| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SEYMOUR -v- NORTH CITY HOLDEN & ANOR [2002] WADC 196 CORAM : MACKNAY DCJ HEARD : 19 - 21 NOVEMBER 2001, 27 FEBRUARY & 7 JUNE 2002 DELIVERED : 10 SEPTEMBER 2002 FILE NO/S : CIV 918 of 2000 BETWEEN : LAVENDER SEYMOUR Plaintiff
AND
NORTH CITY HOLDEN (ACN 008 974 061)
Defendant
BRYAN EDWARD JASON SEYMOUR
Third Party
Catchwords: Torts - Trover and detinue - Car dealer in possession of vehicle delivered by a person other than registered owner - Whether registered owner ratified transaction - Turns on own facts
Legislation: Nil
(Page 2)
Result:
Claim dismissed Representation:
Counsel:
Plaintiff : Mr M D Howard on 19-21 November 2001; plaintiff in person on 27 February 2002; Mr M Levitan on 7 June 2002
Defendant : Ms P E Cahill
Third Party : No appearance
Solicitors:
Plaintiff : Lynn Hudson; M Levitan
Defendant : Jackson McDonald
Third Party : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Egan v State Transport (1982) 31 SASR 481
Graham v Voight (1989) A Tort Rep 80-296
Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australia Branch & Ors [2000] WASC 66
Hesketh v Joltham Pty Ltd [2000] QCA 44
Jamieson's Tow & Salvage Ltd v Murray [1984] 2 NZLR 144
Lamb v Cotogno (1987) 164 CLR 1
Pargiter v Alexander (1995) 5 Tas R 158
Private Parking Services (Vic) Pty Ltd v Huggard (1996) A Tort Rep 81-397
Uren v John Fairfax & Sons Pty Ltd (1984-1985) 117 CLR 118
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-1985) 155 CLR 448
(Page 3)
Introduction 1 The plaintiff, who was born on 25 October 1950, in 1998 became the registered owner of a Holden Commodore V6 sedan registered no 1AGB 526. 2 On 16 March 1998 the plaintiff arranged for her vehicle to be serviced at the defendant's premises. 3 On the same date the plaintiff's 19 year old son Bryan, the third party, (Bryan) entered into a contract with the defendant to purchase a Holden Commodore V8 sedan. The form of contract provided that the plaintiff's vehicle would form part of the consideration for the purchase, by way of trade in, with the balance financed. 4 Notwithstanding that the vehicle was returned to the plaintiff's premises after its service, by Bryan. 5 On 18 March 2000 Bryan made another contract with the defendant to purchase the V8 sedan, the plaintiff's vehicle again being included as a trade in as part of the contract, and possession of that vehicle was given to the defendant by Bryan. At the same time Bryan took possession of the Holden Commodore V8 sedan registered no 1APL 319. 6 On 20 March 2000 the plaintiff attended the defendant's premises with Bryan, and there met with representatives of the defendant, prior to departing with him in the V8 sedan. 7 There is a dispute as to what was said in the course of the meeting and during at least one subsequent telephone call. 8 It is not in dispute that the plaintiff subsequently made demand for the return of the vehicle registered in her name, and that the defendant declined to deliver up the vehicle, and maintained that it had made a binding contract with Bryan for the sale to him of the V8 sedan, and had acquired the right to ownership of the trade in vehicle. 9 The Holden Commodore V8 sedan registered no 1APL 319 was eventually left at the defendant's yard on behalf of Bryan, and later repossessed by the financier. 10 The plaintiff brings a claim in detinue, alternatively conversion, and seeks orders for delivery up of the vehicle or damages in lieu.
(Page 4)
11 The plaintiff also alleges that as a consequence of the detention or conversion she has suffered injury to her feelings insult, emotional distress and humiliation, and that she is entitled to an award of general damages in respect of the same.
12 The plaintiff also seeks both aggravated and exemplary damages. 13 The defendant denies the plaintiff's claim and says, inter alia, that Bryan was the beneficial owner of the vehicle, that a permission to trade vehicle form was provided by the plaintiff to Bryan who produced it to the defendant, that alternatively the plaintiff ratified Bryan's conduct by advising the defendant's representatives that she had signed the form and that Bryan had been authorised by her to use the vehicle as a trade in, and in the further alternative that the plaintiff allowed Bryan to have the vehicle, together with a licence for it and the permission to trade form and as a result is estopped from denying that Bryan had authority to trade in the vehicle and alternatively by reason of s 21 of the Sale of Goods Act 1895 (WA) the plaintiff is precluded from denying that Bryan had authority to sell the vehicle. 14 The defendant denies that the plaintiff is entitled to any relief. 15 Following the initial hearing of the plaintiff's claim in November 2001, after which I reserved my decision, and in February 2002, the plaintiff through a solicitor wrote to my associate enclosing a copy of a letter from counsel who had appeared for the plaintiff at trial, Mr M Howard, addressed to the plaintiff's then solicitor of record, Ms Lynn Hudson. 16 Ms Hudson had also appeared as a witness for the plaintiff at the initial hearing. 17 In that letter Mr Howard alluded to certain matters which it was said had come to light since the initial hearing and expressed concern about the plaintiff's evidence in the light of the same. A copy of a draft letter addressed to my associate from Mr Howard was attached to his letter to Ms Hudson, and referred to in it. 18 As a consequence of the matters raised in that correspondence the defendant sought leave to further cross-examine the plaintiff and Ms Hudson, and on 27 February 2002 I granted leave in that regard. 19 A subsequent hearing then took place on 7 June 2002, and at the conclusion of that I again reserved my decision.
(Page 5)
20 An application subsequently made by the plaintiff to call Bryan Seymour to give evidence, after a letter dated 10 June 2002 purportedly from him was sent to my associate, was refused.
