Smith v Chen (Civil Dispute)
[2019] ACAT 58
•26 June 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SMITH v CHEN (Civil Dispute) [2019] ACAT 58
XD 1440/2018
Catchwords: CIVIL DISPUTE – application for recovery of a dog – civil law goods application – legal or equitable ownership of a good – sale or assignment of a good – co-ownership of moveable property – joint ownership of moveable property – keeper of a dog – how one becomes owner of a dog – whether the best interests of the dog can be considered
Legislation cited: ACT Civil and Administrative Act 2008 s 16, 48
Animal Management (Cats and Dogs) Act 2008 (Qld)
Domestic Animals Act 2000 ss 6, 3, Dictionary
Family Law Act 1975 (Cth) s 90
Sale of Goods Act1923 s 6
Cases cited: Abbey v Mack [2010] ACTSC 140
Calabrese v Miuccio [1984] 1 Qd R 430
Danzey v Danzey [2003] FMCAfam 38
Saeedi v Carnell [2015] ACTSC 84
List of
Texts/Papers cited: Cao, Deborah, Animal Law in Australia (Lawbook, 2nd ed, 2015) [3.110]
Halsbury’s Laws of Australia (LexisNexis, Sydney)
Tribunal: Senior Member H Robinson
Date of Orders: 26 June 2019
Date of Reasons for Decision: 26 June 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1440/2018
BETWEEN:
HENRY SMITH
Applicant
AND:
JANE CHEN
Respondent
TRIBUNAL: Senior Member H Robinson
DATE: 26 June 2019
ORDER
The Tribunal orders that:
1. The application is dismissed.
…………Signed…………..
Senior Member H Robinson
REASONS FOR DECISION
1. By way of this application, the applicant seeks an order for recovery a dog, Havvy, and an “estimated” $5,000 in legal costs incurred in the recovery process. The respondent, who is now a resident of Queensland, is in possession of the dog. Both parties claim to be the lawful owner of the dog.
The hearing
2. At the hearing the applicant represented himself, with some support from a friend. The respondent, who appeared by telephone, was represented by a solicitor, Ms Bradshaw. Both parties filed written submissions, for which I am grateful.
3. Both parties gave evidence and were cross examined. Neither called any other witnesses to give oral evidence. The applicant also relied upon a written statement from his mother, but she was not called as a witness and was not subject to cross examination. I note that much of the applicant’s mother’s evidence was of limited relevance in any case, being evidence only of her “belief” or opinion, but I accept the uncontested parts of her evidence so far as the go to the arrangements for caring for the dog.
4. Both parties made various allegations about each other’s character or suitability to care for the dog. Most of these allegations were unsupported by the evidence, some bordered on scurrilous, and they are in any case irrelevant. No issue as to the character of either party arises in these proceedings and therefore I have not given any serious consideration to the allegations. There was no question that both parties love the dog.
5. That said, as some of the evidence of the parties as to relevant facts was inconsistent, credibility (as opposed to character) was an issue. Comparing the credibility of witnesses is never easy, particularly when one is on the telephone. On balance, I prefer the evidence of the applicant to that of the respondent. He answered questions put to him in a forthright manner, and he made a number of frank concessions that were to his disadvantage, which is to his credit. I make no findings of credibility beyond that. The validity of the documents tendered by the parties was not in dispute.
Findings of fact
6. Having had regard to all the evidence before me, including the parties’ documents, written submissions and oral evidence given at the hearing, my findings of fact, whether contested or otherwise, are as follows:
(a) The parties commenced a relationship on 7 April 2014.
(b) They formally commenced co-habiting in October 2014, when the applicant moved into the respondent’s residence (the residence).
(c) The applicant considered that they were entering into a de-facto style relationship, but the respondent did not.
(d) The relationship ended on 6 February 2015 when the applicant moved out of the residence.
(e) While in a relationship, the parties largely equally divided expenses and had arrangements for the co-payment of rent and groceries. They appear to have acted consistently with this arrangement and did not pool their resources or make significant joint purchases.
(f) During their time together, the parties decided to purchase a dog. Each says that the decision was theirs alone, but I am satisfied that the evidence shows that the process leading up to the purchase was a joint exercise:
(i) The parties jointly researched, discussed and chose a breed of dog and a breeder,
(ii) The respondent made the first contact with the chosen breeder.
