to make an earlier distribution.

It is our wish that Mary Bond attends to the disposal of personal papers, clothing, photographs etc., and to any necessary cleaning of the house."

3         After Tim sold the portrait of Emmely to the Board in 1985 he wrote to Elizabeth telling her of the sale and that it was proposed to use the money raised to provide for his childrens' education. In evidence, Elizabeth said that she was appalled when she received this letter, telephoned Beryl, and demanded to know why Beryl hadn't first offered the portraits for sale to her. She did not complain that Emmely belonged to her or her and her sister(s).

1. However, the evidence of events after 1967 is not probative of the issue of ownership prior to 1967 when the three daughters parted with possession of the portraits. Had there been evidence of a gift by the daughters after 1967 the evidence of what occurred after that date would corroborate the evidence of that gift, but there was no such evidence.

1. The probabilities are that, at all times, Elizabeth, Joan and Muriel were concerned only with the question of possession and that ownership was not adverted to until after the sale of Emmely's portrait in 1985. The concern of the three daughters was that both portraits remain in the possession of members of the Perkins family, preferably the eldest son, and so long as this situation was maintained they were content. In 1976, when the list was drawn up, the portraits were in the possession of the surviving eldest son and consequently the three daughters saw no need to include them in that list. Ownership, as opposed to bare possession, was not a relevant consideration.

1. The correctness of the view I have just expressed is reflected in the following exchange in cross–examination of Elizabeth concerning her reaction on learning of the sale of Emmely:

"PROCTOR     And what you found really appalling was that after all this time, one of the members of the family had made some money out of it?......No, I don't think so, I think the point was that they – that it had been sold, it was a family heirloom, and I felt it should not have gone out of the State. And – so it was the fact that it had been sold to South Australia rather than the fact that it had been sold at all?....Yes.

HIS HONOUR Mr. Proctor is putting to you, in effect, this, if Tim had sold it to the Tasmanian Museum and Art Gallery would you have been cross about it then? That's what he's really putting to you.

WITNESS       Yes I think I would have, because I don't think it was his to sell.

PROCTOR      You thought that the painting should have remained within the family?.....Yes."

1. The acquisition of ownership in a chattel, except in the case of res nullius, presupposes a previous ownership; Williams on Personal Property (18th ed.) 49. Ancient law, except in the case of bailment, did not attribute ownership of a chattel to anyone who did not have a right to possession; "Possession & Ownership" by AS Thayer (1907) 23 LQR 314 at p323; Blackstone Laws of England Vol II, 400 et seq. A person in possession, such as the Board or Beryl in the present case, is treated as owner save as against him or her who can show a better right to possession; Holdsworth, A History of English Law Vol VII 449.

1. Thus, it has been held that possession is itself prima facie evidence of ownership; Gatward v Alley (1940) SRNSW 174 at p179; Field v Sullivan [1923] VLR 70 at p84; Pollock and Wright, "Possession in the Common Law", Ch 3.

1. The plaintiffs rely on the provisions of Allan's and Nora's wills and possession by Elizabeth, Joan and Muriel between the date of their mother's death and 1967, when the paintings went to Bill, as sufficient proof of their ownership. 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.

1. In addition to the agreed fact and the common ground relating to actual possession there are two other significant pieces of evidence relevant to a determination of the issue of ownership between the 1 January 1946 and Nora's death in 1964. They are the statement in Colin's letter that Allan owned no furniture (apart from an armchair) and the sworn affidavit of Colin and David that, by inference, the two portraits were not owned by Nora at the date of her death.

1. The Deceased Persons' Estates Duties Act 1931, s9(1) provides in part that:

"Every Executor and every administrator, within six months or, where the estate is dealt with under part VI of the Administration and Probate

Act 1935, within nine months, after the death of the deceased person, shall lodge with the Commissioner a statement in the prescribed form showing full particulars as prescribed of the real and personal estate of or to which the deceased person was possessed or entitled at the time of his death (including therein any property of which the deceased person disposed by way of donatio mortis causa) and the value thereof at the time of his death".

1. Section 8 of the Act makes it unlawful for any person who has come into possession of any part of an estate of a deceased person to administer it without paying duty in accordance with the provisions of the Act.

1. An executor, as personal representative, comes into possession of all the estate of a deceased person to administer on behalf of the deceased. See Williams, Mortimer and Sunnocks, Executors, Administrators and Probate, 16th Ed 461. The whole of the estate comprises "assets for payment of [the deceased's] debts"; Administration and Probate Act 1935, s32(1). Although the Wills Act 1840, s3 authorises transfer of title to a chattel by testamentary direction, the beneficiary's right to enter into ownership is incohate until the executor has given his assent; Williams (supra) p481. In Kemp v Inland Revenue Commissioner [1905] 1 KBD 581 at p585, Phillimore J said:

"...The legatee of a specific term gets the legal estate in that term, just as the legatee of a specific chattel gets the ownership of that chattel by the will of the testator, the assent of the executor merely meaning that he no longer requires the chattel real or personal for payment of the debts, funeral expenses, or general pecuniary legacies of his testator."

