Clare Margaret Jarrold v The Registrar of Titles and Telvin Jarrold

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0155

CLARE MARGARET JARROLD	Appellant
v
THE REGISTRAR OF TITLES	First Respondent
and
TELVIN JARROLD	Second Respondent

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JUDGES:	OSBORN and WHELAN JJA and GINNANE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2014
DATE OF JUDGMENT:	24 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 45
JUDGMENT APPEALED FROM:	[2013] VSC 461 (McMillan J)

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REAL PROPERTY – Entitlement to indemnity – Transfer of Land Act 1958, s 110 – Property jointly owned by husband and wife – Husband signed transfer of land document pursuant to power of attorney – Whether power of attorney forged – Whether wife held interest in the land and so sustained loss or damage – Issues remitted for new trial.

APPEALS – New trial – Erroneous findings of fact – Whether Court to decide matter for itself or remit for new trial – Credit issues central to case – Trial judge had advantage of seeing witnesses in witness box and seeing trial develop – New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G L Schoff QC with Ms G A Costello	Slater & Gordon Ltd
For the First Respondent	Mr W F Gillies	Land Victoria Legal
For the Second Respondent	Mr S T Pitt	Mills Oakley Lawyers Pty Ltd

Osborn JA:

Mrs Clare Jarrold alleges that her former husband, Telvin Jarrold, forged her signature upon a power of attorney in 2006 and that he then used this document to effect the sale of a jointly owned residential property in Sandringham, Victoria.

Mr Jarrold denies that the signature was forged and maintains that he was authorised by his wife to deal with the property. He further claims that Mrs Jarrold had no beneficial interest in the property in any event.

In 2007, Mrs Jarrold instituted proceedings in negligence against the conveyancing company and its director (the ‘conveyancer’) involved in the sale of the property and against the Registrar of Titles pursuant to s 110 of the Transfer of Land Act 1958 claiming damages for loss consequent upon the alleged forgery and sale.

Mrs Jarrold did not initially institute proceedings against Mr Jarrold as she claimed that she did not at that time know his whereabouts. Subsequently, Mr Jarrold was joined in the proceeding on the application of the conveyancer and the Registrar then claimed contribution or indemnity from him.

The proceeding came on for trial in October 2012 and in the course of Mrs Jarrold’s case, the claim against the conveyancer was settled. The claim against the remaining parties proceeded over a nine day hearing.

In September 2013, the trial judge dismissed Mrs Jarrold’s claim, giving detailed reasons for her decision. Her Honour found that Mrs Jarrold had failed to satisfy the burden of proof with respect to the forgery allegation. She further found that, in any event, Mrs Jarrold held her legal interest in the property on a resulting trust for Mr Jarrold.

Mrs Jarrold now appeals against this determination. Essentially, for the primary reason identified by Whelan JA, I agree with him that the appeal must succeed. I gratefully adopt his recitation of the background circumstances and elaboration of the factual issues raised by the appeal. I shall not repeat those matters in detail.

At its core, the claim raised a fundamental question concerning the truthfulness and reliability of both Mr and Mrs Jarrold’s evidence.

The evidentiary problem

Mr and Mrs Jarrold had separated prior to 2006. At the time in dispute she was living in Wales and he in Victoria.

Both parties agree that in early June 2006 Mr Jarrold visited Mrs Jarrold at her home in Wales on two occasions and that the second visit occurred two days after the first visit.

Both parties also agree that in the course of the visits Mr Jarrold requested Mrs Jarrold to sign a power of attorney. The fundamental difference between their accounts was that Mrs Jarrold maintained that she refused to sign a power of attorney whilst Mr Jarrold maintained that she did so. As Whelan JA explains, there was also dispute as to a host of circumstantial matters associated with the context in which the disputed meetings took place and as to the course of what occurred at them.

A significant aspect of the dispute as to contextual circumstances concerned the narrative within which Mrs Jarrold placed the meetings. She said that after the first meeting she knew Mr Jarrold wanted her to sign a power of attorney to enable him to deal with jointly owned property and that he would return two days later to ask her to sign such document.

Because of concerns about this, she said she contacted a local solicitor and then attended the solicitor’s office with a friend, Mrs Garland. In the course of discussion with the solicitor, she was advised not to sign anything and to have a friend with her in her home when Mr Jarrold returned if she was concerned about what might happen at the proposed meeting.

It was not disputed that on the occasion of the second visit Mrs Jarrold had a friend, Ms Knight, present in her home although not directly present at the discussion between Mr and Mrs Jarrold.

Both Mrs Garland and Ms Knight gave further evidence which to some material extent corroborated elements of Mrs Jarrold’s narrative but the trial judge ultimately rejected it.

In so doing, her Honour had material regard to Mrs Jarrold’s telephone records as set out in a statement of telephone account.

As Whelan JA explains, this was the only independently produced circumstantial record bearing on Mrs Jarrold’s actions at the disputed time.

The trial judge concluded that these records materially supported the conclusion that the meeting with the solicitor did not occur between the first and second meetings between Mr and Mrs Jarrold.

There was no dispute that the telephone records showed one of the meetings occurred on 3 June when a phone call was made from Mrs Jarrold’s home to Mr Jarrold’s brother.

Mrs Jarrold’s case was that the first meeting occurred on Thursday 1 June, she saw the solicitor on Friday 2 June and the second meeting occurred on Saturday 3 June.

The power of attorney is dated 5 June 2006 and Mr Jarrold’s case was that the first meeting was on 3 June and the second meeting on 5 June. It was inherently improbable that Mrs Jarrold had attended the solicitor’s office on Sunday 4 June.

The trial judge read the telephone records as demonstrating that no phone calls were made from Mrs Jarrold’s home on 2 June 2006.[1] This was the date on which Mrs Jarrold said she rang Ms Knight to arrange for her presence at the second meeting.
[1]Jarrold v Isajul [2013] VSC 461 [497] (‘Reasons’).

Further, Ms Knight said Mrs Jarrold rang her on the day of the second meeting. As the trial judge read the phone records, they showed only one call being made from Mrs Jarrold’s phone on 3 June 2006 and that was not made to Ms Knight.[2]
[2]Reasons [498].

Mrs Garland could not remember the day she attended the solicitor’s office.[3] Nor could Ms Knight be sure of the day on which she was present at the second meeting.[4] Mrs Jarrold gave evidence that the second meeting was on 3 June but this was inconsistent with prior statements made by her and, as the trial judge concluded, the date was probably a reconstruction.[5]
[3]Reasons [503].
[4]Reasons [500].
[5]Reasons [500].

The telephone records showed that three telephone calls were made by Mrs Jarrold to the solicitor between 1 and 26 June 2006. They were thus consistent with an initial call being made to the solicitor following a first meeting with Mr Jarrold on 1 June.

Nevertheless, there was no record of the visit on that day to the solicitor by Mrs Jarrold upon the solicitor’s files or other business records.

There was other evidence from both Mrs Jarrold and Mrs Garland regarding the purpose of the visit to the solicitor relating to the collection of title deeds which might be regarded as supporting the view that the visit to the solicitor occurred after the second meeting.

Ultimately the trial judge concluded:

(a)the evidence does not support that the two meetings occurred on 1 and 3 June 2006 and it does support that it was more probable that they occurred on 3 and 5 June 2006; and
(b)the meeting with Ms Bowler (the solicitor) occurred after the second meeting.[6]

[6]Reasons [509].

The objective circumstantial evidence does not support the conclusions which the trial judge drew in part from it. The relevant portions of the telephone records set out dates between which calls occurred and not each individual call. More particularly, the record is entirely consistent with a phone call being made by Mrs Jarrold to Ms Knight on either 2 June or 3 June. The trial judge was wrong to find that the record is inconsistent with the making of such a call.

The significance of the error

An appeal by way of rehearing is fundamentally concerned with the correction of error.[7]
[7]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203-204 [14] (Gleeson CJ, Gaudron and Hayne JJ); Warren v Coombes (1979) 142 CLR 531, 538-539 (Gibbs ACJ, Jacobs and Murphy JJ), citing Powell v Streatham Manor Nursing Home [1935] AC 243, 255 (Lord Atkin).

In Warren v Coombes, Gibbs ACJ, and Jacobs and Murphy JJ said:

The duty of the appellant court is to decide the case — the facts as well as the law — for itself. In so doing it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.[8]

[8](1979) 142 CLR 531, 552.

To similar effect Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy:

On the one hand the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and draw conclusions from it, viewed as a whole.[9]

[9](2003) 214 CLR 118, 125-6 [23]. The authorities are further discussed by Whelan JA in Transport Accident Commission v Cuthbertson [2013] VSCA 29.

In an underlying sense, the evidence in issue relating to the telephone records bore upon Mrs Jarrold’s credibility. Nevertheless, the errors identified concern evidence of objective circumstantial fact which are plain upon their face and do not depend on matters in respect of which the trial judge enjoyed any advantage by reason of participation in the hearing. They must be evaluated as such by this Court on appeal.

For a complex set of reasons to which Whelan JA adverts, both the evidence of Mrs Jarrold and Ms Knight was not free from difficulty. Moreover, Mrs Jarrold was confronted by the need to satisfy the trial judge of the allegation of forgery in accordance with s 140 of the Evidence Act 2008 which provides:

(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.[10]

[10]Emphasis supplied.

It cannot be said that the judge was bound to accept Mrs Jarrold’s case and, in particular, was bound to be persuaded of the allegation of forgery.

Nonetheless, the positive conclusion that the phone records were inconsistent with the contextual narrative in which Mrs Jarrold placed her account of the critical meetings must be regarded as materially significant to the trial judge’s reasoning and the way she resolved these difficulties:

(a) a plain reading of the trial judge’s Reasons makes clear that this perceived inconsistency was a substantial plank of the reasoning supporting the trial judge’s conclusions relating to the dates of the meetings;

(b) there was a dearth of other independently produced objective circumstantial evidence bearing on this issue;

(c) the dates were necessarily relevant to the probability of the narrative put forward by Mrs Jarrold. As the trial judge put it:

The dates are relevant, however, if the meeting with Ms Bowler (the solicitor) occurred after the two meetings, as I have concluded.[11]
[11]Reasons [692].

(d) the judge was entitled to regard the circumstances established by the phone records as rendering more probable the conclusions able to be drawn from the other circumstantial evidence. In Chamberlain v The Queen (No 2), Gibbs CJ and Mason J put the underlying principle this way:

At the end of the trial the jury must consider all the evidence, and in so doing they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence …[12]
[12](1984) 153 CLR 521, 535 (citation omitted).

(e) the judge did reason on a false premise with respect to the telephone records when reaching her conclusions on the evidence as a whole relating to the meetings between the parties. In particular, she reasoned upon a false premise with respect to the evidence as a whole relating to the dates of the meetings and, as the judge accepted, these dates bore relevantly on the probability of Mrs Jarrold’s case;

(f) in turn, the judge evaluated other critical aspects of the evidence having regard to the view she had reached concerning the credibility of Mrs Jarrold’s evidence relating to the June meetings. Most importantly (as Whelan JA rightly emphasises) the trial judge’s conclusion as to the expert forensic evidence relating to handwriting is expressed in terms which refer back to the strength of the evidence of the lay witnesses:

The expert evidence, taken together, does not displace the very grave doubts I have regarding the lay evidence relied on to prove that Mrs Jarrold did not sign the power of attorney. Expert evidence must not be considered in isolation but along with all of the evidence. Proof cannot be found ‘as a result of a mere mechanical comparison of probabilities’.[13]

[13]Reasons [701], citing Briginshaw v Briginshaw (1938) 60 CLR 336, 361.

It is submitted on behalf of the respondents that irrespective of the discrete issues relating to the phone records, it was open to the judge to form an adverse view of Mrs Jarrold’s evidence. Further, it is submitted that the trial judge’s ultimate conclusion on the forgery issue is founded upon a careful analysis of the evidence as to a broad matrix of facts and is not dependent upon her conclusions with respect to the telephone records.

