Jarrold v Isajul

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6646 of 2010

CLARE MARGARET JARROLD	Plaintiff
V
ISAJUL ENTERPRISES PTY LTD (t/as CONVEYANCING MELBOURNE (ACN 106 047 787)	First Defendant
JOANNE IBRAHIM	Second Defendant
THE REGISTRAR OF TITLES	Third Defendant
~~HODGES SANDRINGHAM PTY LTD (ACN 106 047 787)~~	~~Fourth Defendant~~
TELVIN JARROLD	Fifth Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	10, 11, 15, 16, 17, 18, 22, 23, 29 October 2012
DATE OF JUDGMENT:	10 September 2013
CASE MAY BE CITED AS:	Jarrold v Isajul
MEDIUM NEUTRAL CITATION:	[2013] VSC 461

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TORTS – NEGLIGENCE – Plaintiff claims a one half legal interest in a property bought by the fifth defendant and allegedly sold without her knowledge – Plaintiff claims that the first and second defendant were negligent in respect of the handling of the conveyance for the sale of the property in dispute – Plaintiff settled claim as against the first and second defendant on the second day of the trial

REAL PROPERTY – TORRENS SYSTEM – ENTITLEMENT TO STATUTORY INDEMNITY – Whether plaintiff entitled to indemnity by the third defendant for the loss and damage suffered by her as a result of the sale of her interest in the property – Transfer of Land Act1958 s 110 – Third defendant joined the fifth defendant to the proceeding

EVIDENCE – STANDARD OF PROOF – Plaintiff claims that fifth defendant forged power of attorney – Whether the plaintiff has satisfied the Court that the power of attorney was forged – Briginshaw v Briginshaw (1938) 60 CLR 336 – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 – Evidence Act 2008 s 140(2) – Credibility of the lay witnesses – The expert evidence on handwriting – Gawne v Gawne (1979) 2 NSWLR 449

TRUSTS – PRESUMPTIONS – ADVANCEMENT – RESULTING TRUST – Contributions to the Purchase Price – Whether the presumption of advancement rebutted – Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 – Martin v Martin (1959) 110 CLR 297 – Pearson v Pearson [1961] VR 693 – Cummins v Cummins, (2006) 227 CLR 278 – Relationship between the plaintiff and fifth defendant – Whether fifth defendant intended plaintiff’s legal interest be held on trust for him

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. W. K. Burnside QC Ms G. A. Costello	Slater & Gordon Lawyers
For the 1^st and 2^nd Defendant	Mr M. Robins	HWL Ebsworth Lawyers
For the 3^rd Defendant	Mr B. Gillies	Land Victoria Legal
For the 5^th Defendant	Mr S. Pitt	Mills Oakley Lawyers

TABLE OF CONTENTS

Introduction

The Legal Issues
The Standard of Proof in relation to the Forgery Allegation
The Standard of Proof in relation to the Interest Issue Allegation
General Comments on the Evidence
The Allegation that Mrs Jarrold’s Signature on the Power of Attorney Was Forged
The Lay Evidence in respect of the Forgery Allegation
The Expert Handwriting Evidence
The Evidence in relation to the Interest Issue
The Evidence in relation to Mr Jarrold’s Credibility

The Facts

The Relationship of Mr and Mrs Jarrold
Mr Jarrold’s Daughter
The Death of Mr Jarrold’s Son
The Decision to Separate
The Decision to Go to Australia
The Jarrold’s Trip to Melbourne in January 1999
Conversation on the Way to Australia
Relationship in Melbourne
The Joint Bank Account at the ANZ Bank
Purchase of the Sims Street Property
The Decision to Sell Heol Y Glyn and Buy Cherry Tree Avenue
The Sale of Heol Y Glyn, 6 Cairo Street, the Purchase of Cherry Tree Avenue for Mrs Jarrold and Mr Jarrold’s Permanent Move to Australia
The Sims Street Property Destroyed by Fire in April 2000
Mr Jarrold’s Visit to Wales in June 2000
Mrs Jarrold’s Visit to Melbourne in May/June 2001
The Commencement of Mr Jarrold’s Relationship with Ms Scanavino in Late 2001
Mr Jarrold Closed the ANZ Joint Bank Account
The Rebuilding of the House in Sims Street
When Mrs Jarrold Found Out that Mr Jarrold Was in Another Relationship
The Length and Intimacy of the Jarrolds’ Relationship
Mr Jarrold’s Evidence
Mr Jarrold and Ms Scanavino Travel to Europe in May and June 2006
The First Meeting
Mrs Jarrold’s Version of the First Meeting in June 2006
Cross-examination of Mrs Jarrold
Mrs Jarrold’s Earlier Statements on the First Meeting in June 2006
Mr Jarrold’s Version of the First Meeting in June 2006
After the First Meeting
What Mr Jarrold Did After the First Meeting
Mrs Jarrold’s Telephone Calls and Visit to Morgan Cole
The First Telephone Call
The Visit to the Solicitor’s Office
The Evidence of Mrs Garland
The Hearsay Evidence of Ms Bowler
The Hearsay Evidence from Morgan Cole
Mrs Jarrold’s Telephone Call to Ms Knight
The Second Meeting
The Evidence of Ms Knight as to the Second Meeting
The Evidence that the Meeting Took Place on 7 June 2006
Ms Knight’s Revised Evidence as to the Date of the Second Meeting
Ms Knight’s Evidence on the Substance of the Meeting
Mrs Jarrold’s Version of the Second Meeting in June 2006
Mrs Jarrold’s Earlier Statements on the Second Meeting in June 2006
Mrs Jarrold’s Cross-examination
Mr Jarrold’s Version of the Second Meeting in June 2006
Mr Jarrold’s Cross-examination
What Mr Jarrold Did After the Second Meeting
Mrs Jarrold’s Evidence of a Telephone Call to Ms Bowler ‘at Some Point’
The Deeds to Cherry Tree Avenue
The Sims Street Auction in October 2006
Mrs Jarrold’s Meeting with Ms Thompson, Solicitor, in February 2007
The Telephone Conversation between Mr and Mrs Jarrold on or around 13 May 2007
Mr Williams’ Visit to the Sims Street Property in June 2007
The Statutory Declaration Sworn by Mrs Jarrold on 16 July 2007
Mrs Jarrold’s Land Registry Letter Dated 22 March 2008
Mrs Jarrold’s First and Second Statements Sent to the Victorian Police in August 2008.
Mrs Jarrold’s October 2012 Statement

Other Matters Relied on by Mrs Jarrold

The Development and Payment of the Land and House at Heol Y Glyn and Its Subsequent Sale
Mrs Jarrold’s Property at 6 Cairo Street
Purchase of Farming Land at Cowbridge and Mrs Jarrold’s Alleged Loan or Gift of £15 000 to Mr Jarrold
The Sale of the Farming Land at Cowbridge, including Fishweir
The Signing of the Transfer for the Sale of Fishweir
The Financial Contributions during the Marriage
Mrs Jarrold’s Evidence
Mr Jarrold’s Evidence
Holidays
Mr Jarrold’s Divorce Petition in 2010
Mr Jarrold’s Occupation
Mr Jarrold’s Failure to Pay Capital Gains Tax
Findings on the Other Matters Relied on by Mrs Jarrold
Amounts from £5000 to £10 000 and £20 000 Given to Mr Jarrold
The House in Heol Y Glyn
The Sale Proceeds from the Sale of Cherry Tree Avenue
The Backdating of Documents for the Sale of Heol Y Glyn
6 Cairo Street
The Surplus Funds from the Sale of Heol Y Glyn and the Purchase of Cherry Tree Avenue
The Loan or Gift of £15 000 to Mr Jarrold
The Sale of the Farmland, including the Fishweir block, by Mr Jarrold without Mrs Jarrold’s Knowledge
The Signing of the Fishweir Transfer
The Payment of the Bills, Housekeeping and Other Household Expenses
The Assertion that Mr Jarrold Was Unable to Be Found
The Alleged False Statements in Mr Jarrold’s Divorce Documents
Mr Jarrold’s Occupation
The Failure of Mr Jarrold to Pay Capital Gains Tax in 2007

Credibility of the Witnesses

The Forgery Allegation

The Relevance of the Dates of the Two Meetings in June 2006
Mrs Jarrold’s Contentions at the Trial that the Dates of the Two Meetings Were 1 and 3 June 2006
The Evidence of the Conversations during the Meeting with Ms Bowler
The Evidence concerning the First Meeting in June 2006
The Evidence concerning the Second Meeting in June 2006
Events after the Second Meeting in June 2006
Adverse Inference against Mr Jarrold because of the Loss of the Original and Certified Copies of the Power of Attorney
The Evidence of the Handwriting Experts
The Evidence of Dr Strach
The Specimens
Comparison
Analysis of Dr Strach’s Evidence
Prejudgment
Lack of Independence
Counsel for Mrs Jarrold’s Submissions
Conclusions
The Evidence of Mr Holland
Methodology
Observations and Conclusions
Comparison of Final Report with Earlier Reports
Analysis of Mr Holland’s Evidence
Change of Opinion
The Fact of Reproduction
Limited Number of Samples
Failure to List Similarities in Second Report
Alleged Differences in First Report
Conclusions
The Evidence of Mr Lacroix
Forensic Limitations
Methodology
Observations and Conclusions
Consideration of the Reports of Mr Holland and Mr Westwood
Comparison of Final Report with Earlier Reports
Analysis of Mr Lacroix’s Evidence
The False Attribution of Specimens to Mr Jarrold
Experience
Plagiarism
Conclusions
Did Mr Jarrold Forge Mrs Jarrold’s Signature on the Power of Attorney?
Conclusions
The Experts
Findings

What Is the Nature of Mrs Jarrold’s Interest in the Sims Street Property?

Contributions to the Purchase Price
Presumption of Advancement — Applicable Legal Principles
The Relationship of Mr and Mrs Jarrold
The Intention of Mr Jarrold

Conclusion

HER HONOUR:

Introduction

This proceeding concerns the sale of a property known as 29 Sims Street, Sandringham (‘the Sims Street property’). It was purchased on 22 June 1999 in the joint names of the plaintiff, Clare Margaret Jarrold (‘Mrs Jarrold’), and the fifth defendant, Telvin Irvin Jarrold (‘Mr Jarrold’), with Mr Jarrold’s money.

Mrs Jarrold claims that, because she and Mr Jarrold purchased the Sims Street property as joint tenants, she is entitled to one half of the interest in the Sims Street property. Mr Jarrold disputes the claim by Mrs Jarrold.

Mr Jarrold sold the Sims Street property on 13 November 2006, with the whole of the proceeds of sale, less expenses, being paid to him.

In respect of her claimed interest in the Sims Street property, Mrs Jarrold alleges that Mr Jarrold sold the Sims Street property using a forged power of attorney dated 5 June 2006 (‘the power of attorney’), which document authorised Mr Jarrold to ‘only to sign all documents to effect the sale of the property at 29 Sims Street, Sandringham, 3191, Victoria, Australia’.

Mrs Jarrold claims that she did not sign the power of attorney and did not give Mr Jarrold the authority to sell her interest in the Sims Street property or to receive any sale proceeds.

