Supreme Court New South Wales Medium Neutral Citation: Reef Health Pty Limited & Ors v Ian Vines & Ors [2014] NSWSC 70 Hearing dates: 10, 11, 12, 13,14 & 17 September 2012 & 3 May 2013 Decision date: 14 February 2014 Jurisdiction: Equity Division Before: Slattery J Decision: The landlord's agent, the defendant, converted a number of items of limited value. Order an expert inquiry to value the converted goods. Directions made for submissions to the inquiry. Catchwords: TORTS conversion - landlord's agent/defendant evicts tenant from Sydney city apartment - tenant alleges valuable items of property left behind in apartment at eviction - landlord's agent removes contents of apartment into storage - tenants/plaintiffs allege items missing or damaged - whether all or any of the goods were in the apartment at the time of eviction - whether the plaintiffs/tenants owned the goods alleged - whether the landlord's agent converted the goods. Legislation Cited: Crimes Act 1900 (NSW) Residential Tenancies Act 1987 (NSW) Residential Tenancies Regulation 2006 (NSW) Cases Cited: Brybay Pty Ltd (In Liq) & Ors v Esanda Finance Corporation Ltd [2002] WASC 309 Bowden v Lo (1998) 9 BPR 16,317 Bunnings Group v Chep Australia Ltd [2011] NSWCA 384 Chesworth v Farrar (1967) 1 QB 407 Furness v Adrium Industries Pty Ltd [1996] 1 VR 668 Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206 Hughland v R R Low (Luxury Coaches) [1962] 1 QB 694 J & E Hall Ltd v Barclay [1937] 3 All ER 620 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 Jacap Low Loaders v Lindores Plant & Equipment [2005] NSWCA 5 Lord Mounteagle v Countess of Worcester (1554) 73 ER 265 Mitchell v Earling Londonderry Council [1979] 1 QB 1 Prothonotary of the Supreme Court of New South Wales v Tatar [2005] NSWCA 104 Slaveski v Victoria [2010] VSC 569 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2003) 56 NSWLR 662 TNT (Melbourne) v May & Baker (Aust) Pty Ltd (1966) 115 CLR 353 Sinclair v Haynes [2000] NSWSC 642 Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960] NSWR 447 The Winkfield [1902] P 42 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Category: Principal judgment Parties: First Plaintiff:- Reef Health Pty Limited Second Plaintiff:- Ms Roxanne Naylor Third Plaintiff:- Mr Andrew Tatar Fourth Plaintiff, Mr Sayed (Sid) El-Hawache First Defendant:- Mr Ian Vines Third Defendant:- Consumer, Trader and Tenancy Tribunal Fourth Defendant:- The Sheriff of NSW Representation: Counsel: First, Second and Third Plaintiffs: - Mr T. Rickard First Defendant: - Mr D. Priestley Solicitors: First, Second and Third Plaintiffs: - Mr Ali Abbas, AHA Taylor Lawyers First Defendant: - Mr Paul Kozub, Gilchrist Connell File Number(s): 2010/362402 Publication restriction: No Judgment 1Just before noon on Tuesday, 16 October 2010, police from The Rocks local area command responded to a 000 emergency call and attended an apartment in Pottinger Street, Dawes Point. There they found a distressed Roxanne Naylor who had made the call, and her de facto partner Andrew Tatar, who appeared to have attempted suicide. He was hospitalised that afternoon. Mr Tatar rented the apartment. The next day, the landlord Geoffrey McWilliam, through his real estate agent, Ian Vines, evicted both Mr Tatar and Ms Naylor under a week-old order of the Consumer Trader and Tenancy Tribunal ("CTTT"). Ms Naylor returned to the premises on Wednesday, 27 October 2010 and Friday, 29 October 2010 to retrieve some of her and Mr Tatar's possessions. After about 12 noon on 29 October 2010 the agent organised two removal trucks to transfer some items from the apartment and placed them in storage. 2Ms Naylor, Mr Tatar and a company Ms Naylor controls, Reef Health Pty Limited ("Reef Health"), claim that on 29 October 2010 they left behind a large number of valuable items in the apartment. They contend that the defendant, Mr Vines, who organised the removal, converted these goods. 3Mr Vines contests their claim. He says that everything that was in the apartment was placed in storage, preserved, and has since been returned to the plaintiffs. The parties are at issue about the alleged conversion of 277 individual items, ranging in value from a calculator said to be worth $30, up to books said to be worth $496,000. The defendants contested the plaintiffs' possession of each one of the 277 claimed items, generating detailed cross-examination over a six day trial. 4A weakness in the first defendant's case was that he took no contemporaneous inventory of the documents transferred into storage from the apartment on 29 October 2010. A weakness in the plaintiffs' case was that there was little objective evidence of the plaintiffs' purchase and possession at the relevant time of moving of most of the items. In the result I accept that some of the items left in the premises have gone missing and the defendant has not accounted for them. But the number and value of the items unaccounted for is a small fraction of what the plaintiffs claimed to be missing. 5The plaintiffs bring their claim in the tort of conversion, seeking damages of $1,272,738.46, being the alleged total value of the 277 items said to have been converted. Reef Health, Ms Naylor and Mr Tartar adduced unsatisfactory evidence about which one of them owned each of the items that allegedly went missing. But all were joined as plaintiffs, so which of the plaintiffs owned which of the items did not become a contested issue. 6The plaintiffs also sought punitive and exemplary damages in a named figure of $100,000. The Statement of Claim had originally pleaded a wider case, claiming fraudulent misrepresentation inducing the lease, claiming damages for personal injury, and claiming destruction of goods in the course of the lease. But all claims other than the action in conversion were abandoned before the hearing. 7The defendant contested every ingredient of the conversion claim, but did so principally on the basis that the plaintiffs did not possess any of the goods said to have been converted. The landlord, Geoffrey McWilliam, was named as a defendant in the Statement of Claim. He cross-claimed against the plaintiffs for unpaid rent for repairs to the premises and for damages for loss of rental. But the plaintiffs' action against Mr McWilliam settled just before the trial and he played no part in the hearing. 8The pleadings identify a fourth plaintiff, a solicitor Mr Sid Hawach. He did not present a case at trial. The Court entered judgment against him on the sixth day of hearing, 17 September 2012. 9The parties agreed to an efficient case management regime for the proceedings. The Court did not consider any valuation evidence at the current hearing. The parties agreed to refer any valuation issues to expert determination only if the Court found that the defendant was liable in conversion for the loss and destruction of particular claimed items. Such a valuation exercise should take place. 10To reduce the risk of identity theft, these reasons do not publish title details or bank account details of any of the parties. 11The parties were legally represented throughout by Mr T. Rickard for the plaintiff and Mr D. Priestley for the defendant. Both counsel addressed with commendable efficiency a case that involved an overwhelming amount of detail. The hearing of evidence took six days; 10, 11, 12, 13, 14, and 17 September 2012. After that the parties had 1 month each to put on detailed written submissions about the findings the Court should make in respect of each of the 277 individual items claimed to have been lost. The parties then had an opportunity to speak to their written submissions in May 2013. 12A detailed narrative of relevant events show that Mr McWilliams' eviction of Mr Tatar in the last week of October 2010 was the culmination of months of mistrust, recriminations and litigation between landlord and tenant. A Landlord, a Tenant and a Pottinger Street Apartment Finding an Apartment 13In November 2009 Mr Tatar and Ms Naylor were looking together for an apartment to rent. They found Pottinger Street, Dawes Point attractive, in part because of its secluded location, close to the Sydney Central Business District. Mr McWilliam was offering the apartment for lease through his real estate agent, Mr Vines, the managing director of a realty business in Neutral Bay, marketing itself as "Garden View Apartments and Luxury Transitions". 14Mr McWilliam had engaged Mr Vines under a Management Agency Agreement to market and manage the apartment for rental. The apartment was but one townhouse of a series of similar townhouses in Pottinger Street, Sydney. The apartment is multilevel with some courtyard space with a total of four separate levels including a basement/garage. 15Mr Tatar first showed interest in renting the apartment in November 2009. Curiously, I find that he used the name "Andrew Taylor" of "Reef Health" when first making an enquiry about renting the apartment. This was an early indication of his propensity to make false or misleading statements, a matter dealt with in more detail below. Mr Tatar and Ms Naylor inspected the property together on 6 November 2009. They decided that they liked it. 16Mr Tatar then applied to become the tenant. His rental application was another early indicator of his lack of credibility. He said: he rented accommodation in Kent Street, Sydney, paying $1100 rent per week; he and Ms Naylor owned a waterfront house in Port Villa, Vanuatu; he was employed by Reef Health; he was "admitted as a solicitor in New South Wales or Australia"; he was "admitted as a barrister in Hong Kong and the UK (Grays Inn) acting primarily in Human Rights (requires much travelling), Equity and Corporation Law matters"; and that he had chambers in London at Essex Court Chambers, 24 Lincolns Inn, London WC2A 3EG. All these representations, other than his rental accommodation in Kent Street, were false or misleading. 17On 10 and 11 November 2009 Mr Tatar paid the first month's rent and executed a residential tenancy agreement ("the lease") for the apartment, provided a rental bond of $6,800 and monthly rent of $7,386. Mr Tatar and Ms Naylor went into possession shortly afterwards. 18The events which are the subject of these proceedings took place about 11 months after Mr Tatar and Ms Naylor moved into the apartment. But some of the intervening period between November 2009 and October 2010 is relevant background to understanding the events of late October 2010. During this intervening period there was an escalating dispute between landlord and tenant. An Escalating Dispute - February to October 2010 19The apartment was part of a larger complex. In the last week of February 2010 the body corporate of the complex authorised the commencement of remedial building work, which was projected to take about 6 to 8 weeks to complete. It is common ground that neither Mr McWilliam nor Mr Vines told Mr Tatar that the works were to take place. 20The works annoyed Mr Tatar and he complained by email on 23 February 2010: "we are having a few problems with the apartment at the moment (photos attached), the entire front and back is covered with scaffolding and we have workmen causing all manner of noise and disruption from 6.50am this morning, with an estimate that this will happen Monday to Friday for the next 6 weeks". Mr Tatar complained that: "we cannot even have a moment's privacy from any bedroom as there are people continuing looking in". The attached photographs show scaffolding comprehensively covering the face of the building. 21Mr Tatar took the view that he had been misled at the time that the lease was made. He probably had been. He claimed that he was entitled to a reduction in rent. Discussions between tenant and agent in March and April 2010 led to conflicting allegations of whether an agreement for reduction of rent was then made. The details of these discussions are of no moment for the determination of the remaining issues in these proceedings. Thereafter Mr Tatar did not pay the full rent due. He alleged that there was an agreement for abatement of rent and that he only had to pay 50 per cent of the rent due, under an agreement to that effect. But both the landlord and agent disputed the making of any such agreement. 22By June 2010 it appeared that the building works may go on for another few months and were running over the original planned schedule. Mr Tatar's payment of less than the nominal agreed rental, added to a dispute about whether there was agreement to abate rent, had become major points of contention. On 9 June 2010 the landlord served a notice of termination of lease requiring him to vacate by 30 June 2010. 23The lease issue went to the CTTT. On 1 July 2010 Mr Vines lodged an application with the CTTT seeking termination of the lease and possession of the premises. The CTTT held a conciliation conference on 21 July 2010 which resulted in a written settlement agreement, the substance of which was: (1) rental arrears would be written off as compensation for the past inconvenience; (2) Mr Tatar would not seek further compensation; (3) Mr Tatar would pay the monthly rental of $7,386 per month on time from then on; and (4) that Mr Tatar would make his next payment on 12 August 2010 for the period 1 August 2010 to 12 August 2010. Mr Tatar acknowledged by email on 22 July 2010 that he had made this agreement. But Mr Tatar did not pay the rent due on 12 August 2010. From Mr Tatar's perspective the non-payment was because the builders had not yet completed their work. 24The landlord decided to act on the 12 August 2010 non-payment. On 3 September 2010 Mr Vines served a notice of termination of the lease on Mr Tatar and Ms Naylor. Ms Naylor responded on 4 August complaining about continuing intrusion caused by the works. 25The matter again went to the CTTT. On 29 September 2010 Mr Vines applied to the CTTT for recovery of rental arrears of $10,928.25 and for an order seeking termination of the lease, possession of the premises and payment of the rental bond. These CTTT proceedings were listed both for conciliation and for hearing on 18 October 2010. Further correspondence in the first half of October 2010 between Mr Vines and Ms Naylor did not resolve the matter. A conciliation hearing took place in the CTTT on 18 October 2010. But Mr Tatar did not appear. The CTTT ordered termination of the lease and gave possession of the apartment to Mr McWilliam on 22 October 2010 and ordered Mr Tatar to pay Mr McWilliam a sum of $15,293.13. Mr Vines says, and I accept, that a copy of the orders was placed in the letterbox of the premises the same day, 18 October 2010. 26Friday 22 October 2010 passed without Ms Naylor and Mr Tatar vacating. On Monday, 25 October 2010 Mr Vines applied for a warrant for enforcement of the CTTT's order for possession. 25 to 29 October 2010 - The Uncontentious Events 27The parties did not dispute some of what happened at the Pottinger Street apartment between Monday, 25 October 2010 and Friday, 29 October 2010. This section identifies those undisputed facts. 28Mr Vines applied for a warrant on 25 October 2010. But in a contemporaneous email from Mr Vines to Mr McWilliam, sent on the Monday afternoon, which I accept is accurate, Mr Vines reported that the warrant would not be available until the following day. He gave an account of contact that day with Mr Tatar and Ms Naylor; "but I also called in and they [Mr Tatar and Ms Naylor] are in the process of moving, they said they would be out tonight". I infer that Mr Vines did call in on the Monday. Mr Tatar and Ms Naylor were in the process of moving out. The photographs show various plastic carry bags with handles around the apartment in various rooms. Both Mr Tatar and Ms Naylor were aware that the CTTT orders for possession would become operative after 22 October 2010. Mr Tatar denied knowledge of the orders but I accept Ms Naylor's evidence that they were both aware. 29Mr Vines collected the warrant for possession on 26 October 2010 but did not execute it the same day because of the unavailability of sheriff's officers. Mr Vines was unaware that anything had gone wrong at the apartment that day until he received an anxious phone call from Ms Naylor early that afternoon asking him to come to Pottinger Street. 30Back at the apartment there had been dramatic events on the night of Monday, 25 October 2010 and the morning of Tuesday, 26 October 2010. But the police were not called until just before noon on the 26 October 2010. Thus the only version of what happened overnight comes from Mr Tatar and Ms Naylor, neither of whom I find are reliable witnesses. I do not wholly accept either of their versions as to what happened. Some of the detail of their versions is considered later. 31But in summary, Ms Naylor said that when she went to bed Mr Tatar was not particularly agitated but she woke up to find him shaving his head and extracting glass from it and complaining that intruders had broken in. She said she was heavily medicated and went back to sleep. Mr Tatar's version was that he witnessed a break-in on the ground floor and that two intruders came into the apartment, inflicting a number of blows to Mr Tatar's head and ransacking the apartment. There is no doubt that there was substantial destruction throughout the apartment in every room and on every floor. One issue in the proceedings was who had caused that destruction. The defendant adduced evidence from police officers about what was found on the premises and put a case to the Court that Mr Tatar himself was responsible for all the damage in the apartment. There was no evidence before the Court that police investigations had led to the charging or prosecution of any third party in relation to this destruction. The cause of the destruction is discussed later in these reasons. 32Ms Naylor says, and I accept, and the police confirm in their evidence, which I also accept, that about noon on 26 October 2010 Mr Tatar was found in the bottom of the lift shaft of the premises with a rope around his neck, either having unsuccessfully attempted suicide or still threatening suicide. Ms Naylor made her 000 call at about 11.55am on 16 October 2010. If she ever had any belief that there had been intruders in the apartment premises she did not say to the emergency '000' operator there had been a break in, or that Mr Tatar had been assaulted by intruders. Police officers were contacted at about 11.57am and arrived at the apartment by noon. Plain clothes police and detectives arrived. An ambulance arrived shortly afterwards. Mr Tatar was assessed as requiring hospitalisation and was taken to St Vincent's Hospital, where he remained until 29 October 2010. Police declared the apartment a crime scene. Ms Naylor never behaved, in my view, as though she thought there had actually been intruders the previous night. 33Upon receiving information about the possibility of intruders in the apartment the previous night, Mr Vines also arrived at the scene on the afternoon of 26 October 2010. I accept Mr Vines' evidence that Ms Naylor rang him on 26 October and said "Andrew has gone berserk and trashed the place and tried to kill himself". In my view, that is exactly what happened. Ms Naylor was prevented from re-entering the premises until forensic analysis was complete. She went instead from the apartment with the uniformed police to The Rocks police station and then to St Vincent's Hospital. That night she stayed with a friend, Ms Francesca Stanton, at Ms Stanton's apartment in Kent Street, Sydney. Meanwhile back at the apartment, police were undertaking photography and forensic work. 34Mr Vines spoke with police and re-contacted the sheriff's office and managed to arrange for execution of the warrant at the apartment the following day, Wednesday, 27 October 2010. He arranged for a locksmith to be present. Mr Vines met Ms Naylor and Ms Stanton at the premises when some disputed conversations took place between them. But what is not disputed is that the locksmith changed the locks that day and gave the new keys to Mr Vines. Ms Naylor and Ms Stanton did enter the premises that day for a period of time. But what, if anything, they both removed from the premises that day, and what they were permitted to remove, was a matter of dispute. Ms Stanton was not called to give evidence. I infer her evidence would not have assisted the plaintiffs' case as she and Ms Naylor attended at the apartment on 27 October, to collect goods, I infer they took the opportunity to remove some goods that day. But just what they took and how much is unclear. 35Ms Naylor did not return to the apartment to collect other items until Friday, 29 October 2010. In the meantime on Thursday, 28 October 2010 Mr Vines had taken some photographs of parts of the apartment with his digital camera on a walk through of the premises with Mr McWilliam that day. The same day Mr Vines began to make plans to return the apartment to a liveable and marketable condition. He planned to arrange for professional cleaners, for removalists, for the rental of storage space, for repairs to damaged fixtures and to prepare the premises for re-letting. 36A number of parties and witnesses returned to the apartment on 29 October 2010, including Mr Vines, Ms Naylor and a number of friends and relatives of Ms Naylor. Mr Lauren LaVine and Mr Paul Tatar, Andrew Tatar's father, attended at about 12.30pm on 29 October 2010. Mr Vines had arranged for a removalist truck to attend at the apartment that day. The events that followed on 29 October 2010 are much in dispute. 37But there are certain common facts. Ms Naylor and her friend, Ms Stanton, spent about 2 hours at the apartment, collecting various items and packing bags. In my view no limit was placed on what Ms Naylor and Ms Stanton could take away that day; and they took advantage of that liberty within the time available. For part of the two hour period Mr Tatar's father and brother in law, Mr Lauren LaVine, came and went through the apartment when Mr LaVine, a former US Marine, took a video of what he saw that afternoon. He took away a change of clothes for Mr Tatar and some framed testimonials. And I accept Mr Vines' evidence that Ms Naylor left with 3 to 6 laundry bags of goods that day. 38After they all left, Mr Vines instructed the removalists to deal with the balance of the material in the house, much of which was transported the same afternoon to "Storage King" at Camperdown and some of which was taken to a rubbish tip. Just what material the removalists found at the apartment and what they discarded before removing the balance to Storage King, is in issue. The apartment was then cleaned and prepared for re-letting. After 29 October 2010 39The cleaning of the apartment took a few days. When the cleaners were present on Monday, 1 November 2010 it came to Mr Vines' attention that someone had come and collected a motor vehicle which was in the garage of the premises. 