Bell P at [1] Macfarlan JA at [2] Gleeson JA at [3]
Decision:
(1) Appeal dismissed.
(2) Appellant to pay the respondent’s costs of the appeal.
Catchwords:
EVIDENCE – standard of proof – balance of probabilities – where appellant alleged signature on transfer form was forged – whether necessary to establish “clear and cogent proof” of the fraud – application of Briginshaw v Briginshaw – Evidence Act 1995 (NSW), s 140
APPEAL – new point or issue raised on appeal not taken at trial – where neither party called attesting witness of transfer form – where allegation transferor’s signature forged – where appellant sought a Jones v Dunkel inference on appeal that the missing witness’ evidence would not have assisted the respondent – whether evidence could have been given which possibly could have answered the new point
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Musa v Alzreaiawi [2021] NSWCA 12
Case
[2021] NSWCA 12
Decision Date
CaseChat Overview and Summary
The appeal concerned an allegation of forgery of a signature on a transfer form. The appellant, Musa, alleged that the signature of the transferor was not genuine, while the respondent, Alzreaiawi, contended it was. The matter came before the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the standard of proof for establishing a forged signature required "clear and cogent proof" in light of the principles established in *Briginshaw v Briginshaw*, and whether a *Jones v Dunkel* inference could be drawn on appeal regarding the evidence of an attesting witness who was not called by either party at trial.
The Court of Appeal held that the standard of proof in civil proceedings, including allegations of fraud or forgery, is the balance of probabilities, as codified in s 140 of the *Evidence Act 1995* (NSW). It affirmed that while the seriousness of an allegation may influence the degree of satisfaction required to meet that standard, it does not alter the standard itself. The Court found that the appellant had not established that the signature was forged on the balance of probabilities. Furthermore, the Court declined to draw the *Jones v Dunkel* inference on appeal, noting that the attesting witness's evidence might have been relevant to the issue of forgery, and it was not established that such evidence could not have been given.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Appellant to pay the respondent’s costs of the appeal.