Miles v Amos

[2021] NSWSC 38

Supreme Court

New South Wales

Medium Neutral Citation:

Miles v Amos [2021] NSWSC 38

Hearing dates:

31 August, 1 – 3 September 2020

Date of orders:

3 February 2021

Decision date:

03 February 2021

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

(1) Orders that the third amended Statement of Claim be dismissed with costs.

(2) Orders that the caveat lodged by the Plaintiff on the title to XX Callistemon Street, Mount Annan, NSW be removed within seven days.

Catchwords:

PERSONAL PROPERTY – Assignment of choses in action based upon Deed of Debt – Whether assignment valid if Defendant’s signature on Deed of Debt not proved to be her signature – Evidence of two witnesses of the Plaintiff that Defendant signed Deed of Debt in their presence – Defendant denies having signed Deed of Debt – Two of her witnesses give evidence that the Defendant could not have done so as one, or both, of them were with her on the day the Deed of Debt said to have been signed – Fourth signatory on Deed of Debt not called and each of the other signatories deny knowing him – Also evidence of expert forensic document examiner

EVIDENCE – Standard of proof – Whether the Plaintiff has satisfied the Court that the Deed of Debt was signed by the Defendant – Credibility of the lay witnesses – The expert evidence on handwriting regarding simulation of the Defendant’s signature on Deed of Debt – No expert forensic evidence called on behalf of the Plaintiff – Seriousness of allegation – Whether Plaintiff able to discharge burden of proof as to authenticity of Defendant’s signature on Deed of Debt

PERSONAL PROPERTY – Assignment of choses in action – Whether Deed of Debt assigned and if so nature of the assignment – Whether Deed of Assignment rectified

CONTRACTS – Rectification – Intention – Deeds of rectification – Where rectification of two different Deeds of Assignment purported to give effect to actual intention of the assignor and assignee, respectively, in Deeds of Assignment – Whether sufficient evidence of actual intention of each of the parties to first Deed of Assignment

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 62

Conveyancing Act 1919 (NSW), ss 12, 170

Corporations Act 2001 (Cth), s 477

Evidence Act 1995 (NSW), ss 140, 160

Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Law of Property Act 1925, 15 & 16 Geo 5, c 20, s 136

Real Property Act 1900 (NSW), s 74J

Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 14.28, 31.3

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10

Adami v The Queen (1959) 108 CLR 605; [1959] HCA 70

Anning v Anning (1907) 4 CLR 1049; [1907] HCA 13

Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16

Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1

Bakewell v Anchorage Capital Master Offshore Ltd (2019) 372 ALR 349; [2019] NSWCA 199

Ballard v Multiplex [2012] NSWSC 426

Brannigan v Smith (2017) 18 BPR 37,193; [2017] NSWSC 1201

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Browne v Dunn (1893) 6 R (HL) 67; 6 ER 67

Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550

Camdex International Ltd v Bank of Zambia [1998] QB 22

Campbells Cash and Carry Pty Limited v Fostif Pty Limited (2006) 229 CLR 386; [2006] HCA 41

Charara v City First Holdings Ltd [2017] NSWDC 448

Charara v Commissioner of Taxation [2016] FCA 451

Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42

Coles v Reynolds & Anor [2020] EWHC 2151

Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329

Consolidated Trust Company Limited v Naylor (1936) 55 CLR 423; [1936] HCA 33

Craig v Silverbrook [2013] NSWSC 1687

Cushing v The Lady Barkly Gold Mining Company Registered (1883) 9 VLR (E) 108

Davie v Magistrates of Edinburgh 1953 SC 34

Davis v Commissioner of Taxation (2000) 171 ALR 654; [2000] FCA 44

Elfic Ltd v Macks [2003] 2 Qd R 125; [2001] QCA 219

Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7

EWC Payments Pty Ltd v Commonwealth Bank of Australia [2014] VSC 207

Ex parte Dally-Watkins; Re Wilson (1955) 72 WN (NSW) 454

Fiona Trust & Holding Corporation v Privalov [2010] EWHC 3199 (Comm)

Gawne v Gawne [1979] 2 NSWLR 449

Goodridge v Macquarie Bank Limited (2010) 265 ALR 170; [2010] FCA 67

Holt v Heatherfield Trust Ltd [1942] 2 KB 1

Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29

In Re H (Minors) [1996] AC 563

In the matter of Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789

Jeans v Cleary [2006] NSWSC 647

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Mateljan v HTT Huntley Heritage Pty Ltd (2016) 111 ACSR 277; [2016] NSWCA 20

McGlen-McLeod v Galloway [2012] NSWCA 368

Mearns v Australian Litigation Fund Pty Ltd [2006] FCAFC 81

Monk v Australia and New Zealand Bank Group Ltd (1994) 34 NSWLR 148

National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Nina Kung v Wang Din Shin [2005] HKCFA 54

Onassis v Vergottis [1968] 2 Lloyd’s Rep 403

Pora v The Queen [2016] 1 NZLR 277; [2015] UKPC 9

Porter v Bonarrigo [2009] VSC 500

Poulton v The Commonwealth (1953) 89 CLR 540; [1953] HCA 101

Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr [2005] NSWCA 240

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Queenfield Pty Ltd v Gordon Finance Pty Ltd [2020] VSCA 282

R on the application of SS (Sri Lanka) v The Secretary of State for the Home Department [2018] EWCA Civ 1391

R v Browne-Kerr [1990] VR 78

Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11

South Australia v McKendrick Ahern Pty Ltd (Supreme Court (SA), 9 December 1997, unrep)

Telfer v Telfer (2014) 87 NSWLR 176; [2014] NSWCA 186

Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)

Trendtex Trading Corporation v Credit Suisse [1982] AC 679

Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505

Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Watson v Foxman (1995) 49 NSWLR 315

West v Government Insurance Office of New South Wales (1981) 148 CLR 62; [1981] HCA 38

WorkCover Queensland v Amaca Pty Limited [2013] 2 Qd R 276; [2012] QCA 240

Texts Cited:

David Malcolm, “To Wig or be Damned” (1988) 15(7) Brief at 8

Hodge M Malek QC (ed), Phipson on Evidence (19th ed, 2018, Sweet & Maxwell)

J D Heydon, Cross on Evidence (2020, LexisNexis)

J D Heydon, M J Leeming, P G Turner, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths)

Michael V Argyle QC, Phipson on Evidence (10th ed, 1963, Sweet & Maxwell)

Category:

Principal judgment

Parties:

Phillip Jacob Miles (Plaintiff)
Catherine Gonzales Amos (Defendant)

Representation:

Counsel:
Plaintiff (self-represented)
P Folino-Gallo (Defendant)

Solicitors:
Plaintiff (self-represented)
Coleman Greig Lawyers (Defendant)

File Number(s):

2018/00185934

Judgment

Introduction

1. HIS HONOUR: Despite a host of factual, and other, disagreements, there can be no dispute that this is an unusual case. On some of the fundamental facts, there are serious difficulties standing in the way of the acceptance of the evidence of the principal witnesses. At almost every level, the competing positions of those witnesses cannot be reconciled. Determining where the truth lies and which version of the facts is the more convincing, has been much more difficult than one might expect, given that the only witness on the facts in dispute, who was plainly self-interested, was the Defendant. The other witnesses, on each side, appeared to have no apparent motive to give untruthful evidence, and each had no apparent financial interest in the outcome of the case. Nor was her, or his, evidence, undermined, in such a way, as to make it clear that she, or he, was being mendacious. There was the added complexity of the uncontested expert forensic evidence which supports the Defendant’s case. In order to explain, one must descend into the detail of the evidence.

2. Yet, it is not necessary to decide every point that has been advanced in order to determine the issues. Indeed, it is impossible to do so, although the nature of the factual disputes must be set out. It is only necessary to decide whether the matters relied upon by each of the parties, respectively, are supported, and, if they are, whether they warrant the relief sought.

3. As was recently written in Coles v Reynolds & Anor [2020] EWHC 2151 (Ch), by Matthews HHJ, at [26]:

“…judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence. Expressed findings are always surrounded by a penumbra of imprecision which may still play an important part in the judge's overall evaluation.”

4. Even so, the process has, resulted in an over-long judgment and one in which detailed references to the evidence have been necessary.

The nature of the proceedings

5. The proceedings involve a claim made by the Plaintiff, Phillip Jacob Miles, against the Defendant, Catherine Gonzales Amos, pursuant to what is said to have been a valid assignment of debt owed but unpaid, which includes the value of jewellery, said to have been retained by, the Defendant.

6. Two other principal participants in the proceedings, although each is not a party, are Cristina Yu Ong (Ms Ong), who is, and who was at all material times, a Philippine national, and who is said to have assigned the debt (and chose in action) to the other participant, Thomas Baena (also known as Tom), a solicitor, who, in turn, is said to have assigned the debt (and chose in action) to the Plaintiff. Each was one of the witnesses called by the Plaintiff in the proceedings. The amount of the claim, as asserted in the third amended Statement of Claim filed by the Plaintiff, was $305,334, plus interest, filing and service fees.

7. For reasons to which I shall later refer, the Defendant’s broad submission was that the Plaintiff’s claim should be dismissed with costs. In broad summary, as she put it, “I do not have the jewellery. I do not [owe] money to Cristina Ong and … she is the one who owed money to me. That has not been settled”: Tcpt, 3 September 2020, p 290(31–32).

8. Thus, the central conflicts of evidence concerned whether the Defendant signed a written Deed of Debt and whether she had retained the jewellery which she acknowledged that she had received but which she said she had returned.

9. The Plaintiff is a litigant in person. Although not a lawyer, it was clear, from his conduct of the proceedings, that he has some experience in conducting litigation and appearing in Court. In addition, according to what he said at a directions hearing held on 4 August 2020 (Tcpt, 4 August 2020, p 2(16–20)), and at the hearing, he has sought, and obtained, legal advice, in relation to the conduct of the proceedings.

10. Whilst the Court suggested to the Plaintiff, more than once prior to the hearing, that he should be legally represented at the final hearing, the Court accepted, in view of the fundamental right of a litigant to appear in person, enshrined in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.1(1), he could continue without legal representation. He did not suggest that he required the assistance of the Court to explain matters of procedure or applicable rules. He seemed to be well aware that the Court’s duty was not to advise him of how to conduct his case; or to advise him of how his rights should be exercised; or to advise him as to any inadequacies in his evidence, having regard to the pleaded case; or to become his advocate, or stand in the shoes of legal representatives had they been retained; and that the Court would not unduly interfere with the conduct of the trial on his behalf.

11. The matter was listed for hearing for four days. It commenced on the afternoon of Monday, 31 August 2020, and continued until Thursday, 3 September 2020. Mr P Folino-Gallo of counsel appeared for the Defendant.

12. When directions were given on 4 August 2020, the Court noted the agreement of the parties that the hearing could proceed by way of live hearing. Arrangements were then made, and the imprimatur of the Chief Justice was then obtained, for that to occur. However, in the week before the hearing, the Plaintiff made an application that Ms Ong and Ms Maricel Cruz Gonzales, the sister of the Defendant, each of whom was to be called as a witness in support of his case, should be permitted to give evidence by audio-visual link as each was in The Republic of the Philippines and would not be able to travel to Australia for the hearing.

