Sayed v McArthur

[2020] NSWDC 12

District Court

New South Wales

Medium Neutral Citation:	Sayed v McArthur & Anor [2020] NSWDC 12
Hearing dates:	11-13 February and 12 March 2020
Date of orders:	07 April 2020
Decision date:	07 April 2020
Jurisdiction:	Civil
Before:	Smith SC, DCJ
Decision:	The proceedings be dismissed. The plaintiff to pay the defendants’ costs.
Catchwords:	TORT – Trespass to person – Battery – Elements – Issue of credit TORT – Breach of contract – Essential element – Disposal of possession without consent – non-payment of monies
Cases Cited:	Barton v Amrstrong [1969] 2 NSWR 451 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Croucher v Cachia (2016) 95 NSWLR 117 Holloway v McFeeters (1956) 94 CLR 470 Jones v Dunkel (1959) 101 CLR 298 Payne v Parker [1976] 1 NSWLR 191 West v Government Insurance Office (NSW) (1981) 148 CLR 62
Texts Cited:	J D Heydon AC, Cross on Evidence (10th ed, 2014, LexisNexis Sydney)
Category:	Principal judgment
Parties:	Bill Sayed – Plaintiff Nicole Susan McArthur – First Defendant Nigel John Reddin – Second Defendant
Representation:	Solicitors: Plaintiff self-represented Robertson Saxton Osborne - Defendants
File Number(s):	2018/18818
Publication restriction:	Nil

Judgment

1. The plaintiff and the first defendant were married in 1993 and had a number of children together. They lived in a property at Woonona, south of Sydney (Woonona property). The marriage ended in divorce in October 2014. The plaintiff alleges that the first defendant violently assaulted him and threatened him on a number of occasions in 2015.

2. In November 2015, the first defendant formed a relationship with the second defendant. The plaintiff contends that in January 2016 the second defendant threatened to shoot him at Maroubra (Maroubra incident).

3. The plaintiff seeks damages from the defendants for assault and battery. He also claims that the first defendant disposed of, or damaged, his personal property that was left in the Woonona property and that she breached an agreement to pay him money on the sale of a motor vehicle registered in her name.

4. During the course of cross-examining the second defendant the plaintiff alleged that it was the second defendant who took his personal property from Woonona. That claim was not pleaded and may be left to one side. The defendants deny all these incidents.

5. There were two notable aspects of the evidence in the proceedings. First, for the most part, the plaintiff’s evidence was entirely uncorroborated. Secondly, with the exception of the Maroubra incident, the defendants offered no evidence in chief at all, choosing in effect to put the plaintiff to proof.

6. The first defendant was in a position to give evidence in respect of all of the claims made by the plaintiff. She had in fact sworn an affidavit in the proceedings for the purpose of doing so. However, her affidavit was not read and, ultimately, with leave, she only gave oral evidence in chief about the Maroubra incident. Although the plaintiff was told that his cross-examination of the first defendant was not restricted to “the evidence given by the first defendant orally”, he initially only cross-examined her about it. After I had reserved judgment, the plaintiff sought leave to further cross-examine the first defendant. I granted that leave and the plaintiff cross-examined the first defendant for two more hours, in fact enabling her to give her version of events about each of the other allegations.

7. The plaintiff asked me to draw an inference from the first defendant’s failure to give evidence in chief about anything except the Maroubra incident.

8. The unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have asserted that party’s case: Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320-1; J D Heydon AC, Cross on Evidence (10th ed, 2014, LexisNexis Sydney) at [1215].

9. The rule allows inferences favourable to the plaintiff to be drawn more confidently: Holloway v McFeeters (1956) 94 CLR 470, 480-1. However, it cannot be employed to fill gaps in the evidence.

10. These principles may be applied where a party fails to ask questions of a witness in chief, at least where the most natural inference is that the party feared to do so: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-9 (Handley JA).

11. The first defendant was clearly in a position to elucidate the facts alleged by the plaintiff and there was no evidence given to explain why she did not give evidence in chief about anything other than the Maroubra incident (see West v Government Insurance Office (NSW) (1981) 148 CLR 62 at 70). Instead, the decision was said, from the bar table, to have been a forensic one. In those circumstances, the rule may be applied: Payne v Parker [1976] 1 NSWLR 191 at 201-2 (Glass JA).

