Thompson v Geminder Holdings Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2013 03476

AMANDA JANE THOMPSON	Plaintiff
v
NATIONAL AUSTRALIA BANK LTD (ABN 12 004 044 937)	First Defendant
GEMINDER HOLDINGS PTY LTD (ABN 11 095 313 714)	Second Defendant
RAPHAEL GEMINDER	Third Defendant
DAVID ANTHONY HEFFERNAN	Fourth Defendant
SHARON LEE HEFFERNAN	Fifth Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17-20, 24-27August, 2-4, 7-11, 14-17, 21-22 September 2015
DATE OF JUDGMENT:	24 August 2016
CASE MAY BE CITED AS:	Thompson v Geminder Holdings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 495

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CONTRACT – Tenant of property when landlord in financial difficulty – Whether tenant agreed to purchase property and grant an option back – Whether contract existed before written agreement - Implied terms – Good faith – Co-operation – Whether contract required writing – Whether part performance – Mortgagee taking possession of the property – Whether loss of opportunity to exercise option – Damages

ESTOPPEL – Equitable and promissory estoppel – Representation – Reliance – Detriment – Equitable compensation

TORT – Trespass, conversion and detinue – Whether curtains, carpets and chandeliers chattels or fixtures – Whether plaintiff had right to possession of the items – Ownership of the items – Pleadings – Appropriate relief

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A P Rodbard-Bean and Mr D J-H Kim	Darren Muir Fleiter
For the First Defendant (up to and including 26 August 2015)	Mr E W Woodward SC and Ms P Thiagarajan	Norton Rose Fulbright
For the Second and Third Defendants	Mr D J Batt QC, Mr D W Bennett and Ms E L A Dias	King & Wood Mallesons
For the Fourth and Fifth Defendants	Mr T J Sowden	Ken Smith & Associates

Introduction

Summary
Background
Mrs Thompson’s claim against the NAB
Causes of action
Credit

The evidence of the dealings between the parties

Mrs Thompson’s claims in contract

The Geminders’ submissions about the contract claims
Analysis of the plaintiff’s claim in contract

Mrs Thompson’s claims in estoppel

The Geminders’ submissions on estoppel
Analysis of the estoppel claim

Claims in tort

Chattels or fixtures?
Ownership
Submissions on ownership of the chattels
Analysis of submissions about ownership
Chronology of claims to the chattels
Was there a conversion or detinue of the chandeliers by Mr Geminder?
Analysis
Conclusion on the claims in tort

Conclusion

HIS HONOUR:

Introduction

The plaintiff, Mrs Amanda Jane Thompson, sues Geminder Holdings Pty Ltd and Mr Raphael Geminder, the second and third defendants (to whom I will generally refer as ‘the Geminders’), for damages for breaches of contracts or for equitable compensation arising from estoppels. She also seeks damages in tort for trespass, conversion of detinue of chattels left in her family home in Toorak and for their delivery up. Mrs Thompson leased her home to Mr Geminder from January 2013. Mrs Thompson also sues Mr David Anthony Heffernan and Mrs Sharon Lee Heffernan (‘the Heffernans’), the fourth and fifth defendants, for delivery up of the chattels. The Heffernans purchased Mrs Thompson’s home from the National Australia Bank Limited (‘the NAB’) acting as mortgagee in November 2013, while Mr Geminder and his family were still living in it as tenants.

Summary

Mrs Thompson’s claims against the Geminder are not established. No contract was formed between Mrs Thompson and the Geminders other than the agreement to lease and the lease. Mrs Thompson has not established any breach of any contract. Nor has Mrs Thompson established any claim in estoppel against the Geminders. Her claims against Mr Geminder in tort for trespass, conversion or detinue have not been established. In respect of Mrs Thompson’s claims against the Heffernans for an order for delivery up of chattels, I find that the chandeliers are chattels, but not the carpets, carpet squares or curtains. I will hear the parties as to the appropriate order that follows from that finding. There are issues about the possible interest of Mr Thompson’s trustees in bankruptcy in the chandeliers and the terms of Mrs Thompson’s pleadings against the Heffernans on which I will invite the parties’ submissions.

Background

The evidence establishes that the Thompsons and the Geminders needed each other. The Thompsons needed Mr Geminder and his tenancy of their family home to help by their lease and presence stave off the NAB from repossessing their home. Mr Geminder needed the Thompsons’ home to provide them with the luxury accommodation that he and his family desired met their family’s requirements, while their own home was being renovated and extended.

The plaintiff, Mrs Thompson is a psychologist. She and Mr Thompson have three teenage daughters.

Mr Warren Thompson is a business man with substantial experience in property development.[1] He has been a director of over 50 companies and over many years has been involved in property transactions worth millions of dollars. He has been involved with many leases and is familiar with their terms and concepts.[2] In the late 1980s, 18-20 of his companies were placed into liquidation with debts of $160m.[3] He was declared bankrupt in 1992, owing his creditors $105m.[4]
[1]Transcript of Proceedings, Thompson v Geminder Holdings Pty Ltd (Supreme Court of Victoria, S CI 2013 03476, Ginnane J, 17-20, 24-27 August, 2-4, 7-11, 14-17, 21-22 September 2015) 541-542 (‘T’).
[2]T 542-3.
[3]See the findings contained in Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415 [52].
[4]T 594.

The proceeding concerns a property at 607 Toorak Road, Toorak, which Mr and Mrs Thompson purchased in November 1998. It is a substantial property and was agreed as having a current market value of $10m.[5] In and about 2005 and 2006, the Thompsons undertook substantial renovations to the property, which cost about $4m and took about six years to complete.
[5]Joint expert report by Mr Murray and Mr Hay dated 17 August 2015 and filed 18 August 2015.

On 10 September 2007, Mrs Thompson gave a mortgage of her interest in the property to the NAB to support her husband’s businesses. In March 2008, Mr Thompson paid out the debt, however in July 2010, Mrs Thompson again mortgaged her interest in the property to the NAB.

On 4 March 2011, Mrs Thompson gave a guarantee and indemnity to the NAB to secure the borrowings of her husband’s company, Sunshine Retail Investments Pty Ltd (‘Sunshine Retail’), in the sum of $8.55m.[6]
[6]Court Book, Thompson v Geminder Holdings Pty Ltd (Supreme Court of Victoria, S CI 2013 03476, Ginnane J, 17-20, 24-27 August, 2-4, 7-11, 14-17, 21-22 September 2015), 543 (‘CB’).

In May 2011, Mr and Mrs Thompson signed a Memorandum of Agreement recording agreements that had been made between them, that:

A.On or about the 23^rd day of November 1998, Amanda and Warren acquired the property known as 607 Toorak Road, Toorak (the Home).
…

E.On about 6 July 2010 Amanda agreed to allow Warren to further increase the business borrowings of Sunshine Retail which were secured against the Home upon the basis that:
(a)those further borrowings would, as between Warren and Amanda, also come out of Warren’s 50% interest in the Home; and
(b)Warren would indemnify Amanda, and hold her harmless against, any loss that she might suffer as a consequence of Warren’s 50% interest being inadequate to discharge in full any claim the NAB might have against the Home.[7]

[7]CB 592.

In May 2012, the Thompsons placed the property on the market for sale with Kay & Burton estate agents, but it was not sold. On 5 June 2012, Sunshine Retail was placed into liquidation.[8] On 12 June 2012, the NAB issued notices of default and demand to the Thompsons for a debt totalling $8.3m secured by its mortgage over the property. On 8 August 2012, the NAB commenced proceedings in the County Court of Victoria to recover possession of the property. On 15 August 2012, Mr Thompson was declared bankrupt upon his own petition with debts of at least $100m.[9]
[8]T 37.
[9]T 595.

Mr Thompson instructed Mr Michael Champion, a legal practitioner of 30 years’ experience, to act on Mrs Thompson’s behalf. Mr Champion began negotiating with the NAB about a Deed of Forbearance.

Mr Raphael (‘Ruffy’) Geminder, the third defendant, is also a very experienced business man and is the sole director of Geminder Holdings Pty Ltd (‘Geminder Holdings’),[10] which was a family holding company and held all of the share capital in Pact Group Ltd (‘Pact Group’). Pact Group operates a business of packaging manufacturing and floated on the stock exchange in December 2013 and Mr Geminder is its non-executive chairman.[11] The evidence suggests that Mr Geminder is a very wealthy man.
[10]T 1754 (now named Kin Group Pty Ltd).
[11] Ibid.

In 2012, Mr Geminder and his wife, Mrs Fiona Geminder, who have four children, were planning to expand and renovate their Kooyong home on a grand scale. While this was occurring they were seeking a house to rent in the area for about two years.

The NAB was pressing for sale of the property to obtain repayment of Mrs Thompson’s debt. On 21 September 2012, Mr and Mrs Thompson retained Abercromby’s Real Estate Pty Ltd (‘Abercromby’s), to sell the property under an Exclusive Sale Authority.[12]
[12]CB 724.1.

On 10 October 2012, the Age newspaper published an account of the Geminders’ renovation of their Kooyong home reporting that the renovation had been delayed until the family could find a house to rent for two years during construction. Through a mutual friend, Mr Geminder’s wish to rent a luxury home came to Mr Thompson’s attention. The two men were put in touch and Mrs Geminder inspected the home with Ms Adrienne van Denderen, who is Mr and Mrs Geminders’ house manager, and found it to be suitable for her family’s needs. Thereafter, a lease was signed and the Geminder family moved into the Thompsons’ home in January 2013. The Thompsons moved to a rented property in East Malvern.

The NAB as mortgagee took possession of the property in May 2013, by serving a redirection of rent notice. The Heffernans purchased the property from the NAB in November 2013.

The Geminders, as tenants of the Heffernans, still lived in the property at the time of the trial.

Mrs Thompson’s claim against the NAB

Mrs Thompson sued the NAB as first defendant for breach of a settlement agreement. That proceeding was settled and on the seventh day of the trial the Court made orders by consent, dismissing the proceeding against the NAB and its counterclaim without adjudication of the merits, with no order as to costs and previous costs orders between those parties being vacated.[13]
[13]T 668.

Causes of action

Mrs Thompson’s case is that she leased the property to Mr Geminder following representations that, in broad terms, he would ensure that she did not lose control of the property to the NAB. Sometimes, this was referred to as agreeing to ‘fix’ her financial problems with the NAB. At times it was suggested that he would ensure that the debt which she owed to the NAB was refinanced. An alternative plan, that was later developed, was that he either purchase the house or the mortgage over it. If he purchased the house he would grant an option to Mrs Thompson to buy the property back at the end of the lease. In submissions, the plaintiff reformulated the Geminders’ obligation as acting reasonably in the circumstances[14] to take such action as would allow Mrs Thompson to regain possession of the property after Mr and Mrs Geminders’ renovations were complete and the lease of the property expired or was terminated by consent and the Geminder family had moved out.
[14]T 123.

Mrs Thompson claims that these representations were followed by contracts that she entered into with Mr Geminders or Geminder Holdings. They were a conditional agreement to lease dated 27 October 2012, a second agreement to lease dated 12 November 2012, a conditional lease dated 19 November 2012, an agreement to vacate the property and a purchase and buyback option agreement. Mrs Thompson alleges that these agreements contained terms requiring good faith in dealings and co-operation and also a term that the Geminders would ensure that she did not lose control of the property to the NAB. She seeks damages for the loss of the value of the option to repurchase the property which option she contends that the Geminders agreed to provide her under the purchase and buyback option agreement.

No breach of the conditional agreement to lease dated 27 October 2012 was pleaded against the Geminders. The second agreement to lease relied on, which was alleged to have been made on 12 November 2012, was pleaded as being that if Mrs Thompson leased the property to Mr Geminder, he would do all acts and execute all such documents as were necessary and proper to ensure that Mrs Thompson would not lose control of the property to the NAB. Such a term is pleaded to form part of the lease, which the plaintiff describes as the conditional lease, made on 19 November 2012. No reason was advanced why any cause of action that Mrs Thompson possesses for breach of that term was not properly regarded as a breach of the lease of 19 November 2012, rather than breach of the second agreement to lease. Therefore, my consideration of Mrs Thompson’s claims in respect of breach of that term will focus on the lease dated 19 November 2012.