I accept that there was no error in the overall approach taken by the trial judge and, in particular, that she reached her conclusions on the whole of the evidence. Her Honour said:

[T]he Court must consider all of the matters relied upon by the parties so that it ensures that its conclusions and the reasons for them are reached on the ‘basis of contemporary materials, objectively established facts and the apparent logic of events’.[14]

[14]Reasons [483].

In turn, I accept that it was open to the trial judge to reject Mrs Jarrold’s evidence concerning the content of the meetings despite the true complexion of the telephone records. I also accept that the judge’s ultimate conclusions are founded upon a careful analysis of evidence with respect to a broad matrix of facts. Nevertheless, it seems to me that the judgment is infected by the factual error which I have identified and which must be regarded as materially significant to the trial judge’s reasoning.

It is not possible for this Court to resolve the full significance of that error for the consequent weight of the evidence as a whole because the critical judgment which was ultimately required to be made was one as to Mrs Jarrold’s credibility and this Court has not had the benefit of observing her and the other witnesses over an

extended hearing.

Likewise, it is not possible for this Court to isolate and determine the further issue as to the nature of Mrs Jarrold’s interest (if any) in the jointly owned property. Mr Jarrold’s case as to the rebuttal of the presumption of advancement in respect of the jointly owned property turned significantly upon the credibility of his own evidence as to his intention and the assessment of his truthfulness and reliability. This was also squarely in issue for a series of reasons elaborated by Whelan JA. Thus, his case could not be divorced from an assessment of the evidence as a whole.[15]
[15]Davies v The National Trustees Executors & Agency Co of Australasia Ltd [1912] VLR 397, 401–3.

Accordingly, ground 3 of appeal succeeds and the matter must be remitted for further hearing. It is unnecessary in the circumstances to further address the grounds of appeal.[16]

[16]The grounds of appeal are set out in the judgment of Whelan JA.

WHELAN JA:

The appellant, Mrs Clare Jarrold, married the second respondent, Mr Telvin Jarrold, in 1988. It was a second marriage for each of them. Each of them already had adult children. Between 1988 and 1999 they lived together in Wales. For part of that time Mrs Jarrold was employed as a teacher. Mr Jarrold was a builder and property developer. In 1998 Mr Jarrold’s adult son, Ian, was killed in an accident. This had a significant effect upon every aspect of Mr Jarrold’s life and upon the relationship between Mr and Mrs Jarrold.

In 1999 Mr and Mrs Jarrold travelled to Australia where Mrs Jarrold had family. A house was bought in Sims Street, Sandringham (the ‘Sims Street property’) in their joint names. Shortly after the contract was signed they returned to Wales. The purchase was settled in mid-1999. Mr Jarrold was in Australia between August and November 1999 while Mrs Jarrold stayed in Wales.

In 2000 Mr Jarrold left Wales and took up residency in Australia. After a fire at the Sims Street property he bought an apartment in Beach Road Hampton (the ‘Hampton apartment’). Mr Jarrold then built a new house at the Sims Street property and formed a new relationship in late 2001 with a woman named Grace Scanavino. Ms Scanavino contributed to the cost of the new house.

Mrs Jarrold remained in Wales, sold a number of properties which she or she and Mr Jarrold had owned, and moved into a property which she purchased in her own name in Cherry Tree Avenue, Porthcawl (the ‘Cherry Tree Avenue property’).

Mr and Mrs Jarrold visited each other from time to time after 2000, less frequently as time went by.

In June 2006 Mr and Mrs Jarrold had two meetings at the Cherry Tree Avenue property in Wales at which the sale of the Sims Street property was discussed. Mr Jarrold then sold the Sims Street property in late 2006 and early 2007 relying on a power of attorney which he says Mrs Jarrold had signed at the second of the two meetings in June 2006. Mrs Jarrold denies signing that power of attorney and alleges that what purports to be her signature is a forgery.

Mrs Jarrold took proceedings against the conveyancing company and its director who acted on the sale of the Sims Street property (the ‘conveyancers’) and against the Registrar of Titles (the ‘Registrar’). The claim against the conveyancers was in negligence. The claim against the Registrar was a claim for an indemnity pursuant to s 110 of the Transfer of Land Act 1958 for loss and damage suffered by her as a result of the loss of her interest in the Sims Street property. Mrs Jarrold did not take proceedings against Mr Jarrold. She pleaded that Mr Jarrold had left Australia in March 2007, that police investigations had been unable to locate him, and that she did not know where he was. The loss she claimed was the sum of $665,000, being half of the purchase price paid by the purchaser of the Sims Street property.

Mr Jarrold was joined in the proceeding on the application of the conveyancers. The Registrar then claimed contribution or indemnity against him.

The proceeding went to trial in October 2012. Early in the trial Mrs Jarrold settled her claim against the conveyancers for the sum of $160,000 inclusive of costs. After a trial of approximately two weeks, judgment was reserved. Judgment was delivered in September 2013. Mrs Jarrold’s claim against the Registrar failed for two reasons. First, the trial judge held that Mrs Jarrold had failed to satisfy the burden of proof which was on her in relation to the forgery allegation. Secondly, the trial judge held that in any event Mrs Jarrold had held her legal interest in the Sims Street property on resulting trust for Mr Jarrold.

Mrs Jarrold now appeals that decision on a number of grounds. Her principal complaints are as follows.

1. It was uncontroversial that Mr and Mrs Jarrold met each other on two occasions in June 2006 and that those two meetings were separated by one day. Mrs Jarrold maintained that on the day between the two meetings she consulted a solicitor who advised her, amongst other things, not to sign anything and to have someone present in the house when Mr Jarrold returned. A finding as to whether that consultation took place was significant in the determination of Mrs Jarrold’s allegation of forgery. The dates upon which the meetings took place were significant in determining whether the consultation with the solicitor did take place between the two meetings. The trial judge found against Mrs Jarrold on this issue. Mrs Jarrold contends on appeal that she reached that conclusion, at least in part, because of a misunderstanding of certain critical contemporaneous telephone records and a failure to properly analyse the relevant issues in the light of those records.

2. The trial judge generally determined the credibility issues against Mrs Jarrold and in favour of Mr Jarrold. One factor she relied upon in that respect was what the trial judge characterised as a different allegation of forgery, which was related to the transfer of a property generally referred to by the parties as ‘Fishweir’ at a place in Wales named Cowbridge and which the trial judge found Mrs Jarrold had made and then retracted. It is contended that the trial judge was wrong to characterise Mrs Jarrold’s complaint about this transaction as an allegation of forgery, and was accordingly wrong to assess her credit on the basis that she had previously made an allegation of forgery and then retracted it.

3. Evidence was given in the trial by three handwriting experts: one engaged on behalf of Mrs Jarrold, Dr Strach; one engaged on behalf of Mr Jarrold, Mr Lacroix; and one engaged on behalf of the Registrar, Mr Holland. Both Dr Strach and Mr Holland concluded that it was probable (and in Mr Holland’s case highly probable) that Mrs Jarrold had not signed the power of attorney. Mr Lacroix was of the opinion that it was not possible to reach a conclusion as to whether she had signed it or not. On the appeal it is contended that the trial judge was wrong to have rejected the evidence of Mr Holland.

The trial judge undertook a detailed and thorough analysis of the evidence given over the two week trial and the judgment contains a very comprehensive recitation of the relevant facts and the evidence which was led. For the purposes of the appeal it is unnecessary to repeat that very detailed exposition of the facts, but it is necessary to set out a factual overview before turning to the relevant reasoning in the judgment, and then to an analysis of some particular aspects of the trial relevant to the grounds of appeal.

Factual overview

Mr and Mrs Jarrold were married on 15 July 1988. In 1991 they moved into a house at 33 Heol Y Glyn, Treharris (the ‘Heol Y Glyn property’). The land at Heol Y Glyn was owned by Mr Jarrold’s family.[17]
[17]The evidence was that Mr Jarrold’s mother held legal title to the land. There was evidence that Mr Jarrold’s son, Ian, had an interest in the land. Mr Jarrold himself developed the land and appears to have treated it as if it was his own.

Mr and Mrs Jarrold also acquired land which Mr Jarrold farmed at Cowbridge, including a particular block known as ‘Fishweir’. The Fishweir block was registered in Mrs Jarrold’s name. It was the only land in her name at Cowbridge.

Other relevant properties include a property at 11 Cairo Street, Trealaw, where Mrs Jarrold’s adult daughter lived and on which Mr Jarrold undertook substantial renovations, and a property at 6 Cairo Street which Mrs Jarrold owned in her own name and of which Mr Jarrold claimed to be entirely ignorant until shortly prior to the trial.

In April 1998 Mr Jarrold’s adult son was killed in an accident. Mr Jarrold’s remaining child, a daughter named Victoria, had ongoing problems with drug addiction. According to Mr Jarrold, upon the death of his son he lost all motivation to be involved in business or anything else and began considering the prospects of emigrating.

In the latter part of 1998 the land at Cowbridge was sold. The Fishweir block was transferred pursuant to a transfer document dated either 7 or 9 August 1998 (the handwritten numeral is unclear) purportedly signed by Mrs Jarrold and witnessed by Mr Jarrold’s brother, Mr Wayne Jarrold. This document was referred to as the ‘Fishweir transfer’.

Mr and Mrs Jarrold arrived in Melbourne on 13 January 1999 and returned to Wales on 13 February 1999. Almost every aspect of the circumstances leading up to that trip and what occurred during it were controversial, but, for present purposes, it suffices to say that whilst in Melbourne a bank account in joint names was opened at the ANZ bank and a contract for the purchase of the Sims Street property in joint names was entered into.

It was a matter of controversy as to when Mrs Jarrold decided that she would not be returning to take up residence in Australia but by April 1999 it was clear that that was the position. The Sims Street property settled on 22 June 1999.

Mr and Mrs Jarrold always maintained separate bank accounts. There was controversy between them as to who had contributed what to both their household expenses and to acquisitions which had been made, but it was not suggested that they ever pooled their funds. It was uncontroversial that the entire purchase price of the Sims Street property was paid by Mr Jarrold from his funds.

In August 1999 Mr Jarrold returned to Australia and then went back to Heol Y Glyn in Wales in November 1999. In the meantime, Mrs Jarrold had found and was arranging to purchase the Cherry Tree Avenue property. That property was bought in her name. The acquisition was financed by the sale of the Heol Y Glyn property and the sale of 6 Cairo Street. There was a modest balance remaining after settlement of these transactions, the disposition of which was controversial. The Welsh solicitor’s firm, Morgan Cole, who were also solicitors for Mr Jarrold, acted on behalf of Mrs Jarrold in these transactions and reported to her.

By early 2000 Mrs Jarrold had moved into the Cherry Tree Avenue property and Mr Jarrold had returned to take up residence in Australia in the Sims Street property.

In late March or early April 2000 there was a fire at the Sims Street property. Mr Jarrold was undertaking renovation work at the property at the time. For a short period he stayed with Mrs Jarrold’s brother, who lived in Melbourne, and he then bought the Hampton apartment. On 20 April 2000 Mrs Jarrold arrived in Melbourne and stayed with Mr Jarrold at the Hampton apartment until she returned to Wales on 16 June 2000.

Mr Jarrold visited Wales between June and August 2000 and Mrs Jarrold visited Australia in May and June 2001.

In late 2001 Mr Jarrold began a relationship with Ms Grace Scanavino. They began living together in early 2002 and thereafter rebuilt the house on the Sims Street property with each of them contributing to the cost. Mrs Jarrold made no financial contribution to the building of that house.

In May 2006 Mr Jarrold and Ms Scanavino visited Europe. They bought a property in France at which they proposed to live. Mr Jarrold had taken up sailing and planned to sail a yacht from Australia to the Mediterranean.