12. The difficulty facing the plaintiff’s submission here is that the first defendant did give evidence about the allegations made against her. That evidence, as it turned out, did assist her. It would be unnatural in those circumstances to draw an inference that her evidence would not have assisted the defendants’ case. Further, having regard to history between the plaintiff and the first defendant and the way in which the plaintiff cross-examined her, and her demeanour during that cross-examination, there was a more obvious inference available as to why she chose not to give much evidence in chief. Regrettably, the plaintiff’s cross-examination was very unsettling for the first defendant. She was visibly upset and barely able to look at him. At one point, the first defendant lost her composure and expressed her view that the plaintiff was doing no more than continuing to attack her for having left him. The inference that most naturally arises from all of this is that the first defendant simply did not want to engage in an ongoing emotional battle with her ex-husband.

13. For those reasons, I conclude that the principle in Jones v Dunkel does not arise in this case and, even if it did, I would not draw the inference the plaintiff seeks.

14. In these circumstances, the credibility of the plaintiff’s evidence is critical to the factual issues between the parties. While that issue must be determined by reference to other evidence as a whole, including the evidence of the first defendant under cross-examination, it is useful to start with a consideration of the evidence about the Maroubra incident.

The Maroubra Incident

15. In January 2016 the plaintiff was living in Brighton-Le-Sands. In his affidavit he gave the following evidence:

“167   On 8 January 2016 I was on my way to visit Maroubra Beach Yoga in Ferguson St before my pre-booked yoga class at Yogala, I was using the GPS on my phone to guide me there, I was traveling on North on Anzac Pde, the GPS said turn left on Wise Street, so I did, the GPS then said turn right on Ferguson St so I did

168   Ferguson St, Maroubra is a two-way street however it is very narrow, I believe that two vehicles travelling in the opposite direction would have trouble passing each.

169   As soon as I turned onto and drove down Ferguson St, I noticed a male a female had just started crossing the road with their backs towards me, my attention was drawn to the female because she looked behind her and she continued to make eye contact me with me, this female then let go of the male’s hand and stepped over to the side of the road by herself, when she did this the male seemed confused, he stopped in the middle of the road blocking the path of my vehicle. …

170   I have marked an X on the map in the area where the male blocked my car, I believe the time was around 4:40pm

171   I brought my vehicle to a stop, I looked at the male, I looked at the female, we were all looking at each other, “I thought to myself what is going on here?”, I looked closer at the female who was now near the door to my vehicle, I looked again and I could not believe my eyes, it was Nicole.

172   I opened my vehicle door and stepped out, I was still in shock, I said to Nicole “what are you doing here?” meaning Maroubra, she didn’t say anything, then I said “who is this guy?, meaning who is this male?, again she didn’t say anything.

173   I now know this male to be Mr Nigel Reddin, the second defendant.

174   We all stood there for what seemed a long time just starring at each other, I exchanged a few words with Nicole, she kept looking over at the male who maintained his distance, then without warning the male walked over to us and proceeded to get very close to me

175   Mr Reddin the said these words to me, “I know who you are and I don’t give a fuck who you think you are”, I understood those words to mean that Nicole and Mr Redding had previous conversations about me, I also understood Mr Redding also to mean that it didn’t matter what I thought about my own alpha status was because he was a much higher ranking alpha and he wanted me to know that through his words and his actions.

176   Mr Reddin then said the words “I know people, I’m well known in this area, just ask around, I’m going to fuck you up”,

177   I became very concerned for my safety at this point so just stood there whilst Mr Reddin continued to intimated me.

178   Mr Reddin then stepped back and came at me again this time then he pushed his body against mine, then pushing his nose against mine, at this point I understood Mr Reddin wanted to get into a physical altercation with me.

179   Mr Reddin then said these word “You fucking come here and do this at my home”, he then said “I’ll fucking have you!, I’ll going to fucking shoot ya!”

180   I had fears that Mr Reddin was about to strike me so I never spoke anything else to either Mr Reddin or Nicole, I was thinking who is this guy, it sounded to me like he was a criminal of some type, I became very concerned, I didn’t know if he knew where I currently lived, I presumed that he did.

181   I went back to my car and got in, I then noticed that the pair got into a very late model black BMW, I thought this guy must be a drug dealer, then I heard the words he said to me again in my head “I’ll fucking shoot ya”

182   So many things were running through my mind at one time I had trouble processing all the information, I now had real fears for the safety of my family and I had no idea who this guy was, I decided to get some evidence so I grabbed my phone and took a number of pictures of Mr Reddin so he could be clearly identified. …

183   I now know that the vehicle Mr Reddin was driving a 2012 BMW 5 Series having a then value of around $130,000.

184   After returning to my vehicle, I felt very ill and started shaking, so I drove back to my home at Brighton Le Sands, my sons Ali and Adem where there by themselves.”