40Mr Tatar, Ms Naylor and Reef Health commenced these proceedings on 2 November 2010 in the equity duty list. The Summons sought as the principal relief claimed "all property removed by the first defendant [Mr Vines] from the [apartment] including the property described in Schedule A to be delivered up to [the plaintiffs] within 24 hours of the hearing of this Summons". Schedule A to the Summons included a list of goods which substantially overlaps with the Schedule of goods ultimately attached to the Statement of Claim. Mr Tatar claims he prepared this detailed Schedule only on 1 November 2010. It was later amended and updated for the hearing before me. 41The matter came before Pembroke J in the duty list on 2 November 2010. His Honour ordered the then defendants, including Mr Vines, to release and return to the plaintiffs, whether from Storage King or otherwise, all their property in the possession removed by the defendants from the apartment on or about 29 October 2010. Mr Tatar and the other plaintiffs were also required to pay the sum of $1,400.00 to the defendants as reimbursement for the costs of removal and storage of the property. 42There was further contact between Mr Vines and Mr Tatar the same week about Mr Tatar gaining access to the Storage King facility. Mr Tatar paid the $1,400, the subject of the Court's orders, and was given access. Shortly afterwards Mr Vines met Ms Naylor and gave her access to the facility. Shortly thereafter she began to complain about items missing from those collected at Storage King. From then on contact between the parties increasingly took place through their solicitors in relation to the present litigation. 29 October 2010 43Mr Tatar was still in hospital on the morning of 29 October 2010. Ms Naylor went back to the apartment and spent about two hours there collecting and removing items. Mr Tatar was in no condition to do so. She and Mr Vines disagreed about their exchanges that day. She says they spoke to the following effect:- "Vines: I have seized all your possessions and I am going to sell them. If you try to interfere I will have you arrested." 44And again she says Mr Vines said to her words to the following effect:- "Vines: I have taken all your possessions I can now sell them if you try to touch them I will have you arrested, they are no longer yours, they are mine, I have friends in the police." 45Ms Naylor says that Mr Vines spoke these words standing very close to her and almost touching her. She claims he spoke very loudly, almost shouting, so as to bully and intimidate both her and Ms Stanton, her companion. 46Ms Naylor and Ms Stanton did fill a few suitcases with clothing and prepared to take them away. At the point of leaving Ms Naylor says that a further conversation took place between her and Mr Vines to the following effect:- "Vines: You must leave now, I will have you arrested if you stay, I have many friends in the police." 47She claims that Mr Vines then brought out and presented to her a black Samsonite suitcase from the garage that had belonged to her daughter. Ms Naylor says he gave it to her with a broken lock and then she and Ms Stanton caught a taxi to Ms Stanton's home at Bondi. 48Mr Vines says the conversation between them on 29 October 2010 was very different and was to the following effect:- "Ms Naylor: May I collect personal items? Mr Vines: That's fine but you shouldn't be here longer than a couple of hours because we have a lot of work to do. We have put items of clothing and shoes of yours in bags." 49In my view Mr Vines' evidence in relation to these exchanges is to be preferred over the evidence of Ms Naylor, for two reasons. First, I generally prefer Mr Vines' evidence over hers. But secondly, Mr Vines' version of the conversations is far closer to what then actually happened. Ms Naylor was indeed allowed "a couple of hours" to move about and pack bags before the removalists, who had been arranged for that day started their work. 50But there is no doubt that Mr Vines was in a hurry to clean up the mess on the Friday. That was his job in the interests of Mr McWilliam. He wanted to bring these events to an end as soon as possible. Ms Naylor, Mr Tatar, Mr Vines and the Other Witnesses 51The three parties, Ms Naylor, Mr Tatar and Mr Vines all gave evidence and were cross-examined. Ms Naylor and Mr Tatar were both witnesses whose evidence I would not generally accept unless supported by uncontested facts, objective evidence, or corroborated by other reliable witnesses. There are nevertheless a few places identified in these reasons where their evidence is credible. 52The plaintiffs have advanced claims in these proceedings which they must have known were false. Many of the items for which they claimed large damages were not in their apartment on 27 October 2010 when the locks were changed. I find that they consciously propounded false claims for these items. Despite that, the plaintiffs do have some genuine claims, as these reasons demonstrate. But in propounding these false claims each of the plaintiffs, Ms Naylor and Mr Tatar presented quite discreditable evidence. Ms Naylor 53Ms Naylor gave evidence with the assured and easy confidence of someone who wished to convey that she was telling the truth. But her answers revealed that she either must have known that often what she was saying to the Court was false or that she was, without apparent shame, quite prepared to provide the Court with improbable responses to support false evidence. The accumulation of her inconsistent and at times bizarre answers neutralised her as a source of reliable evidence. Mr Tatar 54By October 2010 Mr Tatar and Ms Naylor had been de facto partners for about 3 years. 55Mr Tatar started with severe disadvantages in the assessment of his credit. He had served a term of imprisonment for fraud. His name had been ordered to be removed from the rolls of the Supreme Court: Prothonotary of the Supreme Court of New South Wales v Tatar [2005] NSWCA 104. He was cross-examined about his criminal convictions and about his removal from the roll of legal practitioners. He made admissions in cross-examination based upon the facts recited in Prothonotary of the Supreme Court of New South Wales v Tatar [2005] NSWCA 104. 56Mr Tatar has been convicted of more than one offence involving dishonesty. In May 1997 he pleaded guilty to a charge of making a false or misleading statement with intent to obtain a valuable thing contrary to Crimes Act 1900, s 178BB. This offence involved applying for and being issued with a credit card using a forged driver's licence, a forged group certificate and a fraudulently obtained birth certificate. Again, on September 1998 he was convicted after pleading not guilty of making false or misleading statements with an intent to obtain a financial advantage contrary to Crimes Act, s 178BB. The circumstances were that he had submitted a fraudulent application for the issue of another credit card. On the May 1997 conviction he was placed on a two year good behaviour bond. On the September 1998 conviction he was ordered to perform 50 hours of community service work. 57Mr Tatar was admitted as a solicitor in 1999. The admission took place after he failed to disclose the May 1997 and September 1998 convictions. He did disclose a different offence under Crimes Act, s 178BB in which he had been convicted of aiding and abetting the criminal activity of others but which convictions had been quashed on appeal in May 1999. These convictions were said to involve reckless rather than malicious conduct. 58Mr Tatar was admitted as a legal practitioner on 27 August 1999 and practised until 16 January 2003 when his practising certificate was cancelled. But between 16 August 1999 and 6 July 2000 Mr Tatar engaged in conduct in respect of which he was eventually charged and convicted of seven criminal offences involving fraud: three counts of using a false instrument contrary to Crimes Act, s 300(2); two counts of fraudulently giving a birth certificate contrary to Crimes Act, s 296; one count of obtaining a benefit by deception contrary to Crimes Act, s 178BA; and one count of attempting to obtain a benefit by deception contrary to Crimes Act, ss 178BB and 344. These offences involved the forging of birth certificates and driver's licenses to open fictitious bank accounts and then to transfer the funds of persons whose identity had been misused into those fictitious bank accounts. Mr Tatar was convicted in September 2002 and sentenced to four years imprisonment, commencing that month, with a non-parole period of two and a half years, expiring in March 2005. Mr Tatar did not pursue an appeal he lodged against those convictions. 59On 24 March 2005 the Court of Appeal made findings of professional misconduct against Mr Tatar, found that he was not of good fame and character and found that he was not a fit and proper person to remain on the roll of legal practitioners. Declarations to that effect were made and his name was removed from the roll: Prothonotary of the Supreme Court of New South Wales v Tatar [2005] NSWCA 104 at [16] and [17]. 60Even without taking into account Mr Tatar's history, his performance in the witness box was enough for the Court to reach the view that he was an untrustworthy witness. His evidence was replete with problems: inconsistent versions of events; stubborn adherence to the improbable; incapacity to explain events according to his own version of the truth; and a studied vagueness of evidence, deploying a calculated strategy to avoid precise questioning. The Court formed the view that he was a witness who showed no discernable preference for making use of the truth rather than falsehood in his daily life. Examples of these characteristics appear throughout the evidence analysed later in these reasons. Despite this account of Mr Tatar's credit, there are times when the Court has accepted his account, generally because it was supported by other credible testimony, or it is inherently probable, or it is supported by objective facts. Mr Vines 61By 2010 Mr Vines had conducted real estate agency practice for 37 years. Such lengthy experience makes some of his conduct in relation to Mr Tatar and Ms Naylor's eviction a little strange. For example, it is somewhat difficult to accept Mr Vines would not have made a more comprehensive attempt to produce an inventory of the goods dealt with on 29 October 2010. Had a thorough inventory been done, much of what has been in dispute in this case could either have been avoided or significantly reduced in scope. Indeed this case provides a salutary lesson of what can go wrong when thorough inventories are not completed when a landlord or agent takes possession of premises. I accept that Mr Vines did take some form of handwritten inventory room by room. But this inventory was done in a fairly high level of generality and was, in any event, destroyed in a fire in Mr Vines' offices. 62Mr Vines was a generally credible witness whose evidence can be relied upon. I have not accepted his evidence in a number of respects. But this is because he was mistaken about, or had poor recollection of, the matters concerned. His failure to make an inventory of the main goods took place in pressing circumstances, where he was giving directions to removalists and rubbish disposal contractors. He was anxious to get the job done, to get the goods out of the premises and to re-let it profitably for the benefit of the owner. I accept his evidence that he had a degree of sympathy for the unfortunate position in which Mr Tatar and Ms Naylor had found themselves. They did not appreciate that. But I find that he did. He did allow Ms Naylor a few extra days to vacate from Monday, 25 October 2010. Whatever happened to the plaintiffs' goods in my view was not the result of deliberate conduct on his part designed to damage those goods or to deprive the plaintiffs of them. Mr Vines did not act maliciously. Rather he had a troublesome tenant problem that he wanted to solve as quickly as possible, so he could then re-let the premises. But he acted without really contemplating that there might be future legal action against him and his landlord from these same troublesome tenants. Other Witnesses 63The two sheriff's officers Mr Clarkson and Mr Haggerty were excellent witnesses. I accept all of their evidence. Their principal purpose was to clear the property to ensure that when it was handed over to the owner there were no other persons in the premises. They did that. It is not to be expected that they would have strong memories of what goods were in the premises and what goods there were damaged. Despite that, they each had a surprisingly useful memory of items that were present or absent from the apartment. 64The removalist, Mr Hollingsworth, gave evidence. He was not the man on site but was his supervisor. But there was nothing in his evidence that gave the Court any concern about the accuracy of what he said or his willingness to assist the Court with the truth. He did not apparently have anything to conceal about his firm's handling of the removal that day. There was no mystery about why the removalist on site was not available to give evidence. He was a Czech student working in Australia for about 18 months. I accept Mr Hollingworth's evidence that he had been a responsible employee but was no longer in Australia. 65Two police officers gave evidence. Constable Deanna Carabott and Detective Senior Constable Gordon Sharrock. They gave evidence both as to their observations and as to conversations with Ms Naylor, who they met on 26 October 2010 at the apartment. Their evidence about both was clear, accurate and appropriately documented. I accept their accounts of their conversations with Ms Naylor. Although Ms Naylor disputes their accounts of these conversation I have no reason to doubt that they took place in the terms that the two officers state that they did. 66Both police officers made an inspection of the premises and had quite reasonable memories, in the circumstances, of what they had seen. They confirmed the extent and seriousness of the damage to many items of property such as the television sets, the clothes, and the glassware and crockery. They also had some memory, which I accept, of items that had survived the night of 25-26 October 2010 undamaged. For example, Constable Carabott remembers the bedroom pillows being slashed not stabbed. Detective Sharrock has a clear memory of damage to not one but two television sets. Applicable Legal Principles Conversion 67The plaintiffs pleaded their case in the tort of conversion. Relevant legal principles in relation to the tort of conversion and the assessment of damages for conversion may be shortly stated. 68A plaintiff in an action for conversion must show an immediate right to possession at the time of the act of conversion: The Winkfield [1902] P 42 at 54 and 55 per Collins MR; Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 229 per Dixon J; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2003) 56 NSWLR 662 per Young CJ in Eq (Bryson J agreeing). The right of possession must derive from a proprietary or possessory interest in the goods: Standard Electronic Apparatus Laboratories Pty Ltd v Stenner [1960] NSWR 447. In Toll (FGCT) Pty Ltd v Alphapharm at 673, Young CJ in Eq noted: "the requirement that a person have some title before it can sue in...conversion...is an ancient one. However, all the plaintiff had to plead under the traditional system of pleading was that the subject goods were goods 'of the plaintiff'". A person with a limited interest in goods converted may recover the full value of the goods converted from a wrongdoer who has no interest in the goods: Brybay Pty Ltd (In Liq) & Ors v Esanda Finance Corporation Ltd [2002] WASC 309 at [26] per McLure J; The Winkfield at 54 per Collins MR. 69The measures of damages for conversion is in general the value of the goods converted, as at the date of conversion: Furness v Adrium Industries Pty Ltd [1996] 1 VR 668 at 669 per Fullagar J; Sinclair v Haynes [2000] NSWSC 642 at [3] per Hamilton J. Prima facie, where there is a market for the goods, the value of the goods is the market value of the goods: Furness v Adrium Industries Pty Ltd at 669 per Fullagar J; Sinclair v Haynes at [3] per Hamilton J. But where it is established that there is no market for the goods, the Court may resort to some other method of establishing the value of the goods: Furness v Adrium Industries Pty Ltd at 669 per Fullagar J. For example, another method of establishing the value of the goods converted is the replacement price of the goods converted: cf J & E Hall Ltd v Barclay [1937] 3 All ER 620 at 624 per Greer LJ; Furness v Adrium Industries Pty Ltd at 675 per Marks J. 70The plaintiffs allege that the defendants became voluntary bailees of the plaintiffs' goods. The plaintiffs' case in conversion clearly arises this way on the pleadings. A lessor taking possession of leased premises, where the lessee leaves goods on the premises after vacation, becomes a voluntary bailee of those goods: Chesworth v Farrar (1967) 1 QB 407 and Bowden v Lo (1998) 9 BPR 16,317. I accept the plaintiffs' submission that once Mr Vines re-entered the premises on behalf of Mr McWilliam he became a voluntary bailee of the goods that the plaintiffs left behind. 71Voluntary bailees are obliged to exercise reasonable care in relation to bailed goods, and if the goods are lost or damaged the onus lies upon the bailees to prove that the loss or damage was not caused by the bailees' own negligence or that of their servants or agents: Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206, at 228. This appears to be true for gratuitous bailees, as for bailees for reward, although the application for the standard of care may vary according to circumstances: see Mitchell v Earling Londonderry Council [1979] 1 QB 1. Here, even if a bailment to Mr Vines occurred on 27 October, the plaintiffs' main problem in this case is proving first what goods were bailed to Mr Vines and secondly, that the goods actually bailed were not returned. 72On the question of the standard of care applied in respect of goods that went into Mr Vines' possession, this case is like many others of the same type, in that Mr Vines did not advance any detailed evidence of what precise precautions were taken to care for the plaintiffs' goods. He engaged removalists who packed up the plaintiffs' goods on 29 October and put many of them into storage. In TNT (Melbourne) Pty Limited v May & Baker (Australia) Pty Limited (1966) 115 CLR 353, at 367 the High Court explained how a bailee may in such circumstances discharge the onus of proof of precautions taken: "But it is not essential, in order to discharge the onus of proof, for a person in the position of a bailee of goods which have been damaged or destroyed whilst in his custody, to establish, first of all, the precise cause of the loss and, thereafter, to establish that the cause arose or operated without negligence on his part (Bullen v The Swan Electric Engraving Co (1906) 22 TLR 275; (1907) 23 TLR 258; The City of Baroda (1926) 25 Ll LR 437, 441, 442; and Makower, McBeath and Co Pty Ltd v Dalgety and Co Ltd (1921) VLR 365, at pp 377, 378); it is sufficient if the bailee is able to establish that he took such care of the goods as was reasonable in the circumstances." 73Here Mr Vines argues that his reasonable care for the plaintiffs' goods may be inferred from a number of objective factors including his engagement of apparently competent removalists. I find that the removalists engaged were apparently competent. Further findings are made throughout these reasons as to how these contractors are likely to have dealt with the plaintiffs' goods. I am also able to find that in respect of some non returned goods: they must have looked like rubbish and it would have been reasonable to have disposed of them as junk. 74In Bowden v Lo (1998) 9 BPR 16,317 Hodgson CJ in Eq overcame any uncertainty in relation to the applicable standard of care in relation to voluntary bailees in a case of a landlord taking possession of goods of a tenant by finding that a landlord who seeks to use their possession of goods in order to gain an advantage of having some security for money owed by the tenant was a bailee for reward to whom a higher standard of care applied. But that is not this case. There is no suggestion in these proceedings that Mr Vines or the landlord were seeking to use their taking possession of the tenants' goods in any way as security for monies owed by the plaintiffs. 75The plaintiffs claim that many of their goods, which were recovered from the storage facility, were damaged. This raises special questions in relation to the onus of proof. It is for a defendant bailee to prove that goods recovered by the plaintiffs in a damaged condition were in fact already damaged when the defendant came into their possession: Jacap Low Loaders v Lindores Plant & Equipment [2005] NSWCA 5. But in this case the Court has been able to draw inferences about the probable cause of damage to most of the goods that were recovered damaged. In most cases of damaged goods it can be inferred from the circumstances that Mr Tatar was himself responsible for the damage. And in a few cases of damaged goods it can be inferred that the removalists probably caused the damage. Some Onus of Proof Issues 76The parties disputed who bore the onus of proof of loss in respect of goods which were returned damaged. There is no doubt that some of the goods taken into storage and subsequently returned to the plaintiff were damaged. For example the desk (item 67); the plaintiffs say had a smashed return when retrieved by Mr Tatar but is shown to be undamaged (in photograph 1 on page 28). But Mr Vines maintains that the return was smashed before he arrived. The plaintiffs submit that as conversion may involve "damaging or altering a chattel" (Bunnings Group v Chep Australia Ltd [2011] NSWCA 384 at [136]), the burden falls on Mr Vines to prove that such damaged goods were damaged prior to coming to his possession. The plaintiffs submit that this is consistent with the position at general law that it is for the person in possession of the goods to prove any loss or damage to goods in their possession is not caused by their own actions or fault: Lord Mounteagle v Countess of Worcester (1554) 73 ER 265 and Hughland v R R Low (Luxury Coaches) [1962] 1 QB 694 and Slaveski v Victoria [2010] VSC 569. But as indicated earlier the Court has been able to draw satisfactory inferences as to the probable cause of any damage to surviving goods. 