In June 2006 Mr Jarrold and Ms Scanavino went to Wales and stayed with Mr Jarrold’s brother, Wayne. In the course of that visit the two meetings occurred at which Mr Jarrold maintains Mrs Jarrold signed a power of attorney authorising him to sign all documents necessary to affect the sale of the Sims Street property. Mrs Jarrold maintains that she did not sign that document and that what purports to be her signature is a forgery.

Detailed evidence was given by both Mr Jarrold and Mrs Jarrold about these two meetings and the circumstances surrounding them. The only contemporaneous documents directly relevant to the meetings are Mrs Jarrold’s telephone records, a diary page of a friend of Mrs Jarrold’s present in the house during the second meeting named Ms Knight, a letter from Morgan Cole to Mrs Jarrold dated 20 June 2006, and the power of attorney itself.

Mr Jarrold and Mrs Jarrold in their evidence did agree on some things about those two meetings. The possible sale of the Sims Street property was raised by Mr Jarrold at the first meeting. They agreed to meet again two days later. At the second meeting Mr Jarrold produced a form of power of attorney for Mrs Jarrold to sign. On the issue of whether she did sign the document they were in conflict.

Mr Jarrold returned to Australia. On 8 July 2006 he signed an auction authority in relation to the Sims Street property. In executing that document, and in all of the subsequent transactions he undertook in order to sell the Sims Street property, he relied on the power of attorney. He had three copies of the power of attorney certified on 20 October 2006.

An auction of the Sims Street property was conducted on 21 October 2006 and the property was passed in. It was then sold by private sale. The transfer took place on 25 January 2007. The proceeds of sale were paid to, and retained by, Mr Jarrold.

On 12 February 2007 Mrs Jarrold consulted a solicitor in Wales named Elizabeth Thompson. Amongst other things, Ms Thompson’s note of that consultation records Mrs Jarrold as instructing her that her husband was resident in Australia in a house ‘in both names’.

Mr and Mrs Jarrold spoke to each other by telephone on 13 May 2007. At the time Mr Jarrold was at sea in South-East Asia, sailing his yacht towards to Europe as he had planned. He had left Australia the day after the Sims Street property had settled. What was said was another matter upon which the evidence of Mr and Mrs Jarrold was in conflict.

In May 2007 Mrs Jarrold requested her brother in Melbourne to visit the Sims Street property. He did so in early June 2007 and was advised by the occupant that the property had been sold. Mrs Jarrold then sought assistance from her brother’s solicitor in Melbourne, a Mr Joseph Rose. In July 2007 she consulted solicitors in Cardiff named JDR Watkins Solicitors and signed a statutory declaration stating that she had never signed any power of attorney. In August 2007 Mr Rose forwarded to Mrs Jarrold documents concerning the sale of the Sims Street property. She maintains that she saw the power of attorney purportedly bearing her signature for the first time then. While she says that a form of power of attorney was put before her at the second meeting in June 2006 (which she refused to sign) that was not the document which was forwarded to her by Mr Rose.

In 2008 Mrs Jarrold sold the Cherry Tree Avenue property and bought a property in Pontypridd. She retained the surplus on that sale and purchase.

In March 2008 Mrs Jarrold wrote a letter to the Land Registry office in Melbourne asserting that she was the victim of a fraudulent transaction and that her signature on the power of attorney had been forged. In mid-to-late 2008 Mrs Jarrold also made a detailed complaint to the police.

In 2010 Mr Jarrold successfully applied for a divorce in Wales. He obtained the divorce after successfully applying to dispense with service on the basis that he could not locate Mrs Jarrold.

Judgment below[18]

[18]Jarrold v Isajul Enterprises Pty Ltd [2013] VSC 461 (‘Reasons’).

After an introduction and overview,[19] the trial judge undertook a detailed factual narrative of Mr and Mrs Jarrold’s marriage, from 1988 until the divorce in 2010.[20] The trial judge set out in a non-tendentious manner the accounts of events over those years given by both Mr and Mrs Jarrold and other witnesses.
[19]Reasons [1]–[48].
[20]Reasons [49]–[329].

The trial judge then turned to an explanation of certain specific matters relied upon by Mrs Jarrold which were not directly referable to the forgery allegation. Those matters were a financial contribution which Mrs Jarrold claimed to have made to the Heol Y Glyn development,[21] the ownership of 6 Cairo Street,[22] the purchase of the farm land at Cowbridge,[23] the sale of farm land at Cowbridge,[24] the signing of the Fishweir transfer,[25] the financial contributions made by the parties during the marriage,[26] holidays taken by Mr and Mrs Jarrold,[27] the documents Mr Jarrold completed and relied upon in obtaining the divorce without notice to Mrs Jarrold in 2010,[28] Mr Jarrold’s qualifications and occupation,[29] and an asserted failure by Mr Jarrold to pay capital gains tax.[30]
[21]Reasons [330]–[342].
[22]Reasons [343]–[350].
[23]Reasons [351]–[362].
[24]Reasons [363]–[368].
[25]Reasons [369]–[379].
[26]Reasons [380]–[400].
[27]Reasons [401]–[403].
[28]Reasons [404]–[413].
[29]Reasons [414].
[30]Reasons [415].

Whilst the recitation of facts in these comprehensive and detailed parts of the judgment was non-tendentious, two of the three principal complaints now made on appeal, being mischaracterisation of Mrs Jarrold’s evidence concerning Fishweir and misapplication of Mrs Jarrold’s phone records, emerge for the first time during the detailed recitation of these matters.

As to the Fishweir transfer, the trial judge stated that Mrs Jarrold ‘maintains that she did not sign the transfer of land’.[31] Later, the trial judge set out in detail what she said was Mrs Jarrold’s position in relation to the Fishweir transfer. She referred to evidence Mrs Jarrold had given that when she discovered that Fishweir had been sold she confronted Mr Jarrold about it asking him ‘How did you sell Fishweir without my signature?’ to which he had replied ‘There’s always ways around things’.[32] She recorded Mrs Jarrold as having maintained that she thought to herself at the time that she had not signed anything.[33] She referred to evidence Mrs Jarrold had given that occasionally she would sign things for Mr Jarrold without paying much attention to what she was doing.[34] Her Honour then said the following:

In cross-examination, Mrs Jarrold said that she did not sign the transfer for Fishweir; then she said she has no memory of signing it. Mrs Jarrold then said that it looked like her signature but she could not be positive that it was her signature. She said she has a vague recollection of Mr Wayne Jarrold witnessing it but she does not know what the document was and it was not discussed at the time. She said that she occasionally signed things for Mr Jarrold and she had no reason not to trust him. She then said that Mr Jarrold probably asked her to sign the transfer document.
In re-examination, Mrs Jarrold said that it looked like her signature on the document and that she now accepted that she signed the transfer document, but she could not say whether or not she understood what the document was when she signed it.[35]

On the appeal, it is submitted that the trial judge has significantly mischaracterised Mrs Jarrold’s evidence in relation to the Fishweir transfer.

[31]Reasons [48(c)].

[32]Reasons [370].

[33]Reasons [371].

[34]Reasons [372].

[35]Reasons [375]–[376].

As to the phone records, during the course of the factual narrative her Honour said, referring to evidence Mrs Jarrold and her neighbour (Ms Knight) had given about phone calls on 1 and 2 June 2006:

Mrs Jarrold’s June 2006 telephone records do not record any calls on 1 June 2006 other than to Morgan Cole and the records do not show any calls made from Mrs Jarrold’s telephone number on 2 June 2006.[36]

[36]Reasons [227].

The relevant page of the phone records is a page headed ‘Summary and detail’ on a BT phone bill dated 12 July 2006. Because of the importance of this document a copy is annexed to this judgment.

As will be seen from the perusal of the annexed copy, the detail of the calls is set out under the following headings:

Date/period Destination Called number Total number of calls Total Duration Type of call Total cost

Specific evidence as to how the bill is to be read was not led but it does seem to me to be self-explanatory. On the hearing of the appeal it was not suggested that there was any uncertainty about how the document is to be understood. The first entry reads:

Date/period Destination Called number Total number of calls Total Duration Type of call Total cost

12 Apr-15 Jun Tonypandy 01443 436289 10 00:33:48 Daytime 0.918

This entry records the fact that between 12 April 2006 and 15 June 2006 a call was made from Mrs Jarrold’s phone to the specified number in Tonypandy on 10 occasions, those 10 calls being of a total duration of 33 minutes 48 seconds.

The first entry is not relevant to any issue in the case. Two other entries are.

The following entry records phone calls made from Mrs Jarrold’s phone to the offices of Morgan Cole:

Date/period Destination Called number Total number of calls Total Duration Type of call Total cost

1 Jun-26 Jun Cardiff 029 2038 5385 3 00:08:28 Daytime 0.272
This entry records that between 1 June and 26 June three calls were made from Mrs Jarrold’s phone to the offices of Morgan Cole with a total duration of eight minutes 28 seconds.

The periods specified in relation to the various numbers vary. Sometimes there is only a single date. It was accepted that the periods specified begin with the first call and end with the last. It seems to me that there is no other way in which the bill can sensibly be read. Thus, the first call to Morgan Cole was on 1 June, the last was on 26 June, and there was another call at some unspecified time between them.

The last entry is the following:

Date/period Destination Called number Total number of calls Total Duration Type of call Total cost

3 Jun Treharris 01443 413510 1 00:00:34 Eve/Weekend 0.046
This is a call made from Mrs Jarrold’s phone to Mr Wayne Jarrold, Mr Jarrold’s brother. The call was made on 3 June 2006. Both Mr Jarrold and Mrs Jarrold gave evidence about this call, Mrs Jarrold maintaining that it was made during the second meeting and Mr Jarrold maintaining that it was made during the first.

The entries referred to recording calls to Morgan Cole and to Wayne Jarrold are relevant because they potentially bear upon the dates of the two meetings in June.

The dates upon which the first and second meeting occurred became an issue of the utmost importance in the trial for two reasons.

First, Mrs Jarrold, and her neighbour Ms Knight, had maintained that the second meeting occurred on 7 June 2006. It subsequently transpired that that was impossible because Mr Jarrold was in Dubai on that date. This mistake was a matter relied upon in relation to the credit of both Mrs Jarrold and Ms Knight.

Secondly, and more importantly, Mrs Jarrold maintained that between the two meetings she went to Morgan Cole’s office in Cardiff and saw a solicitor there named June Bowler. She said that, amongst other things, she was advised by Ms Bowler in that meeting not to sign anything and to have someone else present in the house when Mr Jarrold returned. Her evidence in this respect was supported by another friend of hers, Mrs Garland, who gave evidence that she accompanied Mrs Jarrold to Morgan Cole. 1 June 2006 was a Thursday and 3 June 2006 was a Saturday. If the two meetings were on those dates, then, according to Mrs Jarrold, she would have consulted Ms Bowler on Friday 2 June. However, if the first meeting was on Saturday 3 June and the second on Monday 5 June, as Mr Jarrold said, it seems most unlikely that Mrs Jarrold would have attended Morgan Cole’s office and seen Ms Bowler on Sunday 4 June.

The two specific entries to which I have referred were relevant for the reasons given but all of the entries on the annexed page as a group are also relevant to understanding what is said to be the mistake the trial judge made in relation to this document.

As already explained, where a period is specified that is because there are a number of calls over more than one day. There is no designation of the dates upon which the calls were made during that period, other than that the period begins when the first call was made and ends when the last was made. I have already quoted a passage where the judge addressed the phone records and Mrs Jarrold’s evidence of her call. The trial judge said:

Mrs Jarrold’s June 2006 telephone records do not record any calls on 1 June 2006 other than to Morgan Cole and the records do not show any calls made from Mrs Jarrold’s telephone number on 2 June 2006.[37]

[37]Reasons [227].