Mr Jarrold claims that Mrs Jarrold signed the power of attorney in his presence on 5 June 2006 at Mrs Jarrold’s home in Porthcawl, Wales. Mr Jarrold contends that he sold the Sims Street property using the power of attorney as authority to sign the sale documents on behalf of Mrs Jarrold and then put the proceeds of sale into his bank account. Mr Jarrold claims that at all times he had the authority of Mrs Jarrold to do so. He states that Mrs Jarrold held her interest in the Sims Street property on trust for him.

On 9 December 2010, Mrs Jarrold issued proceedings against the first defendant, a conveyancing company trading as Conveyancing Melbourne Suburbs, the second defendant, a director of the first defendant, and the third defendant, the Registrar of Titles.

Against the first and second defendants, Mrs Jarrold sought damages for negligence. On the second day of trial, Mrs Jarrold settled with the first and second defendants, on the basis that the first and second defendants would pay the sum of $160 000 to Mrs Jarrold in settlement of the claims made against them.

Against the Registrar of Titles, Mrs Jarrold seeks indemnity pursuant to s 110 of the Transfer of Land Act 1958 (‘the Act’) for the loss and damage suffered by her as a result of the sale of her interest in the Sims Street property.

At no stage did Mrs Jarrold seek to add Mr Jarrold as a defendant to the proceeding. Mr Jarrold was joined to the proceedings on the application of the first and second defendants by orders made on 9 March 2011.

On 18 June 2012, the Registrar of Titles served a notice on Mr Jarrold claiming contribution or indemnity. The notice claims indemnity against Mr Jarrold, pursuant to s 109(3)(a) of the Act, on the basis that Mr Jarrold is the person responsible for causing any loss or damage sustained by Mrs Jarrold.

Mr Jarrold filed an appearance in the proceeding on 18 July 2012 and a defence on 15 August 2012.

In its amended defence dated 17 October 2012, the Registrar of Titles says:

a)that Mrs Jarrold did sign the power of attorney and did give Mr Jarrold authority to sell her interest in the Sims Street property;
b)that pursuant to s 110(3)(a) of the Transfer of Land Act 1958 that Mrs Jarrold caused or substantially contributed to her own loss by neglect or wilful default where she knew or ought to have known that Mr Jarrold wished to sell the Sims Street property;
c)at all material times:

i) Mrs Jarrold did not contribute towards payment for the purchase, financing, upkeep, maintenance, or development of the Sims Street property, and all such payments were made by Mr Jarrold and Grace Scanavino;

ii) the Sims Street property was treated by Mrs and Mr Jarrold as belonging solely to Mr Jarrold; and

iii) during their marriage Mrs and Mr Jarrold maintained separate bank accounts and conducted their financial affairs separately;

d)by reason of the above matters, it would be unconscionable for the plaintiff to assert or retain the benefit of a half interest in the Sims Street property, or the benefit of payments made by Mr Jarrold and Ms Scanavino to the purchase, finance, maintenance and development of the Sims Street property; and
e)by reason of the foregoing matters Mrs Jarrold’s legal interest in the Sims Street property was held on trust for Mr Jarrold and Ms Scanavino, either wholly, or to the extent of their payments, or alternatively Mr Jarrold and Ms Scanavino were entitled to a remedy against Mrs Jarrold of an imposition of a constructive trust in his favour either to the whole extent of her interest or as to the extent of their payments.

In her reply, Mrs Jarrold contended that Mr and Mrs Jarrold purchased the Sims Street property as joint tenants from joint funds and held it in equal shares.

The trial of this proceeding commenced on 10 October 2012.

The Legal Issues

The legal issues to be determined in this proceeding are:

a)Whether Mrs Jarrold signed the power of attorney used by Mr Jarrold to effect the sale of the Sims Street property; and
b)Whether Mrs Jarrold’s legal interest in the Sims Street property should be affected by the doctrines of equity.

The Standard of Proof in relation to the Forgery Allegation

Where an allegation of forgery is made, the Court applies the standard of proof as set out in Briginshaw v Briginshaw (‘Briginshaw’)[1] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (‘Neat Holdings’)[2] as that standard is applied under s 140(2) of the Evidence Act 2008.
[1](1938) 60 CLR 336.
[2](1992) 110 ALR 449.

The Standard of Proof in relation to the Interest Issue

Mrs Jarrold relies on the joint ownership and the nature of Mr and Mrs Jarrold’s relationship to contend that the Sims Street property was acquired with the intention of being owned in equal shares and, in such circumstances, there is a presumption that the purchase or transfer was intended as a gift or an advancement, in the absence of a clear intention to the contrary.

Mr Jarrold and the Registrar of Titles contend that the presumption of advancement is negatived because it was the intention of Mr Jarrold that Mrs Jarrold hold her legal interest in the Sims Street property on trust for Mr Jarrold.

The burden of proof of intention negativing the presumption of advancement is on Mr Jarrold.[3] The relevant intention is determined at the time of the purchase of the property.[4]
[3]Martin v Martin (1959) 110 CLR 297, 304 (Dixon CJ, McTiernan, Fullagar, Windeyer JJ).
[4]Ibid.

General Comments on the Evidence

The evidence in the proceeding covers the period from 1988 to 2010. The relevant time for the determination of the interest issue is 1999, when the Sims Street property was purchased and registered in the joint names of Mr and Mrs Jarrold. The relevant period for the forgery allegation is in June 2006 when Mrs Jarrold contends that Mr Jarrold asked her to sign a power of attorney and she refused to do so.

Most of the lay evidence in the proceeding was oral and therefore, by its nature, recollections of events that took place many years ago. There are obvious difficulties arising from fading memories and a witness’s tendency to tailor the evidence to suit his or her case.

Where the recollection of the witnesses is relied upon, any contemporaneous materials are of assistance in determining the facts. Determining what happened at any particular time in this proceeding is hindered by the limited amount of contemporaneous documentary evidence and the fact that the oral evidence clashed on most issues. Where uncontentious contemporaneous records supported the oral evidence, I found that evidence to be the most reliable evidence.

Mr and Mrs Jarrold also attacked the credit of each other and the witnesses called on their behalf. The credit issues related to matters covering the period from 1988 until 2010. Within that period, Mr and Mrs Jarrold were married, lived together and then separated.

The Allegation that Mrs Jarrold’s Signature on the Power of Attorney Was Forged

The power of attorney document dated 5 June 2006 is central to the issue of the forgery allegation made by Mrs Jarrold.

The first page of the power of attorney contains the following words:

GENERAL POWER OF ATTORNEY
CLARE MARGARET JARROLD (donor)
TELVIN IRVIN JARROLD (ATTORNEY)
Dated: 5/06/2006

On the second page of the document are the following words:

This General Power of Attorney is made the 5 day of June 2006,
By CLARE MARGARET JARROLD (donor) of 29 Sims Street Sandringham, 3191, Victoria, Australia, in the state of Victoria under section 107(1) of the Instruments Act 1958
I appoint TELVIN IRVIN JARROLD of 29 Sims Street, Sandringham, 3191, Victoria, Australia, to be my attorney.
I authorize my attorney to exercise the authority conferred on my attorneys to do on my behalf anything I may lawfully authorise an attorney to do subject to the following restrictions:
This power is given only to sign all documents to affect the sale of the property at 29 Sims Street, Sandringham, 3191, Victoria, Australia.
SIGNED SEALED AND DELIVERED by
CLARE MARGARET JARROLD …………………………..
Donor’s signature

The original power of attorney document is no longer available. Only copies of a certified copy of the original power of attorney are available. Mr Jarrold and Ms Scanavino gave evidence that they had searched for the original document but did not find it. Mr Jarrold said he kept all the documents relating to the Sims Street property in a box when he lived in Australia. In 2008, he moved to France. When he became aware of this proceeding in June 2012, both he and Ms Scanavino searched his house ‘inside out’ looking for the box but were not able to find it.

In addition to the lay evidence, each party called expert evidence from handwriting experts. The experts agreed that their examination of the signature on the power of attorney was hindered or limited because they were required to examine a photocopied signature, the original power of attorney no longer being available. They said that examination of a reproduction precluded a microscopic examination to determine the finer details of signature structure and dynamic qualities of the signature.

The Lay Evidence in respect of the Forgery Allegation

Mr and Mrs Jarrold gave evidence of two meetings that took place between them in June 2006. Only Mr and Mrs Jarrold were present at these two meetings. When the second meeting took place, Mrs Jarrold’s neighbour, Ms Sheila Knight, was in Mrs Jarrold’s house in an upstairs room and did not hear the conversation between Mr and Mrs Jarrold, apart from the murmuring of their voices. The fact that two meetings occurred between Mr and Mrs Jarrold in June 2006 was not in dispute, but the date of each of those meetings is in dispute.

At the trial, Mrs Jarrold said that she was never sure of the dates of the two meetings, 5 and 7 June 2006, which she put in a number of statements and in correspondence prior to commencing these proceedings, but that she did her best.[5] She now accepts that she was mistaken about the meeting dates referred to in the documents and her pleadings. At the trial, her evidence was that the meetings took place on 1 and 3 June 2006. She gave those dates relying on her telephone record for June 2006.
[5]Note: in particular, Mrs Jarrold put those dates in her Land Registry letter and the two statements.

Mr Jarrold said that the two meetings took place on 3 and 5 June 2006. His partner, Ms Scanavino, was travelling with him in June 2006. Although she was not at the meetings, she gave evidence as to what she and Mr Jarrold were doing on the days from 1 June to 7 June 2006.

There is some contemporaneous documentary evidence of the two meetings, namely the power of attorney; a handwritten note of Ms Knight in her diary (both of which are contentious); Mrs Jarrold’s telephone account for June 2006; and Mr Jarrold’s travel records and photographs, which indicate his whereabouts in the days immediately after the second meeting.

Mrs Jarrold called Ms Knight and her friend, Mrs Jill Garland, to give evidence. Mrs Jarrold also relied on hearsay evidence of Mrs Jarrold’s solicitor, Ms Rachel Jones. The evidence relates to the plaintiff’s interactions with Ms June Bowler, a solicitor who formerly worked at the firm of Morgan Cole in Cardiff, and as to any records the firm retained in respect to Mrs Jarrold’s contact with Ms Bowler in June 2006.

