Wesfarmers General Insurance Ltd v Doan
[2015] SADC 102
•29 June 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WESFARMERS GENERAL INSURANCE LTD v DOAN
[2015] SADC 102
Judgment of His Honour Chief Judge Muecke
29 June 2015
GUARANTEE AND INDEMNITY
Plaintiff, an insurer, carried out business as a Home Warranty Insurer pursuant to the provisions of the Building Work Contractors Act 1995 (SA). A Building Owner's Home Warranty Insurance Policy written by the insurer with the Builder and his wife signing a Deed of Guarantee and Indemnity. Insurer paid out a claim under the Policy. Claim by the insurer against the wife under the Deed of Guarantee and Indemnity. Defendant wife raised defences of Garcia unconscionability and non est factum.
Held: Plaintiff's claim proved. Defences not proved. Judgment for the Plaintiff.
Petelin v Cullen (1975) 132 CLR 355; Garcia v National Australia Bank Ltd (1998) 194 CLR 395, considered.
WESFARMERS GENERAL INSURANCE LTD v DOAN
[2015] SADC 102Introduction and background
Thi Tuyet Nga Doan was born in Vietnam on 8 December 1963. She attended school in Vietnam. She left school around year 7 or year 8 in that country. She said her education was disrupted by the war in Vietnam.
I have just referred to her as Thi Tuyet Nga Doan. Her name, and in particular the order of her names, became important in the trial. She said that her first ‘Christian name’ was Nga and she was sometimes called Nga Thi Tuyet Doan. She is also referred to as being otherwise known as ‘Kym Doan’ or ‘Kim Doan’. There was also evidence at the trial that Vietnamese people sometimes write their various names in different orders, particularly using their ‘surname’ or ‘family’ name first, followed by their ‘Christian’ names. The evidence to which I have just referred became important in this case, particularly in the context of initials.
In the case of Thi Tuyet Nga Doan, it seems certain that ‘Doan’ is her surname or her family name. It also seems certain that ‘Thi Tuyet Nga’ are her Christian names or her given names. It seems probable that she, at least in Australia, more usually used the name ‘Nga’ as her first Christian or given name.
In this judgment I refer to her as ‘Ms Doan’.
Ms Doan came to Australia in early 1984. The visa for her to travel to Australia was issued in Bangkok, Thailand on 27 January 1984. She said that she spent two years in a refugee camp in Thailand before arriving in Australia. She probably entered this country on 9 February 1984, or thereabouts. She was authorised to stay in this country indefinitely. She was 21 years old when she arrived in Australia.
Ms Doan lived in Sydney for four years. She married in Sydney in 1985 and had two children there. When in Sydney she worked as a beautician. She started a beautician course in Sydney and started working for herself there in 1995. She said that she worked from home because she had two children. Her son had been born in 1990 and her daughter had just been born in 1995. She did not give clients receipts or invoices for work she did for them from home. They just paid cash.
Ms Doan’s marriage broke down in Sydney. She and her husband separated in 1996 and they subsequently came to an agreement about caring for their children and about their property assets, which included a house in Fairfield. That house was sold by auction in December 1997 and Ms Doan received her share of the proceeds in early January 1998.
Ms Doan moved from Sydney to Adelaide at the beginning of 1998. Her parents had come to Australia from Vietnam and had settled in Adelaide. She moved from Sydney to Adelaide because she wished to be close to her family as her children were still young. She lived with her parents for a time in Adelaide. Her parents wished to renovate their kitchen. Ms Doan had met someone in a part‑time job she had at Arndale Kilkenny who recommended a man called Zivko Pantelin as someone who could do the renovation work at her parent’s house. As a result of that she, Ms Doan, met Mr Pantelin. She said that they commenced a personal relationship with each other.
Ms Doan said that in late 1998 she bought a house at Woodville Gardens. She said that she did not buy it in conjunction with anyone, it was just she who bought it. She said that Mr Pantelin helped her at the auction. She said at the trial that she still owns that house and she still lives there.
Ms Doan and Mr Pantelin married on 1 May 2000. On 3 November 2000 a daughter was born to both of them.
Ms Doan said that when she first came to Adelaide she leased some premises at Welland in which she operated a hairdressing salon. She operated there from 1999 up to 2004. In September 2004 her lease at Welland expired and she started to relocate to premises at Flinders Park. On 18 October 2004 she signed a lease for premises at Flinders Park where she worked for herself, and by herself, as a beautician. She said she had always done that.
As far as I am aware that was still the case when the trial was heard.
When Ms Doan met Mr Pantelin he was a builder. He was a builder until he died on 17 March 2006. He became formally bankrupt after his death.
On 1 May 2004 Mr Pantelin, as builder, and Mr Slavoljub Ljubincic, as owner, entered into a building contract. The residential building works to be conducted by Mr Pantelin for Mr Ljubincic were to commence on 1 May 2004 and were to finish on 15 December 2004.
On or around 9 December 2004 the Master Builders Association of South Australia, on behalf of Mr Pantelin, submitted an Application for Renewal of Eligibility for Home Warranty Insurance to an agent for Australian International Insurance Ltd which carried out business as a Home Warranty Insurer pursuant to the provisions of the Building Work Contractors Act 1995 (SA).
On or around 17 January 2005 the Master Builders Association of South Australia was advised that the Application had been accepted pending receipt of a Deed of Guarantee signed by the builder Mr Pantelin and by Ms Doan. Mr Pantelin was advised in writing on or about 18 January 2005 that the Application had been accepted.