Notwithstanding the care with which the trial judge approached the factual analysis of this case, the conclusion is inescapable that that passage reveals that she has misunderstood the phone records. It is simply incorrect to say that the phone records do not record any calls on 1 June 2006 other than to Morgan Cole. There are many entries which cover the period within which 1 June falls. It is impossible to conclude no calls were made on 1 June other than to Morgan Cole. Likewise, it is simply incorrect to say that the records do not show any calls made on 2 June. It is true that the date 2 June does not appear on the bill but, again, 2 June falls within the period of many of the specified numbers. It cannot be concluded that no calls were made from Mrs Jarrold’s telephone on 2 June.

The trial judge did not misunderstand the two relevant entries to which I referred earlier, being those concerning the calls to Morgan Cole and to Mr Jarrold’s brother. The significance to be attached to the error she did make is a matter to which I will return.

The trial judge turned then to an analysis of the issues raised by Mrs Jarrold which were not directly relevant to the forgery allegation. The trial judge did not accept evidence given by Mrs Jarrold concerning financial contributions she said she had made to property developments and acquisitions by Mr Jarrold,[38] she did not accept evidence Mrs Jarrold had given about the condition of Heol Y Glyn when it was sold in 1999,[39] she did not accept evidence given by Mrs Jarrold as to her reason for retaining the balance after the acquisition of the Cherry Tree Avenue property,[40] she rejected an allegation made by Mrs Jarrold in two of her statements made prior to trial to the effect that Mr Jarrold had back-dated documents in relation to Heol Y Glyn,[41] she rejected Mrs Jarrold’s evidence concerning 6 Cairo Street and accepted Mr Jarrold’s evidence that he had no knowledge of her ownership of that property until just prior to the trial,[42] she rejected Mrs Jarrold’s evidence as to the reasons she retained the surplus funds after the sale of Heol Y Glyn,[43] she rejected evidence given by Mrs Jarrold as to a loan or gift of £ 15,000 which she said she made to Mr Jarrold,[44] and she rejected Mrs Jarrold’s evidence that Fishweir had been sold without her knowledge.[45]
[38]Reasons [416]–[421].
[39]Reasons [422]–[424].
[40]Reasons [425]–[427].
[41]Reasons [428]–[432].
[42]Reasons [433]–[436].
[43]Reasons [438]–[439].
[44]Reasons [440]–[446].
[45]Reasons [447]–[449].

As to the signing of the Fishweir transfer the trial judge said:

At trial, Mrs Jarrold initially asserted that the Fishweir block of land was sold by Mr Jarrold without her signing the necessary transfer of land; in other words, she alleged that her signature on the Fishweir transfer was forged.
This allegation was not made in her instructions to Ms Thompson, in the Land Registry letter, in her first or second statements or in the October 2012 statement. However, when instructing her handwriting expert for the trial, Mrs Jarrold told Dr Strach that she did not think she signed the Fishweir transfer.
…
Mrs Jarrold’s evidence at first was that she had no knowledge that Fishweir had been sold and, when she asked Mr Jarrold how he sold Fishweir, she said he told her there were ‘always ways around these things’.
…
Then, during her evidence, after taking some time, Mrs Jarrold eventually accepted that she did sign the Fishweir transfer.[46]

[46]Reasons [450]–[451], [454], [456].

The trial judge preferred the evidence of Mr Jarrold to that of Mrs Jarrold in relation to the contributions the two of them had made to bills, housekeeping and other expenses,[47] and found that it had not been accurate for Mrs Jarrold to plead that when the proceeding was issued Mr Jarrold had been unable to be found.[48] The trial judge found that errors made by Mr Jarrold in the documents on which he relied to obtain the divorce in 2010 were careless or negligent rather than dishonest,[49] and rejected attacks made on Mr Jarrold’s credit in relation to how he described his occupation[50] and as to whether he had dishonestly avoided capital gains tax in 2007.[51]
[47]Reasons [457]–[462].
[48]Reasons [463]–[468].
[49]Reasons [469]–[473].
[50]Reasons [474].
[51]Reasons [476].

Of these ancillary matters, the findings which were focused upon on appeal were those made concerning the Fishweir transfer. As indicated, it was submitted that the trial judge had mischaracterised Mrs Jarrold’s evidence about that. It must be observed that this was only one of a large number of issues where adverse conclusions as to Mrs Jarrold’s credit were reached.

Before turning to the forgery allegation itself, the trial judge made some general observations in relation to credit.[52] She observed that in a case of this kind the Court must consider all of the matters relied upon by the parties so as to ensure that the conclusions and the reasons for them are reached on the basis of contemporary materials, objectively established facts and the apparent logic of events,[53] citing in that regard the well-known passage from Fox v Percy.[54]
[52]Reasons [477]–[483].
[53]Reasons [483].
[54](2003) 214 CLR 118, 129 [31].

When the trial judge turned to the forgery allegation, she began by explaining why the dates of the two meetings in June 2006 were important. She said:

The dates were an important part of Mrs Jarrold’s case to establish that she did not sign the power of attorney. As senior counsel for Mrs Jarrold submitted, ‘The important thing is that between the two visits, Mrs Jarrold saw a lawyer, June Bowler, and acted on her advice not to sign anything’.[55]

[55]Reasons [485].

The trial judge referred to Mrs Jarrold’s change of position in relation to the dates. Until it was revealed that Mr Jarrold was in Dubai on 7 June 2006, Mrs Jarrold had maintained that the meetings occurred on 5 June and 7 June. At trial she said she had never been sure of the dates and that she had worked them out assuming that one of the meetings must have been on the date that the power of attorney itself bore.[56]
[56]Reasons [486]–[490].

The trial judge then set out Mrs Jarrold’s position as it was in her evidence at the trial. At trial she relied upon the phone records and in particular the fact that three telephone calls were made from her phone to Morgan Cole between 1 and 26 June 2006. Mrs Jarrold said that she had called Morgan Cole after the first meeting because she wanted to arrange to collect the deeds to the Cherry Tree Avenue property. She was motivated to seek to secure her deeds as a consequence of Mr Jarrold’s first visit. Mrs Jarrold’s evidence was that she then attended Morgan Cole the next day and had the consultation with Ms Bowler which was, as the trial judge recognised, an important part of her case.

Mrs Jarrold’s friend, Mrs Garland, gave evidence that she went to Morgan Cole with Mrs Jarrold.

The trial judge observed that Mrs Jarrold’s accounts of precisely what she did in relation to the deeds were, in the judge’s view, ‘contradictory’ in that on the one hand she said that she arranged to collect the deeds and on the other that she told Morgan Cole to post them to her. Morgan Cole wrote to Mrs Jarrold on 20 June 2006 enclosing ‘your title deeds to 4 Cherry Tree Avenue as requested’. The trial judge referred to the fact that Mrs Jarrold had made a further phone call to Morgan Cole to find out whether the deeds had been posted. As the judge observed, this call is likely to have been on or before 20 June 2006 given the terms of the letter. Mrs Jarrold also gave evidence that at some point she called Ms Bowler after the second meeting to tell her that she had not signed anything. The judge considered it to be unlikely that she would have waited until 26 June 2006 to make this call.[57]
[57]Reasons [495].

I pause at this point to observe that in her analysis of the phone records concerning Morgan Cole the trial judge does not appear to have proceeded on any misapprehension as to what the records reveal. She proceeds on the assumption that three calls were made, the first on 1 June 2006, the last on 26 June 2006, and another call on a date between those two dates which cannot be identified by reference to the phone records.

The trial judge then observed that there was no corroborating evidence from either Ms Bowler or Morgan Cole about the phone calls or Mrs Jarrold’s attendance. Ms Bowler had no memory of the matter and Morgan Cole had no relevant records.[58]
[58]Reasons [496].

The judge then detailed a number of features of the evidence (which she initially attributed to Mrs Jarrold but which in fact went beyond Mrs Jarrold’s evidence alone), which the judge said ‘points towards the conclusion that the first meeting did not take place on 1 June 2006’.[59]
[59]Reasons [497].

The first matter to which the judge referred was Mrs Jarrold’s evidence that on the day between the two meetings she rang her friend Ms Knight and asked her to come to the house the next day, being the day when the second meeting was to take place. The trial judge then said:

On Mrs Jarrold’s new dates for the meeting, this would place that call on 2 June 2006. Mrs Jarrold’s telephone record does not show any calls made on 2 June 2006.[60]

[60]Reasons [497].

For the reasons explained earlier, her Honour was wrong as to what the records show about calls on 2 June 2006. The conclusion that the records do not show any calls made on 2 June 2006 was an error.

The next matter referred to was Ms Knight’s evidence as to when Mrs Jarrold called her. Ms Knight said that she was telephoned on the day of the second meeting. The trial judge observed that, according to Mrs Jarrold’s evidence at trial, that would have been 3 June 2006. The trial judge then said:

Mrs Jarrold’s telephone record shows one telephone call being made on 3 June 2006 and it was uncontentious that the telephone number for that call was to Mr Wayne Jarrold’s telephone number.[61]

[61]Reasons [498].

Again, her Honour has made an error here.

Ms Knight was Mrs Jarrold’s neighbour in Porthcawl. After making the statement referred to about the telephone record for 3 June 2006, the trial judge said:

Mrs Jarrold’s telephone record also records one telephone call made on 5 June 2006 to Porthcawl for 5.31 minutes. No evidence was led as to whose telephone number that was.[62]

[62]Reasons [499].

On the hearing of the appeal counsel for the appellant told us, without objection, which phone number on the telephone record was Ms Knight’s. The number was not the subject of evidence in the trial. For the purposes of this appeal, it is unnecessary to take that information into account. It seems to me to be clear that the same error in interpreting the phone records as her Honour made concerning 2 June and 3 June has also influenced her observation concerning 5 June.

The judge referred to the fact that neither Mrs Garland nor Ms Knight had an independent recollection of the date or day of the week when they were respectively involved in the relevant events, being the second visit in Ms Knight’s case and the visit to Morgan Cole in Mrs Garland’s case. The trial judge referred to the fact that Ms Bowler had no recollection of the relevant events and that no records were held by Morgan Cole apart from the letter dated 20 June 2006. The trial judge then observed:

That letter supports that Mrs Jarrold asked for and received her deeds, but it is not evidence that Ms Bowler met with Mrs Jarrold and Mrs Garland, nor is it evidence of when they met. The evidence of Ms Bowler and Morgan Cole calls into question whether the meeting with Ms Bowler occurred and, if it did occur, what was said at the meeting.[63]

[63]Reasons [504].

The judge observed that she would have expected some record of the meeting to exist.[64]
[64]Reasons [505].

The next matter to which the judge referred was certain evidence given by Mrs Jarrold. The judge said:

Mrs Jarrold gave evidence that she rang Morgan Cole to ask for her deeds to Cherry Tree Avenue ‘because [she’d] lost faith in [her] husband after those two visits’… [65]

[65]Reasons [506].

The trial judge observed that this ‘places Mrs Jarrold’s meeting with Ms Bowler after the second meeting with Mr Jarrold’.[66] The judge suggested that the evidence that she saw Ms Bowler after the two visits was also supported by aspects of Mrs Garland’s evidence. In her witness statement Mrs Garland had said that Mrs Jarrold told her Mr Jarrold ‘had visited the day before and had asked her to sign some documents which she did not want to sign’. In her oral evidence Mrs Garland said that Mrs Jarrold told her that Mr Jarrold had asked her to sign for him to have permission to sell the house and she had not signed it. The judge said:

This oral evidence contradicts Mrs Jarrold’s evidence that when she met with Ms Bowler she had not been presented by Mr Jarrold with any document to sign.[67]

[66]Ibid.

[67]Reasons [507].

Finally, the trial judge referred to evidence given by both Mr Jarrold and Ms Scanavino that on 1 June 2006 they undertook an all-day car trip in company with Mr Jarrold’s brother and that they left at around 9 am. If that trip was undertaken on 1 June 2006 that was inconsistent with a meeting between Mr and Mrs Jarrold that day.[68]
[68]Reasons [508].