Mrs Jarrold also relied on certain documents that set out her version of what occurred at the two meetings in June 2006. These documents were prepared and signed by her approximately two years after the two meetings in June 2006. Mrs Jarrold relies on actions taken by her in the years after the two meetings. These documents and actions are as follows:

a)in February 2007, Mrs Jarrold said that she had consulted a solicitor, Ms Elizabeth Thompson, for the purpose of getting an idea of ‘what type of settlement she could expect in the event of a divorce’ from Mr Jarrold;
b)on or around 13 May 2007, Mrs Jarrold spoke by satellite telephone with Mr Jarrold while he was sailing his boat. The content of the telephone call differs in the evidence given by each of Mr and Mrs Jarrold. Mrs Jarrold said in her evidence that she asked Mr Jarrold whether he was selling the Sims Street property and coming home to Wales and, in her cross-examination, she said that she did not mention selling the Sims Street property. Mr Jarrold said in his evidence that Mrs Jarrold asked whether the Sims Street property was sold and he told her that it had been sold;
c)Mrs Jarrold contends that, as a result of the May telephone call, she asked her brother, Mr Hugh Williams, to go to the Sims Street property. In June 2007, Mr Williams was told by the occupants of the Sims Street property that they were its owners. Mrs Jarrold says that this was when she learned that the Sims Street property had been sold;
d)a statutory declaration dated 16 July 2007 (‘the statutory declaration’) prepared by Mrs Jarrold’s then solicitor in Wales stating that she did not sign a power of attorney. Mrs Jarrold says she had the declaration drawn up because she was suspicious and she made the declaration before she saw the power of attorney and before she became aware of the ‘fraudulent sale’;
e)an email on 8 August 2007 from a solicitor in Melbourne, Mr Joseph Rose, attaching a copy of the power of attorney, which was the first time Mrs Jarrold says that she saw the copy power of attorney;
f)a letter by Mrs Jarrold to the Land Registry in Melbourne dated 22 March 2008 (‘the Land Registry letter’) alleging fraud in the sale of the Sims Street property. Mrs Jarrold’s evidence was that when she sent the Land Registry letter she was satisfied at that time that it was correct;
g)two statements (the ‘first statement’ and the ‘second statement’ respectively) by Mrs Jarrold and sent by her to the Victorian police in August 2008. Mrs Jarrold gave evidence that Mr Aled Watkins, a solicitor of the firm Martyn Prowel in Cardiff, assisted her with the two statements. She said that she dictated the contents of the two statements to Mr Watkins. Her evidence was that, at the date of the statements, she thought there were errors in them but they were not serious errors and the statements were ‘good enough for the time being’. Mrs Jarrold said she wanted the police to have something in writing and see what happened after that. The two statements were amended by Mrs Jarrold on 9 October 2012, one day before the trial commenced;[6] and
h)a further statement by Mrs Jarrold dated 9 October 2012 (‘the October 2012 statement’) given to the Victorian police, one day before the trial commenced.
[6]Note: amendments in the two statements referred to in this judgment are identified with the words in italics being the additional words and the deleted words being crossed through.

The Expert Handwriting Evidence

Mrs Jarrold called Dr Steven Strach of Forensic Document Services; the Registrar of Titles called Mr Neil Holland of Scientific Document Services Pty Ltd; and Mr Jarrold called Mr Adrian Lacroix of Forensic Document Examiners Pty Ltd.

Within the confines of the agreed limits placed on the experts by examining a photocopied signature,[7] the experts came to different conclusions.
[7]See above paragraph [28].

Dr Strach concluded in his report dated 9 October 2012 that the signature on the power of attorney was unlikely to have been written by Mrs Jarrold and that the signature was probably the product of someone attempting to simulate her signature. He concluded that the evidence before him was supportive of the proposition that the signature could be attributed to Mr Jarrold but said that this was far from a certain conclusion.

Mr Holland found in his first report dated 9 November 2011 that it was highly probable that the signature on the power of attorney was written by Mrs Jarrold.

Mr Lacroix found in his preliminary report dated 10 September 2012 that there was qualified support for the proposition that the signature on the power of attorney was written by Mrs Jarrold.

Mr Holland prepared a further report dated 8 October 2012 and, upon the basis of further signatures of Mrs Jarrold being provided to him, concluded that it was highly probable that it was not Mrs Jarrold’s signature on the power of attorney.

A third report by Mr Holland dated 14 October 2012 refers to a meeting between the experts and refers to a joint report prepared by them in relation to their comparison of the signature on the power of attorney and Mrs Jarrold’s signature on other documents.

The joint report is dated 12 October 2012. In that report, the conclusions reached by Dr Strach in his report dated 9 October 2012 and Mr Holland in his report dated 8 October 2012 remain the same for the same reasons. Mr Lacroix’s view was that the evidence was inconclusive whether the signature on the power of attorney was that of Mrs Jarrold. Mr Lacroix wrote that his reasons for this view would be provided in a further report to be delivered by him.

Mr Lacroix prepared a report dated 17 October 2012 that set out his reasons for the view was that the evidence was inconclusive whether the signature on the power of attorney was that of Mrs Jarrold.

A second joint memorandum by the experts dated 18 October 2012 dealt with the issue whether the signature on the power of attorney was written by Mr Jarrold. Dr Strach concluded that there was evidence supportive of the proposition that the signature could be attributed to Mr Jarrold, but this conclusion was far from certain and was not a conclusion expressed in terms of qualitative probability, by which he meant that it could not be ruled out that the signature was written by someone other than either Mr or Mrs Jarrold. Mr Holland was in agreement with Dr Strach’s conclusion, with both of them noting that the conclusion was far from being a certain one. Mr Lacroix’s view was that he could not arrive at any conclusion as to whether the signature on the power of attorney was written by the writer of the specimen signatures attributed to Mr Jarrold.

The Evidence in relation to the Interest Issue

In relation to the interest issue, Mrs Jarrold relied on the registration of the Sims Street property in her and Mr Jarrold’s joint names when they purchased the property in 1999. She also relied on evidence of her committed relationship with Mr Jarrold from 1988 until the purchase of the property. In addition, she relies on the evidence of her brother, Mr Williams, as to his observations of the relationship in 1999 and the Land Registry letter, her first and second statements, as amended, and her October 2012 statement.

Mr Jarrold relies on his evidence that, before April 1998, he and Mrs Jarrold had grown apart and the marriage was coming to an end. After the death of his son in April 1998, his only concern was to look after his daughter, Victoria, who had ongoing problems with drug addiction. He wanted to start a new life in Melbourne after the death of his son. By the time they travelled to Melbourne in January 1999, Mr Jarrold states that they knew the marriage was ending and they went to Melbourne to find a house for him to live in. Before he purchased the Sims Street property, he said his intention, as communicated to Mrs Jarrold, was to put the property in joint names so that, if anything happened to him, she would be able to sell it and make sure it went to Victoria so that she was looked after. Mrs Jarrold and she said that she would and Mr Jarrold trusted her.

The Evidence in relation to Mr Jarrold’s Credibility

As to Mr Jarrold’s credit generally, Mrs Jarrold also relied on the following matters:

a)she was owed various amounts of money that she either gave or lent to Mr Jarrold in the early years of the marriage and that Mr Jarrold owed her money for all of the household expenses and housekeeping that she paid during the time they lived together;
b)she had never seen the deeds to the property they both lived at 33 Heol Y Glyn (‘Heol Y Glyn’) in Wales from 1991 until it was sold in 2000. Mrs Jarrold contended that, when the property was sold, Mr Jarrold produced ‘documents backdated without explanation’;
c)in 1998 Mr Jarrold sold a farming property at Cowbridge in Wales without her knowledge. This included a block of land known as ‘Fishweir’, which was registered in her name, and she maintains that she did not sign the transfer of land;
d)a property known as 6 Cairo Street, purchased by her and registered in her name, was an investment for Mr Jarrold for him to do whatever he wanted to with it and that he worked on the property but lost interest in it before the work was completed;
e)Mrs Jarrold alleged in her pleadings, on issue and amendment, that Mr Jarrold was not able to be found, and in the Land Registry letter said that he left Australia ‘by means of his ocean going yacht’ and ‘has not left a forwarding address’;
f)various divorce papers prepared and signed by Mr Jarrold in Wales in 2010 in which Mrs Jarrold contended that ‘false statements’ were made by Mr Jarrold;
g)Mr Jarrold described himself as a civil engineer, though he was not qualified as an engineer; and
h)Mr Jarrold failed to pay capital gains tax when, in 2006, he sold an apartment he owned in Beach Road Hampton.

The Facts
The Relationship of Mr and Mrs Jarrold

Mr and Mrs Jarrold married on 15 July 1988. It was a second marriage for both of them. Both had two adult children from their first marriages. Mrs Jarrold’s children were Dean and Kaye and Mr Jarrold’s were Ian and Victoria.

In her October 2012 statement, Mrs Jarrold said:

In 1988 I was married to Telvin Irwin Jarrold and the marriage took place in Wales. We had both been married before and had children to two different marriages. I sold my house and we went to live in his bungalow. I was working as a schoolteacher and Telvin was a builder.

Mr Jarrold’s evidence was that, when they met, Mrs Jarrold was a student, having just qualified as a junior schoolteacher. He said Mrs Jarrold’s first job was at the local school in Nelson and she started working there after they married. Mr Jarrold said that Mrs Jarrold worked on a contract basis for periods of six or 12 months when she was a teacher. He said that Mrs Jarrold told him that ‘she was a student, and prior to that she was a nursery assistant’.

When they married, Mrs Jarrold owned a house at Morton Terrace, Tonypandy, in the Rhondda Valley in Wales. Mr Jarrold owned a bungalow in Nelson, in Wales. After they married, they lived in Mr Jarrold’s bungalow. In 1991, they moved to Heol Y Glyn and lived in the house that Mr Jarrold had built.

In her second statement, as amended on 9 October 2012, Mrs Jarrold described her marriage to Mr Jarrold as follows:

I got on well with his daughter but didn’t see much of his son before our marriage, I later learned that he was devastated by his father’s decision to marry again and refused to acknowledge me for a long time. … The relationship between my husband and his son had little effect on my daily life, I was unclear, or not given information, of events — this lack of communication also applied to much of my husband’s business dealings — and I had my own responsible employment and my daughter’s young children to occupy my time … After our marriage I began to realize how controlling and stubborn [Mr Jarrold] could be … over time he quarreled [sic] [with all his family] yet apart from Mr Jarrold, as a family unit they all ~~got~~ seemed to get on well together. As a wife there was never any question as to where my loyalties lie, and although I was not always privy to what the causes of such rifts were I was expected to be the dutiful wife and support him in his actions. I challenged him once over a family matter and he ignored me for five months, refusing to speak or include me in his life. My husband wanted all the qualities a wife would bring to a marriage while his commitment remained only marginal. I married again at the age of forty-four believing I had found companionship, we did take some holidays, but there was no social life or outings, without my family and friends life would have been very humdrum indeed.

Mr Jarrold said that his relationship with Mrs Jarrold was always amicable and there were never any problems but they never spent any time together. He said Mrs Jarrold wanted different things, even in their social life. He wanted to go in one direction and Mrs Jarrold wanted to go to another. She wanted to spend time with her friends. He said that one of her friends had a son who played the guitar in pubs and clubs and she wanted to spend a bit of time with them on the weekends. He said that he did go occasionally but sitting in pubs and clubs was not his scene. He said that Mrs Jarrold was not a drinker but that they just wanted different things. He said that their relationship was always amicable and they had never been enemies.

He said that the marriage was ‘separating’ at least 12 months before his son died in April 1998 and that they had quite a few talks about it when they walked the dog. They talked about separation and the marriage coming to an end and they had already decided that it was not going anywhere, they were just living their lives and going through the motions and they had grown too far apart.

He said that, by the end of 1998, his relationship with Mrs Jarrold was still friendly, still amicable and there were not any problems, but they just never spent any time together. Mr Jarrold said that he could not see any future for the marriage.

