Blyton v Bates[2021] QDC 180

DISTRICT COURT OF QUEENSLAND

The issue in the appeal

1. [1]
   As a consequence of a course of dealings by various persons with a 2013 Sam’s Bulldog Trailer (‘Trailer’), the Trailer came into police custody. Because two parties each claimed ownership of the Trailer, the police made application for the determination of the issue of ownership.
2. [2]
   At issue in the appeal is whether the decision of the learned Magistrate made on 31 July 2020 that the second respondent, In Front Australian Business Solutions Pty Ltd ACN 127 427 445 (‘In Front’) was the owner of the Trailer is correct. Mr Blyton complained to police on 6 April 2019 that the Trailer was stolen. Police investigations determined the issues of dispute went back to events in May 2018.^[1] Ultimately, the appellant, Mr Blyton, claims to be the owner of the Trailer based on an acquisition of it by him in May 2018. The second respondent, In Front, claims to be the owner of the Trailer based on an acquisition of it by it in April 2019.  
3. [3]
   The sole ground of the appeal is that the Magistrate erred in law in not declaring the appellant, Mr Blyton, was the owner of the Trailer.

The nature of the appeal

4. [4]
   The appeal is brought pursuant to s 45(1) of the Magistrates Courts Act 1921. No leave is required because of the amount involved. On hearing such an appeal, the Court may:^[2]

1. (a)
   draw inferences of fact from facts found by the Magistrates Court, from admitted facts or facts not disputed;

2. (b)
   order a new trial on such terms as it thinks just;

3. (c)
   order judgment to be entered for any party;

4. (d)
   make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties;

5. (e)
   as regards any special case, remit the matter to the Magistrates Court with the opinion of the District Court thereon;

6. (f)
   make such order with respect to the costs of the appeal or special case as it thinks proper.

5. [5]
   Further, the Court has for an appeal from a Magistrates Court, the same powers as the Court of Appeal has to hear an appeal.^[3]
6. [6]
   In Edwards v Jenkins and Ors [2017] QDC 135, which was an appeal to the District Court against the decision of the Magistrate on an application pursuant to s 694 of the Police Powers and Responsibilities Act 2000 (‘PPRA’) over ownership of some cattle, Judge Butler SC observed:

“[21] This appeal will result in an order which will be the final decision in the proceeding.  Accordingly, r 765(1) of the Uniform Civil Procedure Rules 1999 (the “UCPR”) applies to make this an appeal by way of rehearing. The High Court in Robinson Helicopter Co Inc. v McDermott summarised the longstanding basis for conducting an appeal by rehearing:

“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences.’”^[4]

The PPRA provisions

7. [7]
   The originating application before the Magistrate was made pursuant to s 694 of the PPRA by the first respondent, who took no active part in the appeal.
8. [8]
   S 694 provides, relevantly:

“694  Application by police officer for order if ownership disputed

(1)  This section applies if there is a dispute about the ownership of a relevant thing, whether the dispute is between –

(a) two or more persons, each of whom claims to be the owner of the thing…

(2)  A police officer may apply to a magistrate for an order declaring who the owner of the thing is.

(3) A police office must give anyone the police officer reasonably believes has a legal or equitable interest in the thing a copy of the application and notice of the day, time and place fixed for hearing the application.

(4) The magistrate may make the order the magistrate considers appropriate.

(5)  If the magistrate cannot decide who owns the thing, the magistrate may make the orders the magistrate considers appropriate for the disposal of the thing.”

9. [9]
   A relevant thing is defined in the PPRA as:

“(1) This part applies to a thing that is lawfully in the possession of the police service (relevant thing), whether before or after the commencement of this section, because –

 (a) it was seized by a police officer;

 … or

(c) it otherwise came into the possession of a police officer in the course of performing the officer’s functions.”

How to determine who is ‘the owner’ for the PPRA?