On or around 17 March 2005 solicitors for Mr Ljubincic wrote to the South Australian Office of the Consumer and Business Affairs advising that Mr Pantelin had not completed the building works at Mr Ljubincic’s property. There was a conciliation conference between Mr Pantelin and Mr Ljubincic on or around 17 March 2005. That was followed by correspondence between various parties.
On or around 5 April 2005 Mr Pantelin and Ms Doan signed a Deed of Guarantee and Indemnity between Australian International Insurance Ltd as ‘the Insurer’, and each of them as ‘the Guarantors’. That Deed is dated 5 April 2005 and is Exhibit P4 in the trial. I shall henceforth refer to this as ‘the Deed’. By the Deed each of Mr Pantelin and Ms Doan became liable to pay the Insurer all amounts which the builder Mr Pantelin may owe the Insurer, failing which the Insurer could take legal action against either of them personally to recover the guaranteed money.
It is not in dispute that both Mr Pantelin and Ms Doan signed at least one page each of the Deed.
On or around 7 April 2005 Australian International Insurance Ltd (AIIL) issued Building Indemnity Insurance Cover to Zivko Pantelin in respect of residential building works at Mr Ljubincic’s property.
On 17 March 2006 Mr Pantelin died.
On or around 29 March 2006 Mr Ljubincic made a claim on the Home Warranty Insurance policy held by Lumley General Insurance Ltd, later to be known as the plaintiff. There then followed correspondence, inspections, and cost estimates for remedial building works at Mr Ljubincic’s property.
On or around 10 June 2006 Mr Ljubincic entered into terms of settlement with AIIL confirming that AIIL had approved the maximum payment allowed under the policy of $80,000 less the excess of $400, plus assessment costs of $2,574.68.
AIIL paid the claim of $79,600 and the associated costs.
It is not in dispute that in October 2007 the plaintiff, then known as Lumley General Insurance Ltd, had transferred to it all the rights and benefits in respect of the subject Home Warranty Insurance.
On or around 12 August 2010 Lumley demanded in writing that Ms Doan pay to it the sum of $83,563.14. That sum was said to comprise inspection costs of $3,963.40 (exclusive of GST) and the policy liability of $79,600 (paid direct to owner). That claim was said to be made pursuant to the Deed executed by Mr Pantelin and Ms Doan on 5 April 2005, a copy of which was said to be attached to the letter of demand dated 12 August 2010.
On or about 18 April 2011 Lumley’s solicitors sent a demand in writing to Ms Doan for the sum of $83,563.14. Ms Doan was advised that if she failed to reply to the letter proceedings would be commenced against her.
These proceedings were commenced on 29 August 2012.
The issues in the case
There was not much of what I have set out above that was in dispute at trial. There was a relatively minor quibble by Ms Doan’s counsel regarding formal proof of assessment costs and there is a discrepancy of $1,388.46 between the plaintiff’s claim of $83,563.14 and the sum of $82,174.68 being the sum of two payments, one a payment to Mr Ljubincic of $79,600 and the other the asserted assessment costs of $2,574.68. Whilst there was a minor quibble on behalf of Ms Doan during the plaintiff’s case on the first of these matters, I heard nothing more about either of them before I reserved judgment.
I shall deal with these matters if I need to.
Ms Doan took no other issue in respect of Mr Ljubincic’s claim and the settlement of it by AIIL.
Mr J White, of counsel for the plaintiff, presented his client’s case by documents. He adduced no oral evidence. A significant part of his case was presented at trial in three affidavits. Neither of the deponents to these three affidavits attended before me for examination or for cross-examination.
Apart from these three affidavits (Exhibits P1, P2 and P3) Mr White tendered in the plaintiff’s case the original Deed dated 5 April 2005 (Exhibit P4), and a so-called ‘Settlement Statement’ dated 10 June 2006 by which AIIL settled Mr Ljubincic’s insurance claim on it in the sum of $79,600, which was paid on 15 June 2006 (Exhibit P5).
The plaintiff’s case
Insofar as the plaintiff’s case is concerned I make the following findings:
(a)The plaintiff was, for the purposes of this action, the Home Warranty Insurer pursuant to the provisions of the Building Work Contractors Act 1995 that was ‘on risk’ in respect of works performed by Mr Pantelin, under a contract with Mr Ljubincic, for Mr Ljubincic as the owner of property upon which construction works were to be performed by Mr Pantelin.
(b)Mr Ljubincic lawfully lodged a claim with the plaintiff under a building owner’s Home Warranty Insurance policy in respect of which the plaintiff was ‘at risk’.
(c)The plaintiff accepted the claim, it investigated the claim, and it met the claim incurring costs and expenses. Pursuant to the claim and the insurance policy, Mr Ljubincic was paid the sum of $79,600 and other costs and expenses were incurred.
(d)There was as at 5 April 2005 a legal and binding Deed of Guarantee and Indemnity executed by Mr Pantelin and Ms Doan which, by its express terms, Ms Doan guaranteed payments made under the subject Building Owner’s Home Warranty Insurance policy for the contract entered into by Mr Pantelin and Mr Ljubincic. The Deed expressly required that Ms Doan would pay the plaintiff on demand all amounts paid by the plaintiff that were not satisfied by Mr Pantelin.
(e)Mr Pantelin died on 17 March 2006. He was declared bankrupt shortly thereafter. Mr Pantelin has not paid the plaintiff any monies.
(f)The plaintiff has demanded monies from Ms Doan.
(g)Ms Doan has not paid the plaintiff any monies.
