Stringer v Galea

[2010] VCC 1980

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST

FAMILY PROPERTY DIVISION

Case No. CI-10-03100

ELISHA PATRICE STRINGER	Plaintiff
v
DAVID CHRISTOPHER GALEA	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2010
DATE OF JUDGMENT:	13 December 2010
CASE MAY BE CITED AS:	Stringer v Galea
MEDIUM NEUTRAL CITATION:	[2010] VCC 1980

REASONS FOR JUDGMENT

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Catchwords: DOMESTIC RELATIONSHIP – Relationships Act 2008 – agreement regarding adjustment of interests with respect to property of the relationship save for chattels – dispute as to the identity, possession and value of chattels: s.45(1) and s.51.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Dunlop	Michelle O’Sullivan Lawyer
For the Defendant	In person	Prompt Legal Services
HIS HONOUR:

Introduction

1 Before the Court is an Originating Motion filed by the plaintiff on 20 July 2010 by which she sought an adjustment of interests with respect to property pursuant to s.45(1) of the Relationships Act 2008.

2          Mr C Dunlop of Counsel appeared for the plaintiff. The defendant appeared in person.

3          The plaintiff and the defendant arrived at an agreement regarding the adjustment of their interests in the net proceeds of sale of a property at 38 McCarthy Court, Wallan (“the property”), and the attribution of debts which were incurred during the domestic partnership.

4          However, there was a substantial debate between the plaintiff and the defendant regarding the identity, possession and value of a significant number of chattels which the defendant submitted had been acquired during the domestic partnership.

5          The following evidence was adduced during the trial:

•  The plaintiff gave evidence and tendered the following documents:

ƒ	an affidavit sworn by her on 15 July 2010: Exhibit A
ƒ	a second affidavit sworn by her on 4 October 2010: Exhibit B.

• The defendant gave evidence and tendered the following documents:

ƒ	a list of chattels: Exhibit 1
ƒ	a policy of insurance with QBE Insurance (Australia) Limited: Exhibit 2
ƒ	an affidavit sworn by the defendant on 23 November 2010.

The Agreement

6          The plaintiff and the defendant agree that they lived in a domestic partnership, during which time they acquired the property. They agreed that the property constituted an asset of the domestic partnership which was the subject of their agreed adjustment of their interests in it.

7          Mr Dunlop informed me that the property had recently been sold for $290,000. After discharge of the mortgage standing at $208,000, and after payment of the costs of sale of approximately $9,000, outstanding rates of $1,800 and a water bill of $400, the net equity amounts to approximately $72,000.

8          Mr Dunlop also informed me that there are two caveats over the property. The first relates to a debt owed by the defendant amounting to $12,400 relevant to his child support of dependants of his former relationship. The other is a debt owing to Boral. The defendant conducted a business which went into liquidation. At the time of the liquidation, the business owed Boral $17,000 for materials purchased from it.

9          Mr Dunlop then informed me that through negotiations, the plaintiff and the defendant reached the following agreement:

• The defendant would assume sole responsibility for the debts and would indemnify the plaintiff against any steps taken by the creditors for recovery of those sums from her.

• The net equity of approximately $70,000 would be divided as to 60 per cent to the plaintiff and 40 per cent to the defendant.

10        What was left for me to determine was the identity of chattels, the person in whose possession those chattels are, and their value.

The Chattels

11        The defendant gave evidence that the plaintiff left the property and took all of the chattels with her. He tendered the policy of insurance which insured the contents of the property at $70,000. He also tendered a list of chattels to demonstrate the identity of the chattels and his estimate of their replacement value.

12        After undertaking the exercise of attempting to identify the chattels which the defendant said the plaintiff removed, the defendant arrived at the conclusion that a replacement value of the chattels in the list of chattels would amount to $37,500. The plaintiff said that the chattels were of significantly less value, and said that in her estimate they were worth little more than $5,000.

13        The plaintiff also gave evidence that if the defendant intended to bring into consideration all of the chattels, then the defendant’s ownership of a motorcycle should likewise be brought into consideration. She said that she had observed that the defendant had advertised the sale of a motorcycle by placing a sign outside his mother’s home. The defendant admitted that he had such a motorcycle. He conceded that it should be brought into consideration. He estimated its value at about $5,000.

14        The determination of the identity of the chattels; the person who has possession of them, and their value posed very considerable difficulties because of the way in which the plaintiff and the defendant produced evidence in support of their respective cases.

