Magistrate's Decision in Favor of Respondent Opposed by Appellant

Kennedy v Proctor [2021] VSC 521 (23 August 2021)

Ms Kennedy purchased a horse to enable Mr Proctor to compete in horse riding.  Later on, Mr Kennedy demanded the return of the horse.  Mr Proctor argues that the horse was gifted to her and the Magistrate's Court ruled accordingly.  Ms Kennedy filed this appeal challenging the learned Magistrate’s decision in favour of Ms Proctor.  The Court, in adjudicating this dispute on whether or not the horse was a gift or a loan, relied upon the Nolan test.

Facts:

In 2019, the appellant, Ms Andrea Kennedy engaged the respondent, Ms Tarryn Proctor, to give her daughter horse riding lessons. Ms Proctor was an able horse woman and aspiring dressage rider.  Ms Kennedy later also received horse riding lessons personally from Ms Proctor.  At some time in 2014, Ms Proctor fell off her horse when competing at an event and suffered serious injuries from the fall.  ‘Quest’, the horse that she had been riding at the time, had a serious injury and could no longer be ridden at competitive events.

In November 2014, Ms Kennedy purchased a horse known as ‘Ishker’ in the sum of $20,000 to enable Ms Proctor to continue to compete.  ‘Ishker’ travelled from the vendor’s property directly to Ms Proctor’s property in February 2015.  Ms Kennedy wished to have the arrangement hidden from her husband and her daughter as Ms Kennedy believed that they would be jealous if they knew of the arrangement.  In December 2017, Ishker produced a colt named (Trooper). 

Ms Kennedy paid for the embryo to be implanted through artificial insemination.  Ms Kennedy formally demanded the return of Ishker on 4 December 2018 via a letter of demand.  Ms Kennedy contends that Ishker was loaned to Ms Proctor for her non-exclusive use and enjoyment as a competition horse.  Ms Proctor argues that Ishker was gifted to her. 

On 19 March 2020, the learned Magistrate handed down an ex tempore (oral) decision, which held that Ms Kennedy had on the balance of probabilities gifted the horse to Ms Proctor.  Ms Proctor brought a counterclaim in the same proceedings before the Magistrates’ Court for services performed in training and livery services for two other horses owned by Ms Kennedy.  At the time of the hearing before the Magistrates’ Court no claim had been made for Trooper by Ms Kennedy.  The documentation to which his Honour made reference included text messages, a certificate of registration and a statement of assets in a family law proceeding concerning Ms Proctor.

Issues:

I. Whether or not the horse had been loaned or gifted to the respondent.

II. Whether or not the trial judge erred in failing to examine evidence as a whole. 

III. Whether or not the donative intent is made out based on oral and documentary evidence.

Applicable law:

Nolan v Nolan [2003] VSC 121; (2003) 10 VR 626 - where it was held that the essential elements required to establish a valid gift were set out as being the intention to make a gift (usually expressed by words), the intention on the part of the donee to accept the gift and delivery ("Nolan Test").

Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 -provides that a true picture can only be derived from an accumulation of detail and assessing the ‘overall effect’ of the details in their totality. 

Chamberlain v The Queen [1984] HCA 7; (1984) 153 CLR 521 [580] - where the Court held that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. 

Analysis:

The trial judge’s task was to examine all of the evidence as a whole or its cumulative effect, rather than each document separately and in isolation from relevant material.  Ms Kennedy submitted that the learned Magistrate did not treat the documentary evidence as circumstantial, but rather, his Honour treated the evidence as indicia of intention.  It was argued that the learned Magistrate’s treatment of the documentary evidence improperly demonstrated a view that indicated the documents were considered to constitute an intention to give Ishker to Ms Proctor.  Ms Kennedy claimed that the inclusion of Ishker in the deed of settlement indicated that Ms Proctor had Ishker in their possession, custody and control and no more. 

The use of the term ‘indicia’, as used by the learned Magistrate, as meaning a ‘tendency’ or ‘indication’ that certain documentary evidence supports a particular parties’ version of events.  Examining each piece of documentary evidence and its relative weight individually, as what the Magistrate did,  does not negate that his Honour also considered the evidence as a whole. The utility of going through each piece of evidence is rational given each piece provides a different angle from the picture being analysed from afar.

Conclusion:

The Court concluded that there is no error in the approach to the evidence nor the application of the legal test to that evidence in the reasons provided by the learned Magistrate. The appeal is ordered to be dismissed.