Initial hearing
Plaintiff's claim 21 The plaintiff is aged 51 years, and is married, her husband being an invalid pensioner aged about 68 years, and has two children, a 22 year old daughter and one son, Bryan, who is now aged 21 years. 22 The plaintiff is a trained hairdresser and said she operated her own business until 14 October 2000. She said that she is now on a disability pension. 23 The plaintiff purchased her vehicle by a contract dated 24 June 1998, and said that she licensed, insured and paid for the vehicle. In cross-examination the plaintiff agreed that the insurance proposal provided for Bryan as the driver for 25 per cent of the time, but said that was at the suggestion of the insurer's clerk, as the plaintiff was concerned that her husband might need urgent transport, due to his heart condition, when she was not available to drive him. 24 The vehicle was subsequently fitted with an Alpine sound system for her own use, the plaintiff also said in cross-examination, and a radar detector in the vehicle was not fitted to it but was portable, did not belong to her, and had been purchased by her husband. 25 In March 2000 the vehicle had been converted to run on gas, and a gas fuel tank installed, at a cost of $1,260, the plaintiff said. 26 The plaintiff said that after its purchase the vehicle was serviced on three or four occasions by the defendant, her husband normally taking the vehicle down, and Bryan accompanying him if available. 27 Arrangements were then made for the defendant to again service the vehicle, by the plaintiff's husband, on 16 March 2000, the plaintiff said. 28 Mr Seymour had an angina attack on the evening of 15 March, the plaintiff said, and was not able to take the vehicle to the defendant's premises, and Bryan then offered to do that, and duly did, the vehicle being returned that day, and the plaintiff driving it to work on 17 March.
(Page 6)
29 Cash for payment of the service had been given to Mr Seymour by her, the plaintiff said.
30 The plaintiff said that she drove Mr Seymour's car to work on Saturday 18 March, as hers was blocked in by that car, and she was running late. 31 She then came home at about 5.00 pm and at about 7.00 pm went to the garage and discovered that her vehicle was not there, and there was a V8 Holden Commodore in the garage. The plaintiff said that she immediately called her son, was told her vehicle had been taken, and on asking if there was any "paperwork" was shown a vehicle particulars for purchase slip with a registration no 1AGI 521. 32 The plaintiff said that she said to her son that the vehicle he had was registered 1 APL 319, and asked him how did he know that it was not stolen. 33 Her son had then gone to work, that being as a security officer with Macca Security, the plaintiff said, and after speaking to him the following morning she attempted to telephone the defendant, but was unable to elicit any response. 34 The plaintiff said that on Monday 20 March 2000, prior to her going to work Mr Seymour said that he would contact the defendant, the plaintiff not feeling well enough to do that. 35 Later in the day Mr Seymour telephoned her, the plaintiff said, and she then went home, picked up Bryan and attended the defendant's premises. 36 The purpose of her attendance was to ask for the return of her vehicle, the plaintiff said, as she had not given permission for there to be any dealings with that vehicle. 37 At the defendant's premises she and Bryan then saw Mr Glen Wheatley. 38 The plaintiff said that initially Bryan raised the absence of any "paperwork", Mr Wheatley said that the defendant did not give that out, Bryan said that it was needed, but Mr Wheatley simply said "no". 39 The plaintiff said that she told Mr Wheatley that the vehicle 1AGB 526 was hers and that she had not given any permission for anything to be done with it.
(Page 7)
40 Mr Wheatley had left the room and then returned with the contracts apparently made by Bryan on 16 March and 18 March, the plaintiff said.
41 The plaintiff said that she looked at those and said that the trade in was her vehicle and she had not given permission for anything to be carried out, and further said that her son did not have any regular job and asked how could he afford to pay for the vehicle purchased. 42 Mr Wheatley ignored that, the plaintiff said. 43 After further discussion the plaintiff said that Mr Wheatley left the room again and came back with the permission to trade vehicle document and held it close to her face, while standing between her and Bryan: "… and said, 'I certainly hope that is your signature. We have cameras around here. I know people in high places and this is a police matter.' I was absolutely shocked and terrified. I said, 'No, that is not my signature.' " 44 The signature on the document was not hers, the plaintiff said, and she could not say who had signed it. 45 The plaintiff said that she then said that she wanted her vehicle back, to which Mr Wheatley had replied "It’s a done deal", and "just banged his hands on the table". 46 The plaintiff agreed that she did raise the disparity between the registration of the car that Bryan had brought home and that set forth in the document. 47 She could not recall any detailed discussion about the sound system but said that Mr Wheatley had said something about it before leaving the room again and returning with the salesman Mr Alan Grant. 48 The plaintiff said that at that point she was very nervous and upset and in tears, and walked out the door. 49 Mr Wheatley had been aggressive in the course of the discussion, speaking in a raised voice on a number of occasions, whilst the discussion had taken place in a very small room, the plaintiff said. 50 In cross-examination the plaintiff alleged that she referred in the course of the conversation to an allegation that Bryan had been counselled by an employee of the defendant to sign her name on the permission to trade document.
(Page 8)
51 The plaintiff also alleged that Mr Wheatley had threatened to report her for fraud.
52 Bryan had driven her home in the defendant's vehicle, the plaintiff said, as she did not have any other way of getting home. 53 Bryan stopped at a shop in Main Street on the way home, the plaintiff said, but she denied that had been to collect copy car keys arranged by the defendant, although agreeing something had been said about keys in Mr Wheatley's office as she walked out. 54 On arriving at home the plaintiff said that she telephoned Mr Wheatley and repeated her advice that Bryan did not have a regular job or income and that there were no documents dealing with the question of finance. 55 She said that Mr Wheatley said that those documents would cost $60, and the conversation was left there. 56 There was a further conversation to similar effect on the following day with Mr Wheatley, the plaintiff said, but she did not have any further conversation on the telephone with him. 57 Following a conversation with her brother-in-law the plaintiff said that she telephoned a solicitor, Ms Hudson, whom she saw on Wednesday 22 March 2000. 58 On her instructions Ms Hudson had sent a letter to the defendant demanding the return of the vehicle on that day, the plaintiff said. 59 The defendant's vehicle the subject of the sale contracts with Bryan had been subsequently returned to the defendant, the plaintiff said. 60 The plaintiff had not, however, been able to obtain her vehicle, despite further attempts. 61 Prior to the incident the plaintiff said that she had had a close relationship with Bryan, but those events had put pressure on it and on 16 April 2000, Easter Sunday, Bryan had decided to travel to the north. 62 The plaintiff said that Bryan had left and she had not seen him since, and "I don't know where he is", although he had telephoned on a number of occasions in 2001, the last on her birthday.
