Silk v Silk

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2020 04317

RACHEL ROSE SILK	Plaintiff/Defendant by Counterclaim
v
ORIEL DAPHNE JOAN SILK	Defendant/Plaintiff by Counterclaim

S ECI 2022 01173

RACHEL ROSE SILK	Plaintiff
v
ORIEL DAPHNE JOAN SILK	Defendant

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JUDGE:	K Judd J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 21-22, 25-28 November 2024, 5-7, 10 February 2025
DATE OF JUDGMENT:	17 July 2025
CASE MAY BE CITED AS:	Silk v Silk
MEDIUM NEUTRAL CITATION:	[2025] VSC 428

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PROPERTY LAW — Equitable estoppel — Whether plaintiff has an equitable interest in the family home — Whether clear and unequivocal promise — Whether mortgage payments made in reliance on a promise — Whether plaintiff acted to her detriment— Kramer v Stone (2024) 421 ALR 106.

BAILMENT — Whether breach of bailment by non-delivery or delivery in a damaged condition — Whether goods abandoned — Banks v Ferrari [2000] NSWSC 874.

EQUITY — Bank transactions made by daughter using elderly mother’s funds — Whether fiduciary relationship in existence — Scope of fiduciary relationship — Whether duty to account — Evidentiary onus of proof — Whether breach of fiduciary duty — Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 — Breen v Williams (1996) 186 CLR 71 — Hrycenko v Hrycenko [2019] VSC 700.

LIMITATION OF ACTIONS — Alleged assault in context of family violence — Claim brought 12 years after alleged assault — Nature of injury suffered — Whether just and reasonable to extend limitation period — Limitation of Actions Act 1958 s 27K.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Levine	MNG Lawyers
For the Defendant	S Fuller with T Staindl	Holding Redlich

TABLE OF CONTENTS

Overview.............................................................................................................................................. 1

Evidence............................................................................................................................................... 4

Real property claim............................................................................................................................ 5

Evidence......................................................................................................................................... 5
Legal principles............................................................................................................................. 7
Consideration................................................................................................................................ 8

Personal property claim.................................................................................................................. 12

Evidence....................................................................................................................................... 13
Legal principles........................................................................................................................... 20
Consideration – Existence of bailment..................................................................................... 22
Consideration – Non-delivery or delivery in damaged condition...................................... 23
Consideration – Whether reasonable care exercised............................................................. 26
Consideration - Abandonment................................................................................................. 26
Consideration – Detinue and conversion................................................................................ 27
Conclusion – Personal property claim..................................................................................... 28

Fiduciary claim................................................................................................................................. 28

Evidence....................................................................................................................................... 29
Legal Principles........................................................................................................................... 31
Consideration.............................................................................................................................. 33
Cash withdrawals.............................................................................................................. 35
Skypax transaction............................................................................................................ 35
Citylink................................................................................................................................ 35
TSVN Home shopping...................................................................................................... 36
Tiger Airways..................................................................................................................... 36
Grocery and shopping excursions.................................................................................. 36
Other.................................................................................................................................... 36
Conclusion in respect of breach of fiduciary duty claim............................................. 36

Battery claim...................................................................................................................................... 37

Orders................................................................................................................................................. 38

HER HONOUR:

Overview

Oriel Daphne Silk (Oriel) is a 94 year old widow who has lived at premises in Broadmeadows (the Broadmeadows property) since 1957, initially by way of lease with the Housing Commission of Victoria. She married Samuel Charles Silk (Sam) in 1966, who passed away on 16 December 2005. In 1965, Oriel and Samuel agreed to purchase the Broadmeadows property from the Housing Commission and on 29 March 1977 they became registered proprietors of the Broadmeadows property. On 13 June 2019, Oriel became the sole registered proprietor of the Broadmeadows property by way of survivorship application.

Oriel and Sam had two daughters, Rachel Rose Silk (Rose), the plaintiff, and Yvonne Karrasch (Yvonne). Oriel also had a son and daughter from a previous marriage. Yvonne and Rose lived at the Broadmeadows property whilst they were growing up. Yvonne moved out of the Broadmeadows property in 1994 to live with Peter Karrasch, whom she later married. Rose continued to live at the Broadmeadows property until 1 January 2019, when she was served with an interim intervention order which prevented her from returning to the property.[1]
[1]An earlier interim intervention order was served on Rose on 21 December 2018. Rose moved out of the Broadmeadows property with the intention of living with a friend for a short period of time after service of this interim intervention order. On 1 January 2019, an amended interim intervention order was served on Rose. It contained a condition that prevented Rose from going to or remaining within 200 metres of the Broadmeadows property.

As a veteran, Sam was able to obtain a Defence Service Home loan through the Department of Veteran Affairs (DVA). In March 2004, Sam and Oriel decided to take out a DVA loan so that they could perform renovations at the Broadmeadows property (DVA loan). The DVA loan was obtained through Westpac Banking Corporation (Westpac). A mortgage over the Broadmeadows property was granted to Westpac to secure the loan. On 8 March 2004, the approximate sum of $25,000 was drawn down from the Westpac loan account and in turn deposited into a Bank of Melbourne account in Rose’s name so that Rose could assist in paying contractors and meeting expenses for materials used in the renovation.[2]
[2]The precise amount deposited into Rose’s account was $24,800.

From 25 March 2004 to 29 November 2018, Rose made payments of $150 each fortnight to pay off the DVA loan. An issue in this trial is whether the payments were made in in reliance upon a representation from Oriel and Sam that she would be granted an interest in the Broadmeadows property if she made the payments along with other payments for repairs, maintenance work and improvements carried out to the Broadmeadows property.

While Sam was alive, he managed the household financial affairs. Sam had been a bank officer and was fastidious with record keeping. He kept a detailed bank ledger as to deposits and withdrawals. He recorded all of his expenditure, including money that he gave Oriel to spend.

After Sam died, Oriel looked to Rose for assistance with financial matters, and at least between 2006 and 2016, Oriel permitted Rose to access both her cheque account and credit card account for that purpose. Throughout that period, Rose regularly used Oriel’s cheque and credit card accounts to enter into transactions and make purchases. An issue in this trial is whether Rose used Oriel’s accounts for her own purposes rather than as authorised by Oriel.

Throughout the time that Rose lived at the Broadmeadows property, she regularly purchased a large amount of personal items including clothing, shoes, household decorations, Halloween and Christmas decorations, collectibles like dolls, and crockery. Rose’s personal property eventually occupied and cluttered almost every room of the house, with many rooms eventually becoming uninhabitable. Pest Control attended the property twice over the years to address the influx of rodents created by the clutter and, in 2015, the Metropolitan Fire Brigade recorded that there was hoarding throughout the whole house.

After Rose was served with the interim intervention order on 1 January 2019, a number of collection events were organised for Rose to collect her personal property. Not all items were collected by Rose. An issue in this trial is whether Rose abandoned the items that she did not collect or whether instead Oriel failed to take due and proper care of Rose’s personal property and to deliver it up on demand.

On 11 February 2010, Oriel and Rose had an argument in the kitchen at the Broadmeadows property. An issue in this trial is whether Rose assaulted Oriel on that day.

By writ filed in this proceeding on 19 November 2020, Rose seeks an equitable interest in the Broadmeadows property (real property claim). Rose also seeks damages from Oriel and an order for delivery in respect of the various personal items and chattels which she left behind at the Broadmeadows property (personal property claim). The personal property claim was initially brought in the Magistrates’ Court of Victoria. It was transferred to this Court on 11 March 2022.

By counterclaim, Oriel seeks damages from Rose for breach of fiduciary duty in respect of transactions made by Rose using Oriel’s funds (fiduciary claim). Oriel also makes a counterclaim for general damages in respect of a battery and assault alleged to have been committed by Rose against Oriel on 11 February 2010 (battery claim). The battery claim is statute barred. Oriel seeks an extension of time pursuant to s 27K of the Limitation of Actions Act 1958. The hearing of the extension of time application was adjourned to the trial of this proceeding.