The judge concluded:

In my view, for the reasons set out:
(a)the evidence does not support that the two meetings occurred on 1 and 3 June 2006 and it does support that it was more than probable that they occurred on 3 and 5 June 2006; and

(b) the meeting with Ms Bowler occurred after the second meeting.[69]

[69]Reasons [509].

This adverse conclusion was critical from Mrs Jarrold’s point of view. The fact that she had been advised by a solicitor the day before the power of attorney was presented to her that she should not sign anything was one of the principal matters she relied upon in support of her case that she had never signed the power of attorney.

The trial judge’s finding about the dates affected other significant conclusions which the trial judge then reached. The next issue to which she turned was the content of the conversations with Ms Bowler.

After pointing out inconsistencies and differences between the evidence given by Mrs Garland and by Mrs Jarrold, the trial judge repeated her conclusion as to the timing of any advice by Ms Bowler in the following terms:

Having concluded that the dates of the two meetings were 3 and 5 June 2006, it would be very unlikely for Ms Bowler’s advice to have been given to Mrs Jarrold before the second meeting, because the day between the two meetings was a Sunday.
In my view, for the reasons set out, I do not accept that Ms Bowler gave any advice to Mrs Jarrold before the second meeting with Mr Jarrold. It is probable that any advice that was given was given after the second meeting.[70]

[70]Reasons [517]–[518].

The trial judge then turned to the evidence given by Mr Jarrold and by Mrs Jarrold as to what occurred at the first meeting and at the second meeting. Significant amongst the reasons why the trial judge accepted Mr Jarrold’s version were these:

Mr and Mrs Jarrold’s evidence of the signing or otherwise of the power of attorney differs completely. Mrs Jarrold’s memory of documents and events is not good. She gave evidence that in the past she signed documents presented to her by Mr Jarrold without paying much attention to them. Although initially she considered that she did not sign the Fishweir transfer, she accepted in her evidence at the trial that she had signed the signature on the document.
…
Senior counsel for Mrs Jarrold submitted that, at the time of the second meeting, Mrs Jarrold believed that she had received legal advice not to sign any document. Senior counsel referred to what he described as the ‘uncontradicted evidence’ of Mrs Jarrold and Ms Garland that Mrs Jarrold had seen Ms Bowler and had been advised not to sign any document that Mr Jarrold might produce. For the reasons already set out, I have found that it is irrelevant whether their evidence was uncontradicted on this point. On balance, I consider that the evidence establishes that Mrs Jarrold did not see Ms Bowler before the second meeting and, if any advice was given by Ms Bowler, it would have been given after the second meeting with Mr Jarrold.[71]

[71]Reasons [534], [537].

The judge found that it was probable that there had been discussion between Mr and Mrs Jarrold about the possibility of selling the Cherry Tree Avenue property. Mr Jarrold had given evidence that such a discussion occurred. Mrs Jarrold denied it. The trial judge found:

In my view, it is probable that the discussion occurred, because Mrs Jarrold decided that she wanted the deeds to Cherry Tree Avenue closer to her and that was the reason she called Morgan Cole. In her evidence, she was unable to give any cogent reasons why she suddenly wanted her deeds.[72]

[72]Reasons [538].

One thing both Mr Jarrold and Mrs Jarrold did agree upon was that Ms Knight was upstairs in the house during the second meeting. Ms Knight’s evidence was that she did not hear any of the discussion. Mrs Jarrold relied upon her mere presence as being at least consistent with the fact that she had received advice from Ms Bowler the day before. According to Mrs Jarrold, Ms Bowler had advised Mrs Jarrold to have someone present in the house with her when Mr Jarrold called ‘if you’re nervous’.

Ms Knight had a diary entry for Wednesday 7 June 2006, the date which until trial Mrs Jarrold had maintained was the date of the second meeting. The entry reads: ‘Clare called to come over while Telvin was there’. The trial judge found that Ms Knight’s evidence to the effect that this entry had not been fabricated was ‘extremely unconvincing’.[73] On the appeal it was not suggested that that conclusion was unwarranted.
[73]Reasons [540].

One matter to which Mrs Jarrold referred in her evidence as being relevant to her dealings with Mr Jarrold at the two June meetings was her belief that Mr Jarrold owed her money. The trial judge not only rejected her evidence on these issues[74] but suggested that they demonstrated that ‘her recollections suffer from her strong tendency to tailor her evidence to suit her case’.[75] The trial judge accepted Mr Jarrold’s account of their property arrangements.[76] She also concluded that Mr Jarrold had provided a credible explanation for erroneous answers which he gave in the divorce documents in 2010.[77]
[74]Reasons [547].
[75]Reasons [548].
[76]Reasons [552].
[77]Reasons [553].

The trial judge then turned again to the issue of the Fishweir transaction. She observed that Mrs Jarrold asserted that she did not trust her husband at the time of the two meetings in June 2006 because of what had transpired in relation to the farmland at Cowbridge. The judge observed:

The actual complaint about the sale of the farmland was that it was sold without Mrs Jarrold’s knowledge rather than without her consent. The sale of the Fishweir block of land was claimed to be without Mrs Jarrold’s consent, because she claimed that she did not sign the transfer of land document. For the reasons set out, I have not accepted Mrs Jarrold’s evidence that the farm at Fishweir was sold without her knowledge and Mrs Jarrold has now accepted that she signed the Fishweir transfer.[78]

The trial judge went on to observe that Mrs Jarrold’s evidence about Fishweir was another example of her evidence ‘being tailored in an attempt to strengthen and suit her case’.[79] The trial judge observed:
I have found that Fishweir was not sold without Mrs Jarrold’s consent. Hence Mrs Jarrold cannot have been wary, at the second meeting, on the basis that Fishweir had been sold without her consent.[80]

[78]Reasons [555].

[79]Reasons [557].

[80]Ibid.

After addressing some other matters which are not significant in the context of the appeal, the trial judge concluded:

In my view, for the reasons set out, Mrs Jarrold’s evidence of the second meeting and the surrounding circumstances do not establish that the power of attorney was forged.[81]

[81]Reasons [564].

The trial judge then referred to steps taken after the second meeting. She said it was necessary to consider whether the events after the second meeting had a bearing on the credibility of Mr or Mrs Jarrold.[82]
[82]Reasons [565].

The trial judge referred to discussions between Mrs Jarrold and Ms Knight without suggesting, much less drawing a conclusion, that Mrs Jarrold was a party to Ms Knight’s 7 June diary entry.[83]
[83]Reasons [566]–[567].

The judge referred to Mrs Jarrold’s evidence that at some point she rang Ms Bowler to tell her she had not signed anything and observed that neither Ms Bowler nor Morgan Cole could give evidence that such a telephone conversation took place.[84]
[84]Reasons [568].

The judge observed that Mrs Jarrold did not take any further step until she obtained advice from another solicitor, Ms Thompson, in February 2007. Ms Thompson’s notes do not record anything about Mrs Jarrold being asked to sign a document in June 2006. The trial judge observed:

Mrs Jarrold did not obtain any advice as to how she could best protect her claimed interest in the Sims Street property.[85]

[85]Reasons [570].

The trial judge detailed a number of steps which she suggested Mrs Jarrold did not take to protect her interest in the property and concluded that her failure to take those steps, in the context, revealed that she was not as worried and concerned about the second meeting as she claimed.[86]
[86]Reasons [572]–[573].

The trial judge referred to the telephone conversation on 13 May 2007, Mrs Jarrold’s request to her brother to visit the property in June 2007, the statutory declaration she signed in July 2007, her letter to the Land Registry office in March 2008 and her first statement to the police in August 2008. The judge made reference to what she saw as a number of inconsistencies in some of this material.[87]
[87]Reasons [574]–[580].

The judge rejected a submission put on Mrs Jarrold’s behalf that an inference should be drawn against Mr Jarrold because both the original and the certified copies of the power of attorney had not been produced.[88] Both Mr Jarrold and Ms Scanavino gave evidence that all their documents relating to the Sims Street property had been lost when they moved to France.
[88]Reasons [581]–[586].

The trial judge then turned to the expert handwriting evidence. When dealing with Dr Strach’s report she accurately noted that he had been instructed in relation to the Fishweir transfer that ‘Mrs Jarrold was uncertain whether she signed the transfer’.[89]
[89]Reasons [592].

The trial judge found that there were significant shortcomings in the evidence given by each of the three handwriting experts. In the context of the appeal, attention was principally directed to the trial judge’s treatment of the expert evidence of Mr Holland.

In substance, the trial judge placed reduced reliance upon Mr Holland’s conclusion that it was highly probable Mrs Jarrold had not signed the power of attorney because he had previously formed the view that it was highly probable that she had,[90] because in her Honour’s view Mr Holland had not provided satisfactory reasons why his interpretation of the signatures had changed,[91] and because Mr Holland had failed to explain why similarities which he had detected when concluding that it was highly probable Mrs Jarrold had not signed were no longer considered to be similarities when he changed his opinion.[92]
[90]Reasons [654].
[91]Reasons [655].
[92]Reasons [656].

When bringing together her conclusions in relation to the forgery allegation, the trial judge began by setting out the applicable legal principles concerning the burden of proof, relying in particular on Briginshaw v Briginshaw (‘Briginshaw’)[93] and Neat Holdings v Karajan Holdings Pty Ltd,[94] as well as s 140 of the Evidence Act 2008.[95] The trial judge emphasised that allegations of the kind made by Mrs Jarrold cannot be found proven by ‘inexact proofs, indefinite testimony or indirect references’.[96]
[93](1938) 60 CLR 336.
[94](1992) 110 ALR 449.
[95]Reasons [682]–[687].
[96]Reasons [690] citing Briginshaw (1938) 60 CLR 336, 362.

The trial judge repeated that she would not draw an adverse inference against Mr Jarrold because the original power of attorney had not been produced.[97]
[97]Reasons [691].

In addressing a submission which had been made on Mrs Jarrold’s behalf that nothing turned on the ‘actual dates’ of the two June meetings the trial judge observed:

The dates are relevant, however, if the meeting with Ms Bowler occurred after the two meetings, as I have concluded.[98]

[98]Reasons [692].

The trial judge then said:

I have found that Mrs Jarrold accused Mr Jarrold of forging her signature on the Fishweir transfer, on the basis that she had no memory of signing it. Mrs Jarrold later accepted in cross-examination that she did sign it. This is a positive finding of Mrs Jarrold making an allegation against Mr Jarrold without a proper basis. Having no memory of signing a document is no basis upon which to conclude that it must have been forged.[99]

Her Honour went on to observe that Mrs Jarrold’s allegation of forgery in relation to the Fishweir transfer ‘necessarily affects’ the weight to be attached to her allegation of forgery of the power of attorney.[100]

[99]Reasons [693].

[100]Reasons [694].

Her Honour dealt with the expert evidence, repeating conclusions she had already expressed and emphasising that expert evidence was only one part of the body of evidence which she had to consider.[101]
[101]Reasons [699].

Her final conclusion on the forgery claim was as follows:

In light of all the evidence, I am not persuaded, on the balance of probabilities, taking into account the principles in Briginshaw, including the consequences and gravity of the allegation against Mr Jarrold, that Mr Jarrold forged Mrs Jarrold’s signature. The expert evidence, taken together, does not displace the very grave doubts I have regarding the lay evidence relied on to prove that Mrs Jarrold did not sign the power of attorney. Expert evidence must not be considered in isolation but along with all of the evidence. Proof cannot be found ‘as a result of a mere mechanical comparison of probabilities’.[102]
I have taken into account the unlikelihood of Mr Jarrold’s forging a signature in circumstances where he believed he was fully entitled, as I have found, to the Sims Street property. I have also taken into account my finding that Mrs Jarrold has once earlier made the grave accusation of fraud on slender evidence.[103]

[102]Briginshaw (1938) 60 CLR 336, 361.

[103]Reasons [701]–[702].

