Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Musa v Alzreaiawi [2021] NSWCA 12 Hearing dates: 4 February 2021 Date of orders: 19 February 2021 Decision date: 19 February 2021 Before: 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
Legislation Cited: Evidence Act 1995 (NSW), s 140
Family Law Act 1974 (Cth), ss 90D, 90G, 90L
Real Property Act 1900 (NSW), s 43
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.36(2), 51.53(1)
Cases Cited: Australian Guarantee Corp Ltd v de Jager [1984] VR 483
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226
Beatty v Australia and New Zealand Banking Group Ltd [1995] 2 VR 301
Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Browne v Dunn (1893) 6 R 37
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Director-General Department of Community Services; Re Sophie [2008] NSWCA 250
El-Wasfi v State of New South Wales; Kassas v State of New South Wales [2017] NSWCA 322
Frazer v Walker [1967] 1 AC 569
Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 361; [2011] HCA 11
Magann v The Trustees of the Roman Catholic Church of the Diocese of Parramatta [2020] NSWCA 167
Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 59 ALJR 481
Morley v Australian Securities & Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140
National Commercial Banking Corp of Australia Ltd v Hedley (1984) 3 BPR 9477
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Palmer v Dolman [2005] NSWCA 361
Payne v Parker [1976] 1 NSWLR 191
State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29; [1982] HCA 51
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
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- Case
- [2021] NSWCA 12
- Decision Date
CaseChat Overview and Summary
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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