Without making any further findings I would have been satisfied that the plaintiff proved its case against Ms Doan and is entitled to judgment as sought.
Without more Mr S Thomas, of counsel for Ms Doan, would not have suggested that judgment should not be entered for the plaintiff against Ms Doan.
I find the plaintiff’s claim against Ms Doan proved, subject to the claimed assessment costs.
The defendant’s case
A Defence was filed on Ms Doan’s behalf on 20 December 2012.
In that Defence Ms Doan pleaded that prior to 2005 she and Mr Pantelin were in a domestic relationship residing together at a house at Woodville Gardens. She pleaded that at all relevant times in 2005 she was self-employed in her beauty salon business at Flinders Park.
Ms Doan pleaded that early in 2005, and in any event prior to April 2005, Mr Pantelin and she became estranged.
Ms Doan pleaded that in and about April 2005 Mr Pantelin came to her business premises. She did not expect him, nor did she have any warning of his coming. She pleaded that at the time he came she had two customers present in her premises and no staff. Each of her two customers was in a separate cubicle receiving treatment.
Ms Doan pleaded that when he attended Mr Pantelin ‘produced a document, possibly a single page, and requested (her) to sign this’. She pleaded that when he requested her signature she ‘enquired as to the reason for this to which (he) replied orally with words to the effect that he needed to apply for insurance for which purpose he needed a verification of his identity to be signed by someone who knew him and as no-one else did in Adelaide, he was relying on (her) for this’.
Ms Doan pleaded that she understood that explanation to mean that Mr Pantelin needed ‘his identity to be verified by someone who knew him so that he could purchase insurance cover and that the document he produced to the defendant to sign was solely for this purpose’. She pleaded further that she ‘understood (his) need to arise from the fact that he had moved from Sydney and had only resided in South Australia for a few years, and further, apart from (her), that he had no adult family members or long term friends in South Australia’.
Ms Doan pleaded that Mr Pantelin did not hand to her the document or suggest that she read its contents. She pleaded that at the time she ‘was mindful of her two customers occupying cubicles and her need to complete their treatments prior to the arrival of the next customers who had booked for treatments’. She pleaded that she ‘was further mindful that (Mr Pantelin’s) presence on the Business Premises was not welcomed by her, and even less so discussion about his business requirements, in hearing of her customers’.
Ms Doan pleaded that ‘acting upon the description of (Mr Pantelin) as to the purpose of the document, the need for her signature and to facilitate his departure from the Business Premises (she) signed the document’. She pleaded that she ‘applied her signature to the document only once’. She pleaded that she ‘did not make any other markings on the document’. She pleaded that ‘when signing the document there was no witness to this other than’ Mr Pantelin.
Ms Doan pleaded that when she signed the document Mr Pantelin did not afford her ‘the opportunity nor suggested (she) read the document’. She pleaded that ‘upon completing signature of the document (Mr Pantelin) did not provide to her a copy of the document’ and that ‘upon (her) signing the document (Mr Pantelin) immediately left the Business Premises without providing any warnings to (her) about the purport and effect of the contents of the document other than the claim this way (sic) to verify his identity to enable him to purchase insurance’.
Ms Doan pleaded in her Defence that she had no knowledge of the express terms of the Deed of Guarantee and Indemnity.
Ms Doan denied in her Defence any liability to indemnify the plaintiff. She set out a number of reasons for that denial in paragraph 9 of her Defence. She repeated the circumstances that she had alleged as to her signing of the document produced to her by Mr Pantelin in her business premises in or about April 2005. She pleaded that the plaintiff had failed to deliver the document to be signed to her directly with a written warning as to the purport and effect of it and with a recommendation that she seek independent legal advice in respect of it. She pleaded that the plaintiff allowed Mr Pantelin to have the document and to approach her directly in order to procure her signature to it. She pleaded that the plaintiff allowed that to occur in circumstances where the complete document was not presented to her, she was deprived of the opportunity to consider the contents of the complete document, Mr Pantelin was able to prevent her from any opportunity to seek and take independent legal advice upon the contents of it, and Mr Pantelin was able to misrepresent, deceive, trick or coerce her to sign the document.
Ms Doan also pleaded that the plaintiff had failed to recognise or take into account that by reason of her relationship with Mr Pantelin she ‘may repose trust and confidence in (him) in matters of business including the reasons for need to sign the document; and (he) might not fully and accurately explain the purport and effect of the transaction to (her); and (he) might be in a position to obtain (her) signature by coercion, deceit or trickery’. She pleaded that the plaintiff had failed to ‘deliver the document complete direct to the hand of (her); and take its own steps to explain the transaction to (her) or ensure, recommend or suggest that she might like to seek and take her own legal advice’ upon it. She pleaded that these failures resulted in her ‘signing a document without knowledge of its purport and effect and the manner in which this was to be utilised’.
Ms Doan pleaded that the plaintiff ‘was indifferent or reckless in its failure to make enquiries following its receipt of the document purportedly signed by (her) as to whether (she) had taken or had been allowed the opportunity to take independent legal advice upon the contents and effect of the complete document before signing this, or otherwise had done so fully informed and voluntarily’.
Ms Doan pleaded that by reason of the matters referred to she denied that the plaintiff was entitled to the relief it sought against her.
These pleadings are a combination of allegations of fact and pleadings as to law, or the legal consequences of the facts alleged.
The legal defences raised by Ms Doan can be categorised as comprising two defences at law.