Her Honour footnoted the last sentence with a cross-reference to an earlier part of her judgment, which I have already extracted, and which read:

At trial, Mrs Jarrold initially asserted that the Fishweir block of land was sold by Mr Jarrold without her signing the necessary transfer of land; in other words, she alleged that her signature on the Fishweir transfer was forged.[104]

[104]Reasons [450].

Her Honour then turned to the question of what interest Mrs Jarrold had in the Sims Street property.

There was no issue that in terms of actual funds employed all the money had come from Mr Jarrold, although counsel for Mrs Jarrold unsuccessfully attempted to characterise that as utilisation of a ‘matrimonial asset pool of funds’. The trial judge found that Mr and Mrs Jarrold had kept their finances separate.[105] As to contributions made, the trial judge repeated her previous findings in which she had substantially accepted Mr Jarrold’s credit and rejected that of Mrs Jarrold on those issues.[106]
[105]Reasons [707].
[106]Reasons [708]–[712].

The trial judge dealt with the legal principles applicable to the presumption of advancement,[107] relying particularly on Charles Marshall Pty Ltd v Grimsley (‘Charles Marshall’),[108] Martin v Martin (‘Martin’),[109] Pearson v Pearson[110] and Trustees of the Property of Cummins v Cummins (‘Cummins’),[111] and addressed the evidence given as to the nature of the relationship between Mr and Mrs Jarrold at relevant times, again substantially accepting the account given by Mr Jarrold. Her Honour said:

I accept Mr Jarrold’s evidence that the purpose of the trip to Australia was to find a home for himself in which to live permanently; that Mrs Jarrold told him before they went to Australia that she was not going to live in Australia; and that by the time he came to Australia he knew she would not be coming.[112]

[107]Reasons [714]–[717].

[108](1956) 95 CLR 353.

[109](1959) 110 CLR 297.

[110][1961] VR 693.

[111](2006) 227 CLR 278.

[112]Reasons [737].

Her Honour then addressed Mr Jarrold’s evidence of intention as to the disposition of the beneficial interest in the Sims Street property.[113] Mr Jarrold’s explanation for placing the property in joint names was a discussion he said that he had had with Mrs Jarrold in which he explained that he was putting the property in both their names so that if anything were to happen to him she would be able to easily realise the property for his daughter’s benefit. The trial judge accepted that explanation.[114] The trial judge also relied upon Mrs Jarrold’s sale of the Heol Y Glyn property and purchase of the Cherry Tree Avenue property as well as Mr Jarrold’s failure to make a will as being consistent with an intention on the part of Mr Jarrold not to benefit Mrs Jarrold when putting the Sims Street property into both of their names.[115]
[113]Reasons [738]–[746].
[114]Reasons [744].
[115]Reasons [743], [745].

The trial judge found that Mr Jarrold had rebutted the presumption of advancement and held accordingly that Mrs Jarrold held her legal interest in the Sims Street property on resulting trust for Mr Jarrold.[116]
[116]Reasons [746].

In summary, at trial Mrs Jarrold’s claim failed for two reasons. First, she failed to satisfy the trial judge that she had proved forgery to the requisite standard. Secondly, the trial judge held that in any event she held her legal interest on trust for Mr Jarrold.

Mrs Jarrold had maintained that she was entitled to succeed, and that she had a compensable loss, even if she held no equitable interest. Her Honour dealt with the question of whether she held an equitable interest, notwithstanding that her claim failed in any event because she had not proved forgery, but she did not deal with Mrs Jarrold’s claim on the basis that she had lost her legal interest. It was unnecessary for the trial judge to do so given her findings on other issues.

I turn now to some particular aspects of the trial relevant to the grounds of appeal.

Review of relevant aspects of the trial
Dates of the meetings/solicitor’s advice

Both Mr and Mrs Jarrold gave evidence about the two meetings they had with each other in early June 2006 at the Cherry Tree Avenue property at which the issue of the sale of the Sims Street property was addressed. They each gave evidence that at the first meeting Mr Jarrold raised his desire to sell the Sims Street property and told Mrs Jarrold that she would need to sign a document to enable him to do so. They each gave evidence that she did not react either positively or negatively to this suggestion. They each gave evidence that in response to Mr Jarrold’s suggestion that they should meet again the next day Mrs Jarrold explained that she already had a commitment that day and that they then arranged to meet on the following day.

Mr and Mrs Jarrold each gave evidence that at the second meeting a power of attorney was presented to Mrs Jarrold by Mr Jarrold. Mrs Jarrold’s evidence was that the document presented to her was not the one dated 5 June 2006 purportedly signed by her and upon which Mr Jarrold relied when selling the Sims Street property. Mr Jarrold maintained that that was the document he presented. Mrs Jarrold said that she refused to sign the document presented to her and that Mr Jarrold then proceeded to plead with her and to cajole her for some hours in an endeavour to persuade her to do so. Mr Jarrold’s evidence was that she signed the document presented without opposition of any kind.

Ms Knight was present in the house at the time of the second meeting but she was upstairs and did not hear the conversation between Mr and Mrs Jarrold.

According to Mrs Jarrold she met friends in Cardiff the day after the first meeting, as she had arranged, and then attended at the offices of Morgan Cole because she wanted to obtain the title documents for the Cherry Tree Avenue property. She said she had been prompted to take this course by Mr Jarrold’s visit. She characterised Morgan Cole as being her husband’s solicitors, and she said that as a result of his visit she had decided to obtain the Cherry Tree Avenue title deeds from them. Her evidence was that she rang Morgan Cole on the day of Mr Jarrold’s first visit in order to arrange for collection of the title documents. Her evidence, based upon the phone records, was that this call was made on 1 June 2006.

According to Mrs Jarrold, she attended at the offices of Morgan Cole the next day with her friend, Mrs Garland. As well as discussing the issue of collecting the title documents, Mrs Jarrold said that she had a consultation with Ms Bowler in the course of which, amongst other things, Ms Bowler advised her not to sign anything and to have someone else in the house when Mr Jarrold visited again if she was nervous.

An issue upon which the evidence of Mr and Mrs Jarrold diverged concerned the 3 June phone call to Mr Jarrold’s brother. Mr Jarrold maintained that this call was made towards the end of the first meeting. Mrs Jarrold maintained it was made towards the end of the second meeting.

As indicated earlier, the only contemporaneous documents which bore on this issue of dates, which were admitted into evidence, were the following:

1.Mrs Jarrold’s BT phone bill;
2.Ms Knight’s diary;
3.the power of attorney dated 5 June 2006; and
4.the letter from Morgan Cole to Mrs Jarrold enclosing her title deeds ‘as requested’ dated 20 June 2006.

Certain facts must be accepted on the basis of these contemporaneous documents. They are as follows.

1.On 1 June 2006 Mrs Jarrold rang Morgan Cole.
2.On 3 June 2006 Mr Jarrold rang his brother from Mrs Jarrold’s phone.
3.Some time prior to 20 June 2006 Mrs Jarrold had requested the title deeds to the Cherry Tree Avenue property from Morgan Cole.
4.On another occasion between 1 June and 26 June 2006 Mrs Jarrold rang Morgan Cole.
5.On 26 June 2006 Mrs Jarrold rang Morgan Cole.

The significance of the dates of the June meetings within the context of the case was always clear and was recognised. When opening the case, Mrs Jarrold’s counsel emphasised that the dates were significant because (and, according to him, only because) they were relevant to the issue of Mrs Jarrold’s alleged consultation with the solicitor between the two meetings.

Mrs Jarrold had, before the trial, maintained that the two meetings occurred on 5 June and 7 June. Both when the matter was opened and during her evidence, Mrs Jarrold conceded that she had reconstructed those dates relying upon the date on the power of attorney.

Mrs Garland’s evidence was consistent with Mrs Jarrold’s evidence. Unsurprisingly, she was unable to place any particular date on her attendance with Mrs Jarrold at the solicitors. Mrs Garland’s relevant evidence was as follows:

When you met her in Cardiff, where did you go with her? – – – I went to a solicitor’s office for her to obtain the deed for her home in South Wales.
And what was Mrs Jarrold’s state of mind on that occasion when she went to the solicitor’s office? – – – She was quite worried, very worried.
Did she say anything to you about the reasons she was worried? – – – Yes, she said that her husband, Telvin Jarrold, had been to her home that week and he wanted her to sign some forms for her to sell the house in Australia.

[123][2013] VSCA 29 [33]–[34] (citations omitted).

These principles were re-articulated by this Court in Waterfall v Antony.[124]
[124][2014] VSCA 44 [9]–[17].

If errors are identified this Court has power to deal with the errors of the trial judge itself or remit the matter for a new trial. Given the oppressive burden that an order for a new trial imposes on the parties especially in terms of cost and inconvenience,[125] a new trial will only be ordered where this Court cannot remedy the identified errors for itself on the materials before it.[126] Where the Court is required to reject the credibility of a witness the fact that the Court has not itself observed the witness may be an ‘insuperable obstacle’ to the Court disposing of the matter on appeal.[127] Such a case may also arise where there is a direct irreconcilable conflict between two witnesses as to relevant facts in dispute.[128]
[125]Tzouvelis v Victorian Railways Commissioner [1968] VR 112, 129; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, 663 [57]; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1, 46 [172].
[126]CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505, 516; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, 663 [58]. See also Murphy v Mark [1977] VR 316, 321 and Vandeloo v Waltons Ltd [1976] VR 77, 87 both cited with approval in Forder v Hutchinson [2005] VSCA 281 [51] (Nettle JA) and Electrolux Pty Ltd v Siniakis [1998] 1 VR 29, 47 (Hayne JA).
[127]Hadid v Redpath [2001] NSWCA 416 [57]–[58] (Heydon JA) cited with approval in Burk v Commonwealth of Australia [2008] VSCA 29 [177] (Chernov and Nettle JJA).
[128]Beech v Advanced Management Consultancy Pty Ltd [2002] NSWCA 311 [31].

Analysis
Dates of the meetings and Bowler’s legal advice (ground 3)

Her Honour made mistakes in the interpretation of the phone records in relation to the presence or absence of calls on the 1^st, 2^nd, 3^rd and 5^th June. These mistakes were not made in relation to the entries concerning the calls to Morgan Cole and to Mr Jarrold’s brother. Her Honour correctly interpreted the entry concerning calls to Morgan Cole. As only one call was made to Mr Jarrold’s brother, there was no room for error in relation to the interpretation of the entry concerning that call. The errors related to the issue of whether Mrs Jarrold rang Ms Knight and as to when she did so.

Whilst it is clear that her Honour did make mistakes, it was not accepted on the respondents’ behalf that these mistakes mattered, given the plethora of issues raised in the proceeding and the many findings her Honour made which were adverse to Mrs Jarrold’s credit. In my view, however, the mistakes do matter.

The sequence of events in this case was critical, and the most important issue as to the sequence of events was whether Mrs Jarrold consulted the solicitor, Ms Bowler, on the day between the two meetings with Mr Jarrold and as to the content of the advice she was given at that meeting. When a judge is attempting to determine issues of credit concerning events years before and where the relevant witnesses are not impartial, contemporaneous documentation can be especially important. There were only four contemporaneous documents which could assist her Honour in determining the critical issue of whether Mrs Jarrold did consult Ms Bowler between the two meetings. As indicated earlier, they were the phone records, Ms Knight’s diary, the disputed power of attorney itself, and Morgan Cole’s letter to Mrs Jarrold of 20 June 2006. Ms Knight’s diary entry was clearly unreliable. The veracity of the power of attorney was the very matter in issue, and the letter from Morgan Cole did not establish more than that Mrs Jarrold did indeed request her title documents to the Cherry Tree Avenue property prior to 20 June. Thus, to the extent relevant information could be obtained from the phone records, that was the only reliable contemporaneous document.

