Tasmania Bank v Chatain
[1992] TASSC 86
•23 March 1992
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania Bank v Chatain & Ors [1992] TASSC 86; B5/1992
PARTIES:TASMANIA BANK
v
CHATAIN, Christopher Charles
and
CHATIN, Elizabeth May
and
IN THE MATTER OF AN ISSUE ORDERED TO BE TRIED BETWEEN
ELMS, Eileen Elizabeth
and
TASMANIA BANK
FILE NO/S: 429/1989
DELIVERED ON: 23 March 1992
JUDGMENT OF: Crawford J
Judgment Number: B5/1992
Number of paragraphs: 13
Serial No B5/1992
List "B"
File No429/1989
TASMANIA BANK v CHRISTOPHER CHARLES CHATAIN and ELIZABETH MAY CHATAIN and IN THE MATTER OF AN ISSUE ORDERED TO BE TRIED BETWEEN EILEEN ELIZABETH ELMS and TASMANIA BANK
REASONS FOR JUDGMENT CRAWFORD J
23 March 1992
Interpleader – By sheriff – Claimant successful on the evidence.
On 18 September 1990 Tasmania Bank (the bank) obtained a judgment against Christopher Charles Chatain (Mr Chatain) of 614 Dundee Lane, Holmes Beach, Florida, United States of America, for $14,138.86 together with certain interest and costs. A writ of fieri facias was issued and pursuant to it the Sheriff, on 27 July 1991, levied on certain goods and furniture which were in storage at the commercial premises of Watkins Removals and Storage (Watkins) at Launceston. They had been placed there by Mr Chatain in February 1988 pursuant to an agreement made between him and Watkins. Mr Chatain and his wife, Elizabeth May Chatain (Mrs Chatain), who was also sued but against whom no judgment was obtained, had been living at 323 Brisbane Street, Launceston and the property was placed in storage by Mr Chatain when they went to live in the United States of America. They had used that property at their home. Some other property also used by them had been delivered to the home of Eileen Elizabeth Elms (Mrs Elms). I accept the evidence of Mrs Elms that there was insufficient room to take all of the goods and property used by Mr and Mrs Chatain and that it was therefore necessary for them to place a large amount of it with Watkins.
Mrs Elms is the mother of Mrs Chatain. She claims that she is the owner of much of the property, that she had lent it to her daughter and son–in–law and she now wants possession of it. On 9 September 1991 an interpleader order was made that there be a trial of an issue in which Mrs Elms be the plaintiff and Tasmania Bank be the defendant, and that the question to be tried be whether at the time of the seizure by the Sheriff on 27 July 1991 the goods seized were the property of Mrs Elms as against the bank. It was also ordered, with the concurrence of both parties, that they file and serve on each other affidavits upon which they intended to rely. Affidavits read before me were those of Jonathan Slater, Mrs Elms, Kevin Claude Watkins and Sheriff's Officer and Deputy Sheriff, Bruce Alderton Crawford. Mrs Elms supplemented her affidavit with some oral evidence–in–chief and she was cross–examined by counsel for the bank and then re–examined. Mr Watkins, whose evidence was tendered by the bank, also supplemented his affidavit with some oral evidence–in–chief and he was cross–examined by counsel for Mrs Elms and then re–examined.
This procedure has caused great difficulty for me, particularly when assessing the evidence of Mrs Elms. Her claim to items of property depends for success on my acceptance of her evidence that the items were in the possession of Mr and Mrs Chatain only because she had lent them to Mrs Chatain or to Mr and Mrs Chatain and not because she had given them away. Primarily her evidence of loans was contained in her affidavit in passages which were read into evidence without objection. There were many such passages. An example can be seen in para22:
"Accordingly, I loaned to them sufficient furniture to establish a home."
Another example is in para.23:
"My recollection is that in addition to taking with them all of the furniture which I had loaned them for their house in Abbott Street, I also loaned them additional pieces to help them settle into Hobart."
There are many other examples. At their strongest such statements were witness of facts and conclusions and the critical facts (such as conversations at the relevant time between Mrs Elms and her daughter) were hardly stated in evidence. When she was supplementing her affidavit with some oral evidence–in–chief I voiced my concern about the absence of evidence of conversations relied upon by Mrs Elms as establishing that the items of property were lent and not given. However I was given no reason to disbelieve her as a witness and counsel for the bank had the opportunity to ask for the detail of the relevant conversations in cross–examination, an opportunity of which he chose to take little advantage. In her evidence–in–chief, Mrs Elms was asked what conversations she had had with Mrs Chatain as to the purpose of the loans and she said that they had talked about the property being returned to her if Mrs Chatain no longer wanted it. The only passage of cross–examination which touched on conversations between her and her daughter surrounding the critical issue was the following:
"MR HILL: Now you have said in your evidence – towards the end of your evidence was that you had a discussion with Elizabeth as to these items when you passed them over and you have said – or your understanding was that if she didn't want it any more it would come back to you? That was your understanding?