The first defence is what is sometimes referred to colloquially as a Garcia unconscionability defence. In Garcia v National Australia Bank Ltd (1998) 194 CLR 395, the High Court of Australia referred to an unconscionable defence which may arise where a wife has given a guarantee to a bank in relation to some business dealings of her husband. The High Court held this, at paras 31 and 32:
The principles applied in Yerkey v Jones do not depend upon the creditor having, at the time the guarantee is taken, notice of some unconscionable dealing between the husband as borrower and the wife as surety. Yerkey v Jones begins with the recognition that the surety is a volunteer: a person who obtained no financial benefit from the transaction, performance of the obligations of which she agreed to guarantee. It holds, in what we have called the first kind of case, that to enforce that voluntary transaction against her when in fact she did not bring a free will to its execution would be unconscionable. It holds further, in the second kind of case, that to enforce it against her if it later emerges that she did not understand the purport and effect of the transaction of suretyship would be unconscionable (even though she is a willing party to it) if the lender took no steps itself to explain its purport and effect to her or did not reasonably believe that its purport and effect had been explained to her by a competent, independent and disinterested stranger. And what makes it unconscionable to enforce it in the second kind of case is the combination of circumstances that: (a) in fact the surety did not understand the purport and effect of the transaction; (b) the transaction was voluntary (in the sense that the surety obtained no gain from the contract the performance of which was guaranteed); (c) the lender is to be taken to have understood that, as a wife, the surety may repose trust and confidence in her husband in matters of business and therefore to have understood that the husband may not fully and accurately explain the purport and effect of the transaction to his wife; and yet (d) the lender did not itself take steps to explain the transaction to the wife or find out that a stranger had explained it to her.
To hold, as Yerkey v Jones did, that in those circumstances the enforcement of the guarantee would be unconscionable represents no departure from accepted principle. Rather, it “conforms to the fundamental principle according to which equity acts, namely that a party having a legal right shall not be permitted to exercise it in such a way that the exercise amounts to unconscionable conduct”
The other defence raised by Ms Doan at trial was another equitable defence known as non est factum. That principle is stated by the High Court in Petelin v Cullen (1975) 132 CLR 355, at 359 as follows:
The principle which underlies the extension of the plea to cases in which a defendant has actually signed the instrument on which he is sued has not proved easy of precise formulation. The problem is that the principle must accommodate two policy considerations which pull in opposite directions: first, the injustice of holding a person to a bargain to which he has not brought a consenting mind; and, secondly, the necessity of holding a person who signs a document to that document, more particularly so as to protect innocent persons who rely on that signature when there is no reason to doubt its validity. The importance which the law assigns to the act of signing and to the protection of innocent persons who rely upon a signature is readily discerned in the statement that the plea is one ‘which must necessarily be kept within narrow limits’ (Muskham Finance Ltd. v Howard) and in the qualifications attaching to the defence which are designed to achieve this objective.
The class of persons who can avail themselves of the defence is limited. It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document. To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence.
…
It is now settled beyond any shadow of doubt that when we speak of negligence or carelessness in connexion with non est factum we are not referring to the tort of negligence but to a mere failure to take reasonable precautions in ascertaining the character of a document before signing it. The insistence that such precautions should be taken as a condition of making out the defence is of fundamental importance when the defence is asserted against an innocent person, …
It was not suggested in this trial that Ms Doan does not bear the evidentiary onus to establish a Garcia unconscionability defence or a non est factum defence.
I now come to how Ms Doan sought to discharge that onus.
Ms Doan’s evidence of signing the Deed
I start with a consideration of her oral evidence of what she pleaded to be a ‘personal attendance’ of Mr Pantelin at her business premises at Flinders Park in or about April 2005 (Defence, para 4.6).
Ms Doan’s evidence is the only evidence that was before me at the trial as to this alleged personal attendance.
In examination-in-chief Ms Doan was asked to look at Exhibit P4 and to go to a page approximately two-thirds of the way through that document where her name and a signature appears. She said that she had that, and she agreed that that was the page where her name appears at the top. When she was asked whether she recalled signing that page, she answered:
I remember once I were busy in the salon and Zivko just walk in and he ask ‘Can I ask you a favour, I need – can you just sign for me the witness’ just point a finger and I sign, didn’t see any filled out, no document, only one page, but I can’t remember, recall anything else.
QWas it common for Mr Pantelin to come in to your salon.
AYes, he come all the time, some time he come in and say ‘Can I just borrow a few hundred dollars?’ most of the time.
QDid he ever come in and ask you to sign anything other than on this occasion.
ANo, never sign anything except only one that time.
QJust this one document.
AYeah.
QAnd what he showed you, was it the entire document.
OBJECTION: MR WHITE OBJECTS
MR WHITE: I object to that question because this is critical and it is leading. The witness can properly be asked what she was shown.
MR THOMAS: I accept that.
XN
QCan you describe to his Honour what you were given to sign.
AHe just gave me one page and just point in the corner to say ‘Can you sign?’ but I didn’t see any document at all, didn’t see the whole page, only one page.
QSo it’s just the one page.
AYes
QDid he explain to you what it was for.
ANo, he didn’t explain anything, he just asked ‘Can I just need you sign for the witness’ and I thought – I were busy as well and just come in and seen it, witness for him and he just go.
…
HIS HONOUR
QDid you say that he said to ‘sign for the business’.
ANo, he just said ‘I need your signature for the witness’.
Q‘Witness’, not ‘business’.
ANo, not ‘business’ nothing, he just asked for ‘witness’.
