Tobey v von Baibus

[2004] NSWSC 537

CITATION:	Tobey v von Baibus [2004] NSWSC 537
HEARING DATE(S):	21/06/2004
JUDGMENT DATE:	23 July 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:
CATCHWORDS:	Personal property. Ownership of various items of property of a deceased person and her husband in dispute. Orders made determining the ownership of the disputed items. No matter of principle.
PARTIES :	Patricial Carolyn Tobey v Andreas von Baibus
FILE NUMBER(S):	SC 4134 of 2003
COUNSEL:	G. Sundsrom for plaintiff L. Ellison for defendant
SOLICITORS:	Emery Partners for plaintiff Turnbull Hill Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 23 July 2004

4134 of 2003 Patricia Tobey v Andreas Von Baibus

1 MASTER: In these proceedings the plaintiff seeks orders for, inter alia, the delivery up to the plaintiff of various items of personality set out in a schedule to the Summons. The plaintiff did not proceed with the claims for damages for detention of goods or damages for conversion. A judge of the Court has ordered that a Master hear the whole of the proceedings.

Background circumstances

2 The plaintiff is the Executrix of the estate of the late Shirley Alice von Baibus who is the plaintiff’s mother. The defendant is the deceased’s second husband he having married the deceased in 1974. The plaintiff is the daughter of the deceased’s first marriage.

3 The plaintiff obtained probate of the will of the deceased such will being dated 12 April 2002. The deceased died on 19 July 2002. Under her will the deceased left the sum of $10,000.00 to the defendant and gave the balance of her estate in the events which have happened to the plaintiff. At the date of her death the deceased held bank accounts with the Commonwealth Bank in the order of $42,000.000 and she had a car valued at $8,000.00. She also had a joint bank account with the defendant with the Commonwealth Bank of Australia which had been opened in 1992 when the defendant retired.

4 As I have mentioned the deceased and the defendant were married in 1974 and they lived together for a short time prior to their marriage. In 1971 the deceased acquired a unit which she paid off over a period of time. It was finally paid off in 1986. When the deceased and the defendant commenced to live together they lived in the property which was owned by the defendant and they continued to live there until the death of the deceased. The deceased’s unit which had been purchased a few years previously was rented and the rent was used to pay the mortgage and to meet outstanding utilities. It seems that the defendant may have met some of the taxation liabilities which resulted from the investment in the unit. It also seems clear that the monies from the rent of the unit were banked to the credit of two accounts in the name of the deceased they being accounts which only the deceased could operate.

5 Eventually the unit was sold in 2000 and presumably the cash left in the estate is the remaining money from the sale of that unit.

6 At the time of filing the summons the schedule which referred to the disputed items of personality which under the will would have gone to the plaintiff, numbered 41 items. There were negotiations between the parties and their advisors and a substantial number of items were given to the plaintiff. At the commencement of the hearing before me there were 8 items which remained in dispute. In opening the plaintiff conceded that she was not proceeding in respect of item 30 which was the salt and pepper grinders nor was she proceeding with item 22 which effectively at that stage was a sewing machine box. In final submissions item 13 being the contents of two brown wall units was conceded by the plaintiff as she had not been able to establish admissibility of certain evidence in relation to that claim.

7 This left the following list of items in dispute between the parties.

Item 18 Contents of blanket box normally stored in room outside bathroom/toilet including sheets, pillow slips and another items belonging to the Gledden family.

Item 27 camphor wood box and contents normally retained in sunroom of home.

Item 31 picture described as old homestead in Tuggerah, identified as grandma Campbell’s picture.

Item 33 3 wall paintings described as “wattle” by Anne Morton and 2 landscape scenes by Robert Edden.

Item 40 Jardinere.

8 I will deal with each of these items in turn.

Item 18 Contents of blanket box normally stored in room outside bathroom/toilet including sheets, pillow slips and another items belonging to the Gledden family

9 The only evidence given by the plaintiff is that which appears in her affidavit of 5 September 2003 where she refers to the item and says, “I saw these items in the possession of my mother prior to her meeting the defendant.” This evidence of the plaintiff means that she is referring to items which she identified at a point at least 32 years prior to the death of the deceased.

