Hudson v Thorp - [2000] WADC 185

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HUDSON -v- THORP [2000] WADC 185

CORAM: WILLIAMS DCJ

HEARD: 13 JULY 2000

DELIVERED : 19 JULY 2000

FILE NO/S: CIV 1724 of 1999

BETWEEN: PAUL HUDSON
Plaintiff
AND
RICHARD SYDNEY THORP
Defendant

Catchwords:

Deeds - Form and execution - Defendant alleging deed not duly executed.

Legislation:

Property Law Act 1969, s 9 (WA)

Result:

Plaintiff entitled to judgment pursuant to deed.

Representation:

Counsel:

Plaintiff: Mr G A Townsend
Defendant: Mr G Archer

Solicitors:

Plaintiff: Stables Scott
Defendant: Eley Palmer Archer

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

WILLIAMS DCJ: By a document dated 14 April 1997 between the plaintiff of the one part and the defendant of the other part, the defendant:
(a)Acknowledged that he was indebted to the plaintiff in the sum of $94,048.45.
(b)Undertook and agreed that in consideration of the plaintiff forbearing to take immediate action to recover the debt, he would pay interest at the rate of 28 per cent per annum on the debt.
(c)Undertook to pay the debt to the plaintiff by no later than 1 March 1999. (Exhibit 1).
The plaintiff alleges that the document is a deed. The defendant denies that the document is a deed and says that the document was not witnessed at the time of execution and therefore is not a deed pursuant to s 9 of the Property Law Act 1969.
The only issue before me in this action is whether or not the deed has been duly executed. It is common ground that the document contains the true signature of the defendant.
It is clear both from the document itself and the evidence that at the time of the signing of the document by the defendant that the defendant was indebted to the plaintiff in respect to certain monies.
According to the plaintiff sometime prior to 14 April 1997 the plaintiff considered that his exposure to the defendant was growing and he wanted to secure the monies owing to him.
About 10 days before 14 April 1997 he was approached by the defendant, who is his uncle, seeking further funds. The defendant was seeking the sum of $10,000 to "commercialise" a business being run by the defendant's then defacto wife.
Because the plaintiff did not have any security he decided that he would get a document drawn up to secure his position.
According to a report on the Word format within the plaintiff's computer, he first created such a document on 8 April 1997. That document is marked for identification as document No 2. It was objected to by the defendant. However I overrule the objection. In my view the document is admissible as the plaintiff's record of what work was done on his computer with respect to the document. The document should become Exhibit 2.
According to the plaintiff, after the creation of a document he provided the defendant with a copy. He considered that was probably on 9 April 1997.
It is clear from the evidence that document contains handwriting of both the plaintiff and defendant either adding additional information to the document or making amendments to the document. That document is Exhibit 3.
According to the plaintiff he gave a copy of that document to the defendant and they discussed it. After it was discussed he produced another document incorporating the requested amendments and a computer generated facsimile was sent to the defendant on 11 April 1997.
According to the plaintiff following the sending of the facsimile he had a telephone conversation with the defendant.
At that time both the plaintiff and the defendant and another were indebted to Sally Ramsey and Jill Pisani in the sum of $100,000. That debt was due to be discharged at 3 pm on 14 April 1997. The defendant had no funds to pay that sum and had arranged for the plaintiff to pay his share, namely $33,333.33. Additionally the defendant was seeking loan of $10,000 from the plaintiff.
According to the plaintiff he told the defendant that he wanted the document signed before he paid out any money. Arrangements were made to meet on Monday 14 April 1997 before the discharge of the debt to Ramsey and Pisani.
According to the plaintiff, on that day the defendant came to his unit at 41 Point Walter Road, Bicton where he resided with his mother. His mother was in fact the sister of the defendant. The purpose of the meeting was to execute the deed. According to the evidence of the plaintiff the document was executed by the defendant in the presence of his mother who signed the document as a witness. According to the plaintiff, both the defendant and his mother used the same pen. I accept that evidence. It appears to me that both signatures have been made with the same pen.
Prior to the defendant leaving, the plaintiff wrote out a cheque in the sum of $2,000. The cheque was dated 15 April 1997 because he was then waiting on funds. Thereafter he advanced the sum of $3,000, $2,500 and $2,500 in a short time making a total of $10,000. It is not disputed by the defendant that he received those sums.
In cross-examination it was put to the plaintiff that there was urgency on his part to have the document signed. The plaintiff did not accept that proposition. According to the plaintiff he had had heated discussions with the defendant over what monies the defendant owed him and the defendant was pushing for a further $10,000. He gave the defendant $2,000 on 14 April 1997 and three days later gave a further $3,000.
The plaintiff's evidence was supported by his mother Robin Hudson. She is the sister of the defendant. It was her evidence that in April 1997 she was living at Villa 2, 41 Point Walter Road, Bicton with her son. In April 1997 there had been angry telephone calls between the plaintiff and the defendant. It was her evidence that on the date that the document was signed she was at home. She saw the defendant sign the document and then she signed it in his presence.