(Page 9)
63 The plaintiff said she had tried to contact Bryan by mobile telephone, but could not get through, and she had also been unable to leave messages.
64 In re-examination the plaintiff said that Bryan had planned a trip prior to the incident. 65 As a result of her inability to obtain the return of her car the plaintiff said that she became depressed and anxious. She then described her symptoms as follows: "Depression – mood swings, the anxiety, just the sweaty palms. I'd get very teary, very sort of anxious, and just these episodes of suicide. I just find it's all a very difficult area, the depression, and I also get these panic attacks. I just have these palpitations and just difficulty breathing and just he dizziness, just the headaches. I keep awakening at night which causes me day fatigue. I just don't sleep through the night. My memory – decrease in my memory, the concentration and just difficulty trying to focus on issues. Are these things that you suffered from previously?---No, never. I've never had these problems. Have you had a psychiatric condition or illness previously?---Never. What difference does it make to your everyday life?---I've found this continuous pressure; I no longer go out. I just stay home. I don't drive around as much as I used to because with the medication I'm on I just feel very sick and I just get these shakes with the attacks that I get as well, so I just feel safe in my own home, so I don't go out. My husband accompanies me or a family member." 66 She had closed her business on 14 October 2000 as a result of her symptoms together with the amount of time she was taking to do things in relation to the car. 67 As to her general health the plaintiff said she had experienced "a bit of pain in the back, the neck and the hands", and that had commenced "about a couple of years ago", but had not been anything that had worried her or caused problems prior to these events, and she described the problem as "minor".
(Page 10)
68 Her health had deteriorated as a result of her depression, the plaintiff said.
69 In cross-examination the plaintiff agreed that she had been seeing a neurosurgeon Mr Narula in relation to her back problem, had reported constant back pain sitting or walking, and that Mr Narula had recommended an operation in respect of that, having informed her of his opinion that she had a degenerative spinal condition. 70 Further, the plaintiff agreed that she slept in a neck collar. 71 Medications for her back were Celebrex, and occasionally Panadeine Forte, the plaintiff said. 72 As stated the plaintiff's solicitor Ms Hudson gave evidence. 73 She had originally been instructed to act for both the plaintiff and Bryan, Ms Hudson said, but had subsequently ceased to act for Bryan after she became aware that he had gone away, and had appreciated the potential for conflict. 74 Initial contact had been made with her by the plaintiff on 21 March 2000, Ms Hudson said, and following a conference a letter to the defendant on 22 March was transmitted as a facsimile. 75 In that letter Ms Hudson stated inter alia: "Ms Lavender Seymour is, as you know and knew at the relevant time, the registered owner of that vehicle and did not give and does not now give consent or permission for the trade in, transfer or sale of her motor vehicle registration number 1AGB 526." 76 In conclusion Ms Hudson suggested that each vehicle ought be returned, and the credit contract be at an end. 77 Following that letter, and later in the afternoon of 22 March Ms Hudson said that she was telephoned by Mr Wheatley, and when she asked for the vehicle he responded that "It's a done deal". 78 Nothing was said to her about the plaintiff's role in the transaction, Ms Hudson said, and Mr Wheatley had told her that he was going to the police about the matter.
(Page 11)
79 Ms Hudson said that she then sent a further letter to the defendant on 23 March, which made reference to that telephone conversation, and further stated: "I now demand that you deliver up that motor vehicle".
80 On 8 April 2000 Ms Hudson said that she then attended the defendant's premises and spoke to Mr Wheatley and made demand for the delivery up of the motor vehicle. 81 The V8 Holden Commodore registered no 1APL 319 was eventually returned to the defendant's premises, Ms Hudson said, following correspondence from her to the financier, and at the suggestion of a clerk in that entity's employ. 82 Ms Hudson denied that she had burst through Mr Wheatley's door in order to make demand or that she had informed him that it was necessary to make demand six times prior to the institution of litigation.
Defendant's response 83 The defendant called as witnesses Mr Alan Grant, and Mr Wheatley. 84 Mr Grant is an assistant manager of the defendant, and said that he saw Bryan wandering around the main used car lot of the defendant around lunchtime on 16 March, and as none of the defendant's salesmen went to attend to him went out himself. 85 There was then a discussion about the type of vehicle that Bryan was looking for, Mr Grant said, that being a V8 vehicle, and Bryan was then invited to go to his office, where a further lengthy discussion took place, in the course of which Bryan said that he had as a trade in vehicle a 1997 Holden Commodore with no money owing on it, it having been paid for by the working of extra shifts and a substantial lottery win. 86 The two then looked at a number of vehicles in the defendant's lot, Mr Grant said, and he then inspected the proposed trade in vehicle, after Bryan asked for a drive of a vehicle that he had picked out. 87 The trade in vehicle, the plaintiff's vehicle, was parked in the defendant's front yard, the witness said, with a small radar detector attached to the windscreen, a "nice" sound system and various CDs and items of clothing strewn through the vehicle, as might be expected of a vehicle owned by a young person.
(Page 12)
88 Bryan told him that the vehicle had recently been fitted with LP gas, Mr Grant said, and on being asked why he would then wish to change it had replied that the power of the vehicle had been affected.