13. On behalf of the Defendant, an application was made that Robin Rin Salandanan, who was also in The Republic of the Philippines should be permitted to give evidence in the same way.

14. There was no dispute that the Plaintiff’s two witnesses were important, and that her evidence, and credibility, was in contest, which made it relevant to a consideration of the interests of justice. It was accepted that the Defendant’s witness, Mr Salandanan, was less important to the determination of the case than the Plaintiff’s witnesses.

15. Although the application for those witnesses to give evidence by audio-visual means, was not the subject of a notice of motion, the Court was able to take judicial notice of the fact that international travel into Australia was constrained in response to the COVID-19 pandemic, and that the evidence could not, more conveniently, be given in the courtroom without creating a potential health risk. In addition, by allowing the evidence to be given remotely, the hearing could proceed, thereby making efficient use of available judicial and administrative resources. Finally, neither party opposed the application of the other.

16. Section 62(1) of the Civil Procedure Act 2005 (NSW) provides that the court may, by order, give directions as to the conduct of any hearing. UCPR r 31.3(1) also provides that, if the court so orders, evidence and submissions may be received by telephone, video link, or other form of communication. Thus, the Court has a general power to make orders permitting the evidence of a witness to be given by audio video link.

17. Despite the late request, I was satisfied that to make an order permitting each of the overseas witnesses to give oral evidence to the court by audio visual link from a place outside Australia, would not be unfair to any party to the proceeding and that, otherwise, it was in the interests of the administration of justice to permit that to occur. I exercised the broad discretion in s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), and made the direction for evidence to be taken from each from a place outside Australia by audio visual link.

18. On the second day of the hearing, without opposition from either party, the Court made the following direction (Tcpt, 1 September 2020, p 51(19–25)):

“Directs, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that the Plaintiff’s witnesses, Cristina Yu Ong and Maricel Gonzales, and the Defendant’s witness, Robin [Salandanan], shall give evidence by audio-visual link from a place outside Australia, other than Court Room No 2 Hospital Road, Sydney.”

19. In the events that happened, the Court was informed that Mr Salandanan, on the night before the second day of the hearing, had been hospitalised, having received a coronavirus diagnosis. The Plaintiff did not dispute the facts asserted. It was accepted that Mr Salandanan, therefore, was unable to be cross-examined on his affidavit. Ultimately, I did not allow the affidavit to be read as he was not available for cross-examination: Tcpt, 3 September 2020, p 338(22) – p 339(09).

20. The giving of the evidence of each overseas witness was conducted using “Microsoft Teams”, a video communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility. Although there were some technical problems, whilst the evidence was being given, they were resolved, and the matter proceeded without any significant interruption. (However, the written transcript of evidence suffered as a result.)

21. Despite the hearing being conducted in this way, there was no informality, as counsel for the Defendant, and I, were wigged and robed throughout the cross-examination. The location and appearance of the AVL facility also was sufficiently formal with each party giving her evidence without any other witness being present in the room.

22. Each of the witnesses who gave evidence remotely had the opportunity to give her evidence comfortably, and the hearing was not materially impeded. I was able to see each almost as I would have, had she been present in the courtroom.

23. Having concluded that part of the hearing, my view that the cross-examination could be undertaken fairly, in a forensically sound, thorough, and just, manner was confirmed. I was also satisfied that, notwithstanding the circumstances, there was an effective cross-examination. No complaint was made about the way in which the cross-examination had been conducted.

24. As I have stated in another case, adherence to Court protocol is not without reason. As the Honourable David Malcolm AC QC, then Chief Justice of Western Australia, wrote extra-curially:

“It is important to remember that practitioners and judges are all officers of the Court as it were, and when they are performing their official functions they assume responsibilities quite separate and apart from the individual person they are. The symbolism involved in robing, plays an important part in bringing home to people the sense of responsibility that must drive them in performing their function as officers of the Court”: David Malcolm, “To Wig or be Damned” (1988) 15(7) Brief at 8.

The Plaintiff’s Case

25. In the third amended Statement of Claim, the Plaintiff sought the following relief:

“1. Order that until further order by the Court, caveat number AN171777, be extended pursuant to section 74K of the Real Property Act 1900 (NSW).

2. Judgment for the Plaintiff in the amount of $420,240.76.

3. Order that, the defendant pays the plaintiff’s cost on an indemnity basis or as the Court thinks fit.

4. The caveat number AN171777 be extended over the defendant’s interest in the real property at (Folio: XXXX/YYYYYYY) until the judgment is satisfied or until further order by the Court.

Amount of claim   $305,334.00

Interest      $113,612.76

Filing fees      $1,144.00

Service fees      $150.00

TOTAL     $420,240.76”

26. In summary, the Plaintiff sought recovery of a debt said to be owed by the Defendant. The Plaintiff, however, brought his claim as the second assignee of the debt. The underlying transaction said to have given rise to the debt was one between Ms Ong and the Defendant.

27. On the Plaintiff’s case, Ms Ong and the Defendant had entered into a contract (partly oral) to the effect that the Defendant would purchase land in Tasmania in Ms Ong’s name and would arrange for the construction of a building on that land. In consideration, Ms Ong would, initially, pay $40,000 to the Defendant in cash, and would pay the balance, $265,334, by giving her jewellery said to be of that value. Ms Ong had paid the Defendant in accordance with the agreement. However, the Defendant had failed to purchase the land in Ms Ong’s name, and had failed to construct any building upon it, and that, in consequence of the failure to uphold the terms of the agreement, those parties had entered into a Deed of Debt on 22 May 2017. A copy of the Deed of Debt was found in Ex P1/4–10.

26. The original of the Deed of Debt, immediately prior to the hearing, had been in the possession of the Plaintiff: Tcpt, 1 September 2020, p 97(09–30). It was not produced to the Court until 1 September 2020 and it was then marked Ex P2. The original, as tendered, did not have any photographs annexed to it. In re-examination, Ms Ong stated that when she had signed the original Deed, there were eight photographs attached to it: Tcpt, 1 September 2020, p 103(38) – p 104(17). She gave evidence that prior to the preparation and signing of the Deed, she had handed the photographs to Ms Gonzales to give to the Defendant: Tcpt, 1 September 2020, p 107(23–42). Ms Gonzales gave similar evidence at Tcpt, 1 September 2020, p 121(40) – p 121(50).

27. The Deed was said to operate as a guarantee, or as an acknowledgement, of the debt that was owed by the Defendant, which debt was to be repaid by the end of October 2017. The Plaintiff pleaded that the Defendant had failed to repay any part of the debt.

28. It was the substance of the Plaintiff’s case, that the precise identification of how the debt was created, the formality of execution before witnesses, and the contents of the Deed of Debt supported the conclusion that it was intended to prove, and to provide written evidence of, the claims being made.

29. The Deed of Debt specifically recited:

“The Creditor and the Debtor have unconditionally and willingly agreed that the Debtor owes the Creditor in the amount of $305,334.00 AUD plus interest.”

32. The parties to the Deed of Debt were also said to have agreed that the debt consisted of certain things set out in Recital B, arising from two bank transfers ($40,000) and expensive “jewelleries”, each with a value attributed to it, including 6.17 carat diamond earrings, a Chopard ladies luxury wristwatch, plus bracelets, earrings, a necklace, and other items, said to be of considerable value ($265,334). The Deed also acknowledged that interest could be charged at 15 per cent per annum: Recital D. Recital E of the Deed provided that “[t]he debtor unconditionally and willingly accept that the Creditor can sell the debt to any person or entity without any restriction, and the Creditor’s ownership and entitlement of this deed is an automatic transfer with the sale”. It will be necessary to return to the Deed of Debt in more detail later in these reasons.

33. Pausing there, one might have thought that the case would have been relatively straightforward, but the Defendant denied that the Deed of Debt had been signed by her. She called two witnesses to support her denial. In addition, she called a forensic document examiner, with over 10 years’ experience, Ms Melanie Holt, to give evidence on the topic. Ms Holt’s first report was dated 2 July 2018 and with a document headed “Case Notes” dated 9 January 2020, was tendered and marked as Ex D1. Her second report, which was dated 18 April 2019, and which was tendered and marked Ex D2, was written after she was given the opportunity to examine the original Deed of Debt. Each report was admitted over the objection of the Plaintiff. It will be necessary to return to the expert evidence.

34. The Plaintiff asserted that on 26 February 2018, Ms Ong assigned her rights to the Deed of Debt to Mr Baena, solicitor, by a written document headed “Assignment of Debt”.

35. On 6 March 2018, Mr Baena was said to have assigned his rights to the Deed of Debt, to the Plaintiff by a written document headed “Assignment of Debt”.

36. In about June 2019, after the commencement of the proceedings, it became apparent that the Defendant was challenging, amongst other things, the nature and completeness of the assignment. As will be referred to later in these reasons, the Defendant contended that, if the Deed of Assignment were valid, it only effected an assignment of Ms Ong’s rights under the Deed of Debt and was not an assignment of any other cause of action that might exist.

37. In response to that contention, Ms Ong deposed in an affidavit sworn 14 June 2019:

“I deny the debtor’s assertion that only the ‘Deed of Debt’ was assigned and I say that, when I signed the ‘Assignment of Debt’ dated 26 February 2018, It was my intention and was fully aware that I was assigning all my rights to the ‘Debt’ that were owing me [sic] by the debtor and the ‘Deed of Debt’ that I and Catherine Gonzales signed on 22 May 2017.

As a result of the debtor’s misunderstanding of the ‘Assignment of Debt’ dated 26 February 2018, we have voluntarily RECTIFIED the written ‘Assignment of Debt’ dated 26 February 2018, to fully incorporate our intentions upon which the ‘Assignment of Debt’ was made and signed.” (emphasis in original)

38. Whilst the issue of the rectification was rarely referred to during the hearing, it was plain that the Plaintiff sought to rely on two Deeds of Rectification (as evidenced in the third amended Statement of Claim). The first Deed was one dated 15 June 2019 and purported to rectify the Deed of Assignment entered into between Ms Ong and Mr Baena. The second was one dated 17 June 2019 and purported to rectify the Deed of Assignment entered into between Mr Baena and the Plaintiff. I shall return to the topic later in these reasons.

39. It is best to identify, verbatim, the Plaintiff’s ultimate claim as adverted to in par 15 of the third amended Statement of Claim:

“The defendant owes the plaintiff the Debt in the amount of $305,334.00 plus interest in the amount of $113,612.76 and all incidental expenses including cost. And interest is accruing until the defendant pay the debt in full.

a.   As a result of the defendant’s failure to pay the debt, the plaintiff duly holds equitable interest over the defendant’s interest over XX Callistemon Street Mount Annan NSW 2567 (folio: XXXX/YYYYYYY).”