77The logic underpinning the plaintiffs' argument should be analysed. The plaintiffs submit that Mr Vines' case is that the goods that he did not send to storage were of no value because they were damaged or destroyed. From this it may be inferred that a judgment was made that the goods that were sent to storage were relatively undamaged when a judgment was made to send them there. So any damage to them found when they were recovered from storage must have occurred during the removal and storage process, for which only Mr Vines could be responsible. 78But as the Court's detailed analysis below of the items recovered shows, this is too simplistic a logic. It is quite possible to infer that Mr Vines damaged some of the goods that were recovered. But a major problem for the plaintiffs is that they often cannot even prove the damage they claim occurred. 79Mr Vines says that there is no principle of law requiring a defendant to prove any matter in defence of an action for conversion or in negligence and that the plaintiffs must prove all the elements of their case in the ordinary way. The defendants point out it is clear from the evidence that considerable damage was done to goods on the premises in the days immediately before Mr Vines removed them. The defendants point out that in respect of many, if not most, of the goods in question the evidence does not enable any finding as to whether there was any damage to a particular item, and if so, what damage on the morning immediately prior to removal. As indicated, this is a persistent problem in the plaintiffs' case. Application of the Residential Tenancies Act 1987 and Residential Tenancies Regulation 80The defendants rely upon the Residential Tenancies Regulation 2006 ("the 2006 Regulation"), regs 13 and 14, made under the Residential Tenancies Act 1987 ("the 1987 Act") (the applicable legislation in October 2010) in answer to the plaintiffs' claim. In substance the defendants say that their dealing with regulations 13 and 14 provide them with a defence to the plaintiffs' claim. 81Mr Vines' primary position is that he does not need to establish either the application of, or compliance with, either of these regulations to succeed in defending this action. He submits though, that if he did comply with these two regulations, that would conclusively defeat the plaintiffs' claim in conversion, as the regulations provide authority to remove and deal with a tenants' possessions. The plaintiffs contest this submission by saying that neither of these regulations applies. The parties' respective arguments, dealing with the applicable legislation, are set out in this section. 82The parties contend upon the operation, firstly of ss 79 and 79A of the Residential Tenancies Act 1987. Section 79 provides a regime for dealing with goods abandoned by a tenant after a residential tenancy agreement is terminated, in the following terms: "79 Goods abandoned by tenant after residential tenancy agreement is terminated (1) If a residential tenancy agreement is terminated and goods are left by the tenant on the residential premises, the former landlord may: (a) apply to the Tribunal for an order under this section, or (b) dispose of the goods in accordance with any provision made by the regulations, or both. (2) The Tribunal may, on application by a former landlord under this section, make any one or more of the following orders: (a) an order authorising the removal, destruction or disposal of abandoned goods, (b) an order authorising the sale of abandoned goods, (c) an order directing that notice of any action or proposed ac tion in relation to abandoned goods be given to the former tenant or any other person, (d) an order as to the manner of sale of abandoned goods, (e) an order as to the proceeds of sale of abandoned goods, (f) any ancillary order which the Tribunal, in the circumstances, thinks appropriate. (3) A purchaser of goods sold by a landlord in accordance with an order of the Tribunal or the regulations acquires a good title to the goods in defeasance of the interest of the former tenant or any other person who has an interest in the goods. (4) A former landlord does not incur any liability in respect of the removal, destruction, disposal or sale of goods in accordance with an order of the Tribunal or the regulations." 83But the legislation also deals with goods left by a tenant which are not to be treated as abandoned after a residential tenancy agreement is terminated. The legislation contemplates that this will be where the goods left behind are the subject of an application for an order for delivery of those goods into the tenant's or another person's possession. This is provided for in s 79A of the Residential Tenancies Act 1987 as follows: "79A Goods left by tenant, but not abandoned, after residential tenancy agreement is terminated (1) If a residential tenancy agreement is terminated and goods are left by the tenant on the residential premises: (a) the tenant, or (b) any other person having an interest in the goods, may apply to the Tribunal for an order for the delivery of the goods into the tenant's or other person's possession. (2) The Tribunal may, on application under this section, make any one or more of the following orders: (a) an order for the delivery of the goods into the tenant's or other person's possession, (b) an order requiring the tenant or other person to pay any reasonable costs incurred by the landlord in connection with the removal, storage or delivery of the goods, (c) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. (3) A former landlord does not incur any liability in respect of the disposal of goods in accordance with an order of the Tribunal under this section. (4) To avoid doubt, an application may be made under subsection (1) even though, when the application is made, the goods are no longer on the residential premises." 84The provisions of the 2006 Regulations applicable to the parties' argument are regulations 13, 14, 15, 16 and 17, with regulations 13 and 14 being of principal relevance. All of these provisions are within a section for 2006 Regulations entitled "Part 4-Disposal of Goods left by a Tenant". 85Regulation 13 provides a regime for what goods left on residential premises after a tenant vacates to become what is defined as "uncollected goods". It provides in full as follows: 13 Uncollected goods (1) Goods that have been left on residential premises by the tenant after the tenant vacates the premises become "uncollected goods" for the purposes of this Part when the tenant vacates the premises. (2) Despite subclause (1), if the tenant vacates the premises before the residential tenancy agreement is terminated, the goods become uncollected goods when the agreement is terminated. (3) Uncollected goods may be disposed of as provided by this Part, but only if the requirements of this Part are complied with. 86Once goods are left behind and become "uncollected goods" under regulation 13, they may be dealt with after two working days by regulation 14, which provides as follows: "14 Options available to the landlord when goods not collected (1) Uncollected goods that have not been removed from the residential premises by the tenant within 2 working days after they became uncollected goods are to be dealt with as provided by this clause. (2) The goods are to be stored in a safe place by the landlord unless the goods are disposed of as authorised by this clause. (3) If the goods are perishable foodstuffs, the landlord may remove and destroy or otherwise dispose of the goods. (4) If the landlord is reasonably of the opinion that it would cost more to remove, store and sell the goods than the goods are worth, the landlord may remove and destroy or otherwise dispose of the goods. (5) In this clause: "working day" means any day that is not a Saturday, Sunday or public holiday. " 87Thus the goods are either to be "stored in a safe place by the landlord" or disposed of in accordance with regulations 14(3) or 14(4). There were no perishable foodstuffs in issue here. 88When goods are stored by a landlord, the landlord must give written notice to the tenant that the goods have been stored in accordance with regulation 15. Regulation 15 provides that notice must be given and published within 7 days of storage of the goods and provides for the contents of the notice (regulation 15(1) and (4)). Finally, uncollected goods, which have been stored by the landlord for 30 days may be sold by public auction and the landlord is required to account to the tenant for the net balance of the proceeds of sale: regulation 16. Regulation 17 gives a person entitled to possession of goods left on residential premises a right to claim the goods at any time before they are destroyed, sold or otherwise disposed of under that part. A landlord is entitled to require payment of the landlord's costs and expenses actually incurred in removal and storage of the goods before re-delivering the goods to their owner: regulation 17(3). 89Mr Vines' case on the 1987 Act, ss 79 and 79A and regulations 13 and 14 may be shortly stated. Mr Vines says that s 79 applies because the residential tenancy agreement was terminated and ample opportunity was given to the plaintiffs to remove the goods before the landlord retook possession, but they did not do so. When the landlord's agent took possession on behalf of the landlord, goods had been left on the premises. Mr Vines submits that s 79(1) was satisfied, as the residential tenancy agreement was "terminated" and "goods are left by the tenant on the residential premises". Mr Vines submits in consequence that a right accrued to the landlord under s 79(4) to dispose of the goods "in accordance with...the regulations". 90Mr Vines submits that the circumstances that enliven the operation of s 79A are identical to those enliven the operation of s 79. Mr Vines points out that the only real difference between the two provisions is that s 79A simply provides for the tenant to make application to the Tribunal in respect of goods, whereas s 79 gives that liberty to the landlord. 91The plaintiffs submit that there is no right for Mr Vines to dispose of the goods under regulations 13 and 14; Mr Vines cannot bring himself within s 79 because the goods have not been "abandoned" by the tenant. If goods are not "abandoned" then the landlord cannot take advantage of s 79(1)(b). 92Mr Vines' construction of ss 79 and 79A is the more persuasive. Section 79 does not contain the word "abandoned" in its text. It is not necessary for the landlord to demonstrate that the goods are "abandoned" before the landlord can exercise rights under s 79. The "provision made by the regulations" if followed, itself makes clear that the tenant is not seeking immediately to claim delivery of the goods and in that sense it may be inferred that they were abandoned in the course of the landlord disposing of the goods in accordance with the regulations. 93I accept the plaintiffs' argument that only the tenant has rights under s 79A to go to the Tribunal with a delivery of goods that have been left by the tenant on the premises. But s 79A does not set a code that prevents the landlord from dealing with the goods unless the landlord can show somehow they are "abandoned", so as to enliven s 79. Rather, s 79 simply provides a protection from liability to a landlord for the removal, destruction, disposal or sale of goods left by the tenant on residential premises, provided the landlord complies with the regulations. There was no order of the Tribunal here so that part of s 79(4) is irrelevant. 94Mr Vines says he complied with the regulations. The plaintiffs dispute this. The plaintiffs argue that Mr Vines and the landlord, cannot avail themselves of the protection afforded by s 79(4) against liability for the removal, destruction, disposal or sale of goods because they did not comply with regulation 14. The plaintiffs argue that goods qualify as "uncollected goods" within regulation 13 if they are "goods that have been left on residential premises by the tenant after the tenant vacates the premises" [emphasis added]. Here the tenants, the plaintiffs, vacated only when the sheriff changed the locks on Wednesday, 27 October at about 11.45am. 95In my view the plaintiffs are correct. The goods became "uncollected goods" at the moment the locks were changed. Whether or not the lease was "terminated" within s 79, it was the change of possession on the Wednesday morning, at which point the plaintiffs vacated the premises, that first made the plaintiffs' goods left on the premises "uncollected goods". 96But regulation 14(1) effectively provides a qualifying period of "two working days after [the goods] become uncollected goods" before they can be dealt with in the ways provided for by regulation 14, by storage (regulation 14(2)) or disposal (regulation 14(4)). I accept the plaintiffs' argument that the "two working days" means two full ordinary working days. Two full working days only expired on Monday, 1 November. Wednesday, 27 October is only part of a working day. The Thursday and Friday, 28 and 29 October were the two days that needed to expire before the landlord was authorised to deal with the goods "as provided by this clause": regulation 14(1). 97But Mr Vines acted before that by starting on the Friday morning. The plaintiffs' submission is persuasive that Mr Vines did not act in accordance with regulation 14. Even if it was arguable that the "two working days" should be measured from the moment of repossession on the Wednesday to the equivalent time on the Friday, Mr Vines does not have the benefit of the regulation. The removalists had begun their work well before 11.45am on 29 October. 98But I accept the plaintiffs' further alternative argument that even if the regulation does apply the liberty granted to the landlord to "remove, destroy or otherwise dispose of the goods" under regulation 14(4) only exists "if the landlord is reasonably of the opinion that it would cost more to remove, store or sell the goods than the goods are worth". To the extent that the goods have been disposed of and not put in storage, neither Mr Vines nor the landlord thought to advance either a subjective opinion or any objective justification for the holding of an opinion that the material removed, destroyed or disposed of "would cost more to remove, store and sell...than the goods are worth". Mr Vines simply did not attempt to mount such a case. Neither Mr Vines or the landlord can, in my view, avail themselves of any protection afforded under the 1987 Act, s 79. Room-by-Room Analysis of the Plaintiffs' Claim 99Assessing the plaintiffs' claim is difficult. The Court has rejected much of Mr Tatar and Ms Naylor's evidence. Neither of them are a generally reliable source of information about what was present in the apartment between 25 and 29 October 2010. But that does not mean their claim should be dismissed. The plaintiffs bear the onus of establishing what remained in the apartment on 29 October 2010. 100There are complicating factors in assessing what was left in the apartment when the removalists and rubbish disposal contractors started work. Mr Tatar and Ms Naylor's credit is not the only basis upon which inferences can be drawn about what was in the apartment in the early afternoon of 29 October 2010. The police photographs and the objective probabilities are also a basis for assessment. Ms Naylor and a family friend Ms Stanton had spent time collecting items from the apartment. They removed goods from the premises before lunchtime on 29 October 2010. But working out what they removed that day and what remained, can also partly be inferred from photographic evidence and the objective probabilities. 101In places Mr Tatar and Ms Naylor's oral evidence is accepted. But apart from that, the Court attempts to look at what is established from the photographic evidence and the objective probabilities as to what was likely to have been in the apartment on 25 October 2010. The Court has some witness testimony, some photographic evidence and some conclusions that may be drawn from the objective probabilities to base inferences about what may have been removed from the premises before lunchtime on 29 October 2010. The Court then considers how what remained was probably dealt with by Mr Vines, the removalists and the rubbish disposal contractors. 102The Court's assessment is compounded by lack of documentary evidence on both sides. This is ultimately more a problem for the plaintiffs who bear the onus of proof. Mr Vines has been criticised for not taking by lunchtime on 29 October 2010 a better inventory of what was present in the apartment. But the plaintiffs have little or no documentary evidence to support the acquisition, insurance or maintenance of any of the items which they claim were left in the premises that afternoon. 103The plaintiffs' claim for 277 lost or damaged items identified the items claimed by which of the rooms of the apartment they were said to be located when last seen by the plaintiffs. The analysis of the evidence in these reasons about the plaintiffs' claim adopts the same structure. The following rooms were claimed to be the locations of missing or damaged items:- (a) Bedroom 1 - the Main Bedroom (b) Dressing Room (c) Office (d) Bedroom 2 (e) Hall Cupboard (f) Kitchen (g) Medical (h) Lounge (i) Laundry/Garage (j) Other Miscellaneous Items 104But first there is one common area of claim to the most valuable property of all, jewellery, that can be dealt with together. The Jewellery Claims 105I do not accept that any of the claimed jewellery was at the apartment when the locks were changed. I draw this conclusion for a number of reasons. First, I do not accept the oral evidence of Mr Tatar and Ms Naylor that they owned such jewellery. Secondly, they produced neither receipts nor valuations, of any of the jewellery. The photographs of some of what was said to be the jewellery did not demonstrate it was not costume jewellery. And the only corroborative witness who supported their case that they owned the jewellery was discredited. Thirdly, Ms Naylor did not behave on 27 or 29 October 2010 as though there was any jewellery in the apartment: in her dealings with Mr Vines; in her searches of the apartment; or in her discussions with Mr Tatar on the evening of 29 October 2010. Fourthly, Mr Tatar did not behave as though he believed that there was any jewellery in the house in his discussions with Ms Naylor on the evening of 29 October. Fifthly, neither Mr Tatar nor Ms Naylor behaved during the alleged break-in on the evening of 25-26 October 2010 as though there was jewellery in the house. These reasons do not consider the plaintiffs' jewellery claims in much more individual detail for the reasons set out in this section. These reasons now elaborate the summary matters set out in this paragraph. 106The plaintiffs claimed that there were three valuable items of jewellery in the main bedroom, a diamond pendant in a platinum setting allegedly purchased from Tiffany & Co in Hong Kong for $55,200 (item 12), a Tiffany & Co heart padlock bracelet in diamond and platinum said to have been purchased at the same time for $11,000 (item 13) and a Cartier Tank Americane watch in rose gold, said to have been purchased in 1998 (item 14). The plaintiffs produced no valuations, purchase receipts or insurance details in respect of any of these items. Some of the most difficult evidence to accept from Ms Naylor was her account of why it was she did not look for these items when she was in the premises on 27 and 29 October 2010. She had the longest time in the premises on the Friday, 29 October 2010 and she had some bags with her. She was there for just under 2 hours on 29 October 2010. In that period of time she did not go into the first bedroom where all these items were said to be and look for the pendant or for the other two items. Her unconvincing explanation for not allocating priority to taking such items of value was "I was in complete shock and lack of reasoning". 107She said that on 29 October 2010 she only had one carry bag and that Mr Vines gave his daughter's Samsonite suitcase to use as well. I leave aside for a moment that her evidence in this respect is contradicted by the photographs that show at least 6 to 8 plastic carry bags in the premises, which I infer she had brought earlier to the apartment for the purpose of removing material. Even accepting her story of having only two bags, she had difficulty in explaining her decision-making about putting material in those two bags. What items received priority? She explained that she was "obsessing about a book with a signature on it". That would account for some of the nearly two hours. But she found the book that she wanted fairly quickly. It was where she expected it to be. Then she spent the next period of up to 2 hours, as she explained, "deciding what clothes to take". She was well aware that three jewellery items mentioned were in the bedroom. But she says she did not pack them. I accept her evidence that she was concerned about retrieving her autographed book about the history of the North Queensland Palmerston River area, by Michael Rimmer, a former teacher of hers. But that does not explain why she did nothing about finding and retrieving the jewellery and other items of considerable value for the remainder of the period that she was there. She sought to deflect the inference that might arise from her evidence (that there was no valuable jewellery there) by denying some of the items of jewellery had any sentimental value to her. But to the extent that she had such jewellery, I do not accept that it was not of sentimental value to her. And whether it was of sentimental value or not, Ms Naylor knew its value, and was a person who would seek out items of value in such circumstances. I am not satisfied that the plaintiffs had these three items of jewellery (items 12, 13 and 14) of that value on the premises at any time between 25 and 29 October 2010. 