On 26 September 2019, Rose lodged a caveat over the Broadmeadows property[3] (the caveat), on the grounds of an implied resulting or constructive trust. Oriel seeks an order pursuant to s 90(3) of the Transfer of Land Act that the Registrar of Titles remove the caveat. By letter dated 8 June 2022, the Registrar of Titles advised that she did not intend to appear in this proceeding.
[3]Instrument AS563886G.

Evidence

Rose gave evidence in this proceeding. She made and adopted three witness statements[4] and was cross examined at trial. Rose called Gaylene Corp to give evidence on her behalf. Ms Corp made and adopted a witness statement[5] and was cross-examined at trial. Rose also relied on witness statements of David Lanyon[6] and Gary Gabriel.[7] Documentary evidence tendered by Rose included bank records, receipts, invoices, solicitors’ correspondence, text messages, timesheets, photographs and videos.[8]
[4]Dated 12 September 2023, 5 June 2024 and 1 August 2024.
[5]Dated 21 December 2023.
[6]Dated 25 September 2023.
[7]Dated 25 September 2023.
[8]An affidavit of Paul Khoury, specialised asset valuer, was initially sought to be tendered on behalf of Rose in respect of the personal property claim. It was objected to by Oriel. Counsel agreed that a decision as to the admissibility of the report could be deferred until after findings had been made on liability, as it was only relevant to an assessment of damages.

Oriel gave evidence in this proceeding. She made and adopted one witness statement[9] and was cross-examined at trial. Oriel also called Yvonne,[10] Marion Gallagher,[11] and Ken Abbey,[12] who made and adopted witness statements as well as being cross-examined at trial. Oriel also relied on witness statements of: Emily Page;[13] Vincent Maripa;[14] Lauren Storms;[15] Pamela Deguara;[16] Lindsay Gordon;[17] Terri Hanlon;[18] and Amy Wolter.[19] Documentary evidence tendered by Oriel included bank records, receipts, invoices, ledgers, solicitors’ correspondence, videos, Oriel’s Wills and associated documents, diary notes, text messages, photographs and videos.
[9]Dated 23 February 2024.
[10]Witness statement dated 17 January 2024.
[11]Witness statement dated 26 September 2023.
[12]Witness statement dated 25 October 2023.
[13]Dated 21 September 2023.
[14]Dated 10 October 2023.
[15]Dated 24 October 2023.
[16]Dated 30 October 2023
[17]Dated 2 February 2024.
[18]Dated 7 February 2024.
[19]Dated 27 June 2024.

A statement of agreed facts was tendered and relied on by both parties.

Real property claim

By amended statement of claim, Rose seeks a declaration that she is entitled to a beneficial interest in the Broadmeadows property and related relief. She says that she was encouraged to act to her detriment by reason of a promise by Oriel and Sam, which in turn gave rise to an equitable estoppel.

Evidence

Rose gave evidence that from 25 March 2004 to 29 November 2018, she made payments of $150 each fortnight to Westpac to pay off the DVA loan. In total the payments amounted to $57,600 (the mortgage payments). Rose also gave evidence that she made payments between February 1990 and January 2019 totalling $61,665 for various items of repairs, maintenance work and improvements carried out to the Broadmeadows property (the land payments).

Rose said that she made these payments because of conversations that she had with Oriel and Sam in March 2004 to the effect that the Broadmeadows property would belong to Rose and Yvonne upon their death, and that Rose would have a life interest in the Broadmeadows property if she made the mortgage payments and the land payments. Specifically, it was alleged that:

In or around early March 2004, [Oriel] and [Sam] approached [Rose] about obtaining a loan to renovate the house, in the afternoon, after [Rose] came home from work. [Sam] said words to the effect … “If you repay the loan, along with everything else you have contributed to the house, you will have a life tenancy and on our passing the house will be yours and your sisters. You can buy your sister out, but she needs to take into account all that you have spent on the house”.

Rose’s witness statement was in almost identical terms, except that instead of stating that she was told that she could buy Yvonne out, she stated:

It was understood that I could buy my sister out of her share of the family home when they do, but she had to take into account all that I spent on the family home.

There was no suggestion by Rose that Yvonne was part of this conversation or that Yvonne was made aware of any such plan. Yvonne gave evidence that Sam never made any representation to her that Rose would be receiving any type of interest in the Broadmeadows property.

The only other witness who gave evidence on this topic was Gaylene Corp, who said that Oriel told her that Rose and Yvonne would inherit the house and that Rose would pay Yvonne out less any amounts that Rose paid into the house. Even if I were to accept this evidence, it does not amount to an admission by Oriel that Rose had been granted a proprietary interest in the Broadmeadows property. However, I do not accept that Ms Corp was either a reliable or credible witness. It was clear that Ms Corp was giving the evidence that she thought would most assist Rose’s case. Her witness statement was prepared in consultation with Rose and after five years of discussions with Rose about the case. Ms Corp said that she was able to remember specific dates because she referenced a diary, but even with reference to her diary she described a date range rather than a specific date and when the diary was called for she said that she no longer had the diary.

In addition to the conversations that occurred in March 2004, Rose also referred to purported conversations before and after March 2004. Rose stated that in or around 1997 she told Oriel and Sam that she wanted to purchase a house of her own, but she did not buy that house because Oriel and Sam told her that they wanted her to live with them and help them in their old age. Rose said that Oriel and Sam said words to the effect:

In our wills, you and Yvonne will inherit the house together. You will have a life tenancy in the house. You can stay in this house for as long as you like.

Rose said that over the years Oriel and Sam would ask her to choose items for the Broadmeadows property and make various purchases, as she would be living in the house longer than they would, and the Broadmeadows property would be hers on their passing.

Oriel denied that she was ever part of a conversation in which Rose was told that she would have an interest in the property. Specifically, Oriel denied that she had a conversation with Sam and Rose in March 2004 to the effect that the Broadmeadows property would belong to Rose and Yvonne upon their death and that Rose would have a life interest in the property.

Oriel said that it was always her understanding that the $150 fortnightly mortgage payments were made by Rose in lieu of board. Oriel said that it was Sam who informed her that the $150 fortnightly mortgage payments were to be made by Rose in lieu of board. Once Sam died, Oriel continued to honour the arrangement. However, because the grocery bill had increased, Oriel and Rose further agreed that Rose would pay for half of the groceries. Oriel said that she continued to be responsible for the payment of expenses such as household facilities, gas, electricity and rates, but Rose was authorised to make those payments for her out of her bank account and manage the household finances. Oriel also conceded that on a number of occasions Rose herself made payments for such outgoings.

Under cross-examination, Oriel agreed that she had made a promise to Sam that she would not throw Rose on the street, even though she had threatened to because of Rose’s ‘antics’. But she had never promised to transfer the property to Rose. Oriel said that she had other children including Yvonne and it was not appropriate for one child to receive everything.

Oriel agreed that Rose assisted Sam with the 2004 renovations, but that it was her understanding that the money expended on the renovations were paid for from the DVA loan. Oriel agreed that Rose put some money into items for the house, but that was because Rose wanted them for her own use and enjoyment.

Legal principles

In Kramer v Stone,[20] the High Court refined the requirements for equitable estoppel arising by reason of encouragement from a promise, identifying four elements that must be satisfied:
[20](2024) 421 ALR 106, 115-116 [36]-[40].

(a) There must be a clear and unequivocal promise made by the promisor to the promisee;

(b) A reasonable person in the position of the promisor must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct;

(c) The promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected. In order to establish reliance, it is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee’s action or omission but that the promisee would not have acted or omitted to act in the absence of the promise; and

(d) The consequence of the promisee’s reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made.

Consideration

Even if I were to accept Rose’s evidence, at its highest, she has not established that there was a clear and unequivocal promise made to her. To the extent that Rose was able to articulate the substance of the conversations that she had with Oriel and Sam, she was inconsistent and imprecise. For example, at one point, she said she had a conversation ’that the land would belong to her [Rose]’. At another point she said that she had a conversation ‘that she [Rose] would have a life interest in the land’. At another point she said:

When I wanted to leave home, Mum and Dad said to me they didn’t want me to go; they wanted me to stay in the house, and that I would be able to stay in the house and have life tenancy because there was a will that was dated earlier than that particular time when my sister and I had fifty-fifty percent of the house. It was on their passing.