Mrs Thompson alleged that the terms of the conditional lease, as she called the lease of 19 November 2012, included that:

(a) Mrs Thompson and Mr Geminder would act bona fide and in good faith with each other in and about all matters concerning the Conditional Lease; (“First Obligation of Good Faith”);
(b) the Conditional Lease was subject to a condition subsequent that the NAB provide its assurances, to the effect that, it would not enter into possession of the Toorak Road Property:
(i) and sell the property; and/or
(ii) terminate the Conditional Lease under the Residential Tenancies Act 1997;

(c) Mr Geminder was subject to an ongoing obligation to do all acts and execute all such documents as were necessary and proper to ensure that Mrs Thompson would not lose control of the property to the NAB.[15]

[15]CB 6.

As the action between Mrs Thompson and the NAB was settled, I did not understand that term the contained in clause (b) was relied on against the Geminders.

The agreement to vacate was said to arise from conversations between Mr Geminder and Mr Thompson in late November and early December 2012, particularly on 5 December, in which Mr Thompson said that Mrs Thompson could not allow Mr Geminder to move into the property without the NAB’s consent, that there did not appear to be any progress with the NAB, that is to solve the Thompsons’ financial problems, and that he was concerned that Mrs Thompson would lose the property. Mrs Thompson alleged that, in reply, Mr Geminder said that he would not let that happen and that to ensure that the NAB did not sell the property as mortgagee in possession, he was prepared to buy the mortgage from the NAB, or buy the property himself and grant Mrs Thompson an option to repurchase the property at the same price at the conclusion of the construction of his new home. Mrs Thompson also alleged that the agreement was implied by law and was necessary to give business efficacy to the agreement.

Mrs Thompson also contended that by 16 February 2013, the parties had entered into a Purchase and Buyback Option Agreement, which required:

Geminder Holdings would buy the Toorak Road from the NAB for a sum of up to $8.5M and Mrs Thompson would contribute any amount in excess of that sum; and
Geminder Holdings would grant to Mrs Thompson an option to buy back the Toorak Road property for price paid by after the expiration of any lease of the property.

The terms of the PBO Agreement were alleged to be that:

(a) Mr Geminder and Geminder Holdings would do all acts and execute all such documents as were necessary and proper to cause the purchase of the Toorak Road Property by Geminder Holdings from the NAB for a sum up to $8.5M;
(b) Geminder Holdings would grant Mrs Thompson an option to buy back the Toorak Road Property for the price paid by Geminder Holdings after the expiration of any lease of the property;
(c)Mrs Thompson, on the one part, and Mr Geminder and Geminder Holdings, on the other part, would act in good faith with each other in and about the Purchase and Buyback Option Agreement (“Second Obligation of Good Faith”).

This agreement was alleged to be partly oral and consistent with the statements made at a meeting of 31 January 2013 and also based on a conversation between Mr Thompson and Mr Geminder on about 16 February 2013. In so far as the agreement was in writing, it was said to be contained in an email from Mr Nick Perkins, General Counsel and Company Secretary of Geminder Holdings, of 1 February 2013.
Mrs Thompson contended that the implied obligation of good faith contained in the contracts required the parties:

(a) to cooperate in achieving the contractual objects, that is loyalty to the promise itself;

(b) to comply with honest standards of conduct;

(c) to comply with standards of conduct which were reasonable having regard to the interest of the parties.

Mrs Thompson’s case was that the Geminders breached each of the four agreements by:

(a) refusing to do all acts and execute all such documents as were necessary and proper to ensure that she would not lose control of the property to the NAB;

(b) resiling from their obligations to purchase the property for the sum of $8.5m;

(c) challenging that there was no concluded agreement between Mrs Thompson, Mr Geminder and Geminder Holdings to the effect of the PBO Agreement; and

(d) refusing to do all acts and execute all such documents as were necessary and proper to cause Geminder Holdings to purchase the property from the NAB for the sum of $8.5m.

Mrs Thompson gave no evidence of any words of assurance to her that Mr Geminder would purchase the debt or arrange a refinance. Apart from a few conversations which she overhead, or parts of conversations or meetings with Mrs Geminder, her understanding of the arrangement with the Geminders was obtained from Mr Thompson.[16]
[16]T 1147.

Mrs Thompson also relies on an equitable or promissory estoppel which she contended prevented the Geminders from departing from expectations and assumptions that they induced her to hold and on the basis of which she entered into the contracts with the Geminders. She claims equitable compensation or damages on the basis of an equitable or promissory estoppel.

Mrs Thompson makes an additional claim in tort in respect of items being chandeliers, carpets and curtains that she left at the property that she says are chattels that she owns, or is bailee of, and which Mr Geminder has refused to return to her. Mr Geminder disputes that the plaintiff is the owner or bailee of these items and does not agree that these items are chattels. He also dispute that they have refused to return the chattels to their rightful owners. Mrs Thompson also seeks a delivery up order in respect of the items against the Heffernans.

Credit

Both parties attacked the credit of key witnesses of the other side. Before setting out the evidence of the dealings between the parties, it is convenient to state my conclusions about the credit of the key witnesses. Those conclusions, in part, will be clearer once I have described the dealings between the parties.

In assessing the evidence of conversations given at the trial, it is important to keep in mind the valuable common sense considerations contained in the following passage:

human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious considerations of what should have been said or could have been said. All too often what is actually remembered is little more than impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.[17]
[17]Watson v Foxman (1995) 49 NSWLR 315, 319 (McClelland CJ in Eq).

Unless a contemporaneous note of a conversation is kept, it will be difficult for the parties to it to recall the order in which things were said.
I have placed most weight on evidence of conversations that are supported by contemporaneous notes that were made in circumstances making them likely to be accurate. For that reason, Mr Perkins’ notes, often contained in emails, prepared for Mr Geminder’s information, are likely to record accurately Mr Perkins’ recollection of, or understanding of, the important parts of conversations. Similarly, Mr Thompson’s communications with Mr Champion, when recorded in notes or emails are more likely to record accurately his or Mr Champion’s recollection of, or understanding of, those communications.
The Geminders particularly attacked the credit of Mr Thompson, describing him as a demonstrably unsatisfactory witness and relying on many individual matters that they contended impeached his credit. These matters included his previous commercial history including an earlier bankruptcy. They relied on what was described as his dishonesty, including lies, in dealings with Mr Geminder and Mr Perkins, his dishonesty, and obfuscation in dealings with the NAB and what they described generally as his unsatisfactory evidence. These included purporting to recount matters of fine detail for example of conversations when his recollection was proved wrong and the fact that he was rarely prepared to concede that he was wrong.
I have considered the matters raised by the Geminders and I have found the following of significance in assessing Mr Thompson’s evidence. His previous commercial history suggests that he was well familiar with dealing with insolvent businesses. He agreed that the entire auction process of November 2012 was a ‘ruse’. He gave Mr Geminder incorrect information about the buyers interested in the property at the auction. He was wrong about a number of the dates of conversations that he relied on. He exaggerated his recollection of conversations and in some respects was plainly wrong, for example, in the case of the telephone conversation of 16 November. He did not tell the Geminders of most of dealings with the NAB or his bankruptcy. Nor did he disclose the parlous state of his and his wife’s financial affairs. He misled the Geminders about the basis of the Castran Gilbert (Aust) Pty Ltd (‘Castran Gilbert’) caveat. Castran Gilbert are estate agents, who had acted for one of Mr Thompson’s companies and claimed that he owed them a debt. They later acted for the Heffernans. Of particular importance was that Mr Thompson attempted to distance himself from knowledge of the Heffernans’ interest in the property. He denied having received notice about the NAB’s rent redirection notice. All these matters have led me to exercise considerable caution before accepting Mr Thompson’s evidence and in some instances have placed little weight on it.
However, these adverse conclusions about Mr Thompson’s credit do not lead to Mrs Thompson’s case necessarily failing. The objective facts of the parties’ conduct and actions are particularly significant and in some instances transcends the difficulties with Mr Thompson’s evidence. This includes, in particular, Mrs Thompson’s commencement of the Supreme Court proceedings in July 2013, which demonstrated that the Thompsons believed that they had made an arrangement or deal with the Geminders, whereby they would purchase the property from the NAB.
Mrs Thompson in her statement of claim pleaded a settlement agreement between her and the NAB, a term of which was that the NAB would sell the property to Geminder Holdings for the sum of $8.5m. The pleading included the following paragraphs:
The price of $8,500,000, which Geminder Holdings would pay to purchase the Toorak Road Property, was agreed to by Mr Geminder and Geminder Holdings.
On or about a date in late April 2013, Mr Geminder and Geminder Holdings were advised of the material terms of the Settlement Agreement between Mrs Thompson and the NAB and consented to the same.
That was the case on which the Thompsons commenced proceedings against the NAB and sought injunctive relief from Elliott J. That pleading recorded the understanding that the Thompsons held in July 2013.
I accept that Mrs Thompson generally attempted to give accurate evidence, but she was not a party to any of the critical conversations. She had a very great desire to pursue any course that might enable her to retain the Toorak property.
I generally accept Mr Champion’s evidence on relevant matters. I consider that he was attempting to give truthful evidence.
The plaintiff made detailed attacks on Mr Geminder’s credit. She pointed to his lack of recollection of communications with Mr Thompson and his giving inconsistent evidence. She contended that, on a number of occasions, he gave evidence that was implausible or disingenuous. An example was his suggestion to the NAB on 1 February 2013 that one option available to it was to sell the property with vacant possession.
I consider that Mr Geminder and Mr Perkins were generally attempting to give truthful evidence. I do not consider that on the evidence I can draw any adverse conclusion from Mr Geminder’s deletion of texts or from Mr Perkins’ failure to keep notes of his conversations with Mr Heffernan. They gave an explanation for these actions and there is no basis for not accepting their evidence. The Court cannot disbelieve witnesses merely because of speculation about the reason for particular conduct, when the witness has denied the basis on which that speculation is based. Nor do I disbelieve Mr Perkins evidence because he was an employee of Mr Geminder’s company. In fact, I consider that his status as an employee made it more likely that the notes and emails that he prepared for Mr Geminder, concerning his conversations with Mr Thompson and Mr Champion, were accurate.
But, I do consider that both Mr Geminder and Mr Perkins sought to downplay the significance of their discussion with Mr Thompson on 31 January 2013 about the grant of an option to Mrs Thompson to repurchase the property, by describing it as a concept.
Neither Mr Geminder nor Mr Perkins informed the Thompsons about their discussions with the Heffernans in June 2013. Nor after the NAB’s notice of redirection of rent, did Mr Geminder inform them that he considered them ‘irrelevant’ as he gave evidence that he regarded them. In light of his close dealings with the Thompsons, Mr Geminder’s failure to inform them of his contacts with, and arrangements with the Heffernans, displayed a lack of candour, which the evidence suggests was due to the fact that he no longer needed the Thompsons and was eager to proceed with his new arrangements.
The evidence of the dealings between the parties
The Thompsons meet the Geminders

Mr Thompson was introduced to Mr Geminder in late October 2012 after he learned from mutual friends that the Geminders wanted to rent a property while their home at Kooyong was being renovated and extended.[18] On 26 October 2012, Mrs Geminder inspected the property and was happy with it.[19] The Thompsons saw leasing the property to the Geminders as a way out of their financial difficulties, which included debts to the NAB of about $9m.
[18]T 404; CB 792.2, 804.
[19]CB 792.2, 804.

Mrs Thompson was very happy with the interest shown by the Geminders and considered that it would enable the Thompsons to keep their Toorak property. She described Mr Geminder’s visit on the Saturday morning as the best birthday present she could have asked for. She told her mother that the ‘fairy god family had come to save us, that we weren’t going to lose the house after all because we were going to be able to lease it’.[20]
[20]T 989.

Mr Geminder met Mr Thompson at the property on Saturday morning, 27 October 2012. He noticed a ‘for sale’ sign erected at the property, which advertised an upcoming auction. Mr Geminder said that he informed Mr Thompson that he was keen to lease the property while his family home in Kooyong was being renovated and extended, which could take at least two years. He said that the lease would need to commence from 14 January 2013, when he and his family would return from an overseas holiday.[21]
[21]T 415–6.

Mr Thompson said that he told Mr Geminder of the following matters. The property was on the market for sale with Abercromby’s, but that he would prefer not to sell it and that his wife would do all she could to hold onto it. Any lease needed to be subject to the NAB’s approval. The Thompsons’ NAB loans needed to be refinanced at a commercial rate of interest, because they had expired, otherwise Mrs Thompson would have to sell the property to repay the NAB.[22] The rent obtained from leasing the property might help in renegotiating the loans. He said that Mr Geminder told him that his company, the Pact Group, was a major client of the NAB and that Mr Thompson should let him know if they needed any assistance in dealing with the NAB.[23]
[22]CB 812-3.
[23]T 655.