The Defendant’s Case

40. The Defendant, in her amended Defence, denied some of the allegations in the third amended Statement of Claim. In respect of the alleged contract between her and Ms Ong, however, she admitted that there was an agreement by which the Defendant would purchase property in Tasmania on behalf of Ms Ong. She asserted, however, that the agreement was wholly oral and was made in, or about, November 2016 using the communication app “Viber”. The terms of that agreement were, relevantly:

1. The Defendant would purchase four parcels of real property in Tasmania, at her own discretion, and in her personal name;

2. The Defendant, initially, would pay for all costs and expenses associated with each of the purchases;

3. The Defendant and Ms Ong would take all necessary steps to transfer the title to the properties purchased from the Defendant to Ms Ong or her nominee;

4. Ms Ong would pay the Defendant, in Australian dollars, the costs and expenses associated with the purchase and transfer of the properties purchased;

5. After the transfer, Ms Ong would engage the Defendant to manage the properties in Tasmania, including to oversee any construction of buildings thereupon; and

6. Ms Ong would pay the Defendant, in Australian dollars, for all expenses incurred in relation to the management of the properties.

41. The Defendant denied that it was a term of the agreement that, initially, $40,000 of the purchase price would be paid in cash. She also denied that it was a term that the balance of the purchase price would be paid in jewellery.

42. The Defendant admitted to receiving a payment of $19,980 from Ms Ong on about 16 November 2016: Ex P1/11. However, she characterised the payment as being one to demonstrate good will, made to assure the Defendant that Ms Ong would comply with her obligations under the agreement. The Defendant gave a similar characterisation to a second payment of $19,980 received on 27 March 2017: Ex P1/12. (The difference between the amount received and $20,000, in each case, are likely to have been bank charges.) Accordingly, she denied that either of the payments of $19,980 was made pursuant to the terms of any agreement between her and Ms Ong.

43. The Defendant asserted that, shortly after the November 2016 payment was received, Ms Ong instructed her to use the funds that had been transmitted to purchase certain luxury items for her, which the Defendant says that she did. She stated that Ms Ong promised to transfer further funds to reimburse her for the balance of the costs of the items purchased.

44. It was then asserted that between 27 February 2017 and 25 May 2017, the Defendant did, in fact, purchase four parcels of real property in Tasmania, pursuant to the terms of her agreement with Ms Ong. Each property, it was said, received the approval of Ms Ong before it was purchased.

45. In May 2017, Ms Ong (and others) travelled to Australia, at different times, and met the Defendant. It was during this visit that it was said that the Deed of Debt was signed, a matter denied, from the outset, by the Defendant.

46. In relation to the jewellery, the Defendant admitted, that, on two occasions during that visit, she received some pieces of jewellery from either Ms Ong, or from Ms Gonzales (on behalf of Ms Ong). However, she asserted that all of the jewellery that had been handed to her, was returned to Ms Ong, or to Ms Gonzales, later during the same trip, partly on about 12 May 2017, when she met Ms Ong in person for the first time, and told her that she did not wish to buy the jewellery from her, and as to the balance, on 23 May 2017, when she returned the balance of the jewellery to Ms Gonzales, whilst on a domestic flight travelling from Victoria to Sydney, who was then observed to have handed it to Ms Ong. The Defendant asserted that she had never seen the jewellery again after it was returned.

47. (Ms Ong firmly disputed this, stating that not a single piece of jewellery was returned: Tcpt, 1 September 2020, p 75(27–39).)

48. The Defendant also averred to having made several demands of Ms Ong to repay certain expenses that the Defendant had incurred on her behalf. Not only were these expenses associated with the properties in Tasmania, but also with the costs of Ms Ong’s trip to Australia, referred to above, some of which expenses it was said had been paid by the Defendant.

49. The Defendant pleaded that she did not know, and could not admit, the factual circumstances surrounding each assignment. However, she denied that any assignment was legally effective on four bases, namely that:

1. The debt, Deed of Debt and cause of action did not exist (as she had not been a party to and had not signed that document);

2. The alleged cause of action was not capable of being assigned at law, or in equity, as it was a bare right to bring an action for the tort of conversion;

3. Alternatively, the alleged cause of action was not capable of being assigned as a contractual right, as the Plaintiff did not have a genuine commercial interest in the enforcement of the claim; and

4. The proceedings constituted an abuse of process as the Plaintiff was “trafficking in litigation”. (In Elfic Ltd v Macks [2003] 2 Qd R 125 at 137 [65]; [2001] QCA 219, McMurdo P had written at [65] that “the courts must remain vigilant to ensure in the interests of public policy that there is no trafficking in litigation or speculating in causes of action for improper gain”.)

50. The Defendant denied the receipt of any notice of assignment from Mr Baena, although she admitted to having received a written notice of assignment from the Plaintiff. Indeed, there was undisputed evidence from the Plaintiff that on Saturday 10 March 2018, he had received a telephone call in which the Defendant denied being indebted to Ms Ong. However, the Defendant also denied the validity of the Plaintiff’s notice of the assignment in circumstances where she asserted that she did not know that she was indebted to Ms Ong or of the existence of the Deed of Debt, which she disputed having signed.

51. Finally, the Defendant denied, by reason of the above matters, that the Plaintiff held any equitable interest in the Defendant’s interest in certain land at Mount Annan on the title to which he had lodged a caveat.

52. The Plaintiff filed a Reply to the Amended Defence which amounted to a total denial of the factual allegations raised by the Defendant.

The Dramatis Personae

53. I shall next refer to the parties and the witnesses.

54. The Plaintiff is a director of a number of businesses including PJM Litigation and Debt Management Pty Ltd. In his first affidavit, he described himself as a “litigation manager”, and in his last affidavit as a “businessman”. He stated that he was not a lawyer. However, when asked in cross-examination, he also stated that he had obtained a law degree from the University of Liberia in the 1980’s, although he could not remember when, precisely, he had obtained a degree. (Liberia is a country on the West African coast.)

55. In Ex D4, which was a copy of a document obtained from the company’s website, the Plaintiff was described as having “attended law school in Australia and was licensed by the Court and subsequently issued with a master licence”. The document did not identify the law school that the Plaintiff had attended or when he had attended the law school.

56. When asked about the licence to which the document referred, he stated, at Tcpt, 2 September 2020, p 150(45–47), that he “was licensed by the Local Court of New South Wales to carry out commercial services, commercial agent services”. It was put to him that the statement in the document was one designed to mislead, which, somewhat disingenuously, he denied.

57. In Ex. D4, the Plaintiff, whether incorrectly or not, was also said to have “over 20 years’ knowledge and practical experience in the law and Court procedures and has conducted litigation in the Local Court, District Court, Supreme Court, the Administrative Tribunals of Australia, the Federal Court and the High Court, as he conducts his cases”. No examples of cases in which he had appeared, in any of these Courts, were given.

58. Finally, the Plaintiff was cross-examined, and he admitted, that in other proceedings, in which he had been a party, he had been identified as “Jamal Charara”. The proceedings were referred to with the medium neutral citation Charara v City First Holdings Ltd [2017] NSWDC 448.

59. (Although there is also a decision of the Federal Court in Charara v Commissioner of Taxation [2016] FCA 451, referred to, involving “Jamal Charara” as the applicant, I do not draw any conclusion from this case because the hearing occurred on 30 July 2015 even though the date of the reasons for judgment was 29 April 2016.)

60. The Plaintiff said that he had changed his name in 2015 or 2016, later confirmed by a document to have been December 2015, but he could not explain why he had been referred to by that name in September 2017 (the date of the application in Charara v City First Holdings Ltd): Tcpt, 1 September 2020, p 141(03) – p 142(39).

61. The Plaintiff accepted that he “purchased debts and cases from other people” as his business and that he “run[s] those cases in [his] own name for profit”: Tcpt, 1 September 2020, p 142(50) – p 143(05).

62. Ms Ong, in her affidavit, and orally, described herself as a “[b]usinesswoman”. She said that she was the owner of a “large corporation”, Dairy Essence Cheese, which is registered in the Republic of the Philippines. It is a business of not insignificant size, having over 400 employees. The company is engaged in cheese manufacturing and wholesale and retail sales thereof. It is owned by PYO International Corporation, which she described as “a family corporation”: Tcpt, 1 September 2020, p 65(05–10).

63. Ms Ong swore four affidavits that were read in the proceedings, and she gave her oral evidence through an interpreter, it being asserted, by the Plaintiff, that she needed to do so because she has “hypertension, high blood pressure, so she [feels] comfortable giving evidence through an interpreter. That’s what I’m informed”: Tcpt, 31 August 2020, p 7(01–04). Ms Ong confirmed that she had high blood pressure: Tcpt, 1 September 2020, p 66(34–35).

64. Ms Ong said that she had assigned the claim because she did not want the stress of litigation. Yet, she was prepared to participate in these proceedings and to make herself available for cross-examination, as the Defendant “got … all [the jewellery and] I want justice”: Tcpt, 1 September 2020, p 68(02–04).

65. Relevantly, one of the company’s employees was Ms Gonzales who is the biological sister of the Defendant. They grew up in The Republic of the Philippines but were raised in different homes. She was, at the relevant times, Ms Ong’s personal secretary and Ms Ong regarded her as a trusted employee: Tcpt, 1 September 2020, p 74(34–43).

66. In about 2000, the Defendant had emigrated from The Republic of the Philippines to Australia. Between 2000 and 2009 or 2010, there was little contact between the Defendant and Ms Gonzales. However, in about early 2010, they had reconnected and began communicating with some regularity.

67. By this time, Ms Gonzales had commenced working for Ms Ong. Although Ms Gonzales denied it, I am satisfied that it was likely to have been Ms Gonzales who introduced Ms Ong to the Defendant. There was some dispute about when this occurred, but whether it was in August 2016, or in November 2016, matters little, for the determination of the instant case.

68. Ms Gonzales was also a witness, called by the Plaintiff, and she was cross-examined.

69. Mr Baena is a solicitor, practising in the CBD in Sydney. He is a solicitor admitted in New South Wales and he practises as a sole practitioner trading under the name of “Baena Legal”. He was admitted as a solicitor in about 2006. Formerly, he had been a Major in the Australian Defence Force. He was a witness in the proceedings called by the Plaintiff and he was cross-examined.

70. Mr Baena met Ms Ong in about February 2018, (although he had spoken to her, by telephone, before then) when he travelled to The Philippines for that purpose. He had “made an offer to purchase her case” on the day after he had first met her: Tcpt, 2 September 2020, p 162(09–11). It was to Mr Baena that Ms Ong assigned the rights under the Deed of Debt on 26 February 2018 for $50,000: Ex P1/54–55.

71. Then, it was Mr Baena who, on 6 March 2018, assigned the rights under the Deed of Debt to the Plaintiff for $63,799.26, which amount had been paid to him by the Plaintiff: Ex P1/57–58. He gave evidence that he had sold the debt because he believed “it will take a long time and I don’t have the resources to pursue it myself”: Tcpt, 2 September 2020, p 164(15) – p 165(03).

72. Mr Baena gave evidence that he had sent a letter on 2 March 2018 to the Defendant effectively saying, “I now own this debt” and required payment, the receipt of which letter the Defendant denied.

73. Mr Baena had assisted in the preparation of Ms Ong’s affidavits by typing the affidavits when she told him what had happened. He had also assisted in the preparation of Ms Gonzales’ affidavits. He had also “been present” when the Plaintiff had prepared his affidavits and had provided guidance on “the substance of the [matters]” contained in it: Tcpt, 2 September 2020, p 64(34–50), p 111(09) – p 112(14), p 160(45) – p 161(19). He had also attended, with the Plaintiff, at a number of directions hearings.