108The plaintiffs point to photographs of jewellery which they claim was the jewellery in question. There are several photographs in evidence of Ms Naylor with a pendant around her neck and with earrings that may answer the description of those now claimed. But in the absence of any valuation, insurance or purchase receipt evidence, I am not prepared to infer in the plaintiffs favour that these items were the items claimed or that these items, were still in the plaintiffs' possession at the apartment in the week in question, 25 to 29 October 2010. 109The plaintiffs jewellery claim faces further difficulties. The plaintiffs claim that most of the jewellery was purchased overseas, for in excess of $1,000. Yet none of it was declared to custom authorities on its return on being imported into Australia. When asked in respect of the Rolex watch why Mr Tatar did not declare it, he explained he did not want to pay duty. In my view, the absence of any evidence from customs authorities of the importation of any of these items is another reason not to infer that they ever existed as valuable items in the plaintiffs' possession. 110The plaintiffs' final claim was recorded in a schedule attached to their Statement of Claim. The final version of that was dated 7 September 2011, and the items within it are organised room by room, starting with the main bedroom, and with item numbers for each piece of equipment. (a) Bedroom 1 - the Main Bedroom 111Both Mr Tatar and Ms Naylor gave evidence about the contents of this room. The first defendant, Mr Vines, submits that Ms Naylor's evidence cannot be used to support claims for loss of any of the items in this room, principally because, it is submitted that she cannot say what items remained in the room or whether items were damaged during events of the night of 25 October 2010. 112Mr Vines also submits that Mr Tatar's evidence cannot be accepted because of the circumstances of his memory loss and departure from the premises on the morning of 26 October 2010. Mr Vines is correct that Mr Tatar can say little about what remained in the property between 26 and 29 October. That is a feature of all of his evidence and is the inevitable result of his hospitalisation on 26 October. 113The individual items in the main bedroom must be treated separately. 114(1) Dark Wood Four-Poster Bed, King Size. The plaintiffs claim that the behead and ends have been recovered but the remainder of the structure of the bed is missing. Mr Vines submits the dark wood four poster bed may have been damaged, justifying its disposal. He asked the Court to infer that as items on that level were struck with a hammer and slashed with a knife that damage to the bed is the most likely explanation for it not now being fully available. Ms Naylor's evidence initially was that only the bedhead and bed were recovered but the remainder of the structure was missing. But under cross-examination she agreed that "the bed was recovered in full but it had scratches all over it". In my view this evidence should be accepted. The full bed was recovered and it did have scratches all over it. But I find that those scratches were caused by Mr Tatar's frenzied attacks on the evening of 25 October. 115The bed had been properly dismantled by the removalists and put together, such that Ms Naylor could identify it as a complete bed in the storage facility. Thus the plaintiffs' claim on this item leads to a result that the bed was fully recovered but it was damaged by marks that, in my view, are wholly consistent with having been incurred by Mr Tatar's violence on the night of the 25 October. The plaintiffs therefore have no maintainable claim in respect of this item. 116(2), (3), & (4) Duxina Mattress and Base, King Size, Down Pillows, Mattress Protector. The plaintiffs claim that these items are all missing. Although said to be missing I accept the photographic and police evidence that these items had all been slashed with a knife. The police photographs (see photos 39-44) show a knife and slashed pillows. Mr Tatar's attack in this area of the residence using a knife seem to be so random and frenzied that it is probable that the mattress protector and mattress were damaged at the same time as the pillows. I accept that these items are missing from the storage facility. In light of the inference I have drawn about them being damaged, the most probable explanation for their absence from the storage facility is that a choice was probably made by the removalist to discard them as they were justifiably judged to be damaged and worthless. That is the inference that I draw. A quite rational judgment, without any negligence, seems to have been made that they were of no value because of knife slashing damage. They were sent to the tip. 117(5) Two Bedside Tables. The plaintiffs claim that these tables were damaged. Ms Naylor says that she saw both bedside tables damaged in storage. She said that she inspected them between the time of the incident and the time she saw them damaged in storage. But her evidence about their condition between 26 and 29 October seems to be incomplete: she did not volunteer any of the evidence of them being undamaged in this interval. Mr Priestley showed her photographs of the main bedroom and suggested to her that "you can't say that there was anything that wasn't damaged" to which she responded, "it's pulled apart". Her observations are correct. I accept from the police evidence and from the photographs that a hammer and a knife were probably used in this room and that the bedside tables were probably damaged in this way by Mr Tatar. The police found both a hammer and a knife in the apartment on 26 October. I conclude in respect of the bedside tables that any damage to them, which has been found, was entirely caused by Mr Tatar, not by the removalists. 118(6) Entertainment Unit. The plaintiffs claim that this unit was damaged, having had some drawers and runners ripped from the frame and other drawers smashed so that the unit now cannot be operated. Ms Naylor says she did not notice whether the entertainment unit was damaged at the time she went back to the premises and up to the master bedroom, on Friday, 29 October. Her evidence is of little assistance about this item. Ms Naylor says she did not look in the drawers of the entertainment unit because they did not contain anything that she was interested in collecting. I accept that much of her evidence. 119But in my view a particular object of Mr Tatar's frenzy was some of the electronic equipment in the apartment. The television sets were particularly attractive objects for his attention. I find that he smashed the television sets with a hammer. Indeed Mr Vines (image 4938) shows one of these damaged in the main bedroom. In my view it is probable that the entertainment unit on which the first bedroom television set was sitting (as is clear from the photographic evidence) was also damaged at the same time. This justified in my view a decision by the removalists to dispose of the entertainment unit as of no value. I find that is what happened. 120(7) The 42" Plasma NEC Television. The plaintiffs claim that this television set is missing. I infer from the photographic evidence (Mr Vines, image 4938) that Mr Tatar and Ms Naylor did own a plasma NEC television set. It is clearly evident in the photographs of the main bedroom taken after the 25 October incident. There is no doubt in my view that the television set was damaged. Image 4938 of the Vines photographs clearly shows that television damaged and overturned in the main bedroom. I infer that Mr Tatar damaged the television set with a hammer or similar light instrument in the course of frenzied behaviour in the bedroom on the evening of 25 October. I infer that what probably happened when the removalists encountered such a badly damaged piece of electronic equipment is that they reasonably, and without negligence, judged that it was beyond repair and disposed of it. That is why it was not found in the storage facility. 121(8) A DVD Player. The plaintiffs claim this item was missing. I accept that it was missing and was not found in the storage facility. In my view it is likely to have met the same fate as the television set. The nature of the damage in the bedroom, and in other parts of this apartment was that in the course of this mad episode Mr Tatar seemed to have enjoyed breaking things; indeed, the more breakable the better. This is evident from many rooms, the destruction of glassware, crockery and other breakable items is a consistent feature of the result of his behaviour. If Mr Tatar and Ms Naylor owned a DVD, it was likely to be a highly attractive object to Mr Tatar's depredation. In my view it is likely to have met the same fate as the television set. 122But did Mr Tatar and Ms Naylor own a DVD? They claim that they did. I have considerable scepticism about their evidence. The photographic evidence does not prove the existence of the DVD player in the bedroom. But I am prepared to infer that they owned one because they had other more expensive electronic entertainment equipment, such as the plasma television set. That being said, Mr Tatar is likely to have destroyed the DVD. The removalists then probably disposed of it. Disposal was a reasonable response to finding what was by then a worthless item. 123(9) Chair. The plaintiffs claim that this item was damaged because the leather was torn and indented. Ms Naylor is not able to say that the chair was not damaged before Friday, 29 October. In my view, Mr Tatar was on a campaign to tear, break or destroy whatever he could on 25 October. A chair made of leather would be a natural object for his attack. In my view Mr Tatar caused any damage to the leather to the chair. Ms Naylor's evidence does not displace that inference. Any indentations are likely to have been caused by Mr Tatar using a blunt object. And any tearing to the leather by his using a knife. I do not see Mr Vines or the removalists as being responsible for any damage to this item. 124(10) DVD's. The plaintiffs claim that these DVD's were missing. Ms Naylor explained the DVD player was on the entertainment unit. I am prepared to infer, notwithstanding the general problems in Ms Naylor's and Mr Tatar's evidence, that if they owned a DVD player they probably owned DVD's. But whether these DVD's had any obvious value to the removalists is doubtful. When asked of the plaintiffs' claim for 30 DVD's, whether she could "name five of them?" Ms Naylor's only response was "they were adult ones". She still could not name them other than they were "rather scandalous". She could not remember any non-adult DVD's. In my view there probably were some DVD's of this kind in the entertainment unit. But they were: either not noticed when the entertainment unit was discarded, because it was damaged; or if they were noticed, they appeared to the removalists to be of such little value that they were discarded. In my view the removalists threw these items out. The decision to do so was reasonable because they had in fact no value. 125(11) Perfumes. The plaintiffs claim that these items were missing. This is the first of a coherent set of items on which I am prepared to draw some inferences in Ms Naylor's favour. Despite the poor quality of her evidence, Ms Naylor presented as a woman who was proud of her appearance and took considerable care to present herself as neatly and attractively as possible. Although the number of items she has claimed in respect of personal grooming and clothing are rather excessive, I am prepared to accept, given the way she presented to the Court that her evidence is accurate in respect of some of these items, such as perfumes, suits, blouses, lingerie, hosiery and the like. 126Perfumes are the first of this group. Ms Naylor presented herself to the courtroom was someone who would have a number of different kinds of perfume at her ready disposal, even though she could not prove the purchase of any of them. She claims ten. I am prepared to infer she had five. Her preferences about these perfumes under cross-examination seem to be quite vague. But I am nevertheless prepared to infer that she had five. 127Mr Vines submits that there is no evidence that the perfume bottles were "nearly full" or "nearly empty". That is true. On average it is reasonable to infer they had enough perfume in them to be worth keeping. I infer they were approximately half full. In my view, it is unlikely that Mr Tatar would have been able on the evening of 26 October to smash perfume bottles in the bedroom itself, which is carpeted. To the extent that inferences can be drawn, he did not appear to transport items around the house to deliberately destroy them. Rather he seemed to randomly pick on items wherever they could be found. Ms Naylor was able to give a reasonable account of the different names of the perfumes that she preferred, of the way the perfumes were packaged and of who gave them to her, which adds a degree of credibility to this part of the claim. 128(12), (13) and (14) Tiffany & Co & Cartier jewellery. As has been explained earlier in these reasons the plaintiffs claim that a Tiffany & Co padlock pendant of diamond and platinum, a hearts padlock bracelet of diamond and platinum and a Cartier Tank Americane watch in rose gold were in the main bedroom and are now missing. But for the reasons already set out above I do not accept this claim. 129(15) Sphygmomanometer - Omron 1A1B. This item was claimed to be missing. A sphygmomanometer is a small portable electronic device for the measuring of blood pressure. Mr Tatar appeared to be someone who was concerned about his health and I infer that he owned a sphygmomanometer. But it is a small delicate, breakable item and in my view the probabilities are that he destroyed it himself on the night of 25 October. The best explanation for its absence is that whatever was left of it was disposed of by the removalists: a reasonable decision for which they cannot be criticised. 130(16) Assorted marital aids. These items were claimed to be missing. Ms Naylor claims that she remembers these items and that they were stored under the bed on a towel. But the photographic evidence of the main bedroom does not support that evidence: see Vines, image 4939. The plaintiffs have not made out this part of their case. Even if such items existed, it is highly probable that they were quite reasonably and without negligence judged by the removalists as used items of a personal nature, which were fit only for disposal. 131Bedroom 1 - Summary. The plaintiffs succeed in showing she had approximately five half full bottles of perfume in the main bedroom which were not recovered. Otherwise the plaintiffs claim in relation to the main bedroom fails. (b) Dressing Room 132The dressing room is immediately adjacent to the main bedroom. The photographic evidence shows a high degree of disorder in the dressing room, as though Mr Tatar had pulled clothes off racks and strewn them around the room. The dressing room shows his clear desire to create as much disorder and chaos as possible in this room in the course of that evening. 133Both Mr Tatar and Ms Naylor had a taste for luxury goods. I am prepared to infer this from the way they presented to the Court and from some of the items that appear in photographs of their apartment. But the real issue is how many luxury goods they actually owned. As with the main bedroom, the dressing room is alleged to have contained some jewellery, which I will deal with below. But the dressing room is also alleged to have contained furs and leather coats and expensive items of clothing. In my view, consistent with her character, Ms Naylor would have dealt with such expensive portable items in the same way as she would have dealt with jewellery, when she was admitted to the property on 29 October. It is necessary now to go to the detail of the individual items in the dressing room. 134(18) Ten Women's Business Suits custom made by Stephen So, Hong Kong. Ms Naylor's evidence was that she looked in the cupboards in the dressing room on the 29 October and the ten business suits she claims to have owned were absent, even before any removal trucks had come. She said she could not see any of these business suits on the floor of this room in the photographs. She agrees that none are visible in the photographs - and Vines, image 4936 seems to confirm this. But she says that the suits were present on the morning of the 29 October and she was unable to pick them up and take them away, because she did not have enough packaging and assistance. 135I accept that Ms Naylor used a mixture of jackets and skirts as business suits, which were purchased, as she said, from Steven So in Hong Kong. But she had trouble in evidence identifying the suits beyond various shades of grey and blue. If she actually had ten suits, in my view, given her interest in clothes and luxury items she would have been able to describe their differences in more detail. I infer that she had four of these suits, but no more. This is consistent with her desire to present herself well. I am prepared to infer that she was not able to pack these and take them away in the time that was available to her. Although they were valuable, they were disposed of as rubbish by the removalists, because they were mixed up with other rubbish. But these items were of sufficiently obvious value that they should have been kept by the removalists. It was not reasonable to have disposed of them. 136Mr Vines says that the photographs of this area show that these items were not present on 29 October. Certainly it is difficult to see any such business suits apart from jumbled material in the photographs taken on 29 October. But they could easily have been jumbled up with other material and were not separately discernible. It is probable in the time available that she could have picked up one or two of these suits. And for that reason I am prepared to infer that two of them were left behind. Thus the plaintiffs can make out a claim for two suits. This inference is supported by Mr Tatar's production of a credit card receipt that may relate to some of these suits. Mr Tatar says that he attempted to telephone Mr So in April or May of last year but was unable to make contact with him. I do not accept that evidence. I infer what I do about these suits from my observations of Ms Naylor and the photographs. 137This conclusion is consistent with the other photographic evidence from Mr Vines. His photographs were taken in two days after the police photographs and they do show less clothing in the dressing room and the associated bathroom. Mr Vines questions why Ms Naylor would leave such large quantities of expensive clothing there. Mr Vines is partly right. If she owned ten suits she probably would have removed more than half of them. But finding the valuable in the chaos of the less valuable was not easy in the time Ms Naylor had available on 29 October. Ms Naylor gave evidence that Mr Tatar purchased these ten women's suits for her in 2009. She says that he arranged the purchase and she had a fitting session for one of the suits. It seems the others were then made according to that fitting. I generally accept her evidence as to there being suits purchased in this way but, not ten, only four. 138Although there were no receipts tendered for all these suits, I accept that Ms Naylor thought Mr Tatar was handling that part of the case preparation. Mr Tatar does seem to have been more closely involved in preparing the materials for presentation in the proceedings, and therefore the absence of receipts to support items more likely to be owned by Ms Naylor is slightly less telling against her than the same absences would be against him. 139(19), (25), (51) Versace leather jacket, Silver fox coat, black Cashmere Overcoat. The plaintiffs claim that these items are missing. The plaintiffs allege that they ranged in value from $3,500 (for the leather jacket) to $9,500 (for the silver fox fur coat). Like the jewellery these are small, portable items. Had they existed, Ms Naylor would have targeted them upon her return to the premises on 29 October. I do not accept that she was at that stage so shocked and incapable of making judgments herself or giving instructions to Ms Stanton, who was with her, that she could not try and find these items and retrieve them, if they existed. I am not prepared to infer that these items then existed in the premises. There is no insurance evident in respect of them. There is no purchase evidence in respect of them. There is no evidence that Ms Naylor went hunting for them on 29 October. 140(20) Approximately 25 pairs of shoes. Ms Naylor claims that she lost about 25 pairs of shoes in the removal, of which two or three pairs were recovered, together with a numerous odd shoes not belonging to a pair. In my view part of this claim can be accepted. Careful of her appearance and presentation, it is likely in my view that Ms Naylor owned a number of pairs of shoes. Although I do not accept her evidence that she owned 25 pairs. Shoes by their nature would be difficult to pair up and take away in the chaotic scene that no doubt greeted Ms Naylor when she had to remove items within a short time on 29 October. It is equally unlikely that such items could have been readily destroyed by Mr Tatar on his rampage: special attention would need to be given to such small items to do them much damage. In my view it is reasonable to infer that Ms Naylor had a dozen pairs of shoes and that she was able to take away half a dozen pairs. The other half a dozen were thrown out by the removalists. It is probable in my view that the removalists did not bother to spend time matching up any pairs and seeing whether they had any value and retaining them. But they were valuable and obviously so. Thus about half a dozen pairs of those shoes would have been lost. The first defendant has not explained their loss. 141(21), (28) Approximately 20 sets of lingerie, La Perla, YSL and Ravage; hosiery numerous. I am prepared to infer that Ms Naylor owned some of these items for the reasons explained generally before: that she was careful of her appearance and had a taste for luxury. But the claim is excessive in my view. I am prepared to accept that less than half of this claim can be made out: six sets of lingerie and six items of hosiery. All of these small items, although they had some value, would be difficult to retrieve but are unlikely to have been destroyed in Mr Tatar's rampage, because they would either have to have been unpackaged by him before destruction or other special attention given to their destruction. They were probably thrown out by the removalists. But like Ms Naylor's business suits they could have been separated from the other clothes without too much effort as they were luxury items. The claim will be made out to that extent. 