Kwon v Tran

[2010] NSWSC 1092

CITATION:	Kwon v Tran [2010] NSWSC 1092
HEARING DATE(S):	29 July 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	29 July 2010
DECISION:	Leave granted to obtain expert evidence.
CATCHWORDS:	PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – whether leave should be granted to allow expert handwriting evidence to be obtained and adduced in respect of an informal will – discretionary consideration – balance of justice and prejudice.
LEGISLATION CITED:	(NSW) Succession Act 2006, s 8, s 91 (NSW) Uniform Civil Procedure Rules 2005, r 31.45
CATEGORY:	Procedural and other rulings
PARTIES:	08/299069: John Kwon (plaintiff) Thanh Long Tran (defendant) 09/290758: Thanh Long Tran (plaintiff) John Kwon (defendant)
FILE NUMBER(S):	SC 08/299069;; 09/290758
COUNSEL:	Mr G McGrath (Kwon) Ms J Merkel (Tran)
SOLICITORS:	Staunton & Thompson (Kwon) Legal Aid NSW (Tran) J M Lanser (Commonwealth Bank)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday, 29 July 2010

2008/299069 John Kwon v Thanh Long Tran
2009/290758 Thanh Long Tran v John Kwon

JUDGMENT (ex tempore)

1 HIS HONOUR: The relevant issue in the substantive proceedings is whether a statutory declaration apparently made by the deceased on 10 September 2005 and apparently before William Tricker JP ought be admitted as an informal will pursuant to (NSW) Succession Act 2006, s 8. The defendant in the probate proceedings (2008/299069), who is the deceased’s widower, applies for leave to obtain and adduce the evidence of an expert handwriting witness as to the authenticity of the signature which appears as that of the deceased on the statutory declaration.

2 There are considerable discretionary reasons telling against permitting that course to be followed. First, these proceedings were, on 15 March 2010, set down for hearing before me on 15 and 16 June 2010. On 10 June 2010, on the application of both parties, I vacated that hearing on the basis that it was said that the case was almost certain to settle, but required some opportunity for further negotiation to complete that course. Having acceded to that application, I made directions that if the matter were, in the event not compromised, certain applications be made returnable before me today, including any application to join an additional party in the family provision proceedings brought by Mr Tran against Mr Kwon, and any application for a (NSW) SuccessionAct 2006, s 91 grant of administration to permit the family provision application to proceed. Those applications have been brought, and I have indicated some provisional views about the way ahead. Orally, counsel for Mr Tran has also sought the leave to which I have referred, to adduce expert evidence. Why it should be thought now, after a hearing was vacated only on the basis of imminent settlement, that this should be appropriate, when it was not apparently considered at an earlier stage, has not been explained.

3 Secondly, the deceased’s signature on the statutory declaration was apparently witnessed by Mr Tricker, as I have said. Mr Tricker has sworn an affidavit in the proceedings, deposing that the statutory declaration was made and signed by the deceased in his presence on 10 September 2005. He also deposes that he had on a previous occasion witnessed a guarantee signed by the deceased.

4 Thirdly, there have been placed before me on this application two specimen signatures of the deceased, one on a passport and one on a bank authority. While it is true that there are some minor differences between each of those specimen signatures and the signature that appears on the statutory declaration, to my albeit uneducated observations, so far as they go, they could not be said to be outside the normal range of variation for an individual’s signature. Moreover – again to my uneducated observation – there are significant consistencies between the two specimens and the questioned signature.

5 Fourthly, it is also relevant to bear in mind that this is a small estate, involving only an apartment, and that if significant costs are incurred and visited on the estate then the utility of the proceedings in preserving the apartment as a home for one or other of the competing parties will in any event be defeated.

6 Against all that, the claimant Thanh Long Tran may no doubt be concerned that denial of an opportunity to obtain an expert report in respect of the signature would foreclose further exploration of a legitimate line of inquiry which might bear on the outcome of the proceedings. As in any event I would make the costs of obtaining any report, at least in the first instance, the responsibility of Thanh Long Tran, there would be no financial prejudice to Mr Kwon from permitting that course to be followed. As a hearing is not imminent, that course would probably also not involve significant, if any, prejudice by way of delay in final resolution of the proceedings.

7 It is very tempting indeed to come to the view that no basis is shown for doubting the authenticity of the signature, on the cursory examination that I have undertaken, but I think I must bear in mind that that is based on photocopies, and is that of the untrained and uneducated eye of a judge, not of a handwriting expert; and, also that, as to Mr Tricker’s affidavit, where he deposes to having witnessed a document signed by the deceased on another occasion, it is not beyond the scope of judicial experience that witnesses have confused occasions upon which documents that they have witnessed have been signed. I give not a little weight to the circumstance that Mr Tran may harbour a sense of grievance if precluded from pursuing this course, against the absence of prejudice to Mr Kwon from permitting it to be pursued.

8 Not without considerable misgivings therefore, I:

1. Order that an expert be engaged jointly by the plaintiff and the defendant in respect of the question arising in the proceedings whether the signature purporting to be that of the deceased Thi Nam Kwon on the statutory declaration of 10 September 2005 is authentic.

2. Direct that if by 5 August 2010 the parties have not agreed on the identity of the single expert or the instructions to be provided to the single expert, they seek directions from the court by arrangement with my associate.

3. Direct, pursuant to (NSW) Uniform Civil Procedure Rules 2005 r 31.45, that in the first instance the defendant in the probate proceedings Thanh Long Tran be responsible and liable to the exclusion of the plaintiff John Kwon for the remuneration of the single expert.

4. Grant leave to the solicitors for the plaintiff John Kwon in the probate proceedings to uplift the original statutory declaration from the court file for the purposes of providing it to the handwriting expert, upon their undertaking to the court to deliver it directly to the handwriting expert and to return it to the custody of the court upon the completion of examination by the handwriting expert.

5. Adjourn to 26 August 2010 at 9.30am before me the probate proceedings and the associated family provision proceedings for further directions.

6. Adjourn also to that date the two notices of motion, one in each proceeding, before the court today.

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