Not only was Rose unable to articulate a clear and unequivocal promise, but the inconsistencies in her evidence, the changing nature of her evidence during the course of the trial and the implausibility of much of what she advanced, leads me to reject her evidence.

Overall, the evidence more realistically leads to a conclusion that any conversations that Rose had with Oriel and Sam about living in the house after they died went no further than discussions about likely inheritance to Rose and Yvonne upon their death. Such a conclusion is consistent with the mirror wills executed by Oriel and Sam in March 1994 in which they:

(a) gifted their estate to the other; or

(b) in the event the other had predeceased, gifted their estates equally to Yvonne and Rose.

The conclusion I have reached is also consistent with the evidence that Oriel gave. I am satisfied that Oriel was a truthful, honest and reliable witness. She did not exaggerate, nor did she give evidence in a contrived way. She was very clear that she did not make the promises that Rose said she made and she gave logical explanations as to why she would not have made such promises to Rose, including by reason of having children other than Rose.

In respect of the element of reliance, I am not satisfied that the $150 fortnightly mortgage payments were made in reliance on a representation that Rose would have a proprietary interest in the Broadmeadows property. Rather, I am satisfied that these payments were made in lieu of board.

I note that Rose did not make any further mortgage payments after being served with the intervention orders and no longer residing at the Broadmeadows property, with Yvonne paying the remainder of the DVA loan on Oriel’s behalf, although I accept that there was very little left of the DVA loan to pay at that stage.

Perhaps more to the point, it is logical that Rose was required to pay something in the way of board given she was an adult, in stable employment, and living in her parents’ home. Rose seemed to recognise this and suggested that, in addition to the mortgage payments she was paying $150 per fortnight for board, along with her other contributions.

I do not accept this evidence. There was no documentary evidence of any kind to support such an assertion even for the period when Sam was alive who, on Rose’s admission, was fastidious about recording such matters, including cash payments.

This of itself would not be the end of the matter, but it is relevant that Rose changed her position on the additional $150 board payment as the trial progressed. For example, there was a reference in schedule D of the statement of claim to a cash payment per fortnight for board from February 1990 onwards for 28 years, which in effect amounted to $150 per fortnight. But this item was inconsistent with Rose’s evidence that she and Oriel reached a new agreement after Sam died that, instead of $150 per fortnight for board, Rose and Oriel would share living expenses.

Even if board had been paid over the years (prior to Sam’s death), such fact would tend to support a finding that the mortgage payments were in lieu of board as pleaded on behalf of Oriel. The alleged mortgage payment contributions were exactly the same amount as the earlier board payments, which tends to support rather than detract from a conclusion that the $150 mortgage payments were in lieu of board.

In respect of the land payments, again there are significant obstacles in the way of a conclusion that Rose made these payments in reliance on a representation that she would have a proprietary interest in the house:

(a) A number of the land payments relied on were made prior to the first alleged purported representation. For example, the payment of $6000 for a sunroom extension and the payment of $1800 for electrical wiring were both said to have been made in 1994, some 10 years before the DVA loan was taken out and some three years prior to the first purported representation made by Oriel and Sam;

(b) A number of the land payments were made in the months immediately following the deposit of $25,000 odd into the account that Rose was supposed to utilise for renovation payments. Given the absence of proper accounting and the unsatisfactory nature of Rose’s evidence, it is difficult to ascertain precisely what the monies deposited into Rose’s account were used for. However, items made in the months immediately following the deposit of $25,000 odd into Rose’s account for purchases such as building supplies, bricks, plumbing, kitchen items (such as a cooktop, rangehood and dishwasher) and bathroom items (such as tapware, a shower base and a bath), would logically fall into the category of renovation payments.

In respect of the purported land payments more generally, I do not accept that the conversations that Rose had with Oriel and Sam went any further than giving her permission, from time to time, to spend money on the Broadmeadows property so as to make it better for her own enjoyment. This is no different to the situation described by Quigley J in Hatziminas v Hatziminas:[21]

It is also not uncommon in a family situation that a member of a family, usually a child or grandchild, will be gifted the use of a property for a period of time and even have the legal owner’s permission to change it, provide for the upkeep and pay outgoings, renovate it and treat it as if it was theirs. That they do work on the property, make it better for themselves to enjoy and more comfortable does not automatically create an interest in the property.[22]

[21][2024] VSC 513.

[22]Hatziminas v Hatziminas [2024] VSC 513, [277] (Quigley J).

Ultimately, I am not persuaded that Rose has an equitable interest in the property. I am not satisfied that the requisite elements of equitable estoppel have been established. In particular, I am not satisfied that Oriel or Sam made any clear and unequivocal promise to Rose to the effect that she would have a proprietary interest in the land if she made the mortgage and land payments. I am not satisfied that the actions Rose took were done in reliance on any such assumption or expectation.

I am also not satisfied that there is detriment flowing to Rose. I am not persuaded that Rose made all of the payments she alleged she made from her own funds and, to the extent that she expended money, she did so in order to more comfortably live in the Broadmeadows property.

To the extent that Rose said she refrained from purchasing another property on the basis of the representations, it is difficult to reconcile her position on this with other evidence given by her about the state of her finances. However, it is unnecessary to resolve why Rose did not purchase another home. It is clear that Rose did want to continue living in the Broadmeadows property. She had a good relationship with Sam and she hoped to inherit the Broadmeadows property one day. But that is very different to acting to her detriment in reliance upon a promise.

Rose’s real property claim must be dismissed.

Personal property claim

In the personal property claim, Rose seeks an order for delivery of personal property and damages for breach of bailment, for detinue, or for conversion.

The parties agree that as a result of the interim intervention order preventing Rose from returning to the Broadmeadows property, a large quantity of personal items were left behind.

Those personal items included Barbie, Elmo, Holly Hobbie, Cabbage Patch, dancing bears and porcelain doll collections, other collectibles, a camera, small electrical items, lights, heaters, a Singer sewing machine and table, an iPad, designer shoes, war medals, photos, trophies, jewellery, ornaments, china, tea sets, cutlery, pots and pans, baking dishes, kitchen appliances, kitchen utensils, chopping boards, storage containers, napery, tableware, Christmas trees, Halloween and Christmas decorations, teddy bear making supplies, doll making supplies, pottery, cleaning products, rubbish bins, clocks, curtains, fabric, craft supplies, trolleys, fridges, televisions, shelving, display cabinets, other indoor furniture, outdoor décor, outdoor furniture, umbrellas with metal stand, outdoor mirrors, a cooler, chair covers, candles, artificial plants, vases, a treadmill, a spin bike, a pilates machine, a pizza oven, barbeques, kilns, ceramic moulds, tools, a craft tent, a step ladder, shopping buggies, dog products, cash, and various other small items such as paper towel holders, hooks, coat hangers, a makeup mirror, thermometers and disposable cups.

Rose contends that upon vacating the Broadmeadows property, Oriel became a gratuitous bailee and undertook to take due and proper care of her personal property and deliver it up on demand. Rose contends that, despite demands and multiple collection attempts, Oriel has restricted her ability to collect her personal property. She claims the value of the personal property that she was unable to collect. Rose also contends that Oriel was negligent in her storage of the personal property, resulting in damage. She claims the value of any personal property that has been damaged.

Whilst Oriel accepts that Rose left chattels at the Broadmeadows property, she denies that by virtue of this she became a bailee of the goods. Rather, Oriel says the goods were abandoned and, further, denies any responsibility for the state the chattels were in.

Evidence

There was much evidence given, including by Oriel and Yvonne, that after Sam’s death, Rose started purchasing large amounts of personal property which she stored at the Broadmeadows property. Evidence was given that Rose and Oriel would frequently bicker about the amount of belongings which were piled on top of each other and overrunning the house.

Oriel said that at the time Rose vacated the property, her personal belongings were so vast that she was worried about a potential fire hazard. She had also begun to notice rodent faeces inside the house.