Mr Geminder denied that they discussed the state of any NAB loan to the Thompsons or their financial position with the NAB. He said that Mr Thompson told him that he was renting the property because it was a good opportunity for him to take a couple of years off with his wife and his children, potentially travel, perhaps live overseas and ‘have an adventure’. He said that he owned two other houses which he could move into. Otherwise, Mr Thompson did not explain why the property was for sale.[24] Mr Geminder was asked about Mr Thompson’s evidence that they had discussed his position with the NAB, but he said that that issue was not discussed on that day and not until his meeting with Mr Thompson on 16 or 17 February 2013.[25]
[24]T 1761.
[25]T 1805-6.

Later on Saturday, 27 October, Mr Geminder and Mrs Thompson signed an ‘Agreement to Lease’ after Mr Geminder inserted a clause providing:

Agreed between Raphael Geminder and Amanda Jane Thompson subject to the Landlord getting NAB Banks consent to proceed.[26]

The rent was agreed as $8,000 a week for an initial term of two years.

[26]CB 817.5.

According to Mr Perkins, Mr Geminder agreed that the words ‘subject to’ be included because Mr Thompson told him that the mortgage was due to expire early in 2013, and the NAB had refused to refinance it.[27]
[27]T 1523.

The important issue in dispute about the meeting at the property on 27 October 2012 was whether Mr Thompson told Mr Geminder of his financial difficulties and his commitments with the NAB. I prefer Mr Thompson’s account to Mr Geminder’s on this issue. It is supported by the fact that the Agreement to Lease was amended to include a reference to the landlord obtaining the NAB’s consent to the lease. It is also supported by the text messages between Mr Geminder and Mr Thompson on 30 October 2012, which I set out below. I find that Mr Geminder did learn that the Thompsons had significant financial obligations to the NAB and needed the NAB’s approval of the proposed lease was required.[28]
[28]CB 855.1.

The following day, Sunday, the Thompsons visited the Geminders’ Kooyong home for afternoon tea at which Mrs Geminder thanked them for allowing her family to use the home and assured them that it would be in perfect condition when returned to them.[29]
[29]CB 815.

The Thompsons seek the NAB’s approval of the lease

On 29 October 2012, Mr Thompson emailed Mr Champion asking whether the NAB officer handling their loans, Patrick Xiong, would know who the Geminders were on the basis that ‘apart from the other Pratt Companies Pact owe the NAB $300m’.[30]
[30]CB 838.1.

In fact, Mr Geminder’s companies did not owe the NAB $300m, rather, Pact Group had a line of credit with the NAB.[31] In any event, the evidence suggests that Mr Thompson was entitled to conclude from Mr Geminder’s statements that his companies’ dealings with the NAB gave him significant influence with it.
[31]CB 838.1.

On the same day, Mr Champion wrote to the NAB enclosing a copy of the Agreement to Lease and seeking consent to Mrs Thompson leasing the property to the Geminders.[32] The letter stated that ‘unless sold beforehand, at the expiration of the lease, the property will be sold’ and that ‘relatives of our client will top up the rental from Mr Geminder to meet ongoing interest under the fixed rate home loan’.[33] The letter was not copied to the Geminders. Indeed, the Mr Thompson and Mr Champion did not inform the Geminders of most of their communications with the NAB.
[32]CB 423-6.
[33]CB 423.

Later that day, Mr Xiong of the NAB replied to the letter stating that the proposal represented a ‘fundamental change’ from previous proposals and he would advise them of the NAB’s position in a week’s time.[34]
[34]CB 426.

On Tuesday, 30 October 2012, Mr Thompson met Mr Geminder and told him of the NAB’s unfavourable response.[35] Later that day, Mr Thompson sent a text message to Mr Geminder stating that an extension of the loan for two and a half years at a home loan rate of 5.78% was unsupportable on Mrs Thompson’s income and that the NAB was not interested in the lease income nor the identity of the tenant. He informed Mr Geminder that his accountant had suggested that ‘a tax effective alternative‘ for Mr Geminder would be to take a first mortgage of $8.1m over the property at ‘say 2%’ and lease the property at ‘say 120k pa’. They discussed how the NAB’s interest in the Thompsons’ proposal might be increased. Mr Geminder suggested that Mr Thompson ask the NAB to extend the loan with some debt reduction provided by the front ending of the rent of about $800,000 with some additional cash provided by him.[36] He did not respond to the suggestion that he might purchase the property.
[35]T 429, 432, 1764.
[36]CB 855.2.

On 31 October, at Mr Thompson’s request, Mr Geminder provided him with a letter to send to the NAB, in the following terms:

As a follow up to our various telephone conversations, I wanted to confirm that we wish to move ahead on the rental of 607 Toorak Road.
Please advise the National Australia Bank that we are willing to front end the entire rental for the two year period so that it can be used to reduce your loan. We are very anxious for this transaction to proceed, and we would appreciate the NAB’s assistance in this matter.
As soon as you have a confirmation from the bank, and we have signed our lease, we will wire two years worth of rent to the bank, or to your nominated account.
Please let us know when you wish this to occur.[37]

[37]CB 953.

On 1 November 2012, The NAB advised Mr Champion that it was not in a position to consent to the lease proposal.[38] It seems clear that Mr Geminder learned that the NAB had not consented to the lease.[39]
[38]CB 871.
[39]T 660-2, 1817.

Mr Thompson continued to attempt to persuade the NAB to agree to his proposal. On 7 November 2012, Mr Champion emailed Mr Xiong asking the NAB to review its position concerning the lease and attached an offer of assistance to the Thompsons from Mr Thompson’s sister, Mrs Susan Malone, as well as Geminder Holdings’ letter of 31 October.[40]
[40]CB 905.

On 9 November 2012, Mr Xiong advised Mr Champion that the NAB’s position remained the same.[41]
[41]CB 937.

On the same day, Mr Thompson sent Mr Geminder a text message, which included the statement:

The NAB is still procrastinating, which is very frustrating. They tell us that these things take time. Although I did not want to inconvenience you, it may assist if your CFO would speak with Patrick Xiong to encourage his superiors to look favourably at this transaction.[42]

[42]CB 955.1.

Mr Champion had suggested to Mr Thompson that the NAB was not procrastinating, but rather, was saying ‘no’ to the lease proposal. He suggested that Mr Thompson tell Mr Geminder that the officer at the NAB dealing with the matter would not consent to the lease.[43]
[43]T 664-5.

At about that time, Mr Geminder telephoned Mr Michael Woolrich, who he described as his company’s account executive with the NAB, but whose formal title was Head of Industrials, Director, Institutional Banking. He told Mr Woolrich that his intention was to lease the property, that he understood that the Thompsons had a loan from the NAB, and that he would appreciate any assistance Mr Woolrich could give him to obtain the NAB’s consent to the lease. Mr Woolrich in reply told Mr Geminder that it was a complicated situation and that he could not talk to him about the facts.[44] Mr Geminder informed Mr Thompson of this conversation.[45]
[44]T 1766–7.
[45]T 1766-7.

On 9 November, Mrs Thompson signed an exclusive auction authority with Abercromby’s estate agents to auction the property with vacant possession on 28 November 2012.[46] Mrs Thompson had committed to the auction before meeting the Geminders.[47] However, because she had signed the Agreement to Lease, she was not intending to sell the property.[48] Mr Geminder expressed concern that the auction might pose risks to the security of his tenancy. Mr Thompson stated that, if the auction had not gone ahead, they would have been liable for agents’ fees, but he assured Mr Geminder his tenancy was secure.
[46]CB 953.1.
[47]CB 953.5.
[48]T 1000-1.

On 9 November 2012, Mr Thompson emailed Mr Champion requesting that he advise the NAB of one potential buyer for the property whose interest ‘is to buy the property unoccupied’ and that a ‘lease to the Geminder family is obviously an attractive addition for him’ and that they were ‘anxious not to lose this lease offer and to use the rental to underpin the future interest cost expense’.[49]
[49]CB 955.

The lease and the discussions preceding its execution

Mrs Thompson and Mr Geminder executed a lease of the property on 19 November 2012. Between 12 and 19 November, the terms of the lease were negotiated between Mr Geminder and Mr Thompson and their lawyers.

On 12 November 2012, the Geminders’ lawyers sent a draft of the proposed lease to Mr Thompson, which listed both Mr and Mrs Thompson as lessors. Mr Thompson evidence was that on that day, he spoke with Mr Geminder on the telephone and told him that the deal was not going to happen because the NAB would not agree to it. He said that he told Mr Geminder:

Look, sorry Ruffy but I think this deal is not going to happen. The bank is just going nowhere. Time is passing and the bank just doesn't care that you are behind the deal or that the deal conveniences you.[50]

[50]T 437.

He said that in reply, Mr Geminder was ‘agitated’ and made a number of statements, including:

They [the Bank] will take notice of me. I have referred it to Woolrich. Furthermore, I have $300 million, my companies have on deposit with the NAB. They do what I tell them.
Warren, I can fix this. It is something that I can fix. I will take care of it.
Look, if necessary, I can get Westpac to lend Amanda the money… and if necessary, I will buy the mortgage from the NAB.

No, we are going to move forward with this. There's no doubt in my mind that this can be fixed and I will fix it for you.[51]

[51]T 437-8.

Mr Thompson said that he told Mr Geminder that his proposal to buy the mortgage was a little different and that he liked that idea.[52]
[52]T 438.

Mr Geminder gave evidence that he did not recall any telephone discussion with Mr Thompson on 12 November 2012.[53] His evidence was that from the end of October to December 2012, he did not discuss taking a mortgage, or buying a mortgage, over the property.[54] He said that he did not deal with the NAB in respect of the Thompsons’ finances.[55] He was asked in examination in chief, if when ‘thinking of 12 November’, whether he recalled any particular telephone conversation that day and he replied: ‘I can’t say I remember any discussion’.[56] Mr Thompson’s account of the 12 November conversation was not put to Mr Geminder in any greater detail in cross-examination. The Geminders submitted that the plaintiff had breached the rule in Browne v Dunn[57] by not putting Mr Thompson’s version of the conversation of 12 November 2012 to Mr Geminder. That fact is relevant to the weight that I give to Mr Thompson’s evidence on this point, but it is not decisive. There is no requirement that the court must accept the evidence not the subject of cross-examination, particularly if it is contradicted by other evidence.[58]
[53]T 1768.
[54]T 1765.
[55]T 1701, 1772, 1774.
[56]T 1768.
[57](1893) 6 R 67 and see Evidence Act 2008 s 46.
[58]J D Heydon, Cross on Evidence (LexisNexis Butterworths, 10^th ed, 2015) 613 and Bulstrode v Trimble [1970] VR 840, 848.

The cogency of Mr Thompson’s evidence of this telephone call has to be assessed not just by having regard to the matters that affect his general credibility, but also other circumstances that are relevant to whether such a conversation occurred. The telephone records list four calls by Mr Geminder to Mr Thompson on 12 November, including one of 12 minutes 44 seconds. There were other matters that provide a context to Mr Thompson’s evidence about this conversation, particularly that Mr Geminder was anxious to secure a lease of the property. On 31 October, he had provided Mr Thompson with a letter stating that he was very anxious for the transaction to proceed and on or about 9 November he phoned Mr Woolrich at the NAB, and sought his assistance to obtain the NAB’s consent to the lease. His interest in obtaining the lease is further shown by his email to Mr Perkins of 15 November about gaining ‘the high moral ground’ by paying one month’s rent into his solicitor’s trust account and that that would make it ‘one step closer’.[59] The Thompsons were concerned not just with consent being granted to the lease, but with the NAB’s actions in respect of the property. There were issues between the parties about the terms of the lease and, a few days after the 12 November, Mrs Thompson was willing to sign the lease. The combination of these factors make it probable that a conversation on 12 November 2012 to the general effect of Mr Thompson’s evidence, occurred. It was capable of leading Mrs Thompson to believe that Mr Geminder would act reasonably in the circumstances to ensure that she did not lose control of the property to the NAB.

The Browne v Dunn submission

[59]CB 990.1.

The Geminders put a number of similar Browne v Dunn[60] submissions about other evidence that Mr Thompson gave and it is convenient to consider them in general terms at this point. The plaintiff disputed that she had not complied with the principle and contended that Mr Geminder and Mr Perkins were on notice of the allegations contained in Mr Thompson’s evidence, including by affidavits filed in the proceeding and that matters did not have to be put to them when they said that they had no recollection of particular conversations. The plaintiff relied on decisions where the person being cross-examined already has notice of the particular allegation or evidence, which otherwise have to be put to him or her.[61]
[60](1893) 6 R 67.
[61]Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168 (Toohey J) and Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219.