89 Mr Grant then appraised the vehicle, he said, discussed with Bryan an Alpine stereo sound system with a removable fascia, Bryan initially wishing to have that put in the new vehicle but then agreeing to leave it, and the appraisal form then being given to the defendant's car valuer Mr Cox. 90 Bryan and Mr Grant next went for a test drive in the V8 Holden Commodore chosen, and there was then a further discussion in Mr Grant's office, he said, in the course of which Bryan asked whether the keys, which were in poor condition, might be replaced. 91 An offer to purchase was then partly completed, endorsed "(pending suitable finance)" Mr Grant said, and a trade in allowance for the plaintiff's vehicle $19,000 was shown, Bryan insisting on that. 92 Mr Grant said that Bryan then spoke to the defendant's "after care" manager Amanda Harrison, in relation to warranties and extras, and was then taken into the defendant's finance department, and on coming from there with Bruce Lovett was taken, at the request of the latter, to his bank in order to obtain $500 in cash as a deposit. 93 On that being obtained and receipted by Bruce Lovett, Mr Grant said that he told Bryan that if the finance went through, and once the after care was done he would be able to pick up the V8 vehicle. 94 Mr Grant said that he was informed on Friday 17 March 2000 that finance had been approved, and the after care having been done he telephoned Bryan and informed him that the vehicle would be ready to be collected that night. In response he said that Bryan advised that he would come in and collect the vehicle the following day, and Bryan was then asked to come in early. 95 Bryan did not, however, appear early on Saturday morning, and attempts to telephone him were unsuccessful, Mr Grant said, until about 11.30 am when he appeared. 96 On arrival Mr Grant said that Bryan was still seeking extras, including replacement keys and mats, and on Mr Wheatley being consulted he was told that he could have the mats from the plaintiff's vehicle.
(Page 13)
97 In addition, and again following consultation with Mr Wheatley, Mr Grant said that each of the sale price and the trade in allowance were reduced by $3,000 so as to reduce the likely incidence of transfer fees by $90 whilst Bryan was also offered replacement keys, and was, Mr Grant said, "happy" with those arrangements.
98 A further offer to purchase dated 18 March 2000 was then completed and signed by Bryan, Mr Grant said. Bryan then went back to Bruce Lovett, the witness said. 99 Mr Grant said that about 20 minutes later Bruce Lovett appeared and said that there was a problem as the trade in vehicle was in the name of Bryan's mother. 100 Bryan confirmed that, Mr Grant said, and explained that it had been done in order to obtain cheaper insurance. 101 Mr Wheatley, whom Mr Grant said was also present, then gave directions that a "permission to trade vehicle" form ought be signed by the plaintiff, Mr Grant said, and he obtained the relevant pro forma and partly completed it together with a notice of sale form, and gave those documents to Bryan and told him that the plaintiff had to sign the same and that he ought not delay or he would not have the V8 vehicle that day. 102 Bryan said that there would not be a problem, Mr Grant said, and left the yard, duly returning with the two documents signed at about 12.45 pm. 103 Mr Grant said that he had not had any doubt that the signatures on the two documents were those of the plaintiff's. 104 A vehicle handover then occurred, Mr Grant said, in the course of which it was noted that the fascia from the Alpine sound system in the plaintiff's vehicle was missing, and Bryan promised to drop that in on the following Monday, that being an arrangement approved by Mr Wheatley. 105 On Monday 20 March 2000 Mr Grant said that following a conversation with Mr Wheatley about Bryan, he telephoned Bryan to remind him of the fascia and to also ask him about an allegation said to have been made by the plaintiff's husband, on the telephone, that the defendant had stolen the plaintiff's vehicle. 106 In response Bryan had said he would come in later with the fascia, and otherwise not to worry as there was no problem, Mr Grant said.
(Page 14)
107 Later that day Mr Grant said that he was called by Mr Wheatley to the latter's office, where the plaintiff and Bryan were.
108 On arrival Mr Grant said that Mr Wheatley told him that it was being suggested that the stereo system was meant to have been part of the sale and to have been transferred to the V8 vehicle, to which he replied that was not the case and referred to the appraisal form he had partly completed. 109 The plaintiff also said that she thought the stereo sound system was part of the deal, Mr Grant said. 110 Mr Wheatley then began "fumbling around for" the appraisal form, Mr Grant said, and in the course of that pulled out the permission to trade in form, held it up in front of the plaintiff and Bryan and said: "Is that your signature Mrs Seymour?", to which the plaintiff replied: "Yes". 111 Mr Wheatley then found the vehicle appraisal form and the endorsement on it in relation to the sound system was pointed out, Mr Grant said. 112 Bryan then asked about the provision of new keys, Mr Grant said, and Mr Wheatley replied that the defendant would honour that and asked Mr Grant to obtain the telephone number for Diamond Lock and Key, which he duly did, and returned to the office to provide that to Mr Wheatley. 113 Mr Wheatley was the used car manager of the defendant but said he no longer sells cars, but was still a director of the defendant's parent company, Automotive Holdings. 114 He said that he approved the contract with Bryan on 16 March 2000, and for that purpose looked at the plaintiff's vehicle, which contained articles of the kind one might expect in a younger person's vehicle, together with an "extremely expensive upmarket sound system". 115 On 18 March 2000, after Bryan had arrived at the defendant's yard, Mr Wheatley said that Bruce Lovett informed him that the trade in vehicle was not licensed in Bryan's name, and he had not been surprised about that, as he was informed the day before that the insurance was issued in the plaintiff's name. 116 Mr Wheatley said that the defendant's standard procedure in such circumstances was to request the would be purchaser to have a permission
(Page 15)
to trade form signed by the owner of the vehicle, and he instructed Mr Grant to have that done. 117 The offer to purchase signed by Bryan was subsequently approved by him, Mr Wheatley said, and he signed that, the document providing for two new keys to be supplied as a result of late negotiations, and the price of the V8 vehicle and the trade in vehicle also being changed "as a sweetener" as "we were running out of things to offer the gentleman", and that being also approved by Mr Wheatley. 118 In relation to the question of vehicle registration, Mr Wheatley said that quite regularly representatives of the defendant encountered a situation in which a young person owned a vehicle which was registered in a parent's name for the purpose of cheap insurance, and here he believed the trade in vehicle to be owned by Bryan. 119 After the transaction was completed Mr Wheatley said that he observed the fascia of the sound system was missing and he asked Mr Grant to deal with that. He also had a brief contact with Bryan and thanked him for the business, he said. 120 On Monday 20 March 2000 at about 8.00 am Mr Wheatley said that he then received a telephone call from a person who identified himself as Bryan Seymour's father, and who accused the defendant of having stolen the plaintiff's vehicle. The call was short, and abusive, and terminated by the caller, Mr Wheatley said, and on telephoning Bryan's contact number he spoke to the same person again, that conversation ending after Mr Seymour was asked whether he wished Mr Wheatley to telephone the police, at which point he said he would return to Mr Wheatley later on. 121 Mr Wheatley said that about mid-afternoon that day he then received a telephone call from the plaintiff who said she would like to come in and speak to him about the matter, to which he agreed. 122 At about 4.00 pm the plaintiff and Bryan then came to the yard and sat in Mr Wheatley's office, he said, and on making reference to the allegation made by Mr Seymour the plaintiff assured him that was not the purpose of her visit and that Mr Seymour was very ill and "at times … becomes quite grumpy". 123 The plaintiff then went on "to discuss the matter of paperwork", Mr Wheatley said, and on stating that neither she nor Bryan had "any paperwork" he obtained the file.
