Que Noy v Qadir (No 2)
[2021] NTSC 26
•10 March 2021
CITATION:Que Noy v Qadir & Anor (No 2) [2021] NTSC 26
PARTIES:QUE NOY, Patsy
v
QADIR, Mohammad Nawaz
and
REGISTRAR-GENERAL OF THE NORTHERN TERRITORY
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:79 of 2019 (21928711)
DELIVERED: 10 March 2021
HEARING DATES: 5, 6, 7, 8, 20, 22 May, 1, 11, 18, 30 June, 11 & 13 November 2020
WRITTEN SUBMISSIONS: 12 August, 1 and 14 October 2020
JUDGMENT OF: Hiley J
CATCHWORDS:
LAND LAW – Torrens title – Exceptions to indefeasibility – fraud – s 188(3)(b) Land Title Act 2000 (NT) – defendant dishonestly induced plaintiff to execute contract and transfer for the sale of her land at a considerable undervalue – defendant proceeded to register the transfer with full knowledge that the value of the land was five times the contract price
EVIDENCE – Opinion evidence – Expert opinion – handwriting and signatures on receipts – expert not properly explain the basis of his opinions
Agents Licensing Act 1979 (NT) s 121A
Land Title Act 2000 (NT) s 188(1), s 188(3)(b), s 189(1)(a), s 191(2)(a)
Trustee Act 1893 (NT) s 28(VI)Assets Co Ltd v Mere Roihi [1905] AC 176, 210; Blomley v Ryan (1956) 99 CLR 362; Briginshaw v Briginshaw (1938) 60 CLR 336; Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; De Rose v State of South Australia [2002] FCA 1342; Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89; Giumelli v Giumelli (1999) 196 CLR 101; Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1982] 3 VR 133; Makita (Australia) Pty Ltd v Sprowles (2001) 51 NSWLR 705; Que Noy v Qadir & Anor [2020] NTSC 73; Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; Royal Brunei Airlines v Tan [1995] 2 AC 378; Spina v Conran Associates Pty Ltd [2008] NSWSC 326; Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536; Walsh v Bennetts [2014] WASC 453; Wanambi v Whittington [2019] NTSC 49; Ward v State of Western Australia (1998) 159 ALR 483; Williams v Turner [2009] 1 Qd R 296, referred to.
REPRESENTATION:
Counsel:
Plaintiff:A Wyvill SC, J Claridge, P Morgan
First Defendant: G O’Brien-Hartcher
Second Defendant: K Smith
Solicitors:
Plaintiff:King & Wood Mallesons
First Defendant: Bowden-McCormack
Second Defendant: Solicitor for the Northern Territory
Judgment category classification: B
Judgment ID Number: Hil2101
Number of pages: 126
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINQue Noy v Qadir & Anor (No 2) [2021] NTSC 26
No. 79 of 2019 (21928711)BETWEEN:
PATSY QUE NOY
Plaintiff
AND:
MOHAMMAD NAWAZ QADIR
First Defendant
AND:
REGISTRAR-GENERAL FOR THE NORTHERN TERRITORY
Second Defendant
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 10 March 2021)
Contents
Introduction
The Contract
Prior to 3 May 2017
The plaintiff and her association with the Land prior to 2017
The defendant and his relationship with the plaintiff and her family
Previous offers to buy the Land
Notice at Karama Shopping Centre
Discussions after March
Documents provided on about 18 April 2017
What was the agreement between the parties?
Discussions and execution of the Contract and Transfer on 3 May 2017
Events after 3 May 2017
Stamp duty
Other relevant events
Payment of the deposit and purchase monies
Defendant’s means to pay for the Land
Was the plaintiff paid any money?
The receipts
Expert evidence
Consideration
Conclusions about payment of the money
The parties and their circumstances
Plaintiff and witnesses
Credibility of plaintiff
Other witnesses for the plaintiff
First defendant and witnesses
Credibility of first defendant
Other witnesses for first defendant
Defendant’s awareness of the plaintiff’s vulnerability.
Factual findings relevant to fraud and unconscionable conduct
Legal principles
Fraud – s 188(3)(b)
Unconscionable conduct.
Disposition
Introduction
The plaintiff was the registered proprietor of Section 5200, Hundred of Bagot, at 990 McMillans Road, Knuckey Lagoon, Berrimah (the Land). On 3 May 2017 she travelled to Darwin and met the first defendant (hereinafter referred to as the defendant or Nawaz) outside the Local Court building, at Nichols Place. The parties signed a written contract for the sale of the Land to the defendant[1] (the Contract) and a Form 22 “Transfer of Lot”[2] (the Transfer) at the Local Court.
The Contract and Transfer showed the sale price as $300,000. The Contract provided for the payment of a deposit of $15,000 upon exchange and for completion 14 days after the signing of the Contract.
Following queries raised about stamp duty[3] the Territory Revenue Office obtained a valuation of the Land which valued the Land at $1.7 million GST exclusive.[4] The defendant then obtained his own valuation on 29 January 2018, which valued the land at $1.5 million.[5] By 30 August 2018 the defendant had paid the stamp duty, reassessed at $80,254.05 based upon a value of $1.5 million[6], and the Contract and Transfer were stamped accordingly[7]. The Transfer was registered on 31 August 2018, showing the defendant as registered proprietor of the Land.[8]
The plaintiff says she first learned that the defendant had become the registered proprietor of the Land when she attended the Land Titles Office in November 2018 and obtained copies of documents including a copy of the Transfer. She immediately sought legal advice. The plaintiff registered a caveat on 2 May 2019 and commenced these proceedings on 30 July 2019.
In short the plaintiff contends that the defendant became the registered owner of the Land by fraudulent means or alternatively, by unconscionable conduct, thereby rendering his title defeasible by operation of ss 188(3)(b) or 189(1)(a) of the Land Title Act 2000 (NT) respectively. The plaintiff also contends that the defendant never paid her the $15,000 deposit nor any of the $300,000 purchase price.
The Contract
The Contract[9] was in standard form prescribed under s 121A of the Agents Licensing Act 1979 (NT). It was dated 3 May 2017 and executed by both parties in the presence of Tianna Williams, a justice of the peace.
In the Reference Schedule:
(a)Under “Improvements included in sale” in item “C. The Property” the words “Vacant Land” appeared opposite the entry “Nature of Buildings.”
(b)Item “F. Deposit” referred to clause 2 of the conditions of contract and stated that the deposit was $15,000;
(c)Item “H. Date for completion” referred to clause 3.1 of the conditions of contract and stated that the date was “14 days from the Contract of sale has been signed.”
(d)Item “J. Tenancies” refers to clauses 3.1(a) and 3.1(f) and states “Nil”.
(e)Item “N. Default interest” refers to clauses 4.2, 17 and 19 and states “15% simple interest per annum”.
The Contract required a number of things:
(a)the defendant to pay the $15,000 deposit to the plaintiff as stakeholder before 5 pm on 3 May 2017[10];
(b)the defendant to tender a transfer, duly executed by him, to the plaintiff, within five working days of 3 May 2017[11];
(c)no later than three working days before the date for completion, the plaintiff to deliver to the defendant the transfer duly executed by her, and a settlement statement[12];
(d)the defendant to pay the balance, namely $285,000, by the date for completion, namely 17 May 2017[13];
(e)that amount, namely the $285,000, was to be paid by bank cheque[14];
(f)on completion the defendant would be entitled to vacant possession[15];
(g)unless otherwise agreed, completion to take place at the Land Titles Office, Darwin[16].
It is clear that the requirements referred to in [8](d) and [8](e) above, namely payment of the balance by 17 May 2017 and by bank cheque, were not complied with. There is dispute as to whether the deposit was paid on 3 May 2017 or at all (cf [8](a) above).
The normal practice of the purchaser executing then providing the vendor with an executed transfer and the vendor later executing the transfer and providing it together with a settlement statement shortly before completion (cf [8](b) and [8](d) above) was not followed here. Both parties executed the Transfer at the same time as they executed the Contract, and the defendant kept both of the executed originals and lodged them for stamping two days later, on 5 May 2017.[17] Nor was there a settlement statement, such as would contain adjustments for expenses such as rates and water and would record how the proceeds were to be paid to the vendor. There is no evidence of any agreement that completion should not take place at the Land Titles Office (cf [8](g) above).
There are no provisions in the Contract that stipulate that the plaintiff and her family would have a right to continue to live on the Land after completion. Rather, the Contract provided for vacant possession and provided for the permanent and unconditional transfer of the plaintiff’s entire right and interest in the Land to the defendant.
In his amended defence the defendant said that the Contract was verbally amended by the parties to agree that:
(a)the amount of $300,000 would be paid in instalments; and
(b)the plaintiff could live on the Land rent free until she was ready to move.[18]
Prior to 3 May 2017
The plaintiff and her association with the Land prior to 2017
The plaintiff was born on 3 June 1964. She is an elder of the Marrithiyel clan, whose traditional lands are located near the Nauiyu community, in the Daly River District. Both of her parents were Aboriginal. Her mother is also an elder of the Marrithiyel clan.[19] The plaintiff had limited formal education, having attended “bush” primary schools in Finniss River and Daly River until the age of 12. She has worked in various occupations including as a cleaner, and as a cook. She is currently studying a Certificate IV in visual art at Charles Darwin University. She speaks, understands, reads and writes in English.
The plaintiff met Arthur Que Noy (who was born on 11 August 1947)[20] in the early 1980’s when she was 17 or 18 years old. She lived with Arthur on the Land from the mid 1980’s.[21]The Land had previously been owned by Arthur’s uncle, Johnny Pangquee.
The area of the Land is 5 hectares, 7200 square metres. Prior to 1998 when it was subdivided it was part of a larger parcel. The Unimproved Capital Value of the Land had increased from $285,000 as at 1 July 1997 to $1,375,000 as at 1 July 2015. Although the Land has a large frontage to McMillan’s Road the house is set some distance back from the road and largely secured by vegetation.
The plaintiff and Arthur were married in 1992.[22] They had four children together and also adopted Arthur’s niece:[23] John Que Noy, born 1987; Zennas Que Noy, born 1988; James Que Noy, born 1992; Daniella Que Noy, born 1993; and Joyce Que Noy, born 1986. The family all lived together on the Land.
It appears that the financial position of the plaintiff and Arthur was very modest. For example, they have used a generator for electricity on the Land since 2012, when electricity was cut off due to the family not being able to afford the cost of removing trees from the Land in order to facilitate the electricity supply.
Arthur Que Noy died on 15 August 2014 from a heart attack. He left his entire estate to the plaintiff. The plaintiff became the registered owner of the Land on 24 March 2016. Following Arthur’s death, the plaintiff developed a depressive illness which she is still being treated for. She also got into arguments with her children.[24] She had trouble keeping up to date with bills, having previously relied on Arthur to handle the family’s finances.
The plaintiff had only ever earnt a very limited income. The Land is the only asset of significant financial value that the plaintiff has ever owned. The plaintiff continues to live on the Land with her mother, some of her children, and members of her extended family. Some of her children contributed towards paying some accounts from time to time. She has always felt a very strong personal connection to the Land.[25]
The defendant and his relationship with the plaintiff and her family
The defendant operated a taxi business, and had done so since about 2008. He also operated a business, known as “NoLimit Panel and Paint”, buying wrecked or old cars, doing them up and reselling them.