(Without alteration)

16. The following day, 9 January 2016, the plaintiff went to the Kogarah Police Station and undertook a recorded interview with Police. He said in cross-examination that he did not look at the transcript of that interview when preparing his affidavit and that the second defendant’s words were etched in his head like it was yesterday. Later in cross-examination he said that he may have had regard to the transcript or other documents but could not recall. He also said that he could not recall whether he had in fact told the second defendant to “go away”, a matter he had told the police. He then added that he “may have said something to Nicole” (the first defendant) as the defendants walked off but he could not recall and that, contrary to his affidavit, there may have been a conversation between him and the second defendant. This passage of cross-examination showed the plaintiff was willing to amend his evidence to suit his case.

17. He also added to his affidavit evidence in a significant respect. He was asked in cross-examination when he thought he was going to be shot. He responded that he had no idea and then added that he did not understand the second defendant’s words when they were spoken because of the second defendant’s thick accent and that he did not realise what had been said to him until he got back into his car. The plaintiff said that he did not think it was going to happen straight away because a person walked past at that moment.

18. Next, he said that he had fear from the moment the second defendant approached him.

19. The second defendant’s version of the Maroubra incident was contained in a statement made by him to police shortly after the incident [1] . In that statement the second defendant relevantly said:

    1. Exhibit 10, a document tendered by the plaintiff.

“5.   Bill started to walk over and approach Nicole and I. Bill was looking at Nicole and

He said: “What are you fucking doing”

Nicole said: “How did you find me here”

He laughed and said “This is what I do for a living”

Bill looked at me, pointed at me and said “Who is this fuckwit”

I said “You’re causing a scene outside my house, could you please grow up or take it somewhere else”

He said “That’s my wife”

I said “That’s not your wife, you’re divorced”

Bill turned around at this time and pointed at my house sternly said “I know where you live, you are history”

6.   I grabbed Nicole and told her to get into my car. Bill got back into his car and drove back a little. As I was turning my car around, Bill exited his car again and started to take photos of my car, Nicole and I.

Bill again pointed at me looked me in the eye and said “I know people, you are history.”

20. The second defendant was cross-examined at length by the plaintiff. He impressed me as a straightforward and honest witness with a clear recollection of events.

21. It was suggested to the second defendant that he and the first defendant did not in fact go straight to the police station to report the incident but, rather, had driven first in order to “get their stories straight”. The plaintiff put to the second defendant that the couple drove past Maroubra Police Station, turned left again and left again. The second defendant agreed that was the case, but explained that he was driving a customer’s car worth $180,000 and wanted to park it in the underground carpark of his apartment block, which required him to drive around the block. He said that he would not drive to Maroubra Police Station because there was no parking outside it and it was, in any event, a three minute walk from his home.

22. The first and second defendants walked to the police station immediately after parking the car in the garage. The second defendant explained that he did this to protect the car from the plaintiff because he had seen footage of the plaintiff damaging the first defendant’s car.

23. This questioning from the plaintiff about the precise movements of the first and second defendants after the Maroubra incident (which also extended to nominating the restaurant where they had driven) is troublesome. It suggests that, contrary to his affidavit evidence, he did not go home straight after the incident, but rather, followed the first and second defendants. That could be seen to be inconsistent with any fear of harm from the second defendant.

24. The first defendant also gave evidence about the incident. Her evidence in chief was to the following effect: she and the second defendant left the second defendant’s apartment and turned around when they heard a car. She saw it was the plaintiff’s car from the number plates (“BILLYS”). The plaintiff got out of the car. He said “why are you fucking here? What are you doing with this fuckwit? What are you doing with my wife?”

25. The first defendant said that the second defendant stood back while the plaintiff abused her and then exchanged a few words with the plaintiff including asking him to keep his voice down.

26. The first defendant was cross-examined in respect of this evidence. She accepted that part of her evidence (that the plaintiff had “flung open” the door) was not in her police statement, but that it was what happened.

27. The first defendant was clearly distressed in giving evidence and did not look at the plaintiff at all, facing the bench instead. I found her distress to be real and that she honestly gave evidence of her recollection of events.