However, I do not consider that any point about a witness already having notice of an allegation applies in most of the instances where the Geminders invoked the rule. Most of the breaches alleged of the rule in Browne v Dunn[62] upon which the Geminders relied concern circumstances in which the plaintiff had not challenged Mr Geminder’s or Mr Perkins’ evidence with Mr Thompson’s version of events. The plaintiff was obliged to observe the rule and to challenge their evidence in that manner. It is one thing for a witness to say that he does not recall a conversation, but it is another thing for the witness not to be given the opportunity to say whether he ever made a particular statement. The rule in Browne v Dunn[63] has two significant features: first, it is a rule of procedural fairness and secondly, it relates to the weight to be given to evidence or its cogency.[64] The failure to put the plaintiff’s case concerning the making of the representations to Mr Geminder or Mr Perkins weakens the cogency of her case in this respect. The plaintiff bears the onus of proof to prove that the representations were made. I will consider the significance of breaches of the requirements of Browne v Dunn[65] in individual instances where the issue was raised. In some instances, I have concluded that one reason for accepting Mr Geminder’s evidence on particular matters is that he was not challenged by cross-examination that put Mr Thompson’s version of events to him. In other instances, I have taken into account other surrounding circumstances in assessing the evidence and have accepted at least part of Mr Thompson’s evidence. As stated, there is no requirement that the court must accept evidence that has not been the subject of cross-examination. Equally, a court is not obliged to ignore evidence that has not been put to relevant opposing witnesses.
[62](1893) 6 R 67.
[63]Ibid.
[64]Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 587 (Samuels JA); Curwen v Vanbreck Pty Ltd (2009) 26 VR 335, 349 [27]; Philippiadis v Transport Accident Commission (2016) 74 MVR 289, [80]-[91].
[65](1893) 6 R 67.

The lease

On 12 November, Mr Perkins provided a draft of the proposed lease to the Thompsons by leaving it in the letter box of their home. It listed both the Thompsons as joint lessors.

On 13 November, Mr Thompson spoke to Mr Perkins, whose note of the conversation recorded Mr Thompson as stating that his name should not be on the lease because he had transferred all his interest in the property to his wife. But, he was prepared to provide a letter of consent to the lease because the title recorded him as joint owner. He was not proposing to include the lease in the s 32 statement for the auction of the property, although Mr Perkins said that he should. Mr Perkins stated that they compromised and agreed that a copy of the lease would be included in the s 32 statement, with all the commercial details including the identity of the lessee, redacted.[66]
[66]T 1534.

Mr Perkins also recorded Mr Thompson as stating that the property was not going to sell, unless there was a Chinese buyer willing to pay a fortune, and therefore the lease was not relevant and that he had to go through the sale process to avoid paying the agent’s commission on a withdrawn sale.[67] He referred to the two caveats that were recorded on the property’s title. He said that Castran Gilbert’s caveat was in error and was being removed or that there were plans in place to have it removed. He said that Mr Geminder did not have to worry about Mrs Malone’s caveat, which was a ‘family related matter’ and was part of a reorganization of finances.[68] Following the conversation, Mr Perkins sent an email to Mr Thompson at 3:25pm to which he attached amended special conditions of the lease together with a power of attorney because the lease at that point only recorded Mrs Thompson as the lessor.[69]
[67]CB 956.
[68]T 1533.
[69]CB 957.

After further discussions between them, Mr Perkins sent Mr Thompson a further draft lease and Mr Perkins forwarded it to Mr Thompson that evening.[70] It contained a revised special condition 12(a) stating:

On the written request of the tenant, the landlord must procure that the first mortgagee of the land (National Australia Bank) and the holder of any charge over the assets of the landlord (Castran Gilbert (Aust) Pty Ltd) has consented to the landlord entering into this lease and to the grant of the lease on terms and conditions acceptable to the tenant, and provide the tenant with such a consent, within 30 days of the date of such request. This is an essential term of this lease and if the landlord does not satisfy the requirement under this special condition within the applicable time, the tenant may (until such time as the requirement has been satisfied) terminate this lease upon written notice to the landlord.[71]

[70]CB 965.

[71]CB 973. Special condition 12(b) contained a similar provision in respect of the second mortgagees Garry Kevin Malone and Susan Malone, though placing the obligation to gain consent on the Landlords.

In an accompanying email, Mr Perkins stated:

I have discussed the consent provisions with Ruffy – he agreed that we should make it only on our request that consent from NAB should be sought, rather than an obligation for you to seek[it] now. I have made this change accordingly. It means that hopefully, at a point in time, a sensible discussion can be held with NAB and their consent forthcoming when new arrangements are struck. I have left in that consent will be obtained from the second mortgagee.
I have also made the amendment to the advance payment of rent.
Hopefully you can now confirm the documents are agreeable and I can have final versions delivered for execution.[72]

[72]CB 965.

By letter of the same day, Mr Perkins sent Mr Thompson the final form of the lease together with a power of attorney for signing.[73]
[73]CB 975.1.

On 14 November, Mr Perkins spoke with Mr Thompson and made a note that Mr Thompson although ‘happy with all the documents’, considered that special condition 12 should not name Castran Gilbert as a caveator whose consent was required for the lease.[74]
[74]CB 976.

During cross-examination, Mr Thompson gave evidence that he consistently objected to the inclusion of the revised special condition 12 and wanted the lease to be subject to the NAB’s consent.[75] Mr Perkins admitted that he did not discuss with Mr Thompson the ‘optionality’ of special condition 12, namely that only Mr Geminder had the right to terminate the lease if the NAB did not consent.[76] The requirement that the NAB consent to the lease was important to the Thompsons and Mrs Thompson considered that discussion about that consent was, in effect, code for the NAB agreeing to revised arrangements about their debt.[77] But, Mr Thompson was clearly aware of the terms of the revised clause 12(a) and Mr Champion was available to advise him about its inclusion.
[75]T 801-10.
[76]T 1689-90.
[77]T 1151.

On 15 November 2012, Mr Geminder learned that Mr Thompson was bankrupt. He said that he telephoned him the following day and asked him to come to his office. Mr Perkins gave evidence that he was in the room when Mr Geminder called Mr Thompson to arrange their meeting and listened to the telephone conversation on a speaker phone. He recalled the phone call being brief with Mr Geminder simply stating words to the effect: ‘Warren, you need to come to my office. We need to meet about the lease’.[78]
[78]T 1549.

According to Mr Geminder’s and Mr Perkin’s evidence they met with Mr Thompson later that day and discussed the consequences of his bankruptcy.

Mr Thompson’s evidence was that the telephone conversation was significant and dealt with much more than arranging a meeting. He conceded that although he had initially said that it occurred on or about 14 November, he could not recall precisely when it, or the subsequent meeting, occurred.[79] His evidence was that in the telephone conversation he told Mr Geminder that he did not want the requirement in the lease for the NAB’s consent removed. He said that Mr Geminder assured him that:

Warren, we know what we are doing. This is the way we want it done. We have had advice on it.[80]

[79]T 808, 818 and CB 814.

[80]T 474-5.

Mr Thompson said, ‘well, we are not comfortable with it’ and Mr Geminder replied:

Look, we are handling it. We will fix it.

Mr Thompson said ‘well, you have already promised me you will fix it’, to which Mr Geminder replied: ‘Yes, leave it to us, we can get this fixed. I have already spoken to Woolrich. Do as I suggest and get that signed’.[81]
[81]T 475.

Mr Thompson said that he responded ‘All right, we trust you’ to which Mr Geminder said:

Look, I have already given you assurances that I will fix this. I will buy the mortgage, if necessary, or I will get the property refinanced through Westpac.

Mr Thompson said that he responded: ‘Fine, well, we are all in.’ He said that Mr Geminder’s statements were the only reason why he agreed to have the requirement for NAB consent removed from the lease.[82]
[82]Ibid.

Mr Geminder contended that Mr Thompson’s evidence of a telephone conversation with him on 16 November 2012, in which terms of the lease were discussed, particularly special condition 12, was not credible. The telephone conversation lasted for only 81 seconds and consequently could not have included all of the matters that Mr Thompson alleged.[83]
[83]Exhibit B, Selected entries from phone records produced by Telstra under subpoena dated 27 July 2015, 55 (‘Ex B’).

I find that, as Mr Perkins and Mr Geminder gave evidence, that as arranged in Mr Geminder’s phone call, they met with Mr Thompson later on 16 November at Pact Group’s offices in South Yarra.

Mr Geminder said that the purpose the meeting at his office with Mr Thompson was to confront him about the newly-discovered fact that he was a bankrupt.[84] Mr Geminder said that upon asking Mr Thompson ‘what the story was’, Mr Thompson told him:

… an elaborate story about the fact that his bankruptcies were related to property development and that he had spent a long period of time with either his accountant or his lawyer, creating a structure and trusts and that he had done a whole bunch of work to make sure that those structures and trusts, in anticipation of him going bankrupt, were watertight and foolproof and that after a protracted period of time, he felt comfortable that those structures were bulletproof and he then went bankrupt.[85]

[84]T 1770.

[85]T 1770.

Mr Geminder gave evidence that he did not speak with Mr Thompson about the terms of the lease and only discussed them with Mr Perkins to whom he had entrusted their drafting.[86] Mr Geminder denied that he told the Thompsons that he would ‘fix things’ with the NAB, that he promised that he would make sure that the Thompsons did not lose the house, or that he would potentially buy the mortgage from the NAB or arrange for Westpac to refinance the Thompsons’ debt.[87] He said that he did not want to purchase their debt or the mortgage, because he did not did he want to be the mortgagee exercising security rights against them.[88]
[86]T 1767.
[87]T 1774-5.
[88]T 796.

Mr Perkins’ evidence was that the meeting on 16 November occurred about two hours after the telephone call to arrange it. He said that Mr Geminder confronted Mr Thompson about his bankruptcy and that Mr Thompson explained that it was the result of business dealings and claimed that he was the victim of bad advice. He said that he had worked with accountants and lawyers the previous year to protect his affairs from bankruptcy. He told them that Mrs Thompson controlled trusts with some tens of millions of dollars in them of which she was unaware and that the bankruptcy had no bearing on their broader financial position.[89]
[89]T 1550-1.

Mr Thompson said that the meeting occurred after the telephone call about which he had given evidence. He discussed with Mr Geminder his bankruptcy and whether he had any equity left in the property. Mr Thompson gave evidence that he said:

Amanda’s solicitor has had discussions with my trustee in bankruptcy and there was a general verbal agreement that if required, he would transfer my interest in the property to her for $1.[90]

[90]T 472.

He said that Mr Geminder asked that that be confirmed in writing. Mr Thompson signed a document dated 15 November 2012 that stated that he had conveyed all his legal and beneficial interest in the property to his wife Amanda Jane Thompson and that he consented to and authorised entry into the lease and would abide by its terms.[91] While the date 15 November throws some doubt on whether the meeting occurred on 16 November, the balance of the evidence suggests that it did, in particular the fact that Mr Perkins received emails detailing Mr Thompson’s bankruptcy on 15 November and that on 16 November he signed a Power of Attorney in favour of his wife.
[91]CB 988; the drafting instructions for this document appear to have come from Mr Perkins, CB 976.1-2.

I am not satisfied that Mrs Thompson proved that Mr Geminder on or about 16 November made the representations on which part of her case is based in either the telephone conversation or in the subsequent meeting. Mr Thompson was wrong, or uncertain, about the date of these conversations. I do not consider that the plaintiff has proved that Mr Geminder made any relevant promises or representations in the telephone conversation on or about 16 November. I accept Mr Geminder’s and Mr Perkins’ evidence that the telephone call was to arrange a meeting and no more. It is improbable that such a short telephone conversation could have discussed all the matters about which Mr Thompson gave evidence. Mr Perkins[92] and Mr Geminder[93] were not challenged on their evidence. I also accept their evidence about the meeting that occurred later that day. As was common ground, it primarily concerned Mr Thompson’s bankruptcy I find that Mr Thompson’s evidence about the contents of the telephone conversation was inaccurate.
[92]T 1670.
[93]T 1813.