Mr Jarrold said that he looked at Mrs Jarrold as a good friend and he thought that in all the time they knew each other they had never had a real argument and there had never been a problem between them. He said even after they split up he saw Mrs Jarrold as a good friend.

Mr Jarrold’s Daughter

Mr Jarrold said that his relationship with Victoria is ‘not close’ and ‘not easy’. She has had problems with drug addiction over the years. He explained that he had tried to help her over the years but it had been a battle for him. Victoria had been living on welfare benefits on and off for years and she had also worked part time as a hairdresser and in a laboratory. He said that Victoria is a clever girl but she went ‘so much on the wrong road’ and, despite trying so many times, he has been unable to get her back. He said that one of the reasons why he moved from Nelson was so that he would be living closer to Victoria and her partner. He said it has been a battle and he has not given up with her.

He said that Victoria’s partner was also on drugs and some time ago he went to jail for fourteen years because he was caught with drugs in his car. He said he always knows where Victoria is living because his brother, Mr Wayne Jarrold, monitors Victoria for him and his sister, Elaine, is in regular contact with her. His sister Elaine helped Victoria to become qualified as a hairdresser.

Mr Jarrold said that Mrs Jarrold saw his daughter regularly and that, when his daughter was a student nurse, she would come to the house to shower and change and she did some tidying up and washed dishes. He believed that Mrs Jarrold gave her some money for doing that. He thought that this occurred for about 12 months.

The Death of Mr Jarrold’s Son

On 25 April 1998, Mr Jarrold’s son, Ian, died as a result of motorbike accident. He was aged 29 years. Mr Jarrold said that, just before the accident, his son was on his way to the farm at Fishweir to check on the animals.

Mrs Jarrold said that Mr Jarrold was devastated by his son’s death. In her second statement, she described Mr Jarrold as ‘completely devastated by this tragedy’. In cross-examination, she agreed that the death of his son had a profound and devastating effect on Mr Jarrold and that, as a result, he was very depressed. She said that he never told her that he was suicidal. She said he wanted to move away from the house because it had bad memories for him.

Mr Jarrold gave evidence that, after Ian died, his world was finished, that it fell apart. He said that he lost concentration and motivation and he stopped work immediately. At the same time, he said his daughter, Victoria, was also having problems with drug addiction. He said that sometime after his son died, he said to Mrs Jarrold that Victoria is now the only person he needed to look after. In contrast, in re-examination, Mrs Jarrold’s evidence was that the last time she discussed Victoria and her circumstances with Mr Jarrold was when she was in trouble with the law again, in 1996 or 1997.

Mr Jarrold said that, shortly after his son’s death, Mrs Jarrold also gave up work. She told him that she did not need to work anymore as she was very comfortable and, because her daughter was working shifts, she wanted to be there for her grandchildren. He said this was mentioned a few times after his son’s death when they went walking with the dog and they talked about the marriage coming to an end and that they were growing far apart.

Mr Jarrold said that Mrs Jarrold told him she had a few pensions she would be drawing on in a few years and she said that as long as she had a house she would be happy. Mr Jarrold said Mrs Jarrold had saved all her earnings when she was living with him and she was well looked after by him during the marriage.

In her first statement, Mrs Jarrold said:

A short while after his son’s death I gave up my employment due to an arthritic hip that was caused by carrying heavy testing equipment I used as part of my work, so we were able to spend more time together. My arthritis responded to treatment and my intention was to return to physically lighter work on a part-time basis.

Mrs Jarrold said that, after the death of Mr Jarrold’s son, when she thought Mr Jarrold was in a bad state, she had contacted his brother, Mr Wayne Jarrold, to come over and to take Mr Jarrold out.

In his evidence, Mr Wayne Jarrold denied that Mrs Jarrold had ever asked her to take Mr Jarrold out and he said that he had never spoken to Mrs Jarrold on the telephone. In cross-examination, he said that he did not recall Mrs Jarrold ringing him to ask him to take Mr Jarrold down to the pub to get him out a bit. He said he could not recall ever having a conversation with Mrs Jarrold on the telephone.

Mr Wayne Jarrold said, after the death of Mr Jarrold’s son, he would visit Mr Jarrold at least probably three or four times a week, and every time he visited, he would walk into the house and Mr Jarrold would be sitting in the lounge by himself. On numerous occasions, Mrs Jarrold would not be there at the house and, on the times she was there, she would be either in the other lounge downstairs, or maybe seeing her daughter and her grandchildren.

In cross-examination, Mr Wayne Jarrold said that, after Mr Jarrold’s son died, Mr Jarrold was in a really bad way, and was very depressed. He said it was a possibility that there were plenty of times, after Ian died, that Mr Jarrold just wanted to sit by himself. He said that Mr Jarrold was not a typical pub person and to take him to the pub would not have helped matters much. He also did not recall thinking that Mr Jarrold needed to get out a bit to get out of his depression. He said that Mr Jarrold could only handle the situation the way he could handle it and that part of his way of handling it was probably to sit at home and work through it.

The Decision to Separate

Mrs Jarrold did not acknowledge that an actual decision was made to separate. Her version of the end of their relationship was that their relationship drifted apart because Mr Jarrold had moved permanently to Australia in early 2000 and she remained in Wales.

Mr Jarrold said that about a month after his son’s death in April 1998, he realised he did not have a marriage because Mrs Jarrold was not there for him. He said that Mrs Jarrold already knew the marriage was over, as they had talked about it even before his son died.

He said that, after his son’s death, he and Mrs Jarrold had spoken about the marriage coming to an end and the disposition of his assets. He thought that, as husband and wife, if he died first his assets would go to Mrs Jarrold and she would see they went to Victoria. He said it was his intention that Victoria would have his assets and he trusted Mrs Jarrold as she said that would be what would happen and he saw no reason to distrust her because she said she would carry out his wishes.

Mr Jarrold’s evidence was that the decision to separate from Mrs Jarrold was not something he could ‘put a date on; it’s something that evolves over a period of time’. He said that they had been ‘sort of pulling apart for probably at least 12 months, eighteen months before [his son’s death], and they had actually talked about themselves and that their time together could possibly be coming to an end’.

The Decision to Go to Australia

Mrs Jarrold said that, sometime later on in 1998, Mr Jarrold said he wanted to leave all the bad memories of Ian’s death, and he wanted to start a new life, preferably by the sea where he could have a boat. She said that Mr Jarrold told her he liked France but she thought there were would be language problems and she would not be able to teach in France.

Mrs Jarrold said that Mr Jarrold ‘got it into his head’ that Australia was where he wanted to go to live and he started applying for information from Australia House. She thought that because she had family there they should go for a holiday first and see what happened. Mrs Jarrold also said they went to Australia to look for a house to live in.

Her evidence was that they decided to try Australia where her brother, Mr Williams, and her sister, Helen Tait, lived. She said they applied for immigration to Australia although she thought their age meant they would not get the points to be able to go. As it turned out, she said she was entitled to enough points because she had a teaching job teaching special needs hearing impaired children, and as her relatives were in Australia. She said that Mr Jarrold was not able get any points.

Mrs Jarrold said that Mr Jarrold wanted all of Mrs Jarrold’s family to come to Australia as well, being her daughter and the daughter’s children, her mother and her brother. Mrs Jarrold said that her brother in Australia, Mr Williams, sponsored her daughter and two children and they were granted visas to Australia.

Mrs Jarrold’s brother, Mr Williams, gave evidence that he migrated to Australia in December 1990. He said that his sister, Ms Helen Tait, who migrated to Australia in 1984, sponsored Mrs Jarrold when she applied for a permanent residency visa to Australia. Mr Williams said that Mrs Jarrold wanted her daughter and two children to come to Australia and he sponsored them.

Mrs Jarrold agreed that Mr Jarrold had made his mind up in 1999 to move to Australia and said that it was his choice to move and that, as far as she was concerned, the marriage was still an important factor. She said that she thought that Mr Jarrold might change his mind about moving to Australia because before this he had always wanted a farm and then he did not want it anymore for no real reason. In her mind, she thought the ‘Australia event’ would follow the same line as the farm and he would want to come back home.

In her second statement, Mrs Jarrold said:

We discussed moving house as my husband said he needed a change of environment, he was also winding down the business with the intention of retiring. He now talked about living near the sea where he could fish and sail, I was happy with this idea believing he meant a local resort, until he said he wanted to move abroad. He mentioned many places including Australia which I had already visited with my mother as I have a brother and sister living there (he had no interest at the time). I said Australia was the only place I would consider. My husband had never visited, but he became obsessed with the idea of emigrating there and even tried to get some of my family, including my mother, to emigrate with us. I tried not to be negative at this point as he was still in mourning for his son and the business of emigrating was providing a much needed distraction. I also believed he would change his mind again, as he had done over the farm, given the length of time it could take, (up to eighteen months). It was also unlikely that we would be accepted as we were both in our fifties. To my surprise, I had accumulated more than enough points, and my husband then speeded up the [process] by employing an agent whose job was to get his clients to the head of the queue. My resident visa came quickly.

In her October 2012 statement, Mrs Jarrold said:

In 1999 we decided to come to Australia, and then decided to live here. We came to see if it was a nice place to live. … I have family living in Australia and had been out here previously. I already had a visa to enter Australia and my husband at the time needed me to stay in Australia.

Mr Jarrold said that it was now too much for him to stay in Wales because of his son’s death. He was looking to get away from it all. He looked at Spain, France, and America. In America, he had a very good friend but that friend had cancer. He also thought of Australia, which had always been something in the back of his mind because of the lifestyle there and the open spaces.

He said sometime in 1998, but he was not exactly sure when, he communicated that decision to Mrs Jarrold by saying that he had been looking at Australia. He knew that she had relatives out in Australia because she had been there a few years previously. Mr Jarrold checked on the internet and found that the only way he could go to Australia was to make an application to get a residency permit and emigrate on that basis. Mrs Jarrold told him that she did not want to go to Australia because she did not want to leave her family. He said that, after they talked about it, Mrs Jarrold said she would make the application to see whether they could get the necessary permits.

Mr Jarrold’s evidence was that they both applied for residency visas to Australia. He said that shortly after that conversation when Mrs Jarrold said she would make the applications so that he could go to Australia, (and he believed that she would make applications for her daughter and grandchildren also), Mrs Jarrold told him that she did not want to go to Australia because she would not leave her family. He said it was awkward because Mrs Jarrold had said her daughter may want to come to Australia with her children but that the father of the children had to give his permission. She said that they would not come anyway because her daughter had a new boyfriend. He said that this was the only conversation he had with Mrs Jarrold about her daughter coming over to Australia.

Mr Jarrold said that he was able to come to Australia because of the immigration points that Mrs Jarrold had primarily because she had family in Australia. The only condition was that Mrs Jarrold was required physically to come into the country before Mr Jarrold and, once that happened, Mr Jarrold’s passport was stamped that he had permanent Australian residency.

On 5 January 1999 Mrs Jarrold received a visa to go to Australia and her visa entitled Mr Jarrold to go with her.

The Jarrold’s Trip to Melbourne in January 1999

On 13 January 1999 Mr and Mrs Jarrold came to Australia. They returned to the United Kingdom on 13 February 1999.