(Page 16)
124 Copies of the offer to purchase documents were provided to the plaintiff, Mr Wheatley said, and the plaintiff "asked … on many occasions as to how the contract all came about", raising a number of questions, including why the registration of the V8 vehicle was different on the contract to that on the car, whether perhaps the wrong vehicle had been given to Bryan, why the price on the first offer to purchase did not match that on the second, that the amount borrowed was different to that which Bryan had informed her of, whether finance documents were available, and that the sound system was to have been installed in the V8 vehicle together with a dash mat and some floor mats.
125 Mr Wheatley said he explained the vehicle had undergone a number plate change which was quite common if a plate had been damaged. 126 After the plaintiff raised her concerns Mr Wheatley said that he called for Mr Grant, who came in and explained that the appraisal form provided that the sound system was to remain with the trade in vehicle. 127 Mr Wheatley then said the following occurred: "With that, I then started to flick through the paperwork to find the particular piece of paper to show Mrs Seymour. The appraisal?---The appraisal, sorry. Yes?---In doing so I have come across the permission to trade a vehicle. Do you still have that in front of you, that exhibit 6? If the witness could be shown that please. Is that the document you are referring to?---Yes, that's the one. All right?---In shuffling through the papers I have come across that particular one, held it up and asked if that was her signature. She has identified it as hers. What words did she use?---That was her signature. They were the exact words. Just say what your words were to her and what her response was?---Sorry. 'Mrs Seymour, is that your signature?' She said, 'That is my signature.' " 128 Mr Wheatley said that he then found the appraisal form and showed that to Mr Grant and the plaintiff although the plaintiff was still not
(Page 17)
happy, and there was a further discussion during which Mr Grant remained in the room for a few minutes, until he was excused and asked to obtain the telephone number for Diamond Lock and Key. 129 There was then a further discussion, Mr Wheatley said: "Mrs Seymour was still wishing to have the CD as part of the transaction and asked point blank was there any chance that I would include it. I had explained that after the way that her husband had dealt with me in the morning I wasn't feeling very generous and in fact it would devalue the value of the trade-in that had taken place. I explained that if she wished to have the CD player it would cost her between $500 and $1500. She chose not to add any finance to the transaction. We continued to talk about the CD player and the dash mat. At that stage I was under the impression that we were being accused of thieving the CD player and said that if she thought that Alan had done the wrong thing I would be very happy to ask the police to come down and have them question Alan. Was there any discussion about keys between you and Mrs Seymour?---Yes, there certainly was. It was very obvious to me in the contract that we had not supplied the keys and we talked about them at that stage. Before Alan excused himself I did request that he go and get me the telephone number for Diamond Lock and Key, which he did. While they were in my presence I rang Diamond Lock and Key, gave them instructions as to how to get to them and upon leaving that's where they went. Where was Mrs Seymour when you gave these instructions to - - - ?---She was in my office. I gave her the instructions as to - - - ." 130 The plaintiff and Bryan then left for Diamond Lock and Key, Mr Wheatley said, and a person from that firm telephoned to say the relevant operative had departed for the day, and asked what Mr Wheatley wanted to do. 131 Mr Wheatley said that he had given the plaintiff his business card with a notation that two keys should be supplied, and he had signed that with his details so that the plaintiff could return when she wished.
(Page 18)
132 Diamond Lock and Key were then asked to find an appropriate time for the plaintiff and Bryan to have the keys cut and coded, Mr Wheatley said.
133 Just after closing time on the same day Mr Wheatley said that the plaintiff telephoned again, and there was then a conversation which was a repeat of that which had earlier taken place, with, in addition, a request being made by him for the plaintiff to look for the fascia, which she said she had done but was not able to find the same and would ask Bryan about it. 134 Early on Tuesday 19 March 2000 Mr Wheatley said that he received another call from the plaintiff, when she raised the same matters, and there were a further five or six calls made to him by the plaintiff, with the same things being raised on each occasion, in the course of that day. 135 On 22 March 2000 Mr Wheatley said he then received the letter from Ms Hudson, and as a result telephoned her and explained that the plaintiff "had been in and that we had to the best of my knowledge sorted out the problem that was at hand and that I was somewhat shocked with this particular letter". 136 In response Ms Hudson had said that she did not care and had ordered him to return the vehicle that afternoon, Mr Wheatley said. 137 After a second letter was received the matter was referred to the defendant's solicitors Mr Wheatley said. 138 Subsequently Ms Hudson had "barged" into his office on a Saturday morning, when he had people there, Mr Wheatley said, and when he spoke to her later she informed him that it was necessary to ask for the return of the vehicle six times prior to the issue of a writ. 139 About five weeks after that Mr Wheatley said that he was in a salesman's office speaking to some people about a purchase when the plaintiff and Ms Hudson "barged into the office, into the middle of the conversation, and slammed the keys down on the desk in front of the clients, explaining that she had returned the vehicle and walked back out again".