28. Leaving aside for the moment the difference in the accounts given by the plaintiff and the defendants, there are a number of problems with the plaintiff’s own evidence. First, I consider it highly unlikely that it was a coincidence that he was in the same street as the defendants. He lived at Brighton-Le-Sands, not Maroubra. Ferguson Street, where the incident took place, is a very narrow street, parallel to the main thoroughfare in Maroubra, Anzac Parade. The plaintiff’s evidence that he was following sat-nav (satellite navigation or GPS) to look at a new yoga studio is very unlikely. Why would a navigation device take you down such a street when a major thoroughfare was equally available? In any event, there appears to be no good reason why the plaintiff would travel all the way to Maroubra from Brighton-Le-Sands to go to yoga. What was so special about the studio there? Why would he not go closer to home? The single answer to all of this is that Ferguson Street was where the second defendant lived and the first defendant was seeing the second defendant.

29. Secondly, as I have set out above, the plaintiff changed his evidence in significant respects and appeared willing to do so to improve his case.

30. Thirdly, the plaintiff’s own evidence that he got out of his car and stood in front of, and directly next to the car the second defendant was driving is inconsistent with a person in fear of being shot or harmed in any way: the photographs [2] show that he was standing very close to the second defendant when he took those photographs.

    2. Affidavit of Bill Sayed dated 27 February 2019, Annexure K and Exhibit 11.

31. I have carefully considered all of these matters and have taken into account my impressions of the plaintiff in giving evidence. Having done so, and conscious of the seriousness of my conclusion, I have come to the firm view that the plaintiff fabricated his evidence about the Maroubra incident. I do not accept any of it to the extent that it is inconsistent with the evidence of the first and second defendants.

32. There are two direct consequences of this conclusion: first, the claim against the second defendant must be dismissed. The second defendant never threatened the plaintiff with any harm and, in particular, did not threaten to shoot him. The plaintiff will be ordered to pay the second defendant’s costs.

33. Secondly, the plaintiff’s credibility in general is seriously undermined. While I will examine his evidence in respect of the balance of the claims, I do so against the background that he has fabricated a significant claim and given false evidence under cross-examination. As will be seen, my concerns about his credibility are confirmed by a number of aspects of his evidence about the remaining claims.

8 April 2015: Kick to the genitals

34. The plaintiff’s evidence was that, at 12:45pm on 8 April 2015, the first defendant called him and said “I’m coming down there to kick your fucking ass, you asshole”.

35. The immediate background to this was a series of emails between the plaintiff and first defendant on 7 April 2015 about a letter from the plaintiff proposing a property settlement [3] . The letter itself was not in evidence, but I accept that it concerned a property settlement between the plaintiff and the first defendant.

    3. Affidavit of Bill Sayed dated 27 February 2019, Annexure B.

36. This was followed by an email at 12:16pm on 8 April 2015 from the first defendant asking whether the electricity was being cut off two days later (I infer that this was a reference to the electricity supply at Woonona). The plaintiff replied at 12:34pm that the internet was being cut off on Friday, the electricity at the end of the month. Another email from the plaintiff says that the internet was “something that this company does not have the use of anymore and an expence [sic] I cant justify”.

34. The plaintiff said that the first defendant came into the shop at approximately 1:16pm, when customers were there, she walked around the counter and into the rear section of the office. That much is corroborated by CCTV footage [4] . The plaintiff then said that “fearing embarrassment” he “quickly disposed of” his clients and attended to the first defendant. The CCTV in fact shows the plaintiff continuing to talk to his clients for 3½ minutes after the first defendant entered. That may or may not be quick, but there was no sign of him trying to quickly dispose of anybody.

    4. Exhibit 2.

35. The plaintiff then says in his affidavit:

“62   The back area of my office was not very large so I sat in the office chair so to seem submissive to Nicole, it was my way of trying to calm the situation, Nicole was standing in front of me, we started to have a conversation for a few minutes, then without warning she snapped, she raised her leg at a 90 degree angle and then kicked downward driving her foot directly into my genitals, I was instantly in pain, I leaned forward in an attempt to ease the pain, it was at this point that Nicole started to strike me in the head, I stood up, Nicole continued to strike me in the underbody until I managed to wrap my arms around her to prevent hers arms from swinging at me, she continued to fight so I pushed her out into the office front area and I yelled at her and told her that she was now on camera, she then came back at me at started to push me back into the rear office area.

63   I managed to push Nicole back into the front office area and continued to ask her to leave, I said “what the hell are you doing, have you completely lost your mind?”, she started to walk away but lunged at me a few times.

…

65   After that assault I was in pain and feeling anxious, I closed the shop and drove my car to the beach at sat there for the remainder of the day, I felt alone and very depressed, at the end of the day I went and stayed the night at a friend’s house.”