The defendant said he “became familiar” with the plaintiff and her husband and some members of their family in the 1990’s when some of them “often used to camp at the rear of [his] father’s business” premises at Berrimah Road, Berrimah and were “sometimes given lifts back to their Knuckey Lagoon property”.[26] His main association with them and the Land began in about 2011.[27]
In about 2012 Arthur Que Noy asked him to call him Uncle and his wife Auntie, which he did thereafter.[28] He became well acquainted with the plaintiff’s son Zennas and drove him to many places in Darwin without charge, repaired motor vehicles for him without charge, and assisted him to apply for a taxi licence which included offering to pay for the paperwork and training.[29] He gave the plaintiff’s daughter Danielle a laptop for her 21st birthday. He often helped repair motor vehicles of members of the Que Noy family, and he removed the engine sump off Danielle’s vehicle on three occasions without charge.[30] He often drove the plaintiff and her husband to the shops, hospital or other places in Darwin, without charge.[31]
From about 2011 the defendant and other members of his family parked cars, including cars which the defendant was wrecking and repairing, on the Land. In 2014 and 2015 the defendant kept dogs in cages on the Land and he or other family members would visit the Land once or twice a day to feed and walk them.[32] They did this free of charge until about 2015 when the plaintiff’s children asked the Qadir family to remove their cars from the Land because they were not paying any rent and there were ongoing arguments particularly between Zennas Que Noy and the defendant.[33] The defendant said he became “well acquainted” with the plaintiff as she accompanied her husband when he drove them to various places. He sometimes spoke to her on the Land when he was working on motor vehicles or feeding his dogs and the camp dogs on the Land.[34]
The defendant was a pallbearer at Arthur Que Noy’s funeral and helped transport his body to Daly River to be buried on his traditional country. He also provided food for the wake at Daly River.[35] He visited the family home “for long periods” after the funeral.[36]
In his affidavit he spoke of his knowledge and understanding of the plaintiff, much of it gleaned during his many trips driving the plaintiff to various places. He said that he was aware of her ability to communicate with and conduct transactions with bank officers, medical staff and shopkeepers by herself. He knew that she had attended university, had worked as a teachers’ aide at two schools, and worked at a hostel in Larrakeyah, that she could use a smart phone and even that she operated two bank accounts. He also spoke of seeing her attending public exhibitions of her artwork and of her ability to write stories for her artwork, and had observed her selling artwork to visitors to the Land.[37] He was aware that the plaintiff was having difficulties at home following her husband’s death and that she was having serious arguments with some of her children.[38]
The plaintiff and the defendant were also in regular contact by text and telephone and on quite friendly and familiar terms with each other. This is apparent from the various text messages that have been produced, such as those between them in May 2017 and those referred to in [136] to [138] below.
Previous offers to buy the Land
In her affidavit the plaintiff said that during the last years of Arthur’s life the defendant often came to the Land and asked Arthur whether he would sell it to him. Arthur told him that he would not sell it under any circumstances. She said that she and the children overheard some of these discussions. She said that on one occasion the defendant offered to pay $50,000 for the Land and Arthur repeated that he would not sell the Land and “that it was worth much more than that anyway”.[39] She said that her children did not want the Land to be sold either.[40]
The plaintiff also said that during the final days of Arthur’s life the defendant began to ask her whether she would sell the Land to him. After Arthur died he continued to ask her to sell the land to him, telling her that she could use the money to pay her outstanding bills.[41]
During her oral evidence the plaintiff repeated the references to the defendant offering $50,000 for the Land and making other approaches to her to sell him the Land, and to her and her children saying “no” on each occasion.[42] However, during cross-examination she gave different answers to a number of leading questions. She said “no” when it was put to her that the defendant never asked Arthur if he could buy the Land[43], and “no” when she was asked whether she ever heard the defendant and Arthur talking about the Land.[44]
Under the heading “The Land transaction” the defendant said, at [22] of his affidavit:[45]
On one occasion I asked John Que Noy whether I could lease a small part of the Land for car storage but he replied that the Land was not for sale or lease and I then decided not to humbug the family about leasing or buying the Land so I made no further approaches to the family members apart from my dealings with Patsy Que Noy detailed in this affidavit.
(underlining mine)
He then referred to an occasion in March 2017 when he said he and his then girlfriend, Rochelle Cecilie Lacor Riveral, saw a notice on display at the Karama Shopping Centre advertising the Land for sale for “$330,000 or nearest offer” (the Notice).[46] He said nothing further in his affidavit about any communications with the plaintiff shortly before he saw the Notice.
However, the following exchange occurred during his counsel’s cross-examination of the plaintiff:
MR O’BRIEN-HARTCHER: And in fact, you asked him to buy the land a number of times between February and April 2017? --- That’s when we was in debt with the water bill and the land rate, yeah.
Well you didn’t tell Nawaz about being in debt with those water bills or land rates, did you? --- No.
And you said to Nawaz that you would sell the land to him for about $300,000. Did you say that to him? --- No, I didn’t say that, no.
Okay, but between February and April 2017 you asked him to buy that land a number of times? --- Yeah, I asked him to buy the land but not to sell it for $300,000.
Okay? --- Yeah. The property is not worth that much.
It’s not worth that much? --- No.
Worth less? --- More. It’s worth more than that – $300,000.[47]
Counsel for the defendant later put to the plaintiff that she had sent messages to the defendant, in February using Viber, and in March using normal text. At page 157 of the transcript:
MR O’BRIEN-HARTCHER: In March 2017, did you send Nawaz a text saying you were thinking of selling the land or asking him to give you a call? --- No.[48]
Further, during Mr Wyvill’s cross-examination of the defendant, the defendant said that the plaintiff was messaging him on Viber while he was in the Philippines in January asking him whether he wanted “to buy the property or not”[49] and that after he saw the Notice at the Karama Shopping Centre “she was messaging [him] every day asking if [he] wanted to buy it.”[50]
When asked why he had never disclosed that evidence before he said that he had told his lawyers about it many times.[51] He denied counsel’s challenge that he had invented that evidence. Although he had produced copies of texts going back to 2014[52], he did not produce copies of these Viber messages.
Notice at Karama Shopping Centre
At [23] of his affidavit[53] the defendant said:
On or about March 2017 I and my then girlfriend Rochelle Cecilie Lacor Riveral saw a notice on display at the Karama shopping centre for the sale of the Land (“the Notice”). I took a photograph of the Notice which appears to be authorised, dated, and signed by a staff member of the Karama Tavern. A copy of the Notice is annexed hereto and marked MNQ3.
In [3] of her affidavit[54] Ms Riveral said:
On or about 30 March 2017 I was together with the First Defendant at the Karama shopping centre when we saw a notice relating to the Land posted on a notice board (“the Notice”) and I saw the First Defendant then take a photo of the notice.
The defendant said that after he saw the Notice he became interested in buying the Land and he thought that he could help the Que Noy family by allowing the plaintiff and her children to continue to live on the Land if she wished.[55]
The plaintiff denies ever having created or placed the Notice. She was not aware of the document until it was disclosed by the defendant.[56] She said that if she had wanted to sell the Land she would have put a notice at the front gate of the Land and or on a noticeboard at the Berrimah shops because she lives near there.[57]
No independent evidence was adduced in relation to the likely author of any of the writing, or as to whether and by whose authority the Notice was placed on the noticeboard.
The Notice said:
Urgent for sale
990 McMillans Road
Knuckey Lagoon NT 0812
13 Acre of vacant land close to shops, schools, public transport asking $330,000 dollars or nearest offer relocating need to sell urgently as out of Darwin
Call Patsy 0472607182 for more info
In different writing, at the bottom right-hand corner of the Notice are the words “Karama Tavern” “30/03/17” and a signature.
During the discovery process it became evident that the defendant was not able to produce either the original Notice or the photograph which he and Ms Riveral said was taken at the time. The only photograph that he did produce, was in fact taken on 11 May 2017. [58]
During cross-examination the defendant said that he removed the Notice from the noticeboard at the Karama Tavern when he saw it there on about 30 March, so no one else could try to purchase the Land.[59] He said he took another photograph of the Notice at his home on 11 May after he had been requested by the Territory Revenue Office to provide evidence of any advertisements for the sale of the Land.[60] This is the photograph a copy of which is Annexure MNQ3 to the defendant’s affidavit[61] and Annexure RCLR1 to Ms Riveral’s affidavit.[62]
Although the defendant said that he took the Notice home and photographed it on 11 May 2017 he never produced the original Notice. Nor did he produce the photograph of the Notice which he and Ms Riveral said he took when they saw it at the Karama Tavern in March 2017. Rather, the only document which the defendant produced was the photograph which he said he took in May to present to the Territory Revenue Office. He gave different answers when asked about this during cross-examination. Initially, he said that he was unable to produce the photograph that he took in March, or the phone which he used to take that photograph, because he had given that phone to one of his nephews and it was probably smashed or thrown out.[63] He later said that the original photograph “got deleted”.[64] Later, when pressed further about this, he said that his ex-girlfriend, Ms Riveral, deleted the photograph, together with a number of other photographs of the two of them together, in the course of an argument that they had.[65] When he was asked why there was no reference in his Defence to the Notice he said that he had spoken to his lawyer about it and that his lawyer wanted him “to get the hard copy to show it to him so he could put it in there. But by the time he read this it was already too late by the time I gave him the copy of it.”[66] He did not say what became of the original Notice or why he did not take that to the Territory Revenue Office.
I reject the evidence of the defendant and Ms Riveral about them seeing the Notice at the Karama Tavern, in March 2017 or at all, and about the defendant taking a photograph of the Notice at the same time. I say that not only because the defendant has not produced either the Notice or that photograph, but also because I see no reason for the defendant taking that photograph then, if in fact he removed the Notice and took it home with him. Moreover, both of them gave the clear impression in their affidavits that the copy of the photograph annexed to their affidavits was a copy of the photograph taken in late March. It was only after the plaintiff had sought and obtained additional disclosure during the trial, in particular of the phone on which the photograph was taken on 11 May, that the defendant was compelled to admit that Annexure MNQ3 was a copy of the photograph he had taken on 11 May. Moreover, neither of them said anything in their affidavits, about the defendant removing the Notice when they saw it at the Karama shopping centre.
Counsel for the plaintiff contends that the Notice was not posted at the Karama Tavern in March, as the defendant and Ms Riveral have sworn. Rather it was fabricated by the defendant on or shortly before 11 May 2017 for the purpose of persuading the Territory Revenue Office to assess stamp duty based on the amount he had paid for the Land, rather than its true value, which would minimise his stamp duty liability and enable him to avoid the requirement to obtain an independent valuation.[67]
Counsel advanced a number of arguments in support of that contention:
(a)The plaintiff swore that she did not write or authorise the document.[68]
(b)The defendant did not adduce any evidence from any employee of the Karama Tavern in relation to the date and signature appearing on the Notice, and did not proffer any credible explanation for why such evidence was not provided.[69]
(c)The contents of the Notice were factually wrong, i.e., “relocating need to sell urgently as out of Darwin.” The plaintiff may have been thinking of spending more time at Daly River but she was not considering making her mother and children and extended family who were living on the Land homeless, and doing so “urgently”. Further, the plaintiff was not “out of Darwin” in March 2017.[70]
(d)The defendant gave inconsistent evidence on this topic, originally claiming that he took a photograph of the Notice in March 2017 and that this was the photograph he provided to the Territory Revenue Office on 11 May 2017.[71] In fact, it is now uncontentious that the picture of the Notice was taken on 11 May 2017, after the Contract and Transfer were executed.[72]
In his submissions counsel for the defendant pointed out that the fact and timing of the Notice is consistent with the events that took place over the following month or so including the discussions between the parties about the sale of the Land for about $300,000. Counsel also pointed out that more than two years would have elapsed between May 2017 and the time when the Defence was drafted.[73] With respect, these contentions do little to answer the main issues that I have discussed above.