Yvonne gave evidence about the state of the premises both before and after Rose left the Broadmeadows property. In particular, she said that from about 2010 there were mice infestations, with mice found in both Oriel and Rose’s bedrooms and their belongings. The rodent problem became progressively worse over the years until Rose moved out.

Lauren Storms who assisted Yvonne with the packing process described Rose’s bedroom in July 2019 in the following terms:

…Rose’s bedroom was extremely cluttered and there were empty food wrappers and a Toblerone chocolate box under the bed that rats and/or mice had eaten through. The smell was horrific and there were what appeared to be mouse or rat faeces all over the place… There were trunks, chests of drawers and boxes stacked and squashed into the room. I was overwhelmed by the amount of items in the room. I could not believe the amount of things that had been packed into such a small space.

Ken Abbey gave evidence of working as a handyman at the premises. He observed numerous items of chattels being stored in the carport, unprotected from the elements. He said the carport was an open carport and the items stored in it included new items, items in boxes and electrical equipment. The quantity of items kept increasing.

Oriel and Rose said that once Rose moved out, there were numerous opportunities provided for Rose to collect her personal property, many of which were facilitated by Yvonne.

Rose gave evidence that, notwithstanding the collection events, Oriel has restricted her ability to collect her property. She further said to the extent that some of her property was made available, it had not been properly cared for by Oriel and was returned in a damaged state, including by reason of water damage. Rose denied that there was a rodent problem before she moved out.

The most significant collection events are set out below.

On 1 January 2019, Rose attended the Broadmeadows property with a police officer. On that occasion, Rose was able to collect some items, including her computer.

On 5 January 2019, Rose attended the Broadmeadows property with a police officer and a friend, David Lanyon, to collect further items. They were at the Broadmeadows property for approximately 30 minutes but were unable to collect all of Rose’s personal property.

On 20 January 2019, Rose attended the Broadmeadows property in the presence of police to collect further items. Although Rose does not have a list of what items were collected that day, she recalls taking a pair of shoes and some toiletries.[23]
[23]In her statement, Rose says that she took shoes and clothes. Under cross-examination she says she took shoes and toiletries.

On 18 April 2019, Northern Community Legal Centre on behalf of Oriel, sent to the solicitors for Rose, a list of items and photographs of Rose’s personal property items to be returned to her.

On 27 June 2019, the parties attended Broadmeadows Magistrates’ Court where an undertaking was signed including the following condition:

Rose, in the company of the Gabriel family, may attend the property to collect the respondent’s property at times and dates to be agreed between the AFM and respondent’s lawyers with consent not to be unreasonably withheld.

There were some further misunderstandings as to when Rose could and would next attend the Broadmeadows property, but ultimately it was agreed that Rose would have a six-hour period to attend the Broadmeadows property on 17 August 2019 to collect her personal property, commencing between 8:30 and 9:30am. The solicitors for Rose noted that Rose would attend in the company of Lauren and Gary Gabriel as well as some insured movers. Whilst Rose would endeavour to collect as much as possible on that date, it would not be possible to collect everything.

On 17 August 2019, Rose attended the Broadmeadows property together with Lauren and Gary Gabriel at the agreed time. The insured movers arrived at the Broadmeadows property at approximately 2.30pm. Whilst waiting for the movers to arrive, three car loads worth of personal property were collected and removed. Gary Gabriel gave evidence as to his frustration at not being permitted access into the Broadmeadows property beyond the lounge room. On the other hand, Yvonne said that items had been placed in the loungeroom or on the driveway for collection and that the removalists had left the premises without taking all of the items. Terri Hanlon, assisting Yvonne that day, said that she had been advised by Yvonne that if the items that had been placed out were removed, more items would be placed out, and in fact, as items were removed more were placed out by her and Yvonne.

On 11 September 2019, Seniors Rights Victoria, on behalf of Oriel, wrote to Rose’s solicitor to inform her that much of Rose’s uncollected property had been relocated to a storage unit and would be available for collection by Rose for 28 days until 9 October 2019, after which date they would be disposed of. The letter stated as follows:

We note this notice comes after several months of attempting to facilitate collection of items belonging to your client. Your client has failed to use the ample opportunities provided to take delivery of the goods.
The items, as they were, posed an urgent health and safety risk to our client. The materials in the backyard (including the garage, veranda and carport) became the nest for a rat infestation across the property, endangering the health of anyone living inside it. Professional exterminators advised that they could not target the infestation until the goods in the yard are removed.
The removal of these items, along with the many items your client left crowded in the lounge room, could not be delayed any further.
...
If your client is able to clear all or part of the storage unit before 9 October 2019, our client is willing to restock the unit with further uncollected goods of your client.
If they are not collected, our client will retain from the proceeds of the sale of the goods an amount not exceeding the sum of the relevant charge and the disposal costs.

Rose first attended the storage unit on 27 September 2019. Video footage of the storage unit on that day depicts how Rose’s personal property was stacked in readiness for her collection. Boxes and items of property were neatly stacked. Bubble wrap covered some of the items and others items appeared to be wrapped in black plastic. Some of the boxes had fragile stickers marked on them. Rose collected a van full of those items that day but further video footage demonstrates that Rose left many items behind that day. Rose attended the storage unit again on 23 and 26 October 2019.

On 29 October 2019, Rose’s solicitors sent a letter to Seniors Rights Victoria, claiming that Oriel’s unwillingness to allow Rose to collect items directly from the home had caused her personal property to be damaged during transportation to the storage unit. Attached to the correspondence was a non-exhaustive list of personal property which Rose sought access to. This represented the first time that Rose produced a list of items that were said to remain at the Broadmeadows property.

The parties attended Broadmeadows Magistrates’ Court on 11 November 2019 in which the June 2019 undertaking was varied to include the following:

(a) All property owned by Rose must be removed between 15 and 20 November 2019;

(b) Removalists are to attend on the property on 16, 17 and 18 November to access the lounge room where goods will be made available for collection and removal;

(c) Between 15 and 20 November, Oriel will organise for a truck to be loaded with the non-fragile items. Removalists will be paid for by Rose and other expenses to be paid by Oriel.

Rose accepted, in cross-examination, that she appreciated that this was her last opportunity to collect her things and that if she did not collect her personal property during this window, it would be disposed of.

Between 15 and 18 November 2019, removalists from Jake’s Removalist attended the Broadmeadows property on instructions from Rose. Items of Rose’s personal property were made available for collection in the front room, the lounge room, the carport, the veranda, the front lawn, the driveway, the sunroom and the back gazebo. Some items were collected during that period.

On 20 November 2019 Oriel arranged a removalist to take some additional items to Rose’s house.

On 21 November 2019, Seniors Rights Victoria wrote to Rose’s solicitors stating that there remained an enormous amount of Rose’s personal property at the Broadmeadows property. The letter concluded:

There is still an enormous amount of uncollected goods belonging to your client on the property. Our client cannot permit further delays. A further report by pest exterminators has found that the rat infestation has become worse, with rats continuing to breed amongst items left by your client. There are serious health risks to our client continuing to live at the property as it is.
Consequently, we advise that, after 11 months of effort and expense associated with the attempted removal of goods, our client considers the remaining goods abandoned.
Work will begin tomorrow on the removal and disposal of uncollected goods.

On 5 December 2019, Rose’s solicitors sent to Seniors Rights Victoria a letter which they described as a notice of demand to deliver up property held by bailee. The demand did not particularise the property and was in the following terms:

… our client demands that your client delivers up to her all of her outstanding personal property. To avoid doubt, we advise that this entail [sic] your client allowing my client and her agents to attend and collect her property, without inference [sic], direction or attempted control by your client.

On 10 December 2019, Seniors Rights Victoria wrote to Rose’s solicitors confirming that, given the history of physical violence and extensive financial abuse by Rose against Oriel, there were no circumstances under which Rose herself would be permitted to attend the Broadmeadows property.

On 22 March 2020, Rose’s solicitors sent to Seniors Rights Victoria a letter attaching two schedules identifying Rose’s property which they demanded be delivered up within seven days.

