Supreme Court New South Wales Medium Neutral Citation: Faye-Diane Combe v Bank of Queensland Limited [2014] NSWSC 188 Hearing dates: 23 September 2013 Decision date: 07 March 2014 Jurisdiction: Common Law Before: Hidden J Decision: Judgment for defendant Catchwords: PROCEEDINGS FOR DAMAGES - conversion - bank taken possession of mortgaged property - allegation the bank wrongfully disposed of goods stored on the property - no question of principle Cases Cited: Allianz Australia Insurance Limited v Lo-Guidice [2012] NSWSC 145 Category: Principal judgment Parties: Faye-Diane Combe (plaintiff) Bank of Queensland Limited (defendant) Representation: Counsel: In person (plaintiff) DJ Barnett (defendant) Solicitors: DibbsBarker Lawyers (defendant) File Number(s): 2010/373940 Judgment 1HIS HONOUR: The plaintiff, Faye-Diane Combe, has brought proceedings in this court against the defendant, Bank of Queensland Limited, in conversion and detinue. She alleges that the bank wrongfully disposed of certain goods of hers which had been stored at a property of which it had taken possession under a mortgage. 2In September 2009 the bank obtained default judgment for possession of a property at Castle Hill, the mortgagors being Paula, Helena and Paul Jensen. The bank entered into possession on 3 December 2009, and in May 2010 a cleaning company removed all the goods on the property and placed them in storage. In April 2011 the goods were disposed of at a council tip. It is Ms Combe's case that at some stage after the bank took possession of the property it disposed of items of hers, of considerable value in their totality, which had been stored at the property by arrangement with the Jensens since about 2007. This the bank denies. 3Ms Combe has pursued the proceedings without legal representation and was unrepresented at the hearing. She relied on affidavit evidence, as did the bank. Her dealings with the bank have a long history, as do the proceedings in this court, which were commenced in 2010. Some of Ms Combe's affidavit material is directed to the propriety of the default judgment, complaining that the Jensens were not on notice of the proceedings against them. It is clear that she has had a longstanding association with them, the circumstances of which need not be examined. 4It is not appropriate that I should revisit the entry of the default judgment. That judgment stands, the Jensens' application to set it aside having been unsuccessful. It is relevant for present purposes only insofar as it was the mechanism which enabled the bank to take possession of the property. (It might also be relevant to found Ms Combe's complaint that, as the Jensens were not on notice of the proceedings, nor was she, so that she did not have the opportunity to take action to protect her goods if the bank obtained an order for possession.) Ultimately, the matter turns upon the resolution of one factual issue. 5Ms Combe is an artist. The current statement of claim is an amended document of 21 January 2013. Attached to it is a list of the goods the subject of the claim. Put shortly, they comprise: * a number of portfolios of miscellaneous works, including etchings and drawings; * about 10 works on canvas or linen, unfinished and unsigned; * 2 rolls of canvas with attached pastel drawings; * a number of easels and picture frames; * paints, brushes, etching materials, and the like; * rolls of canvas or linen; * artbooks; * various personal effects, including documents, clothes, bed linen and towels. * 6Ms Combe's account of events is to be found in her affidavits of 15 June 2011 and 24 May 2012. She also relies upon an affidavit of 10 May 2013, which responds to the bank's evidence. In these affidavits she attests to the storage of her goods at the Castle Hill property after she had to leave her own home. For present purposes there is no need to go to the detail of that process. Exactly when it occurred is not clear. She estimates the value of the goods at a figure in excess of $400,000. The fact of the storage of the goods at the premises is confirmed in general terms in affidavits of Paula and Helena Jensen. Paul Jensen, Ms Combe informed me, is deceased. 7Ms Combe's affidavits also set out the effect upon her life of the loss of these goods, apart from their monetary value. Otherwise, they deal at some length with the history of the possession proceedings against the Jensens and her own proceedings in this court, together with her dealings with the bank directly and through its solicitors. I understand that she feels strongly about the matters she has raised but, as I have said, I do not find this material relevant to the resolution of these proceedings. 8That said, some aspects of her dealings with the bank should be noted. Her evidence is that she was not allowed access to the property after the bank took possession of it on 3 December 2009. In September 2010, pursuant to a direction by Registrar Bradford, the bank's solicitors forwarded to her an inventory of the goods said to have been removed from the premises and placed in storage. As it happens, a copy of the inventory sent was incomplete. She noted that none of her items appeared on it. Subsequently, by a letter of 25 May 2011, the bank's solicitors informed her that the goods had been disposed of. 9Ms Combe deposes that at one stage the bank furnished the Jensens and herself with a form of authority to deal with the goods in storage. When this occurred, and in what circumstances, is not clear. A copy of the document provided to her is annexed to her affidavits of June 2011 and May 2012. It authorises the bank "to hand possession of all abandoned goods that were left at the Property" to Ms Paula Jensen as the first registered proprietor, including any goods which she claimed to be her personal possessions. It then provided an immediate and unconditional release of the bank, and its officers and agents, from all claims which she otherwise might have had. She did not execute the authority. However, she relies upon it as an admission by the bank of having dealt with her goods. 10In its case the bank relies upon affidavits of: * Amanda Leggat, a senior bank officer, of 27 March 2013; * Anthony Stanton, general counsel for a corporate group, a member of which is Tagma Property Consultants ("Tagma"); * Jamie Grech, owner and manager of Mt Annan Fresh, a cleaning business. Mr Grech also gave oral evidence. 