I conclude that both the defendant and Ms Riveral lied about having seen the Notice at the Karama shopping centre, or at all. Rather, the Notice was fabricated by the defendant on or about 11 May 2017 for the purpose of attempting to persuade the Territory Revenue Office that the contract price was similar to that asked for by the plaintiff and that it was the “full value” of the land.[74]
Discussions after March
The plaintiff had in fact been experiencing difficulties keeping up with the payment of accounts over the previous year or so.[75] Her failure to pay rates resulted in the Litchfield Council registering a statutory charge over the Land on 23 March 2016 and her entering into a payment plan with the Council.[76] She also had difficulty paying the water and power accounts. As I have already noted, at one point during her cross-examination when it was put to her that she “asked [the defendant] to buy the Land a number of times between February and April 2017” she said: “That’s when we was in debt with the water bill and the land rate, yeah.”[77]
Sometime early in April the plaintiff contacted the defendant and asked him to drive her home from the Casuarina Shopping Centre. He drove her to the Puma Service station. In his affidavit[78] the defendant said:
[26] During the Trip I raised the subject of the Notice for sale of the Land at $330,000. I offered to buy the land at a reduced price of $300,000 because I could pay cash and she could continue to reside therein. She agreed saying words to the effect that it was her land and she could do what she wanted with it but wanted to keep the sale and payments secret from other family members.
(underlining mine)
In her affidavit[79] the plaintiff said:
[28] On or around 3 May 2017, Nawaz said that he would pay me $300,000 if I agreed to sign a document that would put the Council rates for the Land in his name. Nawaz said he would pay the land rates and the power and water bills, that I was unable to pay, if I signed the document.
[29] Nawaz told me that I could use the money to pay outstanding electricity bills in relation to the Land. He also said that I could use the money to buy myself a car and to fix the family home which was in need of repairs. Nawaz said that I could continue to live on the Land while I repaid the $300,000, and that I would get the Land back when the money was repaid.
[30] In response to his offer, I said to Nawaz words to the effect that “that is a lot of money and I don’t have that amount”. In response, Nawaz said that I could pay the money back in small amounts over time.
(underlining mine)
The plaintiff was clearly wrong about the date if she was implying that these discussions first occurred on or about 3 May 2017. I find that discussions about the defendant buying the Land and paying $300,000 to the plaintiff did commence in early April. However, I reject the defendant’s belated oral evidence about the plaintiff having approached him prior to that asking him to buy the Land.[80]
The defendant denied that there was any loan involved in the discussions and insisted that the plaintiff agreed to sell him the Land. He knew that the Contract did not contemplate the plaintiff repaying money to him and her getting her title back. When counsel put to him that he did not explain that to the plaintiff he said: “Yes, I did, because we do not have an agreement for a loan, it was a sale.”[81] This was not put to the plaintiff by his counsel during cross-examination. I do not believe that he told the plaintiff about this key feature of the Contract.
The defendant also maintained that he and the plaintiff discussed and agreed that:
(a)the plaintiff and her family could continue to live on the Land; and
(b)the defendant would not pay her the whole $300,000 within 14 days, but would pay her small amounts over a period of time.
It is common ground that the defendant told the plaintiff that she and her family could continue to live on the Land. The plaintiff’s understanding was that this would operate while she was repaying the $300,000. My interpretation of that is that once she had repaid the $300,000 the defendant would no longer have any rights over the Land and her previous rights of exclusive possession would continue.
The defendant’s position is that the plaintiff was not to “repay” any money to him, because the $300,000 was not a loan but was for his purchase of the Land. However, it was part of the agreement between them that the plaintiff and her family would continue to have the right to live on the Land. Two interesting points emerge from the defendant’s evidence about this, both of which add to my concerns about his credibility.
First, such an agreement was not reflected in the Contract. Indeed clause 3.1(a) of the Contract entitled him to vacant possession. When he was asked about this during cross-examination he said that:
Well, it’s not going to be in the contract because that was a verbal agreement and she was going to be staying there for free so I thought it wasn’t necessary to have a contract.[82]
During re-examination his counsel asked him whether there was some reason why he did not feel it necessary to put that verbal agreement in writing. He said:
Yeah. Because I agreed that she could stay there for free of charge so I thought it was unnecessary to have it in writing because normally if you have a rental property if you are getting rent money you to have a contract for it is what I am aware of. So she wasn’t paying me anything for rent so there was no contract needed.[83]
Second, he was asked whether he told the plaintiff that the Contract did not include a promise from him to allow her to stay on the Land. He initially repeated his evidence that they had a “word of mouth” agreement, and when pressed further to answer the question he said “Yes”. He was then asked to state when he told the plaintiff that, and answered: “When, I don’t remember the exact date.”[84] His counsel had not put to the plaintiff during her cross- examination words to the effect that the defendant had told her that this important promise was not included in the Contract.
Counsel then put to the defendant that that was another lie that he had just invented to try and help his case. The defendant replied that he had told all of this to his previous lawyer and that “he’s only put in whatever he wanted to in my defence” and “that’s why I had to fire him”.[85]
I consider these to be further examples of the defendant’s readiness to invent answers to suit his own case. They also demonstrate a degree of commercial nous and cunning, particularly in relation to his knowledge and understanding of what the Contract did and did not contain, and his understanding as to what the plaintiff should have been told about her rights, particularly her right to continue to live on the Land, before being asked to sign the Contract.
I reject his evidence about having told the plaintiff that the Contract did not contain any provision entitling her to remain on the Land. Rather he deliberately refrained from telling her that, lest she might refuse to sign the Contract.
Nor do I believe his evidence to the effect that the plaintiff agreed that the balance of the $300,000 was not to be paid within 14 days of the date of contract (by bank cheque), contrary to clause 3.6 of the Contract, but was to be paid in cash over a period of time by way of different instalments. He was asked about this during cross-examination:
HIS HONOUR: … [D]id you say that you agreed with Patsy that you didn’t have to pay her the whole $300,000 within 14 days? --- Yes. We made our mutual agreement not in contract. And I told her, “If I was to give you 300,000 in cash I’d be at high risk taking the money to her. I could easily get attacked or robbed with $300,000.” So I thought no that’s too crazy to give her that much all at once as well so it was for her safety and mine for carrying that much amount of money.
So, when did you have that discussion with Patsy? --- After we signed the contract and I gave her the deposit and she said she agreed with it because I told her it’s too risky to give you that large amount.
… that was on the same day was it? --- Yep.
So when you signed the contract did you have the capacity to give pay her the 300,000 within the 14 days? --- Yes.[86]
However, in [31] – [32] of his affidavit[87] he had said:
[31] After the contract and transfer had been signed I gave Patsy Que Noy $15,000 cash as discussed and she gave me a receipt. In a meeting made on the Land before 3 May 2017 we had agreed that the $300,000 purchase price would be paid by instalments and that I would call her when making a payment and that she would then meet me at the front entrance of the Land so that her other family members would not be involved.
[32] The agreement to pay the $300,000 by relatively small instalments appealed to me as I thought it would protect Patsy from possible robbery, gambling losses, or unwanted approaches from family members. I would have been able to pay the $300,000 in a large amount or as per the contract but she requested instalments.
(underlining mine)
I reject his evidence about any agreement for him to pay the $300,000 by instalments. Not only did he contradict himself as to whether this agreement was reached before or after the plaintiff signed the Contract, his explanations are absurd. He lied about this too.
I also find that he lied when he said that he explained to the plaintiff that the Contract was for the sale of the Land, not one in the nature of a loan agreement pursuant to which she could get her title back once she repaid the loan.
Documents provided on about 18 April 2017
On or around 18 April 2017, the plaintiff met the defendant at the entrance to the Land and gave him a bag containing two agreements, both between Arthur Que Noy and Andrew May: i) a contract of sale signed by Andrew May as purchaser on 30 September 1997 but dated 19 March 1998 (the March 1998 contract)[88] and, ii) a loan agreement signed and dated 27 January 2000 (the January 2000 loan agreement)[89].[90]
The defendant referred to this meeting in his affidavit:[91]
[27] On or about the 18 April 2017 Patsy at the entrance to the Land gave me in a green Woolworth’s carry bag with a contract for a sale of a lot adjourning [sic] the Land which her late husband had used and other documents like a Vendors loan contract therein. She then said words to the effect here is an example of a contract you can take it and use it. I then took the carry bag home and took some photos of the contract before returning the documents and bag on or about the next day. A copy of the contract with the loan agreement is annexed hereto and marked MNQ4.[92]
The March 1998 contract related to the sale by Arthur Que Noy to Andrew May of land adjoining the Land for $200,000. That land was to be subdivided from a larger block, Section 4862, Hundred of Bagot, which included the Land. It was expressed to be conditional upon both parties executing a loan agreement whereby the vendor was to provide a loan of $190,000 for the purchaser to complete the contract, repayable by monthly repayments of $2400 with no interest.[93]
The January 2000 loan agreement was an agreement for a loan of $89,000 by Arthur Que Noy to Andrew May, also repayable by monthly repayments of $2400 with no interest. That document stated that “in consideration of the advance of the Loan Amount herein acknowledged” the lender (Arthur Que Noy) would “hold the certificate of title to the borrower’s property”[94], presumably as security pending repayment of the loan. Until the loan was repaid the borrower (Andrew May) would pay the normal outgoings such as for rates, insurance and repairs.[95]
The document did not identify the property referred to, nor otherwise expressly link that loan with the March 1998 contract. However I consider it likely that it was the loan agreement referred to in Special Condition 6 of the March 1998 contract or a replacement of that loan agreement reflecting that the amount still owing under the March 1998 contract had fallen to $89,000 perhaps as a result of Andrew May already having paid off more of the purchase price.
The plaintiff had not said anything about this meeting and the documents in her affidavit. However, she identified the originals of the two documents during her evidence in chief, and said that she had given them to the defendant and told him “this is how the contract should have been”.[96] She said that she provided the documents to the defendant so that he could record the agreement she believed they had reached in writing.[97]
Her barrister asked her what she understood to be the agreement that should be put in a form like that in the contracts. At p 22 of the transcript:
MR WYVILL: … What did you understand to be the agreement between you and him at that time, which you wanted to be put in a form like that? --- Can you repeat it again, please?
Yes. What did you understand to be the agreement? … What were you supposed to get from him for signing over the land? --- Signing over the land?
What was he going to give you? --- He said money.
Okay, money? --- Yep.
And how much? --- $300,000.
$300,000. And was there any discussion about how that was to be paid? --- All he said, I’ll give you cash.
Give you cash. And was there any discussion about whether you would have to leave or whether you could stay on the land? --- He said, you can stay if the property is in my name, you can stay at the property. I told him, no. I’m not staying on the property.
The plaintiff’s last answer is different to what she said shortly after that, at p 23 of the transcript:
MR WYVILL: So all of you were living on the property? --- Yes.
And what did he say about you and your family staying or going? Were you to stay on the property after you transferred it over or did you have to go? --- I told him: “No, we are not leaving the property – the property was given to me.”
Okay, so you were going to stay on the property? --- Yeah.
