Supreme Court New South Wales Medium Neutral Citation: Maria Luz Harvey v Maria Luz Barton (No 2) [2014] NSWSC 303 Hearing dates: 14 March 2014 Decision date: 21 March 2014 Jurisdiction: Equity Division Before: Robb J Decision: (1)Order that the plaintiff's claim in conversion against the defendant be dismissed. (2)No order as to costs of the proceedings after 6 December 2013, with the intent that each party will pay her own costs for that period. Catchwords: CONVERSION OF PROPERTY - whether the property was retained by the defendant - whether there was evidence of the value of the property - Burden of proof not satisfied Category: Separate question Parties: Maria Luz Harvey (plaintiff) Maria Luz Barton (defendant) Representation: Counsel: D C Eardley (plaintiff) In person (defendant) Solicitors: Legal Aid NSW (plaintiff) In person (defendant) File Number(s): 2012/201450 Judgment 1On 6 December 2013 I delivered judgment on a claim made by the plaintiff in these proceedings, Maria Luz Harvey, that her daughter, the defendant, Maria Luz Barton held the title to a property situated at 148 Kingsway, Woolooware, New South Wales, partly on trust for the plaintiff. 2In addition to that claim, Ms Harvey pleaded a claim against Ms Barton in conversion. In essence, Ms Harvey alleged that, when she finally moved out of the property, she left a list of personal items, and that Ms Barton had refused or declined to return or deliver those items to Ms Harvey. This claim was pleaded in pars 28 to 31 of Ms Harvey's second further amended statement of claim. It related to 26 items of personal property. 3I dealt with this issue in pars 106 to 114 of my reasons for judgment. In essence, Ms Barton admitted that she retained in her possession a grand piano and piano seat that constituted item (a) of Ms Harvey's list. Order 8 made on 6 December 2013 required Ms Barton to permit Ms Harvey to collect the grand piano and piano seat from the property. 4As to the other items listed by Ms Harvey I made order 9, which in essence required Ms Barton to permit Ms Harvey to make arrangements to collect such of the items as remained at the property, and to deliver a written statement of Ms Barton's knowledge of where each item was at the time Ms Harvey left the property, and what has happened to the items since that time. By order 10 I directed the parties to deliver any evidence upon which they wanted to rely of the value of each item of property that was not returned by Ms Barton. 5I made those orders because I was not satisfied that the conversion issue had properly or fully been contested during the hearing. Ms Barton denied having possession of any of the items save for those listed in item (a). Ms Barton gave very generalised evidence that she had on a number of occasions delivered Ms Harvey's personal property to her, without specifically identifying any of the items on Ms Harvey's list. For her part, Ms Harvey simply maintained that she had not received any of the items. However, Ms Harvey did not give any explicit evidence as to where the various items of her property had been located at the time she left the former family home. The evidence was simply unsatisfactory. It appeared to me that the proper course was for the court to attempt to manage the issue, and to make practical arrangements to ensure that any items of property that were available to be returned would be returned. As to any property that remained in contest, I would case manage the remaining issues to try to ensure that they were resolved as expeditiously and inexpensively as possible. 6Both Ms Harvey and Ms Barton filed further affidavits to deal with the remaining issues in the conversion claim. 7The matter was dealt with at a hearing that took place on 14 March 2014. 8Ms Harvey relied upon an affidavit sworn on 13 March 2014. As I understand it, Ms Harvey has taken delivery of the grand piano and piano seat. None of the other items of property have been returned to her. In her affidavit Ms Harvey simply maintains that she left the outstanding items at the property when she moved out, and they have not been returned to her. On the issue of Ms Harvey having left the items at the property her evidence remains at the level of a general assertion, and without any detail about where the items were at the time they were left. Ms Harvey has provided to the court her own estimates of the value of several of the items. She has tendered a list of the items, upon which has been typed or written by Ms Harvey an asserted value. In the case of many of the items on the original typed list, Ms Harvey has struck through the estimated value, and written in hand a different value. As an example, item (j) is described as "1 large solid 22 carat gold neck chain". The original typed value was $1900. Ms Harvey has written in a new value of $16,999. 