11The effect of this material is that the bank engaged Tagma as a point of contact to locksmiths, agents and various other service providers in relation to repossessed properties. Tagma attended the eviction at the Castle Hill property on 3 December 2009, arranging for a locksmith to change the locks and for property agents to take possession of the keys to the property. They were to be released only on Tagma's authorisation. It was also Tagma which engaged Mt Annan Fresh to clean the property and remove any rubbish or abandoned goods. The evidence of Mr Grech about that process is important in the bank's case. 12Mr Grech deposes that late in February 2010 he inspected the property and provided a quotation for the work, which was accepted. In April 2010, he arranged for PODS Storage to take delivery of the goods. In about May 2010, with three assistants, he attended to the removal of the goods from the property. 13He deposes to the manner in which that task was carried out. Where possible, all non-perishable goods were packed into boxes and the boxes were placed into storage containers provided by PODS. As far as possible, similar items were packed in the same box. Items that were too large for the boxes were placed into the containers directly. Those items were two vehicles, a boat and some old tools. 14Mr Grech supervised the process and photographed all the items which were packed. Those photographs are annexed to his affidavit. As the goods were packed he also made an inventory of them, a copy of which was said to have also been annexed. That is the same incomplete copy which had been sent to Ms Combe. The full inventory, containing two additional pages, was admitted into evidence at the hearing: exhibit 1. The affidavit goes on to record the delivery of the goods into storage and their subsequent disposal (except the vehicles), on Tagma's instructions, in April 2011. 15In her affidavit in reply of May 2013, Ms Combe deposes that none of her goods appear in the photographs or the inventory annexed to Mr Grech's affidavit. Having been provided with the full inventory, exhibit 1, she did not suggest that any of her items appeared in the two additional pages. Accordingly, the effect of Mr Grech's evidence is that none of Ms Combe's goods were removed by him or his assistants. I might add that, in cross-examination by Ms Combe, Mr Grech agreed that, to his knowledge, the goods removed were the same as those which were on the premises when he inspected them in February 2010. 16Ms Combe provided final submissions in writing, developed orally, as did counsel for the bank, Mr DJ Barnett. As a concise statement of the law of conversion, Mr Barnett cited a passage from the judgment of Pembroke J in Allianz Australia Insurance Limited v Lo-Guidice [2012] NSWSC 145 at [27] as follows: There are two elements of the tort of conversion. The plaintiff has either possession or a right to immediate possession of the goods at the time of conversion. And the defendant intentionally deals with the goods in a manner repugnant to the possession or immediate right of possession of the "true owner" to the goods. See Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 229 per Dixon J ; Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342 at [124] per Allsop P . Mr Barnett also referred succinctly to the issue of damages but, as Ms Combe's claim must fail, that issue does not arise. 17Put shortly, then, on the question of liability Ms Combe must establish that she had possession, or a right to immediate possession, of the goods, and that the bank disposed of them. Mr Barnett's primary submission was that that second element, the disposal of the goods by the bank, was not established. That submission must be accepted. 18I have no reason to doubt that Ms Combe's goods were stored at the property at some stage. I am prepared to assume, without deciding, that while they were so stored she had a right to immediate possession of them. However, the evidence does not establish that the bank intentionally dealt with them in a manner repugnant to that right. Indeed, it has not been established that the bank dealt with them at all. 19Of course, Ms Combe does not provide direct evidence of any person having removed her items from the property. Nowhere in her affidavits, or in those of Paula and Helena Jensen, is there an express assertion that her goods were on the property in May 2010 or, indeed, on 3 September 2009, when the bank went into possession. Nor can any such inference be drawn. The evidence establishes no more than the goods were on the property at some stage and were no longer there subsequently. 20As I have said, it is clear that Mr Grech and his team did not remove any of her goods in May 2010 and, it would seem, they were not on the premises in February of that year. What became of them simply cannot be established. True it is that Ms Combe was not allowed access to the property after 3 December 2009 and that access thereafter was under the control of Tagma. However, the evidence as a whole does not support the conclusion that the bank disposed of her goods. The only evidence of any dealing by the bank with goods on the property is that of Mr Grech. 21Nothing in the correspondence between the bank's solicitors and Ms Combe amounts to an admission by the bank that it dealt with her goods. The letters of September 2010 and May 2011, referred to in [8] above, clearly refer only to the property removed by Mr Grech. Nor can the authority referred to in [9] be construed as an admission. Whatever might have been the circumstances in which that document was provided to Ms Combe and the Jensens, it was clearly provided between the time that the goods were removed by Mr Grech in 2010 and they were disposed of in 2011. Plainly enough, the bank was concerned with any claim of title to any of those goods and to protect its position in that respect. It certainly cannot be seen as an admission of having dealt with the goods the subject of Ms Combe's claim. 22I have given careful consideration to the considerable volume of material upon which Ms Combe relies and to her submissions, but they provide no answer to the crucial issue identified by Mr Barnett. I do not doubt that Ms Combe's goods were of great value to her and that she is very much aggrieved by their loss. However, responsibility for that loss cannot be sheeted home to the bank. Her claim must be dismissed. 23Accordingly, there will be judgment for the defendant. If necessary, I shall hear the parties on costs. ********** 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: 10 March 2014