HIS HONOUR: So just to make sure I heard that correctly, you said: “No, I’m not leaving the property”? --- Yeah, “I’m not leaving the property.”
“The property was given to me”? --- Yes.
MR WYVILL: And what did he say in response to that? --- Nothing.
Did he … agree with that or did he disagree with that? --- He didn’t say anything.
Then occurred the following exchange in relation to the defendant paying her $300,000, at p 24 of the transcript:
MR WYVILL: … was that $300,000 going to be kept by you forever or were you going to try and pay it back to him? --- Well, I was going to pay him back.
…
HIS HONOUR: Was that something that the two of you talked about? --- Yeah.
MR WYVILL: And how long - did you talk about how long you would need to pay it back? --- Probably years.
You’ve just told us what you discussed about the agreement for the sign over of the land. Which parts of that did you expect to be in the contract? Some of it? None of it? All of it? --- None of it.
Sorry? --- None of it.
None of it? Why was that? --- I didn’t know what I was signing.
The plaintiff’s evidence does not indicate when she says the idea of her paying back some or all of the $300,000 was first discussed.
As I have already noted in [32] above, at one point during cross-examination the plaintiff agreed that she had asked the defendant to buy the Land a number of times between February and April 2017 but insisted that the $300,000 figure was his idea, not hers.[98] At p 113 of the transcript:
MR O’BRIEN-HARTCHER: … shortly after … 30 March 2017 you and Nawaz were talking about selling the land to him, is that right? --- Correct.
Yes. And you settled on a price of $300,000 in cash? --- That was his idea.
Okay. And you agreed to that idea? --- Yes.
And was your intention to sell the land and move to Daly River, to be close to Arthur, is that right? --- Yes.
And you told us yesterday that as part of getting that agreement with Nawaz for selling your property, you gave him a contract of sale to use as an example? --- Yes, that’s true.
And that’s because you wanted to get that contract right? --- Yes.
Counsel then showed the plaintiff the March 1998 contract. She agreed that under that contract Arthur had sold that piece of land to Andrew May permanently, as a result of which she and her family could not go there without Andrew May’s permission as it then belonged to him. She agreed that when she gave a copy of that contract to the defendant she wanted him to copy that contract for their agreement.[99]
Then occurred the following exchange, from p 114:
MR O’BRIEN-HARTCHER: And you knew that by him copying that contract from that one there, that you and he would agree to sell that piece of land permanently to Nawaz? --- No.
Well, Andrew May had bought that land from Arthur, is that right? --- Yes, it was between them two, not me.
I understand that? --- I’m not involved in that one.
I understand that? - It’s Arthur and Andrew May.
Counsel proceeded to have the plaintiff confirm that that piece of land then belonged “permanently” to Andrew May and that it no longer belonged to Arthur. She agreed that she “wanted Nawaz to make a contract just like that one”.[100] At pp 119-120 of the transcript:
MR O’BRIEN-HARTCHER: … And you knew that by having an agreement with Nawaz to sell the land, the land would become permanently Nawaz’s land? --- Yeah. But, when I signed the contract, it said he would pay me the money in cash, which I never received.
…
And what you are telling the judge now is that the agreement was that he would get the land permanently, if he gave you the cash? --- There was no money.
…
HIS HONOUR: Perhaps a different way.
He promised to give you that $300,000? --- Yeah.
And in return, you promised to give him the land. That’s what Mr O’Brien-Hartcher is asking? --- Yep, but …
…
MR O’BRIEN-HARTCHER: So, the promise that you guys made each other was that he promised to give you the $300,000 cash and you had promised to give him the land. And you’re saying he broke his promise? --- Yep.
At that point the plaintiff asked for a break and the Court adjourned for 15 minutes. Mr Wyvill SC expressed concern about some of the cross- examination the previous afternoon and said that the plaintiff was tired and may have been engaging in some gratuitous concurrence.[101]
After the break, the plaintiff was asked more questions about the agreement. At pp 124-5 of the transcript:
MR O’BRIEN-HARTCHER: I’ll start again, Patsy. You and Nawaz came to an agreement. That agreement was that he promised to give you $300,000 in cash and you promised to sell him that land. Is that the agreement that you made, the promises that you made about that agreement? --- No.
Well, what do you say the promise was?
HIS HONOUR: Or was there a promise? Was there an agreement between you? --- There was agreement but it wasn’t on paper.
MR O’BRIEN-HARTCHER: Okay. That agreement was between you and Nawaz. You talked about that agreement? --- Yes.
And the talking about that agreement was that he promised to pay you $300,000 in cash and you promised to sell him - - -
HIS HONOUR: Well, just a minute. I think let’s try it in a non-leading way if we can, because you have put it that way and I think you got a not very clear answer.
MR O’BRIEN-HARTCHER: I thought that we had clarified the basis of it, your Honour.
HIS HONOUR: All right, okay.
MR O’BRIEN-HARTCHER: But I’m happy to - - -
HIS HONOUR: Well, sorry. So, you say there was an agreement but I think you have said but not on paper? --- Not on paper, yeah.
Okay, there was an agreement? --- Yeah.
And that agreement had related to you selling him the land, is that right? --- Yeah.
And him paying you some money for the land? --- Yeah.
And Mr O’Brien-Hartcher is asking you for some more detail I think about that agreement? --- Sorry.
…
MR O’BRIEN-HARTCHER: … And that agreement where he agreed to give you some money and you agreed to selling the land, that was the same sort of agreement that Arthur had had with Andrew May?---Yep.
Later in his cross-examination Mr O’Brien-Hartcher took the plaintiff back to what she said at [29] of her affidavit about her repaying the $300,000 and her getting the Land back when the money was repaid. She agreed that would be a loan and she said: “That would take probably years to pay.”[102] During further cross-examination the plaintiff repeated that the defendant said that if she signed the contract and he gave her the money, “[she] would pay it back bit by bit.” She firmly denied that the defendant said that she would not have to pay him back. She also denied that he said anything about him paying her “bit by bit” or that she had asked him to pay the $300,000 in cash to be paid “bit by bit”.[103]
Counsel also put to the plaintiff more questions about the defendant paying her in cash and about the importance for her and her family to keep living on the Land. She repeated that her children would get upset with her if she sold the Land. At one point she said “Yeah” when counsel asked her whether she asked the defendant to delete text messages that they had exchanged because she did not want her kids to see them. This was because her kids would get upset with her if she sold the Land.[104]
In re-examination the plaintiff said that she only read the front page of each of the agreements and doubted whether she read any other parts of them.[105]
As I noted in [74] the plaintiff did not say anything about these contracts in her affidavit. In her evidence she said that she did not tell her lawyers about this because “I had probably forgotten about it”.[106] In his written submissions counsel for the defendant contended that:
The plaintiff’s omission of that evidence from her original story is really significant. The plaintiff is seeking to down play her knowledge of land transactions, and her active role in the forming of the agreement and of the contract. In the context of a contractual dispute about land, the plaintiff leaving this evidence out of her affidavit and original case cannot be overlooked or explained away.[107]
Counsel also pointed out that at one point during cross-examination the plaintiff said that she did not give the defendant the loan agreement,[108] and that she was wrong when she said that.[109] I agree she was wrong about that. Not only was that evidence inconsistent with her evidence in chief, it was also inconsistent with the fact that the defendant must have had access to both documents before describing them in [27] of his affidavit and annexing copies of them as MNQ4.
However, shortly before the first occasion when she said she did not give the defendant the loan agreement[110], she agreed that she had given the defendant the two documents and answered counsel’s questions on that basis.[111] There was some confusion all around as to which of the two contracts was being referred to by counsel at the particular time.[112] I consider that most of her references to “a” contract and “the” contract were in fact references to both documents, each of which were contracts.
I reject counsel’s contentions that the plaintiff was seeking to downplay her knowledge of land transactions and her active role in the forming of the agreement and of the Contract, and counsel’s contentions elsewhere to the effect that at all material times the plaintiff was fully aware of what was happening in the course of her discussions and dealings with the defendant.
I found the plaintiff to be an unsophisticated person with little familiarity with commercial matters and the precision and rigour expected of a witness in the court room. I noticed that she often had some difficulty locating pages and references in documents when they were shown to her in the witness box, and had to be assisted by a court officer. Like many Aboriginal people being asked questions in an environment such as a court room she had a tendency to provide a “yes” or “no” answer, or otherwise volunteer an answer, even if she did not properly understand the question, or the whole of the question. Rarely, if ever, did she ask counsel to reword or clarify a question, although she sometimes asked counsel to repeat the question. I think it likely that she misunderstood some of the language used and implications suggested by counsel, but was too polite to say so. Some examples of this are references to contracts and agreements[113] and dates and times[114]. Also, some of her answers might be capable of being construed in different ways: for example her references to “signing over the land” and “signing the property over to him”[115], to “cancelling” the contract, and to her “husband’s land” when referring to her husband’s traditional country at Daly River. She also had a tendency to focus on and answer one part of a question without appreciating the broader context and thus the main thrust of the question.
I also consider that her memory was poor. It is likely that, like many witnesses, she did engage in some degree of subconscious reconstruction and that some of her answers may reflect what she now thinks could have been said and done rather than being based upon her true recollection. I do not consider that she was lying. Rather she was, on occasions, mistaken.
I do consider that there was genuine confusion in the plaintiff’s mind when she gave evidence about the two agreements. This was particularly so during the questioning of her after she had clearly, and in my view knowingly, said “No” to the proposition put to her during the commencement of the cross-examination on this topic, that she “knew that by him copying that contract … you and he would agree to sell that piece of land permanently to Nawaz”.[116]
Counsel for the plaintiff contended that the two agreements should be understood as having been provided by the plaintiff purely for the purpose of indicating that she wished the agreement between her and the defendant to be documented in a formal contract.[117] I disagree. Rather, I consider it likely that when she provided the two documents to the defendant she was assuming that she would in fact be borrowing the $300,000 from the defendant (as Andrew May had done under the January 2000 loan agreement) and using that to pay her outstanding debts, and that the defendant would be holding the title to the Land as security pending repayment of that loan.
Although the defendant had said in [27] of his affidavit that the plaintiff had given him a contract for a sale and “other documents like a vendors loan contract” and that he took some photographs of the contract before returning the documents and the bag to the plaintiff, he did not say in his affidavit or in his evidence in chief, what use if any he actually made of those documents.
The defendant said that he obtained a pro forma contract from the Internet and read it all the way through and understood it, including the clauses about completion.[118] He did not get legal advice about the Contract[119], presumably because he considered he understood it.
He knew that the Contract that he drafted (Exhibit D9) did not contain any promise by him to allow the plaintiff to stay on the Land[120] but said that he made that promise to her previously and also on 3 May 2017.[121] He also said that he knew that the Contract did not allow for the plaintiff to repay the money that he was going to pay her, so she could get her title back. He said “that wasn’t the agreement” “because we do not have an agreement for a loan, it was a sale.”[122] Those and other answers to questions asked of him during cross-examination satisfy me that he was well aware of what he was doing when preparing the Contract and of the true legal effect of the Contract when he presented the Contract and Transfer to the plaintiff for her signature.
He was very vague, deliberately so in my opinion, when he was cross-examined about what use if any he made of the agreements which the plaintiff had given him some weeks earlier (Exhibits 2A and 2B). He said the only word that he copied from those agreements was the word “Bagot” to insert as part of the address for the Land, “Hundred of Bagot”.[123] Otherwise, he said that he used those agreements to assist him to know where in the contract to insert certain words, such as his name as the buyer and the plaintiff’s name as the seller[124] and the description of the property[125].