When Ms Doan was asked to describe the layout of the store, and in particular where the cubicles in which she had two customers were, she answered:
Well, he just walk in the room and I were inside, so I heard the doorbell and I come out the front, the front desk and he say ‘I just need you to – can you do me a favour, I need you a signature for the witness of my application’, that’s all, and I just signed it for him. I said ‘What’ – you know, and he just took off.
Ms Doan said that when Mr Pantelin arrived at the shop she was busy doing a facial for a client in a cubicle. The cubicles were separated from the public area of the shop. There was a curtain separating them. She said that if people talked loudly they could be heard through the curtain. She said she could not recall who her two customers were as it was a long time ago. She said that she was busy and she had two clients. When asked if she kept an appointment book for her days in the salon she answered that she did, but that she did not ‘keep all my file up to now since 2005 and now it’s over eight, nine years. I only keep a record up to five, six years, all my tax, all my appointment book up to five years’.
Ms Doan was then asked:
Looking again at the page in front of you can you tell his Honour if there were any markings on it other than the typed page, was there any handwriting on it when it was presented to you to be signed.
ANo, I didn’t see any filled out, except the signature what I sign for the witness part of that. There isn’t any filled out in the form, it wasn’t my writing.
QWas it there when you signed it.
ANo, it wasn’t there when I signed them either.
QSo just to clarify for his Honour, you see there your name and address on the top left-hand corner.
AYep.
QWas that there when you signed it.
ANo, it wasn’t there when I signed it and also in North Adelaide, I never been to North Adelaide and I never been – never sign anything in North Adelaide.
QSo that writing in the bottom left there in blue.
AWasn’t me.
QWas that there when you signed it.
ANo, it wasn’t there when I sign it.
QYou’ll see in paragraphs (c) and (d) in the middle there’s some lines drawn through; were those lines drawn through when you signed it.
ANo, I didn’t initial and haven’t seen any of it.
QYou see the initials there, ,what appear to be DN.
AYes.
QDid you write those initials.
ANo, I didn’t do that either.
There was then some questioning of Ms Doan about the correct way of setting out her name. I shall return to this topic, but she did say in answer to this that when she is asked to give her name she gives it as ‘Nga Thi Tuyet’, where Nga is her first name and Thi Tuyet is her middle name. She then gives her surname as ‘Doan’.
Ms Doan was then asked:
If you are ever asked to provide your initials how would you write those initials.
A‘ND’.
QDo you see on the page in front of you that the letters ‘DN’ appear. Did you write those.
ANo, I did not initial any page, I did not initial anything on the page.
HIS HONOUR
QWhen you say ‘any page’, what do you mean.
AI wasn’t initialled this, signature, it’s apart of the signature I recognise is similar I sign but apart of everything else it wasn’t my writing or initial on the page.
QHow long was Zivko in the shop for when the document was signed.
AHe very quick, he just walk in and sign, not even two minutes, just, I walk out and–
Ms Doan said that she saw Mr Pantelin later that same day. She said that he came to the house very late at night to pick up his mail. When she was asked whether she then asked him what she had signed, she answered:
No, I did not, as my children still very young, I were busy with my children, my daughter and sleeping I don’t, I wasn’t, asking anything but part of his work I never ask, we don’t actually associate very much at the time, we already separated.
Ms Doan was asked, when she signed the document, whose pen did she use. She answered:
I can’t remember, he hold it in the pen on his hand and he just come in and he pointed to me ‘Can you sign this? I need a witness’, that’s all, ‘Somebody know me in Adelaide, just need your signature’.
QSo just to clarify: can you tell his Honour where did the pen come from that you signed it with.
AZivko have them on his hands when he walk in and so he’s just asked me to sign.
QDid he take that pen with him.
AYep.
Ms Doan said that before she signed the document she had never heard from any insurance company about builder’s insurance for Mr Pantelin. When asked whether she ever received a copy of the document that was then in front of her before proceedings was issued, she answered: ‘No, I never receive any paper, any document’.
Ms Doan said that Mr Pantelin did not offer her any money to sign the document. She said he offered her nothing else for signing the document.
This completes some references to Ms Doan’s evidence-in-chief regarding her signing of the document.
Ms Doan was asked by Mr White about when she said Mr Pantelin came into her salon at Flinders Park and asked her to sign a paper. She said she came out from behind the curtain when she heard the door open and saw that Mr Pantelin had a paper in his hand. Ms Doan was asked:
And he said words to you ‘Can you initial, sign for the witness’ and pointed to the corner of the paper with the pen. Is that correct.
AHe come in and asked me ‘Can you do me favour? I need this, just sign here the witness paper’.
QDid he say ‘Initial sign’ or ‘Initial signature’.
AJust sign the witness for him.
QYou say he had a pen.
AYes, he holds in hand the pen.
QSo he had a pen with him. Did you have any pens in the salon.
AI did have.
QWhat colour was the pen that Mr Pantelin had.
AI don’t recall what pen did he sign, I just sign it at that time.
HIS HONOUR: Do you mean the pen itself or the ink.
MR WHITE: I’ll start with the pen.
XXN
QWe’ll distinguish between the colour of the pen and the colour of the ink of the pen, so I will ask you two separate questions. Do you remember what colour was the pen.
AI know that you can flick the button on the top.
QSo it’s a ballpoint sort of pen.
AYeah.
QDo you remember the colour of the pen.
AI don’t recall the colour the paint until I see you just show me now the black but I don’t recall that.
QWhat about the colour of the ink, do you remember the colour of the ink.
ANo, I don’t.