(iii) On 6 September 2014 the parties attended the breeder’s premises in NSW together to purchase and collect the dog.
(g) The applicant paid $1,600 for the dog by way of electronic funds transfer. The respondent says that she later repaid the applicant $1,000 of that and a further $600 was offset against money he owed her from a holiday. The applicant denies this. The parties’ position are completely contradictory, but on balance, I am more inclined to accept the applicant’s evidence on this point than the respondent’s.
(h) The sale agreement was in the applicant’s name, as were the transfer of ownership and pedigree ownership forms. However, both those documents listed the respondent’s address, phone number and email address. The applicant was not living with the respondent at that time, although he moved in a few weeks later.
(i) It appears that the dog was registered on the NSW Companion Animals register in the applicant’s name. His microchip is also initially registered under the applicant’s name.
(j) On 26 September 2014 the respondent registered the dog with Petsafe under her name.
(k) On 25 October 2014 the respondent paid for registration of the dog with ACT Domestic Animal Services under the Domestic Animals Act 2000 in her name. It appears she has been the registered owner in the ACT since that date, although the documentary evidence is not entirely satisfactory.
(l) The respondent has certainly been the registered owner since at least as at 19 November 2018, as the relevant registration certificate was in evidence before the Tribunal.
(m) While co-habiting, the parties jointly cared for the dog, including walking, taking the dog to puppy school, and managing veterinary appointments. As with their relationship generally, expenses in relation to the dog were shared equally.
(n) In April 2015 the parties commenced a long distance relationship, with the applicant relocating to work in Sydney for several months. During this period, the dog remained at the property with the respondent and the applicant visited on weekends.
(o) When the relationship between the parties deteriorated and they broke up on around 6 February 2016, the parties continued to share custody of the dog, including sharing expenses. It appears that the dog lived with the respondent, and the applicant would arrange to come and collect him or pay a visit to him on a regular basis.
(p) The respondent moved overseas for several months at the end of 2016 and then for several more months at the beginning of 2016. During these periods the dog stayed with the applicant and/or with his mother. I am satisfied that, at least on the second occasion, the respondent had intended to be overseas for a significant period of time. However, she returned within about three months.
(q) Following the respondent’s return from overseas, the parties returned to what was effectively a ‘joint custody’ arrangement where they both visited and cared for the dog.
(r) Veterinary bills, grooming costs and other services were invoiced in the respondent’s name. These expenses, however, continued to be shared, with the applicant generally paying a contribution to the respondent when requested.
(s) On 22 May 2018, the respondent sent a text message to the applicant, advising that she was moving to Queensland and asking, in part:
My move to the Gold Coast is hopefully for good, and I want to be able to spend the rest of my life there – I would like to do that with [the dog]. I would like to offer to buy his share from you and be able to fulfil that dream there.
Can I buy you out? I know money would never replace him. Nothing will.
(t) The applicant indicated that he would consider it. Then the respondent moved to Queensland and removed the dog from the jurisdiction without the applicant’s knowledge or consent.
(u) After moving to Queensland, the respondent changed the dog’s name (although the two names are not significantly different) and registered him in Queensland under the name.
(v) The respondent is currently the registered owner under the relevant Queensland legislation and her Queensland name and address is on the Petsafe register.
The legal framework in relation to the claim for the return of the dog
7. Under the common law, a domestic animal, such as a dog, is treated identically to any other item of movable property, such as a couch or a television. If the animal is misappropriated, its owner may maintain a civil claim for its detention or conversion.
8. The tribunal’s jurisdiction to determine civil claims is set out the ACT Civil and Administrative Act 2008 (ACAT Act). That jurisdiction does not expressly include detention or conversion, but it does include a “goods application” – being an applications for the recovery of movable property. Such claims in the ACAT are limited to matters of up to $25,000 in value. Both parties were in agreement that Havvy is, in any commercial sense, worth less than $25,000, although his value in other ways is not so easily measured.
9. In any application for the recovery of goods the first question is usually: is the applicant the legal or equitable owner of the goods the subject of the application? That is the primary, and from a legal sense, only question before the Tribunal in this case.