10 The defendant in his affidavit of 16 June 2004 said that the pink sheets belonging to grandma Tobey were given to the plaintiff as well as some of his wife’s clothes on 22 November 2003. In oral evidence the plaintiff said:

ELLISON: Q. You are seeking in this case the contents of a blanket box, correct?
A. There are two boxes in the question sir. There is a blanket box with my mother’s blankets in it and there is a camphor box with my mother’s clothes. I don’t know which box you are talking about.

Q. You heard me say blanket box. You can assume when I call it a blanket box I mean a blanket box and not a camphor wood box, do you understand that?
A. Yes I do.

Q. This is a blanket box you say your mother had before she lived with Mr Von Baibus?
A. No sir, I never said it was before she lived with Mr Von Baibus.

ELLISON: Q. You said in your affidavit of 5 September 2003 in relation to item 18, which was the contents of the blanket box, are you saying you saw the contents before she teamed up with Mr Von Baibus, but you didn’t see the blanket box until afterwards?
A. When my mother was ill she used to go to that box and she showed me what was in it, and told me what was in it. They were her things, and her mother’s things, and she got them out one day and showed me, and they were the contents of the blanket box.

Q. And that is stuff that from to time you saw over those 25 years, correct?
A. No, that is not correct. Not over 25 years.

Q. You only saw it at the time of your mother’s last illness in 2002?
A. Before her illness, she would sometimes show me what was in that box.

Q. And sometimes there were new things in that box and sometimes you saw things you had seen previously?
A. I only was looking at hers and her mother’s that she used to show me.


11 It is clear that the plaintiff has the onus of proof and there is no agreement having regard to the evidence as to what is really referred to in this general description. Before an order can be made it is for the plaintiff to establish precisely what items she wishes the Court to order to be delivered. Having regard to the evidence and the unsatisfactory state of the evidence as to the proper description of the items in question, I am not satisfied that the plaintiff has established any entitlement to these items.

Item 27 Camphor wood box and contents normally retained in sunroom of home

12 As is apparent the dispute here concerns the box and its contents. The plaintiff’s affidavit evidence on this aspect was as follows:-
“Camphor wood box was pointed out to me by my late mother as being hers. I was changing clothes about for my late mother when she was ill and the contents of the camphor wood box were all her personal clothes.”
13 In cross-examination the plaintiff said the following:-

Q. There was a camphorwood box, and do you seek the camphorwood box and the contents?
A. Yes.

Q. You seek both the box and what is in it?
A. Yes.

Q. When was the first time after your mother had married Mr Von Baibus that you saw inside that camphorwood box?
A. I saw the contents many times when I was with my mother, because she had her jumpers and things in it. Each season we would go through the box, take what she didn’t want to keep, and leave the others in there. Each season we put some things in and then changed them over.

Q. There were things over 25 years, some things were thrown out and other things acquired, and even some things that had been acquired were later thrown out. It was just lady’s clothing, whatever?
A. Yes.

Q. In addition to clothing, was there also linen?
A. Not in the camphorwood box.

Q. Did you ever see the box totally emptied out?
A. I emptied it out for my mother when I was with her.

Q. And on that occasion there was no linen?
A. No.
14 The evidence given by the defendant in his affidavit of 13 October 2003 was in these terms:
“In relation to items 27 I purchased the item from Grace Bros at Hunter Street in Newcastle for my wife and me. My wife saw the item and asked me to purchase it for us. I brought the item home and said, ’Here it is, this is for us.’ Some of the linen in the box was purchased by myself or by my wife. We both used the linen in the house.”

15 Given the more particular evidence of where it was purchased I will accept the defendant’s evidence on this aspect although as I recount later I did not find him a particularly satisfactory witness.

16 As far as the contents are concerned it became plain from cross-examination of the plaintiff that the box was used to contain various clothes which changed from time to time.