[100]At a later point he said that he copied from the contracts (Exhibits 2A and 2B) the words “14 days from the Contract of sale has been signed [sic]” opposite item “H: Date for Completion” from the contracts.[126] However the only reference in the contracts to a Date for Completion contained quite different wording: “14 Days from when the Vendors Conveyancer notifies the Purchasers Conveyancer of the issued [sic] of a separate Title by the Registrar-General.[127]
[101]He denied that he knew at that stage that the Land had an unimproved capital value assessed at $1.375M and that there was a registered charge in favour of the Litchfield Council that would make him aware that the plaintiff was in financial difficulty. This information would have been revealed when he conducted a title search. He told the plaintiff’s counsel that he did not know these things and that he did not search the title. Counsel then asked him how he obtained the title details to be inserted in Item C of the Contract[128] without having carried out a search. He said that when the plaintiff gave him the two agreements on 18 April 2017 she showed him a copy of the title to the Land and he used that information when preparing the Contract.[129] He said that he “filled out the Contract of Sale” and took the document to the Land Titles Office and asked someone there whether the information regarding the title was “right”. He said that a person there looked at a computer screen and found the title and “just told me that the numbers that I had already done is correct.”[130] He said this occurred sometime between 18 April and 3 May 2017.[131]
[102]I consider that he lied about this. He acknowledged that he had not previously said anything about this, for example, in his affidavit, but attempted to explain it away by saying that his lawyers had not asked him about that.[132] Nor had he said anything about this when he gave his detailed evidence about the discussions with the plaintiff on 18 April when she gave him the two contracts to use as examples. He said nothing then about her also having brought with her the certificate of title relating to the Land and about him recording the title details from the document. He also lied about not having seen the title details at the Land Titles Office which also included information about the unimproved capital values of the Land and the charge in favour of Litchfield Council.
[103]I reject counsel’s submissions that the defendant’s answers, including that he was not aware that he could do a title search and did not do one, were “reasonable, they make sense and are consistent”.[133] I also reject counsel’s contentions that the relevance of the evidence about the contracts (Exhibits 2A and 2B) is that “the plaintiff wanted to sell the land, and by giving the first defendant the example contracts, she demonstrated she was an active and willing participant in the sale.”[134]
What was the agreement between the parties?
[104]At [42] of their written submissions counsel for the plaintiff contended that:
[B]y 2 May 2017 at the latest, Nawaz and Patsy had reached an agreement, using that term in a non-technical, general sense, which involved:
(a) Nawaz paying Patsy $300,000;
(b) Nawaz obtaining some form of interest in the Land which enabled him to have his name on the title;
(c) Patsy having the right to remain on the Land with her family for a period that was not precisely defined but which duration is reflected by the fact that, even now, over 3 years after the Contract was signed, and almost 2 years since Nawaz became the registered owner, Patsy and her family remain in exclusive possession of the Land and Nawaz has not taken any step to seek possession of the Land;
(d) the agreement should be properly documented in a formal contract.[135]
[105]At [79] of their written submissions counsel for the plaintiff submitted that:
[T]he Court should find that Patsy agreed to sign the Contract and the Transfer on the condition that:
(a) Patsy and her children could continue to live on the Land.
(b) Nawaz would pay Patsy $300,000.
(c) Patsy could apply the $300,000 towards overdue rates and other outstanding bills.
(d) Patsy could pay back the $300,000 to be provided by Nawaz over time.
[106]However, counsel did not say what was to happen to the title once the $300,000 was repaid. Presumably the plaintiff would want the title to the Land put back into her name.
[107]Counsel for the defendant contended that the parties agreed to enter into a contract of sale as reflected in the Contract, but that there were two oral agreements that would prevail over the written terms of the Contract:
(a)an agreement for the plaintiff and her family to be able to continue to live on the Land indefinitely; and
(b)an agreement, struck shortly after the date when the Contract was signed, that the balance of the purchase monies could be paid over an unspecified period of time by cash in instalments.
[108]I reject the defendant’s contentions. I do consider that the plaintiff thought that she had reached an agreement with the defendant along the lines of that set out in [104] to [106] above, and that such an agreement would be, and in fact was, formally encapsulated in the Contract. On the other hand, the defendant intended to achieve something quite different, namely ownership of the Land in accordance with the terms set out in the Contract which he prepared and persuaded the plaintiff to sign.
[109]I also find that the defendant did not disabuse the plaintiff of her assumption that she could repay the $300,000 and get her title back, nor tell her that there was no provision for her and her family to continue to live on the Land, nor tell her that he was not intending to pay her the $300,000 in cash as he had promised but would be paying her by instalments over a period of time. He knew that if he did tell her any of these things she would not execute the Contract when he presented it to her on 3 May 2017. He also knew that she trusted him and trusted him to treat her fairly.[136]
Discussions and execution of the Contract and Transfer on 3 May 2017
[110]The defendant said that he told the plaintiff by phone that he “would have the paperwork prepared for the sale of the Land” and they would have to go to the city to have the transfer and contract properly witnessed.[137]
[111]Following arrangements made the previous day the plaintiff and the defendant met outside the Local Court building at Nichols Place on 3 May 2017. The defendant gave the plaintiff the Contract and Transfer which he had prepared. The plaintiff had not previously seen those documents, or drafts of them. The plaintiff and the defendant went inside the Local Court building and signed the two documents in the presence of Tianna Williams, an employee at the Local Court and a Justice of the Peace.
[112]There is some dispute as to what was and was not said between the parties prior to the execution of the documents and what opportunity the plaintiff had to peruse them before she signed them. However it is not disputed that there was something said in relation to whether or not the plaintiff should obtain legal advice before signing the documents. It is common ground that the plaintiff did not obtain advice from anyone, whether or not a lawyer, in relation to the documents before she signed them.[138] The defendant also acknowledged that the plaintiff was trusting him to properly record the agreement that they had reached.[139]
[113]In her affidavit made 13 February 2020 (Exhibit P10) the plaintiff had said:
[31] In the afternoon of 3 May 2017, Nawaz picked me up from the gate at the front of the Land and drove me to the Land Titles Office in his car to sign some paperwork. The Land Titles Office is located at Nichols Place in Darwin. We had arranged this in advance on the phone that morning. When Nawaz picked me up my children were all at work, and none of them were at home. I recall that I had been at university in the morning, and had taken the bus home prior to being picked up by Nawaz.
[32] During the drive to the Land Titles Office, I said to Nawaz words to the effect: "I think I need to talk to a lawyer about all of this" and "I want to get a lawyer to be present". In response, Nawaz said: "You don't need a lawyer, once you sign I'll give you the money" and "Don't listen to lawyers, they don't know nothing".
[33] Before we arrived at the Land Titles Office, I said to Nawaz that I needed a family member to come and be my witness. Nawaz told me I did not need family members as witnesses.
[34] When I arrived at the Land Titles Office, I still did not understand what I was going to sign. Nawaz had not shown me any documents or explained anything to me. I felt confused. I asked Nawaz questions about what I needed to sign, and he told me that it was a "stat dec", which I now know means a statutory declaration. I asked Nawaz for a copy but he just said "later" and never gave me one.
[35] At the Land Titles Office, everything happened very quickly and I felt very rushed and stressed. I remember that I could not find my glasses until Nawaz and I were called up to a counter.
[36] When we got to the counter, Nawaz had some papers inside a magazine. I could only see the edge of the papers sticking out. Nawaz opened the magazine and showed the papers to the witness, who I now know was a Justice of the Peace. I was on the right hand side of Nawaz and I could not see the face of the papers that he was showing the witness because of the way he opened the magazine. I then signed one piece of paper, which I believed was a statutory declaration. At the time of signing this document, I had no understanding of what it meant or why I needed to sign it.
[37] Now shown to me and marked “PQN-4” is a copy of the Transfer of Lot dated 3 May 2017. I recognise my signature on this document and believe this was the document I signed at the Land Titles Office. I am aware from being shown the Transfer of Lot that my signature was witnessed by Tianna Williams.
[38] I have no recollection of signing any other documents at the Land Titles Office. In particular, I did not receive or read any contract sale in relation to the Land. The first time I saw any contract of sale was during the discovery process in this litigation. Now shown to me and marked "PQN-5" is a copy of a Contract of Sale dated 3 May 2017. I do not recall ever seeing this document and I do not believe that the signature on this document is mine.
[39] After we had visited the Land Titles Office, Nawaz said that he would have the money he was going to give to me in a couple of days.
[40] In the days following the visit to the Land Titles Office, I began to feel worried that I had lost something that was given to me by Arthur.
[41] Later that week, I was at the Centrelink office when I overheard someone saying that the Land had been sold. This made me very worried. I went to the Land Titles Office and asked the staff there if the Land was still in my name. I was informed that the Land was now in Nawaz's name. The staff asked me whether Nawaz had paid me any money for the Land, and I said that he had not. The staff then advised me that I needed to go and see a lawyer.
[42] When I realised the Land had been transferred to Nawaz, I called him and told him he had taken something from me. Nawaz asked me to come over to his house to have a talk about it, but I did not go to see him because I wanted to get legal advice before I spoke to him. Nawaz then began calling me repeatedly for several days telling me that he had some money to give me.
[114]The original Statement of Claim[140] contained allegations similar to the facts asserted in paragraphs [31] – [33] and [36] – [38] of the plaintiff’s affidavit, in particular that:
(a)the defendant picked her up from the Land in his car and drove her to the Land Titles Office in order to have her execute the Transfer[141];
(b)during the car trip the plaintiff asked the defendant whether she should speak to a lawyer or her family before signing the Transfer, to which the defendant replied “no”, as a result of which she did not speak to or get advice from any such person[142];
(c)the plaintiff did not see or sign the Contract at any time[143].
[115]I would assume that the plaintiff’s lawyers drafted the Statement of Claim based on information previously provided by the plaintiff which subsequently found its way into her affidavit.
[116]In his affidavit made 4 April 2020 (Exhibit D11) the defendant stated:
[29] In May of 2017 I phoned Patsy Que Noy and informed her that the Transfer of Land and Contract were ready and we agreed to meet at the Local Court in Darwin to have the documents witnessed. Patsy sent me a SMS message whilst travelling by bus to the Court House. I did not drive her to the Court House.
…
[31] After the contract and transfer had been signed I gave Patsy Que Noy $15,000 cash as discussed and she gave me a receipt.
…
The Signing of the Contract and transfer
[44] I travelled with my girlfriend Rochelle to the meeting with Patsy Que Noy at the Darwin Local Court House in the early afternoon of 3 May 2017. I was able to park my car in the same street side of the Court just around from the bend in the Street close to the entrance of the Court.
[45] I met Patsy Que Noy outside the entrance of the Local Court after she had approached from the Bus Stop area and gave her single copies of the contract and transfer both of which I had prepared in duplicate. She appeared to me to be reading the contract and transfer as we walked into the Court Registry area to find a witness. She continued to read the documents whilst we joined a small queue.
[46] Patsy Que Noy approached the witness at the Local Court first and the witness asked her to produce ID which she did. I heard the witness ask Patsy Que Noy whether she knew what she was signing and Patsy said words to the effect its yes a contract. I also heard either the witness or Patsy say words like it's a contract for sale of land and transfer. I can't remember which person said those words before all copies were signed by Patsy who did not appear to me to be stressed.