Both the plaintiff and his mother were cross-examined as to the circumstances in which the signing took place at their home on 14 April 1997. According to the plaintiff there were three chairs around a table which was against the wall. The plaintiff and the defendant were standing at the time and his mother was sitting. According to his mother, the plaintiff and the defendant were standing and leaning over the table and she was sitting at the table. There were some discrepancies as to the positions of the three persons present in the room, but in my view nothing turns on it.
It was suggested to Mrs Hudson that she had an acrimonious relationship with her brother, but she denied that.
The defendant is some 19 years older than the plaintiff and is by occupation an accountant and a business consultant.
The defendant accepted that it was his signature on the document. According to his evidence he signed the document in his brother's shop at 493 Wellington Street, Perth. Only the plaintiff was present when he signed the document. According to the defendant the plaintiff wanted something in writing and he wanted to proceed to "commercialisation" of his defacto's business. He received several amounts from the plaintiff to make up the $10,000. According to his evidence the last time that he attended at the plaintiff's residence was in October 1995.
The defendant gave very little detail as to the circumstances leading up to the signing up of the document. According to him there had been a draft document and then arrangements were made to meet at his brother's business premises and that was where he signed the documents.
In evidence before me the defendant said on a number of occasions that he signed the document because he regarded it as "purely a proposal". For example on one occasion he said that when the plaintiff wanted to finalise the matter he had no problem with that. He regarded it as a proposal when he signed.
However in my view that is different from what he stated in an affidavit which he swore on 21 February 2000 in support of an application to set aside a default summary judgment. At that time he said as follows:
"16.The plaintiff presented me with a piece of paper (the "Deed" as pleaded by the plaintiff). I treated this document as a loan proposal.
17.I looked at the document and saw that it was expressed to be a deed, which requires a witness to my signature. I knew that there was no witness with us, so in order to start to discuss the issues contained within the document, I signed it."
The defendant accepted in evidence that what he was saying in that affidavit was that he knew as a matter of law that in order to constitute the document a deed his signature needed to be witnessed by another person. As there was no other person to witness his signature, he considered that the document was of no effect.
In my view that is different from saying that he regarded it purely as a proposal. In my view there is an inconsistency in the defendant's evidence in this respect.
The defendant accepts that the details set out in the document are correct.
The defendant accepted that he would not have had access to the sum of $33,333.33 that was to be paid over on that date and accepted that he received the $10,000.
The defendant's brother, Douglas Thorpe gave evidence. He was shown the document dated 14 April 1997 (Exhibit 1). It was his evidence that at some time his brother had shown him a copy of that document. At that time it was without stamping and without witnessing. All that was contained on the document was his brother's signature. He did not, however, recall the 14 April 1997.
I have no difficulty at all in accepting the evidence of the plaintiff and his mother in this respect. In my view they are both truthful witnesses. They both gave their evidence in a straightforward manner. The plaintiff explained the background of events leading up to 14 April 1997. The defendant said very little about those events. It is obvious the preceding events support the plaintiff's evidence. Clearly the defendant was under pressure, both as to the debt of $33,333.33 that was due to be paid on 14 April 1997 and the $10,000 which he wished to borrow from the plaintiff. The defendant was also indebted to the plaintiff for other amounts at that time. Clearly the pressure was on the defendant. The plaintiff was acting to secure his position with respect to the increasing indebtedness of the defendant to him.
It was the defendant's assertion that his signature to Exhibit 1 and that of his sister had been made by different pens. They appear to me to be made by the same pen and I do not accept the defendant's evidence in that respect.
In my view he has changed his story from the time of his affidavit in February 2000 and his giving evidence before me. He did not give any evidence of the background leading up to the signing of the document on 14 April 1997. The documentary evidence clearly supports the plaintiff's account of those events.
I do not accept the defendant as a witness of truth.
With respect to the defendant's brother, Douglas Thorp, I am unable to decide whether he is also telling lies in order to bolster his brother's case or whether he is simply mistaken. It may be the case that his brother showed him the facsimile that was sent to the defendant by the plaintiff. I find it difficult to accept that Douglas Thorp when he saw the document (at a time when he does not recall) would have made particular note that the document was unstamped and not witnessed. In any event, in my view Douglas Thorp's evidence does not assist the defendant as he is not able to give any evidence as to circumstances in which the document was signed.
It is my finding of fact that the document dated 14 April 1997 (Exhibit 1) was signed by the defendant at the plaintiff's premises at Bicton in the presence of Mrs Hudson who then duly witnessed the document. In my view the document has been duly attested and constitutes a deed.
There was no discussion before me as to the amount that should be entered by way of judgment and I will hear the parties with respect to the orders that should be made.