142(22), (23), (24), (26), (27) Six Evening wear couture items, Ostrich Handbag, Lizard Handbag, Reading glasses, Five Sunglasses. The plaintiffs contend that these items were missing. One should be cautious about making judgments concerning the lifestyle of a witness simply by his or her appearance. But I am prepared to accept from her overall presentation: that Ms Naylor had an interest in fine clothing and couture; and that she had, as she claims, a number of expensive evening wear and couture items of fine quality made by Lanvin, Armani, Chanel, Alexander McQueen and Christian Lambortin. But I am only prepared to accept she had three of those items, not the six claimed. Moreover my judgment of Ms Naylor was that she would have been astute on 29 October to find reasonably portable items of significant value within the time available to her. I do not accept that the three items that she owned were entirely missing. In my view she would have been likely to have found two of them in the time she had available, an inference I draw from the time she had available and her well-developed sense of self-interest that she should carry away portable items that she could find. Thus I am prepared to allow one couture item as having been lost, but no more. 143Ms Naylor would have required accessories for such handbags (items 23 and 24). But I do not accept that she had particularly expensive handbags, of the kinds claimed. If she did, in my view, she would have taken away such readily portable items, especially because the ostrich handbag is claimed to be worth $1,500 and the lizard handbag $500. Ms Naylor said that she would not able to carry any handbags away with her on either the 27 or 29 October, except for the one that she had in court with her. I do not accept that evidence. In my view she did take away any handbags of value. Reading glasses and sunglasses (items 26 and 27) are small, easily crushable items that were likely to have been destroyed in the course of Mr Tatar's activity on the night of the 25 October. I am prepared to accept Ms Naylor and Mr Tatar had reading glasses and sunglasses. But I am not prepared to infer that any of them survived Mr Tatar's rampage and then were not collected. In all probability they were destroyed and probably thrown out by the removalists as garbage. 144(29), (30), (65) Diamond drop earrings, Diamond stud earrings, Rolex Yacht master II watch, white gold. The plaintiffs claim that these items were missing. But the diamond drop earrings and the watch are all small, highly portable and valuable. Ms Naylor was in the house for sufficient time on 29 October to find these items if they existed. For the reasons explained before in relation to the jewellery, I am not prepared to infer that these items existed, as she did not go and look for them immediately. She seemed to know the general vicinity where they were all kept. They would not have been difficult to find, had she thought they were there. This part of the claim is not made out. These items were claimed to have the following values: $40,000 (Rolex watch); diamond drop earrings ($15,000) and diamond stud earrings ($9,000). 145And Ms Naylor gave very unconvincing evidence about how she came by items 29 and 30. Schedule A to the Statement of Claim says the approximate date of purchase of these items was 1997. Ms Naylor explained that although she had only been in a relationship with Mr Tatar since 2007, he gave these items to her, well after their purchase. Ms Naylor explained that he gave the items to her in the Pottinger Street house, the subject of these proceedings, "for my birthday". 146But that was impossible. Mr Tatar and Ms Naylor did not move into the subject premises until the second week of November 2009, which was after her birthday that year. Her 2010 birthday was 26 October 2010, the day that Mr Tatar was taken to hospital, not a day where he was in a position to make any gifts to her. Her evidence about when these items were given to her must be wrong. It is another reason to doubt that the items ever existed in her or Mr Tatar's possession. Moreover Ms Naylor was not able to give a very adequate description of what these items of jewellery looked like or how Mr Tatar was able to come up with values of $15,000 and $19,000 respectively for them when they had never been formally valued. 147Also Mr Tatar claims that he purchased the Rolex watch in Hong Kong and brought back into Australia. But as these reasons have earlier stated, he did not declare the watch at customs, although it was allegedly worth $40,000. When asked why he did not do so he said "I don't want to pay duty on it". This rather candid admission of fraud of Australian customs authorities does Mr Tatar little credit. But I doubt that he defrauded custom authorities at all. In my view it is more likely that the Rolex watch never existed in his possession. 148(31) (32) Five Brioni Business Suits, five Zegna Suits. The plaintiffs claim that all of these items are missing. But I do not accept the claims in respect of these items for the following reasons. According to Ms Naylor's account these were men's suits purchased in Hong Kong and she was present at the time some of them were purchased. But she says that she made no attempt to get any receipts for the suits, because she left that to Mr Tatar. 149These business suits are examples of the plaintiffs failing to provide adequate evidence to support their claim. Each of the business suits are claimed to be worth $4,500, making a total, for five suits, of $22,500. If they were purchased in Hong Kong as Ms Naylor says, they were all probably purchased within about 18 months before the proceedings were launched. There seems to be no good reason why Mr Tatar could not have gone back to the Hong Kong retail outlet to obtain proof of purchase, even if he had not retained the receipts himself. It is more likely than not that some kind of business record of the sale of these suits would have been kept within that period. There is certainly nothing in Ms Naylor or Mr Tatar's evidence suggesting that there was anything unusual about the retail outlet from which they were purchased, or that it had closed down, such as to deflect this ordinary inference. 150I am not prepared to infer that Mr Tatar owned these items. Mr Tatar says that he could identify one of the Brioni suits in the police photographs (at page 49). But whatever the item is - and it may indeed be part of a suit - I am not prepared to infer it was a Brioni suit of the kind Mr Tatar claims to have purchased. Whatever it was it seems to be crumpled and could quite reasonably have been discarded. I am not prepared to infer that these suits were ever in Mr Tatar's possession. 151Mr Tatar claims that he purchased the five Brioni business suits in Hong Kong and brought them back to Australia. He has no idea whether he paid for them by credit card or with cash. I have no confidence in his evidence as to how or when these suits were allegedly purchased, which is very vague. Although he does not give precise evidence about the Zegna suits I infer their acquisition is claimed to be of the same kind. But I have no confidence in his evidence about the Zegna suits either. 152Ms Naylor does not assist in relation to either these sets of suits. She says she left it to Mr Tatar to gather evidence about their purchase. In my view the net result of this evidence is that Mr Tatar probably did have suits of average quality but no suit of any particular value, such as a Brioni or a Zegna suit. I further infer that Mr Tatar's rampage was so destructive that such of these suits as have survived the rampage, such as these ordinary quality suits, probably just looked like rubbish and were reasonably treated that way by the removalists. 153Ms Naylor agreed that Mr Vines' photographs (image 4936) do not depict any of these suits on the floor. In my view that is another reason to infer that the suits did not exist. Indeed Ms Naylor gave some puzzling evidence that when she looked in the cupboards on the 29 October most of these business suits were absent even before any removal trucks had come and been loaded. In my view the best explanation of the absence of these suits was not that they were stolen by intruders but that Mr Tatar never owned them. 154(33), (34), (35), (36), (37) & (38) twelve pairs of dress shoes; two pairs of leather slippers; assorted jeans; underwear; socks; sleepwear. These items are all claimed to be missing. They appear to be men's accessories and clothes and some of them luxury items. Ms Naylor's evidence was that there was much more of these items than was found in storage. But there is evidence that some parts of most of these items were found and stored. I am not prepared to infer that Mr Tatar owned any more of these items than Ms Naylor and Ms Stanton retrieved. In my view it is probable that Ms Naylor and Ms Stanton paid far less attention to retrieving Mr Tatar's clothes, accessories and personal items than to retrieving hers. It must have been apparent to Ms Naylor that by the time that she had access to the premises on 29 October that Mr Tatar had probably been responsible for the destruction that had occurred in the premises. Despite their three year relationship, her priorities that day would have been more directed to retrieving items of major value, and then retrieving her own personal items, and only then retrieving what belonged to Mr Tatar. As Mr Tatar was the likely author of the destruction, it was only natural, in my view, for Ms Naylor to give more attention to her own possessions in these circumstances. And that, in my view, is what she did. 155Mr Tatar no doubt did own items of the kind claimed in items 33 to 38 of the Schedule. But in the absence of receipts I am not prepared to infer in his favour that they had any particular value, or were even of the kind claimed. In my view Ms Naylor is simply likely to have left them there and they were treated, not unreasonably as rubbish. 156(39) (40), (41), (42), (43), (44), (45), (46), (47), (48), (49), (50) Fourteen hats, Ten belts including ostrich, Ten white Abelard business shirts, ten Brioni Business shirts, various colours, ten casual shirts, Brioni, ten various shirts, approximately 50 ties; Versace, Hermes, Brioni and Zegna, five sports coats, Zegna, eighteen trousers, evening wear, Armani, evening wear, Boss, camel coloured Cashmere Overcoat. All of these items of clothing and accessories are said to have been missing and not in storage. But Ms Naylor agreed that these items cannot be seen in the photographs of the dressing room area or the nearby bathroom and that she did not know "the extent to which any of them might be damaged or stolen in the incident". Although she denied that some of these items might have been moved out of the house when she was away in Dubbo before the incident, I am not convinced that she had any thorough idea what was in the house when she came back. The absence of these items from the photographs is mysterious, particularly looking at image 4936 of the dressing room, and image 4937 of the nearby bathroom. It seems obvious that some belts and shirts have been taken out of cupboards and strewn around. But they are quite small in number. There are again no receipts in respect of these items. Mr Tatar could give no better evidence as to the absence of such items from photographs such as image 4937. In my view the plaintiffs have not discharged their onus of proof of that these items existed in the apartment between 25 and 29 October. 157The police photographs give a slightly better perspective on this part of the house. But in my view examination of police photographs 48, 49 and 50 does not show anything like the quantity of clothing claimed by the plaintiffs. The police photographs show some casual clothing and perhaps some business clothing of no obviously special value, further undermining the claim for these particular items. In the result I do not find that any of this claimed property existed in the apartment in October 2010. 158The findings on these items founds an inference that the plaintiffs' claim has been deliberately inflated in order to maximise recovery in respect of non-existent items. In my view Mr Tatar was quite prepared to put a claim together to include items that he well knew did not exist. The difficulty in this case is to look past that conduct to see whether there is indeed any validity in some of the plaintiffs' claims. 159(52) Evening scarf, Hermes. The plaintiffs say this item is missing. I am prepared to infer from their lifestyles that one of them owned such a scarf. And I accept that it was not retrieved from the storage facility. But what happened to it? In my view it was not destroyed by Mr Tatar but was left on the floor mixed up with less valuable clothing and discarded with that clothing. But the removalists were required to do what is reasonable. And they should have done some sorting. As a result they could have retrieved this luxury item from the mix of clothes Mr Tatar had strewn about the floor. 160(53), (54), (55), (56), Serengeti Sunglasses, Polarised, Serengeti Sunglasses, non-polarised, Zegna Sunglasses, Gucci Sunglasses. The plaintiffs claim that one pair of each of these sunglasses was missing. But in my view, if they ever existed, they are more likely to have been crushed in Mr Tatar's hours of destructive activity on the night of 25 October. Like other small crushable items the sunglasses are unlikely to have survived that activity. But they cannot readily be seen in any of the police photographs. I am not prepared to infer that they ever existed in the premises between 25 and 29 October. 161(57) Two boxes of 28 day contact lenses. These are said to be worth $350 for each box and now, to be missing. I do not accept this claim. Items such as contact lenses used in a 28 day cycle would, if made, have been recent purchases at the time of this incident. No doubt the purchases would have been made from a manufacturer or specialist retailer of such medical items. Receipts proving their existence should have been readily obtainable. None have been adduced in evidence. I am prepared to accept that Mr Tatar or Ms Naylor may have used contact lenses from time to time for vision correction as an alternative to glasses. But I am not prepared to infer that there were any in the house on the evening of 25 October. 162(58), (59) Raincoat, Burberry, five pairs of gloves. The Burberry raincoat seems to have been recovered. In my view any damage to it was likely to have been caused by Mr Tatar on the night of 25 October. I cannot see any gloves, of a kind claimed, in any of the photographs. There are no receipts. This part of the claim is not accepted. 163(60), (61), (62), (63), (64) ten bottles of men's fragrances, Tiffany cufflinks, Mont Blanc cufflinks, Salvatore Feragamo Cufflinks, Tiffany's evening shirt studs. This group of items, which are mostly small personal accessories and jewellery, were the subject of very little evidence. The plaintiffs claim they are all missing. Firstly as to the men's fragrances, nothing is evident in the photographs and I am not prepared to infer they existed. If they did they are likely to have been smashed as they are breakable items that could have been a tempting target for Mr Tatar on the 25 October. There is no objective evidence that any of these cufflinks or shirt studs were in the premises between 25 and 29 October. I am not prepared to infer that they were there merely from Mr Tatar's evidence and Ms Naylor's evidence. These small items cannot be seen in any photographs. Mr Tatar gave some evidence that he had been given Mont Blanc cufflinks by the Intercontinental hotel because of the amount of money he had spent there. But I am not prepared to accept Mr Tatar's evidence that he was given those cufflinks or that he had any others. Ms Naylor said that she saw the Tiffany & Co cufflinks when she was attempting to pack some of her clothing on 29 October. She says they were on glass shelving in the bathroom. But when asked "when you saw them, why didn't you pick them up?" she said "I should have but I didn't". She said, unconvincingly, that she did not even think about picking them up. I do not accept her evidence that she saw them at all. 164Dressing Room - Summary. In the result in the dressing room, the plaintiffs' claim has been made out to a very limited degree. The plaintiffs' claims in respect of the following items are successful: two women's business suits; half a dozen pairs of shoes; six sets of lingerie and six items of hosiery; one couture evening gown; and one Hermes evening scarf. The remaining claims for items in the Dressing Room fail. (c) Office 165The master bedroom, bathroom and dressing room were upstairs in the plaintiffs' apartment. The office was on the floor below. The office appears in both Mr Le Vines video, in the police photographs, and in Mr Vines' photographs. In general terms, it appears to have suffered slightly less intensive destruction than the bedroom areas. This may well have been because it consisted of a number of large items of office furniture, which could only be destroyed with concentrated energy from a large destructive implement. 166(67) Desk with return. This item was recovered damaged. That the plaintiffs owned it, and that it was in the apartment on 29 October 2010, is not in issue. The question to be decided is whether the damage observed to the desk was caused by the removalists, or by Mr Vines, or was pre-existing. But I accept Mr Vines' evidence that when he saw it at the time it went into storage it was already damaged. Ms Naylor says that she went into the office after the incident with Detective Sharrock and she says the desk did not appear to be damaged. But she did not inspect it closely. I accept Mr Vines' evidence as to the state of damage of this desk. I prefer his account to that of Ms Naylor. 167The allegation of the corner piece adjoining the desk and the return being missing cannot be substantiated as having occurred during the period that the desk was in the possession of the removalists. There was considerable disorder in the office. Items of office equipment were strewn on the floor. Cupboards were open. Mr Tatar was obviously in the office for some time on the night of 25 October, damaging or causing disorder to much of what was on the desk. It is likely in my view that Mr Tatar did the damage that the plaintiffs complained of on the evening of 25 October. 168The plaintiffs say that some of the damage complained of - involving stripped bolts - could not have occurred in the incident, because the table was not disassembled at that time. But I do not accept that the plaintiffs' word for the fact that such damage as stripped bolts actually occurred to this item. 169(68) Three chairs. These items are said to be damaged and indented and to have torn fabric. The plaintiffs claimed that the full replacement cost of the chairs was $1,200 each. One of the three chairs the subject of this claim are visible in Mr Vines' photographs (image 4933). Ms Naylor says that she is not sure that that is one of the three chairs, even though she and Mr Tatar put the Schedule A list together. Mr Vines' photograph (image 4931) appears to have been taken in the office and probably shows another one of the three chairs concerned. But there is no obvious damage to that chair either. The plaintiffs fail in respect of this claimed item, because they have not been able to establish to the Court's satisfaction that there is any damage to any chairs in the office. 170(69) Computer work desk. The computer work desk was recovered and is not the subject of a claim. 171(70) Two Bookcases. The plaintiffs claim that the two bookcases in the office, one of which is visible in photograph 4931, were missing from the storage facility. 172But a fundamental difficulty with this claim is ascertaining whether indeed there were one or two bookcases. In my view, there was only one bookcase. First Ms Naylor was unsure what the bookcases referred to in Item 70 actually were. When she was referred to photograph 4931, and asked whether it was one of the bookcases concerned, she said "I don't know for sure". That is not surprising, as Mr Tatar seems to have somewhat greater input into the preparation of the list than she did. She thought the other bookcase might be a table-level piece of furniture with cupboards, on which a printer sat. But that is not a bookcase. It is really a set of cupboards. 173Mr Tatar's evidence was no better than Ms Naylor's on this subject. Mr Tatar had in his mind that in the office there were two bookcases, which each had three columns of books, rather like the bookcase evident image 4931. But only one such bookcase seems to be evident in police photographs 26 and 28 of the same wall of the office. 174I infer there was only one bookcase present on 26 October. The evidence does not enable me to infer with any confidence that there was ay damage to this bookcase apart from accepting Mr Tatar's and Ms Naylor's word for that, which I am not prepared to do. 175(71), (72), (73) Chess Set, Drawing instrument sets, Paper Navigational Charts. The plaintiffs claim that all of these three items were missing. The paper navigational charts in particular are valuable items (with some 250 of them, worth $65 each, totalling $16,250). The evidence supporting the plaintiffs' case on these items is sparse. Ms Naylor did not know whether these items were present on the morning of 29 October. She seemed to be familiar with the high value item of the charts as being associated with a "maritime course" that Mr Tatar had done. But she was still not able to confirm their presence on the morning the removalists commenced their action. But despite this I accept that Mr Tatar had an interest in maritime affairs. It is probable he owned some such charts, which were just treated as paper by the removalists. But I do not accept that he had 250. If the number was that high one would expect to see the charts somewhere in the photographs. I will allow 50 charts. 