Mr Jarrold said that the reason he and Mrs Jarrold went over to Australia was to find a home for him to live in. Mrs Jarrold agreed that they went to Australia to look at the housing market and, if Mr Jarrold liked Australia, to look for a house to live in.

Conversation on the Way to Australia

Mr Jarrold said he spoke with Mrs Jarrold on the way over to Australia and said ‘Look, I’ve ended up in Australia, I’ve got no family, no friends, I don’t know what’s going to happen. I was and she knew I was concerned about [my daughter] Victoria and I said “look, I’d be a lot happier if you put your name on the title, so that if anything happened, you’ll have no problem selling the property, making sure everything went back to Victoria, so she looked after it”’. Mrs Jarrold asked him ‘What do you mean by “if anything happened?”, and Mr Jarrold replied “I don’t know, anything could … [happen]. I could … [be] run over by a bus, I could have had a crazy thought, I don’t know”’. He explained ‘I am not a suicidal person, but the thoughts do go through your mind — you know, if there’s nothing left here for you’.

In cross-examination, Mr Jarrold agreed that at that time he had not purchased the Sims Street property but said that he was committed to move to Australia and he wanted to make sure that Victoria was looked after in case he died. He said that he did not have a will in January 1999. He said he never decided not to make a will, which would have been the safest way to look after Victoria, but he trusted Mrs Jarrold and making a will just never cropped up. Mrs Jarrold told him that she would carry out his wishes and he saw no reason to distrust her.

Relationship in Melbourne

Mr Jarrold’s evidence was that, when they came out to Australia, he and Mrs Jarrold were still married but were not close. He said they were still together and there was not a problem but they both knew at that time that they were going in different directions very, very quickly. They both knew by then that the marriage was over. He said that once he arrived in Australia he knew that Mrs Jarrold would not be coming to stay. In her second statement, Mrs Jarrold described Mr Jarrold’s attitude towards her as ‘off-hand’ but that outwardly she tried to be positive.

While they were in Melbourne, they stayed with Mrs Jarrold’s sister in Hawthorn and they also stayed a few days with Mrs Jarrold’s brother, Mr Williams. Mr Williams gave evidence that they also stayed with his sister. Mr Williams states that they all went to the tennis, to Wilsons Promontory for a weekend and went out for meals together. He said that from his observations, they seemed a normal couple.

The Joint Bank Account at the ANZ Bank

After Mr and Mrs Jarrold arrived in Melbourne, they opened a joint bank account at the ANZ Bank.

Mr Jarrold said the bank account was going to be in his name only, but when they started to fill out the forms in his name, Mrs Jarrold asked whether she could have a cheque card, in case she needed money or something when she was in Melbourne. Mr Jarrold said that he remembers clearly that the teller said to them ‘you need a joint account’ and that is how the joint account came to be opened.

Mr Jarrold deposited his funds into the ANZ bank account from his bank accounts in the UK. Mr Jarrold said he was the person who actually used the ANZ bank account. Mrs Jarrold never used it. She never made a deposit into the account and never withdrew funds from it. He said she used her own money to live on. She received one bank statement for the account at her sister’s house and her sister posted it to her. She had nothing to do with the ANZ bank account. She did not ever ask Mr Jarrold about the balance of the ANZ account.

Mrs Jarrold said the joint account in Melbourne was unusual and it was part of the attempt to establish a new married life. She agreed she never used the joint account and she did not ask to see statements for the account.

Purchase of the Sims Street Property

While they were in Melbourne, Mrs Jarrold said she would buy the paper and show the houses for sale in the paper to Mr Jarrold. They would go and look at the houses, just to get his mind on something. They went to lots of auctions.

Mr Jarrold’s evidence was that, in looking for houses, Mrs Jarrold was mostly with him. He had hired a car and they drove around the various areas in Melbourne. He thought St Kilda and Brighton were too expensive. He liked Sandringham because it had a train and it was not too crowded.

The Sims Street property was found in the three days before they returned to Wales. Mrs Jarrold said that they found the property in the paper, but it was her leading Mr Jarrold. When they saw it, she thought it was in a good spot, lovely on the outside but a mess on the inside.

Mr Jarrold’s evidence is that on the last two or three days of their time in Melbourne, they went to the estate agent and the property had just come on the market. They looked at it. He said he did not discuss the decision to buy the property with Mrs Jarrold. The purchase price of the property was $420 000.

Mr Jarrold said that, in terms of paying for the Sims Street property, he had a letter of introduction from his UK bank for use in Australia. Mr Jarrold said that he paid the deposit for the property from funds in the ANZ bank account.

In her second statement, Mrs Jarrold said:

we left for Oz in January, 1999 … When in Oz we looked at houses … and eventually found [the Sims Street property] … and the owner … accepted my husband’s cash offer. [Mr Jarrold] insisted that we had joint ownership, and we signed the deeds two days before returning to the UK. Outwardly, I tried to be positive, but my husband’s off-hand attitude towards me was causing some concern, it seemed that whatever commitment I made to him was either never enough or taken for granted … Eventually, I had to tell him that I did not want to go [to Australia].

Whereas, in her October 2012 statement, Mrs Jarrold said:

Whilst we were [in Melbourne] we decided to buy [the Sims Street property]’ … We paid cash for the house outright and didn’t have a mortgage on it. Both our names went onto the title of the house … We decided to live in Australia and went back to Wales to organise our movement to Australia. About two months later (April) I decided that I didn’t want to move to Australia but [Mr Jarrold] still wanted to.

Mrs Jarrold’s evidence was that Mr Jarrold paid for the purchase of the Sims Street property from his own funds and none of her money was used for its purchase. She stated ‘He did buy it, it wasn't my money’.

In cross-examination, Mrs Jarrold agreed that Mr Jarrold told her the reason that he elected to put the Sims Street property in both of their names was because, if anything should happen to him, he wanted Mrs Jarrold to be able to deal with the proceeds of sale for the benefit of his daughter, Victoria. Mrs Jarrold did not agree that, at the time they signed the contract, she treated the Sims Street property as Mr Jarrold’s property and said ‘No, not initially, it was ours’. She also said that Mr Jarrold made the purchase so that he could sell it and he liked making profits.

The transfer of land for the purchase of the Sims Street property was signed in June 1999, at a time when Mrs Jarrold had already told Mr Jarrold that she would not move to Australia. Mr Jarrold said that he did not even think about changing the ownership of the Sims Street property at that time because he ‘trusted [Mrs Jarrold] as a friend, I had no reason to think otherwise’. The transfer of land document dated 6 July 1999 lists Mr and Mrs Jarrold as the transferees.

The Decision to Sell Heol Y Glyn and Buy Cherry Tree Avenue

Mr and Mrs Jarrold left Melbourne on 14 February 1999 and went back to Wales. Mrs Jarrold said that, when she was home in Wales with Mr Jarrold, she felt that she had done the ultimate in agreeing to go to Australia and that Mr Jarrold still treated her with little regard. She said that he did not spend enough time with her, was sullen, bad tempered and vain. She said that she decided she did not want to move to Australia and it would be ‘one commitment too many’ to do so.

She told Mr Jarrold that she did not want to go to Australia, she thought, in April 1999. She told him they could still buy a house by the sea and have a boat, but in Wales instead. She said that Mr Jarrold said that he had already bought a house in Melbourne. Mrs Jarrold said that Mr Jarrold had bought the house in Melbourne and it was not her money in the house. She told Mr Jarrold that he could sell the house tomorrow for a profit because it was a good deal or good buy.

In her Land Registry letter, Mrs Jarrold said:

After a visit to Australia in 1999, my husband became preoccupied with the idea of living in Australia, I however, was never totally committed, my permanent home always being in the UK.

In her second statement, Mrs Jarrold said:

Outwardly, I tried to be positive, but my husband’s off-hand attitude towards me was causing me some concern, it seemed that whatever commitment I made to him was either never enough or taken for granted. He had no interest in selling our house [Heol Y Glyn], saying it only held bad memories and [he] wanted to board it up and leave. I opposed him on this wanting to keep a home in Wales and said I’d sell and buy a home by the sea in case he changed his mind or things didn’t work out in Oz. … Eventually, I had to tell him that I did not want to go. He said he’d bought a house there and was committed but I pointed out what he already knew, that he could have put the bungalow in Oz back on the market the day after we bought it and would have made a good profit.

In cross-examination, Mrs Jarrold said she was reluctant for everything to be sold up in Wales and that she insisted that the property at 4 Cherry Tree Avenue in Porthcawl (‘Cherry Tree Avenue’) be purchased. She said that property was bought solely in her name. She said that her arrangement with Mr Jarrold in 1999 was that Cherry Tree Avenue was in her name so that, if things did not work out in Australia, she would have a place to live.

Mr Williams said that in June 1999 he went back to Wales and Mr and Mrs Jarrold attended a party to celebrate his 50^th birthday and the birthdays of his two children; both Mr and Mrs Jarrold appeared as a normal couple to him at the party.

Mr Wayne Jarrold said that his observations of the relationship between Mr and Mrs Jarrold in 1999 and 2000 was that it was distant.

The Sale of Heol Y Glyn, 6 Cairo Street, the Purchase of Cherry Tree Avenue for Mrs Jarrold and Mr Jarrold’s Permanent Move to Australia

Mrs Jarrold’s evidence was that during the last part of 1999 she made arrangements to sell Heol Y Glyn and buy another place, because Mr Jarrold had initially said that he wanted to board the place up. She did not want that. She said that, when they ‘started negotiations’, she did not want to go anywhere without having a home or a home base in Wales.

In her October 2012 statement, Mrs Jarrold said:

About August 1999 [Mr Jarrold] came to Australia to sort the house out and then come back. At the beginning of November, 1999 he came back to Wales. He came back to live with me. By this stage we were living in a House that [Mr Jarrold] built for us in 1991. We stayed together in the house until February, 2000. From there we sold the house and I moved to a bungalow by the sea. This bungalow was purchased from the sale of the house. [Mr Jarrold] didn’t move in and went back to Australia to live there permanently.

Mr Jarrold said that, after staying in Melbourne for the month, they went back to Heol Y Glyn in Wales. He said it had yet to be determined whether Mrs Jarrold would stay in Heol Y Glyn or move elsewhere. One day, Mrs Jarrold said to him that she had found a house in Cherry Tree Avenue. She said it was a bit dearer than what they would get from the sale of Heol Y Glyn. He said that initially they both arranged for the purchase of Cherry Tree Avenue, but Mrs Jarrold handled the transaction.

Mr Tony Warrener of Morgan Cole acted as the solicitor on the sale of Heol Y Glyn and the purchase of Cherry Tree Avenue. Mrs Jarrold said that Mr Warrener was Mr Jarrold’s solicitor.

Mr Jarrold said that the property was purchased for Mrs Jarrold and it was paid for from the sale proceeds of Heol Y Glyn. Before he left Heol Y Glyn to return to Australia and before Mrs Jarrold moved to Cherry Tree Avenue, he said he bought Mrs Jarrold a new car. Mr Jarrold also left two blank cheques for Mrs Jarrold — one to pay for the balance of the purchase price for Cherry Tree Avenue and the other in case any miscellaneous items cropped up. After that, he left for Australia to live there permanently. Mr Jarrold did not know how much the two cheques were cashed for and he has no knowledge of them whatsoever. He does not have any bank statements for that period of time.