On 20 April 2020, Seniors Rights Victoria sent a letter to Rose’s solicitors asserting a number of matters, including that Oriel’s position was that any property left at the Broadmeadows property after 20 November 2019 had been abandoned.

Notwithstanding this letter and some further correspondence between solicitors, a further final opportunity was subsequently given to Rose to collect her personal property. On 20 December 2022, through solicitors’ correspondence, Rose was advised that all remaining personal property would be moved to a storage facility in Epping. Rose would be given access to this facility between 17 January 2023 and 20 March 2023, after which time any remaining goods would be disposed of.

By letter dated 17 January 2023, Rose’s solicitor was provided with a list of the items that had been moved into two 3 x 6 square metre storage facility units in Epping. The list included 207 items with identification numbers and descriptions of their condition.

A video taken by Yvonne on 4 January 2023 depicted the items of personal property which had been relocated from the Broadmeadows property to the storage unit. A further four videos taken by Yvonne on 20 March 2023 depicted the items which Rose had failed to retrieve during the 63 day collection period.

The video footage of the storage unit on 4 January 2023, prior to Rose attending, depicted neatly stacked boxes with bubble wrap around many items and fragile stickers on boxes. The witness statements of Pamela Deguara, Lindsay Gordon and Terri Hanlon, who assisted Yvonne with the packing process around this time, were similarly to the effect of care having been taken as part of the packing and storage process.

In contrast, the video footage of the storage unit, after Rose attended to collect her personal property depicted a very different situation, with rubbish strewn all over the place.

Yvonne gave evidence of the measures taken to pack and box Rose’s personal property. Those measures included taking specific care in separating, packaging, and handling any fragile items which were protected with bubble wrap, tissue paper, and other packing materials. Yvonne also asserts that she placed security seals on most of the boxes prior to their relocation to the storage facility. Yvonne indicated that the extensive measures taken around the care of Rose’s property were motivated by concern that Rose may allege that damage to the property arose as a result of improper handling during its relocation.

Legal principles

In Hobbs v Petersham Transport Co Pty Ltd,[24] Windeyer J said:

A bailment comes into existence upon a delivery of goods of one person, the bailor, into the possession of another person, the bailee, upon a promise, express or implied, that they will be re-delivered to the bailor or dealt with in a specified way.[25]

[24](1971) 124 CLR 220.

[25]Hobbs v Petersham Transport Co Pty Ltd; Petersham Transport Co Pty Ltd v ASEA Electric (Australia) Pty Ltd (1971) 124 CLR 220, 238 (Windeyer J).

In Cambridgev Anastasopolous,[26] Meagher JA said that_:

a bailment results from the voluntary taking of possession by a person or persons of the goods of another. That taking of possession does not require the bailor’s consent.[27]

[26][2012] NSWCA 405.

[27]Cambridge v Anastasopolous [2012] NSWCA 405, [13] (Meagher JA).

A bailment can be gratuitous or for reward. In a gratuitous bailment, as is alleged in the current proceeding, the bailee owes a duty to take reasonable care of the goods bailed and a duty to return them.[28]
[28]Thomas v High (1959) 60 SR (NSW) 401, 407; Graham v Voigt (1989) 95 FLR 146, 154 (Kelly J).

The onus rests on the plaintiff to prove the existence of the bailment and a breach consisting either in the non-delivery of the goods or the delivery of the goods in a damaged or worsened condition. Once such a breach is proved, it falls to the defendant to prove that he or she has exercised reasonable care in relation to the goods.[29]
[29]Fankhauser v Mark Dykes Pty Ltd [1960] VR 376, 377; Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts Reports (81-292) 61,550, 61,554.

Even where a defendant assents to property remaining on their land, the relationship thus constituted may not necessarily amount to more than one of licence without obligation on the part of the defendant to take care of the chattels.[30]
[30]Rolf v Investec Bank (Australia) Ltd (ACN 071 292 594) [2014] VSCA 38, [61].

Detinue protects against the unlawful detention of goods. It is constituted by the wrongful withholding of chattels to which the plaintiff has an immediate right to possession. There are three substantive characteristics of detinue:

(a) The plaintiff must make a demand for the return of the goods. The plaintiff’s immediate right to possession must simultaneously subsist at the time the demand is made.

(b) The defendant must have refused that demand.

(c) Where the goods are in the defendant’s possession, the refusal to return the goods must be unreasonable; where the goods are not in the defendant’s possession, the defendant must have wrongfully parted with possession.[31]

[31]Black Diamond Group Pty Ltd v Manor of Maluka Pty Ltd [2015] 1 Qd R 180, 186 [41].

Conversion is an intentional dealing with goods in a manner repugnant to the immediate right of possession of another person.[32] Accordingly to maintain an action in conversion, the plaintiff must have either possession or the right to immediate possession at the time of the conversion.
[32]Penfolds Wines Pty Ltd v Elliot (1946) 74 CLR 204, 229 (Starke J).

The range of conduct that will constitute conversion is varied. Something more will be required than damage to a chattel or the use of a chattel.[33] Relevantly, for the purposes of this proceeding, a refusal to surrender goods upon lawful demand is a conversion.[34]
[33]Penfolds Wines Pty Ltd v Elliot (1946) 74 CLR 204, 229 (Starke J).
[34]Pratten v Pratten [2005] QCA 213, [60]-[61].

Also relevantly, for the purposes of this proceeding:

Where goods are left on land and the occupier refuses to allow the owner of the goods to enter the land and retrieve them, the refusal is not necessarily conversion. It may become conversion if the occupier establishes any right in respect of the goods, or denies the plaintiff most of the rights of ownership, including the right to possession, for a period which is plainly indefinite. But a mere threat to prevent an owner in possession from removing the goods will not in itself amount to conversion.[35]

[35]Rolph et al, Balkin & Davis Law of Torts (6^th ed, 2021) 130-131.

Abandonment occurs—

when there is either a giving up or an absolute relinquishment of private goods by a former owner. Such a state of affairs may arise when the owner of the goods is intent on specific desertion and relinquishment by either casting away the property or by simply leaving it behind.[36]
[36]Banks v Ferrari [2000] NSWSC 874, [98], citing Keene v Carter (1994) 12 WAR 20, 26 (Ipp J).

Consideration – Existence of bailment

Rose’s pleadings allege that Oriel failed to take due and proper care of her personal property and to deliver up the personal property on demand, in the circumstances, as a gratuitous bailee.

Oriel submitted that there is some doubt as to whether she ever became a bailee given she did not ever voluntarily take possession of Rose’s personal property as a gratuitous bailee, in the sense of consciously and willingly assuming possession of Rose’s personal property. Oriel also submitted that at the time of Rose’s departure, Oriel had no real knowledge of the extent of the personal property left behind.

In her further reply submissions, Rose has relied on a number of cases relevant to becoming a bailee on an involuntary basis.[37] Those submissions have been advanced, notwithstanding that it was never pleaded that Oriel became an ‘involuntary bailee’ and, if so, what duties or obligations flowed as a result.
[37]Or relevant where one party to a contract has been left in possession of another’s goods.

There is no doubt that, once the interim order had been served, Rose’s access to the Broadmeadows property was subject to Oriel’s control. Oriel knew there was a vast amount of Rose’s property that had been accumulated over the years, but she had not kept a precise track of what Rose had stored on the premises over the years and it was not until Yvonne took control that lists of Rose’s personal property and condition reports were created.

There is also no doubt that Oriel was desirous of Rose’s personal property being removed from the Broadmeadows property and consistently acted in a manner that demonstrated that she did not want the personal property in her home. From the moment the intervention order was served right up until March 2023 Oriel provided opportunities for Rose to collect the property. Oriel’s solicitors sent correspondence describing crowding and health risks posed by the storage of Rose’s goods at the Broadmeadows property. Oriel’s solicitors also sent correspondence listing the personal property items that Oriel wanted collected, together with photographs. Rose was continuously encouraged to collect her personal property items either on the organised collection dates or from a storage unit.