17 The defendant says that he had handed these back to the plaintiff.

18 In the absence of any particular identification of clearly identified clothes which are in dispute it is inappropriate to make any order in respect of the contents of the box.

Item 31 Picture described as old homestead in Tuggerah identified as grandma Campbell’s picture

19 The subject matter of this item is a print which depicts the home of the plaintiff’s grandparents. Apparently three prints were produced by the deceased’s cousin and she gave one to each of three daughters of the grandparents. The defendant’s affidavit evidence was that contained in his affidavit of 13 October 2003 in these terms:
“This was a gift given to my wife from her cousin. My wife came home and said to me ‘Have a look what I got. My cousin Lorraine has given me this. I think we should hang this in the sunroom above our chairs. What do you think?’ I said, ‘Okay, I think that would be good there.”
20 The defendant gave slightly different evidence in cross-examination. The effect of that evidence was as follows:


Q. Do you remember your wife coming home at some stage with a picture of the old homestead?
A. That’s right.

Q. Did she say anything to you about it?
A. She said, “Have a look what I got. It was given to us. I want to hang it there on the wall”. We always had it there.

Q. Then it was hung on the wall?
A. It was hung on the wall and has been there ever since then. It is still there.


21 Even on the defendant’s second version is it plain that the passing of title occurred in the transaction between the deceased and her cousin. Even if I were minded to accept the change of position in the evidence of the defendant, which I do not, I do not think that his statements in cross examination take the matter any further. He can give no evidence of the conversation between the deceased and her cousin and the first version in his affidavit is inherently more likely. The other matters which tend towards the likelihood of the property remaining in the deceased is that it was clearly a subject matter personal to the deceased rather than the defendant. In these circumstances I am satisfied that this item belonged to the deceased solely and, accordingly, it should be returned to the plaintiff.

Item 33 Three wall paintings described as “Wattle” by Anne Morton and two landscape scenes by Robert Edden

22 The evidence varies as to when these three paintings were acquired. Either the plaintiff or Mrs Bridge put the acquisition in the early 1990s while the defendant put them in the 1980s or early 1990s. They were three paintings which apparently the deceased purchased for a small amount of money and the dispute between the parties concerns the source of the funds for the purchase. The defendant contends that the funds came from a joint account and that therefore the paintings passed to him by survivorship on the death of the deceased.

23 In her affidavit of 28 October 2003 the plaintiff said:
“Item 33 – This should read one wall painting described as Wattle and one by Robert Edden and one by Merrin Cork…….she specifically indicated prior to her death to me and the discussion took place in the home of the defendant, the defendant was present, it was just prior to my late mother being admitted to hospital on the last occasion. My mother indicated the paintings referred to and said words to the effect. ‘These are for Trish but Trish has a copy of the Wattle one which you will give to Andrew’. The defendant’s response was ‘Sure babe’.”
24 The defendant’s version in his affidavit of 13 October 2003 was as follows:
“In relation to item 33, my wife saw them in a shop. I purchased a landscape painting first, then the “Wattle” and then another landscape painting. I looked at the Wattle painting in the shop with my wife and said ‘Okay I will buy that for the house’. In relation to the purchase of the other paintings, my wife told me that she saw them in the shop and that she would like them to have hanging in the house. I gave her the money to purchase the paintings.”
25 In cross-examination the defendant changed his story as follows:


Q. Is it fair to say that you don’t remember which shop or gallery these paintings were?
A. No, that is correct.

Q. You said, “I purchased a landscape painting first, then the wattle, then another landscape painting”?
A. That’s right, in that order.

Q. When you say, “I purchased”---
A. Well let’s talk about the wattle painting. Early in May. The wattle.

Q. You say the first painting you purchased was one of the landscapes?
A. Okay. The first painting I saw. My wife just brought them home because they were not much money, but still the money was out of the combined account.