74. Mr Baena, on instructions from the Plaintiff, apparently obtained a Deed of Rectification from Ms Ong on 14 June 2019. That document purported to expand the rights that had been assigned under the original Deed of Assignment that had been entered into between Ms Ong and Mr Baena. He gave evidence that whilst he had conferred with the Plaintiff about this document and they had agreed to obtain it, he had used his own money to obtain the Deed of Rectification from Ms Ong: Tcpt, 2 September 2020, p 162(36–48).

75. Mr Baena also said that he was not being paid by the Plaintiff for his professional services; that he had not entered a costs agreement with him, but that “[the Plaintiff] promised me that he … will pay me one day”: Tcpt, 2 September 2020, p 162(50) – p 163(41). (This statement was inconsistent with the Plaintiff’s evidence at Tcpt, 2 September 2020. p 152(17–49).)

53. A person by the name of Sabas Capili, who was not called as a witness by either party, was shown as one of the signatories, with Ms Ong, Ms Gonzales, and the Defendant, to the Deed of Debt. In the cross-examination of Mr Baena, it was ascertained, for the first time, that he knew a person by the name of Sabas Capili. He denied, however, that this person was the same person referred to in the Deed of Debt as one of the attesting witnesses: Tcpt, 2 September 2020, p 168(23) – p 171(39). Mr Baena had told the Plaintiff that he did not know the person referred to in the Deed: Tcpt, 2 September 2020, p 154(24) – p 155(30), p 174(13–20).

54. Ex D3 was a bundle of documents relating to Mr Capili, including one which was a photograph of Mr Baena and Mr Capili together. Mr Baena stated that he had not asked, and would not have asked, Mr Capili whether he was the signatory on the Deed of Debt because “I respect other people’s privacy so I don’t ask them about their commercial transactions or anything”: Tcpt, 2 September 2020, p 172(23–26), p 174(05–11).

55. Each of the Plaintiff, Ms Ong, Ms Gonzales, and also the Defendant, denied knowing a Mr Capili, although Ms Gonzales described him was as “a friend of Cathy’s”: Tcpt, 1 September 2020, p 66(12–17), p 92(23–29), p 126(22–30), p 143(07–17); Tcpt, 2 September 2020, p 270(44) – p 271(01).

56. The Defendant gave evidence and was cross-examined. She described her occupation as that of a Service Officer, formerly at the Department of Human Services, and at the date of hearing, at Centrelink. Not very much more about her was known although she had a business relationship with one of the other witnesses called on her behalf.

57. Mansukh P Mepani was a friend of the Defendant. He was present in Melbourne in May 2017 whilst she entertained her sister and others from The Philippines. In his affidavit affirmed on 7 September 2018, he wrote that on 22 May 2017 (the day the Deed of Debt was purportedly signed), the Defendant had spent almost the whole day in the room, as she was not feeling well, a matter he observed as he had looked after her at least for part of the time. He also said that later in the day, the Defendant was feeling better so they, and others, went out to a shopping outlet, and were together, until 5:00 p.m. when they returned to the Hotel. He, too, was cross-examined.

58. Neil Santiago was also a friend of the Defendant. He was present at a number of the events the subject of evidence to which I shall refer. He gave evidence, in his affidavit of 7 September 2018, that when he left the room at about 9:00 a.m., on 22 May 2017, the Defendant had remained there as she was not well, and that it was only at about lunchtime that he returned. Following his return, the Defendant left the room in which they were staying and that they, with others, went together to a shopping outlet where they remained, together until about 6:00 p.m. that evening. He was cross-examined also.

59. Jalel Elias (also known as Jake) was another friend of the Defendant. He gave evidence that he was in Sydney and that he had lent the Defendant his credit card, because she had told him that Ms Ong, “her potential new business partner”, “was having trouble using her credit card and that I would be paid back”. His evidence was short and he was cross-examined.

60. I am satisfied that each of the three witnesses called for the Defendant were related to the events only by his pre-existing friendship with her. None appeared to have any financial interest in the outcome of the proceedings.

61. As stated, the Defendant called Ms Holt, a forensic document examiner, who had provided two reports, the first dated 2 July 2018 (Ex D1), and the second dated 18 April 2019 (Ex D2). She had read the Expert Witness Code of Conduct and had agreed to be bound by it. She maintained, on affirmation, the opinions that were expressed in those two expert reports. She was cross-examined by the Plaintiff.

Some general legal principles

85. Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. Generally speaking, the person who asserts something bears the burden of proving it. Importantly, if the person who bears the burden of proof of a particular matter satisfies the court, after considering the material that has been placed before it, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then, for those purposes, it did not happen.

86. In Purkess v Crittenden (1965) 114 CLR 164 at 167–168; [1965] HCA 34 at [4], Barwick CJ, Kitto and Taylor JJ (Windeyer J agreeing) referred to two distinct meanings of the expression “burden” or “onus” of proof, quoting Phipson on Evidence (10th ed, 1963, Sweet & Maxwell) at par 92:

“(1) the burden of proof as a matter of law and pleading—the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and

(2) the burden of proof in the sense of introducing evidence.” (emphasis in original)

87. At 168, their Honours again approved the statement from Phipson on Evidence, at par 95:

“the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates.”

88. The burden in the first sense, is often described as the legal, or the persuasive, burden. The second is described as the evidential burden. Before an evidential onus shifts from a plaintiff, the plaintiff must have adduced enough evidence for the court to infer, if that evidence was accepted by the court and was the only evidence on that topic in the case, that the proposition concerning which the plaintiff had the onus of proof was more likely than not true. Then, the onus of adducing evidence shifted to the defendant because if she, he, or it, does not adduce evidence concerning that proposition, the plaintiff might succeed in establishing that proposition. But before the defendant had that onus, “the evidence that the plaintiff has put forward on the topic must be such that, if accepted and the only evidence on the topic, it would justify the court in deciding it is more likely than not that the proposition for which the plaintiff bears the onus of proof is true. If the evidence that a plaintiff adduces is equally consistent with that proposition being true, or that proposition not being true, so that the plaintiff would fail to discharge its onus of proof if that were the only evidence on the topic, the defendant does not come under the sort of practical compulsion” described: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [84] (Campbell JA, McColl JA and Handley AJA agreeing) (emphasis in original).

89. In Watson v Foxman (1995) 49 NSWLR 315, McLelland CJ in Eq, at 319, noted that the plaintiff is required to prove each element of the cause of action to the reasonable satisfaction of the court, “which means that the court ‘must feel an actual persuasion of its occurrence or existence’. Such satisfaction is ‘not ... attained or established independently of the nature and consequence of the fact or facts to be proved’ including the ‘seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’” (citations omitted).

90. In Jones v Dunkel (1959) 101 CLR 298 at 305; [1959] HCA 8, Dixon CJ noted that “[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”. The statement was cited with approval by the majority in West v Government Insurance Office of New South Wales (1981) 148 CLR 62 at 66 (Stephen, Mason, Aickin and Wilson JJ); [1981] HCA 38.

91. Section 140 of the Evidence Act 1995 (NSW) provides that the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities, and that without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

92. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450; [1992] HCA 66 at [2], the majority of the High Court effectively stated what would become the mandatory considerations in s 140(2):

“the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.” (citations omitted)

93. In InRe H (Minors) [1996] AC 563, Lord Nicholls (Lord Goff and Lord Mustill agreeing) stated, at 586:

“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”

94. In Fiona Trust & Holding Corporation v Privalov [2010] EWHC 3199 (Comm), Andrew Smith J stated at [1438]:

“It is well established that ‘cogent evidence is required to justify a finding of fraud or other discreditable conduct’: per Moore-Bick LJ in Jafari-Fini v Skillglass Ltd., [2007] EWCA Civ 261 at para.73. This principle reflects the court’s conventional perception that it is generally not likely that people will engage in such conduct: ‘where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger’, per Rix LJ in Markel v Higgins, [2009] EWCA 790 at para 50. The question remains one of the balance of probability, although typically, as Ungoed-Thomas J put it in In re Dellow’s Will Trusts, [1964] 1 WLR 415, 455 (cited by Lord Nicholls in In re H, [1996] AC 563 at p.586H), ‘The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it’. Associated with the seriousness of the allegation is the seriousness of the consequences, or potential consequences, of the proof of the allegation because of the improbability that a person will risk such consequences: see R(N) v Mental Health Review Tribunal (Northern Region), [2005] EWCA 1605 para 62, cited in Re Doherty, [2008] UKHL 33 para 27 per Lord Carswell.”

95. Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56 at 69 [48]; [2011] FCA 1123, wrote, at [48]:

“When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).”

96. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, also expressed the view, at [44]–[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].

97. In the context of forensic proof it has been observed that the “difficulty of proving a negative is well known”: A v State of New South Wales (2007) 230 CLR 500 at 520 [60]; [2007] HCA 10 at [60] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). Where a party (in this case, the Defendant) is required to prove a negative, proof of the negative fact usually requires proof by circumstantial evidence because of the tendency for there to be some supporting facts which might be inconsistent with the fact sought to be disproved: J D Heydon, Cross on Evidence (2020, LexisNexis) at [7070].

98. The credibility of a witness and his, or her, veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1 at 57 (Robert Goff LJ).

99. In R on the application of SS (Sri Lanka) v The Secretary of State for the Home Department [2018] EWCA Civ 1391, Leggatt LJ (Sir Colin Rimer and Lewison LJ agreeing) wrote at [33], [37]:

“The term ‘demeanour’ is used as a legal shorthand to refer to the appearance and behaviour of a witness in giving oral evidence as opposed to the content of the evidence. The concept is, in the words of Lord Shaw in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36, that:

‘witnesses ... may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page.’

…

The reasons for distrusting reliance on demeanour are magnified where the witness is of a different nationality from the judge and is either speaking English as a foreign language or is giving evidence through an interpreter. Scrutton LJ once said that he had ‘never yet seen a witness giving evidence through an interpreter as to whom I could decide whether he was telling the truth or not’: see Compania Naviera Martiartu v Royal Exchange Assurance Corp (1922) 13 Ll L Rep 83, 97.”

100. A judge’s ability to evaluate honesty and reliability merely from a witness’ demeanour is also fallible, and, therefore, where possible a court should rely on documentary evidence and any other objectively provable facts. Sackar J in Craig v Silverbrook [2013] NSWSC 1687, at [140], described reliance on demeanour as “notoriously a crude and inaccurate methodology”, and that “[I]ts defects have been exposed on numerous occasions”.

101. In this regard, I have found what Lord Pearce wrote, in his dissenting speech, in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, at 431, to be useful:

“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

102. Furthermore, it is now widely accepted that memory is fallible, people can convince themselves of the veracity of false recollections of events and retain confidence in their false recollection. In other words, the evidence of a witness may be wholly wrong without her, or him, having lied. Recollection may be distorted by the re-interpretation of what had happened.

103. In McGlen-McLeod v Galloway [2012] NSWCA 368 at [87], Tobias AJA, with whom Allsop P and Campbell JA agreed, cited, with approval, the observations of Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]–[74] concerning findings of credit of witnesses:

“There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed ‘The Judge as Juror: The Judicial Determination of Factual Issues’ … Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not:

(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;

(2) the internal consistency of the witness’s evidence;

(3) consistency with what the witness has said or deposed on other occasions;

(4) the credit of the witness in relation to matters not germane to the litigation;

(5) the demeanour of the witness.