10. ‘Ownership’ of a good entails a collection of rights in relation to the good — including the right to actual or legal possession, the right to alter, and the right to sell or alienate the good.
11. Ownership of a good is usually obtained by sale or assignment of the good.
12. Both parties in this case asserted that the dog was sold to them – that is, that they acquired ownership through sale. As the sale took place in NSW, it is governed by the Sale of Goods Act 1923 (NSW) (Sale of Goods Act). Section 6 of the Sale of Goods Act provides that:
A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the price. There may be a contract of sale between one part owner and another.
13. Sale is not the only means of acquiring a good. Assignment of a good may occur by a number of means, including by way of a gift or acquisition by delivery of the goods (including constructive delivery). Neither of the parties to this dispute claimed that the ownership of the dog was transferred or assigned at a later date, although the possibility of that happening appears open to me on the facts.
14. Co-ownership or joint-ownership of moveable property is possible where two or more people have an interest in property which entitles them to possess the property at the same time. Both parties denied that the dog was co-owned or commonly owned and each argued that they were the sole owner of the dog.
15. I am satisfied that it is more likely than not that the applicant paid for the dog, whether entirely or in part. I am satisfied that it was his name on the transfer documentation. As such, I am satisfied that he was a purchaser of the dog pursuant to a contract of sale. However, that does not satisfy me that he was the sole purchaser of the dog, or that he is the current owner of the dog.
16. The respondent is the current registered keeper of the dog under the Domestic Animals Act 2000 (DA Act). This Act places obligations on the “owner” of a dog, including most relevantly, an obligation to register the dog. The DA Act does not define the concept of “ownership”.
17. Section 6(1) of the DA Act provides that “an individual who is an owner of the dog may apply to the registrar for registration of the dog.” That person then becomes the “keeper” of the dog for the purposes of the DA Act.
18. At various parts of the Act, a distinction is drawn between the “owner” of a dog and the “keeper” of the dog. As best I can tell, the DA Act effectively adopts the concept of a “keeper” as the responsible person in relation to a dog registered under that Act. The “keeper” is defined as the “registered keeper of the dog”, which is in turn defined as “the person stated in the register as a keeper of the dog”. Obligations in relation to a registered dog lie with the keeper of a dog.
19. Where the dog is unregistered the concept of a common law owner continues to apply.
20. The DA Act does not prescribe who an owner is, or how one becomes an owner. Accordingly, there does not seem to be any intention to replace the common law concept of “ownership” of the dog. Still, it is the obligation of the owner to register a dog, and therefore the identity of the registered keeper is a relevant consideration, even if not decisive.
Consideration
21. What is apparent from the evidence is that:
(a) possession of the dog has been shared. The dog has spent periods of time living with both parties, jointly and individually;
(b) the costs of maintaining the dog have been shared;
(c) the dog was originally sold to the applicant, and was initially registered to him in NSW; but
(d) the dog has been registered to the respondent under Division 2.1 of the DA Act since October 2014 and is currently registered to the respondent in both the ACT and Queensland.
20. The situation is a complicated one. It may well be that both parties genuinely believe they are the owner of the dog. However, belief is not sufficient.
21. During the hearing, the applicant gave very frank evidence about what he understood to be the nature of the relationship between himself and the respondent at the time he entered into it. He said it was his “interpretation” that he was “entering into a de facto relationship.” The parties had discussed financial arrangements and living arrangements at the time, and it is evident that they had clear boundaries and were financially independent. Still, the applicant didn’t know and was “quite naïve” about the legal consequences of those arrangements. Those arrangements, at least in relation to the dog, extended well beyond the breakdown of the relationship, and appear to have changed considerably over time. While this is hardly an unusual state of affairs, it makes it difficult to untangle the arrangements afterwards and to retrospectively apply legal concepts such as “sole ownership.”
22. If the parties had been together for a longer period, “just and equitable” property adjustments could be made through proceedings under the Family Law Act 1975 (Cth) (Family Law Act) in an alternative jurisdiction (see “jurisdiction” below). However, in this case, and in this Tribunal, we are left with the clumsy legal mechanism of a civil law goods application.