176(74) Large stationary cupboard. The plaintiffs say that this item is recovered in a damaged state. Ms Naylor gave some evidence about this stationary cupboard but it was extremely vague. The cupboard is not visible in 4931. She was not able to give any direct evidence as to whether the item was recovered or not. Nor can she say anything about the damage to the item. Mr Tatar did not give reliable evidence about the existence or recovery of this item. The plaintiffs' case fails in respect of item 74. 177(75) Approximately 5000 books, legal, philosophy, literature, chemistry, reference. The single largest claim in these proceedings is Item 75, the first 5000 books, including in the areas of law, philosophy, literature, chemistry and other reference books. The plaintiffs' claim mostly does not stand up on analysis. And I accept the defendant's submission that it is a highly exaggerated claim from which I can infer the apparent propensity of the plaintiffs to make false claims. The figure of 4,960 is calculated in a strange way, which is the first of the plaintiffs' problems. Mr Tatar says that he thought there were about 5000 books packed in boxes in the bookshelves or the boxes. The figure of 4,960 is calculated by Mr Tatar giving credit for 40 books, which he says were recovered. 178Mr Tatar's short initial description was that on the night of 25 October the vast majority of these books were packed into boxes and that there were probably approximately 1,000 books in the office either in the bookshelves or in boxes. The rest were packed. 179Mr Tatar gave a reasonable account of some collectable books, being in the office area. He identified a signed first edition of Winston Churchill's history of the Second World War and a rare photographic record of the Second World War. These particular books are dealt with later in these reasons. He also identifies a Bible, dictionaries, books on English literature and the works of the philosopher Hegel, his Philosophy of Right and Philosophy of Religion, together with commentaries upon Hegel's works by the philosopher Martin Heidegger. But then Mr Tatar began to run out of ideas. He could not cite any of Hegel's other works that he had kept in his philosophy collection. Nor could he name any other philosopher. 180Even if I were to accept his evidence that there are 1,000 books in the office area, there were problems accounting for the other 4,000. Mr Tatar explained that these were "in boxes downstairs mostly - big yellow DHL boxes" in the garage/laundry area. But the police photographs in the garage/laundry area, do not show these DHL boxes as present (see police photographs 55, 56, 57, 58, 60 and 61). There are some DHL boxes visible in photographs 61. But Mr Tatar accepted there could be no more than 6 boxes there and he agreed that depending on the size of the books probably about 30 books at the most could be fitted into each box. That makes in the six boxes a total of about 180 books. 181When asked the question "where are the other 4,800", Mr Tatar simply said "I don't know". Instead he advanced the utterly improbable idea that although the boxes of books did not appear in the police photographs taken on 26 October, when he last saw them they were stacked down both walls of the garage. He agreed that to store 4,000 books in the garage, both walls would have to be completely covered in boxes. That means that intruders (apparently with an interest in philosophy) must have taken the books. 182But there were no intruders. It is highly unlikely that casual intruders would have taken these books. When asked about why these books were not in the police photographs Mr Tatar simply said, "I cannot offer an explanation as to where the books are or where they went". The Court said to him that this was a "genuine puzzle" to which rather surprisingly Mr Tatar answered "it is quite dumbfounding". 183The simple and rather more probable explanation is that Mr Tatar was just exaggerating the number of books he owned and had at the apartment. I am prepared to allow that he had about 200 books in the bookcase in the office and another 180 books in boxes in the garage. I am prepared to accept that these items were treated as rubbish by the removalists and thrown out. They do not appear in any photographs of the storage facility. They appear to be kind of items that a removalist without proper instruction was likely to dispose of, and I so find. The books were of the kind in the range described by Mr Tatar. 184(76) Mont Blanc Travel Wallet including credit cards. This item was recovered and the plaintiffs make no claim in respect of it. 185(77) Hungarian passport and citizenship papers. The plaintiffs claim that this item was missing. But there is little objective evidence that Mr Tatar had a current Hungarian passport in his possession on 25 October 2010. Ms Naylor could not give any account of him attempting to replace his Hungarian passport in her presence. So presumably it was not renewed in the course of their relationship. I do not accept that Mr Tatar had a current passport of any value in October 2010. 186(78), (79), (80) Crocodile briefcase, Tag Heuer Gold Watch, Two Viewsonic 27" LCD Monitors. These three items of significant value were claimed to be missing. These three items represent three individual items of significant value in the office. Ms Naylor's evidence showed a reasonable familiarity with valuable items Mr Tatar owned. If these items were in the premises on 27 or 29 October, as was the case with the more expensive jewellery, it is surprising that Ms Naylor did not spend more time looking for them. Although she did not include the "crocodile briefcase" item 78 in the original Schedule A, which she was involved in drawing up on or about 2 November 2010, she says she remembers that as one of Mr Tatar's possession. 187Ms Naylor's evidence on the briefcase was unreliable. Initially she said she only remembered one briefcase when she initially drew up the Schedule on 2 November. But she said that she then realised she had forgotten the more expensive crocodile briefcase. It is unlikely that she would have not have remembered the more expensive briefcase when drawing up the Schedule in the first place. Mr Tatar says that he forgot to include the crocodile briefcase in the Schedule when it was first produced in November 2010. This seems improbable, given its value. 188Mr Tatar gave highly improbable evidence about why he did not get credit card statements from his Hong Kong bank for items such as this briefcase. He said he has not communicated with HSBC in Hong Kong because he does not "want those statements around" because Ms Naylor might see them. 189Ms Naylor's evidence about the TAG Heuer gold watch is equally improbable and confusing. She says that she had seen the watch "on the kitchen bench that goes into the breakfast room" on the morning of 26 October. She remembers it "was just sitting there". She says that when she came back on the Friday "I thought I saw it there" in the kitchen. But she cannot explain why she did not pick it up immediately. A transportable and valuable item such as a watch worth $3,000 should readily have been collected by her that day, or even on the 27 October. Her evidence in respect to this watch is quite improbable. I do not accept it. 190(81) Viewsonic 23" LCD Monitor. It is probable that this monitor was damaged in the incident. It is visible in Mr Tatar's photograph 145, apparently up-ended and in storage. However any damage to it is not clearly visible. The damage Mr Tatar caused to other electronic equipment, such as television sets, and the fact that he was handling a hammer, makes his being the author of any damage to this item the most probable explanation. The first defendant has no responsibility for this damage. 191(82) Wacom tablet. The plaintiffs claim that this item was missing. I am not satisfied on the evidence adduced that this item was owned by the plaintiffs and on the premises at any time between 25 and 29 October. 192(83) Two Tower Computers. These items were recovered and no claim is made in respect of them. 193(84) Two Asus Lamborghini VX5 Laptops in boxes. These items are said to be missing. Although Mr Vines' response to this claim is that the items were smashed and thrown away, I am not satisfied on the evidence that the plaintiffs ever owned such items or that such items were in the premises between 25 and 29 October 2010. These items were alleged to have been purchased at the Ocean Centre Kalloon Hong Kong 2010. If so, they must have been purchased within no more than 10 months of the date of this incident. It should not have been difficult to obtain evidence of that purchase, even if it were in cash. The items were not recorded in any books of account of the corporate plaintiff that were produced as part of the plaintiffs' case. 194Ms Naylor says that she remembers these laptops. Their precise purpose is somewhat puzzling. Mr Tatar used desktop computer and Ms Naylor used a yellow Lamborghini laptop computer. These two laptops were allegedly packed in boxes unused and in their original packaging. The fact that these laptops were admittedly surplus to their needs is another reason why the Court is not prepared to infer that the plaintiffs owned them and had them in the apartment at the relevant time. 195(85) UPS. This item was recovered and no claim is made in respect of it. 196(86) Computer speakers. The plaintiffs gave insufficient evidence about this item for the Court to find that they owned it, and had it on the premises between 25 and 29 October. Ms Naylor did not know much about this item or even whether it had been recovered. 197(87), (88) HP Colour Laserjet/Fax/Scanner, Netgear ADSL2+ Router. These items have been recovered and the plaintiffs make no claim in respect of them. 198(89), (90), (91) Cisco integrated services router - still in box, VOIP Box Linksys, iPhones. This electronic equipment, allegedly worth a little under $19,000, is all claimed to be missing and was all allegedly purchased in 2009 or 2010. The Cisco integrated services router was only purchased in 2010. It was the most expensive of this electronic equipment the plaintiffs claimed to own. Its acquisition should be supportable from sales information. But none was advanced in support of the plaintiffs' case. 199Counsel for Mr Vines put to Ms Naylor that Mr Tatar could have moved this electronic equipment out of the premises before the 25 October. She was in Dubbo before that date. She had a tendency in evidence to insist that things had not been moved out of the apartment in her absence. But unless she had actually seen the equipment on the 25 October her evidence about this is unlikely to be reliable. She says she saw this equipment packed in boxes in the office upon her return. But I have no confidence that she did any kind of audit of such items, in which Mr Tatar took the stronger interest of the couple, or indeed of any other items in the house. She was not to know the events that were to unfold that evening and she had no reason to double check the equipment in the house that night. 200(92), (93) Legal files including matters pending in courts, criminal defences and High Court matters, Legal files company books and records, tax matters, order books. The evidence does not support the view that any of these legal files or company books or records had any value. Nor has it been proved to the Court's satisfaction that they were not recovered. The legal files could not have been of commercial value to Mr Tatar who was struck off as a legal practitioner. 201(94) Certificates of admission to various courts as a legal practitioner. There is some evidence that Mr Tatar's brother in law removed some certificates from the premises when he was there on 29 October. The most likely inference is that any such certificates of admission were removed in that way and not destroyed by the defendant. 202(95), (96) Bar robes, jacket, jabot, English made, Short bar wig, English made. Although Mr Tatar had been struck off as a legal practitioner, I accept that he owned a set of bar robes, jacket, jabot and a short bar wig and that they were worth the amounts claimed. Mr Tatar had practised as a solicitor. But perhaps may have later wished to go to the Bar. 203But I do not accept that any of this barrister's clothing was in the apartment on the evening of 25 October. None of it is evident in any of the photographs or in the walk through video. Ms Naylor said that the robes were kept in the built in storage cupboard in the office. But without the corroboration by photographic evidence or other means, I do not accept Ms Naylor's account that these items were in the house on 25 October. 204(97) Ski gear. This equipment was claimed to be missing. I do not accept that Mr Tatar or Ms Naylor ever owned any such equipment. This is an extraordinary and exaggerated claim, which further diminishes their already diminished credibility. When questioned, Ms Naylor said that she did not ski, so none of the ski gear was hers. She had no idea when Mr Tatar last went skiing and certainly not since their relationship started. Nor was she with him when he purchased this ski gear. Mr Tatar says the ski equipment was in the cupboards. But I do not accept this evidence. 205(98) Four Boxes of computer accessories. The plaintiffs claim that these items were missing, although the plaintiffs attribute no value to them. Ms Naylor says they were in the office. I accept that these boxes are partly visible in Mr Vines' photographs of the office (image 4931, 4932). Although it is not possible to see the contents of any of the boxes in the photographs. I accept that there were some boxes of these accessories and they were in the premises between 25 and 29 October. But even Mr Tatar does not put a value on these accessories in Schedule A. It is likely in my view that they were thrown out by the removalists as being no more than rubbish. I accept Ms Naylor and Mr Tatar's evidence that they were not recovered. But that in my view is the reason they were discarded and quite reasonably so, because in my view they would have looked like junk. It was reasonable to discard them. 206(99) George Bernard Shaw Mont Blanc Fountain Pen. Mr Vines returned this item to the plaintiffs and this is no longer part of their claim. 207(100), (101), (102) A Queen Elizabeth Mont Blanc Fountain Pen, Leather Blotter, Ostrich skin from crocodillo, Hong Kong, Sterling Silver Letter Opener. There is insufficient evidence that these items were in the apartment premises between 25 and 29 October, even if they were owned by the plaintiffs. Ms Naylor could not be sure whether they were. They are not evident in any of the photographs. And they are sufficiently valuable and portable and could have easily been taken away on 29 October had they still been in the premises. 208(103) Brother label printer. This item was recovered and the plaintiffs make no claim in respect of it. 209(104), (105) iPhone 4 32GB, Bang & Olufsen Ear Set 3 Hands free phone. The plaintiffs claim that Mr Tatar's iPhone 4 was missing. But I do not accept this case in the absence of objective evidence. Such evidence would have been readily obtainable. If the iPhone 4 had been taken and used by someone other than Mr Tatar on 25 October, a subpoena to his telecommunications service provider (whom Ms Naylor thought was either Telstra or Optus) would have shown either a distinct change in the pattern of the calls made or that the phone had been de-activated. But no such evidence was adduced. I am not prepared to infer that this item was missing. If the phone was not missing, nor should I infer that the Bang & Olufsen ear set was missing. 210(106) Wetsuits and Dive Gear. These items are claimed to be missing, apart from the admitted recovery of one wetsuit. But none of this gear is visible in any of the photographs. I do not accept Ms Naylor's or Mr Tatar's evidence about this gear being in the apartment in the office cupboards, in the absence of corroboration. Thus I am prepared to infer that only the one wetsuit recovered was in the premises between 25 and 29 October. 211(107), (108) Signed first edition Churchill History of WW2, Signed D Parrer Photographic Record of WW2 - original and one of a kind. Mr Tatar claims to be a rare book collector and that he purchased these two items in 2002. The Churchill history is said to be worth $28,323 and the photographic record of WW2 to be $30,000. There are many features of the plaintiffs claim for these items that undermine any confidence in it as a genuine claim. First, the plaintiffs cannot name the rare book vendor from whom Mr Tatar acquired volumes that he allegedly valued so highly. Secondly, no other record of Mr Tatar's ownership of the books has been procured. Thirdly, the photographic record of WW2 is presumably of the great Australian war photographer, Damien Parer, who won an Oscar in 1943 for a documentary on the Kokoda trek and was killed the following year. Yet curiously his name is misspelled in this claim, as though Mr Tatar was not really sure who he was talking about. Fourthly, these items were reasonably portable and given their high value, would have been natural objects of Ms Naylor's attention and removal on 27 or 29 October, if they were then in the house. She gives no account of hunting for them and given their value, if they were there, one would expect them to be one of the first items packed for removal. In my view they were not present in the house between 25 and 29 October. 212Mr Tatar attempted to identify these books in the police photographs. But the photographs are not clear and I do not accept his evidence as to this. Mr Tatar also said that the evidence these books were signed by Winston Churchill only came from the vendor. Mr Tatar was of a streetwise character. Only an ingenu would accept an assurance like this. 213(109) Sorted and unsorted receipts in red receipt box. This item is not declared to have any value and appears to have been no more than a box of jumbled receipts, which the removalists were entitled to treat as rubbish if they were present. But the boxes have not been identified in any photographic record. I do not accept Mr Tatar or Ms Naylor's evidence that the box existed. 214I am not satisfied that this box existed for another reason. Quite apart from Ms Naylor and Mr Tatar's general credibility problems, Ms Naylor's evidence about receipts was particularly vague. She said that a lot of the paperwork that she and Mr Tatar were missing were moved to the storage facility. But when asked whether she "could name any receipt in respect of an item in Schedule A that [she] believed went missing in the move?" she was unable to do so. If a receipt box with which Ms Naylor was familiar went missing and if it contained any receipts relevant to their assets or affairs, one would expect to be able to answer this question. But she could not. 215Office - Summary. The plaintiffs have been successful in their claim for 380 second hand books, as well as 50 paper navigational charts. Their other claims in relation to items within the office of the apartment fail. (d) Bedroom 2 216The police photographs of the second bedroom show a fairly sparsely furnished room with a double bed on which some disordered pillows, doonas and bed clothes are present. Apart from a cardboard box in the corner of the room the police photographs do not clearly show other furniture or belongings in this space. And in the police photographs the white built in cupboards are closed. Ms Naylor and Mr Tatar said very little about this room in their evidence. This room was on the second level, the second level of the apartment, the same level of the office. 217According to Ms Naylor, for some reason the second bedroom "wasn't touched" in the incident on the night of 25 October. She is sure of that because she was asleep in the room, no doubt to escape Mr Tatar's wanderings. 218(111) Four Poster Bed and Mattress. The bed which is visible in the police photographs of this room (photographs 32, 33 and 34) is not a four poster bed in any traditional sense. Mr Tatar agreed that calling it a four poster bed would be a misdescription. It certainly has four posts but they do not extend past the rest of the structure. According to Mr Tatar, the bed was recovered but the metal frame was scratched and the motifs on the end of the posts were bent and one was missing. And two slats were said to be missing. 219I accept there was some modest damage to this bed when it was moved. It appears to have loose brass motifs fitting into the corner posts, one of which came loose and was lost in the course of the move. I accept this part of Mr Tatar's evidence because bed was in the apartment and the dislodging of such an item in the course of removal is quite a probable occurrence. But if the motif had fallen out in the course of it being removed it might have been quite difficult to match it up with the bed unless it was picked up at the same time. I infer that the removalists did not pick it up. Mr Tatar's evidence that these motifs were generally stored under the bed. But that seems improbable. 220But this certainly does not warrant replacing the whole bed. All that Mr Tatar and Ms Naylor are entitled to is the fashioning of a small replacement item, either in plastic or wood and paint it to replace the missing item. I would reject a claim for a replacement bed. I do not find there is any damage to the bed. The bed appears from the photographs to be a substantial structure which was quite usable as a bed and clearly had value, apart from this minor blemish. 221(112) (114) Two Bedside Tables, Electric Piano. Two bedside tables said to be in this room were recovered and were not ultimately the subject of a claim. Two dark small bedside tables appear dimly as the only furniture present in the room apart from the bed, on page 34 of the police photographs. No electric piano is visible anywhere. 