Medical evidence 140 The plaintiff called two psychiatrists to give evidence.
(Page 19)
141 The first, Dr P McCarthy, reported in March 2001 that he first saw the plaintiff on referral from a general practitioner on 19 January 2001, and had seen her on a further five occasions up to the time of his report.
142 Dr McCarthy described the plaintiff as being "estranged" from her son, and said she had described the development of anxiety and depression in association with various events, including the vehicle dispute, legal proceedings, the departure of her son and harassment by persons she believed were associated with the defendant. 143 The doctor stated that in his opinion the plaintiff had developed a major depressive disorder and panic disorder with agoraphobia, which on the history arose from the matter with the defendant, and which was likely to remain for as long as the matter remained unresolved, whilst the plaintiff then continued to require treatment. 144 Following a further review on 8 November 2001 Dr McCarthy provided a further report advising as to further reviews and treatment subsequent to his initial report, and in which he expressed the view that resolution of the litigation might not result in a complete settling of the plaintiff's symptoms. 145 In evidence Dr McCarthy said he saw the "prime contributors" to the plaintiff's anxiety and depression, based on the history provided, as the loss of her vehicle and what the plaintiff perceived as the associated loss of her son. 146 Dr L Terace said he saw the plaintiff once, at the request of the defendant's solicitors, on 9 November 2001 for a medico legal review. 147 In a subsequent report the doctor recorded that there was no prior medical history, and stated that he diagnosed the plaintiff as suffering from major depression and/or panic disorder, with a material and significant contribution from the conflict with the defendant, assuming the history given was accurate. 148 Dr Terace further stated that the plaintiff's psychiatric symptoms had arisen as a consequence of the interaction between three principal factors, the first and dominant factor being the plaintiff's personality make-up and the other factors being the conflict with the defendant and the plaintiff's estrangement from her son. 149 The plaintiff was likely to improve on resolution of the claim, if that was in her favour, the doctor said.
(Page 20)
150 In evidence the doctor said his opinion had been derived on his understanding that there had been "an estrangement under difficult circumstances" between the plaintiff and her son, and if there had been no true estrangement that would not be a relevant factor.
151 Further, if the estrangement was not relevant Dr Terace said he would have to reconsider the reliability of his conclusions, as he had been "prepared to give the benefit of the doubt about the issues of physical disability" to the plaintiff in relation to her non-disclosure, given her apparent distress at the time, and he would have to reconsider the issues of causation.
Further hearing 152 The plaintiff, on being recalled for further cross-examination, said she had first learned her son Bryan was again living in Perth on 25 December 2001. 153 She agreed that at the time of trial she had Bryan's telephone number and said she had tried unsuccessfully to contact him several times a week in the year 2000 and on a few occasions in 2001, prior to the trial. 154 Ms Hudson also had Bryan's telephone number, the plaintiff said. 155 The plaintiff said she had raised the issue of calling Bryan at the trial with counsel and Ms Hudson on two occasions. 156 The plaintiff agreed she had on 29 August 2000 sworn an affidavit in opposition to substituted service on Bryan in which she had deposed that she did not have "any address or contact details" for him. 157 The plaintiff denied that following the trial she had asked Ms Hudson whether it was "safe" for Bryan to return to the State, and said there was no conversation "whatsoever" at which Bryan was discussed, although she had said to her husband "It's not now safe", when thinking aloud in Ms Hudson's presence. 158 Earlier, in March 2000, and before Bryan had departed, Ms Hudson had "jokingly" suggested to Bryan that he "should go up north", the plaintiff alleged. 159 Ms Hudson, on the other hand, said that following the trial, and on leaving the courtroom and going outside the Court building, the plaintiff had asked her "Lynn, is it now safe for Bryan to come home".
(Page 21)
160 She had not to that point been aware that it was possible to contact Bryan, Ms Hudson said, and had not prior to his departure ever suggested that occur.
161 As a result of what the plaintiff had said Ms Hudson said that later the same day she checked the defendant's contract, and on finding on it a mobile telephone number for Bryan had telephoned that number and had made contact with him. 162 She then telephoned the plaintiff with that advice, Ms Hudson said, and the plaintiff became angry and said Ms Hudson "had no business calling her son" that she had never said she could not call Bryan, and said that she was able to do so if she wished but had been very busy preparing for the trial. 163 Ms Hudson said she had then raised the contents of the affidavit of 29 August 2000, but had been met with silence. 164 In the conversation which followed Ms Hudson said she had told the plaintiff she was very concerned the plaintiff had not told her the truth. 165 Ms Hudson had now brought proceedings against the plaintiff for her costs, she agreed. 166 Calling Bryan as a witness had not been an issue prior to trial as she and counsel believed he could not be contacted, Ms Hudson said, and the plaintiff had not raised it.