Notwithstanding that there is some doubt as to Oriel having become a voluntary bailee, I am prepared to proceed on the basis that she was a voluntary bailee, and therefore on the basis that Oriel owed a duty to take reasonable care of the goods bailed and a duty to return them.

Consideration – Non-delivery or delivery in damaged condition

In respect of the allegations that Oriel failed to return Rose’s personal property and that she returned much of Rose’s property in a damaged condition, I conclude that these allegations have not been made out.

As I have already indicated, it is clear on the evidence that Oriel did not want to retain possession of Rose’s personal property. It is also very clear on the evidence that Oriel was taking every step she could to have the property returned to Rose.

The reason that property was left behind was not due to a failure on the part of Oriel. Rather, Rose did not take advantage of the numerous collection opportunities provided and, even when she did attend a collection event, she opted to leave much of her personal property behind.

Rose’s purported reason for leaving much of her property behind was that the property was damaged. But I conclude that Rose, when she went through her property, determined that she no longer wanted it and deliberately left it behind. It is unclear why Rose no longer wanted each item of property, but it appears that some of it was too large for her to store elsewhere, some of it was no longer in mint condition and some of it she simply did not wish to take with her.

Rose’s assertions as to the condition of the personal property cannot be relied upon as truthful or accurate. Rose was prepared to simply make bald assertions about the condition of the property and the way in which the property was stored.

In contrast, Yvonne, who was largely responsible for organising the return of the goods to Rose, kept a record of the condition of the personal property items which differed in many respects from the evidence that Rose gave at trial. Yvonne’s evidence was supported by the other witnesses who assisted her with the packaging process and by photographs and video footage.

A good example of the preparedness of Rose to simply make assertions was in respect of the 2023 collection event. Rose asserted the following, in respect of the goods stored at the storage unit:

I deny that there was bubble wrap around my personal property when it was packed and moved or that there were fragile stickers on the boxes.

This evidence is clearly contrary to the video footage taken by Yvonne of the stored items which depicts both bubble wrap and fragile stickers.

Even accepting that some of Rose’s personal property was damaged or no longer in mint condition when it was returned, Rose has not established that these items were delivered in a condition any worse or any different than what they were in when they had been in Rose’s possession.

This is explicable given there were a number of factors over the years which most likely caused damage to Rose’s personal property. Such factors included rodent infestation, and the way in which the items were stored by Rose over the years at the Broadmeadows property. I do not accept that the rodent problem arose only after Rose left the property. I do not accept that Rose stored her goods in a manner that would keep the items safe from damage. It is clear from the evidence and the large quantity of items kept by Rose that more and more storage places had to be located which may not have been ideal, such as an open carport.

Oriel also contended that some of the property that Rose made a claim over was not in fact property that belonged to Rose, namely: war medals, a Singer sewing machine table, a carpet cleaner, a broom and wipes, storage containers, a crockpot, solar lights, a kookaburra sculpture, wind chimes, a yellow hand trolley, a flatbed trolley, a tallboy and side table in Oriel’s bedroom, a laundry cupboard, a towel holder, a vase, cups and saucers and mugs, shelving, a step ladder, shopping buggies, a wall clock, scissors, a sofa table, an electric blanket, a wrought iron garden arch, a soap dish, a bed base that Oriel sleeps in together with sliding under the bed storage boxes, a TV stand, a cordless phone, a wok, a juice maker, a fridge, a spice rack with spices, a grill, and kitchen cannisters.

The number of items that Oriel asserted did not belong to Rose was insignificant compared to the total number of personal property items that Rose made a claim over.

Rose has the burden of proof in respect of demonstrating ownership and I am not persuaded that she has discharged this burden in respect of the goods that Oriel claimed were her own. There were no receipts for items such as the Singer sewing machine table. Many of these items were household items of little value and regularly used in a family home. Some of the items were in fact furniture items utilised by Oriel in her own bedroom, including the bed that Oriel sleeps in. I am not prepared to accept Rose’s assertions that these were her own items, as opposed to items belonging to Oriel.

There was also a dispute over whether a number of items that Rose sought to have returned to her could be located or not, namely: envelopes containing cash, Pandora bracelets, Swarovski jewellery, Scanpan items, lace-up boots, candles in mason jars, pet clothing, dog toys, a dog collar, an electric pump, shepherd’s hooks, electric plugs, a grandchild trophy, a vacuum sealer, a chopping board, brownie trays, coat hangers, a turbo cleaner, a car cleaning brush, an electric saw, a DVD player, a sandwich panini press, white dishes, industrial cleaning items, an outdoor metal clock, fairy lights, trestle tables, a Dior book, a heated seat cushion, cake forks and spoons, a kitchen anti-fatigue mat, a cake stand, character coffee mugs, glass plates, pizza oven, Elvis Presley stamps, a Princess Diana coin, a USA Kennedy silver dollar, a Christmas train set, a Santa and reindeer ornament, a de Bruin saucepan, a Kitchen Aid saucepan and Kitchen Aid frypans, Franklin Mint collectable plates and teddy bear figurines with display stand, a Mickey and Minnie Mouse Christmas ornament, a Brother cut and scan machine, doll making supplies and tools, certain designer shoes, candy cane yard decorations, a folder with an ancestry coat of arms, a Cabbage Patch doll, chocolate making moulds, display stands, a nail gun, an electric sander and Charlie Brown Christmas trees.

Again, these items were insignificant compared to the total number of personal property items that were returned to Rose or made available to her.

I accept the evidence of Yvonne to the effect that all items belonging to Rose that could be located were made available to her. Yvonne was meticulous in her attempts to locate and record all relevant items that needed to be returned to Rose. She presented as an honest and reliable witness who wanted Rose’s property out of the house, rather than a witness who wanted to hold on to these types of items. On the other hand, although Rose may have believed that these items remained at the Broadmeadows property, she had no records to rely on and did not articulate the last time that she saw many of these items, simply saying they were in the house when she left and they were not returned to her.

Consideration – Whether reasonable care exercised

Although it is perhaps not necessary to determine this point given my other findings, I am positively persuaded that, to the extent that she was able to, Oriel, including by utilising Yvonne’s assistance, did exercise reasonable care in relation to Rose’s personal property.

I accept the evidence of Oriel, Yvonne, Pamela Deguara, Lindsay Gordon and Terri Hanlon as to the care that was taken in respect of handling the goods. Their evidence was consistent with each other and with extensive video footage and photographs. Their evidence is to be preferred over the evidence of Rose who simply made assertions that care had not been taken.

Consideration - Abandonment

As part of Oriel’s defence, she claimed that Rose had abandoned her personal property.

It is clear that Oriel provided ample opportunities for the collection of personal property; over and above that required by a reasonable person. I am satisfied that by 20 November 2019, there was a giving up or an absolute relinquishment by Rose of her personal property, such as to constitute abandonment.

There was a court order for Rose’s personal property to be removed by that date and Rose accepted that this was her last opportunity to collect her personal property. Yvonne’s evidence was to the effect that everything that was found within the house belonging to Rose was made available for collection on and just prior to this date and there was nothing of Roses’s that was not made available for collection. The fact that items were left behind was of Rose’s own doing.

Notwithstanding this, I am satisfied that Oriel gave Rose further opportunities to remove her personal property as set out in the chronology above, but by 20 March 2023 nothing further could realistically be achieved.

Consideration – Detinue and conversion

Turning to Rose’s claims in detinue and conversion. Although such claims are made in the prayer for relief, I accept the contentions made on behalf of Oriel that the material facts constituting the basis of these causes of action have not been pleaded.

In any event, both claims fail for similar reasons. Rose’s claims in conversion and detinue were based upon demands made on 5 December 2019 and 22 March 2020.

Given my finding that by 20 November 2019 there had been a giving up or an absolute relinquishment by Rose of her personal property such as to constitute abandonment, Rose did not have a right to immediate possession at the time those demands were made. Accordingly, there is no basis to Rose’s claims in detinue or conversion.