After some further questioning on other topics Mr White asked Ms Doan:
Correct me if I’m wrong but I understood your evidence this morning to be that firstly that it is your signature down in the bottom right-hand –
AYes.
QAnd that if we go to the top and work down, that the words in blue, your name and address, were not there when you signed it.
ANo, it wasn’t.
QAnd if we go down a bit further to the sub-para. (c) which has got a blue line through it, that blue line was not there.
ANo.
QAnd the initial next to it was not there.
ANo.
QAnd we look at sub-para. (d) straight below it, the blue line through part of that was not there.
ANo, it wasn’t.
QAnd the initial was not there.
ANo.
QAnd we go to the bottom and on the left-hand side your name and the place ‘North Adelaide’ etc. were also not there.
ANo, it wasn’t, no.
QYou say when you signed it it was a blank, there was not handwriting or marking on this other than your signature.
AExactly.
QSo you saw the whole document.
ANot the whole document. I just see –
HIS HONOUR: The whole page.
XXN
QYou saw that whole page.
AHe just bring it in and show me the signature ‘Just sign the corner here’ and I did.
QYou saw the whole page, didn’t you.
AI didn’t see any writing, yes.
QYou saw the whole page.
AYes, I did.
HIS HONOUR
QSo you saw the printing on it.
ANo, no printing name on it, no.
QNo, the –
AThe typing.
QIf you forget all the writing and lines that Mr White has just gone through with you, that were not there.
AYes.
QAll the rest of it was there – the printed part of the page.
AThe page, yes.
QAll the printing was on it.
AI suppose, yes.
QYou suppose.
AYes, I think that were there, yes. I think because I just look at the place.
QThe printing was on it.
AYes.
QBut no other writing or markings in blue or initials.
AThat’s right.
Mr White then cross-examined Ms Doan about that part of her Defence which stated that at the time of Mr Pantelin’s personal attendance at her business he ‘produced a document, possibly a single page, and requested (her) to sign this’. Mr White asked her where her Defence says that the document was ‘possibly of a single page’, that indicated that she was not sure of that. Ms Doan answered:
He just come in and point that to me (INDICATES) at that time I just say that’s something.
QWhat you told his lawyer ‘Possibly of a single page’ you didn’t say ‘A single page’ that is what the court has been told ‘Possibly a single page’. So you’re not sure, are you.
AI am sure when he come in and show me just, you know at the time I were busy and all I just come out and see that he pointed and ‘Can you, I just need your signature witness’, to me I just sign and that’s all. Or I just see one page.
QWhat I’m asking you about Ms Doan, what you told your lawyer and then the court in December 2012 and in December 2012 you were not prepared to say it was a single page, were you. You said it was possibly a single page. That’s correct, isn’t it. That’s what you remembered or what you told your lawyer at the time, ‘Possibly a single page’.
AHe just bring, yep.
HIS HONOUR
QHe just.
AHe just come in with the piece of paper like that (INDICATES).
XXN
QSo he came in with the paper folded over, did he.
AJust one page he says ‘Give it to me to sign’.
QHe came in with more than one page but what he showed you is one page, is that correct.
AHe had the folder holding in his hand and he holds only one page to give me on the desk to sign.
QI don’t really understand that I’m afraid. We’ll take it piece by piece. Did Mr Pantelin bring into your salon more than one page.
ANo, I don’t see anymore than one page, I just see that he put on the desk only one page for me to sign.
HIS HONOUR
QDid he bring it in a folder.
AYes, he had the folder in his hand, but I don’t know what it is, you know, black folder.
XXN
QIs it a paper folder, black paper folder.
ABlack leather folder same as on the table there but bigger. A leather folder, I don’t know what.
QWhen you say ‘possibly of a single page’, you mean he just showed you a single page or that you just can’t remember.
AI did remember that he bring that on the desk to me to sign.
Mr White then cross-examined Ms Doan about another paragraph of her Defence. That was the one which stated that after Mr Pantelin requested her signature, Ms Doan enquired as to the reason for it, to which Mr Pantelin replied ‘with words to the effect that he needed to apply for insurance for which purpose he needed verification of his identity’ and that there was no-one else in Adelaide other than her who could do that. When Ms Doan was asked whether she told her lawyers that in 2012, she said that she did. Mr White then asked:
It’s not what you said today.
ASorry?
QIt’s not your evidence today. Your evidence today was ‘Can you initial signature for the witness?’, or words to that effect.
AThat’s right.
QSo is it the case that in fact Mr Pantelin asked you to sign a document to enable him to get insurance.
AHe just asked me ‘Can you be a witness’ for his application for insurance but I don’t know, I didn’t ask any questions what insurance or anything else.
QHe told you that he needed your signature to get insurance.
ANot to get – just a reason for him to apply for insurance, that’s all I knew.
QWitness for him to apply, witness for what.
AThat’s what I don’t understand. I don’t understand any document about building relationship or anything.
Mr White then asked Ms Doan to look at the page of Exhibit P4 which she signed. Ms Doan said that Mr Pantelin’s name did not appear on that page. She agreed that she could read that page. She was then asked:
So when you say in your defence at para.4.11 that he needed a verification of his identity this is obviously not a verification of his identity, is it.
AI don’t know at that time.
QYou saw it at that time.
AHe asked me to be a witness so all I just hear to sign as the witness.
QWitness to what, because nothing else was on it, you say.
ABut all he just showed me to sign, I just not assume – all I just want to sign it so he can go and I come back to my work, so I don’t have in my mind.