Mr Jarrold said that, when he left Mrs Jarrold, she was comfortable. She had her earnings for 11 years, which he thought were about £200 000, a house in her own name, all her furniture and a car, which he said was not part of their agreement. He left with two suitcases and left everything else behind with Mrs Jarrold.

He said that he had no further discussions with Mrs Jarrold after the purchase of Cherry Tree Avenue about the move to Australia. He said that her home was in Porthcawl and he was going to Australia. It was the end of the marriage and their lives together were totally finished. He said that Mrs Jarrold had made it clear to him that she did not want to go to Australia, that she wanted to live in Wales and never leave her family behind. He described the parting as ‘a natural parting’.

He told Mrs Jarrold that he would try to come back to Wales at least once a year, mainly to see his mother, to stand at his son’s grave and to monitor his daughter. He also said that he would call on Mrs Jarrold and he did.

On 22 December 1999, Mr Warrener advised Mrs Jarrold that he had completed the sale of 6 Cairo Street. Mr Jarrold’s evidence was that he knew nothing about 6 Cairo Street. Mr Warrener asked Mrs Jarrold to call him to discuss dealing with the proceeds of sale from 6 Cairo Street and proceeding with the purchase of Cherry Tree Avenue.[8] The final accounting by Mr Warrener for the sales and purchase shows that he accounted to Mrs Jarrold for the sale prices of Heol Y Glyn (£101 500) and 6 Cairo St (£20 668.88) and, after the purchase of Cherry Tree Avenue (£110 000), there was a balance due to Mrs Jarrold of £8058.
[8]Note: the correspondence from the firm was addressed to Mrs Jarrold alone. The two properties that were sold and the one property that was purchased were in the sole name of Mrs Jarrold.

In her first statement, Mrs Jarrold said:

I sold the house [in Heol Y Glyn] for just over £100 000. I then bought the bungalow in Porthcawl [Cherry Tree Avenue] and gave him the £10 000 change.

In her oral evidence, Mrs Jarrold said that the £8058 was split equally between her and Mr Jarrold. In cross-examination, Mrs Jarrold said she gave the whole amount to Mr Jarrold.

In early February 2000, Mrs Jarrold moved to Cherry Tree Avenue. The following month, Mr Warrener wrote to Mrs Jarrold confirming that completion of the sale and purchase had taken place.[9] He informed her that he had spoken to Mr Jarrold who had asked him to send her a cheque representing the net proceeds drawn in his name for her attention. He enclosed a completion account for the sale of Heol Y Glyn and 6 Cairo Street and the purchase of Cherry Tree Avenue.
[9]Letter from Mr Warrener to Mrs Jarrold dated 7 March 2000.

In May 2000, Mr Warrender wrote to Mrs Jarrold enclosing copy title for Cherry Tree Avenue and advised that the original was stored in his strong room.

The Sims Street Property Destroyed by Fire in April 2000

After a holiday in Florida with her two grandchildren, Mrs Jarrold said Mr Jarrold called her from Melbourne to tell her the house at the Sims Street property had burned down. In her second statement, Mrs Jarrold said:

Two days after I moved into the bungalow he returned to Oz, this happened in February 2001.[10] As we had agreed, we would visit each other and see how things went, I was thinking about to booking my flight when he phoned to say he had lit a fire in the grate and the bungalow had burned to the ground. He was staying with my brother temporarily and when I arrived soon afterwards he had just bought and moved into an apartment near the ruined bungalow.

[10]Mrs Jarrold did not correct the year ‘2001’ to ‘2000’ when she amended her second statement on 9 October 2012.

In her October 2012 statement, after having said that Mr Jarrold had moved to Australia permanently, Mrs Jarrold said:

I kept in touch with him whilst he was in Australia. He told me that the house we bought in Sandringham had caught on fire. This was on March the 28^th, 2000. He went to live with my brother in Nunawading. I then flew to Australia around that time. By the time I came to Australia [Mr Jarrold] had moved to an apartment in Beach Road, Sandringham.

Mr Williams’ evidence was that Mr Jarrold told Mr Williams’ wife that the Sims Street property had burnt down and that Mr Jarrold stayed with them for 10 days after the fire. After that, he said that Mr Jarrold moved to an apartment in Beach Road Hampton.

Mr Jarrold said the house fire occurred in early April 2000, and he rang Mr Williams to tell him about the fire. He said that either Mr Williams or his wife rang Mrs Jarrold and told her about the fire and that he spoke to Mrs Jarrold after that. He said that after the fire he stayed at Mr Williams’ place, but he also slept in the garage at the Sims Street property.

Less than two weeks after the fire, Mr Jarrold bought an apartment in 56 Beach Road, Hampton (‘the Beach Road property’). The transfer of land is dated 14 April 2000. The Beach Road property was registered in Mr Jarrold’s name on 16 May 2000. He paid $272 500 for it, which was paid from his funds in the ANZ account. Mr Jarrold said the amount needed for the purchase had been transferred into the ANZ account from his funds in the UK. Mrs Jarrold agreed that she made no financial contribution to the purchase of the Beach Road property.

Mrs Jarrold said that, when she came to Melbourne in April 2000, she stayed at the Beach Road property. She did not furnish the apartment. Mr Jarrold had bought new furniture and had bought second-hand items from the Salvation Army. In her second statement, Mrs Jarrold said she supported him as much as she could for the three months she was there. Mrs Jarrold’s passport records her time in Australia was two months, from 20 April 2000 until 16 June 2000.

During her visit in Melbourne, Mrs Jarrold said she and Mr Jarrold visited, and received visits from, her brother and sister. Mrs Jarrold said that at this time work at the Sims Street property was continuing with the demolition of the house structure and planning for a new house. Mr Williams said that he went to the Beach Road apartment twice while Mrs Jarrold was in Melbourne and he thought her relationship with Mr Jarrold appeared normal.

Mr Jarrold said that he did not start to rebuild the house at the Sims Street property straightaway, because he had to demolish it and then draw up plans and because Mrs Jarrold had come over from Wales. He said that he doubted that he started building before 2001. This accord with Mr Williams’ evidence that in 2001, he and Mr Jarrold went to see the new builder at the Sims Street property. He thought the house was at lock-up stage and not fitted out.

Mr Jarrold’s Visit to Wales in June 2000

Mr Jarrold travelled to Wales in late June 2000 and returned to Melbourne on 11 August 2000. During his time in Wales, he stayed with his brother, Mr Wayne Jarrold. His brother picked him up from the airport on his arrival. Mr Wayne Jarrold agreed that Mr Jarrold stayed with him when he came to Wales.

Mrs Jarrold said that Mr Jarrold stayed with her for some of the time during this trip, when Mr Jarrold went with her to her son’s wedding in North Wales. Mr Jarrold denied that he went to the wedding in North Wales and that he stayed with Mrs Jarrold. He said that he went to a reception for Mrs Jarrold’s son in South Wales.

Mr Jarrold said he clearly remembered the reason why he was asked to go with Mrs Jarrold and he said there was no reason that he would not go to the reception. According to him, Mrs Jarrold asked him to go with her as she was fearful of her ex-husband, who was at the wedding reception, although Mrs Jarrold denies this.

Mr Wayne Jarrold said he had no recollection of Mr Jarrold going to a wedding in North Wales. He said that Mr Jarrold spent most of the time on this trip in the south of Wales and he was mostly aware of what Mr Jarrold was doing.

Mrs Jarrold’s Visit to Melbourne in May/June 2001

Mrs Jarrold came to Melbourne on 12 May 2001 and returned to Wales on 19 June 2001. While she was in Melbourne, she said she stayed in the Beach Road apartment. She said that at that time the Sims Street property was three quarters finished with the windows and doors fixed in.

Mr Jarrold said that this was the last time Mrs Jarrold stayed with him in Melbourne. He said that Mrs Jarrold stayed at the Beach Road apartment until the last 5 or 7 days of her stay because his brother and his boys came over for the rugby and Mrs Jarrold then went to her sister or brother’s place. He said that he was not sure when Mrs Jarrold went back to Wales.

Mrs Jarrold said that she went with Mr Jarrold when they bought flooring for the house and she helped him lay the floor in the lounge. They also went and picked or had a good look around for bathroom equipment and she cleaned some of the mess around and underneath the house. In her second statement, Mrs Jarrold said she helped Mr Jarrold to select some fixtures and fittings and to lay the wooden flooring among other things but that generally she ‘found [the] relationship difficult’.

Mr Jarrold said that there was no contribution from Mrs Jarrold to the new house, although she may have been with him when deciding on bricks and tiles. He said Mrs Jarrold did not contribute to the rebuilding of the house.

While Mrs Jarrold was in Melbourne in 2001, she said she wanted to go to Cairns, but Mr Jarrold wanted to go to Fiji, so they went to Fiji on 25 May, returning to Melbourne on 1 June 2001. In contrast, Mr Jarrold said that he was already going to Fiji. He said that Mrs Jarrold had already paid for her airfare to Cairns but, when she found out he was going to Fiji, she found an offer to go to Fiji at the travel agents and said she wanted to go to Fiji as well, which was not a problem. He had paid for the accommodation and Mrs Jarrold paid for her own airfare.

Mrs Jarrod said that between 1 and 19 June Mr Jarrold bought a boat and had sailing lessons while she bought a bike. She said that Mr Jarrold wanted her to stay longer, which was a bit awkward for her. She was homesick and did not want to stay any longer.

Mr Williams said that, when Mrs Jarrold came to Australia in April or May 2001, he and his wife went to a restaurant with Mr and Mrs Jarrold and they appeared a normal couple to him.

The Commencement of Mr Jarrold’s Relationship with Ms Scanavino in Late 2001

In the latter part of 2001, Mr Jarrold met his now partner, Ms Scanavino. He described her as a very special person, very positive and secure and that she ‘pulled me along with her’ and he ‘lifted up quite a few steps with her’. Ms Scanavino is a computer systems analyst and had her own business.

They initially started living together in Ms Scanavino’s her leased apartment in Box Hill in 2001. Once they started living together they shared living expenses and Ms Scanavino made contributions to their living arrangements by putting money into Mr Jarrold’s bank account. When Ms Scanavino’s lease ended in February 2002, they then moved to Mr Jarrold’s Beach Road apartment and subsequently, later in 2002, moved into the Sims Street property.

Mr Jarrold Closed the ANZ Joint Bank Account

In April 2002, Mr Jarrold rang the ANZ Bank and changed the ANZ account into his name. He said he did this because Mrs Jarrold never had an interest in the account or ever used it, and also because he had met Ms Scanavino.

Mr Jarrold said that he did not notify Mrs Jarrold of the change of name to the bank account. He said that she never asked him for the bank statements for the account, never put money into the account and was not interested in the account whatsoever.

Mrs Jarrold said that she was not notified by ANZ Bank that her name had been taken off the account.