Relevant information could be obtained from the phone records. Perhaps most importantly, the phone records indicated that Mrs Jarrold did ring Morgan Cole on 1 June 2006. The existence of that call was consistent with Mrs Jarrold’s account of the sequence of events. If the phone records had been correctly interpreted her Honour would not have mistakenly proceeded on the basis that in other respects the phone records were not consistent with Mrs Jarrold’s account of the sequence of events. There was no proper basis upon which her Honour could conclude, based upon the phone records, that Mrs Jarrold did not ring Ms Knight prior to the second meeting on either 2 June or 3 June acting pursuant to a suggestion she said had been made by Ms Bowler to the effect that she should have someone else present in the house when Mr Jarrold returned if she was nervous.

It seems to me that there is considerable force in the submission made on the appellant’s behalf that if the records had not been misinterpreted a different conclusion as to Mrs Jarrold’s credit might have been reached, at least on this issue, which was perhaps the most critical issue in the case.

When the judge set out the factors which led her to conclude that the first meeting did not take place on 1 June 2006,[129] after recounting the sequence of events according to Mrs Jarrold and referring to the fact that Ms Bowler had no memory of the incident and that Morgan Cole had no record of an attendance,[130] the first three matters which, according to the trial judge, pointed ‘towards the conclusion that the first meeting did not take place on 1 June 2006’[131] were her erroneous interpretations of the telephone records for 2 June 2006,[132] 3 June 2006,[133] and 5 June 2006.[134] Her Honour went on to refer to other matters as well, namely the absence of an independent recollection of the date by Mrs Garland and Ms Knight,[135] aspects of the evidence of Mrs Jarrold and Mrs Garland which her Honour interpreted as suggesting the meeting with Ms Bowler was after the second meeting with Mr Jarrold,[136] and the evidence given by Mr Jarrold and Ms Scanavino as to the all-day car trip on 1 June 2006.[137]
[129]Reasons [491]–[509].
[130]Reasons [491]–[496].
[131]Reasons [497].
[132]Reasons [497].
[133]Reasons [498].
[134]Reasons [499].
[135]Reasons [500]–[504].
[136]Reasons [505]–[507].
[137]Reasons [508].

Clearly, the mistakes in relation to the telephone records were not the only matters relied upon. However, they were amongst the matters relied upon. The factors to which I have referred, including the mistakes in analysis of the telephone records, led directly to the conclusion that her Honour reached that it was more probable that the meetings occurred on 3 and 5 June 2006 and that the consultation with Ms Bowler occurred after the second meeting.[138] These conclusions were very significant in themselves in the context of the case, but they also affected other issues, and in particular, they affected the issue of credit generally. Counsel for the second respondent, Mr Jarrold, on the appeal described the question of the dates of the June meetings as being the point on which credit ‘swivelled’ in the trial.
[138]Reasons [509].

Leaving to one side the credit finding, there were matters which supported Mrs Jarrold’s version of events. They were as follows.

1.There was no doubt that Mrs Jarrold called Morgan Cole on 1 June and no alternative explanation for that call other than that it was prompted by Mr Jarrold’s first visit was advanced at trial or in the judgment.[139] As to the submission by the second respondent on the appeal that it was not ‘glaringly improbable’ that the call on 1 June 2006 was in respect of one of the other properties she owned such as Cairo Street, that is not a finding made by the trial judge.
2.Mrs Garland’s account of the content of the advice given by Ms Bowler, namely that she should not sign anything without obtaining legal advice, was inconsistent with a conclusion that the consultation with Ms Bowler occurred after the second meeting at which (according to Mr Jarrold) the power of attorney had been signed.
3.Ms Knight’s mere presence, notwithstanding the unreliable diary entry, during the second meeting itself corroborates Mrs Jarrold account of the consultation with Ms Bowler. Both Mrs and Mr Jarrold gave evidence that she was there.
4.Mrs Jarrold’s conduct after the meetings, and in particular the instruction she gave to Ms Thompson that there was a house in Melbourne in both names, her request to her brother to go to the Sims Street property to investigate the situation, her attempts to obtain relevant documentation after she was told by her brother that the property had been sold, and her subsequent complaints to the Registrar and to the police, all seem more consistent with her account that she was requested to sign a power of attorney and refused to do so rather than with Mr Jarrold’s account that she signed the power of attorney without complaint or objection.

[139]On one view, the trial judge dealt with the issue at Reasons [538] in the context of the discussion at the second meeting. The passage in question does not seem to be referable to the call on 1 June 2006 but the trial judge appears to accept a connection of some kind between Mr Jarrold’s visits and Mrs Jarrold’s contact with Morgan Cole.

Further, the trial judge, quite properly, assessed all of the evidence, including the expert evidence together. On my reading of her Honour’s reasons, and subject to considerable qualifications and cautions, her Honour accepted that the expert evidence as a whole supported the contention that Mrs Jarrold had not signed the power of attorney. Mrs Jarrold was nevertheless found to have failed to discharge the burden which was upon her and the trial judge expressed the reason in these terms (which I have previously quoted):

The expert evidence, taken together, does not displace the very grave doubts I have regarding the lay evidence relied on to prove that Mrs Jarrold did not sign the power of attorney.[140]

[140]Reasons [701].

To the extent the mistakes made concerning the phone records had been relied upon in creating a foundation for those very grave doubts, her Honour’s assessment of the impact of the expert evidence has also been affected.

Significance of the Fishweir transfer (ground 2(b))

It seems to me that her Honour overstated the position when she said that in the trial Mrs Jarrold had maintained that her signature on the Fishweir transfer was a forgery. She did give evidence to the effect that she had suggested to Mr Jarrold, whilst they were still together, that he had transferred the Fishweir property without her signature and without her knowledge or consent, and it is also true that she was not prepared to accept that she had signed the transfer until the trial, and was reluctant to accept it in her evidence in the trial. Mrs Jarrold made, and never retracted, an allegation that some form of deceit had been perpetrated upon her in this transaction. But to say that she had made an allegation of forgery in relation to the Fishweir transfer in the trial which she had then retracted was an inaccurate statement of the case as opened and of the evidence she gave. Her Honour clearly saw this issue as being important. It is one of the specific matters to which she refers in her final conclusion on the forgery allegation.[141]
[141]Reasons [702].

The Fishweir transfer is a simple document. Its purpose and effect are not obscure. Mrs Jarrold’s signature on the document was witnessed by Mr Jarrold’s brother. He says the purpose of the document was discussed in his presence and in the presence of Mrs Jarrold. He was not challenged on that. The trial judge was entitled to take into account these matters as adversely affecting Mrs Jarrold’s credit.

But her Honour was not entitled to rely upon an assertion that Mrs Jarrold had made an allegation of forgery in the trial, when she had not done so.

In the course of the appeal hearing counsel for Mr Jarrold read to the Court, in the face of objection by counsel for Mrs Jarrold, an extract from a letter from Mrs Jarrold’s solicitors to Mr Jarrold’s solicitors containing an assertion that she had not signed the Fishweir transfer. This letter was not in evidence at the trial.

Evidence of Mr Holland (grounds 1 and 2(c))

I have difficulty in understanding her Honour’s conclusion that Mr Holland did not adequately explained his change of view. Her Honour was entitled to take into account the fact that he did change his view in assessing his evidence. He did explain why he had changed his view. It was because he had received a large number of additional samples and, upon examination of those samples, he had determined that characteristics of the disputed signature which he had previously seen as variations were, in his view, differences.

On a reading of her Honour’s reasons as a whole, it seems to me that she did accept that the burden of the expert evidence supported Mrs Jarrold’s case, subject to the qualifications and cautions which she expressed, the most important of which was what she saw as a failure by Mr Holland to adequately explain his change of opinion. On reading Mr Holland’s evidence I cannot share her Honour’s conclusion that his change of opinion was not adequately explained.

Interest in Sims Street

As indicated, on the issue of financial contributions made the trial judge accepted Mr Jarrold’s credit and rejected the evidence of Mrs Jarrold.

When considering whether the presumption of advancement had been rebutted, the relevant issue was Mr Jarrold’s state of mind, although evidence given by Mrs Jarrold of what he said and did was potentially relevant to that issue.[142]
[142]Cummins (2006) 227 CLR 278, 300 [65] citing Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549, 559–60.

I observed earlier that almost every aspect of the circumstances leading up to the trip to Melbourne in January and February 1999 when the joint bank account was opened and the contract for the purchase of the Sims Street property in joint names was entered into was controversial. Mr Jarrold and Mrs Jarrold gave conflicting evidence about those circumstances, although, as I have also observed earlier, there were aspects of Mrs Jarrold’s evidence which could be seen as supporting a conclusion that they both intended the Sims Street property to be Mr Jarrold’s alone. The issue of when the marriage ended and what Mrs Jarrold’s intentions were in relation to living in Australia were also controversial.

The trial judge accepted Mr Jarrold’s evidence that the purpose of the trip to Australia was to find a home ‘for himself in which to live permanently’, that Mrs Jarrold had told him before they came to Australia that she was not going to live there, and that by the time he came to Australia he knew that she would not be moving there. These findings all relied upon acceptance of the credit of Mr Jarrold in preference to that of Mrs Jarrold.

If the findings in relation to the forgery allegation are impugned, it seems to me that that must potentially affect the conclusion that Mr Jarrold should be accepted on the issue of his relevant state of mind in the context of the evidence directed towards rebutting the presumption of advancement. It also gives rise to the possibility of a different conclusion in relation to the conflicting evidence given by Mr and Mrs Jarrold as to their financial contributions.

At trial it appears to have been assumed by all counsel and by the trial judge that the relevant time at which Mr Jarrold’s state of mind was to be determined was as at the date of execution of the contract of sale. No submissions were made in relation to this matter on the appeal. My own view, without the benefit of submissions, is that the relevant time would be the date of settlement, when Mrs Jarrold obtained the legal title which Mr Jarrold contends is subject to a resulting trust in his favour.[143] The construction of the new house on the property is an additional complication, not just in relation to the quantum of any loss suffered by Mrs Jarrold, but also in relation to the question of whether there is a resulting trust.[144]
[143]Cummins (2006) 227 CLR 278, 301 [67]. See further Martin (1959) 110 CLR 297, 304–5 citing Davies v National Trustees Executors and Agency Co of Australasia Ltd [1912] VLR 397, 403; Charles Marshall (1956) 95 CLR 353, 365.
[144]Cummins (2006) 227 CLR 278, 300 [65].

As indicated, these matters were not argued before us. In view of my conclusion as to the disposition of this appeal, I will refrain from further consideration of them.

Credit issues generally

Her Honour accepted Mr Jarrold’s explanation of the many mistaken entries which he made in the documents he relied upon to obtain the divorce without notice to Mrs Jarrold. She accepted his explanation as to why he specified the Sims Street property as Mrs Jarrold’s address in the power of attorney. It might have been put to Mr Jarrold that these mistakes have a common feature, namely, they militated towards the speedy achievement of Mr Jarrold’s objective at the relevant time. That was not put to him, or was not so put clearly and expressly. Her Honour also accepted his explanation as to the loss of the original power of attorney and the certified copies.

Her Honour said in her final conclusion on the forgery allegation that she took into account the unlikelihood of Mr Jarrold forging a signature in circumstances where he believed that he was fully entitled to the Sims Street property.[145] I am unable to agree with the logic of that conclusion. His belief that he was fully entitled to the Sims Street property would seem to me to be at least equally consistent with the existence of a motive to forge the signature if Mrs Jarrold refused to recognise his entitlement. This is especially so given that both he and his new partner had invested substantial funds in building a new house on the property, that they had just purchased a property in France, that he was planning to sail a yacht from Australia to the Mediterranean (and indeed left Australia on the yacht the day after the Sims Street property sale settled), that he wanted to sell the Sims Street property, and that he began making arrangements to sell the Sims Street property very shortly after returning to Australia.
[145]Reasons [702].