222(113) Chair. According to Schedule A, the chair was a wooden framed, silk upholstered Versace type designed chair purchased for $1,100 only about two years before these events in 2008 in a furniture store in Bondi junction. This item is quite revealing. It is one that one might expect could have been substantiated with a receipt from the furniture store. But not only was it not substantiated by any financial evidence of this kind, but the police photographs (photographs at pages 32, 33 and 34) confirm that it was not in the room. Mr Tatar agreed that the chair does not appear in any of the photographs of the second bedroom but he asserted it certainly existed. Yet he was unable to account for why the chair did not appear in the police photographs. But Mr Tatar's rampage did not involve throwing things outside the house, only disordering what was within the house. And this room was untouched during the rampage. It is improbable that this chair was in the room on 25 or 26 October, or at any time before the house was cleaned out and the material taken into storage the following Friday, 29 October. Ms Naylor gives some account of this chair being part of a larger dining set, but I do not accept either her or Mr Tatar's evidence that this item was in the house at any time, or indeed that they even owned such an item. 223Second Bedroom - Summary. In the result in relation to the second bedroom the plaintiffs' claim has only been made out with respect to the replacement of the motifs on the top of one of the posts of the bed, but the claim for the replacement of the whole bed is rejected. (e) Hall Cupboard 224This cupboard was a built in cupboard in the hallway. Unfortunately none of the photographs taken by any of the parties or the video showed inside this cupboard, so there is no photographic evidence corroborating the existence of items in the cupboard at any time between 25 and 29 October. But some inferences can be drawn about what was in the cupboards. I accept that Ms Naylor did look in these cupboards on the 29 October. She says, and I accept, "I opened that cupboard on the 29th because that is where my makeup bags were". She says that she saw each one of the items, items 116 to 129 in the cupboard when she looked inside. She says, and I accept, that she took out the two professional makeup bags which she normally kept in that cupboard. But she says she left everything else in the cupboard. This is a part of her evidence in relation to her search that I find compelling. I accept her evidence about some of the contents of this cupboard. 225(116), (117), (118) Frette Bedding, three sets, Christie's of London Towels, five sets, Sheridan Towels, three sets. Ms Naylor says she looked in the cupboard and saw those items there on the shelves of the hall cupboard. It is probable that as a matter of basic housekeeping Ms Naylor and Mr Tatar must have had a number of sets of bedding and towels. I infer that they did. I accept her evidence that they were missing and not removed by Ms Naylor. I am fortified in that inference by my findings in relation to Mr Vines' conduct in relation to this part of the house, detailed below in relation to items 126, 127 and 128. But Mr Tatar agreed that these items were strewn "all over the shop". Despite that, in my view these domestic items should have been packed up by the removalists. I infer they were not but were treated as rubbish. The claim for these items succeeds. 226(119), (120), (122) Nikon D700 FX Camera, Nikon AFS VR N Lens 24-120mm, Nikon Speedlight 900. Both of these items were recovered and are not the subject of further claim. They are part of a group of six items, items 119, 120, 121, 122, 123 and 124 which Mr Tatar explains were all purchased at a camera store in Ocean Centre in Hong Kong in 2009 and then brought back to Australia. No receipt is produced in respect of these items but the recovery of the two items, 119 and 120, as will be seen, has significance about the inferences to be drawn in relation to the other items, together with the evidence of Ms Naylor. 227(121) Nikon Lens AF-S 200-400mm f/4G ED VR II. Ms Naylor says that she saw the Nikon Lens (item 121) and she explained that despite its value she did not pick it up because of its weight, it being a "long telephoto lens packed in a solid case". I accept that Mr Tatar did have an interest in photography and cameras. And together with the Nikon lens (item 124), I accept the other items detailed in the next paragraph were in the cupboard. I infer Mr Tatar's interest in cameras in part from the cameras which were actually recovered (items 119,120, 122). 228(123), (124), (129) Camera Bag/backpack, Spare battery and charger for Nikon camera, Tripod. I accept that it is probable that Mr Tatar had these two items, the camera bag/backpack and a spare battery and charger for a Nikon camera. These are the kind of accessories which would most probably purchased with the recovered photographic items, and which would ordinarily be stored with those items. For these reasons I am prepared to infer that Mr Tatar had these items in the hall cupboard. I also accept that they are now missing. They are not evident in any of the photos of the storage facility. 229(125) Camera books. I accept that Mr Tatar had a number of camera books as he describes, which he had purchased in 2009 at Dymocks in Sydney. And based on Mr Tatar's interests I accept this notwithstanding the plaintiffs' lack of documentary support for it. 230(126), (127), (128) Professional makeup equipment in aluminium cases, Professional hairdressing kit in aluminium cases, Hairdressing mannequin. As indicated earlier in these reasons in my view Ms Naylor was a woman who took the trouble to present herself as attractively as possible and spent some considerable time on her appearance. It is highly probable that she did have the professional makeup equipment, hairdressing kit and hairdressing mannequin here described in the plaintiffs' claim. I also accept her evidence that these items were missing. There was no basis for the removalists to treat these as rubbish. So their disappearance is unexplained. 231Ms Naylor has a strong recollection of her attempts to remove her professional makeup equipment on 29 October, evidence which I accept. She says that Mr Vines denied her the right to pick up these makeup bags, which she had left in the hallway in anticipation of them being removed from the premises on the 29 October. She says she had already taken them out of the cupboard. From Mr Vines' manner in the courtroom I infer he is someone who could take a very firm position in relation to tenants if he wished to do so. Whilst I do not find Mr Vines banned Ms Naylor from removing these items, in my view he did interfere with this aspect of her removal of goods to a degree, resulting in her not removing them. 232Hall Cupboard - Summary. Despite a lack of photographic evidence corroborating the existence of items in the Hall Cupboard, I am prepared to find that several of the items claimed by the plaintiffs probably existed and have since gone missing. The items successfully claimed are: three sets of bedding; eight sets of towels (either Christie's of London, or Sheridan); one Nikon Lens camera, as well as a camera bag, tripod, spare battery and Nikon camera charger; several camera books purchased from Dymocks in Sydney; and the professional makeup and hairdressing equipment owned by Ms Naylor, as well as a hairdressing mannequin. (f) Kitchen 233The kitchen was a scene of great destruction on the morning of 26 October. That night Mr Tatar seemed rather to enjoy smashing breakable items such as crockery and glassware. There were undoubtedly a few items left undamaged in the kitchen on the morning of 26 October. But this is the room in which the claim the plaintiffs make presents the greatest contrast with the hard evidence. I accept the defendant's submission that the photographs show that most of the kitchen cupboards were empty as at 28 October. I further accept the defendant's submission that what crockery, cutlery and glassware was present during the tenancy was probably removed either before 26 October, or by Ms Naylor before 29 October, or was damaged or destroyed in the events of the night of 25 October. The Court does not have to choose between these various scenarios. It only has to decide whether the plaintiffs have made out their case. With respect to most of the items claimed in the kitchen, the plaintiffs simply fail to pass the threshold of establishing that the items claimed were in the premises at any time between 25 and 29 October 2010. 234Only odds and ends were left in the kitchen. I accept the defendant's submission, which is well supported by what is in the photographs, that only odds and ends of cutlery, crockery and glassware remained there. As a result the removalists would have been quite justified in treating the material left as rubbish. In my view the defendant is not required to wrap, pack, move and store the kind of material which the photographs show was present in the kitchen between 26 and 29 October. Neither Mr Vines nor the removalists can possibly have known any of this material had special value. 235The context of the removalists' collection of the kitchenware is important. It must have been quite important to anyone walking through the kitchen on 26 October that the tenants themselves had apparently shown not the slightest concern for the integrity and value of their own property. I accept that even Ms Naylor herself said that what remained should be taken to charity. It is difficult to blame the removalists for not taking good care of breakable items resulting from the slew of destruction the night before. Why should the removalists treat the property as valuable when Mr Tatar had treated it as rubbish. But as with the other rooms it is necessary to consider some detail of the items claimed. Generally this can be done in groups as it has been with the other rooms. But in summary, I accept Mr Vines' submission that it is difficult to conclude that any particular item of kitchenware of any value was lost or destroyed in the moving process on 29 October. 236(131), (132), (133) Fissler Saucepan set, 6 pieces, Copper Saucepan set, 8 pieces-mauveil-in box, Le Crusett Cookware set. Few saucepans or cookware are evident in the photographs of the kitchen. Mr Vines' kitchen photographs, particularly photograph 4926 show about three or four saucepans. But by reference to these photographs, it is not possible to work out their size, their value or whether or not they were damaged. The other kitchen photographs do not show any saucepans or cookware. The police photographs show good views of the kitchen. Photograph 24 shows the same three or four saucepans, but no others. These photographs were taken on 26 October. I infer that the saucepans and cookware identified in them were the only saucepans and cookware in the premises between 26 and 29 October. As the saucepans have been pulled out of the cupboards and handled on the night of 25 October, they were probably already damaged. In my view the removalists were entitled to treat them as junk. 237(134), (135), (136), (137), (138), (139), (140), (141), (142), (143), (144), (145), (146), (147) Riedel Glassware, red wine, Riedel Glassware, white wine, Riedel Glassware, champagne, Riedel Glassware, water, Riedel Glassware, beer, Waterford Crystal Glassware, 8 x red wine - in box, Waterford Crystal Glassware, 8 x white wine - in box, Waterford Crystal Glassware, 8 x champagne - in box, Waterford Crystal Glassware, 8 x water - in box, Waterford Crystal Glassware, 8 x scotch - in box, Waterford Crystal Glassware, 8 x cognac - in box, Waterford Crystal Glassware, 8 x scotch decanter - in box, Waterford Crystal Glassware, 8 x wine decanter - in box, Waterford Crystal Glassware, 8 x sherry decanter - in box. All these items of glassware are said to be missing, like the cookware previously described. Dozens and dozens of red wine, white wine, champagne, water, beer, scotch and cognac glasses and decanters are in this group of alleged missing items. It is alleged they were all purchased at the Sydney wholesale/retail shop, Peters of Kensington, in or after the year 2000. Mr Tatar says he made efforts to get receipts for these purchases from Peters of Kensington. But his evidence shows that whatever his attempts were they were perfunctory and it is not surprising that no receipts have emerged. I do not accept this evidence. In my view Mr Tatar has not tried to get receipts. 238I am prepared to infer that the plaintiffs did own some glassware, particularly as the residue of that glassware is evident in the kitchen cupboards in police photographs 22 and 23. But nothing like this quantity of glassware emerges from the police and other photographs. There are some closed cupboards in which the contents are not displayed to the photographer, in both the police photographs and Mr Vines' photographs. I am not prepared to infer there is any glassware in those closed cupboards on the basis of Mr Tatar's and Ms Naylor's testimony. There is no other objective evidence that the quantity of glassware claimed was in the premises between 26 and 29 October. 239Mr Tatar says that he had packed the glassware into its boxes and placed it in the closed cupboards. I do not accept this: it is odd that none of these boxes of glassware are visible in the open cupboards in the kitchen. He points to one still in the LaVine video as showing a box of glassware. But the video still does not prove there was anything in the box. 240Ms Naylor says that the glassware, cutlery and plates would all be in the kitchen cupboards. But even the cupboards that are open show very little glassware is in them. The Court has no proper basis to infer that the closed cupboards would have had more in them than the open cupboards. Indeed, Ms Naylor ultimately said she did not know whether there was anything in the closed cupboards on 28 October. 241I note, as Mr Tatar points out in his evidence, that there is blood on the floor in the kitchen area. It is smeared in other places. I accept it is Mr Tatar's blood. But I do not accept this was a result of fighting with intruders. His wounds in my view were self inflicted. 242(148), (149), (150), (151), (152), (153) Waterford cake plate, Waterford clock, Vera Wang Glassware Silver Champagne-in box, Vera Wang Glassware-red wine-in box, Vera Wang Glassware-white wine-in box, Vera Wang Glassware-scotch-in box. The Court's comments in relation to these items, a combination of a cake plate and other glassware is the same as in respect of items 134 to 147. Consequently the claim is not accepted. Even Ms Naylor conceded that much of the kitchenware in these parts of the Schedule could have been in the cheap plastic carry bags visible in the photographs, rather than in the cupboards. She could have taken them away. 243But it was in the context of answering questions about carry bags that Ms Naylor's evidence began to border on the bizarre. When Ms Naylor was asked whether she purchased the carry bags visible in the photographs of the kitchen she said she had not, and she did not know of their origin. She also disclaimed knowing from Mr Tatar where these carry bags came from. When asked whether she had ever thought about how these carry bags "could have come to be there on the 28th?" she simply answered "it's a mystery". If it is a mystery for Ms Naylor and Mr Tatar, they both cannot displace the inference that arises from the presence of these bags: that they were prepared - even before 25 October - to carry away a substantial quantity of their possessions from the apartment. 244(154), (155), (156), (157), (158), (159), (160), (161), (162), (163), (164), (165), (166), (167), (168), (169), (170), (171), (172), (173), (174), (175), (176), (177), (178), (179), (180) Eight place setting stainless steel cutlery Rodd, Eight place setting sterling silver cutlery, including fish set and serving items- Talisman pattern- in box, Christoffle coffee set for 8, Jura Espresso/Coffee Machine Impressa, 27 Chrome, Noritake Gold Line Setting for 8 including tea and coffee pots, coffee cups, gravy boat, soup bowls, soup tourrine, and serving dishes, Vera Wang 'Grosgrain' Wedgewood Dinner set for 8 including coffee and tea service, soup bowls and serving dishes-in box, Kitchen utensils, Wok, Salad/food servers sterling silver, Two Orrefors Crystal salad bowls, Eight Orrefors brandy glasses and decanter, Two Orrefors fruit bowls, Food mixer/mincer etc-Kitchenaid, Numerous assorted kitchen equipment collected over 51 years, Toaster, GE Stainless Steel fridge with ice maker, Kavalactone HPLC standards, Box of 100 10 mL test tubes, Five test tubes with ground glass stoppers, Piper Methysticum (Kava) samples, Hoodia Gordonii samples, Separating funnel, Retort Stand, with funnel rings, boss heads etc. Round bottom flask. Ika magnetic stirrer/hotplate infra red, Baby's christening spoon, knife and fork set, Blender, Kitchenaid. Apart from the GE Stainless steel fridge with ice maker (item 169) which was recovered, the plaintiffs claim the balance of these items were missing. Food service, coffee machines, coffee sets, kitchen appliances, fruit bowls, test tubes, measuring standards, flasks and blenders were all said to be missing. 245The most expensive item of these was a Christofle coffee set for 8. The eight place setting is said to have been worth $30,440. This item was a sufficiently large value and was relatively transportable, such that it is difficult to imagine that Ms Naylor did not remove it from the premises at some stage between 26 and 29 October, if not before. 246Most of the kitchen items were purchased between 2008 and 2010. Ms Naylor was asked how she and Mr Tatar came about the income to purchase such a large quantity of items. On this issue Ms Naylor was studiously evasive. When asked "where did he get the money?" she said "Andrew was setting up several companies. He was doing legal advice. He was doing quite a few things". Answers such as this gave the Court a strong impression that Ms Naylor was quite ready to obfuscate and evade direct questions where she saw that the answers may not suit herself and Mr Tatar. 247Kitchen - Summary. None of the plaintiffs' claims in respect of items in the apartment's kitchen are successful. (g) Medical 248(182), (183), (184), (185), (186), (187), (188), (189), (190), (191) Epi-pen Adrenaline auto injector Oxycontin tablets, Tamiflu tablets, Imodium tablets, Stematil tablets, Micardis tablets, Stematil injection, Flagyl tablets, Erythromycin tablets, Viagra tablets. All these medicines are said to be missing. There was very little evidence about any of them. They appear to be pharmaceutical products mostly obtained on prescription. I am not prepared to infer that such products existed in the household on the night of 25 October. The plaintiffs' Schedule says that all of these ten items were purchased at The Rocks Pharmacy in 2010. Yet no receipts have been produced to confirm that Mr Tatar or Ms Naylor purchased such items. Given the recency of the purchases at the one pharmacy in 2010 it is surprising this evidence was not available. I do not accept the plaintiffs' case that this material existed in the premises between 25 and 29 October. 249Medical - Summary. None of the plaintiffs' claims in respect of medical items are successful. (h) Lounge 250The lounge contained items (193) to (204), a miscellany of items that are said to have been damaged, missing or to have been recovered. The items claimed to be in this room that are said to have been damaged, in my view, are highly likely to have been damaged by Mr Tatar himself, and I so find. The detail about these items makes this even clearer. 251The lounge room, like a number of other parts of the apartment, contained what appeared to be large cheap plastic carry bags. It was suggested to Mr Tatar that he had got these bags together in anticipation of having to move out of the premises that week. But he explained that the large bags in the lounge room area were for taking documents with him for meetings in the city on the 25 October. But I do not accept this evidence. These bags are self evidently unsuited for transporting documents around to meetings in the city. They are far more suited for use in a removalist context. They were not brought by the removalists on 29 October. They were clearly present during the police photographic session on 26 October. The only likely explanation for their presence throughout the apartment at such a time is that plaintiffs purchased them as part of their planning to move out of the apartment that week and I so find. 252(193) Black marble dining table and six silk covered chairs. This table and silk covered chairs are visible in Mr Vines' photographs (image 4928). On the basis of the photographic evidence it is clear that this table and chairs did exist. Ms Naylor concedes that they were recovered but damaged. She says that the damage came from their storage in the shed. She said that the way they were stored there was metal sitting on top of the fabric chairs. She says it was possible to see the indentations in the chairs from the metallic objects. I accept Ms Naylor's evidence to this extent. This is just the kind of damage that could occur by the compression of soft items like this in a storage area. But her evidence of "indentations in the fabric" is not sufficient in my view to establish that the fabric was torn and needed repair. Mr Tatar's evidence on the damage to these chairs is no better. 253The other claimed damage to the table and chairs, appears to be chips in the marble and the scratching of table legs. Any chips in the marble are just as likely to have been caused either by Mr Tatar on the 25 October or to have been longstanding. The evidence does not establish that any of this chip damage was caused by any action of Mr Vines or the removalists. 254(194) Entertainment unit. The plaintiff's claim the entertainment unit was in the lounge area and was damaged, its glass was chipped and its right hand side delaminated. The entertainment unit undoubtedly existed. It is visible in a number of images and is clearly discernible in Mr Vines' photographic image (image 4930) as a low, white coloured piece of furniture with open shelves and a glass top. Whatever was the damage to this item, it does not seem to have been substantial. Ms Naylor did not notice any damage to this item in the storage area. Mr Tatar mentioned it in his evidence but without elaborating on the extent of the damage. Importantly, neither of them is able to account for the damage to this unit being more probably consistent with damage by removalists than pre-existing. 255The entertainment unit is in the vicinity of the damaged television set, which is clearly visible in image 4930. But in my view it is more probable that any damage to this unit was caused by Mr Tatar as an incidental product of the damage he was causing to electronic goods and television sets, rather than being caused by removalists. 