Q. So you say that she just brought them home?
A. Absolutely, but they were bought out of the combined account. The wattle, she told me about it because that was a bigger amount of money and she said, “I am going to get the wattle”. “Okay, go and get it”. So she went and got the wattle, and it was paid out of the combined account. That’s my story.
26 With regard to what is alleged to be the agreement referred to by the plaintiff, the defendant in his affidavit of 16 June 2001 said the following in respect of that conversation:
“Item 33, I say that the conversation referred to by the plaintiff which she says took place among myself, my wife and the plaintiff, did not occur as deposed to by the plaintiff. During any discussions that my wife had to me in relation to the paintings, or in relation to her will or funeral arrangements, the plaintiff was not present. When we purchased the paintings, my wife said to me ‘When I’m gone, you have the paintings. Patricia is to get the car and $1,000.00 is to go to Hayden (Shirley’s sister’s son’s son – Shirley’s great nephew)’.”
27 The defendant changed his version in his oral evidence to the effect which is as follows:

Q. But you are saying that what was said on that occasion was that you and Shirley had agreed that the three paintings that hang in the lounge room, which are item 33 in this case, you are saying that Shirley said, and you agreed that they would stay with you until your death, and then pass on to Patricia?
A. After we are dead they go to Patricia.

Q. You say that was in the conversation?
A. Yes, that’s right.

Q. That was after you purchased the paintings?
A. Yes.

28 There was an earlier will of the deceased prior to the will admitted to probate to which I have referred. The earlier will was made on 24 October 1997 obviously after the purchase of the paintings. In paragraph 4 of that will the deceased specifically gave the three paintings which she described to the plaintiff and also gave her daughter the residuary estate. The will contained the same provision for the defendant. It was notable that the later will admitted to probate just simply omitted that specific bequest which was in any event otiose having regard to the residuary bequest.

29 There was also evidence called by plaintiff from Sylvia Bridge a friend of the deceased who recalled the plaintiff admiring the three paintings in the gallery and later seeing them hung in the defendant’s house. The defendant’s version in his oral evidence contradicts the evidence in his affidavit and he suggests that the plaintiff purchased the paintings for a small sum of money and brought them home. Subject to the defendant’s claim as to what money was used, clearly, adopting that version in his oral evidence which he urges on the court, the paintings passed to the deceased alone.

30 The defendant bears the evidentiary onus of demonstrating that the funds used by the deceased were joint funds. It will be recalled from earlier in this judgment I have pointed out that the deceased certainly in this period had her own separate bank accounts which were always maintained with funds and would have been a sufficient source for the purchase of the paintings. The defendant’s evidence as to where the funds came from is just simply his bald statement that is not supported by any documentary evidence. In cross-examination he conceded that he did not give her money for the small paintings and he merely assumed she used the joint account.

31 I am not satisfied that the funds were given by the defendant. The argument about the agreement to give them does not assist as there is no consideration for the agreement. The plaintiff is entitled to the paintings.

Item 40 Jardinere

32 The plaintiff gave evidence in her affidavit and oral evidence that this item was purchased in her presence by her mother at Gift Affair in Cessnock which was paid in cash by the deceased. The purchase price was about $80.00 and it was purchased between 2000 and 2002. The defendant’s evidence in his affidavit and oral evidence was to the effect that he gave his wife the money from their joint account with the Commonwealth Bank to purchase the jardinere.

33 Once again this raises the question of who provided the money and the submissions made reference to s 12 of the Married Persons (Equality of Status) Act 1996 . That section is in the following terms:
“If a married person makes a payment or allowance to the person’s spouse to pay their joint household expenses or for similar purposes, any property bought with the payment or allowance and any money not spent from the payment or allowance is, in the absence of any agreement to the contrary between the person and his or her spouse, taken to belong to the person and the person’s spouse as joint tenants.”

34 It can be seen that it is necessary for there to be a “payment or allowance” before the section applies.

35 The defendant seems to have become fixated with the idea that all moneys held were joint moneys and the deceased had no funds of her own.