Lord Bingham then added these observations:

‘In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented….

… so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such.’”

104. Where the credibility of a witness’ evidence is challenged, the question whether the evidence relied upon by the opposing party has been put to the witness is an essential factor. It is useful to repeat the oft-quoted speech of Lord Herschell LC in Browne v Dunn (1893) 6 R (HL) 67; 6 ER 67 at 70–71:

“it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”

105. Lord Halsbury, in a separate speech in Browne v Dunn, wrote at 76–77:

“To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.”

106. In this case, forgery was not specifically alleged in the amended Defence. However, if the Defendant did not sign the Deed of Debt, as was asserted by Ms Ong, someone else did. In Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16, Tamberlin J wrote at [117]:

“A positive finding that documents are contrived or fraudulent is a strong adverse finding. Such a serious determination requires a proper foundation and a careful examination of all the relevant evidence bearing on the issue of credibility. A view that part of a claim cannot be accepted does not mean that any documents relating to that claim must be contrived or false and should be disregarded. Each of the documents should be examined and considered on its face and in context. If one or more supportive documents, when properly considered, are found to be genuine, this consideration may strongly support a finding that a claim is credible and has been made out. It may override an impression gained by the Tribunal that the claim lacks substance. A document accepted as genuine after proper consideration can be strongly corroborative of an applicant’s case.”

107. Although written in another context, what was written in Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550, by Brereton J, at [26], is relevant:

“It is true that, in Re Pozniak, Morgan v Reuben [2005] NSWSC 766, Palmer J appears to have proceeded on the basis that where forgery was alleged, the onus of proving that the signatures were forgeries fell on the party making that allegation rather than on the proponent of the Will and, indeed, that that onus attracted a Briginshaw standard of proof because of the seriousness of the allegation. But the question of onus does not appear to have been argued before his Honour. What his Honour said, especially at paragraphs [34], [70] and [106], is consistent with the view that a Court should not make an affirmative finding of serious wrongdoing in the absence of comfortable satisfaction that the evidence supports that finding. But it does not follow that the absence of sufficient evidence to make a finding, to the ‘comfortable satisfaction’ standard referred to in Briginshaw v Briginshaw, that there has been fraud or forgery or other serious misconduct, has as its necessary corollary that the opposing case must succeed.”

108. There can be no dispute that the Court may admit the evidence of the opinion from an expert upon the genuineness of a disputed signature, after the expert has compared it with specimens proved to the satisfaction of the Court to be genuine. Even without making comparison, an expert is also entitled to give her, or his, general opinion from her, or his, general knowledge of the subject on whether the writing is in a feigned or natural hand.

109. In Clark v Ryan (1960) 103 CLR 486 at 491; [1960] HCA 42, Dixon CJ (Fullagar J agreeing) quoted, with approval, from J W Smith’s notes to the decision of Carter v Boehm in Smith’s Leading Cases:

“… it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it.”

110. In Honeysett v The Queen (2014) 253 CLR 122 at 131; [2014] HCA 29 at [23] it was observed:

“Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience.”

111. The true role and value of expert evidence is as stated in Phipson on Evidence (19th ed, 2018, Sweet & Maxwell) at par 33-67, quoting Lord Cooper, the Lord President in Davie v Magistrates of Edinburgh 1953 SC 34 at 40, that the duty of an expert “is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence”.

112. In Pora v The Queen [2016] 1 NZLR 277 at 286; [2015] UKPC 9 at [24], the Judicial Committee of the Privy Council, stated:

“It is the duty of an expert witness to provide material on which a court can form its own conclusions on relevant issues … The expert witness should be careful to recognise, however, the need to avoid supplanting the court’s role as the ultimate decision-maker on matters that are central to the outcome of the case.”

113. In Nina Kung v Wang Din Shin [2005] HKCFA 54, a decision of the Court of Final Appeal of Hong Kong, Chan PJ (Sir Noel Power and Lord Scott NPJJ agreeing) wrote at [17] - [20]:

“What an expert observes by examining the signature in question and comparing it with known and accepted signatures of the writer are matters of fact. On the other hand, the drawing of a conclusion based on the facts which he has observed is a matter of opinion. His opinion is admissible as evidence, subject to one qualification. That is, his opinion need not be accepted by the judge or jury if they are not convinced by the reasons in support of such opinion. The judge or jury can come to their own conclusions, based on the facts and their own reasoning.

However, an expert has 2 advantages over the judge and jury. First, he has the scientific techniques or means to find out facts which a judge or jury may not be equipped to do. Secondly, an expert has the necessary experience and expertise. This can help him look for the relevant facts and come to a reasoned conclusion. See Fuller v Strum [2001] WTLR 677, 695 and Phipson on Evidence, para. 37–10 and 37-73.

However, at the end of the day, it is for the judge or jury to form their own independent judgment with the assistance of the expert. After all, they are the tribunals of fact. The duty of expert witnesses is, as Lord President Cooper said in Davie v Edinburgh Magistrates [1953] SC 34 at 40: ‘to furnish the Judge with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence.’

Given the nature of expert evidence, one has to approach such evidence with caution. While the factual part of the evidence of an expert is verifiable and is reliable or unreliable as any other piece of factual evidence, the opinion part of an expert’s evidence is totally different. Handwriting analysis is not an exact science and the opinion of a handwriting expert, however objective it is, is inherently less precise than a conclusion based on the results of a scientific analysis. The acceptability of an expert’s opinion depends very much on how sound and convincing the reasons for his opinion are.”

114. The authorship of a disputed document is a question of fact: Adami v The Queen (1959) 108 CLR 605; [1959] HCA 70; Jeans v Cleary [2006] NSWSC 647 at [155] - [158] (Johnson J).

115. A sample of a person’s handwriting may be admissible where there is a dispute about the author of a document, but the sample is only admissible if the Court is satisfied that it is genuine: Porter v Bonarrigo [2009] VSC 500 at [45] (Vickery J). This requires the judge to be satisfied, on the balance of probabilities, that the sample was written by the alleged author: R v Browne-Kerr [1990] VR 78 at 83–85 (Crockett, Gray and McDonald JJ). (In the present case, the signatures of the Defendant used by Ms Holt as comparable were not in dispute.)

116. Of course, a judge, sitting as a tribunal of fact, has to consider all the evidence before making his, or her, decision, and may prefer other evidence to the evidence of expert: Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 at [247] (Young CJ in Eq). The Court does not simply accept an expert opinion as if there were no other evidence. The expert opinion should be tested both against the other evidence received during the course of a trial, and, against its internal consistency.

117. In this regard, Ms Holt’s evidence must be weighed against the evidence of Ms Ong and Ms Gonzales, each of whom has stated that she saw the Defendant sign the Deed of Debt.

118. I have borne all of the observations set out above in mind. They have particular force in this case because of the factual disputes about most aspects of the case.

The Deed of Debt

119. It is next convenient to set out, in more detail, some of the features of the Deed of Debt. As stated, the original (or, perhaps, an original) Deed of Debt was tendered as Ex P2. There are no amendments, interlineations or alterations on any part thereof. Each page bears a number of different signatures or initials. The front page of the Deed of Debt bears a handwritten “Annex A” but when, by whom, or for what purpose, it was written, is unclear.

120. The substantive part of the Deed consists of seven typewritten pages. It begins with a cover page displaying the title “Deed of Debt” and listing the parties as “Ms Cristina Yu Ong (Creditor)” and “Ms Catherine Gonzales Amos (Debtor)”. There is no legal firm which, or individual who, had prepared the Deed, identified on the cover page.

121. The second page records that the Deed is dated “22nd^rd [sic] day of May 2017”. It repeats that the parties to the Deed are Ms Ong and the Defendant. It provides the address of both as the Defendant’s home address at Mount Annan (a suburb of south west Sydney).

122. I refer to Recital B verbatim:

“The Creditor and Debtor have unconditionally and willingly agreed that the Debtor has directly received the following money and things as valued on the purchase receipts:

(i) $40,000.00 through two (2) Bank Transfers on the following dates (15/11/2016 and 24/3/2017); and

(ii) Jewelleries:

(a) 6.17 carat Diamond Earrings valued at $57,345.00 (Annexure ‘A’)

(b) Chopard Ladies luxury wristwatch with Diamonds valued at $70,998.00 (Annexure ‘B’).

(c) Illusion Bracelet valued at $ 17,750.00 (Annexure ‘C’).

(d) Rositas earrings valued at $ 25,577.00 (Annexure ‘D’).

(e) Green Stone (Emerald) necklace and earring set valued at $ 25,942.00 (Annexure ‘E’).

(f) Black diamond earring valued at $17,750.00 (Annexure ‘F’).

(g) Illusion set of necklace, bracelet and earrings valued at $23,211.00 (Annexure ‘G’).

(h) Diamond necklace with round diamond pendant valued at $ 26,761.00 (Annexure ‘H’).”

123. There does not appear to be any document that reveals the source of the values shown. What is said to have been the cost of the jewellery is contained in the invoices from Claxson International Multi Products Inc addressed to Ms Ong: Ex P1/184. However, the amounts in that invoice are denominated in Philippine pesos. The invoice was dated 10 May 2017, some twelve days prior to the purported signing of the Deed.

124. I note that the handwritten sheet of paper sent to the Defendant, by Ms Ong, and received by her, did not contain the above figures; nor does it contain a reference to all of the pieces of jewellery referred to in Recital B.

125. It is fair to say that a number of the clauses of the Deed of Debt contain a statement of facts that seem to be far more favourable to the creditor than to the debtor and include the proposition that “[t]he Debtor unconditionally and willingly accept[s] …”. There is then a statement of facts under the heading “Background”. This Clause includes admissions made by the debtor, including that she had spent the $40,000 transmitted to her by the creditor, having “put [it] towards her mortgage payment on the said land and that she has also spent the proceeds from the sale of the items [at Recital (B)(ii)]”, and that “[a]s a result, the Creditor and Debtor have agreed to reduce all that happened between them to this Deed”. (It is fair to say that the information contained under the heading “Background” would not usually be found in a Deed of Debt.)

126. Clause 2 of the Deed of Debt, which is under the heading “Debt”, states:

“The Creditor has at the request of the Debtor agreed that all monies and jewelleries that were previously received by the Debtor from the Creditor have the sum total of $ 305,334.00 AUD plus interest computed at 15% per annum.” (emphasis added)

127. Clause 3 of the Deed of Debt appears incomplete:

“In consideration of the Creditor agreeing to advance monies and handing in of valuable jewelleries [which are then identified] … the Debtor agrees and acknowledges that as collateral security, her place of residence including any properties that she owns and any assets either real property or cash.”

128. Clause 4 of the Deed of Debt provides a covenant that the Debtor will pay “all costs, charges, and expenses … paid or payable by the Creditor for or in relation to the negotiation, preparation, execution, stamping and registration of this deed or any collateral security …”.