256(195) Nacamichi sound system. This sounds system undoubtedly existed although even by 2010 it was already eight years old. 257It is difficult to work out the competing probabilities in relation to the sound system. It is not evidenced anywhere in the photographs in the storage area. But it was clearly in the apartment before the 29 October, in a state of reasonable integrity, as the photographs (see 4930) show. I would not accept that the removalists were entitled to treat this item as rubbish. I accept that it has gone missing in the course of the removals and would allow it as part of the plaintiffs' claim. But the plaintiffs are only able to recover the value of what they have lost, which is an eight year old item. 258(196) Panasonic 54" Plasma Television Set. The plaintiffs claim that this item is missing. I accept that it was among the plaintiffs' possessions in the apartments on 29 October. It is certainly visible in Mr Vines' photographs (image 4930) taken on 28 October. I accept that the television set was not recovered. It was probably disposed of as rubbish. I find that as with the other television sets Mr Tatar found it was an irresistible object of his destructive intentions. I find that he probably cracked the screen of this television as well, even through the front of the screen is not visible in the photograph. Ms Naylor agreed that the television set was damaged in the incident, although she says she and Mr Tatar "didn't know how damaged it was". She says she did not examine it. 259(197) Panasonic Blu-Ray recorder. The plaintiffs claim that this item is missing. Given the plaintiffs had a television set nearby, it is probable they owned a blu-ray recorder as they seem to be attracted to up to date electronic equipment. I am prepared to infer they did own a blu-ray recorder. I accept that it was not recovered from the storage facility. Neither Mr Vines nor the removalists have given any adequate account of what happened to this item. Because of its proximity to the television this item was probably smashed by Mr Tatar. I am not prepared to infer it survived his attack on the television set. 260(198) Hand made rug. This item, visible in photograph 4930, was recovered and no claim was made for it. 261(199) Leather lounge. This item, also visible in Mr Vines' image 4930 was recovered. It clearly existed in the lounge room and was packed and taken to the storage facility. Ms Naylor and Mr Tatar did not supervise the packing of their own clothes and furniture. The photographs of the facility showed that the material was packed in a haphazard and compressed manner, which was apt to cause a degree of tearing and damage to softer items such as leather, if they came to contact with sharp and hard objects. 262Of all the items packed into storage, the soft surface area of this lounge is one of the items most likely to have been damaged by packing. On the other hand, looking at this as a matter of probability, the leather is unlikely to have sustained more than three or four penetrations from other items in storage. I accept Ms Naylor's evidence when found in storage, it appeared to be affected by metal from the glass office table, which seemed to be the cause of the damage to it. There is little doubt that these penetrations occurred not so much in the moving process, but in the packing process, and I accept the plaintiffs' evidence that there was a degree of damage to this effect. However, this does not warrant the replacement of the whole item. The plaintiffs should be allowed the cost of repairing four holes in this leather lounge by an expert upholsterer. The claim for replacement of the lounge at $12,000 is therefore rejected. 263(200) Coffee table. Ms Naylor said that she saw chips in the glass of the coffee table when it was in storage. The claim is four chips in the glass, which is said to have been scratched. I cannot infer from the plaintiffs' evidence that any damage to the table occurred in transit or in the course of it being stored. The damage described is equally consistent with ordinary wear and tear or with Mr Tatar's activity on the night of the 25 October. 264(201) Umbrella stand. This item appears to have been recovered and is no longer the subject of claim. 265(202) Hat Stand. The plaintiffs claim that the hat stand is missing. Ms Naylor claims in her evidence that the hat stand was "definitely in the house and not damaged" in the incident. But she agrees that it is out of view in photograph 4930. I am not prepared to infer that there was a hat stand in the premises on the basis of what Mr Tatar and Ms Naylor say. There is no objective evidence confirming its existence. Ms Naylor says that the hat stand is visible in photograph 4928. But the stand in the photograph actually looks more like an umbrella stand than a hat stand. And the umbrella stand was recovered. 266(203) Framed art prints x 10. The plaintiffs claim there were ten framed art prints that are missing. But only one of them appears in the photographs. Mr Vines' photographs (image 4924) shows one near the top of the page. Using the system of reference within photographs agreed to in the proceedings, the print was described in photograph 4924 at H4 V9. The parties agreed upon a system of reference to items in photographs, which notionally divided photographs into a horizontal axis divided into ten units (H1-H10) and a vertical axis into ten units (V1-V10). By that means any place in the photograph could be found by reference to this notional grid reference, such as H4-V9 for one of the framed art prints - Item 203. 267But Mr Tatar did not know where the other art prints were. He denied they were hanging up. He says they had been taken down but does not remember where they were put. He speculated they might be in the garage. But when invited by Mr Priestley, counsel for Mr Vines, to look at all the photographs of every room and to confirm "were there really ten pictures?" Although he answered in the affirmative, so far as the photographs are concerned, he simply said "I don't know where they [the framed prints] were. I can't help you". 268I cannot accept Ms Naylor's evidence that there was any more than one print. Ms Naylor said that these prints belonged to Mr Tatar. So it is more likely that he would have better knowledge of them than she did. Ms Naylor's view was that they were "just in storage", apparently leaning up against a wall in a garage. The improbable explanation for this was that Mr Tatar said "he didn't want to put any holes in the walls". I do not accept any of this evidence in the absence of photographic, receipts or other objective evidence of the existence of the other nine art prints. 269The only framed art print which I have found existed is a long oblong shape, which if particularly covered by glass would have been extremely vulnerable to breakage in the course of being moved. It clearly survived Mr Tatar's violence on the night of 25 October. I accept that it was damaged in the course of the removalists' work. And I accept Mr Tatar's and Mr Naylor's evidence that it was not found in storage. It does not appear in the storage photographs. 270(204) Second marble table and six leather chairs in breakfast area. The plaintiffs claim that the second marble table and six leather chairs were recovered damaged. The table concerned is evident in Mr Vines' photograph 2924. But Ms Naylor's evidence does not really establish the extent of the damage other than she walked away from it "in horror". The plaintiffs have not clearly identified any damage to this item to the Court's satisfaction. If this table and any damage to it could be seen in photographs of the material in storage, it is certainly not evident from the way the plaintiffs' case has been presented. This claim is rejected. 271Lounge Room - Summary. I am prepared to find that the plaintiffs are successful in their claims for the following items from the Lounge Room: the Nacamichi sound system; and one art print. I will also award of the cost of repairing four holes in the leather lounge by an expert upholster. (i) Laundry/Garage 272(206) Bosch electronic front loading washing machine. This item appears to have been recovered and no damages are alleged in respect of it. 273(207), (208), (209), (210), (211), (212), (213), (214) Bosch cordless drill, 36 volt, set of drills, Sidchrome socket and spanner set in metal trolley, Estwing hammer, Assorted tools, Wller Soldering/Rework station, digital, multiple output WD 3000HPT, Fluke multi meter model 87V, Intel router. All these items appear to be either work tools or associated equipment. Ms Naylor says that by 26 October, they had already been packed with the boxes in anticipation of Mr Tatar and Ms Naylor leaving the premises. There is no material in the photographs verifying that these tools existed and were present in the apartment premises on the evening of 25 October. 274Ms Naylor says that all of the tools described in these item numbers were already in boxes by the 26 October but apparently not packing boxes. Her evidence appears to suggest that these items were kept in boxes so that Mr Tatar could access the tools for ordinary household and handyman repairs. None of the photographs of the garage confirm boxes of tools being present and there are no photographs of the laundry. I am not prepared to accept Ms Naylor's uncorroborated evidence as to the existence of these tools. 275Unlike Ms Naylor, Mr Tatar says he could identify some of these tools in the photographs. As Ms Naylor conceded, Mr Tatar was the one who used the tools and probably is the person between the two of them better able to identify these items and to account for their storage. 276Mr Tatar's evidence on the subject was little better. He purports to identify item 214, a piece of electronic equipment, described as an Intel Router, and the cordless drill. I am prepared to accept that the cordless drill was missing and not found among the equipment placed in storage. It would be a difficult to damage that item. And it is one that could easily go astray in the course of moving. But the Intel Router looks like non-descript electronic equipment that, if disconnected, would genuinely and reasonably appear to the removalists to be rubbish. But I accept Mr Tatar's evidence that the Intel Router was not in the storage area. There is just no evidence of its recovery or otherwise, properly advanced in his case. The Intel Router is visible in the police photographs. It seems as though it has come off the wall and been damaged in those photographs. I infer that this occurred during Mr Tatar's violent destruction on the night of 25 October. That is the most probable explanation for the Router being on the floor. 277It is clear too from police photographs 55 that a hammer is in the same vicinity. That appears to be Item 210. The hammer is an indestructible item and is not likely to have been damaged by Mr Tatar. On the contrary, in my view, given its prominent place on the floor in photograph 55 I infer that Mr Tatar used this hammer to wreak most of the damage throughout the apartment that he did. But I accept Mr Tatar and Ms Naylor's evidence that this hammer was not among the material in the storage area. I cannot see it in the storage facility photographs and I infer that it went missing in the course of the removal exercise. 278Mr Tatar agreed that the tools could not be seen in any photograph, although he identified a box holding item 211 assorted tools. This item appears in the photographs to have been taken off a shelf, opened and then tipped out. In my view the great likelihood is that Mr Tatar did this in the course of his violent behaviour on the evening of 25 October and that in consequence, the tools were scattered everywhere. 279(215), (216), (217), (219) Laura Star S4 Ironing system, Large clothes rack, Dyson vacuum cleaner, Mops, buckets, cleaning accessories. These general domestic household appliances may have been in the plaintiffs' possession on 25 October. But I am not prepared to infer on the basis of the photographs in the plaintiffs evidence that they are missing. These are the kinds of things that one would expect the plaintiff to have. But little can be inferred from photographs of the storage area, so I do not infer that they are missing. 280(218) Ford Ute. Mr Tatar seemed quite unclear as to whether his making a claim or not for the Ford utility, item 218. He claimed it was still in the garage on the night of 25 October but that he has "no idea what happened to it". There is certainly no clear evidence that the utility was taken, touched or transported by Mr Vines at any time. 281It was in the garage when the police photographs were taken. It appears clearly at photograph 60, 61, 62, 63 and 64. But even then it has been plainly been damaged by a blunt implement, possibly a hammer. The hammer previously mentioned, which appears in photograph 58 is the likely implement. The car's duco has been scratched, the bonnet is bent, some of the glass has been shattered. In my view the most probable explanation for what happened to this vehicle is that Mr Tatar damaged it on the night of 25 October and that it was removed from the household after that date by person or persons unknown. I am not prepared to infer that it ever came into Mr Vines' possession when the sheriff took possession of the property on 27 October. 282Ms Naylor says that the vehicle was owned by a Mr Karim Elfar, and not Mr Tatar or herself. I accept this much of her evidence and that the vehicle had been loaned to Mr Tatar. Mr Elfar is now deceased. But the probabilities are that someone associated with Mr Elfar (who was alive at the time) retrieved the vehicle from the premises. 283(220), (221) Christmas tree decorations, Box of collectable teddy bears. These items were probably collected over the time by the plaintiffs. But I am not prepared to infer that these items were missing based upon the plaintiffs' evidence. 284(222), (223), (224), (225), (226), (227), (228), (229), (230), (231), (232), (233), 234), (235) Waters High Performance Liquid Chromatograph in box, Atomic absorption spectrophotometer, Gas-liquid chromatograph, Laboratory Balance 200g x 0.1mg, Laboratory Balance 200g x 1g, Melting point apparatus electrothermal, Biological safety cabinet, PCR DNA thermal cycler 48 tube, Compound monocular microscope, HCI, 1L, AR, Dioxin 1L, AR. Tetrahydrofuran 1L, AR, Glacial Acetic Acid 1L, AR, Rhodizonic Acid, Sodium salt, 97%. This group of items consists of scientific laboratory equipment and chemicals. These items are not present in the photographs and there is no evidence of receipts or other independent evidence to corroborate their existence. And some of the items do not even have any value ascribed to them. The chemicals are of little value, certainly not justifying there being moved. 285Even if they were proposed to be moved by the defendant, it would have been quite rational for any removalist to dispose of these items rather than move them in the same consignment as other valuable goods owned by the plaintiffs. Hydrochloric acid and dioxin are not to be moved with evening gowns, delicate electronic equipment and leather furniture. The disposal of these items prior to removal would have been entirely justified by the removalists to ensure the safety integrity of the other items being moved. 286Laundry-Garage - Summary. The plaintiffs have been successful in their claims for the following items: one Intel Router, a cordless drill; one hammer; and a collection of general domestic household appliances and effects (including an iron, clothes rack, vacuum cleaner, etc). (j) Other Miscellaneous Items 287(236), (237), (238), (239), (240), (241), (242), (243), (244), (245), (246), (247), (248), (249), (250), (251), (252), (253), (254), (255), (256), (257) , (258), (259), (260), (261), (262), (263), (264), (265), (266), (267), (268), (269), (270), (271), (272), (273), (274), (275), (276), (277) Fissler Stainless steel, frying pan large, Fissler stainless steel stock pot, Fissler staineless steel stock pot, Trident knife, Glass, Knife block, Wooden mortar and chrome pestle, Fissler stainless steel saucepan, Whitehill silver champagne cooler, Two cake plates, glass with chrome legs, Poker set in black box, Deep fryer, stainless steel, Sponge cake dish shaped like large martini glass, Board game 'balderdash' in green box, Champagne holder, pink Laurent Perrier, Blue bag containing candles, Box of Villeroy & Boch Champagne glasses, Numerous tablecloths and napkins, white damask and lace, Box of glassware in green/brown box, wrapped in plastic bag, Champagne glasses, martini glasses, Versace drink coaster on coffee table, Five bottles of wine in wine fridge, Black hat, Leopard print cushions, Wine fridge, Calculator, Rubber stamps, Desk items, Bird cage, Stainless steel bin, Cordless phone, Cookery books, Ladies hat, Stainless steel bowl, Bottle of wine, Fruit bowls, Hooks, Blue laundry basket, Sound system, Ramekins, Crystal vase, Chrome electric kettle. All of these items numbered from 236 to 277 in the Schedule were added by the plaintiffs after the plaintiffs saw the photographs and the LaVine video, which were to be tendered in the proceedings. Those photographs are said to have reminded the plaintiffs of the fact that these items existed. Mr Tatar gave some evidence about a number of these items, in his August 2012 affidavit, and in oral evidence. 288But I do not accept any of Mr Tatar's evidence about these items. I do not accept his evidence that he owned them. I do not accept his evidence that he was able to identify these items as additional items in the photographs. Whilst he was able to point to a number of pieces of property in the photographs as coming within the description of items 237 to 277, I am not prepared to infer that the items that Mr Tatar points to in the photographs were items additional to those listed before item 237. 289Nor am I prepared to infer on the basis of Mr Tatar or Ms Naylor's evidence that any of these items were present in the premises, in an undamaged state, at the time the removalists commenced their work on 29 October. 290A further weakness in this part of the plaintiffs' claim is that these forty items were not in fact included in earlier editions of the Schedule. It is difficult to accept that Mr Tatar and Ms Naylor simply forgot so many items at the time the Schedule was put together. 291To the extent that a few of these miscellaneous items appear to be unique and not accounted for elsewhere in the list of items prior to 237 - items such as the birdcage (item 264) - I am not prepared to infer on the basis of Mr Tatar's evidence that such items were on the premises on 29 October, when the removalists commenced their work. 292Mr Tatar partly constructed his case in relation to these miscellaneous items from the LaVine video, as well as from various photographs. He also says that some of these items as missing, see for example item 256, on the basis of what the video shows: item 256 was allegedly put by strangers, possibly removalists, into a bag, which Mr Tatar says could not be found later in the storage area. But I do not accept any of Mr Tatar's or Ms Naylor's evidence about these miscellaneous items, including evidence to the effect that they did not turn up in the storage area. So whatever theory he advances from the LaVines video in respect of these miscellaneous items it falls away for lack of any proof that the items were not removed. 293Other Miscellaneous Items - Summary. Given the lack of evidence presented by the plaintiffs in respect of their claim for a range of other miscellaneous items, I am not prepared to find that these were owned by the plaintiffs or that they existed in the premises at 29 October. Exemplary Damages 294The plaintiffs make a claim for exemplary damages. They say that Mr Vines was "riding roughshod" over the plaintiffs' rights in the eviction and in dealing with the goods. 295The principles governing an award of exemplary damages in Australia were definitively stated by the High Court in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118. The formula adopted by each of the judges was "conscious wrong-doing in contumelious disregard of another's rights" to describe the positive misconduct required to attract an award of exemplary damages. 296But this exemplary damages claim fails. The circumstances do not show contempt for the plaintiffs' rights. Nor was Mr Vines angry or malevolent in his treatment of the plaintiffs. He did not say to Ms Naylor what she attributes to him on 29 October. And it was reasonable for him to try and contact Mr Tatar (who had just apparently attempted suicide) but to deal with Ms Naylor. 297The plaintiffs point to many alleged aspects of Mr Vines' treatment of their goods as warranting an award of exemplary damages. But none of them, taken together or separately, satisfy the test for an award of exemplary damages. One example will suffice. Mr Vines did agree that the removalists did not appear to have bubble wrap, to pack glassware. But that does not mean Mr Vines intended that the removalists would destroy the plaintiffs' glassware. He did not intend that. And the evidence does not show that the removalists took no precautions for the plaintiffs' goods. Conclusions and Orders 298These reasons have found that the plaintiffs' claim in conversion fails on all the higher value items claimed, but succeeds in respect of a number of items of a lesser value in accordance with the procedure contemplated by the parties. The total value is yet to be ascertained and the identified items now need to be individually valued. I direct the parties to bring in short minutes of order to give effect to these reasons and to provide for an inquiry for the valuation of the items of property found in these reasons to have been converted. 299Both sides have been partially successful in the proceedings. Costs would normally follow the event. The Court has directed Calderbank letters to be served before hearing. One or other party may have a claim to a special costs order. But it is too early for those letters to be made available to the Court. It is more appropriate in this case to leave argument about the issue of costs until the expert valuer has concluded the valuation inquiry. 300But as the plaintiffs have succeeded on only a small number of items, it may be possible for the parties to agree on the valuation result without the need for a full valuation inquiry. I will list the matter for further orders at 9.30am on 28 February 2014. 301In the result therefore the Court orders: (1) direct the parties to bring in short minutes of order to give effect to the Court's reasons. (2) list the proceedings for the making of further orders at 9.30am on 28 February 2014. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2014