At about this time, at Mr Perkins’ suggestion, Mr Geminder paid one month’s rent into his solicitor’s trust account to be drawn down when the lease commences, telling Mr Perkins in an email of 15 November 2012:

Lets get one month into that account. That was a bloody good idea. It’s the high moral ground. I know he said don’t worry. But I like the idea of rent being there, makes it feel more real and one step closer.[94]
[94]CB 990.

The lease is executed

Mrs Thompson signed the redrafted lease on 19 November 2012.[95] It provided for an initial term of 24 months at a monthly rental of $34,366. The tenant was entitled to two further terms of six months each, the second expiring on 13 January 2016.
[95]CB 1012.

Mrs Thompson gave evidence that she only signed the lease because Mr Geminder was going to ‘fix’ things with the NAB.[96] But, she had access to Mr Champion’s legal advice if she required it before signing the lease.
[96]T 999.

The lease contained the following special condition:

10. Good faith
The landlord and the tenant will act bona fide in all matters concerning the implementation of this lease.[97]
[97]CB 1020.

The Auction

In the days before the auction, Mr Thompson informed Mr Perkins that they were only going through the auction process to honour their commitment to the NAB and to avoid paying agents’ fees to Abercromby’s. Mr Thompson said that Mr Geminder repeatedly asked him not to sell the property and to cancel the auction. Mr Geminder said that to the best of his recollection he questioned the need for the auction, but did not request it be cancelled.[98] Mr Thompson spoke with Mr Geminder on the eve of the auction and, according to his evidence, when Mr Geminder said that he was worried that he would not honour the deal, assured him that he would and that he was ‘making it very difficult for the agent’.[99] Mr Geminder did not recall that conversation.[100] Mr Thompson told Mr Geminder that the house would not be sold at auction under any circumstances, although they would offer the house as vacant possession to accord with the NAB’s wishes.[101]
[98]T 1771, T555.
[99]T 476.
[100]T 1820.
[101]T 736.

On the eve of the auction Mr Thompson sent a text to Mr Geminder stating:

Hi Ruffy just letting you know that there are three serious contenders for the auction of 607 Toorak Rd. One buyer has asked if we would take 10m. We have today advised the agent that we want nearer 13m They are feeling a little frustrated as [they] claim they can sell tomorrow at over 11m. Will let you know after the auction.[102]

[102]CB 1022.

Mr Geminder sent Mr Thompson two texts:

Thanks Warren appreciate the heads up. I hope you hold onto the house, we love it and in a good market I think we both agree you will get north of the 15 you talked about, but if you can hold on, you may return to it in a few years and never look back. Give me a call at your convenience. Regards Ruffy
Warren don’t forget to mention that the house is tenanted for 2 years. That might help you!! Ruffy.[103]

[103]CB 1024.

Mrs Thompson was very reluctant to sell the property and wanted to keep it as the family home.[104]
[104]T 736, 475-7.

The auction took place on Saturday, 28 November 2012. Neither the Thompsons nor the Geminders wanted the property sold. In fact, Mr Thompson agreed that the auction was a ruse.[105] The Geminder lease was not disclosed at the auction and was not included in the s 32 statement.
[105]T 905.

Mr Thompson informed the auctioneer that the reserve price was $13m.[106] There were three bidders, but the property was passed in at an amount of around $8.6m.[107] Shortly after the auction, Mr Thompson sent a text to Mr Geminder advising that the property had been passed in and that he was surprised at the depth of buyers offer in excess of 10m, but ‘nobody [was] interested if leased’ and stating ‘we need to determine a strategy’.[108]
[106]T 476, 478.
[107]T 480.
[108]T 481.

Mr Geminder and Mr Thompson spoke on the telephone that afternoon. They discussed the auction, with Mr Thompson telling Mr Geminder that the auctioneer was not terribly happy, because he thought that they could have sold it at $10m, or ‘north of $10 million’. Mr Thompson’s evidence was that he then said to Mr Geminder: ‘We are here, we have done everything you wanted. Now it’s up to you to get as quick as you can the National Bank approval.’ He said that Mr Geminder replied, ‘It’s in hand. We’ve been talking to Woolrich’.[109] Mr Geminder did not recall that conversation, [110] but I accept that a conversation in which Mr Thompson discussed the result of the auction with Mr Geminder occurred. I am not persuaded that anything more significant was discussed. Mr Thompson agreed that there was nothing said on 28 November that caused the Thompsons to change their position or to do anything.[111]
[109]T 482.
[110]T 1772, 1821.
[111]T 609-10.

Mr Champion’s new offer to the NAB

The next day, in the morning of 29 November 2012, Mr Perkins spoke with Mr Thompson and said that in order to remove any uncertainty about the tenancy, the arrangements had to be confirmed with the NAB.[112] Mr Thompson said that he was going to tell the NAB about the lease the following day and would again put Mr Geminder’s offer to pre-pay the rent to it. Mr Thompson declined Mr Perkins’ offer to take part in the conversation with the NAB.[113] Later that day, Mr Perkins sent an email to Mr Geminder setting out the substance of this conversation.
[112]CB 1025, 1026.3, 1026.4.1, 1026.6.
[113]T 1693.

On 29 November, Mr Champion sent a letter to NAB’s solicitors telling them that the property had not sold at auction and proposing that the NAB grant a new home loan of $8.2m to Mrs Thompson at the current two‑year fixed interest rate, with the proceeds of the loan applied towards the current indebtedness and with the Malones making payments to the NAB of the difference between $8.2m and the amount owed.[114] The proposal also included that two years’ interest be prepaid and that after 18 months the property would be offered for sale with settlement to coincide with the expiry of the loan. The letter concluded:

this transaction will be underwritten by Mr Raphael Geminder who is well known to the bank as chairman of the Pact Group.[115]

[114]CB 1026.0.2.

[115]CB 1026.0.2.

Neither Mr Geminder nor Mr Perkins were provided with a copy of this letter, or informed of the proposal.[116] Mr Geminder said that at that time he definitely had not told Mr Thompson that he would deal with the NAB in relation to any of the matters set out in the letter.[117]
[116]T 828-9, 1556, 1772.
[117]T 1772.

Following the NAB’s solicitors requests for further information, Mr Champion wrote to them again on 3 December 2012, stating that:

Mr Geminder, who is to take a lease of the property for the period of the extension, will pre-pay the rental so as to enable the reduction in debt proposed.[118]

[118]CB 1026.6.

On 6 December the NAB refused the Thompsons’ proposal.[119]
[119]CB 1028.0.2.

The telephone conversation of 5 December 2012

The plaintiff relied on the contents of a conversation between Mr Thompson and Mr Geminder said to have occurred on 5 December 2012. This conversation was the foundation of the alleged agreement to vacate, which is one of the contracts upon which the plaintiff sues.

Mr Thompson’s evidence was that Mr Geminder phoned him at 5.27 pm and asked him whether he had heard anything and he replied that he had not. Mr Thompson told Mr Geminder: ‘It’s up to you. You have got to fix it’. Mr Geminder replied: ‘Yes, that’s in hand. We are talking to Woolrich’. Mr Thompson described the conversation as very pleasant, at least initially, but said that it became a little testy. He told Mr Geminder: ‘You have got to have it fixed before you move in, before Christmas, before you go away and before you move into the house’. Mr Geminder replied: ‘No, we don’t have to fix it before that time. We can still buy the mortgage from you or we can refinance it’. Mr Thompson maintained: ‘No, I really want it fixed before you go away’.[120] According to Mr Thompson, Mr Geminder then said: ‘We have got a lease. You have to let us in. We don’t have to fix it beforehand, we can fix it afterwards’. Mr Thompson then replied: ‘Oh, Ruffy, look, we can’t let you into the house until we have the NAB’s consent’. Mr Geminder then said: ‘But we have got a lease, you can’t do that’. Mr Thompson replied: ‘I don’t care. You will not be moving into the house beforehand’. Mr Geminder said: ‘Warren, I have given you the assurances that we are going to fix it’ and repeated: ‘I will buy the mortgage if necessary’. Mr Thompson then said: ‘That’s my preferred option’, to which Mr Geminder said: ‘We can refinance it’. Mr Thompson stated: ‘I would prefer you buy the mortgage’. Mr Geminder responded: ‘Trust me, I can fix it’. Mr Thompson said: ‘Okay, Ruffy. We have trusted you all along. It’s not really a matter of trust. It’s just that I wanted to see action. We trust you, that’s fine’. Mr Geminder then sought Mr Thompson’s confirmation that: ‘The house will be ready to move into on 13, 14 January?’ to which Mr Thompson replied: ‘Yes, I will tell Amanda again that everything is fine’.[121]
[120]CB 483.
[121]T 482-4.

Mrs Thompson said that Mr Thompson told her about this conversation and, on the basis of it, they agreed to vacate the property and search for a new home.[122]
[122]T 1016.

Mr Geminder did not recollect the phone conversation on 5 December.[123] He gave evidence that there had been no discussion in which Mr Thompson said that they would only let him move into the property on condition that he did certain things.[124] He was not challenged on that evidence. However, the telephone records established that he did speak to Mr Thompson that day.
[123]T 1773, 1822.
[124]Ibid.

Mr Geminder described Mr Thompson’s evidence of the conversation on 5 December as manufactured and submitted that it should be rejected. He relied on there being no documents to support it, nor any reference to it in Mr Perkins’ emails or communications at that time. In particular, Mr Champion’s email to Mr Perkins on 4 December 2012 suggested, without any qualification, that Mr Geminder could move into the property on 14 January 2013.[125] In addition, Mr Geminder relied on Mr Thompson giving different accounts as to the date of the conversation. Mrs Thompson’s statement of claim, which stood unamended for two years, pleaded that the conversation occurred one or two weeks prior to Christmas 2012. But, Mr Geminder travelled overseas on holiday on 16 December 2012, so that date range was unlikely. On 20 August 2015, during the trial, Mrs Thompson’s counsel stated that Mr Thompson would say that the telephone conversation occurred after the auction on 28 November 2012.[126] The telephone records showed only one substantial telephone call between Mr Thompson and Mr Geminder in December, that occurring on 5 December. [127] At this late point in the litigation, Mr Thompson for the first time contended that the call occurred on 5 December and Mrs Thompson’s pleadings were amended to allege that the conversation occurred on that date.
[125]CB 1026.7.
[126]T 2147.
[127]Ex B, 86.

I find that the plaintiff has not established the terms of any conversation between Mr Thompson and Mr Geminder on 5 December 2012 and therefore has not established that Mr Geminder made any representation in that alleged conversation. Mr Thompson was uncertain about when the conversation about which he gave evidence occurred. In addition, Mr Geminder’s denial of the key point of the alleged conversation, namely that there had been discussions in which Mr Thompson told him that he had to do certain things to obtain possession of the property, was not challenged in cross-examination.

Discussions with the NAB

By letter of 6 December 2012, the NAB’s solicitors told Mr Champion that it was not prepared to accept the 29 November or 3 December proposals and that they were instructed to proceed with recovery action and sell the property as mortgagee in possession. Mr Thompson did not inform Mr Geminder of this communication, despite the fact that on the plaintiff’s case, Mr Geminder was to ‘fix’ everything with the NAB.[128]
[128]CB 1028.0.2.

On the same day, Mr Perkins emailed Mr Geminder suggesting that the NAB be informed that a two year lease had been signed.[129]
[129]CB 1028.1.

On 7 December, Mr Champion emailed Mr Thompson stating:

I spoke this afternoon to the lawyer at Thomsons.
She said she had nothing in mind, and nothing to propose, in relation to an alternative proposition except that the bank would not oppose a sale of the property. I think that is accurate.
Is it worth Raf trying another telephone call to the National Head of Credit?[130]

Thomsons Lawyers were the NAB’s lawyers.

[130]CB 1028.1.2.

Mr Perkins gave evidence that on the same day, he told Mr Woolrich of the NAB of the existence of the lease, that the Geminders were to move into the property on 14 January and were willing to sit down with the NAB to ensure that there was no uncertainty over their tenure. He reminded Mr Woolrich of Mr Geminder’s offer to prepay the rent.[131]
[131]CB 1028.2.

On 11 December 2012, Mr Thompson emailed Mr Perkins, suggesting that it may be a ‘good idea for you or Ruffy to speak with your contacts at the NAB as things are not moving quickly’.[132] Mr Thompson then provided Mr Perkins with the name of the person handling their file, Patrick Xiong, and Mr Perkins replied by saying: ‘We will get in touch with Michael Woolrich to ensure that the dots are being joined at their end’.[133]
[132]CB 1028.3.
[133]CB 1046.