Ms Doan then agreed with Mr White that she told her lawyers that Mr Pantelin needed her signature so that he could purchase some insurance cover. Mr White suggested that that was not what Ms Doan’s evidence was earlier in the day at the trial. In response she answered: ‘I did give evidence whatever you ask me I just answer the question.’
Ms Doan then said that Mr Pantelin had said to her that he needed ‘a witness to apply for some insurance job but I don’t know what it is for and what he was …’. Mr White then asked:
So, it’s correct to say, isn’t it then, that you knew the document he asked you to sign was a document that an insurance company was going to rely on.
ANo I don’t know what sort of insurance what it was.
QIs that so.
AIt can be car insurance, it can be anything other insurance, I don’t know what sort of insurance.
QAn insurance company is going to rely on it, you knew that, didn’t you.
AI don’t knew anything about his work. All I heard he asked me to sign a witness for him and I just only signed it for him, that’s all.
QYou signed that paper.
AYes.
QYou signed it because you were willing to help him get insurance, weren’t you.
ANo, he asked me as a favour to witness for him so I did because –
QSo you knew it was a document – you told us that it was a document to verify his identity so he could get insurance, that’s correct, isn’t it.
ANo, always to see the last page he asked me and I signed it.
HIS HONOUR
QBut you did ask him ‘What’s this for?’, didn’t you.
AI wasn’t having the time and at that time our relationship very strained, so I wasn’t intend to ask about his work or whatever he do, so he walk in the shop and I decide for him at that time I didn’t have enough time to ask very many questions because I’m very busy.
I then said to Ms Doan that I had the impression earlier in the morning when she gave evidence that she said that she had not asked Mr Pantelin anything about the document. She said that she did not ask and was not asking him anything. I then asked:
But para.4.11 suggests that when you were asked for your signature you inquired as to the reason why he wanted your signature. Do you see that.
AYes, he asked to sign it for him because only me know him in Adelaide because I’m his wife.
QThat reads to me he asked you, you asked him why he wanted it.
AI wasn’t ask him any questions at all. I don’t know.
Ms Doan then confirmed to Mr White that she did not ask Mr Pantelin anything. Mr White then asked:
And you say he didn’t say that he needed to apply for insurance.
AHe just did ask me to sign, to witness for him the application but I didn’t ask.
QYou’re saying today in court to the judge that he did not ask you, he did not say he needed to apply for insurance. I’ll say it more slowly. Zivko has come in with the paper and asked you to sign it.
AYes.
QYou are telling the court today that Zivko did not tell you on that occasion that he needed you to sign it so he could get insurance.
AI didn’t know he get insurance. He just asked me to sign as a witness when he apply for some sort of – his work insurance but I don’t know anything else.
QSo you do say that he said he needed it for his work, make application for his work insurance.
AYes.
QDo you say that he told you that he needed a verification of his identity for that.
ANo.
QSo you look at para.4.11, you now say that he didn’t tell you he needed a verification of his identity signed by someone who knew him.
AYeah, that’s correct. He asked me to sign it, the witness.
Mr White then put before Ms Doan the two separate pages of the Deed Exhibit P4 which had been apparently signed by Mr Pantelin (‘Mr Pantelin’s page’) and by her (‘her page’). He put those two pages side-by-side. Ms Doan said that the signature on Mr Pantelin’s page was Mr Pantelin’s signature. She said that the initials next to paragraphs (c) and (d) where certain printing has been struck out in blue pen were Mr Pantelin’s initials.
Mr White then directed Ms Doan’s attention to the handwriting, or hand printing, at the top and at the bottom of Mr Pantelin’s page. He asked Ms Doan:
That’s not Mr Pantelin’s handwriting, is it.
AI don’t know his handwriting much.
QLooks very neat doesn’t it, the handwriting.
That question was objected to and Mr White asked Ms Doan some other questions. In answering them Ms Doan accepted that she saw Mr Pantelin sign and write on various occasions. She said that she would recognise his handwriting if she saw it. She then said that the handwriting on Mr Pantelin’s page, other than his signature and his initials, was his handwriting. That was the hand printing in blue at the top and at the bottom of Mr Pantelin’s page. Ms Doan said that the printing in blue at the top and at the bottom of her page was Mr Pantelin’s handwriting. Mr White then asked:
What about the initials ‘DN’ on the page that you’ve signed, you see those initials.
AI don’t – I see I don’t initial that.
QThose initials are in black ink aren’t they.
AYes, they are.
QYour signature is in black ink.
AYes.
QYour full name is Thi Tuyet Nga Doan is that correct, I’ve probably mispronounced it.
AWhatever, yeah, yeah.
QIt’s common in Vietnamese to put the family name first, Doan.
AIn Vietnamese way, yes the family first, yes.
QAnd the names Thi Tuyet are in fact your middle names are they not.
AThi Tuyet the middle name.
QAnd Nga is your given name.
AYes, correct.
QThose initials, DN, are the initials Doan Nga are they not.
AYes –
OBJECTION: MR THOMAS OBJECTS
MR THOMAS: I object to that question, it’s not for this witness to say when she’s denied having written something what something could possibly stand for.
MR WHITE: I accept that correction and will go back.
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QYour evidence earlier today was that if you wrote your initials you would write NG.
AND
QIt’s the case if you were writing initials you would write it in the Vietnamese way, that is your family name first and your given name second so it would be DN, would it not.
ANo, because we come to Australia now we change the first name first and the surname come after. So initials now ND all my documents.
QI suggest to you that you actually did, those initials DN on the execution page are in fact initials that you wrote there.