I note also that both before and after the demands, Rose was given collection opportunity after collection opportunity. This has never been a case in which Oriel has refused to surrender the personal property. Oriel and Yvonne were desperate for the personal property to be gone from the Broadmeadows property.

Conclusion – Personal property claim

The personal property claim must be dismissed.

Fiduciary claim

Oriel, by counterclaim, seeks equitable damages or compensation for breach of fiduciary duty.

The fiduciary duty is said to arise as a result of Oriel’s dependence on Rose to manage the majority of her financial matters and:

(a) the fact that from early 2006, Rose had access to Oriel’s cheque account and her credit card account;[38] and

(b) that the basis of such access was that Rose would only use the funds for Oriel’s benefit, or otherwise with her consent.

[38]Agreed fact.

Oriel submitted that over a 10 year period, Rose effectively treated Oriel’s accounts as her own and that once it is established that Rose made the alleged transactions, the evidentiary onus falls on Rose to justify each transaction.

Rose submitted that it has not been established that there was a fiduciary relationship between Rose and Oriel because:

(a) there was insufficient evidence in relation to the nature and circumstances of the manner in which Rose was given access to the accounts;

(b) there was no evidence that Rose and Oriel had a conversation that gave rise to any fiduciary duties; and

(c) there was no evidence of any special vulnerability of Oriel.

Rose also submitted that even if there was fiduciary relationship:

(a) there was a lacuna in the evidence that precludes any finding being made on the scope of the fiduciary relationship; and

(b) Oriel has not established that there has been a breach of fiduciary duty.

Rose further took issue with any onus being placed on her to justify each transaction, noting that this was a family relationship and should be distinguished from the exercise of powers by a trustee or pursuant to a power of attorney.

Evidence

During Sam’s lifetime he managed and was in control of the household finances. Sam gave Oriel housekeeping money and cash to spend, but otherwise Sam paid the bills. Oriel gave evidence that after Sam died she depended on Rose to manage the majority of her financial matters and that she did not review her bank statements. Oriel and Yvonne gave evidence that Oriel did not use an ATM or a bankcard without assistance, although Rose rejected that proposition when it was put to her in cross-examination.

Rose accepted that at some time in 2006 she was given authorisation to use Oriel’s cheque account and credit card account and it was an agreed fact that from early 2006, Rose had access to both Oriel’s cheque account ending in 0008 and her credit card account ending in 3690. Further, in relation to the credit card ending in 3690, Rose was approved as an additional card holder on the day it was issued until the day it was closed on 23 June 2016.

However Rose said that when she used Oriel’s accounts, she did so either for Oriel’s benefit or with Oriel’s express permission.

She said that when she used Oriel’s accounts for her own benefit, she usually repaid Oriel in cash as it suited Oriel to have cash to spend and she had cash from her sale of ceramics at the craft markets. She did not use her own card as it was always close to the maximum limit.

Rose agreed that she regularly used Oriel’s accounts to pay household expenses or bills. She would alternate between using her own card and using Oriel’s card as they shared these expenses.

Rose said that she rarely made cash withdrawals from Oriel’s cheque account, although Oriel accepted that she did ask Rose to get cash out of her bank account for her spending money.

Oriel said that she didn’t realise that Rose was using her card for food, she thought that Rose was using part of the cash that Rose withdrew from her account to pay for food. But Oriel accepted that she did give Rose authority on occasions to use her credit card, including when the two of them went shopping together, for example, at Costco or Woolworths.

Rose accepted that she used Oriel’s credit card in mid-February 2016 to purchase shoes through Skypax in the sum of $2727.46. She said that she received permission from Oriel to use her card and she paid Oriel back in cash. Rose first simply said that she knew she paid her back because that was her practice. But she then changed her position stating that she paid Oriel back in three instalments, the first being $1000, within a couple of weeks. Oriel denied giving permission to Rose to purchase these shoes and that she did not ever receive cash from Oriel for an amount much over $300.

Rose accepted that she transferred funds from Oriel’s account to repay her own credit card, on four occasions, each in the sum of $300. She said she did that with Oriel’s permission. Oriel denied giving Rose permission.

Rose accepted that she set up an automatic payment top up to pay road tolls with CityLink which had been incurred by Rose. Rose said, in cross-examination, that she had an initial conversation with Oriel when she first set this up and otherwise Oriel would comment on the charge when the credit card statement came in so that Rose could repay her. Oriel denied knowledge of these transactions which totalled $7,450.00 and covered a period from 19 October 2009 to 30 January 2016.

Rose accepted that she used Oriel’s credit card account to purchase an iPad for $1049, but she said that she had permission and she reimbursed Oriel. Oriel did not agree.

Rose accepted that she made some purchases using Oriel’s accounts from TVSN, a home shopping cable channel, but she said she had Oriel’s permission for certain purchases and that other purchases were made for Oriel at Oriel’s request. She denied making all the purchases, suggesting that Yvonne may have made some as she had access to her account. Yvonne denied having access to the account but accepted that Rose bought some of the items for her, including a pressure washer, which Yvonne paid for.

There was evidence of airline purchases from Tiger Airways. Rose had no recollection of these matters. Oriel accepted that she did take flights from time to time but that she thought she flew with Virgin Airways.

There was evidence of a number of other purchases including in respect of clay and pottery items and Christmas items. There was also a number of other very small purchases such as two payments totalling less than $100 to a plastic surgeon.

Both Oriel and Rose, understandably given the flux of time, had difficulty remembering precise transactions.

Legal Principles

Fiduciary relations are of different types, carrying different obligations.[39] Mason J in Hospital Products Ltd v United States Surgical Corporation[40] (‘Hospital Products’) elaborated on the circumstances which might evidence a fiduciary relationship in the following terms:

The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations (cf. Phipps v Boardman [1967] 2 AC 46 at 127), viz., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions “for”, “on behalf of”, and “in the interests of” signify that the fiduciary acts in a “representative” character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal.
It is partly because the fiduciary’s exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed…[41]

[39]Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 69 (Gibbs CJ).

[40](1984) 156 CLR 41.

[41]Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 96-97 (Mason J).

In Breen v Williams,[42] Brennan CJ stated:

Fiduciary duties arise from either of two sources, which may be distinguished one from the other but which frequently overlap. One source is agency; the other is a relationship of ascendancy or influence by one party over another, or dependence or trust on the part of that other.[43]

[42](1996) 186 CLR 71.

[43]Breen v Williams (1996) 186 CLR 71, 82.

The fact that parties are in a familial relationship does not preclude the finding of a fiduciary relationship.[44] Rather:

1.The “critical feature is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person”: (citations omitted).
2.It is the element of undertaking (from the point of view of the fiduciary) or obligation (for and on behalf of the beneficiary) that has the consequence that equity insists that the principal must act in the “interests of” or “for the benefit of” the beneficiary rather than in the principal’s own interests: (citations omitted).
3.Whether a fiduciary relationship exists in a particular case, and if so, the scope of that fiduciary relationship, are matters which depend critically upon the particular circumstances of the case: (citations omitted).
4.The characteristics which define a fiduciary relationship cannot be exhaustively defined. It is inappropriate to treat the existence of a fiduciary obligation as being dependent upon whether the principal and beneficiary fall into a particular status relationship: (citations omitted).
5.Similarly, whether a fiduciary relationship has come into existence does not depend upon the motivation or desire of one party to establish a relationship of trust or confidence. What matters is whether there is a relationship involving the requisite undertaking, determined as a matter of objective characterisation, rather than by having regard to the subjective expectations of the parties (citations omitted).[45]

[44]Dupal v Law Society of New South Wales [1990} NSWCA 56; Hitchins v Hitchins 47 NSWLR 35 (Bryson J).

[45]ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1, 210-11.

As to the scope of the relationship, it is to be ‘moulded according to the nature of the relationship and the facts of the case’.[46] As stated in Canberra Residential Developmentsv Brendas:[47]

In most cases the duty will be determined in large part by reference to the nature of the activities of the principal …
… defining the scope of the duty must be approached with commonsense and with an appreciation of the sort of circumstances in which it has been applied in the past. It should only be applied to a state of affairs which discloses a real conflict of duty and interest and not just some theoretical or rhetorical conflict…[48]

[46]Clay v Clay (2001) 202 CLR 410, 432-433 [46].