129. It is not clear from the evidence, as already stated, how the value of each item of jewellery came to be inserted into the Deed of Debt. Nor is it clear when, if at all, the interest provision, or the rate of interest, was discussed by Ms Ong and the Defendant.

130. There is also no evidence that, at any time prior to 22 May 2017, the Defendant had agreed to give security over her land to Ms Ong, as set out in Clause 3 of the Deed of Debt. Nor is there evidence that there was any conversation in which the Defendant agreed to pay all costs, charges, expenses, stamp duty, registration, as set out in Clause 4 of the Deed. (In fact, an earlier document signed by Ms Ong and dated 31 March 2017, referred to “rates taxes for transfer” ($6,700) being payable by her.)

131. Turning to the final page, the document purports to be “Executed as a Deed”. The final page bears four signatures, purportedly being of:

1. The Defendant;

2. Ms Ong;

3. Mr Sabas Capili; and

4. Ms Gonzales.

132. The name of each of these persons is typed on the original Deed of Debt, although there was no evidence given of how the author of the document would have known, when he, or she, prepared it, or had it prepared, who was going to be present when the Deed was to be signed.

133. The Defendant and Ms Ong, purportedly, signed and accepted the Deed as the parties to it, whilst Mr Capili and Ms Gonzales purportedly witnessed the document. Each of the signatures bears the date of 22 May 2017, although each date is written in a slightly different form.

134. It should also be observed, at this point, that the Recitals in the Deed refer to several annexures. Those annexures were not in the original of the Deed that was tendered in evidence. The annexures (marked A to H) were said to be photographs of the pieces of jewellery that had been received by the Defendant. Copies of those photographs formed annexure CYO4 to Ms Ong’s affidavit sworn 14 June 2019.

135. Ms Ong gave evidence that she was the person who took each of the photographs: Tcpt, 1 September 2020, p 82(39) – p 83(33). She also gave evidence that prior to leaving for Australia in May 2017, she had marked each of those photographs with the letters A through to H respectively: Tcpt, 1 September 2020, p 83(42) – p 84(09).

136. Whilst she provided a copy of the photographs to the Defendant, through messages on Viber, the copies that were sent did not contain the letters A through to H marked on each photograph respectively: Tcpt, 1 September 2020, p 84(13–29).

137. Then, whilst in Sydney, at the Sir Stamford Hotel, Ms Ong gave a copy of the photographs to Ms Gonzales to then pass on to the Defendant. Ms Gonzales’ evidence corroborated that she had received the photographs from Ms Ong at the Hotel and, then, had duly passed them on to the Defendant: Tcpt, 1 September 2020, p 123(36) – p 124(12). Providing copies was said to have been done to allow the Defendant to prepare the Deed of Debt: Tcpt, 1 September 2020, p 107(31–42).

138. To an extent, Ms Ong’s evidence in this regard was internally contradictory. Her evidence that she marked the photographs with the letters A through to H and that she gave those photographs to Ms Gonzales to give to the Defendant is inconsistent with the following exchange earlier in her cross-examination (Tcpt, 1 September 2020, p 84(25–29)):

“Q. Did you ever give Ms Amos the photos with the letters on top of them before these proceedings?

A. INTERPRETER: None. None. Because through Viber I did not, I did not give her hard copy. I sent the pictures through Viber. So there were not letters like A, B, C.”

139. Ms Ong confirmed that when she signed the Deed of Debt, eight photographs had been annexed to it. Those photographs, she said, were identical to the ones found at annexure CYO4 to her affidavit: Tcpt, 1 September 2020, p 103(38) – p 104(41). Similarly, Ms Gonzales confirmed that the photographs were attached to the Deed of Debt when it was signed: Tcpt, 1 September 2020, p 121(40–50).

140. If the evidence is correct, there was no explanation given going to why the photographs did not form part of the original Deed of Debt as tendered. It was suggested by the Plaintiff, from the Bar table, that the photographs had been separated from the Deed of Debt by the NSW Police: Tcpt, 1 September 2020, p 99(41) – p 100(18). (The role played by NSW Police in the events will be discussed later in these reasons.)

The Deeds of Assignment

141. Because the Defendant was unable to say anything about the events that occurred in relation to each of the assignments, I shall next deal with that aspect of the case. The documents speak for themselves and I shall refer to each of them and the evidence surrounding its preparation.

461. This is not a case where proof of value of the jewellery was impossible, or even difficult. I am not satisfied on the balance of probabilities as to the value of the remaining items of jewellery based upon the copy of the sales invoices produced by the Plaintiff. It is not a case where the Court is able to estimate the value of the jewellery, “doing the best I can”.

462. I then turn to the matters raised by the Defendant. I am not satisfied that the Defendant purchased the luxury items, that she asserted she had purchased, or that she made the cash payment to Ms Ong. In this regard, it appears that the total amount of her claim was $30,982. There was no Cross-Claim in which the amount claimed was sought.

463. Ultimately, the basis of the claim for this amount was an affidavit of the Defendant, filed in Court on the last day of the hearing, being an affidavit sworn 2 September 2020 of the Defendant detailing “expenses which I personally incurred only for Ms Ong between the period November 2016 and May 2017”, by reference to par 136 of her affidavit sworn 15 November 2019, which paragraph had been rejected.

464. Naturally, bearing in mind its late service, I granted leave to the Plaintiff to cross-examine the Defendant on the affidavit. In answer to a question from him, she said that the affidavit reflected the expenditure that she had incurred on the credit card of Mr Elias and her own credit card: Tcpt, 3 September 2020, p 290(03–09).

465. Yet, a copy of credit card statements, in each case, was not produced at any time. Nor were the receipts for the purchases, or the expenditure, produced to the Court, although, I note that the Defendant gave evidence that they had been given to Ms Ong (Tcpt, 3 September 2020, p 292(18–37)), the receipt of which goods, unsurprisingly, Ms Ong had earlier denied.

466. Similarly, on this issue proof of value was not impossible, or even difficult. It would have been relatively easy for the Defendant to have produced the contemporaneous documentary evidence to establish the purchase of the items identified in the affidavit of 2 September 2020. This the Defendant failed to do. Ex D5, being bank statements, which was tendered and said to support the expenditure of the Defendant does not support that proposition.

467. In relation to the cash advance of $5,000 said to have been made on 18 May 2017, I have been unable to find any reference to that amount in Ex D5.

468. (I mention, in passing, that even though I have found that the Deed of Debt dated 22 May 2017 cannot be relied upon as establishing the Plaintiff’s claim, there is no reference to amounts said to have been expended by the Defendant for expenses, or otherwise, for, or on behalf of, Ms Ong.)

469. However, that is not the end of the matter of the receipt of the money or the jewellery. Counsel for the Defendant accepted that in relation to the payments totalling $39,980, there may be a claim for moneys had and received and also accepted that, in the event the Court found that all, or some, of the jewellery had not been returned, “Ms Ong would have a case against [the Defendant] for conversion” but that “[t]he authorities delineate between a [chose in action] and a claim in conversion”: Tcpt, 3 September 2020, p 367(29) – p 368(12).

470. First, I should refer to s 12 of the Conveyancing Act, which, relevantly, permits the legal assignment of a debt. The section provides:

Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor …

496. In the decision of the English Court of Appeal in Camdex International Ltd v Bank of Zambia [1998] QB 22, Hobhouse LJ gave the lead judgment. At 39, his Lordship wrote that none of the authorities he had reviewed:

“... alters the effect of the statute and the earlier decisions of the Court of Appeal. An assignment of a debt is not invalid even if the necessity for litigation to recover it is contemplated. Provided that there is a bona fide debt, it does not become unassignable merely because the debtor chooses to dispute it. Suing on an assigned debt is not contrary to public policy even if the assignor retains an interest. What is contrary to public policy and ineffective is an agreement which has maintenance or champerty as its object; such a consequence will not be avoided by dressing up a transaction which has that character and intent as an assignment of a debt. But, because the assignment of a debt itself includes no element of maintenance and is sanctioned by statute, any objectionable element alleged to invalidate the assignment has to be proved independently and distinctly in the same way as any other alleged illegality has to be proved in relation to a contract which is on its face valid.”

497. Peter Gibson LJ agreed with Hobhouse LJ adding, at 40:

“But it is not in dispute that as a matter of public policy assignments of bare rights to litigate are invalid, and, if coupled with an agreement to share the proceeds of the litigation with the assignor, will be struck down as champertous. Stirling LJ summarised the crucial distinction in a sentence in Dawson v Great Northern and City Railway Co [1905] 1 KB 260, 271: ‘An assignment of a mere right of litigation is bad: Prosser v Edmonds (1835) 1 Y & C Ex 481; but an assignment of property is valid, even although that property may be incapable of being recovered without litigation: see Dickinson v Burrell LR 1 Eq 337.’ I do not read any of the trio of cases on which the defendant relied, In re Trepca Mines Ltd (No 2) [1963] Ch 199; Laurent v Sale & Co [1963] 1 WLR 829; and Trendtex Trading Corporation v Credit Suisse [1982] AC 679, as undermining, still less abrogating, that well recognised distinction. In Laurent v Sale & Co [1963] 1 WLR 829, on the very special facts of that case, which include the clear contemplation of the parties that the assignment was for the purpose of the assignee in enforcing ‘supposed rights’ by litigating a bona fide dispute as to liability, Megaw J felt able to infer a champertous intention. He plainly thought the transaction was colourable. In the present case the debt is not disputed, the particular difficulties of the defendant in paying all or any of its creditors being irrelevant to the question whether there is a bona fide dispute as to liability. In my judgment Mr Howard was right to submit that there is no basis in authority or principle for denying the validity of the assignment. It is a normal, and for many in business an essential, incident of modern commercial life that debts are bought and sold, and it would be highly unfortunate if such everyday transactions were to be held to be impugnable as champertous, save in wholly exceptional circumstances not present here.”

498. Neill LJ also agreed with Hobhouse LJ stating, at 41, in his review of the history of s 136 of the Law of Property Act 1925, 15 & 16 Geo 5, c 20:

“In 1873 the courts of common law and the courts of equity were merged. A new form of statutory assignment was introduced by section 25(6) of the Supreme Court of Judicature Act 1873. It then became possible to make an absolute assignment in writing of any debt or legal chose in action. The importance of this change in the law was recognised in a series of cases in the Court of Appeal including Comfort v Betts [1891] 1 QB 737 and Fitzroy v Cave [1905] 2 KB 364. In the latter case Cozens-Hardy LJ put the new position clearly, at p 373: ‘Henceforth in all courts a debt must be regarded as a piece of property capable of legal assignment in the same sense as a bale of goods.’ The fact that it may be necessary for the assignee to bring an action to recover the debt does not vitiate the assignment on the grounds of maintenance.”

499. All three members of the Court of Appeal concluded that the transaction in which the plaintiff had bought a debt at a discount and was seeking to enforce it, was not champertous.