23. In any civil proceedings, the fundamental principle is that the applicant bears the onus of proof. This means that the applicant must prove, on the balance of probabilities, each element of the case. In this case, the applicant must prove that he is the sole legal (or perhaps equitable) owner of the dog.
24. I am not satisfied that he has met this onus. Having considered all the evidence, I cannot be positively satisfied that he is the sole owner of the dog. I cannot, indeed, determine with any certainty who is the current owner of the dog, or whether ownership is in some manner shared. The interwoven facts of the applicant and respondent’s lives, their shared care of the dog and the conflicting registration details create significant uncertainty. They may be indicative of a jointly or commonly owned item, but I ultimately do not need to decide this point.
25. As the applicant has not met the onus of proof, the application for an order that the dog be returned to his care is dismissed.
Jurisdiction
26. For completeness, I note that the Tribunal has no jurisdiction to decide matters that fall within the ambit of the Family Law Act. This is not such a dispute. Section 90SB of the Family Law Act provides for property settlements for de facto relationships only where de facto partners have been in a relationship for at least two years (subject to a small number of exceptions, none of which apply here). The parties do not meet the requirements for this section, and therefore this matter may, and indeed must, be dealt with as a civil claim.
Some additional observations on the dog
27. Much of the evidence of the applicant in this case went to his relationship with the dog and his readiness and willingness to care for him. The respondent made similar claims.
28. I accept this evidence without question, just as I accept that both parties deeply care for the dog. However, on the current law, this is not relevant.
29. The shortcomings of the law were illustrated by Brewster FM (as he then was) in Danzey v Danzey [2003] FMCAfam 38 (Danzey). In that case, the Federal Magistrates Court (as it then was, it is now the Federal Circuit Court) had to determine which party the family dog should live with. The case was determined under the Family Law Act, and hence was not a civil matter, but the following observations made by his Honour are nonetheless relevant:
Whilst in a case such as the present the best interests of the dog is not the paramount consideration, and possibly cannot be a consideration at all, I propose to take those interests into account. The dog has now been with the husband for some time. It may cause unhappiness to be removed from this situation. It accompanies the husband to work each day and thus has constant companionship. … I propose … to leave the dog with the husband.
30. I am in a similar position as his Honour. I cannot take the best interests of the dog into account. Nonetheless, were I to do so, I would reach the same conclusion that I have above, and for similar reasons to Brewster FM in Danzey. Notwithstanding both parties’ criticisms of the others’ alleged failings, it is apparent that they cooperatively cared for the dog to a very high standard for several years. They both continue to care for him. They both have the capacity to look after him well. However, the dog has been living with the respondent for some time. He is, on the evidence, happy there. The respondent may well have acted wrongly in removing the dog from the ACT, and she certainly acted dishonourably by doing so in such an underhanded manner. Nonetheless, given the passage of time, it would appear to be in the dog’s best interests that he stay where he is.
The claim for financial contributions
31. At the hearing, the applicant had sought to recover a significant sum in financial contributions from the respondent. In closing submissions, he reduced his claim to an “estimated” $5,000 to “cover my legal expenses for claims related to [the dog].”
32. The Tribunal’s jurisdiction to award legal costs is confined to the limited circumstances set out in section 48 of the ACAT Act. This provides relevantly that:
48 Costs of proceedings
(1) The parties to an application must bear their own costs unless this Act or another territory law otherwise provides or the tribunal otherwise orders.
(2) However—
(a) if the tribunal decides an application in favour of the applicant, …
…
(b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction;
33. There could be no suggestion that either party to this proceeding acted in a way that caused unreasonable delay or obstruction. There is no basis for awarding those costs in this case.
34. The claimed damages are not sufficiently particularised to be awarded in any case.
35. Accordingly, the application is dismissed.
36. In note that as this application deals with personal information relating to the parties, and is in substance a dispute arising from a relationship breakdown, the Tribunal will adopt the approach of the Family Court to the publication of such matters, and order that the names of the parties be anonymised from the published version of these reasons.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER:
XD 1440/2018
PARTIES, APPLICANT:
Henry Smith
PARTIES, RESPONDENT:
Jane Chen
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
Maddocks
TRIBUNAL MEMBERS:
Senior Member H Robinson
DATES OF HEARING:
8 March 2019
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