[47] I then produced my ID to the witness and signed all copies and, gave one copy of each the transfer and contract to Patsy signed by both of us which she put in her bag which was cotton and had one shoulder strap. I retained the other signed copies.
[48] After the contract and transfer had been signed I gave Patsy $15,000 cash in 50 & 100 notes outside the entrance of the Court and she gave me a prepared receipt. I then asked her twice if she wanted a lift home or elsewhere and she said words like no I can catch the bus.
[49] I never told Patsy that she did not need a Lawyer for the Land transaction.
[117]The plaintiff amended the Statement of Claim on 7 May 2020 to acknowledge that she had in fact travelled to the LTO by bus and not in the defendant's car, and had in fact signed the Contract as well as the Transfer at the LTO on 3 May 2017. She maintained the pleadings concerning her discussions with the defendant about seeking advice from a lawyer or friend, saying that these occurred “at or prior to meeting at the [LTO]”.[144]
[118]During her evidence the plaintiff was taken to [36] of her affidavit[145] and said that the “papers” that the defendant had inside the magazine were copies of the Contract and the Transfer. She said that she “wasn’t given any contract to read” and that she told the defendant she needed someone to have a look at the document. In response to that the defendant said that “you do not need a lawyer” and “you do not need a family member”. She was not given a copy of the Contract but was given a copy of the Transfer.[146] However during cross-examination the plaintiff said that the defendant did not give her a copy of the Transfer after they got back outside.[147]
[119]Counsel for the defendant pointed to these differences in the plaintiff’s evidence, particularly in relation to when she first saw the Contract, as demonstrating her poor credibility. Counsel contended that the plaintiff lied when she said in her affidavit that she did not sign the contract of sale on 3 May 2017.[148] I agree that she was wrong about that. However, I do not consider that she deliberately fabricated that evidence.
[120]Counsel for the defendant also contended that the plaintiff lied about wanting to speak with family before signing any documents. Counsel referred to her evidence to the effect that she would not want her family to know if she was going to sell the Land because they would not want her to do that. However, this begs the question. This argument would only be valid if she understood that she was in fact selling the land. As I have already said, I do not consider that she did have this understanding. Rather, I can well understand her wishing to speak to family members before signing one or more documents that she had not seen before and did not understand.
[121]The defendant was well aware of the attitude of the plaintiff’s family and of their unwillingness for the Land to be sold. Indeed this was the reason he gave for him meeting the plaintiff at the front entrance of the Land each time he was to pay an instalment of the purchase price.[149] It was also the reason he gave for the plaintiff asking him to delete some of their text messages[150] and insisting that he pay the money in cash and not by cheque[151]. He knew that if she showed the Contract or even the Transfer to a family member that person would ask questions about what those documents meant and would discourage the plaintiff from signing them. I find that he deliberately discouraged the plaintiff from showing the documents to any family members, knowing that if she did, she would not sign them.
[122]The defendant was cross-examined about what, if anything, was discussed between the plaintiff and him about her obtaining legal advice, apart from his denial in [49] of his affidavit. He said that, sometime after 18 April and before 3 May:
She asked to see a lawyer and I said: “You can go ahead. You can see whoever you like. That’s nothing to do with me who you see. If you want to get legal advice, you can take a copy of the contract before we sign and you can go ahead and do that.” If she did or didn’t, I don’t know. She told me she had when we met on the 3rd and even when the court [sic] at the courthouse asked her what she was signing, she said, “Yes I know what it is. It’s a contract of sale and a transfer of lot.”[152]
[123]Shortly after that the defendant said that the plaintiff told him on 3 May that she had been to a lawyer that day and she said to him: “Yeah. I already spoke to someone and got advice and it is all good.”[153] The defendant went on to say that he had previously suggested that they “get a lawyer to do the contracts up” and that the plaintiff said there was no need to incur that expense because they could copy the agreements that she gave him.[154]
[124]After counsel asked the defendant why he had not included any of this in his affidavit, he said that he had “given all this stuff to my lawyers”.[155] I do not accept that explanation. What the plaintiff had said in her affidavit about these important facts called for him to respond in his answering affidavit. His lawyers would have been well aware of the importance of her evidence about the defendant dissuading her from consulting a lawyer or family member (in [32] and [33] of her affidavit), and about her not understanding what she was being asked to sign (in [34] – [36] of her affidavit).
[125]Nor do I accept the defendant’s evidence that he told the plaintiff that she could take a copy of the Contract to a lawyer so she could seek advice and his evidence that he “[did] not know” whether she took a copy of the Contract to a lawyer. He had never given her a copy of the Contract. The clear inference to be drawn from what he said in [29] and [45] – [47] of his affidavit is that he first gave her a copy of the Contract when he met her at the Local Court on 3 May, shortly before she signed it.
[126]Although I have some difficulty with accepting the accuracy and reliability of the plaintiff’s evidence about some of this, I do not consider that she was being dishonest or deliberately attempting to mislead the Court. On the other hand I have great difficulty accepting as true anything that the defendant has said. I find that he has been quite willing to invent answers to suit his case and give false evidence, and has in fact done so on numerous occasions.
[127]I find that:
(a)The plaintiff did not see a draft or copy of the Contract until 3 May 2017 as they were entering the Local Court building.[156]
(b)Shortly prior to that, the plaintiff asked the defendant whether she should speak to a lawyer or family member and the defendant said words to the effect “you don't need a lawyer … lawyers don’t know nothing” and “you don’t need a family member”.[157]
(c)After entering the Local Court building the defendant was carrying one or more copies of the Contract and the Transfer in a magazine out of the plaintiff’s view.[158] The defendant took the documents out of the magazine and he and the plaintiff both signed the Contract and Transfer in the presence of Tianna Williams, a justice of the peace employed at the Local Court.[159] The defendant then returned the documents to the magazine.[160]
(d)The defendant did not give the plaintiff a copy of the Contract or Transfer she had signed.[161]
(e)The plaintiff never had any or any proper opportunity to read the Contract. It was never explained to her, by the defendant or anyone else.
(f)The plaintiff did not understand the Contract or its legal effect. Rather she assumed that it reflected her understanding of the outcome of her early discussions with defendant, as summarised in [104] to [106] and [108] above.
(g)The plaintiff trusted the defendant.
(h)The defendant knew that the plaintiff trusted him and trusted that he would treat her fairly.[162]
Events after 3 May 2017
Stamp duty
[128]The defendant retained a signed Contract and Transfer and lodged them with the Territory Revenue Office on 5 May 2017.[163] He signed the Stamp Duty Lodgement Form which included his declaration that the property was not being sold for less than its full value.
[129]Sometime before early 11 May the defendant must have had a telephone discussion with someone at the Territory Revenue Office, probably Ms Walker, concerning the sale price shown on the documents.
[130]At 10.05am on 11 May the defendant sent an email to Ms Walker of the Territory Revenue Office stating: “I have found the flyer that I saw at Karama shops that I saw in March.”[164] I infer that it was then that he sent the photograph of the Notice to Ms Walker. Ms Walker then sent the defendant by email a detailed reply stating amongst other things that:
The hand written flyer you have provided is not acceptable as evidence of value for the purposes of stamp duty. Accordingly, in order for this office to determine the dutiable value as at the date of conveyance, you are required to provide evidence of value of the property.”
[131]Ms Walker’s letter went on to inform the defendant that such evidence could be in the form of a valuation or one or more appraisals, and that if the required valuations were not provided by 11 June, or if the Commissioner is not satisfied with the valuations provided, the Commissioner may obtain a valuation at the likely expense of the defendant.[165] The defendant did not provide any such further evidence. Consequently Ms Walker arranged for a valuation to be carried out by Colliers International.[166] Colliers carried out a “kerbside valuation” and assessed the value of the Land to be $1,700,000 GST exclusive. Ms Walker sent that valuation to the defendant on 7 September and advised him that stamp duty would be assessed on the basis of that valuation unless he provided written submissions or further evidence of value within 14 days.[167] The defendant did not respond to that letter. Accordingly, on 26 September the Territory Revenue Office issued a Notice of Assessment for $87,094.55. Ms Walker wrote to the defendant attaching the Notice of Assessment and explaining that the total amount of stamp duty so assessed comprised $84,155 based upon the Colliers’ valuation of $1.7 million, plus interest in the amount of $1839.55 and valuation costs of $1100.[168]
[132]On 7 November 2017, Nomiki Mpilias, Revenue Officer at the Territory Revenue Office, sent the defendant an “overdue payment reminder”. The defendant must have contacted Ms Mpilias shortly after receiving the reminder and Ms Mpilias sent him a copy of the Commissioner’s Guidelines concerning instalment arrangements. Although the Guidelines require an applicant to provide information about his savings, debts, income and expenses and businesses, Ms Mpilias told the defendant that the Territory Revenue Office would probably not require this if the arrangement was to be of less than six months duration. On 20 November Ms Mpilias sent the defendant a follow up email asking him whether he would be applying for an instalment plan and, if he was, to provide relevant information, by 24 November. The defendant must have telephoned Ms Mpilias shortly after receiving that email. On 24 November Ms Mpilias sent to the defendant the Commissioner’s Guidelines concerning Objections and appeals.[169]
[276]He took advantage of her vulnerability, and of her ignorance about the true meaning and effect of the Contract, by arranging for her to sign the Contract and Transfer when and how he did, and then by proceeding to have the Transfer registered over a year later.[393]
Factual findings relevant to fraud and unconscionable conduct
[277]As I said earlier, I am conscious of the need to apply the standard referred to in Briginshaw when making serious findings of this kind. I have done that here.
[278]I find that the plaintiff has made out each of the allegations in paragraphs 20 to 24 of the Amended Statement of Claim. In particular I find that:
(a)the plaintiff was vulnerable to the defendant’s influence and trusted him to treat her fairly and honestly when he prepared the Contract and Transfer and had her sign them as she did on 3 May 2017;
(b)the defendant was aware of that vulnerability and trust when he prepared the Contract and Transfer and proceeded to have her execute them.
[279]I conclude that the defendant’s conduct was dishonest and fraudulent in several respects including:
(a)the defendant knowingly took advantage of the plaintiff’s vulnerability and trust to induce her to sign the Contract and Transfer on 3 May 2017;
(b)the defendant did not give the plaintiff any opportunity to read and understand the Contract and Transfer and strongly discouraged her from speaking to a lawyer and her family before she signed them, knowing that:
(i) she did not understand or believe that the Contract and Transfer had the legal effect of permanently transferring the title to the Land to the defendant; and
(ii) if she did read and understand the Contract and Transfer, or if she spoke to a lawyer or a family member before signing those documents, she would not have signed them;
(c)the defendant prepared the Contract and presented it to the plaintiff for her to sign on 3 May 2017 knowing that it did not reflect what the plaintiff intended, namely some kind of loan agreement pursuant to which he could hold the title to the Land as security pending repayment of the loan;[394]
(d)the defendant entered into the Contract without the capacity or the intention to pay the purchase price of $300,000 within the time that he had stipulated in the Contract, or at all, having induced the plaintiff to believe that he would be advancing $300,000 in cash to her immediately after she executed a contract which she believed to be something in the nature of a loan agreement;
(e)the defendant proceeded to have the Transfer registered with full knowledge that the value of the Land was approximately five times the sale price stipulated in the Contract.