500. In Consolidated Trust Company Limited v Naylor (1936) 55 CLR 423; [1936] HCA 33, the High Court considered the requirements of s 12 of the Conveyancing Act. Dixon and Evatt JJ wrote at 438–439:

“The object of the requirement made by the words ‘of which express notice in writing shall have been given’ is, we think, correctly stated in Warren’s Choses in Action (1899), at pp 177, 178. ‘The term “express notice” is doubtless employed by way of opposition to notice arising by implication or operation of law, and to what was known in equity as constructive notice. It means a notice which indicates an express intention—a direct and definite statement of a thing, as distinguished from supplying materials from which the existence of such a thing may be inferred.’ The purpose is to make essential actual notice that the debt has been assigned. ‘One of the objects of the giving of notice to the debtor is that he shall “know with certainty” in whom the legal right to sue him is vested’ (McIntosh v Shashoua …). The purpose does not extend to giving the debtor particulars of the assignment. The assignment must be by writing, but, if it is in writing, then notice to the debtor is necessary only to acquaint him with the fact that the debt is payable to the assignee and the statute requires that he shall be expressly notified. But, neither in its exact terms, nor according to its general intent, does the provision appear to make it essential that the notice should contain an express statement that the assignment is a written one.” (citations omitted)

501. Thus, s 12 is concerned with the act of assignment and not with an agreement for assignment, whether or not contained in a deed. It does not require that the notice be given by the assignor. It is equally open to the assignee to give a notice under s 12 in order to acquire legal ownership of the debts, or the choses in action, the subject of an absolute assignment: Anning v Anning (1907) 4 CLR 1049 at 1059 (Griffith CJ); [1907] HCA 13. That is what the Plaintiff asserted that he did.

502. As was accepted by counsel for the Defendant, the notice need not be formal in its nature and it is sufficient if the notice is given at any time before action: Holt v Heatherfield Trust Ltd [1942] 2 KB 1 at 4 (Atkinson J).

503. It is sufficient, under the Conveyancing Act, s 170(1)(b), that notice required by the Act shall be sufficiently served “if left at, or sent by post to, the last known residential or business address in or out of New South Wales of the person to be served”. The section applies only if, and so far as, a contrary intention is not expressed in the instrument, and has effect subject to the provisions of the instrument: s 170(4).

504. It has been held that s 170 is not an exclusive prescription of the mode of service. Indeed, under the common law, which is preserved by the section, there is a presumption that even an unregistered letter, if properly addressed, stamped and posted and not returned to the writer has reached its destination: Ex parte Dally-Watkins; Re Wilson (1955) 72 WN (NSW) 454 at 456–457 (Street CJ, Roper CJ in Eq, Sugerman J agreeing); Brannigan v Smith (2017) 18 BPR 37,193 at 37,204–37,205 [71]; [2017] NSWSC 1201 at [71] (Darke J); Cushing v The Lady Barkly Gold Mining Company Registered (1883) 9 VLR (E) 108 at 122 (Holroyd J, for the Court).

505. As previously stated, the Defendant acknowledged that she had received the notice (at least from the Plaintiff) although she denied having received the notice from Mr Baena. However, in relation to the notice from Mr Baena, reliance may be placed on s 160(1) of the Evidence Act, which provides:

“It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted.”

506. Merely asserting that the notice was not received is not sufficient to rebut the presumption.

507. However, in this case, I accept the evidence of the Defendant that she did not receive the notice posted by Mr Baena. Simply, there would have been no need for her to deny its receipt bearing in mind she acknowledged receipt of the subsequent notice from the Plaintiff. Furthermore, I note the lack of reference to having sent the notice in Mr Baena’s first affidavit.

508. In Goodridge v Macquarie Bank Limited (2010) 265 ALR 170 at 211 [168]; [2010] FCA 67, Rares J (overturned on other grounds), at [168], dealt with s 12 of the Conveyancing Act as follows:

“It is important not to confuse the nature of an assignment, with the consequence of giving notice of the assignment to the debtor or obligor. An assignment is an immediate disposition of a legal or equitable right, title or interest. Its efficacy depends on, first, the ascertainment of the fact that there has been a disposition of that right, title or interest and, secondly, the formalities under s 12 of the Conveyancing Act or in equity which must be satisfied to effect such a disposition. Different rules apply to differing types of property and to voluntary assignments, as opposed to assignments made for value.”

509. His Honour, at [169]–[170], also pointed out that before s 12 could be relied upon the purported assignee must establish that the right he, she, or it, seeks to enforce is a “... debt or other legal chose in action”. If it is not, then s 12 has no bearing and that an “assignment for value will be enforceable in equity by the assignee”.

510. In relation to an equitable assignment, his Honour added at [172]–[173]:

“An equitable assignment is complete upon the expression by the assignor of an intention to make over to the assignee then and there the assignor’s equitable interest in the property or right concerned. It is not necessary to give notice of the assignment to the obligor in order to perfect the disposition in equity of the property or right under the dealing between the assignor and assignee. Notice, however, is important at a practical level, because until notice is given first, the obligor can pay the assignor and obtain a good discharge and, secondly, the assignee may lose, or be postponed in its priority. Notice will bind the obligor: Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614 at 622 per Dixon J; Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 26 per Windeyer J; see too Thomas v National Australia Bank Ltd [2000] 2 Qd R 448 at 453 [18] per Pincus JA.

In an equitable assignment, the assignee takes no better title than his assignor had and takes subject to all equitable interests and defects affecting the assignor’s title: Southern British National Trust Ltd (in liq) v Pither (1937) 57 CLR 89 at 105 per Rich J. No debtor or obligor can relieve himself of the debt or obligation owed to another by making an agreement with a third party. Liabilities to pay debts and obligations are not assignable: Federal Commissioner of Taxation v Orica Ltd (1998) 194 CLR 500 at 513 [19] per Brennan CJ and see at 530 [67] and [68] per Gaudron, McHugh, Kirby and Hayne JJ.”

511. It should be mentioned that the Deed of Debt specifically contemplated the assignment by Ms Ong of her rights under it: see Recital E. Thus, if it were a genuine document, the parties to it expressly permitted the assignment of rights which were, prima facie, assignable.

512. In the event that I am wrong in relation to the genuineness of it, there is no doubt that the parties to the Deed of Debt considered that the transactions referred to, involving Ms Ong and the Defendant, constituted debts owed by the latter to the former. Furthermore, each assignee, being Mr Baena and the Plaintiff respectively, by the Deed of Assignment, was taking an assignment of the debts referred to in the Deed of Debt. It follows that, prima facie, there was a valid assignment in each case of Ms Ong’s rights under the Deed of Debt.

513. However, it is then necessary to consider the argument advanced by the Defendant, namely that upon its proper construction, the Deed of Assignment, in each case, was an attempt to assign a bare right to sue and that it did not create, or assign, rights to any underlying interest in money or jewellery.

514. Counsel relied upon Poulton v The Commonwealth. In obiter dicta, in the context of considering the ability of a plaintiff to waive a cause of action in conversion, a tort, the Court stated that the ability to waive the cause of action could only be exercised by the persons in whom the cause of action lay. Two reasons were provided for this, the first being, as a matter of fact there was no purported assignment by those persons to the plaintiff, and, the second being “because, according to well-established principle, the right [of action for the tort] was incapable of assignment either at law or in equity”: at 602 (Williams, Webb and Kitto JJ).

515. However, in England, the House of Lords has liberalised the strictness of the proposition referred to in Trendtex Trading Corporation v Credit Suisse at 703 (Lord Roskill, Lord Edmund-Davies, Lord Fraser, Lord Keith agreeing). The case concerned the assignment of a cause of action in contract. His Lordship wrote:

"My Lords, I am afraid that, with respect, I cannot agree with the learned Master of the Rolls [1980] QB 629, 657 when he said in the instant case that ‘The old saying that you cannot assign a ‘bare right to litigate’ is gone.’ I venture to think that that still remains a fundamental principle of our law. But it is today true to say that in English law an assignee who can show that he has a genuine commercial interest in the enforcement of the claim of another and to that extent takes an assignment of that claim to himself is entitled to enforce that assignment unless by the terms of that assignment he falls foul of our law of champerty, which, as has often been said, is a branch of our law of maintenance.

…

The court should look at the totality of the transaction. If the assignment is of a property right or interest and the cause of action is ancillary to that right or interest, or if the assignee had a genuine commercial interest in taking the assignment and in enforcing it for his own benefit, I see no reason why the assignment should be struck down as an assignment of a bare cause of action or as savouring of maintenance.”

516. The assignment to the third party in that case was another matter (at 703–704):

“Though your Lordships do not have the agreement between Credit Suisse and the anonymous third party, it seems to me obvious, as already stated, that the purpose of article 1 of the agreement of January, 4, 1978, was to enable the claim against CBN to be sold on to the anonymous third party for that anonymous third party to obtain what profit he could from it, apart from paying to Credit Suisse the purchase price of US $1,100,000. In other words, the ‘spoils’ whatever they might be, to be got from CBN were in effect being divided, the first US $1,100,000 going to Credit Suisse and the balance, whatever it might ultimately prove to be, to the anonymous third party. Such an agreement, in my opinion, offends for it was a step towards the sale of a bare cause of action to a third party who had no genuine interest in the claim in return for a division of the spoils, Credit Suisse taking the fixed amount for which I have already mentioned.”

517. Lord Wilberforce (the rest of the House of Lords agreeing), at 694, framed the test slightly differently:

“If no party had been involved in the agreement of January 4, 1978, but Trendtex and Credit Suisse, I think that it would have been difficult to contend that the agreement, even if it involved (as I think it did) an assignment of Trendtex’s residual interest in the CBN case, offended against the law of maintenance or champerty. As I have already shown, Credit Suisse had a genuine and substantial interest in the success of the CBN litigation ... The vice, if any, of the agreement lies in the introduction of the third party. ... This manifestly involved the possibility, and indeed the likelihood, of a profit being made, either by the third party or possibly also by Credit Suisse, out of the cause of action. In my opinion this manifestly ‘savours of champerty,’ since it involves trafficking in litigation—a type of transaction which, under English law, is contrary to public policy.”

518. In their survey of the law, the learned authors of Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) at [6-470] said of the impact of the decision in Trendtex Trading Corporation v Credit Suisse:

“The general acceptance of this sidesteps much of the traditional law. For now all choses in action arising out of a contract are seen as proprietary and hence assignable, and the same is true of many, perhaps most, causes of action in tort.”

519. The High Court of Australia has moved towards greater liberalisation, in the direction of the House of Lords in Trendtex Trading Corporation v Credit Suisse: Campbells Cash and Carry Pty Limited v Fostif Pty Limited (2006) 229 CLR 386; [2006] HCA 41; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7.

520. In Campbells Cash and Carry Pty Limited v Fostif Pty Limited, the issue was primarily one of litigation funding, as opposed to the assignment of a cause of action. Gummow, Hayne and Crennan JJ, at [79]–[81], only mentioned the principle in Trendtex in passing. However, Callinan and Heydon JJ (in dissent in the result), at 258, in obiter, commented in more detail, remarking:

“But the cases do point to some clear criteria. As between the funder and the party funded, there is ‘trafficking’ in causes of action where they are assigned by the latter to the former in circumstances where there is neither any transfer of any property interest to which the causes of action are ancillary nor any genuine commercial interest which the funder has in taking the assignment of the causes of action and enforcing them for the funder’s own benefit. Although the term ‘genuine commercial interest’ calls for further definition, in this sense to traffic in litigation is to attempt an invalid assignment of a bare cause of action, or to enter a champertous agreement.” (citations omitted)

521. In Equuscorp Pty Ltd v Haxton, the receivers and managers of a lender to investors in a blueberry farming enterprise, assigned to Equuscorp Pty Ltd (EPL) the rights that it had against the investors. These rights included those under allegedly invalid loan agreements and restitutionary claims. French CJ, Crennan and Kiefel JJ, at [53], held that the assignments of the restitutionary claims to EPL were valid as they were assigned “along with contractual rights, albeit their existence is contestable” and that EPL had a “legitimate commercial interest … in acquiring the restitutionary rights should the contract be found to be unenforceable”. Gummow and Bell JJ, at [79], also held that EPL had a genuine commercial interest evidenced by the charge which it held over the assets of the lender to secure the lender’s indebtedness. Heydon J, at [156], expressed a similar view.