10. [10]
    In McCullough v Otto as Administratrix of the Estate of Fee, ex parte McCullough^[5] the Court of Appeal considered an application pursuant to s 39(1) of the Justices Act 1886, which was the statutory precursor of s 694 and cast in similar, but not identical, terms. It required delivery of the property “to the person who appears to be its owner”.^[6] 
11. [11]
    Ms Otto was the de facto partner of Mr Brian Fee for years before he died. Before he died, police had seized, under search warrants, many hundreds of items (valued at “many thousands of dollars”) located on a large property registered in one of Mr Fee’s aliases. Anticipated criminal proceedings against Mr Fee had ended with his death. Some items could be readily identified as stolen but there was no acceptable evidence of ownership for most of them. Only Ms Otto had claimed the property when the application came before the Magistrate. Her evidence was that she and Mr Fee had acquired the items over many years. Whilst the Magistrate did not accept her evidence, he found that some of the items belonged to Otto and Fee, though he could not say which ones. Other items, he found “may have come into their possession by dubious and perhaps nefarious means” but it was impossible to make some apportionment. The Magistrate ordered, ‘with some reluctance’ that all the outstanding items should be delivered into the joint possession of Ms Otto and the estate of Mr Fee, they being the persons who appear to be the owners. Mr McCullough appealed, seeking that the items remain with the police and that Ms Otto be required to take civil proceedings to recover them.^[7]  The Court of Appeal (the Chief Justice dissenting) set aside the Magistrate’s order with the effect that the items were to remain in police custody. 
12. [12]
    The Chief Justice observed that the Magistrate had refrained from making a firm finding that some of the property had been stolen or was subject to superior claims asserted by other persons.^[8] He assumed without deciding that the word ‘owner’ meant ‘true owner’,^[9] content that the word should have this narrow meaning where s 39(1)(d) (being the court’s powers to make orders where the owner could not be ascertained) was given a wide scope.^[10] He stated that the meaning of the word ‘owner’ in the case was an essentially sterile debate in the particular circumstances.^[11] He observed that in English law there will often be a difficult relationship between concepts of ‘ownership’ and ‘possession’ and that a good possessory title can often be the practical equivalent of ownership.^[12]
13. [13]
    Justice Pincus held that the word ‘owner’ was to be given its ordinary popular meaning,^[13] which was absolute ownership as distinct from possessory title.^[14]
14. [14]
    Justice Thomas observed of the meaning of the word ‘owner’ that the references to the ‘owner’ in section 39 were references to the true owner of the particular property. The words ‘its owner’ mean the true owner of the chattel according to the common usage of those words^[15] and it was an error to rely on ‘best and last possession’.^[16] Ms Otto bore the onus to prove the possession was lawful.^[17]
15. [15]
    Otto did not consider the application of the Sale of Goods Act 1896 (‘SGA’) provisions and only one party claimed ownership of the goods.  However, it is authority that assists this court on the approach to the meaning of the word ‘owner’ in s 694 of the PPRA. That is, who is the true owner of the property the subject of an application, in this case, the Trailer.
16. [16]
    The interpretation of the word ‘owner’ in Otto was applied by Robertson DCJ in Stephens v Williams.^[18] That case involved competing claims to ownership of a Toyota Landcruiser. A Mr Stephens had purchased a Toyota Landcruiser from a car yard in a false name. He registered it in his correct name at his address. Mr Stephens pleaded guilty to one count of attempted fraud: he insured the vehicle for three times its value, then reported the vehicle as stolen a month later and sought to claim on the insurance.  Some years later the vehicle was parked outside a bank for two weeks and appeared to be abandoned. The police ascertained Mr Stephens was the registered owner and unsuccessfully tried to contact him. Police checks did not show the vehicle was stolen, but the registration had expired, so the police seized the registration plates. The police gave the Council notice of an abandoned vehicle. The Council ultimately sold it by public auction to Caloundra Wreckers after carrying out various checks and advertising. Caloundra Wreckers repaired the vehicle, spent money on it and sold it, subject to it being re-registered. When Caloundra Wreckers attempted to register the vehicle with Queensland Transport it ascertained that the vehicle was reported as stolen.  