15        I suggested that the defendant bore the onus of proof, which he accepted, and that being so, that it was for him to establish his case by reference to the list of chattels (Exhibit 1). I divided the list into the following convenient descriptions:

1-3	Outdoor furniture and garden tools;
4-5	A children’s pool and bicycles, scooters et cetera;
6	Thermoses, glasses et cetera;
7	Kitchen items;
8	Laundry items, for example, washing machine, iron et cetera;
9	Bedroom furniture, which included bedroom furniture of the children;

10 Linen;

11 Lounge room furniture, which included the children’s electronic

game equipment.

16        The plaintiff and the defendant readily conceded that the chattels which belong to and are used by the children should be excised from consideration.

17        What then occurred in the course of the evidence ultimately left me in a position where I have been unable to determine the identity of the chattels, in whose possession they are presently in and their value. I suggested to the defendant that he go through the items as I numbered them, and that the plaintiff respond one group of chattels at a time. Both the defendant and the plaintiff accepted that as being a logical method to assist me in getting to the bottom of the dispute between them regarding the chattels.

18        What I was left with at the end was a very unsatisfactory state of affairs. Firstly, the plaintiff said that she has some of the chattels, but denies that some of them exist, and she took issue with every valuation put on the chattels by the defendant. Secondly, she said that the replacement value should be based upon the fact that most of the chattels were relatively old and would have a significantly depreciated value as a result.

19        The defendant conceded that the values that he had applied were his estimates relevant to their replacement, and I took that to mean that if he entered a shop today, the value he put on individual chattels is what he would pay today rather than their actual value as second-hand chattels.

20        It was very clear to me that the plaintiff was significantly troubled by not only the breakup of the domestic relationship, but also by the fact that he is now living with his mother; is in receipt of unemployment benefits, and is in debt for child support and to Boral for sums which to him, are burdensome.

21        I gathered very clearly that he considers that he has left the domestic relationship with very little, and in particular, has no chattels to speak of. Furthermore, I gather that the defendant puts significant value on the chattels, not just from a monetary point of view, but because they had been acquired by him and no doubt carried some degree of sentimental interest to him.

22        I am not satisfied that the defendant has discharged the onus of proof he bears to prove on the balance of probabilities that whatever chattels the plaintiff removed, and has in her possession at present, are anywhere near the value which he has placed upon them.

23        What I can be satisfied about are the admissions made by the plaintiff that she has the following chattels:

• 1 and 2, being an outdoor setting and adult swings which she values at $1,000;

• 7, which appear to me to be entirely kitchen items which I do not accept would have anywhere near the values put on them by the defendant. Kitchen items of that kind depreciate dramatically and as second-hand chattels, have little value;

• 8 are laundry chattels which are similar to the kitchen chattels. The only one which appears to be of any significant value is the vacuum cleaner which the plaintiff value at about $600;

• 11, being the lounge room furnishings which the plaintiff says are all in her possession. The values placed upon them by the defendant are well over $5,000. Similarly, they are chattels which would depreciate rapidly and would be of significantly lesser value second-hand.

24        The conclusion I have reached is that I prefer the evidence of the plaintiff where she disagrees with the defendant. However, the concessions made by the plaintiff demonstrate that she has the bulk of the chattels which are no doubt of some value, but I find nowhere near the value put by the defendant.

25        In the circumstances, I think it is a just and equitable solution to the case put by the defendant in relation to a division of the value of the chattels to order that the plaintiff pay him the sum of $2,500 which, when added to the value of the motorcycle, amounts to a further division in his favour of $7,500.

Conclusion

26        Before turning to the orders which I will make in this proceeding, I want to observe that one of the most difficult matters for any judge at trial is attempting to determine the value of chattels. Inevitably the party who has been deprived of the possession of the chattels will put a high value, and the party with possession will do the reverse. How a judge is expected to divine the truth from a situation like that is likely to lead the judge into no more than guesswork which on any view is a very unsatisfactory state of affairs for not only the judge, but the parties, who can only then be left with a sense of real dissatisfaction that a determination of a dispute of that kind has been undertaken very arbitrarily.

27        I propose to make the following orders:

(1)  The net equity of the sale of the property at 38 McCarthy Court, Wallan
be adjusted as follows:

(a)	60 per cent to the plaintiff;
(b)	40 per cent to the defendant.

(2)	The defendant is solely responsible for the debt relevant to child support payments, and to Boral, and that he indemnify and keep the plaintiff indemnified with respect to those debts.
(3)	The plaintiff pay the defendant $2,500 with respect to his interest in the chattels in the possession of the plaintiff, otherwise the parties are entitled to retain possession of the chattels presently in their possession to the exclusion of the other party.
(4)	Liberty to apply.

28        I propose to pronounce the foregoing orders, subject to further argument to be advanced by the parties relevant to the form of the orders, and in particular, relevant to the debts which the defendant has accepted as his own and the expression of the indemnity which the defendant has agreed to provide to the plaintiff relevant to those debts.

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