(Without alteration)

39. The first defendant was cross-examined at length about this incident. She said that she had gone to the office to talk to the plaintiff about him cutting off the internet and electricity. She said she went into the back office as she had many times in the past because it was a family business and she went to the office five times a week. That part of her evidence was not challenged by the plaintiff. The first defendant denied that she had assaulted the plaintiff and said that it was he who pushed her out of the office. She denied that he had done this so that she would be shown on the CCTV at the front of the shop and said that there were cameras in the back which had been installed because there were valuable goods kept at the back. She explained that she had tried to push the plaintiff away from her in order to defend herself.

40. The CCTV evidence [5] shows the plaintiff going into the back room after two customers leave his shop. Four minutes and 28 seconds later the first defendant comes back into shot. She appears to have been pushed against the wall. That is consistent with the plaintiff’s evidence that he pushed her and the first defendant’s evidence that it was her, and not him, who had been assaulted. The first defendant is then seen to turn back towards the plaintiff and lean forward as though to bend over to pick something up from the ground. Her body moves back and forward, as though in a struggle with the plaintiff who is off-screen, her right leg is braced back in support. The first defendant recoils and the plaintiff appears on screen and is shown pushing her into the shop. He then looks down to the ground and appears to move something away from the first defendant with his foot. The plaintiff then motions to the first defendant to leave, she turns and leaves the shop. As she does, the plaintiff stands behind the counter, leaning forward on his hands which are under a part of the counter top. Through this, the plaintiff appears to be moving with ease and shows no sign of pain or injury at all.

    5. Exhibit 2.

41. Overall, the CCTV footage is more consistent with the first defendant’s evidence than with the plaintiff’s.

42. Further, it is unlikely that the first defendant could have kicked the plaintiff in the genitals in the manner described, a sort of karate axe-kick, if he was sitting submissively as the plaintiff said. If she had performed such a kick the downward arc of her foot would most likely have brought her into contact with his upper body. While there is little doubt that there was a heated discussion between the two, the objective evidence suggests that the only physical aggression came from the plaintiff. The unlikelihood of the karate kick, together with the plaintiff’s lack of credibility, the fact that he showed no pain at all in the video footage, and was, in fact the only aggressor in that video, lead me to conclude that the plaintiff has fabricated the assault against him and I find that it did not occur.

9 April 2015: the car

43. The plaintiff claims that, on 9 April 2015, he agreed to talk to the first defendant in her car. She picked him up at his work and then drove north on the Princes Highway.

44. The plaintiff’s evidence is that the first defendant turned onto Bulli Pass, a steep winding road that goes up the escarpment from Bulli towards Sydney. He says that she yelled at him about his property settlement offer and started driving erratically at 100km/h. He says that she yelled at him “I’m going to fucking kill you, you cunt” and he says that he thought that this was to be the end.

45. He said that the car was now travelling at 120km/h and he decided to take drastic action and describes what followed:

“78   I looked forward and behind the car, I also saw a clearing to the left road shoulder and then found an opportunity where there were no cars close by, I leaned across and took hold of the steering wheel with both hands, then held the steering wheel with my left hand, then pushed Nicole’s arms away with my right arm, then reached down and applied the vehicles emergency/park brake and the directed the vehicle towards a clearing on the left road shoulder.

79   The vehicle came started to slow then started to slide sideways and then to a screeching stop on the left shoulder, I had managed to control the vehicle exactly how I planned it in my head.

80   As soon as the vehicle stopped, I exited and immediately jumped over the steel road safety guard rail, I did that because I had fears that Nicole would try and run me over with the vehicle.”

(Without alteration)

46. There is CCTV evidence of a VW Golf driving into the driveway of the plaintiff’s work and then leaving. Apart from that, there is no corroboration of the plaintiff’s claims.

47. The first defendant’s evidence was that she did come to pick up the plaintiff from work but that she drove to a nearby beach to talk. She said that they had done that a number of times in the past. She said that the plaintiff’s claims about Bulli Pass were a fabrication.

48. Even though the first defendant was most likely upset by the plaintiff’s offer (and probably the fact that he had arranged to cut the electricity supply and internet connection to her house) I find it very unlikely that she would have driven so recklessly and at such a speed up a steep and winding road threatening to kill the plaintiff. Plainly enough, the threat, if made, would have included herself. While people under emotional strain can act irrationally, even dangerously, there is nothing in the evidence to suggest that the first defendant ever had any intention of harming herself. The whole of the evidence shows that she was making an effort to move on with her life and to look after her children. Further, as shown in the emails referred to above, the first defendant had just engaged lawyers in relation to the property dispute to deal with the issues between her and the plaintiff. It is inconsistent with that step that she should then seek to kill both herself and the plaintiff at that time.