1. Against that background the written statements of Colin and David must be considered. Both were children of both deceased, the latter being the elder son. The statement by Colin as solicitor to Allan's estate was not on oath and lacks precision. It is possible that Colin did not consider that the portraits came within the description "furniture" although he did answer a further query of the Commissioner about "property not described within the above descriptions" without making any reference to the portraits.

1. The truth of the statements in the affidavit of assets and liabilities in Nora's estate was sworn to by both sons. As I have found, the portraits were deliberately omitted from the document. I consider that document in effect to be a statement by Colin and David Perkins that, to the best of their knowledge, the portraits were not owned by Nora at the time of her death and that they did not pass into their possession as executors. Notwithstanding the absence of cross–examination, considerable weight should be given to that statement having regard to the obligations imposed by law upon Colin and David, the fact that both were sons of the testatrix and one was a practitioner of the court which admitted both wills to probate. As it is an agreed fact that, on the 1 January 1946, ownership and possession were vested in Allan, the statements of Colin and David carry the implication that Allan or, if Colin's statement in his letter to the Commissioner of Taxes is incorrect, Nora, made an inter vivos disposition of the paintings. 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. Words of gift accompanied by sufficient act of delivery not involving removal from the walls of the drawing room at Woodville, would be sufficient to transfer title. See In re Cole ex parte the Trustee of the Property of the Bankrupt [1964] 1 Ch 175. According to Tim's evidence his father's words of gift to him in 1979 and repeated on later occasions were unaccompanied by any act of delivery. 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.

1. After anxious and careful consideration of all the evidence I am 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.

1. Although the foregoing is sufficient to dispose of these proceedings I shall deal with an application made by the defendants during final addresses to amend the defences to plead the Limitation Act 1974, s6(1).

1. The defences as finally amended prior to trial relied upon the Limitation Act 1974, s6(2). In support of this pleading it was argued that, if the plaintiffs were owners of Emmely, David gave it to Tim during his visit to Tasmania at Christmas 1979 and that such gift was a conversion of the painting. There was a subsequent conversion of Emmely on the sale to the Board in 1985 and therefore, time commenced to run against the plaintiffs as from the date of the first conversion being, at the latest, the 2 January 1980. By way of reply, the plaintiffs pleaded the provisions of s32(1).

1. Section 6(2) makes provision for the extinguishment of the true owner's title. At best this could not have occurred earlier than Christmas 1985 and by that time, all pleaded acts of conversion and all pleaded acts of detinue except that relied upon on behalf of Muriel's estate had occurred. In final addresses, counsel for the defendants acknowledged that, on any view of the facts, s6(2) would not afford a defence, except with respect to the claim in detinue brought by the executor of Muriel's estate. Consequently an application was made to amend all defences to plead as follows:

"The action is barred by s6(1) of the Limitation Act 1974

Particulars

A        On or about December 1979 the said painting was converted to the use of the second defendant by its gift to him from his father David Barclay Perkins Snr.

B         The plaintiff's claim for conversion or detention of the said painting was not brought within six years of the conversion in December 1979."

1. Jurisdiction to allow the amendment, even at such a late stage in the proceedings, exists by virtue of the Rules of Court, O31 r1. It involves the exercise of a judicial discretion. The principles involved in the exercise of that discretion were stated by Bowen LJ in Cropper v Smith (1884) 26 Ch 700 at p710 as follows:

"Now, I think it is a well established principle that the object of courts is to decide the rights of parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights....I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything in the case is a matter of right."

1. In Steward v The North Metropolitan Tramways Co (1886) 16 QBD at 556, Lord Esher MR said at p558:

"If the amendment is allowed now, will the plaintiff be in the same position as if the defendants had pleaded correctly in the first instance?"

1. Counsel for the plaintiffs expressly conceded that the plaintiffs would suffer no prejudice if the amendment were allowed. There was no claim that the conduct of the case or the evidence adduced would have been any different had s6(1) been pleaded in the first instance. The defences as pleaded at the beginning of the trial relied upon s6(2) of the Act and, by reply, the plaintiffs relied upon s32(1) of the Act.

1. I am satisfied that, if the amendment is allowed, the plaintiffs will be in the same position now as they would have been had s6(1) been pleaded before the trial began and consequently, as no injustice to the plaintiffs will flow from the making of the amendment, the application should be allowed and the defences amended accordingly.

1. In view of the conclusion I have reached upon the issue of ownership it is unnecessary to embark upon a consideration of the evidence relevant to the issues raised by s6(1) and s32(1) of the Limitation Act 1974.

1. There will be judgment for the defendants.