MRS ELMS: Yes.
MR HILL: So it was never actually said, it was just what you believed, basically?
MRS ELMS: Some of the things have come back and now Susan has them.
MR HILL: Yes. I am not asking you that I am asking what your understanding was?
MRS ELMS: Yes and hers.
MR HILL: You cannot say what her understanding was but you can say what yours was.
HIS HONOUR: Just a moment please. Yes.
MR HILL: And your understanding was based upon your own statement of mind – what you intended was it or what else if anything?
MRS ELMS: Well I believed if I said to Elizabeth – I want this piece of furniture back, she would give it back to me. She would not consider it hers to keep or to sell.
MR HILL: It was your belief that if at any time you had gone along to Elizabeth and said I want that back, she would have given it back to you?
MRS ELMS: Yes.
HIS HONOUR: So you believed that she did not consider that they were hers to sell or keep, is that right?
MRS ELMS: Yes.
MR HILL: Did you ever tell her not to sell them?
MRS ELMS: No. I didn't tell her never to sell but I know she wouldn't. I didn't tell her but I know that she wouldn't sell anything without telling me or asking me if she could."
It can be seen that counsel for the bank did not press Mrs Elms about conversations. Having received an unresponsive answer to a question about what was said, counsel confined his questions to what Mrs Elms understood and believed.
I am therefore left with the evidence of Mrs Elms, which was contained in her affidavit and which was read into evidence without objection, that the property was lent by her to her daughter or to her daughter and son–in–law. She seemed to be an honest witness and I found no justification for not believing her. Accordingly my conclusion is that her evidence satisfies me on the balance of probabilities that she is the person entitled to the property against Mr Chatain and the Sheriff and that she lent the property as claimed.
Since August 1989 Mrs Elms has paid Watkins storage fees for the property. By early 1991 she had decided that she could no longer afford the fees and she sought to obtain possession of the furniture. However Watkins properly considered that as it had been deposited by Mr Chatain in his name, his authority was required before it would be released to her. She spoke to her daughter, presumably by telephone to the United States of America, and in April 1991 Mr Chatain sent to Watkins an authority for possession of the property to be given to Mrs Elms. I accept her evidence (the evidence of Mr Watkins tended to confirm it) that she then arranged with Watkins that a representative would attend at her home and see where the property could be placed upon payment of outstanding storage fees, but no such attendance occurred and the next relevant thing to occur was the seizure of the property on 27 July 1991 pursuant to the writ of fieri facias.
In cross–examination Mrs Elms agreed that on about 18 June 1989 she signed what purported to be an agreement between Mr and Mrs Chatain as transferors and Mrs Elms as transferee, pursuant to which Mr and Mrs Chatain agreed to transfer to Mrs Elms all their right, title and interest in "the furniture, chattels and effects free from encumbrances more particularly described in the Schedule hereto which are presently in storage at Watkins Removals in Launceston in Tasmania." The agreement recited that Mr and Mrs Chatain were the owners of the property. The schedule was not completed and it is impossible to determine what items were encompassed by it. The consideration expressed in the document was a release from the obligation to repay $35,000 together with interest thereon due from Mr and Mrs Chatain to Mrs Elms. The evidence of Mrs Elms was that she had twice lent them $35,000. She said that she signed the document without reading it at the request of her daughter who was temporarily staying with her on a visit from the United States of America. Her daughter told her it was a document which had been drawn for her daughter's protection in dealings with her husband and that a divorce was being talked about. As requested by Mrs Chatain she sent the document, signed by each party, to Mr Chatain's solicitor in Hobart. There was also a deed executed by Mr and Mrs Chatain only which bore the same date. By it Mr Chatain undertook to indemnify his wife against liability for joint debts totalling $60,000 owed to two banks.
The agreement for transfer does not assist to persuade me that Mrs Elms is not entitled to the property. She might, of course, have attempted to rely on the agreement as evidence of a transfer to her of any right, title and interest Mr and Mrs Chatain may have had in the property in question in this case, some five months prior to the issue of the writ instituting the action by the bank against Mr and Mrs Chatain. However she did not seek to do so and notwithstanding this I have concluded, admittedly after some hesitation, that her claim to have lent the property has been established.
Attached to these reasons is a list of items of property in storage at Watkins. I understand that it does not include all of the property which has been deposited. My finding is that at the time of the seizure on 27 July 1991 the following items in that list were the property of Mrs Elms as against the bank, that is to say lots 1 – 8, 10 – 19, 22 – 26, 28 – 31, 33 – 36, 38 – 51, 53, 54, 57 – 62, 66, 67, 71 and 73 – 78. It will be ordered that there be judgment for the plaintiff in the issue, Mrs Elms, against the defendant in the issue, Tasmania Bank, with respect to those items.