49. The means by which the plaintiff says he bought the car under control are also highly implausible. Without expert evidence to the contrary, I am not satisfied that it is possible to apply emergency brakes at 120 km/h without a total loss of control. The plaintiff did not give evidence of any expertise in the handling of cars at that speed. These matters add to the plaintiff’s general lack of credit and, taken with it, lead me to find that this incident did not occur at all.

16 April 2015: encouraged him to end his life

50. In his affidavit the plaintiff refers to a conversation with the first defendant on 16 April 2015 about the house and the NAB proceedings. That conversation was the basis of the pleaded allegation [6] that the first defendant encouraged him to kill himself. However, that is not what she did.

    6. Second further amended statement of claim filed 11 February 2020 at [3(c)].

51. A recording of the conversation was in evidence. After some discussion about the Woonona property, the first defendant says the following before hanging up:

“… you’ve just lost your family home. You’ve dragged us through hell for 5 years. You’ve spent thousands and hundreds of thousands of dollars on this, how do you feel? How do you feel right now? If I was you, I’d go neck myself. I would go and neck myself. You’ve just put us through fucking hell.”

52. What she says, unmistakably, is that she would be ashamed of herself if she had done what the plaintiff had done (and continued to do) to their family. I do not accept that it can reasonably be taken to be an encouragement to the plaintiff to kill himself. The plaintiff says that he was so upset by this that he cried uncontrollably. I reject that but, even if it were true, it was not because of any threat committed by the first defendant.

53. In any event, the first defendant’s words did not constitute an assault. The tort of assault is committed where the act of a person caused another person reasonably to apprehend a threat of force or violence: Barton v Amrstrong [1969] 2 NSWR 451 at 455 cited by Leeming JA in Croucher v Cachia (2016) 95 NSWLR 117 at 42. The first defendant’s words did not convey any threat of violence or force and so did not amount to an assault.

20 April 2015: baseball bat

54. The plaintiff says that he was at the Woonona property on 20 April 2015 doing some boxing in the garage. He says that the first defendant came in after having dropped the children off at school. According to him, the first defendant pointed at her genitals and said “what, you don’t want this anymore?” He says that he ignored her but started considering his options for getting out of the garage. He described what followed in his affidavit at [105]-[106]:

“105   Nicole then took hold of an aluminium baseball bat that was resting upright near the shoe rack by the garage door, she then ran at me with a swing of the bat, I moved backwards and the bat struck me in the top left shoulder just missing my head, I moved back some more, she then came at me again this time she pushed the bat against my throat with both her hands as she pinned me against a vehicle in the garage as she started yelling “I’m going to fucking ruin your life, you cunt!”

106   I managed to grab control of the bat from Nicole and pushed her back taking the bat completely from her, I then used the bat to push the internal garage switch located on the bottom of the garage door motor to open the garage door, I did that because the garage door faced the neighbour’s and I knew that doing that would get her to stop assaulting me.”

55. The first defendant denied this event took place. She gave evidence that the plaintiff was not living at Woonona at the time, but was living with another woman. Further, she said that the plaintiff kept a baseball bat behind his bed, not in the garage. I accept that evidence and reject the claim.

56. The event could not have happened in the way described by the plaintiff. There is a photograph of the garage in evidence [7] . The only place the internal door to the garage could be is to the rear at the right of the photograph. If the plaintiff was boxing, the boxing bag (shown as hanging diagonally above the car) would have been hanging vertically to the left of the car. If there was a car in the garage at the time, as the plaintiff says, it would have been between the internal door and the boxing bag. The most likely place for the plaintiff to stand to punch the bag would be to the left of the bag (towards the weight rack) or towards the main garage door. There would be very little space between the car and the boxing bag. In those circumstances, the car and the bag would have been between the first defendant and the plaintiff making it next to, if not completely impossible for her to rush forward with a bat and hit the plaintiff.