The Rebuilding of the House in Sims Street

When Mr Jarrold and Ms Scanavino moved into the Sims Street property in April 2002, Mr Jarrold said the construction of the house was not complete. He said the house had the basic requirements. He had a certificate of occupation, meaning that the house must have had washing, toilet and cooking facilities, which allowed them to move in.

Ms Scanavino said that, when they moved to the Beach Road property, the Sims Street property was little more than a shell; it was at lock-up stage. They moved into the Sims Road property because it was not efficient living away from it, and they made it habitable.

Mr Jarrold said that over the next couple of years, they finished it when funds were available. He said that Ms Scanavino helped with buying a lot of the materials for the house and with finishing the house. He said that Ms Scanavino made substantial financial contributions towards the rebuilding of the house over a period between 2002 to 2006. He thought that they both contributed between $250 000 and $300 000 over that four year period and that Ms Scanavino looked after the finances, as she had degrees in financial management. Mr Jarrold said that he did not expect Ms Scanavino to contribute towards the rebuilding of the house and it was something she volunteered to do.

Ms Scanavino gave evidence that her financial contribution was approximately between $250 000 and $300 000, with the total rebuild costing approximately $550 000. She said that Mr Jarrold contributed $250 000. Ms Scanavino said that she no longer has the documentation for the Sims Street property, as it was lost in their move to France.

The documentary evidence in respect of the rebuild is as follows:

(a) a certificate of insurance and policy schedule issued by Australian Home Warranty on 11 August 2006 records domestic building work as completed on 16 July 2002 to the value of $304 200; and

(a) a report by House Inspection Services Pty Ltd dated 7 August 2006 records an inspection of the Sims Street property on 4 August 2006. The only defects listed in this report are a minor seepage to a timber lined ceiling.

Mr Jarrold’s evidence as to these documents is that, before the auction of the Sims street property, insurance needed to be in place. He informed the insurance company that the value of the building work was $304 200, which he said did not cover the costs of everything but was more or less the structure cost.

When Mrs Jarrold Found Out that Mr Jarrold Was in Another Relationship

Mr Jarrold said that, in 2002, Mrs Jarrold asked him whether he was seeing someone and he told her he was. He said he did not tell her the name of the person he was seeing but that Mrs Jarrold was aware that he was in a relationship. He also said that he did not say he was living with the person because Mrs Jarrold did not ask him. He said there was no reason to tell her he was in a relationship, as it would have been upsetting. They never dwelt on the subject. If Mrs Jarrold wanted to know more he would have expanded on it, but she did not ask him any other questions about his relationship.

Mrs Jarrold said that at some time during 2004 and 2006 she learned about Ms Scanavino when she rang Mr Jarrold to tell him she had received a letter for him and a woman answered the telephone. After that call, she said that she searched Mr Jarrold’s name on the internet and found a photograph of him with Ms Scanavino together and, in the description of the photograph, she was named Grace Jarrold.

In her second statement Mrs Jarrold said:

He [Mr Jarrold] came back to Wales every year except for 2005, as far as I am aware. The phone calls become less frequent (on one occasion when I rang at around eleven thirty their time, a woman answered) …

In her October 2012 statement, Mrs Jarrold said that in about 2005:

I rang him [Mr Jarrold] and a female answered. By this time I confirmed my suspicion that another woman was involved. After that I didn’t ring him again.

The Length and Intimacy of the Jarrolds’ Relationship

At the trial, Mrs Jarrold said that her marriage with Mr Jarrold lasted until 2002. She also said, in her oral evidence that she did not consider that, for all practical purposes, her marriage with Mr Jarrold was at an end by 2000. Rather she thought they still had a long distance relationship or marriage.

In her first statement, Mrs Jarrold referred to ‘our twelve years together’. In her second statement and her October 2012 statement, Mrs Jarrold did not specifically refer to the length of the marriage other than to set out a ‘record of the marriage until the third of June 2006’. When asked about the statement ‘during out twelve years together’, made in her first statement, Mrs Jarrold said this was a reference to the time that she and Mr Jarrold were physically together all the time. She said that the marriage was longer than 12 years and denied that they were separated from 2000.

In cross-examination, it was put to her that, in four separate places in her oral evidence, she said that she had spent 12 years together with Mr Jarrold. She responded with: ‘I suppose that is the recognised way of saying that we were actually living together in the same country in the same house all the time for 12 years’. It was then put to her that thereafter she was separated, which she denied. She said that, as far as she knew, she was married until about four weeks ago, by which she meant four weeks before the trial commenced in October 2012.

Findings

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’.[50]
[50]Briginshaw v Briginshaw (1938) 60 CLR 336, 361.

I have taken into account the unlikelihood of Mr Jarrold’s forging a signature in circumstances where he believed that he was fully entitled, as I have found,[51] 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.[52]
[51]See below paragraph [746].
[52]See above paragraph [450].

For the reasons set out in the judgment, I am not satisfied that Mrs Jarrold has satisfied the burden of proof on the forgery allegation as that standard is applied in the authorities and under s 140 of the Evidence Act 2008.

What Is the Nature of Mrs Jarrold’s Interest in the Sims Street Property?

The Sims Street property was transferred to Mr and Mrs Jarrold as joint tenants. Each held an equal legal interest in the property. The question is whether Mrs Jarrold’s legal interest was displaced by the doctrines of equity. The question of which doctrines of equity are applicable depends on the nature of the contributions to the purchase price and the relationship between Mr and Mrs Jarrold.

Contributions to the Purchase Price

Senior counsel for Mrs Jarrold submitted that she and Mr Jarrold purchased the Sims Street property together in February 1999, and that they were in a committed relationship and did not separate until 2002. They purchased the Sims Street property as joint tenants. It was contended that, where a husband and wife purchase a matrimonial home, each contributing to the purchase price and taking title in joint names, there is no occasion for equity to displace the 50:50 nature of the property interest.

It was submitted by Mrs Jarrold that, although Mr and Mrs Jarrold had separate bank accounts in Wales, they had joint finances in that they both worked, both contributed to the matrimonial asset pool of funds available to them and both made non-financial contributions to the marriage. It was contended that these facts relating to their life in Wales between 1988, when they married, and February 1999, when they purchased the Sims Street property, established that it was their intention to hold the property as joint tenants.

In my view, the evidence of the direct and indirect financial contributions to the marriage establishes that Mr and Mrs Jarrold kept their finances separate and there was not a matrimonial asset pool of funds that they shared.

They kept separate bank accounts when they lived in Wales. Although Mrs Jarrold claimed that she paid the household expenses and other expenses such as cars, clothes, insurance, utilities, rates and holidays, I have not accepted her evidence on this issue.[53] Mrs Jarrold kept the money earned from her job throughout the marriage. She ceased her job as a teacher shortly after the death of Mr Jarrold’s son in April 1998.
[53] See above paragraphs [457]–[462].

I have also concluded that Mr Jarrold paid for the houses in Nelson and Heol Y Glyn, where they lived during the marriage, as well as most, if not all, of the Cherry Tree Avenue house, where only Mrs Jarrold lived. Mrs Jarrold also kept the sale proceeds of the sale of 6 Cairo Street and the proceeds of the sale of Cherry Tree Avenue.

I have not accepted Mrs Jarrold’s evidence that she ever paid the amounts of up to £10 000 or £20 000 that she claimed to have put towards the Heol Y Glyn house in the early years of the marriage, or the amount of £15 000, now said by her to have been given to Mr Jarrold for the purchase of farmland at Cowbridge.

Counsel for Mrs Jarrold submitted that, when the farmland, including the Fishweir block, was sold, Mrs Jarrold did not expect the loan of £15 000 to be repaid, because she saw the farmland as ‘ours’; it was only after separation that she wanted it repaid. This is inconsistent, however, with her own evidence in her second statement, where she says that she did ask for the return of her £15 000 but she ‘never recovered’ it, let alone any profit. In any event, I have not accepted that the £15 000 was ever paid.

The submission that Mrs Jarrold saw the farmland as ‘ours’ is also not supported by her evidence, as I have concluded that the farmland was not a joint venture but rather Mr Jarrold’s venture, with Mrs Jarrold playing no role and showing little interest in it.

It was not disputed by Mrs Jarrold at trial that Mr Jarrold paid the purchase price for the Sims Street property from his own funds and that no funds of Mrs Jarrold’s were used. While the Sims Street property was paid for out of a joint ANZ bank account, Mrs Jarrold accepts that it was Mr Jarrold’s money that was used. In these circumstances, the relevant principles are those respecting resulting trusts and the presumption of advancement.

Presumption of Advancement — Applicable Legal Principles

Where a husband purchases property in the name of his wife, it is presumed, in the absence of evidence to the contrary, that the husband intended to benefit his wife by way of advancement.[54] The presumption of advancement means that the equitable interest aligns with the legal title, since there is no reason for presuming a trust was intended.[55]
[54] Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353.
[55] Cummins v Cummins, (2006) 227 CLR 278, 298; Martin v Martin (1959) 110 CLR 297, 303; Calverley v Green, (1984) 155 CLR 242, 267 (Deane J).

The presumption of an intention of advancement may be rebutted by evidence manifesting a contrary intention.[56] The relevant intention is that of the person who paid the purchase price:

The burden of proof is placed firmly 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 as the case may be.[57]

[56]Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, 365.

[57] Martin v Martin (1959) 110 CLR 297, 304.

Evidence of non-financial contributions may yet be relevant in proving the actual intention of the purchaser, but, in the absence of an agreement between the parties to a marriage, express or inferred from the circumstances, on the beneficial title, only the intention of the purchaser is relevant. In Pearson v Pearson, Duffy, Sholl and Adam JJ said:

We think it important in the consideration of this branch of the law to begin by distinguishing cases in which all that is relevant is the intention of one party, the husband or the wife, as the case may be, from cases in which the intention of both parties, manifesting itself in an agreement express or implied, or even, as some authorities put it, ‘imputed’, is relevant.
Where one party to the marriage has made a purchase in the name of the other, or in the joint names of both, and the evidence shows neither an express agreement with respect to the beneficial title, nor circumstances from which an agreement with respect thereto can be inferred or implied, the unilateral intent of the purchaser is alone material, and is to be ascertained upon a subjective basis.[58]

[58][1961] VR 693, 697 (citations removed).

The onus lies on the husband, in this case Mr Jarrold, to rebut the presumption by proving that it was his intention that Mrs Jarrold hold her interest on trust for him.[59] The relevant intention is the intention at the time of the acquisition or purchase.[60] Acts and declarations subsequent to the transaction are inadmissible to support an intention, except for admissions against interest.[61] In Charles Marshall Pty Ltd v Grimsley, the High Court said:

Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase … or so immediately thereafter as to constitute a part of the transaction.[62]
[59] Martin v Martin (1959) 110 CLR 297, 304.
[60]Ibid.
[61] Cummins v Cummins, (2006) 227 CLR 278, 300.
[62](1956) 95 CLR 353, 365.

Evidence of subsequent dealings and the surrounding circumstances of the transaction, as opposed to statements of intention, are admissible to illustrate the purchaser’s intention.[63]
[63] Cummins v Cummins, (2006) 227 CLR 278, 300.
The Relationship of Mr and Mrs Jarrold

Evidence of the nature of Mr and Mrs Jarrold’s relationship is relevant to the question whether Mr Jarrold intended Mrs Jarrold to take as a trustee for him.