That evening, Mr Perkins spoke with Mr Woolrich and forwarded him a copy of the lease. He said that Mr Woolrich told him that Mr Geminder could become the mortgagee of the property, and could potentially make an offer to purchase the property if he was concerned about the security of his tenancy. He also said that it was not inconceivable that Mr Geminder could buy the debt and have it assigned to him.[134] Mr Perkins was later informed that the NAB would not entertain that latter proposal.[135]
[134]CB 1029-30.
[135]T 1561-2; CB 1048.

Mr Perkins knew at this point that the NAB had not agreed to refinance the Thompsons’ facility and that he feared that it might foreclose on the property.[136]
[136]T 1700.

Also on 11 December, the Geminders’ house manager, Ms van Denderen, attended the property and met with the Thompsons to discuss some alterations to it that the Geminders had requested.[137]
[137]CB 1051-2.

On 12 December 2012, Mr Perkins emailed Mr Thompson stating:

Warren – we did speak to Michael Woolrich yesterday afternoon, our NAB institutional banker. He confirmed that he has had a number of conversations directly with Patrick Xiong – both last week and also three weeks ago after Ruffy first spoke with him. We have also sent a copy of the lease to Michael to ensure that there is no uncertainty about the Geminders tenure at the property. We have left an open invitation with NAB to discuss the tenancy, in particular if they would like the rent pre-paid. I will let you know if we hear anything more at our end and would appreciate if you would let us know of any significant developments.[138]

[138]CB 1054.

On or about 13 December 2012, Mrs Geminder and two of her daughters visited the property. Mr Thompson gave evidence that Mrs Geminder told him that, the day before, at a Pact Group Christmas party for senior staff, she had arranged to sit next to Mr Woolrich so that she could discuss the situation with him. She had asked him how things were going, meaning their leasing the property, he had replied: ‘Don’t worry about it. That’s all fine’.[139]
[139]T 488.

On 16 December 2012, the Geminders travelled overseas on holiday. Mr Thompson and Mr Geminder did not have a conversation again until 31 January 2013.

On 17 December 2012, Mr Geminder wrote to the Thompsons about the alterations that he wanted to make to the property. He informed them that upon the expiration of the lease, all the alterations would be made good and returned to their original state, subject to any directions to leave them.[140]
[140]CB 1051.

On 17 December 2012, Mr Thompson emailed Mr Champion stating:

Can we please follow up the NAB regarding the refinance of the loan on the above property?
I have been advised by the [Geminders] that senior bankers in the NAB have advised them that this matter is ‘all going to happen’. The NAB has a copy of the lease agreement between Amanda and Raphael Geminder (provided to the NAB by the [Geminders]). Raphael has confirmed to the NAB that they will pay the rent ‘up front’ in order that interest on the loan is prepaid.
As this is obviously the best outcome for all parties we would like it to be resolved before Christmas.[141]

[141]CB 1050.1.

It is noteworthy that the email did not refer to Mr Geminder buying the mortgage from the NAB, refinancing Mrs Thompson’s mortgage with Westpac, or taking any other steps to ‘fix’ the Thompsons’ financial problems with the NAB.

On 17 December 2012, Mr Woolrich advised Mr Perkins by email that the NAB did not consent to any lease of the property and could not discuss or disclose further information ‘for privacy reasons’. He stated that if Mr Geminder was willing to purchase the property, he could discuss that directly with the Thompsons.[142] Mr Perkins gave evidence that this was the first time that he and Mr Geminder were informed that the NAB did not consent to the lease.[143]
[142]CB 1048.
[143]T 1562.

On 18 December 2012, Mr Perkins forwarded Mr Woolrich’s email to Mr Geminder and commented: ‘I think the reference to buying the property may have arisen from the discussion on nab potentially selling the [debt] as its otherwise unsolicited’.[144]
[144]CB 1052.1.

Mr Perkins spoke with Mr Thompson and then sent an email to Mr Geminder on 18 December stating that Mr Thompson had told him that ‘they were pushing NAB for resolution and had made them an offer. I asked for him to keep me in the loop.’[145] In evidence, Mr Thompson said that the ‘offer’ to which he was referring was the 29 November offer contained in Mr Champion’s letter.[146] The Geminders were unaware of this offer. Mr Thompson did not tell Mr Perkins or Mr Geminder that the offer had already been rejected by the NAB on 6 December.[147]
[145]CB 1052.1.
[146]T 838.
[147]T 834.

On 18 December 2012, Mr Perkins emailed Mr Thompson requesting that he update Mr Perkins over the break ‘if there is any significant updates in your dealings with NAB’.[148]
[148]CB 1053.

Mr Perkins arranged for the first month’s rent for the property to be paid before the vacation break.[149]
[149]CB 1055.3.

The Heffernans

Shortly before Christmas, the Thompsons received an offer to purchase the property for what Mrs Thompson said was ‘an exceptionally good price’ from Mr David Heffernan and Mrs Sharon Heffernan, who lived in Dubai. However, the offer gave only gave them until Christmas Eve to vacate the property.[150] The Thompsons rejected the offer, in part because it gave them too short a time in which to vacate the property. Soon after, the Heffernans offered to extend the settlement date by two weeks.[151] Mrs Thompson said they did not pursue the offer because they had promised Mr Geminder they would not sell and if they did receive an offer in writing of a very good price, the NAB might force them to sell. [152]
[150]T 864, 1022.
[151]T 865, 1022.
[152]T 1022.

On 4 January 2013, Mr Thompson telephoned Mr Tim Derham of Abercromby’s. It was put to Mr Thompson that this was one of a number of contacts that Mr Thompson and Mr Derham had about the Heffernans’ offer. Mr Thompson denied that and said that he was seeking the return of a video about his home that he had previously provided to Abercromby’s in connection with the auction. Mr Derham did not give evidence and there is no basis for rejecting Mr Thompson’s evidence on this point.[153]
[153]T 881.

On or about 9 January 2013, the Heffernans completed and signed by way of offer a contract of sale of the property for $7.65 million.[154] There is no evidence that this offer was sent to the Thompsons.[155]
[154]CB 1055.5.
[155]T 491, 863-8 ,1367-8.

Mr Thompson’s further dealings with the NAB

On 10 January 2013, Mr Champion spoke with Ms Michelle Lykiardopoulos, a solicitor at Thomsons Lawyers, who were acting for the NAB, who told him that the NAB did not consent to the lease, did not propose to withhold legal proceedings and did not agree to charge interest at normal commercial rates as opposed to the default rate. Mr Champion emailed an account of this conversation to Mr Thompson.[156]
[156]CB 1056.6A.2 and 1056.10.2.

On 10 January 2013, Mr Perkins spoke to Mr Thompson, who told him that the NAB had asked him for a copy of the lease, that the Dubai bidder was still bothering them and that they were moving into a rental property in Malvern. Mr Perkins asked him to keep him abreast of any developments with the potential sale by the NAB and Mr Thompson asked him to do the same. Mr Perkins’ email to Mr Geminder included the following recollections of his conversation with Mr Thompson:

Warren called me back this morning. He said that:
1. the bank had asked them for a copy of the lease and they responded by saying that NAB already has a copy from us, and that there has been no changes to the copy provided;
2. that the Dubai bidder is still ‘bothering’ them. Apparently they were here for Christmas and on Thursday the 20^th, made an offer subject to settlement on the 24^th of December, which they refused. They then made another offer and gave them 7 days to move out to settle. He said that they again refused and that the value wasn’t enough. He also said that they had looked at every house in Toorak while they were here but have gone back now.