    7. Exhibit 9.

57. This adds to my general concerns about the plaintiff’s credit. I reject the claim.

November 2015

58. The next series of events relied on by the plaintiff is said to have occurred in the Woonona property in November 2015. The first incident was described by the plaintiff in his affidavit as follows:

“138   On the evening of 15 November 2015 I was in my bedroom laying down on the floor doing abdominal exercise’s whilst watching television, Nicole walked into the room, she then ran towards me and kicked me in the right side of my ribs, I instantly felt my ribs break and was in serve pain, I huddled into a ball and lay on the floor, I was in a great deal of pain but I also had feelings of deep sadness and depression”

(Without alteration)

59. The plaintiff sought to explain this otherwise unprovoked attack on two bases: first, the first defendant had just realised that she would receive nothing from any sale of the house or any judgment against the NAB in favour of the plaintiff; and secondly, she had just met the second defendant and wanted to get rid of the plaintiff. The second defendant’s evidence was that he met the first defendant on 20 November 2015. He remembered that from a large tattoo on his right arm. I accept that evidence and reject this as a reason for which the first defendant might want to attack the plaintiff. I also reject the first explanation: proceedings brought by NAB had been going on for years and the very real threat of eviction had been hanging over the plaintiff and his family since at least April 2015. It is unlikely in those circumstances that the first defendant held any expectation of getting any money from the sale of the property.

60. That means that there was no rational explanation for the attack except, perhaps, ongoing animosity between the plaintiff and the first defendant. That weighs against the likelihood of the attack.

61. The first defendant denied that the attack ever took place. She said that the plaintiff was not living at the Woonona property at the time she was alleged to have assaulted him. She also denied having been in a relationship with the second defendant at the time.

62. The plaintiff did not have any evidence to corroborate his injury. He did not see a doctor and, unlike other occasions, did not think to take photographs. It is common experience that broken ribs will result in some deep bruising in the location of the break. Added to these matters is my general impression of the plaintiff’s credibility. Overall, I am not satisfied that this incident took place.

63. The second incident is said to have occurred on 22 November 2015. The plaintiff had returned home by this time and was in his home office. According to the plaintiff, the first defendant came in and “violently assaulted” him, striking him in the face, body and legs and grabbed him and pushed him around the room: [144].

64. The third incident followed a few hours later when the first defendant returned to the property. The plaintiff says (at [148]) that the first defendant forced open the office doors and started assaulting him again in the same manner. He pushed her out of the office but she came back and punched him in the face and started kicking and punching him everywhere. The plaintiff says that he then “managed to pick her up off her feet and throw her across the room onto the lounge which she landed safely on”: [149].

65. The plaintiff says that this was the first time he had ever put his hands on the first defendant. That is not right: the CCTV of his office in April clearly shows him pushing her around. In any event, I reject these further allegations of violence by the first defendant. There was no real explanation for them in the evidence, there was no corroborative evidence (of, for example, bruising to the face) and I have serious concerns about the plaintiff’s credit in general. The first defendant also gave evidence denying these assaults.

66. These incidents did not occur and the claims based on them are rejected.

Contract claim: VW Golf

67. In his second further amended statement of claim, the plaintiff contends ([19]-[20]) that there was a contract between himself and the first defendant concerning two vehicles: an Audi A3 and a VW Golf. No claim of breach is made in respect of the Audi and it can be left to one side. The terms of the contract concerning the VW Golf were said to be that the first defendant would “retain” that vehicle and would pay the plaintiff an amount of $9,500 “at some point in the future”. The plaintiff alleges that the first defendant breached the contract in July 2016 by disposing of the VW Golf “without authorisation and consent” from the plaintiff and because she did not pay him $9,500.

68. The claim must fail on its face because the alleged breaches do not align with any pleaded term. Additionally, the term pleaded is uncertain as to an essential element, namely the time of payment. The fact that the plaintiff is unrepresented does not, in my view, excuse him from having to plead his case. If that does render the contract void, it has the consequence that there can have been no breach.

69. A further difficulty is that the plaintiff does not allege that he owned the motor vehicle, only that he paid for it. That is not necessarily sufficient in a husband/wife relationship.

70. In his affidavit, the plaintiff relied on the email sent by him to the first defendant dated 26 December 2015 [8] . In that he wrote:

    8. Affidavit of Bill Sayed dated 27 February 2019, Annexure I.

“Ms McArthur,

The VW Golf was purchased by us for the sum of $26,000 in 2014, is not encumbered and is currently valued around $19,000, as part of property division we have the following options:

1. You retain the vehicle and pay me $9,500

2. I retain the vehicle and pay you $9,500

3. We sell the vehicle and split the proceeds 50/50

4. You retain the vehicle and we deduct $19,000 from your share of the family home when resolved

Looking forward to your reply.

regards,

Bill Sayed.”