Her Honour saw the two relevant witnesses, Mrs Jarrold and Mr Jarrold. She also saw how the case evolved. This is a case where, in my view, this Court cannot make its own assessment of the credit issues between Mrs Jarrold and Mr Jarrold. Her Honour found against Mrs Jarrold on almost all of the credit issues. She gave detailed and thorough reasons as to why, only some of which are the subject of the matters I have dealt with. On almost every issue she accepted the credit of Mr Jarrold. She had the considerable advantage of seeing them both in the witness box and of seeing the trial develop.

Because of the mistakes which I have identified it seems to me that the judgment cannot stand. As this Court is not in a position to reach its own conclusion on the credit issues, this is one of those unfortunate situations where a new trial must be ordered. The matter cannot be resolved without rejecting the credibility of Mr Jarrold, a witness this Court has neither seen nor heard, as to an allegation of serious wrong-doing by him. This Court would have to resolve the irreconcilable conflict between the account of events given by Mr and Mrs Jarrold. It is in no position to do so.

Disposition

This was a difficult matter, turning largely on issues of credit. It was dealt with by the trial judge in a thorough and comprehensive manner. Unfortunately, she made errors which were potentially critical. The appeal should be allowed, the orders made set aside, and a new trial ordered.

GINNANE AJA:

The learned judge of the trial division found that Mrs Jarrold had not established that Mr Jarrold had forged the power of attorney which he used to sell the Sandringham property.

Her Honour did not accept Mrs Jarrold’s evidence on many matters and preferred the evidence of Mr Jarrold. She formed the opinion that Mrs Jarrold had a ‘strong tendency to tailor her evidence to suit her case’.[146] Her Honour also said that Mrs Jarrold’s memory of documents and events was not good.[147] Her Honour was required to make many findings of fact and only a comparatively small number of them were challenged on appeal.
[146]Jarrold v Isajul [2013] VSC 461, [548] (‘Reasons’).
[147]Reasons [534].

Her Honour gave careful and detailed reasons for her conclusions.

Her Honour correctly considered that the dates of the meetings between Mr and Mrs Jarrold in Wales in the first week of 2006 were very important. A finding that Mrs Jarrold had received legal advice before the second meeting occurred not to sign any document may have significantly supported her case that Mr Jarrold had forged her signature on the power of attorney. However, her Honour found that Mrs Jarrold’s meeting with the solicitor occurred after the two meetings between Mr and Mrs Jarrold.[148]
[148]Reasons [509].

Her Honour was incorrect in one relevant respect, in assuming that Mrs Jarrold’s telephone bills did not record a call by her to Ms Knight on 2 June 2006. Such a phone call may have occurred. Her Honour’s finding may have played a part in her conclusion that the two meetings of Mr and Mrs Jarrold did not occur on 1 and 3 June 2006 and that it was more probable that they occurred on 3 and 5 June 2006.[149]
[149]Ibid.

Many of her Honour’s findings were made in respect of evidence that permitted conflicting inferences. This was the case with Ms Knight’s evidence. All accepted that she was in Mrs Jarrold’s house when the second meeting between Mr and Mrs Jarrold occurred. A finding that Mrs Jarrold had requested her to attend as support was open. Such a finding might have led to the suggestion that Mrs Jarrold had been advised by her solicitor to have a support person present when Mr Jarrold returned and also not to sign the power of attorney. However, her Honour placed ‘little weight’ on Ms Knight’s evidence[150] and described Ms Knight’s evidence that her diary entry, showing that she attended Mrs Jarrold’s house on 7 June 2006, was not fabricated as being ‘extremely unconvincing’.[151]
[150]Reasons [567].
[151]Reasons [540].

One misapprehension of fact in a long judgment may not often justify overturning that judgment where it is also based on other grounds. Caution should be exercised so as to avoid inflating issues of fact argued on appeal beyond the importance they were given at trial. As Heydon J said during the course of argument in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited:

The judge had a positional advantage over the appeal judges because he was slowly introduced to the detail of the case and followed it in real time whereas appeal judges are taken to snippets.[152]

[152](2010) 241 CLR 357, 360. Cf Transport Accident Commission v Cuthbertson [2013] VSCA 29 [34] (Whelan JA).

Taken by itself, a misinterpretation that Mrs Jarrold’s telephone bills did not admit the possibility that Mrs Jarrold had phoned Ms Knight on 2 June 2006 would not be decisive. However, Mrs Jarrold’s telephone bills were particularly important evidence. They were objective evidence in contrast to the fog of memories under which the witnesses, many of whom had some association with the parties, laboured. The misinterpretation of those bills may well have had a significant effect on the assessment of Mrs Jarrold’s evidence.

Her Honour’s approach to findings in respect of the many disputed facts was that:

[T]he Court must consider all of the matters relied upon by the parties so that it ensures that its conclusions and the reasons for them are reached on the ‘basis of contemporary materials, objectively established facts and the apparent logic of events’.[153]

[153]Reasons [483].

Her Honour therefore considered a range of matters in reaching her ultimate conclusions. But her Honour did place, and indeed was obliged to place, importance on the dates of the two meetings between Mr and Mrs Jarrold in establishing whether she signed the power of attorney.[154] Her Honour dealt with that issue over many pages of her judgment. The parties accepted that one of the meetings occurred on Saturday, 3 June 2006. In dispute was whether that was the first or second meeting and also the date of the other meeting. The telephone bills and their correct interpretation were important evidence in determining when the other meeting between Mr and Mrs Jarrold occurred and when Mrs Jarrold’s meeting with Ms Bowler, the solicitor at Morgan Cole, may have taken place. These were very important matters in the determination of the case.
[154]Reasons [485], [692].

Her Honour stated:

There is more evidence from Mrs Jarrold that points towards the conclusion that the first meeting did not take place on 1 June 2006. Mrs Jarrold’s evidence was that, on the day between the two meetings, she rang Ms Knight and asked her to come to her house the next day, when the second meeting was to take place. On Mrs Jarrold’s new dates for the meeting, this would place that call on 2 June 2006. Mrs Jarrold’s telephone record does not show any calls made on 2 June 2006.
In contrast to Mrs Jarrold’s evidence, Ms Knight said Mrs Jarrold called her on the day of the second meeting, which, according to Mrs Jarrold’s evidence, was on 3 June 2006. Mrs Jarrold’s telephone record shows one telephone call being made on 3 June 2006 and it was uncontentious that the telephone number for that call was to Mr Wayne Jarrold’s telephone number.[155]

[155]Reasons [497]–[498].

Her Honour took into account other matters before deciding that:

(a)the evidence does not support that the two meetings occurred on 1 and 3 June 2006 and it does support that it was more than probable that they occurred on 3 and 5 June 2006; and
(b)the meeting with Ms Bowler occurred after the second meeting.[156]

[156]Reasons [509].

It may be that her Honour would have reached the same conclusions had she been aware that the phone bills did not show whether or not Mrs Jarrold had phoned Ms Knight on 2 June 2006. Ms Knight said the meeting in respect of which she attended Mrs Jarrold’s home was on 7 June 2006.

However, because her Honour correctly regarded the phone bills as important evidence, I am satisfied that her Honour’s finding that they did not show a call by Mrs Jarrold to Ms Knight on 2 June 2006 is likely to have affected her assessment of Mrs Jarrold’s credibility and her decision that Mrs Jarrold had not received legal advice prior to the second meeting with Mr Jarrold. In turn, these matters are likely to have affected her Honour’s finding that Mrs Jarrold had not proved that Mr Jarrold had forged the power of attorney.

Her Honour’s findings not to accept critical aspects of Mrs Jarrold’s evidence affected the weight that she gave to the expert evidence. Her Honour stated that the expert evidence did not displace the ‘very grave doubts’ regarding the lay evidence relied on to prove that Mrs Jarrold did not sign the power of attorney.[157] The lay evidence which attracted ‘very grave doubts’ was principally the evidence of Mrs Jarrold.
[157]Reasons [701].

Her Honour’s conclusion that Mrs Jarrold had not proved that Mr Jarrold had forged her signature on the power of attorney was not the only ground relied on by Mrs Jarrold at trial, and on appeal, to establish her entitlement to half of the Sandringham property. Mrs Jarrold was joint registered proprietor of that property. Mrs Jarrold appealed on a number of grounds that related to her Honour’s findings as to her interest in the property.[158]
[158]Grounds 5–13.

Her Honour considered two matters relating to Mrs Jarrold’s interest in the property. The first concerned whether Mrs Jarrold had made financial contributions to the purchase price that might have supported recognition of her share in the Sandringham property. Her Honour repeated her earlier finding that she did not accept Mrs Jarrold’s evidence that she had contributed to the purchase price of the Heol Y Glen and Cowbridge properties in Wales. Her Honour then stated that, as it was not disputed that Mr Jarrold’s money was used to purchase the Sandringham property, the relevant principles were ‘those respecting resulting trusts and the presumption of advancement’.[159]
[159]Reasons [713].

I also consider that her Honour’s findings about Mrs Jarrold’s credibility are likely to have affected her conclusion that Mr Jarrold had rebutted the presumption of advancement and that Mrs Jarrold did not retain her legal interest as a joint registered proprietor in the Sandringham property. Her Honour stated that only the intention of Mr Jarrold was relevant to whether the presumption of advancement was rebutted. However, anything that assisted in the identification of Mr Jarrold’s intention was relevant. Mrs Jarrold’s evidence was relevant to that task. In Martin v Martin, Dixon CJ, McTiernan, Fullagar and Windeyer JJ, quoting from the judgment of Cussen J in Davies v The National Trustees Executors and Agency Co of Australasia Ltd,[160] stated:

‘It is impossible to try to arrange into certain sets of categories certain facts, and say beforehand they will or will not become decisive or immaterial. The attention must be kept steadily fixed on the one fact in issue—What was at the time the intention of the purchaser or transferor? Anything which is relevant to that issue is admissible. You may have the evidence of the purchaser or transferor himself, if he is alive, as to his mental condition in the past, and though in some circumstances such evidence should be received with caution, yet it may be accepted’. His Honour’s judgment, which contains a very clear formulation of the principles involved, makes it entirely a question of fact. The burden of proof is firmly placed upon the person asserting that a trust was intended but the issue depends upon the intention with which the property was purchased by the parent in the name of the child or the husband in the name of the wife or as the case may be. ‘If on the whole of the evidence the Court is satisfied’ said Cussen J ‘that the husband or father did not intend at the time of the purchase that his wife or child should take by way of advancement, the rule of law is that there is a resulting trust for the husband or father. Similar rules apply where a transfer or assurance of property is made without consideration by a husband or father to a wife or child. It has been suggested in some cases that the presumption in favour of advancement is stronger in the case of a transfer than it is in a case of a purchase; but although this may be so in some circumstances, I think that no substantial distinction applicable universally can be drawn’.[161]

[160][1912] VLR 397, 401–3.

[161](1959) 110 CLR 297, 304–5.

Her Honour rejected Mrs Jarrold’s evidence that her marriage lasted until 2002. The determination of whether Mr and Mrs Jarrold’s marriage existed in June 1999, when the Sandringham property was purchased, depended in large part upon the credibility given to Mr and Mrs Jarrold’s differing assessments of their relationship at that time. It is probable that the ‘grave doubts’ that her Honour held about Mrs Jarrold’s evidence also affected her Honour’s assessment of Mrs Jarrold’s evidence about whether the marriage was still in existence in June 1999.

Conclusion

As previously stated, her Honour’s assessment of Mrs Jarrold’s credibility was closely tied to findings of fact about her two meetings with Mr Jarrold in June 2006. I am satisfied that, because the trial judge’s assessment of critical aspects of Mrs Jarrold’s evidence concerning the events of the first week of June 2006 is likely to have been affected by the misinterpretation of Mrs Jarrold’s telephone bills, the appeal must be allowed and a new trial held.

- - -

Date/period	Destination	Called number	Total number of calls	Total Duration	Type of call	Total cost
12 Apr-15 Jun	Tonypandy	01443 436289	10	00:33:48	Daytime	0.918

[2015] VSCA 45

24 March 2015