The Thompsons had spent about six years and about $6m in planning and implementing the renovation of the property. They installed the chandeliers, curtains and rugs to improve their home. Mrs Thompson gave evidence that she had planned to live in the home forever and said:
It’s the loss of everything to do with the property. I wanted to keep the whole property. If I had to leave I would have taken every part of it that I possibly could. The curtains and the handwoven rugs and the chandeliers were very sentimental to me. They would be a remnant of the home that I could take with me.[493]
However, Mr Thompson was less committed to keeping the home than Mrs Thompson.
[493]T 975-6, 1185.
Where a chandelier is installed in a home and can be detached without damaging either the fabric of the ceiling or the chandelier itself, it is likely to be a chattel. In those circumstances:
there is no affixation of the chandelier to the house; and it is not in any sense part of the structure. Rather, the chandelier retained its intrinsic property as an essentially decorative chattel.[494]
[494]Park v Lasrado [2005] QSC 211; see also, The State of Victoria v Tymbrook Pty Ltd [2008] VCAT 965.
While these chandeliers were elaborate and expensive, I consider that the same proposition applies and that they are chattels.
However, different considerations apply to the carpets and curtains, even though they may be expensive. They were designed for the house and, in the case of the carpets, were obviously to be walked on by persons living in, or visiting the house.
Some guidance can be gained from the observations of Tadgell J in a case concerning a similar issue, although involving carpets that were considerably less expensive than the carpets considered in this case. They were attached to the floor by ‘the usual means’, being strips of wood along each wall to which nails secured the edges of the carpets to the floors. His Honour addressed the issue in terms which are generally applicable, despite the cost of a particular carpet:
I suppose most carpets which are fixed to a floor of a building are more or less easily removable. Prima facie, I should have thought carpets in a domestic dwelling are put there for the enjoyment of the dwelling, not for the enjoyment of the carpets as such. According to the test to which Adam J referred – it is, I think, a well-known one – the onus lies upon those who seek to disprove that the carpets fixed in a conventional way to the floor of a suburban dwelling are not fixtures.[495]
[495]Westpac Banking Corporation v Rabaiov (1991) V ConvR 54-412.
Similarly, the curtains and pelmets were installed for the ‘enjoyment of the dwelling’ and are to be regarded as fixtures. The pelmets were attached by brackets to the wall. Like the carpets, the curtains were designed specifically for the house and intended to form part of it and assist in ‘the enjoyment of the dwelling’. I consider that they are properly classified as fixtures.
Ownership
The causes of action relied on by Mrs Thompson, in conversion and detinue, each require that she establish either that she had possession of the chattels or an immediate right to their possession.[496]
[496]See Balkin and Davis, Law of Torts (LexisNexis Butterworths, 5^th ed, 2013), 61, 94, 101.
Her claim in trespass requires her to establish that she was in possession of the goods, as ‘[t]respass is a wrong to possession’[497]. But, Mrs Thompson was not in possession, so the claim of trespass to goods cannot succeed. Mrs Thompson leased the property to Mr Geminder, who was entitled to use the items under the lease. The NAB’s notice of redirection of rent would appear to involve an adoption of the lease, although the NAB had not formally consented to it.[498]
[497]Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, 224 (Dixon J).
[498]See clause 5.1 (c)(ii) of the Memorandum of Common Provisions; cf Section 77(4) of the Transfer of Land Act 1958 and Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd (1999) 196 CLR 245.
Once the NAB had repossessed the property by serving the notice of redirection of rent, the Geminders paid rent to the NAB and were in possession of any chattels holding them as bailee in possession for the true owner or owners or otherwise for Mrs Thompson who had an immediate right to possession of them.
The Heffernans did not become the owner of the property until November 2013, whereupon they became the owners of any fixtures. Mr Geminder gave evidence that the existing lease that he entered into with Mrs Thompson remained on foot, but that it was subsequently varied to extend the time for occupancy until January 2017.[499] The variation deed or agreement was not in evidence. Although it was not developed in argument, the original lease of 19 November 2012 presumably ended once the Heffernans purchased the property in November 2013 and a new lease by the Heffernans would be taken to have commenced.
[499]T 1872.
Because of my findings that the carpets and curtains were fixtures, I need only consider the question of the ownership or immediate right to possession of the chandeliers. There was discrete evidence that related to that question.
The ballroom chandeliers were purchased from an Armadale antique shop 20 years ago and were installed in the Thompsons’ then home at Kooyong prior to their move to the Toorak Road property.[500] The chandeliers installed in the basement were also purchased some years previously and the Thompsons had also used them in their Kooyong home.[501]
[500]T 529-30.
[501]T 531.
Mr Thompson said that the two ballroom chandeliers were purchased by the AEA Thompson Family Trust No 3 of which he and his sister, Mrs Malone, were trustees. The plaintiff’s third amended statement of claim alleged that the chattels were ‘her chattels’ meaning Mrs Thompson’s chattels and that ‘at all material times she had an immediate right to possession of the chattels upon demand’. She submitted that in so far as they were purchased by the trustees of the AEA Thompson Family Trust No 3, they had allowed her to keep them in her possession.
The AEA Thompson Family Trust No 3, was established by Mr Thompson’s father in about 1990, in order to purchase pieces of art both for investment and to be used by the family.[502] Mrs Thompson believed that the chandeliers belonged to her through the trust.[503] The trustees of the family trust, being Mr Thompson and Mrs Malone, were not joined in the proceeding and made no claim to the items.
[502]T 532.
[503]T 1187.
Mr Thompson gave evidence that he and Mrs Thompson purchased the other chandeliers but that she owned them.[504] There was no document evidencing their purchase. Mrs Thompson’s evidence was in some respects contradictory, including that the claimed chattels were owned by the ‘AEA Family Trust’, but also including statements that she did not know who owned them. Her evidence really was that she believed that the items said to be chattels belonged to her.[505]
[504]T 899-901
[505]T 1182.
Submissions on ownership of the chattels
Mrs Thompson submitted that despite some uncertainty, in the end the trust referred to in relation to the items was the AEA Thompson Family Trust No 3. She also submitted that whether she owned the items in her own right or jointly, or as bailee for a trust, she had the right to immediate possession of them because none of the defendants had a better right to them than she had.
Mr Geminder submitted that the Court could not be satisfied that Mrs Thompson was the owner or bailee of the items in dispute and the rightful claimant in tort. Her evidence was unsatisfactory and equivocal and she was uncertain who owned the chattels. In correspondence before trial, her solicitors had asserted that the items were owned by ‘the AEA Thompson Trust’ or the ‘AEA Thompson Family Trust’. In her outline of opening submissions, she contended that the owner of the chattels was ‘the AEA Thompson Family Trust No 3’ and that she was a ‘bailee with an immediate right to possession’. She could not produce the trust deed of any such trust or documents evidencing the purchase of the items. In oral evidence, Mr Thompson said that the AEA Thompson Family Trust No 3 owned only two of the chandeliers and that the remaining chattels were owned by Mrs Thompson despite having been purchased both by him or Mrs Thompson[506] or by both of them.[507] Mrs Thompson gave evidence that she did not know which family trust owned the items but told the Court: ‘I believe they are mine’.[508] By solicitors’ letter of 23 July 2013, Mr Thompson’s trustees in bankruptcy asserted ‘an interest as co-owner in equal shares to the chattels located at the property claimed to be owned by the Thompsons’.[509]
[506]T 532.
[507]T 899-901.
[508]T 1182.
[509]CB 1405.5.
Analysis of submissions about ownership
To succeed in actions in conversion or detinue, Mrs Thompson must establish that she was either in actual possession or had an immediate right to possession of the chandeliers.[510]
[510]Penfold Wines Pty Ltd v Elliott (1946) 74 CLR 204, 226, 229 (Dixon J).
The evidence of ownership of the chattels was contradictory and lacked coherence. But it is clear that Mr and Mrs Thompson had used the disputed items at the Toorak property since its renovation. The evidence suggested that the Thompsons had purchased all the chandeliers, but that they purchased the ballroom chandeliers previously installed at the Thompsons’ Kooyong home for a family trust of which Mr Thompson and Mrs Malone were trustees. The evidence, although lacking in precision, suggests that that family trust was the AEA Thompson Family Trust No 3. However, if that trust owned the two chandeliers, the Thompsons had been permitted to use them for many years and the law would regard them as at least bailees by implication, even in the absence of a written bailment agreement. The Thompsons, therefore, had a right to their immediate possession over any third party. Possession is significant as it is title as against a wrongdoer.[511]
[511]See, Norman Palmer, On Bailment (Sweet & Maxwell, 3^rd ed, 2009) 321.
The Thompsons’ right to immediate possession of the chattels did not end when the NAB repossessed the property. Whether as an owner or bailee, Mrs Thompson had an immediate right to possession of the chandeliers. She and Mr Thompson were registered proprietors of the property. They had had possession of, and used, the chandeliers in the property. If they were chattels, they were either owners of them or, in the case of the two ballroom chandeliers, were bailees of them. If those ballroom chandeliers were owned by the trust, then the trustees allowed Mr and Mrs Thompson to have possession of them. The only evidence before the Court was that the trustees were Mr Thompson and Mrs Malone.
Any person who is willingly in possession of goods that belong to another can be considered a bailee. Consent to his or her possession can be implied and a bailment can arise by implication.[512]
[512]Ibid 184-5.
Mr Thompson, in either the capacity of a trustee or as a joint owner, asserted no interest in the chandeliers. Nor did Mrs Malone, who Mr Thompson said was the other trustee of the family trust.
The trustees in bankruptcy, at one point, did assert an interest in the chattels, but did not apply to be joined as a party. Because I have found the chandeliers to be chattels, the Heffernans have no lawful interest in them.
A person who has an immediate right to possession has a cause of action in conversion or detinue. One of the joint bailees can bring such an action. They can seek damages or an order for their delivery up. The authors of Clerk & Lindsell On Torts state that a person with a concurrent interest in goods may recover proportionately according to his or her interest. The authors note that at common law the defendant could plead in abatement that the other co-owners ought to have been joined in the action, but that is not so today, since an action no longer falls to be defeated for want of parties.[513] That position is contained in Rule 9.05 of the Supreme Court (General Civil Procedure) Rules 2015 which provides that:
A proceeding shall not be defeated by reason of the misjoinder or non-joinder of any party or person, and the Court may determine all questions in the proceeding so far as they affect the rights and interests of the parties.
[513]See, Michael A Jones et al (eds), Clerk & Lindsell On Torts (Sweet & Maxwell, 20^th ed, 2010) 1135 (‘Clerk & Lindsell’).
The Court cannot usually affect the interest of a person who is not a party. But the rights of other persons who may be interested in the chattels should be taken into account, and those persons should be notified before the Court makes final orders for delivery up of the goods. I will return to that issue.
Chronology of claims to the chattels
The parties and other relevant persons engaged in extensive correspondence about the Thompsons’ right to remove the items that they claimed. To determine whether the plaintiff has established her claims in conversion or detinue, it is necessary to describe that correspondence.
On 12 July 2013, Mr Thompson sent a text message to Mr Geminder stating that a truck had been organised to ‘pick up our furniture and items in the vault’.[514]
[514]CB 1389.8.
On 15 July 2013, Ms J Cameron and Ms F Cull of King & Wood Mallesons, on behalf of the Geminders, wrote to Mr Champion stating that the NAB had no objection to Mr Thompson collecting items from the property, which it understood included furniture, appliances and artwork. These could be collected but on the condition that Mr Thompson’s trustees in bankruptcy also consented in writing.[515]
[515]CB 1392.
On 16 July 2013, King & Wood Mallesons wrote two letters to Mr Champion stating that, as they had not had a response to their letter of the previous day, the items would not be available for collection on 17 July and not until they had received written confirmation from the trustees in bankruptcy that they had no objection to the Thompsons collecting the items.[516]
[516]CB 1393.1, 1394.
On 17 July 2013, Mr Champion wrote to King & Wood Mallesons stating that its correspondence proceeded upon a fundamental misunderstanding and that the items which Mrs Thompson wished to collect were not owned by the Thompsons, but were assets of the AEA Thompson Trust which was established more than 20 years ago, and were until recently held by Mrs Thompson as bailee. Mr Champion stated that by arrangement between Mrs Thompson and Mrs Geminder, until recently, Mrs Thompson had allowed Mr and Mrs Geminder to use those items at their will.[517] The letter asserted that neither the NAB nor Mr Thompson’s trustees in bankruptcy had any claims to them and demanded that Mrs Thompson be allowed to collect items from the property. It stated that unless Mr Champion received confirmation by 4pm on 18 July 2013 that the Geminders would not prevent Mrs Thompson collecting the items, she would ‘reluctantly assume that your clients are refusing to deliver up possession’ to her.
[517]CB 1397.
On 18 July 2013, King & Wood Mallesons wrote to Mr Champion attaching a list of items that the Thompsons had left at the property that were available for collection. The list did not include the items now in dispute.[518]
[518]CB 1399.
On 23 July 2013, Piper Alderman, lawyers for Mr Thompson’s trustees in bankruptcy, wrote to Mr Champion stating that, absent any evidence to the contrary, the trustees asserted an interest as co-owners in equal shares in the chattels located at the property claimed to be owned by the Thompsons. They required that a representative of their client be in attendance at the time of the removal of the chattels so that they could be properly identified and catalogued. They also requested that the Thompsons provide an undertaking to preserve any such chattels removed and that they be stored at a secure site pending resolution of the claims to them.[519]
[519]CB 1405.5.
On 24 July 2013, Mrs Thompson hired a truck to collect items from the property but had to cancel her plans when Ms van Denderen informed her that she could not provide the ‘go ahead’ for their collection.[520]
[520]T 1034.
On 25 July 2013, Mr Champion replied to Piper Alderman’s letter.[521] By letter of 30 July 2013 to King & Wood Mallesons, Mr Thompson’s trustees in bankruptcy gave an undertaking that they would not take any action against any member, employee, agent or representative of the Geminder family if items included in a schedule to the letter were delivered into the custody or at the direction of the Thompsons.[522] The list of items included three sets of curtains and pelmets, but not carpets or chandeliers.
[521]CB 1405.6.
[522]CB 1411.
On 31 July 2013, King & Wood Mallesons wrote to Mr Champion attaching a list of items that were available for collection. The list included, under the heading ‘vault room or off site’, three sets of curtains and pelmets.[523]
[523]CB 1413.
On the same day, Mr Champion wrote to Thomsons Lawyers listing assets which the NAB was not in possession of, and ‘is therefore not in a position to sell’. The assets referred to included chandeliers, drapes and handwoven carpet squares.[524] Mr Champion emailed a copy of the letter to the Heffernans’ solicitors.
[524]CB 1414.2.
On 31 July 2013, Ms Best, the solicitor for the Heffernans, emailed Thomsons Lawyers stating that she had spoken to Mr Heffernan regarding the letter and that:
I would assume that the current owners would have been given the right to enter the premises to take any goods prior to the auction.
He has asked me to point out that he would expect all fixtures to be included in the sale, and that includes all built in appliances, carpets, drapes and chandeliers. He acknowledges that the Thompsons are entitled to remove furniture and garden pots, and at the expiration of the Lease the current tenants are also entitled to remove whatever goods they have installed.
Can you please request a detailed list from Champions Lawyers of exactly what items the current owners are referring to and the value of same.
At the auction it was mentioned that the current owners may want to remove the chandeliers. The purchasers may agree to this depending on what other items, and the value of same, the current owners are also now claiming.[525]
[525]CB 1415.
On 6 August 2013, Mrs Thompson emailed Ms van Denderen informing her that removalists would come to the property the following day to collect items and that she would attend to supervise. Ms van Denderen replied that Mrs Thompson was not able to attend.[526] Mrs Thompson said that she was very upset because ‘we were being denied our things’.[527] She described the effect on her of not receiving back the curtains, chandeliers and carpets as being very humiliating and upsetting.[528] She said that those items were very sentimental to her.[529]
[526]CB 1417-8.
[527]T 1035.
[528]T 1040.
[529]T 1185.
On 7 August 2013, the Thompsons’ representatives collected some items from the property, but not the chandeliers, carpets and curtains.[530]
[530]T 1186.
On 8 August 2013, Thomsons Lawyers wrote to Mr Champion stating that of the items on his list, they considered that the furniture, chandeliers, drapes and garden pots were chattels and that the appliances and handwoven carpet squares were fixtures.[531] They requested a statement of the basis upon which Mrs Thompson contended that the appliances and hand woven carpet squares were chattels.[532]
[531]CB 1428.
[532]Ibid.
On 13 August 2013, Thomsons Lawyers wrote to Mr Champion stating that upon any mortgagee sale, the NAB would sell the land including all improvements. They asserted that the NAB’s mortgage applied to all fixtures, whether attached before or after the date of the mortgage, and that any fixtures and fittings would pass to the purchaser upon a sale. They further stated that the furniture, chandeliers, drapes and garden pots were chattels and that the appliances and hand woven carpet squares were fixtures.[533] Thomsons Lawyers also stated that it would be necessary for Mrs Thompson to satisfy Mr Thompson’s trustees in bankruptcy that any chattels did not vest in the bankrupt estate, and that they required written confirmation from the trustees in regard to that issue.[534]
[533]CB 1421.
[534]CB 1430.