Findings 167 At the heart of the dispute as to the plaintiff's claim for relief by way of delivery up of the plaintiff's vehicle or damages in lieu are the pleaded allegations by the defendant, in the reamended defence, that Bryan was the beneficial owner and hence could deal with it, that the plaintiff signed the permission to trade vehicle form and thus consented to the vehicle being traded in, or alternatively that the plaintiff represented to the defendant's representatives that she had signed it. 168 The onus is on the defendant in relation to each of those matters. 169 The first two matters can be shortly disposed of. 170 Notwithstanding my findings as to the plaintiff's evidence set out below the defendant has not established that the vehicle was beneficially
(Page 22)
owned by Bryan, the surrounding circumstances, including his age at the time of purchase, and the relevant documents tending against such an inference whilst the only evidence in support, the fittings and alleged appearance of the interior of the vehicle, is equivocal, being consistent with mere shared use. 171 Similarly, the strength of the objective evidence, in the form of the plaintiff's driver's licence and other signed documents, is such that whatever view is taken of the evidence that the plaintiff later said she had signed the permission to trade vehicle form, I consider the defendant failed to make out the allegation that the signature on that document is that of the plaintiff. 172 The remaining issue is then whether or not the defendant has established that the plaintiff did in fact state that she had signed the permission to trade form at the meeting in Mr Wheatley's office on the afternoon of Monday 20 March 2000. 173 It is common ground that meeting occurred, and that in the course of it Mr Wheatley produced the permission to trade vehicle form and asked the plaintiff whether the signature on it belonged to her. 174 What is in issue is the response made by the plaintiff to that question. 175 Both Mr Grant, whose presence at the time is in issue, and Mr Wheatley said in evidence that the plaintiff said the signature was hers. 176 The plaintiff, as also appears, said in evidence she had responded that it was not her signature. 177 Neither mistake nor unreliable recollection is a feasible explanation for the conflict in evidence. 178 Mr Grant and Mr Wheatley each gave evidence in an unexceptional way. 179 The objectively determinable conduct of each at the time, and of Mr Wheatley and the defendant generally at later times, is consistent with the evidence of each on the point. 180 There is some difference between Mr Wheatley and Ms Hudson as to the manner in which the latter made demand for the return of the plaintiff's vehicle and also the manner in which she returned the Holden Commodore V8 sedan registered no 1APL 319, but that is not of any real
(Page 23)
moment and not such as to materially affect my view of the evidence of Mr Wheatley. 181 The evidence of each of Mr Grant and Mr Wheatley and that of the plaintiff is of course in conflict as to other matters as well, those including the general tenor of the discussion on 20 March 2000. 182 To determine the relative likelihood of the competing accounts it is necessary to consider the plaintiff's evidence further, and in particular that as to the vehicle and her son Bryan. 183 There are a number of matters which, particularly when taken together, I consider show the plaintiff's evidence as to her vehicle was not reliable and that the correct inference is that Bryan had a greater involvement with it than she was prepared to concede, and those matters also demonstrate a desire on the part of the plaintiff to avoid such an inference being drawn. 184 First, there is objective evidence that on purchase the plaintiff intended that Bryan would share in the use of the vehicle, in her advice to the insurer to that effect, and the plaintiff's assertion that her purpose was only to provide for an emergency was unconvincing. 185 That the plaintiff, a person of mature years, would arrange for an expensive sound system to be fitted for her own use, would seem unusual at the least, and the presence of that sound system in the vehicle would rather indicate that Bryan did have regular use of it. 186 The presence of a radar detector is similarly indicative, and again, the plaintiff's evidence that such belonged to her husband, unsupported by him, was improbable. 187 Bryan did drive the plaintiff's vehicle not merely on 16 March 2000, but also Saturday 18 March 2000, when he returned to the defendant's premises, and again I consider the plaintiff's explanation for not driving it herself on the latter day was unconvincing. 188 Further, if Bryan had not had the use of the plaintiff's vehicle there would seem no reason why he would have any interest in exchanging it for another, more powerful vehicle. 189 On the other hand, if Bryan had enjoyed such use then the conversion of the vehicle to run on gas earlier in the same month, and the resultant loss of engine performance, would provide a likely reason why a
(Page 24)
young man like Bryan may have been desirous of seeing the vehicle exchanged for another, a process he was in fact prepared to participate in a short time later. 190 The precise extent of Bryan's use of the plaintiff's vehicle is not something I can determine, nor is it necessary for me to do so. 191 What is of perhaps some small relevance is whether it is likely that Bryan would engage with the defendant's representatives entirely without any forewarning or knowledge of the possibility of that occurring on the plaintiff's part, and again, that would seem less rather than more likely in the circumstances. 192 The plaintiff's evidence of her response, after saying she saw the V8 sedan in her garage and looked at the document Bryan produced, and noticed a discrepancy between the registration number details, to the effect that the vehicle could be a stolen vehicle, again was unusual. 193 Having regard to those matters, but also in the light of the plaintiff's other evidence and the evidence as a whole, I do not accept the plaintiff's implicit denial of any knowledge of the possibility of the relevant activity on Bryan's part. 194 In circumstances where there is no other evidence, and given that the permission to trade vehicle form was not signed by the plaintiff and I can only conclude was signed by Bryan, there being no suggestion from the plaintiff that was not the case, I would not conclude the plaintiff was aware any such activity would reach a point where Bryan might agree to purchase another vehicle, or would "sell" the plaintiff's vehicle, by way of partial trade, or would sign the plaintiff's name on any document. 195 On becoming aware that Bryan had done those things the plaintiff was, however, in a difficult position. 196 There had been an unauthorised transaction involving the purported disposal of her vehicle, about which she would naturally be most concerned. 197 On the other hand her son Bryan was involved in that transaction. 198 It must have occurred to the plaintiff that the situation could give rise to a conflict between her interest in her vehicle and her interest in Bryan, her son.
(Page 25)
199 It has been the attempt by the plaintiff to reconcile that conflict which has apparently caused much of her difficulty.
200 If the events in Mr Wheatley's office occurred as recounted by the plaintiff it is hard to see on what basis he thought the transaction with Bryan could possibly proceed; the trade in vehicle was registered in the plaintiff's name and she had renounced the permission to trade vehicle form as not being her document, whilst there was nothing which could establish the contrary. 201 And yet the defendant and its representatives, it is common ground, stood firm that the transaction must stand. 202 On the other hand, Mr Wheatley's and Mr Grant's evidence as to the enquiries and statements made by the plaintiff whilst in the former's office on 20 March 2000 is consistent with the plaintiff being aware of the conflict in her interests, the plaintiff asking as to how the contract came about, seeking information and raising concerns as to various matters, including that as to the registration number, and the amount of the finance. 203 When asked about the signature on the permission to trade vehicle form the plaintiff's conflict was crystallised. 204 Acknowledgment of the signature as her own was the only apparent means of protecting her son Bryan from a demonstration of fraud on his part, whilst a denial would demonstrate his fraud but would protect the plaintiff's interest in her vehicle. 205 It is not unlikely that the plaintiff would choose the former course. 206 There are aspects of the plaintiff's version of events at the meeting, particularly in relation to the provision of copies of the documents, which are somewhat bizarre. 207 The plaintiff's account was also inconsistent, the plaintiff first saying she could not say who had signed the permission to trade vehicle form, and later saying she had raised an allegation that Bryan had been counselled to sign that document at the defendant's premises. 208 The plaintiff conceded something was said about the sound system before Mr Grant was brought in.
