Supreme Court New South Wales

• Medium Neutral Citation: Executors of the Estate of the late Valerie Marshall Olsen v Second East Holdings Pty Ltd t/as Sotheby's Australia [2014] NSWSC 1675
• Hearing dates: 21 November 2014
• Decision date: 21 November 2014
• Jurisdiction: Equity Division - Duty List
• Before: Stevenson J

Decision

Application for interlocutory injunction refused; application adjourned

• Catchwords: TORT - alleged conversion of painting - whether serious question to be tried that plaintiffs own painting; PRACTICE AND PROCEDURE - interlocutory application - injunction sought to restrain defendant from disposing, selling or transferring painting
• Legislation Cited: Uniform Civil Procedure Rules 2005
• Category: Interlocutory applications
• Parties: Timothy John Olsen the Executor of the Estate of the late Valerie Marshall Olsen (First Plaintiff); Louise Sarah Olsen the Executor of the Estate of the late Valerie Marshall Olsen (Second Plaintiff); Second East Auction Holdings Pty Ltd t/as Sotheby’s Australia (Defendant)
• Representation: Counsel: C P O'Neill (First and Second Plaintiffs); J E Richards (Defendant); Solicitors: Kay & Hughes (First and Second Plaintiffs); John F. Morrissey & Company Lawyers (Defendant)
• File Number(s): SC 2014/342426

EX TEMPORE Judgment (revised)

1 These proceedings concern a painting made by the celebrated artist Dr John Olsen in 1964 called "The Mother".

2 The plaintiffs, Mr Tim Olsen and Ms Louise Olsen are the executors of the estate of Dr Olsen's late wife, Mrs Valerie Olsen. Mrs Olsen died in 2011.

3 The defendant, Second East Auction Holdings Pty Ltd trading as Sotheby's Australia ("Sotheby's") is an art auction house. Sotheby's is in possession of the painting on behalf of a client who has entrusted the painting with Sotheby's for sale.

4 The plaintiffs claim that their mother was, and her estate now is, the owner of the painting. The plaintiffs wish to bring an action in conversion against the person in possession of the painting (that is evidently Sotheby's client) to seek delivery up of the painting.

5 Mr Tim Olsen ("Mr Olsen"), who was only two years of age when the painting was made, says he first saw the painting in July 2014 when a business acquaintance of his drew his attention to the fact that Sotheby's was auctioning the painting for sale. Thereafter, correspondence was exchanged between the plaintiffs' solicitor and Sotheby's solicitor. It is not necessary for present purposes to set out the detail of that correspondence. Suffice to say that the plaintiffs demanded that Sotheby's disclose the provenance of the painting and that Sotheby's refused to do so.

6 The plaintiffs have now commenced these proceedings seeking an order under Uniform Civil Procedure Rules r 5.2, by way of preliminary discovery.

7 In substance, what the plaintiffs seek is an order that an officer of Sotheby's attend and be examined as to the identity of the vendor of the painting; that is, the identity of the client who has placed the painting in Sotheby's possession for sale.

8 It would be a serious matter for such an order to be made. Although there is undoubted power in the Court to make such an order, in the circumstances of this case that order would oblige Sotheby's to disclose the identity of its client who, for any number of reasons, may not wish that his, her or its identity be disclosed.

9 The matter before me today is an application by the plaintiffs for interlocutory relief. The plaintiffs seek an injunction restraining Sotheby's from disposing, selling or in any way transferring the painting until further order.

10 The urgency of the application is that the plaintiffs had sought an undertaking from Sotheby's that it not dispose of the painting, that undertaking has not been forthcoming, and that there is at least a prospect of the painting being submitted for sale in the very near future absent restraint.

11 In order to gain such relief, the plaintiffs must show that there is a prima facie case or a serious question to be tried that Mrs Olsen owned, and her estate now owns, the painting.

12 The evidence adduced in support of that proposition is slender indeed.

13 The plaintiffs draw attention to an inscription, on the rear of the painting's canvas which reads: "For my darling Valerie, John Olsen '64". Mr O'Neill, who appeared for the plaintiffs, submitted that it should be inferred from the inscription that Dr Olsen gave the painting to Mrs Olsen as a gift in 1964. So much can be accepted. It does not follow, however, that Mrs Olsen remained the owner of the painting nor that the estate now owns the painting.

14 Mr Olsen gives evidence of what he "understood" from "various conversations with my father and my mother". He does not set out the terms or even the substance of those conversations. He says the effect of conversations was that the painting had been done on an "Hors d'Commerce" basis; that is, as I understand, on the basis that it would not be sold.

15 Mr Olsen also deposes to a conversation with his mother where he said she said:

"There was a painting that John did for me when Louise was born that disappeared and it has constantly worried me throughout my life."

16 Mr Olsen does not say when this conversation took place.

17 The plaintiffs also point to a label which appears to be attached to the back of the painting which is headed "Commonwealth Festival Exhibition, Nottingham 1966". Mr Olsen gives evidence about that as follows:

"From the photographs of the back of the Painting it appears that the Painting was loaned to the 1967 Nottingham Commonwealth Exhibition and Festival which took place in the United Kingdom.

I am unable to contact the Nottingham Commonwealth Exhibition and Festival to obtain details about the handling of the Painting as to the best of my knowledge the festival no longer exists".

18 Mr Olsen also annexes to his affidavit a letter written by his father, Dr Olsen, on 4 August 2014 which is addressed "To Whom It May Concern" and which states:

"I have no memory of selling this painting as it was a gift to my wife Valerie, and I therefore require a provenance."

19 Despite the fact that this controversy has been brewing since July 2014, no evidence has been adduced from the only person likely to have any direct knowledge of the matter, Dr Olsen himself. Dr Olsen is elderly, but I am told in good health and living in the Southern Highlands. It is true that this application has been brought on urgently. But there is not even any evidence on information and belief as to what more Dr Olsen could say about this matter.

20 Mr O'Neill points to observations made by Mr David Stein, a painting conservator:

"The painting was previously rolled and has been recently restretched onto a new wooden strainer...[t]here is no apparent surface coating, and no surface dirt or dust."

21 The implication of that evidence is, as I understand it, that the painting has been, until reasonably recently, stored in a rolled up manner.

22 However, there is no evidence that, until this year, the painting has ever been reported stolen, despite the fact almost 50 years have elapsed since it "disappeared". There is no evidence at all before me of the circumstances in which the painting went to Nottingham. There is no evidence before me as to when or in what circumstance in which it "disappeared", or what steps were taken to recover it since then. There is no evidence as to what, if anything, was done by Dr Olsen, or Mrs Olsen, or anyone else concerning the painting's whereabouts for the 47 years that have passed since the Nottingham exhibition.

23 In those circumstances, I am not satisfied the plaintiffs have established a prima facie case or serious question such as would warrant the grant of an interlocutory injunction.

24 I do however propose to the give the plaintiffs a chance to adduce further evidence from Dr Olsen, and seek to renew this application in the light of that evidence.

25 Accordingly, I stand the matter over to the Duty Judge on 26 November 2014.

26 I reserve the costs of today.

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Decision last updated: 25 November 2014