9Ms Harvey has also tendered a number of business cards of various jewellers, and the like, upon which Ms Harvey appears to have written values for a number of items that have been given very general descriptions. As I understand it, Ms Harvey made her own enquiries by going to merchants and attempting to obtain prices for items that Ms Harvey believes correspond to various of the items that she claims were left at the property. 10Ms Harvey has not given detailed evidence of the description of the various items, and she has not provided expert valuation evidence as to the present value of items which conformed closely with the descriptions of the items the subject of Ms Harvey's conversion claim. 11Mr Eardley of counsel, who appeared for Ms Harvey, openly and properly conceded that the evidence that had been put forward on behalf of Ms Harvey was the best evidence that could be prepared, and that it would not be possible for Ms Harvey to do better. 12Ms Barton relied upon an affidavit sworn by her on 12 March 2014. 13Ms Barton referred to the list that she had prepared in compliance with order 9(b) made on 6 December 2013. Of the items that have not been returned to Ms Harvey, Ms Barton stated that Ms Harvey was either wearing the property when she left home, or Ms Barton had already delivered the item to Ms Harvey. There was one item, a silver chain, as to which Ms Barton said that Ms Harvey had never worn any silver jewellery. 14Ms Barton gave evidence that on Sunday, 17 April 2011 and Sunday, 15 May 2011 she delivered, with the assistance of Mr Richard West, a total of 5 car loads of Ms Harvey's personal property to her residence at the time, 2 Hills Street, Woolooware. Ms Barton claimed that the items that she asserted had been returned to Ms Harvey were included in one or other of the car loads. Ms Barton's evidence was not specific as to identifying the items as being in particular car loads, but that is not surprising as it is understandable that Ms Barton would have dealt with the matter by aggregating Ms Harvey's property and simply putting it into the car. Ms Barton also swore that Ms Harvey was wearing the items that Ms Barton claimed had not been left at the property. 15A plaintiff who sues for damages for conversion of goods is required to prove on the balance of probabilities, first that the defendant has converted the property by retaining it and refusing to deliver it to the plaintiff, and secondly that the property converted has a particular value. 16In the present case the burden of proof is significant, because I have come to the conclusion that Ms Harvey has not satisfied the burden of proof, either in relation to conversion by Ms Barton of the remaining items, or as to their value. 17As to the items that Ms Barton concedes were left at the property, she has given sworn evidence that she returned that property to Ms Harvey's new address, although she was not able to specify which items were returned on particular dates. I am prepared to accept Ms Barton's evidence generally that she returned quantities of property to Ms Harvey. In the emotional circumstances that existed between the parties, it is unlikely that Ms Barton would have wanted to leave Ms Harvey's personal property lying around in her home. It is true that the court does not have specific evidence of individual items of property being returned to Ms Harvey. As I have noted above, however, that is a natural outcome as it would be unusual for a person in Ms Barton's position to make an itemised list of the property being returned. 18In relation to the items of property that Ms Harvey asserts were left at the home, and Ms Barton claims were worn by Ms Harvey, the most that can be said about the evidence is that it is unresolved. 19In any event, the valuation evidence tendered by Ms Harvey was strictly inadmissible, and most definitely does not prove the value of any of the items. Even if I was satisfied that individual items had not been returned to Ms Harvey, I could not on the evidence have ascribed a particular value for the items. 20In the circumstances the only course available to the court is to dismiss Ms Harvey's conversion claim. 21Mr Eardley asked me to make an order for the costs of 14 March 2014 in favour of Ms Harvey, on the basis that it was necessary for Ms Harvey's legal representatives to appear before the court to finalise the making of orders for the appointment of trustees for the sale of the property, which were contemplated by orders that I made on 6 December 2013. 22That is true, but on the other hand Ms Harvey has failed in her conversion claim. In the circumstances the appropriate course is for the court to make no order in respect of the costs of the parties after 6 December 2013, with the intent that each party will pay her own costs. 23I therefore make the following orders: (1)Order that the plaintiff's claim in conversion against the defendant be dismissed. (2)The Court makes no order as to costs of the proceedings after 6 December 2013, with the intent that each party will pay her own costs for that period. ********** 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: 21 May 2014