(Page 26)
209 The plaintiff, I regret to say, also gave untruthful evidence in relation to other matters, as dealt with below, and by doing so denied herself the right to be treated as a reliable witness.
210 On the evidence, including that of Mr Wheatley and that of Mr Grant, I consider that it is more probable than not that the plaintiff did make an acknowledgment of the signature on the permission to trade vehicle form as being her own. 211 In relation to the events of 20 March 2000 there is one further matter that is relevant. 212 The defendant's position is that the plaintiff left the office of Mr Wheatley on 20 March 2000 with the transaction intact, although she was unhappy about some details, including the non-inclusion of the Alpine stereo system, and prior to departure she and Bryan were given a business card to enable a set of car keys to be obtained. 213 The plaintiff's evidence was quite unconvincing in relation to that, the plaintiff agreeing that Bryan had stopped at a shop in the relevant street on the way home but denying any knowledge of an attempt to collect car keys. Again, that denial is explicable only on the basis that the plaintiff was not prepared to admit to knowledge of something which might affect her position. 214 I would find that following the meeting on 20 March 2000 the plaintiff did further communicate with Mr Wheatley, in the manner alleged by the latter. 215 That the transaction was later repudiated by the plaintiff is explicable, given the financially onerous nature of it in the light of Bryan's age and circumstances, the plaintiff's expressed unhappiness about some aspects of it and an inability to change it after several attempts. 216 The plaintiff, as stated, claimed in evidence at the initial hearing that she was unaware of Bryan's whereabouts then and had been unable to contact him prior to the trial. 217 That issue was an important one, the plaintiff having pleaded in the amended statement of claim that by reason of the loss of her vehicle her relationship with her son had broken down and that they did not communicate with each other, whilst each of the two psychiatrists who had seen the plaintiff, including the treating doctor, had spoken in reports of there having been an estrangement between the plaintiff and her son, in
(Page 27)
the context in each case of a diagnosis of depression relating to the vehicle dispute and Bryan's subsequent departure. 218 Further, the plaintiff's claim included a claim for damages for personal injury, based on that alleged depression. 219 The plaintiff undoubtedly appreciated the importance of the issue. 220 Ms Hudson's evidence at the further hearing, being as stated that straight after the initial hearing the plaintiff had asked whether it was "now safe" for Bryan to return, that Ms Hudson then found Bryan's telephone number and was immediately able to contact him, and that the plaintiff became angry on being confronted with that, said it was none of Ms Hudson's business and denied she had ever said that she, the plaintiff, could not contact Bryan and that she was in fact able to do so if she wished, squarely raised an issue whether the plaintiff had been deliberately untruthful as to the position with Bryan. 221 The plaintiff's denial, accompanied by a claim that she had said something else whilst thinking aloud, was again unconvincing, and her denial that there had been any discussion regarding Bryan, incredible, in the circumstances. 222 Ms Hudson, then the plaintiff's solicitor, had no apparent reason to act to her client's detriment by drawing the Court's attention to the alleged conversation had it not occurred. 223 At the initial hearing I found Ms Hudson to be a witness of truth, and I have no difficulty in accepting her account of what occurred after it. 224 I reject the plaintiff's evidence as to that. 225 It follows that at the time of the initial hearing the plaintiff was able to contact Bryan, contrary to the sworn evidence she then gave. 226 In the circumstances that alone would be destructive of my ability to regard the plaintiff as a credible or reliable witness. 227 At the further hearing the plaintiff also demonstrated a preparedness to compound her earlier untruths, and as stated also made a serious allegation of impropriety against Ms Hudson, in an attempt to avoid an adverse finding arising out of her earlier untruths. 228 The tenor of the enquiry made of Ms Hudson by the plaintiff was such that it raises a further question whether Bryan had been deliberately
(Page 28)
kept out of the way by the plaintiff until the action had been finalised, so as to avoid any judgment against Bryan, he having been joined by the defendant as a third party. 229 The affidavit sworn by the plaintiff to prevent substituted service on Bryan, denying knowledge of any contact details for him, would support such an inference. 230 It is not, however, necessary for me to determine that question, given the finding above. 231 The effect of the plaintiff's advice that the signature on the permission to trade vehicle form was her own amounted in the circumstances to a ratification of Bryan's unauthorised act of disposal of the plaintiff's vehicle, so as to validate that part of the transaction. 232 Although it was argued on behalf of the plaintiff that no question of ratification arose because Bryan had purported to act on his own behalf and not for a principal, that was ultimately not the case in relation to that part of the transaction which involved the trade of the vehicle as part consideration for the purchase of the V8 sedan, Bryan being asked to have the plaintiff sign the permission to trade vehicle form as authorisation for the same, and a notice of sale form, and subsequently producing the signed documents, ostensibly as the plaintiff's response to that request. 233 It follows from the foregoing that the plaintiff's claim in detinue and conversion must fail. 234 Further, no provisional assessment of damages in relation to the vehicle is necessary, no evidence having been led in relation to that, whilst in relation to the plaintiff's claim for damages for personal injury none is possible. 235 It is appropriate for me to make some findings. 236 Notwithstanding the plaintiff's evidence that she had a "minor" problem in her spine prior to 20 March 2000 I would find, based on her concessions in cross-examination and her statements in the medical review documents, that the plaintiff's symptoms were then significant and far from minor, and that the plaintiff's evidence to the contrary was apparently tailored to support her personal injury claim, as was her failure to inform Dr Terace of the relevant medical history.
(Page 29)
237 The reliance by each of Dr McCarthy and Dr Terace on the whole history given by the plaintiff was misplaced in each case to an extent sufficient to not make it possible to act on the opinions and conclusions of those doctors.
Conclusion 238 The plaintiff's claim against the defendant in detinue, alternatively conversion, fails and the claim should be dismissed. |