That information had been available on the public register, but neither the police nor the Council had made the necessary searches.  The police then impounded the vehicle from Caloundra Wreckers who the Judge described as “a completely innocent third party bona fide purchaser for value who had, in good faith, improved the vehicle and were now out of pocket by $12,400.”^[19]  No argument concerning the application of the SGA was put in that case.
17. [17]
    Judge Robertson identified the Magistrate’s task as to determine ‘who is the owner’ of the Toyota. He summarised Otto on this point as holding “that the word “owner” in s 39(1) refers to “the true owner of the particular property” according to the “ordinary popular meaning” of the word. Depending on circumstances of the case, this could include possessory title through to the absolute owner.”^[20]
18. [18]
    In upholding the Magistrate’s decision his Honour observed “on the one hand, [the Magistrate] had Caloundra Wreckers who were bona fide purchasers for value without notice who had improved the vehicle in good faith. On the other she had Mr Stephens who was the person who had registered the vehicle in 2002, whose conduct in relation to it was shrouded in dishonesty and deceit and whose evidence appeared to contradict the circumstances of his offending set out in the Court of Appeal judgement. Her Honour was right to favour Caloundra Wreckers on the balance of probabilities.”^[21]  
19. [19]
    It is apparent from this passage that Judge Robertson took the approach which I understood the appellant urges is not open, which was to compare the two competing claims in coming to a determination as to who was the true owner.^[22] In the event of two claimants, it seems difficult to contemplate doing otherwise. It would seem that each party carries an onus to advance (and neutralise) evidence in respect of the claim that they make to ownership of the property in question.^[23]
20. [20]
    Here the SGA falls to be considered as a consequence of the evidence which was before the Magistrate and the arguments of the parties. The first aspect of this consideration is the operation, if any, of section 24 of the SGA in the context of the evidence of Mr Blyton’s acquisition of the Trailer.
21. [21]
    In Front submits that the evidence at the hearing established that neither Mr Blyton nor In Front was the original owner of the Trailer, which had been stolen prior to either party to the proceedings purchasing it.^[24] Conversely, Mr Blyton submits that he paid cash for the Trailer, produced a receipt from a Mr Bowden evidencing purchase and that his evidence of ownership was not put in doubt by the claim of an unimpressive witness (Mr Newman) who failed to complain to the police about the alleged theft of the Trailer when he claimed to have seen footage of it being stolen and who was content to leave what he asserted was his in the possession of the appellant on an understanding that was never documented and which was implausible.^[25] Counsel for Mr Blyton contended in oral argument that, on a real review of the evidence, I could not be satisfied that Mr Blyton purchased a stolen Trailer and I would find that Mr Blyton had legitimately acquired a Trailer owned by the man who sold it to him.^[26]
22. [22]
    Mr Blyton accepts that In Front was a purchaser who had no knowledge of Mr Newman’s conduct.^[27] The evidence establishes that In Front got photos of the Trailer and a VIN plate, evidence of a PPSR search indicating there were no registered secured interests and a desktop valuation prior to purchase.^[28] But this acquisition was second in time, which turns attention to Mr Blyton’s arguments.
23. [23]
    If Mr Blyton became the owner of the Trailer at the point he acquired it from Mr Bowden, that ends the argument in his favour unless he has, by his later conduct as the owner, acted so as to preclude the authority of the seller (Mr Newman and Mr Docherty) to sell the Trailer to In Front.
24. [24]
    If, when Mr Blyton acquired the Trailer from Mr Bowden, Mr Bodwen did not have authority to sell it, did Mr Newman (as owner at that time) act in any way so as to deny Mr Bowden the right to sell the Trailer:

    1. (a)
       If he did, then Mr Blyton will be the owner at this point (and it then becomes necessary to apply the considerations in the previous paragraph);
    2. (b)
       If he did not, then Mr Blyton cannot have taken title to the Trailer as against Mr Newman (who took it, to use a neutral term, in April 2019 and sold it to Mr Docherty to then sell it to In Front).
25. [25]
    If I find that Mr Blyton’s title was voidable, it will also be necessary to consider section 25 of the SGA.

The Sale of Goods Act 1896

26. [26]
    Section 24 of the SGA provides relevantly:

“(1) Subject to the provisions of this Act, when goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by the owner’s conduct precluded from denying the seller’s authority to sell.

(2) This Act does not affect—

(a) the provisions of the Factors Act, or any enactment enabling the apparent owner of goods to dispose of them as if the apparent owner were the true owner thereof;

(b) the validity of any contract of sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction.”

27. [27]
    Section 25 of the SGA provides:

“When the seller of goods has a voidable title thereto, but the seller’s title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, if the buyer buys them in good faith and without notice of the seller’s defect of title.”

28. [28]
    The appellant did not contend for any error in the Magistrate’s recitation of the evidence.^[29]

What does the record show about Mr Blyton’s acquisition of the Trailer and how does section 24 of the SGA apply to those facts? 

29. [29]
    The learned Magistrate dealt with this in his Decision in the following terms:^[30]

“The evidence of Mr Blyton was that he did not undertake any search, PPSA or otherwise, of the trailer due to it not having any identifying detail on it. Evidence for Mr Blyton with regard to fair market value in respect of the purchase of the trailer is limited to his personal view that the fair market value was – what the fair market value was and that whilst Mr Bowden wanted $15,000 for it, he was not prepared to pay any more, given how much work was needed on it. Whilst Mr Blyton testified that he had purchased trucks and trailers previously, this had been done through dealers. Accordingly, there is no independent expert or other evidence of fair market value being sought or achieved in the purchase of the Trailer by Mr Blyton. Further, against Mr Blyton is a confusion as to whether his claim to ownership is indeed by himself or any associated business entity – business or entity, namely, Chemway Testing Services or Chemway Pty Ltd.”

30. [30]
    There was the following relevant evidence in the trial relating to how Mr Blyton came to acquire the Trailer. 
31. [31]
    Mr Bowden, who Mr Newman allegedly stole the Trailer from him and sold it to Mr Blyton, refused to provide an affidavit or statement of any kind to the investigating police officer and refused to become involved.^[31] Thus no one could test Mr Bowden’s claim to ownership of the Trailer.
32. [32]
    Mr Blyton, (often referred to in the evidence as Wayne) provided two affidavits the effect of which were:

    1. (a)
       He was told about a trailer that Bowden was trying to sell, so contacted him and arranged to look at it;^[32]
    2. (b)
       Bowden delivered the trailer to Darlington Park Industrial Estate on 15 May 2018. Bowden told him the trailer was on the written off register as an unrepairable write off. The trailer did not have a VIN or registration plates and it was red and silver.^[33]
    3. (c)
       He purchased it from Bowden on 18 May 2018 for $10,000. He obtained a photograph of a handwritten receipt from Bowden on purchase and he paid Bowden in cash.^[34] There was a copy of a photograph of the receipt in evidence;^[35]
    4. (d)
       He paid $10,000 for the trailer which was a fair market value for that type of trailer in the damaged condition it was in. Whilst Mr Bowden wanted $15,000 for it, he was not prepared to pay more given the work which was needed so he offered $10,000 cash and Bowden agreed. He withdrew $10,000 from his bank account. A copy of a bank statement was attached,^[36] showing a withdrawal of $10,000 on 16 May 2018. I observe that whilst it is an everyday business account, and the account number is visible, it is not apparent from that bank statement whose bank account it is;
    5. (e)
       He understood the trailer would previously have had a manufacture plate or compliance plate showing a VIN but it was taken off because of how damaged the trailer was;
    6. (f)
       Three days later a bloke he knew as Blake^[37] approached him and told him that the trailer was his. He told Blake to sort it out with Bowden and if it was stolen he was to get his $10,000 back before it left. (I interpolate to observe it is apparent that Mr Blyton, on his own evidence, was prepared to listen to Mr Newman’s claims in May 2018 when he told Newman to sort it out with Bowden.) Newman said that he would. Newman told him he knew Bowden. He (Blyton) contacted Bowden to cancel his purchase and get his money back but Bowden stood his ground that the trailer was legitimately his and Newman had no claim on it;
    7. (g)
       Because he did not hear anything back from Newman he decided Newman’s claim of ownership was false.
33. [33]
    Arising from Mr Blyton’s oral evidence at the hearing are the following relevant matters:

    1. (a)
       He operated a business called Kemway Testing Services which did fabrication and testing of the big earthmoving rims in the mines. His business had trucks and trailers available to him as part of the business and he had purchased trucks and trailers for his business previously;
    2. (b)
       He looked at the trailer by himself in a yard in the Darlington Park estate after it was dropped by a Justin Jackson at his yard. He had looked for identification and had found none. He told Justin Jackson that he’d offer $10,000 cash and Justin said he’d get back to him;
    3. (c)
       He said he wanted a receipt before he gave over the cash and he gave the $10,000 to Justin Jackson in an envelope. Bowden texted him a receipt on the phone, which was handwritten and he got a photograph of it. Once he got the receipt he gave Justin the ok to hand over the cash;
    4. (d)
       He had not seen it for sale on any website and he didn’t use a dealer. The sale was through contacts;
    5. (e)
       It was not uncommon for trailers in a wrecked state to be sold without identifiers and available for inspection in another person’s yard and to be for sale for cash;
    6. (f)
       He did not do any other searches in relation to the trailer. He had bought other trucks through dealers and they usually did the PPSR searches but he did not do a PPSR search. He had not bought an unrepairable wreck before. He did not undertake a PPSR search at this time, because he understood you need serial numbers and VIN numbers;
    7. (g)
       When he contacted Bowden over the phone, he said to Bowden to sort it out between themselves but whoever gave him the money back could take the trailer. He didn’t want the headache of arguments over the ownership of the trailer. Bowden told him the trailer was an unrepairable write off, everything was ok and not to take any notice of Newman, whose claim was false;
    8. (h)
       He conceded he could have contacted the police at this point, but he did not do so.
34. [34]
    Mr Copley submitted that Newman’s evidence that he had paid $10,000 for the Trailer was some support for the proposition that Mr Blyton’s offer of $10,000 was not outlandish or unreasonable.^[38] Mr Newman’s evidence on affidavit was that he paid $18,000 for it, whilst orally his evidence was that he paid $10,000 for it. As such, it is unclear, on the evidence, what purchase price Mr Newman paid. Further, the evidence was that Mr Bowden was asking $15,000 for it but Mr Blyton was only prepared to offer $10,000; which was two thirds of the asking price.  As such, I accept the Magistrate’s finding that there was no independent evidence of fair market value for the Trailer at the time Mr Blyton acquired it.  A review of the record demonstrates that the Magistrate has properly summarised the evidence before him on these matters he identified.
35. [35]
    Whilst Mr Blyton was re-examined by his legal representatives, there was no attempt to clarify with him in evidence who was the owner of the bank account from which the $10,000 had come. (He was also not asked any questions about why he took no steps to find out what was going on when he was told the Trailer was being advertised for sale in February 2019).
36. [36]
    The learned Magistrate observed that whilst Mr Blyton was under cross examination he was fairly composed and gave his evidence in a forthright manner. That assessment is supported by a review of the transcript which demonstrates Mr Blyton:

    1. (a)
       made concessions to some questions he was asked; and
    2. (b)
       was generally responsive to the questions he was asked.
37. [37]
    From Mr Newman, relevantly, in an affidavit sworn 18 July 2020:

    1. (a)
       In late 2018 he had possession of a drop deck tortliner (sic) trailer which he was the owner of. It was in storage for repairs due to an accident. He had purchased it through a friend who had since passed away and paid $18,000 for it;
    2. (b)
       He had done some repairs and had painted the trailer red and white;
    3. (c)
       He could not recall what, if any, identifiers were on it because they were on the purchase receipt, but he lost the receipt and a lot of other documents through a tenancy dispute at his home address;
    4. (d)
       Mitch phoned him to say that Daryl Bowden had stolen his trailer. He went straight to Mitches (sic) and Mitch showed him footage on his phone of Daryl taking the trailer. The following day, he found the trailer parked at a shed with a Kemway sign at the front of the yard;
    5. (e)
       He spoke to Wayne and they agreed he could store the trailer at Wayne’s address, as he (Wayne) had $10,000 outstanding on it; he (ie Newman) was going to quickly finish repairing it, sell it and reimburse Wayne for it;
    6. (f)
       Whilst he attended a couple of times in ensuing weeks to do repairs, he was unable to do so because either Wayne was not there or was too busy.
38. [38]
    In cross examination, Mr Newman’s evidence was, relevantly:

    1. (a)
       He had bought the Trailer quite a few years earlier through a mate who had died and he didn’t know who the seller was. He had given the money to his mate, who picked it up from the other side of Toowoomba on the way back through. The cash was around the ten grand mark, though he couldn’t really remember;
    2. (b)
       He met Sandy Docherty when he was doing the Trailer up;
    3. (c)
       He met him in person the night that Daryl Bowden stole the Trailer and took it to Wayne’s place. That was out the front when he was trying to recover the Trailer and he made an arrangement with Wayne about the Trailer;
    4. (d)
       He wasn’t present when Sandy Docherty saw the Trailer at Burrows Road;
    5. (e)
       He didn’t give Docherty any paperwork for the Trailer at any time before it was stolen but he had all the numbers and tags to show him and receipts;
    6. (f)
       Mitch Turner saw Daryl steal the Trailer and had video evidence of that and the security guards saw Daryl towing it into Wayne’s yard that night;
    7. (g)
       He and Wayne made an agreement the night they were having an argument because Wayne said he didn’t want to be out of pocket 10 grand and he said ok but it’s my Trailer. Wayne then offered that Newman leave the Trailer at his workshop and use his workshop to finish it off, sell it and give him back the 10 grand when it’s sold. There was no point going to the police because he thought Wayne was a good bloke and he’d made a deal with him and the police had never done the right thing in the past. Newman said he was going to ring the police the night of the argument, which was why Wayne made the agreement with him. Then later he said he made no complaint to the police about Bowden stealing the Trailer from him because he couldn’t be bothered dealing with it.
39. [39]
    Having reviewed the transcript of Mr Newman’s cross examination I agree with the learned Magistrate that Mr Newman was combative under cross-examination with Mr Blyton’s representatives.^[39] Paying due deference to him having been in the position to assess the witnesses, I accept the learned Magistrate’s observation that Mr Newman was not an impressive witness. 
40. [40]
    Mr Newman was not legally represented at the hearing. As such, there was no one tasked with eliciting evidence from him positively to further his claims to be the lawful owner of the Trailer before Mr Blyton acquired it. Notwithstanding this, he never resiled from his claim that he was the original owner of the Trailer; he stoutly maintained throughout the cross examination that he owned the Trailer and that he had the relevant agreement with Mr Blyton as to the Trailer’s resale.
41. [41]
    Further, it is apparent that Mr Newman made his claim to Mr Blyton to be the owner of the Trailer immediately after he became aware that Mr Blyton had possession of the Trailer. At that time, everyone agrees the Trailer was a wreck which needed significant work. Objectively viewed, there was no apparent benefit to Mr Newman in making the claim to ownership of the Trailer in such a state unless it was true.
42. [42]
    In so far as Mr Blyton challenged the veracity of Mr Newman’s evidence that he paid cash for the Trailer to a person and could not remember the owner’s name (the transaction having occurred some years previously), viewed objectively the circumstances of that acquisition are not significantly different from the circumstances in which Mr Blyton acquired the Trailer, paying cash to an intermediary and obtaining only a photograph of a receipt.
43. [43]
    On a review of the record, there is an aspect of the evidence which independently supports Mr Newman’s claim that he was the owner of the Trailer prior to Mr Blyton acquiring it. Andrew Alexander McDonald, vehicle inspection officer for the Queensland Police Service, in his affidavit stated the Australian compliance plate which was pot riveted to the left forward outward facing section of the main chassis rail webbing on the Trailer, when he examined it in June 2019 was marked with a make and model number and refurbished by BLAKE NEWMAN TRANSPORT with a VIN and a compliance date of 05-18. His evidence was that the plate appeared to be a genuine Australian Government issued plate marked with serial number 0067.^[40] 
44. [44]
    This evidence independently corroborates that as May 2018, Mr Newman had obtained a compliance plate for the Trailer. It is improbable he would have done so if he did not own the Trailer at that time. Further, it demonstrates that there would have been some material for him to have shown to Mr Docherty about his legitimate ownership of the Trailer (as Mr Docherty alleged in his evidence that he saw). (Mr Docherty had also given evidence that he had seen the Trailer around March 2018 at Burrows Road, Stapylton.)^[41]
45. [45]
    The evidence of the date of the compliance plate for the Trailer obtained by Mr Newman of May 2018, Mr Newman’s assertion to Mr Blyton in May 2018, at or very shortly after Mr Blyton acquired the Trailer that it was his, his strong assertion at all times in his evidence and cross examination that he was the owner of the Trailer and Mr Bowden’s flat refusal to provide any assistance to the police in the investigation support an inference that, all be it unknowingly, Mr Blyton has acquired the Trailer from someone who was not its owner and did not sell it with the consent of its owner, Mr Newman. 
46. [46]
    Once this point in the analysis is reached, the position becomes:

    1. (a)
       Mr Newman was the owner of the Trailer before Mr Bowden wrongfully sold it to Mr Blyton;
    2. (b)
       By operation of section 24(1) of the SGA, Mr Blyton could not acquire legal title to it, unless Mr Newman had, by his actions, precluded Mr Bowden’s authority to sell. There is no evidence to suggest that Mr Newman had done anything to enliven the exception in s 24 of the SGA in favour of Mr Blyton. Nothing was put to him about that. Indeed, the entire tenor of Mr Newman’s evidence is that he did not do so;
    3. (c)
       Consequently, Mr Blyton could not take any better title in the Trailer than Mr Bowden could convey to him.

How does s 25 of the SGA operate in the circumstances of the sale to Mr Blyton?

47. [47]
    However, it is necessary to consider then the operation of s 25 of the SGA in respect of the sale to Mr Blyton. It is salient to note, as the learned Magistrate did, that Mr Blyton did not undertake any searches prior to the acquisition of the Trailer and he did not obtain any independent assessment of the value of the Trailer prior to acquisition. Where Mr Blyton did not take those steps, I find that section 25 of the SGA is not applicable to him. 
48. [48]
    As such, Mr Blyton cannot be the true owner of the Trailer within the meaning set for that term in Otto.

What about In Front’s claims?

