Tange v Ludescher

[2012] VCC 657

Revised from reasons given ex tempore
IN THE COUNTY COURT OF VICTORIA	Not Restricted

AT MELBOURNE

CIVIL DIVISION

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-11-04048

CECILY CATHERINE TANGE	Plaintiff
v
CHRISTIAN WILLIAM LUDESCHER and GRAEME LESLIE WHITE (as administrators of the estate of ROSABEL MAY TANGE)	Defendants

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2012
DATE OF JUDGMENT:	24 May 2012
CASE MAY BE CITED AS:	Tange v Ludescher
MEDIUM NEUTRAL CITATION:	[2012] VCC 657

REASONS FOR JUDGMENT

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No Appearance	No appearance
For the Defendants	Mr M. Heaton QC Mr I. Upjohn	Gadens Lawyers

HER HONOUR:

1       In this proceeding, the plaintiff made no appearance with the result that her claims are to be dismissed.[1]

[1] And see further my ruling that the case should proceed despite the plaintiff’s non-attendance in Tange v Ludescher [2012] VCC 566

2       However, the defendants also seek orders pursuant to their Defence and Counterclaim dated 7 July 2010.

3       The defendants are administrators of the estate of Rosabel May Tange.[2]

[2] See para 1 of the Statement of Claim dated 25 May 2010 and admitted in the Defence and Counterclaim dated 7 July 2012.

4       The defendants counterclaim in detinue for various items they say were the property of the deceased, and properly belong to the estate, but which are now wrongfully in the possession of the plaintiff.  Those items were certain jewellery, photographs, chairs and a trench art paperknife. 

5       All other claims were abandoned.

6       The defendants called evidence from Ms Margaret Tange, Ms Gabriela Tange and Mr Ludescher in support of their claims.

7       I accept this evidence which supports the defendants’ entitlement to the specified items.

8       More particularly:

Jewellery

9       The evidence of Ms Margaret Tange was that the jewellery was in her mother’s house after her death and then removed to her own home which had an alarm system.  The plaintiff later asked for it so she could have it valued and took it to “Benjamin’s” for this purpose.  Ms Tange identified this jewellery as that listed in a Benjamin’s Schedule dated 12 April 2011 (exhibit A).

10      In her Defence to Counterclaim the plaintiff says the jewellery was given to her by the deceased in 2006.[3]  However, given her absence, there was no evidence led to support this.

[3] See para 2 of the Defence to Counterclaim dated 4 October 2010.

11      In any event, Ms Margaret Tange rejected this and said that not long after she was diagnosed her mother said she was giving the jewellery “to the girls” (plural).

Family photographs

12      The evidence of Ms Margaret Tange was that the plaintiff took the original photographs to Officeworks to have them copied and that she never received them back.

13      In her Defence to the Counterclaim, the plaintiff admits that some photographs in her possession are the property of the deceased and will be provided to the administrators when they have been located.[4]

Chairs

[4] See para 5 of the Defence to Counterclaim dated 4 October 2010.

14      Ms Tange identified the relevant items and said that these chairs were taken from her mother’s house by the plaintiff. 

15      The defendant admits that she is in possession of these chairs (para 8).

Knife

16      Ms Tange gave evidence about the uniqueness of this item which was made by her grandfather and that her mother was using it during the last years of her life to open letters. 

17      The plaintiff further admits possession of this knife, and that while acting in a capacity as an executor, she was authorised to acquire the item, "pending the final distribution of the balance of the estate".(para 9)

Summary

18      In the light of the above evidence, and given the absence of any evidence to the contrary, I will make the orders sought.