Legal principles
[280]Section 188(1) of the Land Title Act 2000 (NT) (the LTA) confers indefeasible title on the registered proprietor of an interest in a lot. There are exceptions set out in ss 188(3)(b) and 189. Section 188(3)(b) provides that the indefeasibility provision in s 181(1) does not apply if there has been fraud by the registered proprietor.
Fraud – s 188(3)(b)
“Fraud” for the purposes of s 188(3)(b) is not confined to fraud “in the process” of registration, but encapsulates “every kind of fraud” which causes the registration of the perpetrator in the place of the victim.[395] However, it must be:
actual fraud, i.e., dishonesty of some sort, not what is called constructive or equitable fraud ... A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon.[396]
[282]The innocent party must have been deprived of his or her title by “actual dishonesty”.[397] As the High Court has said, actual fraud involves moral turpitude or dishonesty.[398]
[283]In Royal Brunei Airlines v Tan[399] the Privy Council described dishonesty, in the context of a civil claim for the taking of property belonging to another, in the following terms:
… acting dishonestly, or with a lack of probity, which is synonymous, means simply not acting as an honest person would in the circumstances. This is an objective standard. At first sight this may seem surprising. Honesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. If a person knowingly appropriates another's property, he will not escape a finding of dishonesty simply because he sees nothing wrong in such behaviour.
In most situations there is little difficulty in identifying how an honest person would behave. Honest people do not intentionally deceive others to their detriment. Honest people do not knowingly take others' property…”.[400]
[284]In Walsh v Bennetts[401] Martin J said these observations are “a helpful starting point to understand and explain the concept of dishonesty.”[402]
[285]It follows from my conclusions, particularly those at [277] above, that the defendant acted dishonestly by preparing the Contract and Transfer, and inducing the plaintiff to sign them as he did, and proceeding to have the Transfer registered with the result that he acquired title to the Land. He did not believe that the Contract and Transfer generally reflected the intentions or any agreement on the part of the plaintiff. He intentionally deceived the plaintiff to her detriment and knowingly proceeded to deprive her of her property. His conduct amounted to fraud of the kind covered by s 188(3)(b) of the LTA.
Unconscionable conduct.
[286]As a result of my conclusions concerning the applicability of s 188(3)(b) LTA it is not necessary for me to deal with the alternative arguments put by counsel for the plaintiff.
[287]It follows from what I have said that the plaintiff was under a “special disability or disadvantage” in her dealings with the defendant with the consequence that “there was an absence of any reasonable degree of equality” between the plaintiff and the defendant, and that her disability or disadvantage was sufficiently evident to the defendant to make it prima facie unfair or unconscientious that he procure her to sign the Contract and Transfer in the circumstances in which he did. The defendant did not discharge the onus that would be cast on him to establish that the transaction was fair, just and reasonable. [403]
[288]In those circumstances equity would consider it unconscionable for the defendant to deny the interest claimed by the plaintiff, and the Court could therefore order a constructive trust in order to remedy the unconscionable conduct.[404] In my opinion the plaintiff’s entitlement to a constructive trust arising from the defendant’s unconscionable conduct would constitute an “equity arising from the act of the registered proprietor” as contemplated by s 189(1)(a) of the LTA. The ‘personal equities’ exception in s 189(1)(a) of the LTA has been held to encompass claims to enforce a constructive trust,[405] and claims of unconscionable conduct more generally.[406] Orders for transfer may be made if the defendant refuses to transfer the Land back to the plaintiff.[407]
Disposition
[289]Section 191 of the LTA enables the Supreme Court to “make the order it considers just” if there has been fraud by the registered proprietor. The plaintiff has asked that the Court order the Registrar-General (the second defendant in this proceeding) to correct the title of the Land by reinstating the plaintiff as the sole registered proprietor of the Land. Such an order is expressly contemplated by s 191(2)(a) and seems to me to be appropriate. However, I will not make such an order until the parties have had the opportunity to consider these reasons and whether that order is appropriate.
[290]I would also order that the first defendant pay the costs of the plaintiff and the second defendant, but again will defer making such orders in case some other order is sought and appears appropriate.
-----------------------------
[1] Exhibit D9. A copy of the Contract was marked Annexure PQN-5 to the Affidavit of Patsy Anne Que Noy made 13 February 2020 (Exhibit P10).
[2] A copy of the Transfer was marked as Exhibit P3. The plaintiff obtained that document from the Land Titles Office on 19 November 2018.
[3] See Exhibit P23.
[4] Exhibit P23 from p 8.
[5] Exhibit P18.
[6] Exhibit P23, p 95.
[7] Exhibit P10, p 35.
[8] Exhibit P3.
[9] Exhibit D9.
[10] Clause 2.1 and Item F.
[11] Clause 3.2.
[12] Clause 3.3.
[13] Clause 3.1 and Item H.
[14] Clause 3.6.
[15] Clause 3.1(a).
[16] Clause 3.5.
[17] Exhibit P23.
[18] Amended Defence of the First Defendant dated 6 May 2020 (Amended Defence) [19A].
[19] Exhibit P10 [4]; Transcript (TS) 63.1-63.8.
[20] TS 50.9.
[21] Exhibit P10 [12].
[22] TS 61.4.
[23] Exhibits P10 [6]; P15 [1]; P16 [1]; P17 [1].
[24] Exhibit P10 [10] – [11]
[25] Exhibit P10 [12] – [17]
[26] Exhibit D11 [3].
[27] Exhibit D11. See too TS 107.
[28] Exhibit D11 [4].
[29] Exhibit D11 [5], [7]. See too TS 399-400 and Exhibit P10 [18] – [20].
[30] Exhibit D11 [8].
[31] Exhibit D11 [9].
[32] Exhibit D11 [11].
[33] TS 79-81.
[34] Exhibit D11 [12].
[35] Exhibit D11 [10]; TS 79.
[36] Exhibit D11 [10].
[37] Exhibit D11 [13] – [16] and [20].
[38] TS 160-1 and 425-6.
[39] Exhibit P10 [22] – [23]
[40] TS 55, 76, 80 and 107.
[41] Exhibit P10 [24] – [25]
[42] TS 16-7, 55, 80 and 107.
[43] TS 107.5.
[44] TS 54.9-55.1.
[45] Exhibit D11.
[46] Exhibit D11 [23] and Annexure MNQ3. Note that Annexure MNQ3 is a photograph of the Notice which the defendant said in his oral evidence he took on 11 May 2017.
[47] TS 81.
[48] TS 157.
[49] TS 405.
[50] TS 407.
[51] TS 406..
[52] Exhibit D11 Annexure MNQ5.
[53] Exhibit D11. See too TS 405.
[54]Exhibit D18 [3].
[55] Exhibit D11 [24].
[56] Exhibit P10 [55].
[57] Exhibit P10 [55] – [56].
[58] TS 365.
[59] TS 366.
[60] TS 365-6.
[61] Exhibit D11.
[62] Exhibit D18.
[63] TS 366, 485.
[64] TS 405.
[65] TS 486.
[66] TS 410-411.
[67] Plaintiff’s Written Submissions at [76] referring to Exhibit P23 p 2 (an email sent by the defendant on 11 May, referred to in [130] below); TS 411-2; 482.
[68] Plaintiff’s Written Submissions at [77] referring to Exhibit P10 [55]-[56]; TS 81-85; 108; and to her children’s evidence at Exhibits P15 [20]; P16 [10]; and P17 [17].
[69] Plaintiff’s Written Submissions at [77] referring to TS 412.
[70] Plaintiff’s Written Submissions at [77].
[71] Plaintiff’s Written Submissions at [77] referring to Exhibit P24 at Annexure KF-1; Exhibit D11 [23]; TS 365-6.
[72] Plaintiff’s Written Submissions at [77] referring to Exhibit P24 at Annexure KF – 3; TS 485-8.
[73] Defendant’s Written Submissions at [200] – [205].
[74] See [128] below.
[75] Exhibit P10 [15] – [17].
[76] Exhibits P7; Exhibit P18 13; TS 76, 328, 497-8.
[77] TS 81 [3].
[78] Exhibit D11. See too TS 403-405.
[79]Exhibit P10.
[80] See [30] – [35] above.
[81] TS 436.
[82] TS 429.
[83] TS 519-520.
[84] TS 430.
[85] TS 430.
[86] TS 476.
[87] Exhibit D11.
[88] Exhibit P2A.
[89] Exhibit P2B.
[90] Exhibit D11 [27]; TS 19-21; 87-88; 93; 118; 122.
[91]Exhibit D11.
[92] See too TS 416.
[93] Exhibit P2A, Special Condition 6.
[94] Exhibit P2B, clause 5.
[95] Ibid at Clause 6.
[96] TS 20-21.
[97] TS 21; 25; 87; 91; 92; 94; 114; 116.
[98] TS 80-1.
[99] TS 114.
[100] TS 116.
[101] TS 122.
[102] TS 155.
[103] TS 156.
[104] TS 159-160.
[105] TS 199.
[106]TS 88.
[107] Defendant’s Written Submissions at [294].
[108] TS 91-92; 118-119.
[109] Defendant’s Written Submissions at [295].
[110] TS 91-2.
[111] TS 88.
[112] See for example TS 90-93 and TS 116-124.
[113]For example, at one point she referred to both of the agreements that she gave the defendant as agreements for the sales of two different blocks of land although one in fact was a loan agreement.
[114] For example, at TS 16-17, she referred to something that happened “one year” before May 2017 as having happened “back in 2014”.
[115] TS 20.
[116] TS 114 quoted in [81] above.
[117] Plaintiff’s Written Submissions at [41].
[118] TS 437.
[119] TS 437.
[120] TS 435.
[121] TS 436.
[122] TS 436.
[123] TS 442-4.
[124] TS 438-9.
[125] TS 441.
[126] TS 443 and 444.
[127] Exhibit P2A Item J.
[128] Namely the Section number of the Land (5200) or the Volume and Folio reference for the Certificate of Title.
[129] TS 417.
[130] TS 419.
[131] TS 419-420.
[132] TS 418.
[133] Defendant’s Written Submissions at [301].
[134] Defendant’s Written Submissions at [302].
[135] Plaintiff’s Written Submissions at [42].
[136] TS 445.
[137] Exhibit D11 [28].
[138] TS 28; 422; 437.
[139] TS 445.
[140] Statement of Claim filed 30 July 2019 (SOC).
[141] SOC 20.6.1 and 20.6.2 cf [31] of Exhibit P10.
[142] SOC 20.6.3 to 20.6.8 cf [32] – [33] of Exhibit P10.
[143] SOC 16, 17, 20, 26 and 28 only referred to the Transfer, not the Contract. cf [36] – [38] of Exhibit P10.
[144] Amended Statement of Claim filed 7 May 2020 (ASOC).
[145] Exhibit P10.
[146] TS 27-28.
[147] TS 167.
[148] Defendant’s Written Submissions at [172].
[149] Exhibit D11 [31].
[150] TS 158.
[151] TS 520.
[152] TS 421. I note that in [46] of his affidavit the defendant said that he could not remember whether it was the plaintiff or the witness who said “words like it is a contract for sale of land and transfer.”
[153] TS 422.
[154] TS 423.
[155] TS 423.
[156] TS 164-165; 166; 281; 435.
[157] ASOC [20.6.3] – [20.6.5]; TS 28; 140; 141; 142-143; 162-163; 190; 372-373.
[158] TS 25-26; 133; 167; 190.
[159] TS 26-27; 133-135; 139; 167; 171; 281-282.
[160] TS 25-26.
[161] TS 167; 170; 171; 189.