49. [49]
    It is then necessary to consider In Front’s position. The relevant facts are:  

    1. (a)
       After months go by, when he does not hear further, Mr Blyton retains physical possession of the Trailer and spends significant money on the Trailer refurbishing it;  
    2. (b)
       Mr Blyton sees Mr Newman taking photos of the Trailer but does not ask why he is doing this. Further, Mr Blyton is told that the Trailer is advertised for sale on Facebook, but does nothing in response to receiving that information;
    3. (c)
       The Trailer is in Mr Blyton’s notional possession (although physically located at Salmon’s yards) when Mr Newman takes it;
    4. (d)
       Mr Blyton goes to the police to report the Trailer as stolen; and
    5. (e)
       In Front acquires the Trailer from a licensed motor dealer, having received photographs including of a compliance plate, conducted  the relevant searches showing there is nothing noted on the register and having paid a price for it based on a valuation obtained prior to purchase.
50. [50]
    Against this factual background:

    1. (a)
       The circumstances in which In Front acquired the Trailer trigger the exception to s 24(1) SGA, allowing property in the Trailer to pass to In Front (as the learned Magistrate found that it did);
    2. (b)
       Further, section 25 of the SGA applies as the evidence before the Court established that In Front bought the Trailer in good faith and without notice of any defect in the title from McNeill Trailers and Sheds Pty Ltd (Mr Docherty) who had obtained the Trailer from Mr Newman. 
51. [51]
    Consequently, I find, on a review of the record, that In Front is the true owner of the Trailer, within the meaning of that term in Otto.
52. [52]
    The appellant argued that the magistrate below erred because his task was to determine who the true owner of the Trailer was, not who had the better claim or the highest claim to ownership.  The appellant accepted that the word ‘rightful’ which the Magistrate used may be something similar enough to the word ‘true’; the appellant’s contention was with the Magistrate’s expression of the ‘highest claim’^[42].
53. [53]
    The appellant contends this bespeaks that the Magistrate engaged in a weighting process, rather than simply determining who the true owner was.^[43]  The respondent defended the appeal on the basis there was no error, and that, in truth, when there are two claimants to ownership, the proper approach is decide who has the more favourable claim to ownership.^[44]
54. [54]
    At the outset of his reasons, the learned Magistrate correctly identified the question he had to determine as “who, on the test of balance of probabilities, is declared to be the rightful owner”.^[45] 
55. [55]
    I do not accept that, in this case, the Magistrate ‘did not determine who the true owner was as between the appellant and the second respondent’ as s 694 of the PPRA required on the application.
56. [56]
    A review of the reasons demonstrates that, having summarised the evidence given by the witnesses, the Magistrate had certain concerns about the appellant’s claims to ownership of the Trailer based on the evidence before him:

    1. (a)
       The appellant did not undertake any search, PPSA or otherwise of the Trailer due to it not having any identifying detail on it;
    2. (b)
       Evidence as to fair market value in respect of the appellant’s purchase of the Trailer was limited to the appellant’s personal view of what the fair market value of the Trailer was, in circumstances where he had used dealers for prior purchasers of equipment; and
    3. (c)
       There was confusion as to whether his claim to ownership was, indeed by himself or any associated entity.
57. [57]
    I share those concerns for the reasons set out above. I have identified some further concerns as to the ownership alleged by Mr Blyton arising from my review of the record before the Magistrate.
58. [58]
    Where there are competing claims to ownership, as there were in this case, there must be, inevitably, some comparison of the strengths and weaknesses of the claims of each of the claimants to determine the question as to who is the ‘true owner’. Judge Robertson performed that task in Stephens v Williams. When viewed against this analysis of each of the competing claims, the Magistrate’s subsequent statement that “on the evidence before the Court I consider that on the test of balance of probabilities it is In Front who has the highest claim as rightful owner” is the outcome of that comparative process of analysis.
59. [59]
    I am not persuaded that the learned Magistrate erred in his approach to the question before him.
60. [60]
    At the hearing of the appeal the Court was informed that In Front had sold the Trailer to a third party between the decision of the Magistrate and receiving notice of the appeal and therefore contends that there is no longer any contest regarding the declaration sought by the appellant.^[46] Having reached the conclusion I have reached as to the proper disposition of the appeal, it is not necessary to consider the issue of whether the appeal is otiose.
61. [61]
    I dismiss the appeal.
62. [62]
    I will hear the parties on the question of costs.