[47](2010) 188 FCR 140.

[48]Canberra Residential Developments v Brendas (2010) 188 FCR 140, 147 [36].

The obligations of a fiduciary were articulated by Mason J in Hospital Products as follows:

The fiduciary’s duty may be more accurately expressed by saying that he is under an obligation not to promote his personal interest by making or pursing a gain in circumstances in which there is a conflict or a real or substantial possibility of conflict been his personal interests and those of the persons whom he is bound to protect.[49]

[49]Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 103 (Mason J).

There will often be a duty to keep accurate accounts.[50] But where the relationship is more akin to that of a guardian and ward, such as:

a son providing day-to-day care of his father in a way analogous to the care provided by a parent or guardian for a child. … the guardian is not ordinarily required to account for the expenditure of income available for that purpose.[51]
[50]Hrycenko v Hrycenko [2019] VSC 700, [365] (Lyons J).
[51]Crossingham v Crossingham [2012] NSWSC 95,[18] (White J).

Consideration

I am satisfied of the existence of a fiduciary relationship. Rose undertook or agreed to act for Oriel by using her cheque and credit card accounts for Oriel’s benefit, or otherwise with her consent. Even if Oriel were not more broadly vulnerable by reason of her age and dependency, Oriel was vulnerable because Rose had the ability to adversely affect Oriel’s interests through her use of the cheque and credit card accounts. Oriel was at the mercy of Rose to use the cheque and credit card accounts appropriately and responsibly. Oriel’s interests would be adversely affected if Rose acted beyond the scope of her authority. Oriel’s interests would be adversely affected if Rose put her own interests ahead of Oriel’s.

I am satisfied that Rose agreed that she would only use Oriel’s money for Oriel’s benefit or otherwise with her consent and that the scope of Rose’s duty towards Oriel was to that effect as well as a more general obligation to not promote her own interests above those of Oriel’s.

However, bearing in mind the nature of their relationship, namely that of mother and daughter living in a household together and sharing expenses, I am not satisfied that there was a duty to account.

I do not accept Oriel’s submission that, once it is established that Rose made the alleged transactions, the evidentiary onus falls on Rose to justify each transaction. The decision of Hrycenkov Hrycenko[52] (‘Hrycenko’), upon which Oriel relied in support of such submission, can be distinguished because in Hrycenko it was held that there was duty to keep accurate accounts of all transactions made.[53]
[52][2019] VSC 700 (Lyons J).
[53]Hrycenko v Hrycenko [2019] VSC 700, [365] (Lyons J).

Before dealing with whether there has been a breach of fiduciary duty by Rose, it is necessary to deal with one further point raised by Rose. It was submitted that Oriel had failed to prove her pleaded case because Oriel did not prove the particulars that had been pleaded to the allegation that she had gained access to the two accounts, namely:

(a) Oriel did not prove that Rose had a PIN to the accounts from which it was alleged she had access (the account ending in 0008 and the credit card ending in 3690); and

(b) the bank credit card ending in 3690 did not exist in 1990 as articulated in the particulars, it having been issued on 10 May 2006.

Nothing turns on this point. Oriel confined her case to the period from 10 May 2006 to 23 June 2016 and, as noted earlier, it was an agreed fact that from early 2006, Rose had access to both Oriel’s cheque account ending in 0008 and her credit card account ending in 3690.

After careful consideration of all of the evidence, I am satisfied that, on occasion, Rose did breach her fiduciary duties. I have dealt with this issue in categories rather than as line items.

Cash withdrawals

In circumstances where Oriel accepted that she authorised Rose to withdraw money from her account for spending money, I am not persuaded that the claim for compensation in respect of cash withdrawals has been made out.

Skypax transaction

I am persuaded that Rose did not obtain Oriel’s specific permission for the Skypax shoe purchase transaction ($2727.46) or that she paid this back in the amount and in the manner which she asserted. This transaction should be differentiated from food and household purchases and purchases made whilst Oriel and Rose were out shopping together. I make a similar finding in respect of the purchase of the iPad ($1049) and the payments towards Rose’s credit card ($1200). These were transactions undertaken by Rose for her own benefit. She put her own interests ahead of Oriel’s interests and her explanations of repaying the money in cash do not easily fit with the other evidence that established that she was always short of cash. It is difficult to see how she was able to pay these items back, even with her craft market money, given the pattern of constant spending that she engaged in.

Citylink

I am persuaded that Rose did not have permission to use Oriel’s credit card for the purposes of setting up an ongoing authorisation for toll payments to Citylink ($7,450.00). I also do not accept that Rose paid Oriel back the money for those transactions. Based on Rose’s own evidence, repayment was dependent upon Oriel checking her account and making a comment and I am not satisfied that conversations to this effect did in fact occur.

TSVN Home shopping

I am not satisfied that Oriel has established impropriety in respect of the TSVN home shopping purchases. In the scheme of things, these were not large amounts and they predominantly related to household items rather than items peculiarly for Roses’s use such as collectibles or clothing items.

Tiger Airways

I am not satisfied that Oriel has established any impropriety in respect of the Tiger Airways flights. The total was only around $500 and it is quite plausible that these flights were purchased for Oriel, even if Oriel’s recollection was that she flew with Virgin Airways.

Grocery and shopping excursions

In circumstances where Oriel accepted that she and Rose went shopping together from time to time and that, on those occasions, she would authorise Rose to use her card for groceries as well as other items that Rose wanted for herself, I am not persuaded that the claim in respect of purchases at Costco should be allowed. I am similarly not persuaded that Oriel has established impropriety in respect of the other shopping purchases claimed, beyond which I have addressed already.

Other

There were a number of other transactions identified in Oriel’s amended particulars of loss and damage which did not fall into the above categories. However, there was insufficient evidence to enable a conclusion of impropriety in respect of any other transactions, including items such as Ticketek and Ticketmaster purchases.

Conclusion in respect of breach of fiduciary duty claim

I am satisfied that there should be judgment in Oriel’s favour in respect of the breach of fiduciary claim, but limited to the Skypax, iPad and Citylink transactions as well as the payments made to Rose’s credit card.

Battery claim

This claim arises in respect of an incident in February 2010. There had been an argument in the kitchen between Oriel and Rose. Oriel alleges that during that incident Rose struck the left side of her face.

Oriel relied on an affidavit sworn by her on 30 November 2023 in support of the extension application.

It is unnecessary to set out the evidence in detail or Rose’s defence as I have determined that I will not grant an extension of time pursuant to s 27K of the Limitation of Actions Act 1958.

Section 27K empowers the Court to order the extension of the applicable limitation period if it decides that it is just and reasonable. All of the circumstances of the case are to be taken into account including but not limited to the matters set out in s 27L.

Oriel stated that the main reason for her delay in bringing the claim was the effect of family violence perpetrated against her by Rose. I take this into account in a general way as a factor supporting an extension of time, but it is difficult to assess the strength of this reason without supporting psychological or medical evidence.

Although all of the circumstances are relevant, the primary factors against granting an extension of time in this case consist of:

(a) the lengthy delay in bringing the action; and

(b) the nature and extent of Oriel’s loss.

The claim was brought 8½ years out of time and more than 12 years after the alleged assault. It was initially brought on the basis of the alleged assault resulting in an eye injury and blindness. The injury to the eye was not pursued, it being accepted on behalf of Oriel that causation could not be proved in respect of any injury to Oriel’s eye by reason of the assault.

When asked, in evidence, about the nature of the injury caused by the assault, Oriel focussed on her eye injury stating ‘All I know now is that I’ve got a blind eye, and it’s very difficult’.

In circumstances where Oriel’s only ongoing complaint about the assault is the injury to her eye (which is no longer being pursued) and the action has been brought at such a late stage, I am not persuaded that it is just and reasonable to extend the limitation period.

Orders

I will hear the parties on the appropriate form of orders and as to costs.

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[2025] VSC 428

17 July 2025