On the same day, Mr Champion replied to Thomsons Lawyers’ letter disputing that the appliances or carpet squares were fixtures or that it was necessary for Mrs Thompson to satisfy the trustees in bankruptcy of her ownership. The letter stated:
We do not understand the basis for your assertion that the carpet squares are fixtures. They are items of art, and not in the nature of fixtures. They are not fixed to the floor by conventional means (c/f Westpac v Rabaiov SCV 17 June 1991). They are more in the nature of rugs which are easily moveable and rely on their own weight to remain in possession [...]
The chattels were in the possession of our client prior to the [lease] to Mr Geminder, and your client has no right to interfere with our client’s right to possession […] including imposing conditions upon their return…[535]
[535]CB 1431.
Mrs Thompson listed the items which she wished to obtain from the property in an email to Ms van Denderen of 23 August 2013. The list included chandeliers, carpets and curtains.[536] Many of the items on that list have since been returned, the only remaining items in dispute are the eight chandeliers, the carpets and the curtains.
[536]CB 1425-1426.
Ms van Denderen replied to Mrs Thompson that she was not in a position to respond to her requests and that any requests must be communicated through the lawyers.[537]
[537]CB 1427.1.
On 23 August 2013, Mr Champion wrote to King & Wood Mallesons stating that their client had no right to retain ‘possession of those chattels’ and asking for advice as a ‘matter of urgency whether your client resists our client collecting the chattels on 28 August 2013’.[538]
[538]CB 1427.
That day, King & Wood Mallesons wrote to Thomsons Lawyers stating that most of the items that the Thompsons had requested to be returned were fixtures ‘(for example, the carpets, curtains, lighting, dishwasher and ovens)’ and that it would be unreasonable for these items to be removed while Mr Geminder and his family resided at the property. They attached a list of the items that they understood that the Thompsons had requested be returned. They asked to be informed of how Thomsons Lawyers intended to respond to the Thompsons’ request to remove items from the property.[539]
[539]CB 1434.
On 19 September 2013, Thomsons Lawyers wrote to Mr Champion attaching a list of items that they considered were chattels or fixtures.[540] The list attached to the letter stated that the chandeliers, carpet squares, appliances and drapes were fixtures and that as such they would pass to the purchaser of the property. They also stated that the chattels should remain in the property until the expiration of the lease and noted that the mortgagors entered into the lease with Mr Geminder with the chattels in the property. The letter also stated that:
Should your client and Mr Thompson wish to remove the chattels before the lease expires, the onus is on Mr Thompson to obtain the consent of the bankruptcy trustees and make separate arrangements with the tenant.
[540]CB 1442.
On 21 February 2014, King & Wood Mallesons wrote to Mr Champion, copying the Heffernans’ and the trustees in bankruptcy’s solicitors, attaching a list which identified the items that the NAB considered to be fixtures or chattels. The letter stated that the items determined by the NAB to be chattels could be collected provided the written consent of Mr Thompson’s trustees in bankruptcy was obtained, as well as the written confirmation of the owners of the property stating that they considered the items to be chattels and had no objection to them being collected. The items identified as chattels did not include the chandeliers, curtains or carpets. The letter concluded:
If you contend that the consent of the trustee is not required please inform us of the basis for that contention.
In relation to the items previously determined by the nab to be fixtures, you will need to liaise with the new owner of the Property as to whether they may be removed by your client.^[541]
There is no evidence that the Thompsons or Mr Champion replied to this letter.
[541]CB 1446.
On 23 July 2015, a month before the commencement of the trial, King & Wood Mallesons wrote to all parties, including Mr Thompson’s trustees in bankruptcy and the Heffernans’ solicitor, regarding the remaining items at the property and the chandeliers, curtains and rugs.[542] The letter stated that as the solicitors had not received a reply to the letter of 21 February 2014 in the ensuing 17 months, they did not know whether Mr Thompson’s trustees in bankruptcy had any views on the classification of items contained in the list of items, or whether they asserted that Mr Thompson had any interest in the items at all. Neither Mr Heffernan nor the NAB disputed the classification of items contained in the list as either fixtures or chattels. The letter stated that unless King & Wood Mallesons heard from any addressee of the letter by 29 July 2015, they would proceed on the basis that the addressees accepted the classification contained in the NAB List. The letter stated that Mr Geminder, as the tenant of the property, had no substantive interest in who was the ultimate legal owner of the chattels or fixtures, but that he had ‘found himself in the middle of something of a standoff between the potentially interested parties’ and that his position remained:
[542]CB 1464.
that he makes no claim to possession or ownership of the items in question and that the items should be made available to those who are entitled to possession or ownership of them.

and

It seems to us that the question of ownership of fixtures is a matter between Mr Heffernan, Mrs Thompson (and, potentially, Mr Thompson’s trustees in bankruptcy). It does not concern Mr Geminder in any substantive sense.[543]

The letter contained details of an arrangement for the collection of items identified as chattels.
[543]CB 1466.

On 7 August 2015, the remaining items claimed by the Thompsons at the property, except for the chandeliers, curtains and carpets, were returned to Mrs Thompson.[544]
[544]Plaintiff’s final written submissions, [364].
On 11 and 13 August 2015, Mrs Thompson’s solicitor and the Geminders’ solicitor exchanged correspondence about her claim to ownership of the chattels.[545]
[545]CB 1502.1, 1508.1.
Was there a conversion or detinue of the chandeliers by Mr Geminder?
To commit the tort of conversion or detinue, a person must act inconsistently with the another person’s right of possession. As Dixon J stated:
The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel.
…
An intent to do that which would deprive “the true owner” of his immediate right to possession or impair it may be said to form the essential ground of the tort.[546]
[546]Penfold Wines Pty Ltd v Elliott (1946) 74 CLR 204, 229.
Mrs Thompson submitted that the tort of conversion occurred at the time that Mr Geminder told Mr Thompson on 11 July 2013 that he was not going to honour their deal. She was then entitled to immediate possession of the chattels and had then arranged a truck to collect them.
Mr Geminder’s case was that he did not wrongfully refuse to return the chattels and there was no clear and unqualified refusal. He pointed to the fact that the ‘alleged chattels’ were located in a property previously owned and occupied by the Thompsons. Mr Thompson’s trustees in bankruptcy had claimed an interest in the items and the NAB, which as mortgagee in possession owned the fixtures, had disputed the classification of those items. But Mrs Thompson’s lawyers had not responded to their communications. Nor had they responded to the letter from King & Wood Mallesons of 21 February 2014. There was continuing uncertainty about who owned the items if they were chattels. The Thompsons themselves had difficulty in identifying the true owner of the chattels.
The Geminders were analogous to stakeholders and would have returned the disputed items to someone with a good basis for claiming them. Mr Geminder gave evidence that he was not involved in decisions about how items were collected or who attended to their collection and did not give any instructions to his lawyers in relation to them.[547]
[547]T 1874-5.
The remedy of ordering delivery up of chattels is only available to a person suing in detinue, following the refusal of an explicit request for the chattels to be returned.[548]
[548]Clayton v Le Roy [1911] 2 KB 1031, 1050; Bristol Airport Plc v Powdrill (No2) [1990] Ch 774, 769 and Tavoulareas v Lau [2007] EWCA Civ 474; and Norman Palmer, On Bailment (Sweet & Maxwell Thomson Reuters, 3^rd ed, 2009), 73-5 and 83.
Even assuming that Mrs Thompson’s request on 23 August 2013 is sufficient at law to form such a demand, Mr Geminder was entitled to demur from her request so as to ascertain any other claims to the items whether by the NAB, the Heffernans or Mr Thompson’s trustees in bankruptcy.
Analysis
The plaintiff has not established that Mr Geminder acted inconsistently with her immediate right to possession of the chandeliers or her title to, or property in, the chandeliers or engaged in the torts of conversion or detinue. Mr Geminder was a tenant. Although he did contend that he should be permitted to use the items during his tenancy, he withheld the chattels installed on leased property in circumstances where the NAB as mortgagee had taken possession of the property and while there was a genuine dispute about whether the items were chattels or fixtures. Both the NAB and the trustees in bankruptcy were asserting an interest in the chandeliers. The Heffernans had become the registered proprietors of the property in which the chandeliers were installed. The Thompsons did not reply to King & Wood Mallesons’ letter in February 2014, which proposed collection of items said to be chattels. I do not consider that the defences and submissions that Mr Geminder has made in these proceedings can amount to an assertion of title to the items bearing in mind the circumstances of his tenancy and the doubts about the ownership of the chandeliers and the different claims made to them.
The plaintiff’s claims in conversion or detinue not being established against Mr Geminder means that no issue of the award of damages arises against him. There was evidence of the value of the chattels, of $68,000 which I would have accepted if I was considering awarding damages.[549] I would not have awarded aggravated or exemplary damages, including for psychological stress, because there was uncertainty about the ownership of the items and whether they were chattels or fixtures.
[549]Ex F, Report of Warren Joel; and see also, Semenov v Pirvu [2011] VSC 605.
The claim for delivery up of chattels against the Heffernans
The Heffernans were joined as parties on their application on the first day of the trial. Mrs Thompson’s submissions in respect of the chattels were mainly directed at Mr Geminder. However, she also submitted that an order for the delivery up of the chattels should be made against the Heffernans.[550]
[550]T 2174.
The Heffernans’ submissions focused on whether the items were chattels or fixtures and I have discussed this issue previously.
Analysis of the claim against the Heffernans
The Heffernans asserted an interest in the chattels by their solicitors’ letter on 31 July 2013, although they were not the owners of the property at that time. In the third amended statement of claim served on the Heffernans, Mrs Thompson has made a demand for the return of the chattels to her. They filed a defence dated 18 August 2015, in which they pleaded that the curtains, carpets and chandeliers were fixtures, and contended in particulars contained in the defence that:
all chandeliers, all curtains, blinds and carpets are fixtures by reason of their degree of annexation and the fact that each was tailored to the specific requirements and layout of the house as determined by Mrs Thompson. Any chattels such as pots, stereo equipment and the like remain the property of Mrs Thompson.
Clause 7(b) of the contract for the sale of the property by the NAB, as mortgagee in possession, to them provided that:
The Purchaser acknowledges that the Vendor does not have the right under its Mortgage to sell any Goods on or in the Property and no Goods will pass with the sale of the Land.
The contract did not provide for the sale of any chattels.
But, no claim in conversion or detinue was pleaded against the Heffernans, rather an order for delivery up of the items in dispute was sought against them. No point was taken about that and the case against the Heffernans was argued on the basis that it turned on whether the items in dispute were chattels or fixtures. The remedy of delivery up of the chattels is available as a remedy in detinue. The chandeliers, because of their special character and value, are the kind of chattels of which the Court will order delivery up, rather than awarding damages.[551]
[551]Clerk & Lindsell, above n 513, 1158-9.
It appeared that the parties assumed that an order for delivery up of the chandeliers would follow if they were found to be chattels. The Heffernans have allowed the Geminders to use the chandeliers since they became owners of the property in November 2013, under the lease of the property to Mr Geminder. Mrs Thompson demanded the return of the chandeliers at least from the service of the third amended statement of claim. A refusal to surrender goods upon lawful and reasonable demand can be a conversion and detinue of the chattels.[552] However, because of the absence of a claim in the pleadings against the Heffernans in conversion and detinue, I should find no more at this point than that the chandeliers are chattels.
[552]Pratten v Pratten [2005] QCA 213, [60]-[61].
I will discuss with the parties the findings that I have made in the claim against the Heffernans before deciding what order I should make affecting them.
Conclusion on the claims in tort
The plaintiff’s claims in tort do not succeed in respect of the curtains and carpets or carpet squares. However, I find that the chandeliers were chattels.
The trustees in bankruptcy
I have not determined in this proceeding any claim that Mr Thompson’s trustees in bankruptcy may have to the chandeliers, nor have I determined whether Mr Thompson is able to bring any claim for them. Subject to any submissions of the parties, I propose before making orders for delivery up of the chandeliers to give notice to the trustees in bankruptcy of my decision and provide them with an opportunity to make submissions about such an order, if they be so advised.
Conclusion
The plaintiff’s proceeding against the second and third defendants will be dismissed. The plaintiff’s claims against the fourth and fifth defendants in respect of the curtains and carpets or carpet squares do not succeed.
I will hear the parties and, if they choose to make submissions, Mr Thompson’s trustees in bankruptcy, about the appropriate orders in respect of the plaintiff’s claim against the fourth and fifth defendants for orders for delivery up of the chandeliers.

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[2016] VSC 495

24 August 2016