(Without alteration)

71. There is no evidence of a reply to this email. The plaintiff says, at [164]:

“On 7 January 2016 I believe that a contract between myself and Nicole was formed concerning the two vehicles, I have not received any money from Nicole concerning the VW Golf, I maintain ownership over that VW until I paid at least $9,500”

(Without alteration)

72. That evidence takes the claim no further; there is no evidence of either the agreement or its terms.

73. The plaintiff also relies on a judgment given in the Local Court: [165] and Annexure I-1. The defendants originally objected to this but, in an effort to reduce the hearing time, did not maintain that objection. The judgment, given by her Honour Atkinson LCM on 23 April 2018, was on a cross-claim brought by the first defendant against the plaintiff seeking damages in respect of the Audi A3. At [16] of the judgment, her Honour said:

“Towards the end of 2014, Ms McArthur and Mr Sayed came to an agreement whereby:

•   Mr Sayed would drive the Audi and take responsibility for paying all costs associated with the vehicle including making the finance payments to Capital Finance. Once title in this vehicle passed to Ms McArthur, she would transfer title to Mr Sayed.

•   Ms McArthur would keep and use the Golf. She conceded during cross-examination that the parties had agreed that when she sold this vehicle, the proceeds would be split between them. (She also conceded that it had been sold and that she had not remitted any proceeds of sale to Mr Sayed.)”

74. There are a number of important matters to note about this judgment and the passage in it relied on by the plaintiff. First, the issues for resolution did not include whether or not there was a binding contract between the parties in relation to the VW Golf. Secondly, the judgment does not set out the words spoken in evidence by the first defendant, only that she “conceded” that there was a contract concerning the VW Golf which included certain terms. That is important because, a concession in evidence in other proceedings about a legal issue is not an admission in these proceedings. The determination of that issue is left to this Court on the basis of the evidence before it. There is no evidence of the facts relied on to assert that there was an agreement.

75. Finally, even if that were not so, the concession apparently made by the first defendant in the Local Court was that she would share the proceeds of any sale of the VW Golf with the plaintiff. That was the third option in the plaintiff’s email of 26 December 2015. It is inconsistent with the plaintiff’s case that the first option was agreed. Further, there is no evidence of how much the Golf was sold for.

76. For these reasons, the plaintiff has not established his claim and it must be rejected.

Removal of personal property from Woonona property

77. The plaintiff’s final claim against the first defendant is that, when she was living at the Woonona property she disposed of or damaged property belonging to the plaintiff. This property and the asserted value was:

1. Mechanics large tool box and various tools   $15,000

2. Clothing   $6,000

3. Weight lifting equipment   $5,000

4. Personal belongings   $10,000

78. A claim for camping equipment was not pressed. The plaintiff relied on three photographs in support of this claim: one said to have been taken by him of the garage of the Woonona property in November 2015 (“Q” [photograph 1]) and another he said he took on 5 April 2017 (“Q1” [photograph 2]). The third is a photograph of the wardrobe in the main bedroom (Exhibit 13).

79. In particular, the plaintiff says that photograph 2 shows that a number of items that were in photograph 1 cannot be seen and so were not there. The problem with that is that photograph 2 is taken from a different angle to that of photograph 1. Photograph 1 is taken from outside the garage looking inwards. On the left there is some gym equipment, in the centre rear there appears to be a mechanics box (although its contents are not visible). However, photograph 2 is taken from inside the garage with the garage door to the right. From that, and the angle of the suspended punching bag, I infer that it was taken from what was the left side of photograph 1. Thus, even if the mechanics box and the gym equipment were still in the garage, they would not be shown in photograph 2. In other words, photograph 2 simply does not corroborate the plaintiff’s claim.

80. The second defendant said under cross-examination that the clothes shown on the right in photograph 3 were his. He had been living at the Woonona property prior to the time the photograph was taken. However, that fact does not establish that the first defendant disposed of, or damaged, the plaintiff’s clothes.

81. There is nothing to corroborate the plaintiff’s claims that his motor racing trophies, furniture or office equipment were disposed of or damaged by the first defendant. His evidence that when he inspected his office they were “missing”, even if accepted, establishes no more than that they were no longer in the place he says he left them.

82. Further, the first defendant gave evidence that she left all of the goods the subject of the claim at the property when she left there in August 2019. She explained that she took some items of furniture including a lounge set, dining table and their son’s bed but that she left more than what she took.

83. In light of these matters, and given my general concerns with the plaintiff’s credit, I am not satisfied that the first defendant has disposed of or damaged any of the plaintiff’s personal property. The claim is rejected.

Conclusion

84. The plaintiff has failed to establish any of his claims against the defendants. The proceedings will be dismissed and the plaintiff ordered to pay the defendants’ costs.

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Endnotes

Decision last updated: 07 April 2020