522. In Bakewell v Anchorage Capital Master Offshore Ltd (2019) 372 ALR 349 at 360–361 [44]–[46]; [2019] NSWCA 199, the Court of Appeal referred to those lines of authority. Bell P, with whom Macfarlan and White JJA agreed, at [44]–[46] wrote:

“It is not without some irony that the incremental evolution and development of the common law is well illustrated by the relaxation of the once absolute prohibition on the assignment of bare causes of action. This liberalisation of the common law’s approach was noted by Lord Roskill in his leading decision in Trendtex itself (see at 702-703). There his Lordship noted, by reference to Scrutton LJ’s decision in Ellis v Torrington [1920] 1 KB 399, that the assignment of a cause of action which was ‘incidental’ to the acquisition of a property right by assignment was valid. His Lordship observed that, on his reading of the cases, it was ‘not necessary for the assignee always to show a property right to support his assignment’. Whilst Lord Roskill was not prepared to go as far as the Master of the Rolls in the Court of Appeal and declare that ‘[t]he old saying that you cannot assign a “bare right to litigate” is gone’, he did say, in a passage that was quoted by the plurality in Equuscorp at [51] that:

‘... it is today true to say that in English law an assignee who can show that he has a genuine commercial interest in the enforcement of the claim of another and to that extent takes an assignment of that claim to himself is entitled to enforce that assignment unless by the terms of that assignment he falls foul of our law of champerty, which, as has often been said, is a branch of our law of maintenance.’ (Emphasis added)

Equuscorp’s embrace of Trendtex can also be seen as representing a significant development of the common law of Australia in light of the High Court’s earlier decision in Poulton v The Commonwealth (1953) 89 CLR 540 at 602; [1953] HCA 101.

Another highly relevant example of the evolution of the law for present purposes relates to the changing attitudes to maintenance and champerty, surveyed by Gummow, Hayne and Crennan JJ in Campbells Cash & Carry Pty Ltd v Fostif Pty Limited (2006) 229 CLR 386; [2006] HCA 41 at [66]-[82] (Campbells Cash & Carry). The relevance of this for present purposes is considered further at [50]-[51] and [70]-[71] below.”

523. At [72], Bell P also noted:

“In this context, I would add that the concept of a ‘genuine commercial interest’ as found in authorities following Trendtex is a mixed question of fact and law … ‘[and] will depend upon the facts and circumstances of each case’…”

524. The next question then is what is a “genuine commercial interest”? In Monk v Australia and New Zealand Banking Group Ltd, in which the assignee, Monk, had attempted to take the assignment of a cause of action against the ANZ Bank so that he would have something to set off against a judgment debt recoverable by the ANZ Bank against him, Cohen J, at 153, found that Monk did not have a genuine commercial interest in the assignment, stating “[t]he using of the debt as a set-off against the judgment debt is merely an example of obtaining some personal benefit … where the Trendtex test has been applied, the commercial interest has gone beyond a mere personal interest in profiting from the outcome in the proceedings …”.

525. In National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514, Lindgren J, at 540, wrote:

“… the genuine commercial interest referred to in Trendtex is not a nebulous notion of the general commercial advantage of the assignee but something more specific and limited. In particular, it does not embrace an interest arising from an arrangement voluntarily entered into by the assignee of which the impugned assignment is an essential part, like the arrangement in the present case. Rather, the expression refers to a commercial interest which exists already or by reason of other matters, and which receives ancillary support from the assignment.”

526. In Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr [2005] NSWCA 240, the Court of Appeal discussed “a genuine commercial interest”. Ipp JA (Hodgson JA and Campbell AJA agreeing) held, at [41]–[42], that “[s]uch an interest must be a ‘legitimate interest’. It must be distinct from the benefit that the person supporting the action seeks to derive from the litigation: Giles v Thompson [1994] 1 AC 142. It must be something beyond a mere personal interest in profiting from the outcome of the proceedings …” and that “the mere wish on the part of Austcorp to acquire Cudgen Paddock was far too insubstantial and tenuous to qualify as the kind of commercial interest that would have the effect contemplated in Trendex [sic] and the cases that have followed it. Such an interest must, at least, be rights-based and not a mere hope”.

527. In WorkCover Queensland v Amaca Pty Limited [2013] 2 Qd R 276 at 299–300 [65]–[67]; [2012] QCA 240 at [65]–[67], Gotterson JA (Margaret McMurdo P and Martin J agreeing) discussed the meaning of “genuine commercial interest”. By reference to earlier cases, his Honour stated that a genuine commercial interest must be in existence prior to the assignment, but need not be an interest which, of itself, was enforceable at law or in equity.

528. In EWC Payments Pty Ltd v Commonwealth Bank of Australia [2014] VSC 207, Elliott J wrote, at [62] concluded “… that the exception identified in Trendtex Trading Corporation v Credit Suisse now must be treated as good law in Australia”. He then went on, at [76]:

“In summary, for an assignee to be able to rely lawfully upon an assignment of a cause of action, the assignee must have an interest that is pre-existing at the time of the assignment, which interest represents something more than an interest that would be held by a person who is an ‘intermeddler’ with the disputes of others. Save for looking at decided cases which provide illustrations of genuine commercial interests or otherwise, it is not possible to positively and definitively state the interest necessary to establish a genuine commercial interest. Each case must be considered on its particular facts to ascertain whether the interest alleged is a genuine commercial interest.”

529. Finally, the Court of Appeal (Gleeson and Leeming JJA and Emmett AJA) wrote in Mateljan v HTT Huntley Heritage Pty Ltd (2016) 111 ACSR 277 at 287 [42]; [2016] NSWCA 20 at [42]:

“… the interest must exist independently of the impugned assignment and must be more than an insubstantial and tenuous interest. It must be ‘rights-based’ and not a ‘mere hope’. That is to say, there must be something beyond a mere personal interest in profiting from the outcome of the proceedings. Rather, there must be an interest by the assignee in the assignor or its business affairs or activities that the assignment may in some way protect.” (citations omitted)

530. Counsel for the Defendant submitted that any interest in the subject matter of the proceedings was only created upon payment first by Mr Baena to Ms Ong, and then by the payment to Mr Baena by the Plaintiff, each of which occurred after the event, that is, after the payment of the $39,980 and also after what is said to be the conversion of the jewellery.

531. The Plaintiff did not address the issue.

532. In my view, there is merit in the Defendant’s submission if what was assigned was not an action in debt. I am not satisfied that the Plaintiff has established that he has the necessary genuine and substantial interest in the success of the litigation or a genuine commercial interest in the enforcement of the claim of another as described in the authorities. Importantly, any interest that he has did not exist independently of the impugned assignment. In my view, under the Deed of Assignment, the Plaintiff did not have anything beyond a mere personal interest in profiting from the outcome of the proceedings.

533. Therefore, any ancillary cause of action in contract or in tort (specifically in conversion) purported to have been assigned separately from the Deed of Debt, must fail on the invalidity of the assignment.

534. It follows that on this basis, also, the Plaintiff does not succeed.

535. Finally, there remains for consideration any claim in debt said to have been assigned separately from the Deed of Debt.

536. The assignment of a debt does not require a “genuine commercial interest” to be valid. As Hobhouse LJ wrote in Camdex International Ltd v Bank of Zambia at 39:

“An assignment of a debt is not invalid even if the necessity for litigation to recover it is contemplated. Provided that there is a bona fide debt, it does not become unassignable merely because the debtor chooses to dispute it.”

537. Thus, for an action in debt, the Plaintiff avoids the difficulties of reliance upon the Trendtex exception. However, that does not conclude the matter. As Hobhouse LJ lucidly recognised in Camdex International Ltd v Bank of Zambia at 33: “[t]here has to be a debt, otherwise there is nothing to assign”.

538. As stated, the Plaintiff’s alternative claims, apart from the Deed of Debt, rely on the provision, without payment, of the jewellery and the payment of the $39,980.

539. Yet, as has been made clear, the Deed of Assignment between Ms Ong and Mr Baena, and then the assignment from Mr Baena to the Plaintiff, upon which the Plaintiff relies, only purported to assign Ms Ong’s rights in respect of the Deed of Debt. In circumstances where, as outlined above, I am not satisfied of the claimed effect of the Deeds of Rectification, the Plaintiff’s claim can rise no higher than the terms of the Deeds of Assignment.

540. Therefore, it is unnecessary to consider, in detail, whether the Plaintiff’s alternative claims have been made out on the evidence, as he has not received a valid assignment of those claims.

541. However, in case I am wrong, turning first to the jewellery, the Plaintiff fails on the fundamental requirement of an action in debt, that there be a liquidated sum due and payable. As Olsson J concluded in South Australia v McKendrick Ahern Pty Ltd (Supreme Court (SA), 9 December 1997, unrep), “the essential element of an action of debt is the creation, by contract, of a liability to pay a liquidated sum of money … [w]hat is important is that there is a clear contractual right to recover a specified amount or an amount calculated in a specific manner in clearly defined circumstances”.

542. As previously noted, I am not satisfied, on the balance of probabilities, that the Plaintiff established that Ms Ong and the Defendant had agreed to the supply of jewellery at a specified value. Indeed, much of the evidence from the Plaintiff’s witnesses indicated that the jewellery was to be used in part-payment for the transfer of the Tasmanian properties, and not as a standalone transaction for which the Defendant would pay cash for the pieces of jewellery. Moreover, I have already referred to my conclusion that I am not satisfied that, for the jewellery that was not returned, the Plaintiff has proved the value of those pieces.

543. The Plaintiff does not succeed on this basis either.

544. The Plaintiff made no separate claim for a debt of $39,980 that had been paid. Clearly, the two amounts, which total that sum, had been paid, and as stated, I am not satisfied that the Defendant purchased the items that she said she did on behalf of Ms Ong for which the amounts were said to have been used.

545. The total amount, therefore, could constitute an amount that the Defendant should repay to the Plaintiff. It follows that the Plaintiff would be entitled to a judgment against the Defendant for $39,980. However, in light of my conclusions regarding the Deed of Debt and the Deeds of Rectification of the Deeds of Assignment, it is unnecessary to do anything about this aspect.

546. The third amended Statement of Claim should be dismissed with costs.

547. The Court:

1. Orders that the third amended Statement of Claim be dismissed with costs.

2. Orders that the caveat lodged by the Plaintiff on the title to XX Callistemon Street, Mount Annan, NSW be removed within seven days.

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Decision last updated: 04 February 2021