In my view, Mrs Jarrold’s description of the marriage does not support the submission that the marriage lasted through to 2002. Mrs Jarrold’s evidence supports a conclusion that, during their marriage, they led quite separate lives. Her hopes for the marriage in the beginning did not eventuate. She found Mr Jarrold stubborn and controlling. There was no social life together. He refused to take scheduled holidays, owing to his work. In terms of holidays, they only spent two or three weekends together in Mr Jarrold’s caravan over the course of 10 years. The evidence establishes that they did take other holidays but usually with various members of her extended family. Mrs Jarrold said that without her family and friends her life would have been ‘very humdrum indeed’.

Mrs Jarrold said she got on well with his daughter, Victoria, but not with his son, Ian. Mr Jarrold did not communicate with her concerning his son or his business. There was a long period when she said Mr Jarrold refused to speak to her or include her in his life. She worked up until after April 1998 in what she described as her responsible employment as a teacher and kept herself busy with her daughter’s young children.

Mrs Jarrold’s evidence of the marriage, in my view, supports Mr Jarrold’s evidence that they did not spend much time together. He said they wanted different things and they went in different directions and had grown too far apart.

Mr Wayne Jarrold’s evidence was that Mr and Mrs Jarrold’s relationship was distant. Mr Wayne Jarrold’s contact with his brother was frequent. After the death of Mr Jarrold’s son, Mr Wayne Jarrold visited Mr Jarrold’s home between three or four times a week and, from 2000 onwards, Mr Jarrold stayed with Mr Wayne Jarrold whenever he returned to Wales.

Because Mr Wayne Jarrold’s visits up until 2000 were in Mr and Mrs Jarrold’s home and were frequent, I place more weight on his observations than on those of Mr Williams.

Although Mr Williams referred to some instances in 1999, 2000 and 2001 when he saw Mr and Mrs Jarrold together over the years and described them on all those occasions as seeming to be ‘a normal couple’, those instances were few and far between, and many of the instances were social engagements.

In addition, in her second statement, Mrs Jarrold described Mr Jarrold’s attitude towards her while she was in Melbourne in 1999 as ‘off hand’, which caused her concern. She said she felt that whatever commitment she made to him was not enough or was taken for granted. She said ‘outwardly’ she tried to be positive.

They stayed in Melbourne for one month in 1999, staying with either Mrs Jarrold’s brother or sister. Mr Williams gave evidence that they seemed like an ordinary couple, based on seeing the Jarrolds together on a number of occasions, including when they stayed with him for a few days, when on a trip to Wilsons Promontory, while at the tennis, and when going for meals together. His evidence, however, goes little further than to describe Mrs Jarrold’s outward behaviour. Mrs Jarrold’s evidence, in fact, confirms that things were not ‘normal’ between Mr and Mrs Jarrold at that time.

Mr Jarrold’s evidence of the purchase of the Sims Street property confirms the distance between them and that Mr Jarrold was buying the property with himself in mind when he said he did not discuss the decision to buy the property with Mrs Jarrold. In her second statement, Mrs Jarrold said her husband made the offer to buy the Sims Street property.

Mrs Jarrold said that Mr Jarrold went back to Melbourne in August 1999 and then returned to Wales in November, where they arranged for the sale of Heol Y Glyn and the purchase of Cherry Tree Avenue. He then went back to Australia to live permanently in late January, early February 2000.

It was submitted by Mrs Jarrold that they remained a couple until the time he returned to Australia in 2000 and that the marriage continued while they were living in separate residences and countries until he told Mrs Jarrold, when asked by her, that he was seeing someone. It was also submitted that Mr and Mrs Jarrold had some contact between 2001 and 2004 and continued to have sex until 2002.

Mr and Mrs Jarrold’s evidence of the intimacy of the relationship is in complete contrast. Mrs Jarrold claimed that they had sexual relations on specified occasions between 2000 and 2002. Mr Jarrold denied any sexual relations emphatically and unequivocally. Mrs Jarrold’s evidence was at odds with Mr Jarrold’s evidence of his new relationship with Ms Scanavino in the latter part of 2001. He also said he had never spent a night at Cherry Tree Avenue. Mr Wayne Jarrold’s evidence was that, when Mr Jarrold came to Wales from 2000 onwards, Mr Jarrold stayed with him.

Senior counsel for Mrs Jarrold also submitted that the fact that, first, both Mr and Mrs Jarrold applied for permanent resident visas and, secondly, Mr Williams sponsored Mrs Jarrold’s daughter and grandchildren to migrate to Australia, contradicts Mr Jarrold’s evidence that he decided to migrate to Australia alone and Mrs Jarrold merely helped him to obtain his visa.

Although there was a conflict in the evidence as to whether the visas were granted because Mrs Jarrold had family living in Australia or because of her job as a teacher, both gave evidence that Mr Jarrold needed Mrs Jarrold’s points to obtain his visa. In her October 2012 statement, when dealing with the visas, Mrs Jarrold said she already had a visa to enter Australia and Mr Jarrold needed her in Australia for his visa. Mr Jarrold said that the only condition on his visa was that Mrs Jarrold was required to come to Australia before his passport was stamped with his permanent residency.

Mr Jarrold said he believed that Mrs Jarrold made applications for her daughter and her grandchildren because she did not want to leave her family. He said Mrs Jarrold told him that they would not come to Australia because the father of her grandchildren would not give his permission and her daughter had a new boyfriend. Mrs Jarrold’s evidence showed she was very close to her daughter and her grandchildren and I accept that she would not have moved away from them. Mr Jarrold also said that once he arrived in Australia he knew that Mrs Jarrold would not be coming.

In her October 2012 statement and her oral evidence, Mrs Jarrold described the decision to come to Australia in terms of a visit to see whether it was a nice place to live and to look for a house. In her second statement, she said that, whilst Mr Jarrold ‘became obsessed with the idea of emigrating’, she believed he would change his mind, as he had done with the farm, and the idea of going to Australia was a distraction for him after the death of his son. In her oral evidence, she said she thought that Mr Jarrold would grow tired of the idea of Australia just as he had changed his mind about the farm, when that was all he previously wanted. Mrs Jarrold thought that Mr Jarrold sold the farm for ‘no real reason’, whereas Mr Jarrold said that it was not financially viable.

Both Mrs Jarrold and Mr Williams said that Mr Williams sponsored the daughter and grandchildren, but Mrs Jarrold went further and said the visas were granted. There is no documentary evidence that visas for Mrs Jarrold’s daughter and grandchildren were granted.

I consider that Mrs Jarrold’s assertion that the visas were granted for them contradicts her evidence that she believed that Mr Jarrold would change his mind, just as he did with the farm, about emigrating to Australia. If it was her belief that he would change his mind or grow tired of the idea of Australia, then there would be no good reason for visa applications for the daughter and grandchildren to be made.

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.

The Intention of Mr Jarrold

There is no evidence of any express agreement between Mr and Mrs Jarrold on the beneficial entitlement to the Sims Street property. Nor can any agreement be inferred from the circumstances. In those circumstances, only the intention of Mr Jarrold is relevant.

Mr Jarrold maintained that he elected to put the Sims Street property in both of their names so that, if anything should happen to him, Mrs Jarrold could deal with the proceeds of sale for the benefit of his daughter, Victoria. When asked in cross-examination whether this was the reason that Mr Jarrold put the property in both of their names, Mrs Jarrold said, ‘Yes, he did mention Victoria’.

Counsel for Mrs Jarrold submitted that the evidence of Mr Jarrold’s purpose for buying the Sims Street property was ‘wholly unconvincing’ and was based on a single conversation on the aeroplane coming over to Australia in January 1999. It was also said to be unconvincing because: the conversation took place before the Sims Street property had been found; the Sims Street property was bought at a time when it looked as though both of them would move to Australia, before the decision to sell Heol Y Glyn and purchase Cherry Tree Avenue; and Mr Jarrold’s stated concern about Victoria’s well-being was contradicted by Mr Jarrold’s failure to make a will in favour of Victoria.

In my view, the evidence of the intention when buying the Sims Street property does not rest on one single conversation. Mr Jarrold also gave evidence of his conversations with Mrs Jarrold after his son died in 1998 about looking after Victoria and that she was the only one now that he needed to look after. By then Mr Jarrold said they were both aware they would be separating, although they were still friendly and amicable. Mrs Jarrold’s evidence points to many longstanding grievances in the marriage that, in my view, support that the marriage was at or coming to an end.

As stated, Mrs Jarrold agreed in cross-examination that Mr Jarrold had told her that a reason he put the Sims Street property in both of their names was that, if anything should happen to him, Mrs Jarrold could deal with the proceeds of sale for the benefit of his daughter. Though it is not of itself determinative, this is an undisputed declaration by Mr Jarrold of an intention contrary to benefitting Mrs Jarrold by way of advancement.

Although Mr Jarrold’s declaration regarding his daughter was made before the sale of Heol Y Glyn and the purchase of Cherry Tree Avenue, those subsequent dealings are wholly consistent with an intention on the part of Mr Jarrold, before and at the time of the purchase of the Sims Street property, not to benefit Mrs Jarrold. As for the submission that the declaration was made at a time when it looked as though both would move to Australia, this contradicts Mrs Jarrold’s evidence in her second statement that she believed Mr Jarrold would grow tired of the idea of moving to Australia and the evidence in her Land Registry letter that the trip to Australia was a ‘visit’.

I have accepted Mr Jarrold’s reason for coming to Australia, and the evidence supports, in my view, Mr Jarrold’s declared intention to purchase a house in Melbourne. I accept that he had a grave concern for Victoria’s welfare, should anything happened to him. Victoria had ongoing problems with drug addiction and his relationship with her was ‘not easy’. He knew that Mrs Jarrold had a good relationship with Victoria. Mrs Jarrold agreed that she got on well with Victoria. Mr Jarrold’s evidence was that he trusted Mrs Jarrold to carry out his wishes and she said that she would.

His failure to make a will is consistent with his view that he had no reason to distrust Mrs Jarrold in carrying out his wishes. While Mr and Mrs Jarrold had grown distant, he said he still saw her as a good friend and trusted her to carry out his wishes. That he trusted Mrs Jarrold is reinforced by the fact that, when the transfer for the Sims Street property was signed in June 1999, it was, on Mrs Jarrold’s evidence, after she had told Mr Jarrold that she was not coming to Australia to live, yet Mr Jarrold still registered the property in both of their names.

I am satisfied that Mr Jarrold has rebutted the presumption of advancement, insofar as I am persuaded that he intended Mrs Jarrold to take her legal interest as a trustee for him pursuant to a resulting trust.

Conclusion

I am not satisfied, on the balance of probabilities, that Mrs Jarrold has satisfied the burden of proof on the forgery allegation.

I have found that Mrs Jarrold held her legal interest in the Sims Street property on resulting trust for Mr Jarrold.

I shall hear the parties as to the form of order and costs.

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[2013] VSC 461

10 September 2013