[162] TS 445.
[163] Exhibit P23, p 1.
[164] Exhibit P23, p 2.
[165] Exhibit P23, p 3.
[166] Exhibit P23, pp 4-39.
[167] Exhibit P23, p 7.
[168] Exhibit P23, pp 40-43.
[169] Exhibit P23, pp 44-54.
[170] Exhibit P23, p 55.
[171] Exhibit P23, pp 56 et ff.
[172] Exhibit P18.
[173] Exhibit P23, pp 88-95.
[174] Exhibit P10, pp 29 and 35.
[175] Exhibit D11, p 43.
[176] Exhibit D11, p 43(b).
[177] Exhibit D11, p 39.
[178] TS 44; Exhibit P7.
[179] TS 44.
[180] TS 46.
[181] Exhibit P10, p 26.
[182] Exhibit P10, pp 24-5.
[183] Exhibit D12. TS 368.
[184] Exhibit P10, p 29 and Exhibit P3.
[185] TS 31-34; TS 180-181.
[186] TS 32; Exhibit P3.
[187] TS 35; Exhibit P4
[188] TS 36-37; 175; Exhibit P5.
[189] Amended Defence at [20.10].
[190] Exhibit D3. The Receipts were disclosed on the defendant's list of documents filed 3 January 2020.
[191] Exhibit P10 “PQN-10”.
[192] Exhibit P10 [48].
[193] Exhibit D11.
[194] Exhibit P19; TS 497.
[195] Exhibit P18; Exhibit P19; TS 496.
[196] Exhibit P23; TS 495-497.
[197] Exhibit P15 [4]; TS 298, 302.
[198] Exhibit D11 [17].
[199] TS 361-362.
[200] See Exhibit P11 [4] – [7] and TS 299; 324 and 308 respectively.
[201] See too Que Noy v Qadir & Anor [2020] NTSC 73 (Que Noy (No 1) at [4] – [5] and [30].
[202] See Que Noy (No 1).
[203] Exhibit D11 [2]; TS 375.
[204] Exhibit D11 [42].
[205] Exhibit D11 [41] and TS 463.
[206] Exhibit D11 [43] and TS 464.
[207] Exhibit P19; Exhibit P19A.
[208] Exhibit D11 [42].
[209] MFI P20A.
[210] Exhibit P23.
[211] Que Noy (No 1) at [66].
[212] Exhibit P19A, p 4.
[213] Exhibit P19A, p 6.
[214] Exhibit P19, p 198.
[215] TS 461.
[216] Defendant’s Written Submissions at [220].
[217] Exhibit P19A, p 4.
[218] Exhibit P19, p 207.
[219] The discovery of “his tax returns (if any)” was specifically ordered in paragraph 2 of the Court’s order of 17 March 2020.
[220] Registering for GST, Australian Government, Australian Tax Office, found at
[221] Income Tax for Business, Australian Government, found at
[222] Individual Income Tax Rates, Australian Government, Australian Tax Office, found at
[223] Section 126(1).
[224] TS 559.
[225] TS 573.
[226] TS 580.
[227] TS 580.
[228] Exhibit D11 Annexure MNQ5.
[229] Defendant’s Written Submissions at [214] – [216].
[230] Defendant’s Written Submissions at [217] – [219].
[231] TS 43-4.
[232] TS 175.
[233] See too [39] and [40] of her affidavit Exhibit P10.
[234] TS 176-177; TS 179.
[235] Exhibit D10.
[236] TS 309–310.
[237] TS 310.
[238] TS 310-1.
[239] Exhibit D14 [3] – [8].
[240] Exhibit D15 [3] – [7].
[241] Exhibit D18 [8] – [9].
[242] See [66] above.
[243] Exhibit D5 – letter dated 5 March 2020.
[244] Exhibit D8.
[245] Exhibit D8, p 9.
[246] Exhibit D8, p 10.
[247] Exhibit D8, p 12.
[248] Exhibit D8, p 13.
[249] Exhibit D8, p 13. Proposition A concerned whether there was any evidence to support the proposition that the signatures and text on the receipts were written by a person other than the plaintiff.
[250] Plaintiff’s Written Submissions Attachment 7 from [121].
[251] Plaintiff’s Written Submissions Attachment 7 from [123].
[252] (2001) 52 NSWLR 705; [2001] NSWCA 305.
[253] (2011) 243 CLR 588 at [42]; [2011] HCA 21.
[254]Exhibit P13.
[255] Exhibit D8, p 4.
[256] Exhibit P13. A flowchart summarising the modules and how they should be applied appears at pp 13-16.
[257] TS 231-2.
[258] TS 233.
[259] Plaintiff’s Written Submissions Attachment 7 at [127].
[260] TS 234-5.
[261] TS 235.
[262] TS 235.
[263] TS 241.
[264] TS 241.
[265] TS 242.
[266] TS 242.
[267] TS 237.
[268] TS 238.
[269] TS 243.
[270] TS 244.
[271] TS 244.
[272] TS 247.
[273] Defendant’s Written Submissions at [254] – [255].
[274] Defendant’s Written Submissions at [256] – [266].
[275] TS 773.
[276] TS 773.
[277] TS 257.
[278] Plaintiff’s Written Submissions Attachment 7 at [140] referring to Exhibit D8, p 13.
[279]TS 252.
[280]TS 264.
[281] TS 265.
[282] TS 266.
[283] TS 266.
[284] TS 267.
[285] Defendant’s Written Submissions at [272(d)].
[286] TS 237.
[287] TS 245.
[288] TS 267.
[289] TS 236.
[290] TS 268.
[291] TS 269.
[292] TS 270.
[293] TS 234.
[294] TS 255.
[295] TS 262-3.
[296] Exhibit D8.
[297] TS 766.
[298] TS 38; 116; 120; 171-172; 176; 179.
[299] TS 300 and 309.
[300] Exhibit P10 p 27.
[301] Exhibit P10 [10] – [11].
[302] See [51], [53] and [140] above.
[303] TS 76-7.
[304] Exhibit P15 [4] and TS 296.
[305] TS 308.
[306] Exhibit P17 [3] and TS 324 and 325.
[307] TS 81.
[308] Exhibit P15 [4] and TS 299.
[309] Exhibit P16 [8] and TS 306.
[310] Exhibit P17 [4] and TS 324-326 and 331.
[311] Exhibit P17 [4].
[312] TS 53.
[313] Defendant’s Written Submissions at [40].
[314] See [69] above.
[315] See [113] to [120] and [126] above.
[316] TS 130-133; 138-139; 161-163; 197-198.
[317] Defendant’s Written Submissions at [123] – [131].
[318] Defendant’s Written Submissions at [120] – [125] and [133].
[319]Defendant’s Written Submissions at [43].
[320] See for example Diana Eades, ‘Aboriginalised English: implications in legal contexts in the Northern Territory’ (Conference Paper, Northern Territory Supreme Court Language and Law II Conference, August 2015), 2; The Hon Justice Dean Mildren, ‘Redressing the Imbalance Against Aboriginals in the Criminal Justice System’, (1997) 21 Criminal Law Journal, 8; Australian Law Reform Commission, ‘Recognition of Aboriginal Customary Laws (ALRC Report 31)’ (1986), 546 available at Wanambi v Whittington [2019] NTSC 49 at [9]; Ward v State of Western Australia (1998) 159 ALR 483 at 497; De Rose v State of South Australia [2002] FCA 1342 at [249].
[321] Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw).
[322] TS 374-5.
[323] See [36] to [50] above, especially [46] and [50].
[324] See [34] – [35].
[325] See [57] to [64].
[326] See [65] to [67] above.
[327] See [55] and [68] above. See too [98] and [109].
[328] See [61] to [64] above. See too [98] and [109].
[329] See [109] above.
[330] See [99] to [103] above.
[331] See [120] to [125] and [127](b) above.
[332] See [125] above.
[333] See [63] above.
[334] See [9] to [11] above.
[335] See [150] above.
[336] See [153] to [164] above.
[337] See [164] above.
[338] See [165] to [172] above.
[339] See [152] above.
[340] See [175] above.
[341] See [224] above.
[342] TS 392. Cf Exhibit D11 [3] and [12].
[343] TS 394-5.
[344] TS 399.
[345] TS 380-3.
[346] TS 373.
[347] TS 428.
[348] TS 403 and 405. See [35] above.
[349] See [45] above.
[350] TS 416. See [102] above.
[351] TS 431.
[352] TS 422-3.
[353] TS 422-3.
[354] Comparing Exhibit D11 [22] – [26] with Defence [20], [20.1] and [20.4.1].
[355] Comparing Exhibit D11 [24] with Defence [19A], [20.4.2] and [20.4.3].
[356] Comparing [135] – [136] of the Defendant’s Written Submissions with Defence at [20.6.3].
[357] Plaintiff’s Written Submissions at [38].
[358] TS 548-550.
[359] TS 550.
[360] TS 547-8.
[361] TS 552–553.
[362] TS 565.
[363] TS 561-2.
[364] TS 557-8.
[365] TS 559.
[366] TS 570.
[367] TS 575.
[368] TS 571-2. Cf Abdul Qadir who said Nazam moved out in 2017 – TS 548-9.
[369] TS 580.
[370] TS 570-1.
[371]TS 572.
[372] TS 572-5.
[373] TS 577.
[374] T578.
[375] TS 578.
[376] TS 578-9.
[377] TS 580.
[378] TS 581.
[379]TS 581.
[380] TS 582.
[381] TS 583.
[382] On 5 May 2020 I marked it as MFI D1.
[383] Plaintiff’s Written Submissions at [23].
[384] TS 160-161 and 425-426.
[385] See [101] – [102] above.
[386] TS 445.
[387] TS 399-400.
[388] TS 400.
[389]Exhibit P18.
[390] See [101] – [102] above.
[391] Exhibit P7, pp 1 and 4.
[392] Exhibit P10 [5] – [6]; TS 55; 294-5; 321-2.
[393] See too [227] – [233] above.
[394] See [95] above.
[395] Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425, [59] per French CJ, Hayne, Bell and Gageler JJ, a case concerning the indefeasibility provisions and their fraud exception in Real Property Act 1900 (NSW).
[396] Assets Co Ltd v Mere Roihi [1905] AC 176, 210; applied in Williams v Turner [2009] 1 Qd R 296, [30].
[397] Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425, [100] per Keane J (dissenting) referring to Assets Co Ltd v Mere Roihi (supra).
[398] Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89, 169 (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
[399] Royal Brunei Airlines v Tan [1995] 2 AC 378, concerning accessorial liability for breach of trust. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [164] – [165] the High Court of Australia expressly left open the question of whether the decision in Royal Brunei Airlines should be accepted as modifying the law of Australia.
[400] Ibid at 389.
[401] Walsh v Bennetts [2014] WASC 453.
[402] Ibid at [38].
[403] Cf Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 474 citing, inter alia, Blomley v Ryan (1956) 99 CLR 362, 428-429.
[404] See Stephenson Nominees Pty Ltd v Official Receiver (1987) 16 FCR 536 per Gummow J at 552, and Giumelli v Giumelli (1999) 196 CLR 101 at 112.
[405] Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1982] 3 VR 133, 156-157. Cited in Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89, 170.
[406] Spina v Conran Associates Pty Ltd [2008] NSWSC 326, [98]; Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10, [380].
[407] See Trustee Act 1893 (NT), s 28(VI); Williams v Turner [2009] 1 Qd R 296, [33].
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