Q. And Shirley was the only one who could operate those accounts, you couldn’t sign anything for the accounts or withdraw money?
A. Later on I did, when it became a combined account, when we got on the pension it became combined account and everything was paid out of that.

Q. Shirley still maintained her separate account even after you retired, didn’t she?
A. No, from then on, that’s what I had to do it for, I had to give up work and I had to do all those things to square with the pension people, wasn’t so simple.

Q. What I am asking you is to confirm that you are aware that Shirley kept an account of her own which she operated separately from your joint account with the Commonwealth Bank?
A. Yes.

Q. And you know that Shirley sold the unit?
A. Yes.

Q. And you know that she dealt with those funds separately from any input from you?
A. She couldn’t sell the unit because she was still married to me. It wasn’t her money that she got out of the unit, it’s as simple as that. I am a little bit ahead of you –

MASTER: Listen to me, please don’t try to anticipate what he is going to ask you next. Listen to what is being asked and answer that question.

SUNDSTROM: Q. It is therefore the case, is it not, at all times during the marriage and up until Shirley passed away, she had her own separate account to which she was the only person who had access to the funds?
A. That is correct.

Q. You would concede, would you not, that it is possible that she may have used some of her own funds to purchase some of the items that are here in dispute?
A. No, that’s not right, because all the money in there was combined money, our combined income went into all the money Shirley had. Shirley have no money when she first met me and she never work.

Q. Can I just re-ask you that question in a different way, isn’t it the case that Shirley could well have purchased items which are in this list which are in contention, that we are arguing about today, from her own funds and not from the joint funds in the Commonwealth Bank?
A. She had no money of her own, all her money was joint money, I paid tax on that. She had no money of her own and that was combined money.

Q. Your evidence earlier was that these purchases were made from the joint account?
A. That’s what you were referring to, all our money, is not her money, my money, it’s our money.

Q. Did you ever know how much money Shirley had in her own account?
A. Of course I know, I didn’t know every penny, of course I know, because I have to put yearly statements to the taxation again. My accountant drove me mad.

Q. Did she have very much in that account?
A. About $8,000, around that figure, and when it come too much it was put into the savings account.

Q. She used the money from the savings account, did she not?
A. No, we called it the working account, she used the money out of the working account, she never used money out of the savings account.

Q. The working account is a joint account?
A. You referring to, I don’t know, joint account come with the CES when I retire.

Q. That’s right –
A. That’s what I am trying to say, from then on it was my money. If it belongs to the unit, it was all paid out of the, before the unit was sold, a lot of expenses. I had done the unit up and we had a lot of expenses. For many years units go up by ten percent. We had to paint, a lot of work, and there was a lot of money used for it, that was used out of the working account.

Q. I want to be clear, do you accept you retired in 1992?
A. 1992, I went on the pension, yes, and from then on we used –

Q. Let me ask the question, you said in your affidavit that you then had a joint account?
A. Yes.

Q. In 1992, with the Commonwealth Bank?
A. Yes, correct.

Q. Is that the account to which you referred to as the working account?
A. No, no.

Q. What account was that?
A. Working account, we start in 1972, start the working account.

Q. Who had access to the working account?
A. My wife had access to the account, she took the rent that went into that account and paid the expenses out of that account for the unit and before the unit was sold we had to spend a lot of money on unit and that money was out of the working account.

Q. And after the unit was sold?
A. After the unit was sold it was, sell it, she had no right to the money, it wasn’t as simple as that.

Q. Particularly after the unit was sold and even before that, Shirley had access to, at any given time, to some thousands of dollars in accounts, that’s true, isn’t it?
A. She did have, yes.


36 It is plain that the deceased kept control of her two accounts which only she could operate up until the date of her death. There is thus a clear source of funds from her to make payment from what were, despite the defendant’s view, her own funds.

37 Given that the defendant’s evidence seems to be affected by his fixation on all funds being held jointly, I do not accept his evidence that he made the advance from joint funds.

38 The plaintiff is entitled to this article.

39 The parties can bring in short minutes and deal with costs.
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Last Modified: 07/26/2004