Lots 21, 27, 37, 55, 56, 65, 72 and 79 were not in issue. Lots 20, 32 and 52 were in issue but in evidence Mrs Elms made no claim to them and I find that she is not entitled to those lots. Accordingly there will be judgment for the defendant in the issue against the plaintiff in the issue with respect to those three lots.
The evidence of Mrs Elms concerning lot 9 was that she needs to inspect the dining chair in question to determine whether she claims ownership. The property is packed up in storage and I accept her claim that it would have been unreasonable to expect her to incur the cost of unpacking and repacking everything prior to the hearing of the issue. There will be an order reserving to Mrs Elms liberty to present further evidence with respect to lot 9. For the same reasons there will be an order giving her liberty to present further evidence with respect to lots 63 and 64. Lots 68, 69 and 70 are each simply described in the list as a brass fire screen. I accept the evidence of Mrs Elms that she claims one of them but not having had the opportunity to inspect the items she is not at this stage able to specify which one she claims. There will therefore be an order reserving liberty to Mrs Elms to present further evidence in respect of lots 68, 69 and 70.
LOT NO. DESCRIPTION
1 Pine Edwardian arm chair Circa 1900
2 Blackwood arm chair Circa 1900
3 Walnut arm chair Circa 1880
4 Victorian inlaid Walnut table
5 5 Victorian Mahogany dining chairs Circa 1880
6 Mahogany single bed
7 Baltic Pine chest of draws (English) Circa 1880
8 Pine kitchen table with Blackwood legs Circa 1880
9 Rosewood dining chair Circa 1860
10 Crystal chandelier
11 Circular Marble top table with Teak legs Circa 1830
12 Persian rug
13 Blackwood chaise lounge Circa 1900
14 Wrought iron and brass single bed Circa 1890
15 Mahogany folding card table Circa 1840
16 Mahogany and leather chair Circa 1870
17 Mahogany hall stand Circa 1870
18 Cedar wash stand (Australian) Circa 1850
19 Mahogany dressing table Circa 1870
20 Marble top bedside table
21 American pedal organ Circa 1880
22 Pine chest of drawers Circa 1870
23 Marble top Rosewood credenza Circa 1850
24 Edwardian 3 piece Pine wardrobe Circa 1900
25 Edwardian Pine wardrobe Circa 1900
26 Pine wardrobe
27 "Boston" make matched Brass ship's chronometer and barometer
28 Kelvinator fridgefreezer Model 610P
29 Dalton wattle bwhite bowl and 12 matching plates
30 Coalport dinner service (setting for 12)
31 8 green Wedgewood plates
32 Coalport "Nantucket" dinner service (setting for 4)
33 2 seat lounge with cushions
34 Wing back floral pattern lounge chair
35 Wing back floral pattern lounge chair
36 Wrought iron table and six chairs
37 Reproduction occasional table
38 Blackwood dinner wagon Circa 1920
39 Pine trunk (damaged) Circa 1880
40 Framed Tasmanian engraving
41 Framed Tasmanian engraving
42 Framed Tasmanian engraving
43 Framed print "Surprise"
44 Huon Pine framed engraving of yacht
45 Framed water colour
46 Huon Pine framed engraving "Dad's Coming"
47Mappin & Webb silver plated cutlery set of 6 soup spoons – 14 desert spoons – sugar spoon – serving set – 15 forks – cake slice – 2 table spoons – 10 table knives – 22 forks
48 Sterling silver sugar castor (London)
49 Sterling silver sugar castor (Sheffield)
50 6 long handled tea spoons with figured handles
51 5 silver spoons with stone on handle
52 4 silver spoons with animal on handle
53 Ivory handled candle snuffer
54 Cased set bone handled fruit knives and forks
55 Cased set horn handled carving set
56 Cased set horn handled knives and forks
57 pair sterling silver salad servers (London) Circa 1894
58 Silver ladle (America)
59 Silver cake slice
60 Pine clothes horse Circa 1900
61 Church pew
62 Roll of pink coloured velvet
63 Bentwood chair Circa 1980
64 Oak Douglas chair Circa 1980
65 Framed print "Heart of America"
66 Antique gilt framed mirror
67 2 gilt picture frames
68 Brass fire screen
69 Brass fire screen
70 Brass fire screen
71 Chinese cutlery box
72 Model yacht in solid huon pine
73 White brocade chair
74 Cane chair
75 Cane chair
76 Brass turtle teapot
77 6 Royal Dalton "Roundelay" cups and saucers (H5004)
78 4 pieces Royal Worcester oven ware
79 Set of 7 Solingen carving knives
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