ANo. It doesn’t look like mine.
Mr White then sought to ask Ms Doan some questions about how she wrote some of her initials on another document, being a Proof of Debt, Exhibit P13. I upheld Mr Thomas’ objection on the understanding that the issue Mr White sought to pursue was or could be a matter for me.
Mr White later returned to Ms Doan’s signing of the document that Mr Pantelin brought to her salon at Flinders Park. He did that after she agreed that she had signed papers before which were formal looking documents. She agreed that when she signed a formal looking document it was necessary for her to understand it. When Mr White put to her that there was nothing on the page she signed to witness, she answered: ‘I wasn’t having my mind to read the document or anything to know what is in there’. When asked whether Mr Pantelin had other pages of documents with him at the time she answered:
No, all I, I don’t sees anything he hold in the hand, only the paper put on the desk and ask me to sign. I come out and I just, we’re busy rushing as well and I just signed it. All he ask to be a witness for his application, so I just to know that somebody know when I sign he say just needs a witness ‘somebody knows me in Adelaide’ so I sign and he walk out.
QI suggest you did read at least that page before you signed it.
ANormally if other document, if I sign for the lease or anything they give me time to return the lease and take the lease home, read it, and then return it and sign the document, yes.
QBut you knew in this case that this was a document he needed for insurance, didn’t you.
AI wasn’t know what is that for, unless, yeah.
QI suggest you did know it was a document that he needed for insurance.
AI didn’t know what sort of insurance what it is for.
QYou didn’t know what sort but you knew it was for insurance, didn’t you.
AI heard something application for his work insure, I don’t know what it is for.
QSo you knew somebody was going to rely on it, is that correct.
ASorry?
QSomebody was going to rely on your signature on this document.
AI wasn’t knew that time somebody would rely on my signature.
When Ms Doan was directed to the typescript on her page, including typescript in bold which read ‘Execution by Guarantor’, she said she could see that but she did not read it at the time she was asked to sign. She said that she could now read where it stated that ‘The insurer has recommended that I obtain independent legal advice’ and that ‘By signing this Deed of Guarantee and Indemnity I may become liable to pay the Insurer’ she ‘didn’t see anything at the time’. She said she ‘didn’t read, I didn’t have the document to read, have time to read or anything so I didn’t understand’. She said that at the time she did not think it was a legal document although she agreed that looking at it now it is a legal paper.
Mr White then asked:
I suggest to you that you knew perfectly – sorry – it was a legal document and all you had to do was – I rephrase – there was no reason you had to sign it, was there, you could have said ‘Go away’ for example to Mr Pantelin.
AI could, well, at that time he walk in, he ask me ‘Can I ask you a favour to be a witness for me?’. So I thought, you know, you just sign and let him to go, because at that time he still father to the kids and my daughter so to keeping peace I’m not a person that causing trouble.
QBut you knew he needed it for insurance.
AI wasn’t know that he need it for insurance.
HIS HONOUR
QYou did not know.
AI did not know anything about his work, not at all.
XXN
QWe established he needed it for insurance, haven’t we, you knew that.
AI wasn’t know anything about work insurance or any insurance or anything.
QI am puzzled, because I had understood you to say that you agreed that he had told you that it was for insurance; right. Forget about work, car, home, whatever.
AYes.
QDid he use the words or use words that told you this was about insurance.
AApplies as witness, yes, he apply for insurance.
QThank you. Now, separately, did he or did he not tell you that it was for work insurance.
ANo, for his insurance, he don’t know what sort of insurance, I don’t know.
When Mr White suggested to Ms Doan that she knew perfectly well that this was a document that Mr Pantelin needed for his business, she answered: ‘If I knew this a guarantor document I would not sign it’. Mr White then asked:
You knew what a guarantee document was.
ANo, I wouldn’t, no.
QYour evidence was if you knew –
AIf I knew that, I wouldn’t sign it.
QSo you knew what a guarantee was.
AI wasn’t know.
QNo, I’m not asking you at the moment, at April 2005 you knew that a guarantee was, didn’t you.
ANo, I wasn’t.
QYou knew a guarantee made you liable to pay someone else’s debts; is that right.
ANo, I wasn’t knew at the time.
QI suggest you knew perfectly well that the document you signed that day was a document that made you liable to pay Mr Pantelin’s insurer if he ended up owing money to the insurer.
ANo, I wasn’t knew that.
QI suggest you were quite willing to take the risk.
ANo, I wasn’t knew that.
QI suggest you took that risk because Mr Pantelin owed you money and that he needed to work to get that money.
ANo, no, I did not knew that’s a legal document that time where I sign. All I just, he asked me, walk in the shop and ask me ‘Can you sign me a witness for me?’ and he point a hand there, hold it like this (INDICATES) and point a hand there, I didn’t even have time I don’t read.
QYou say Mr Pantelin held his hand over the document.
AYes, he held it and asked ‘You sign it here’.
QSo how could you see there wasn’t any other handwriting.
AI wasn’t see what was in there, I just ask to be witness so I just signed for him and he go.
Ms Doan then said that she did not even read the three words on the paper that were immediately below her signature.
Other evidence of Ms Doan
Ms Doan’s evidence is important, indeed it is vital, if I am to be satisfied that she successfully made out a defence to the plaintiff’s claim.
She is not only the only witness regarding what she said happened at her business premises at Flinders Park when her husband, Mr Pantelin, came unexpectedly with a document which she says she signed, she is also the only witness who gave evidence regarding her relationship with Mr Pantelin from the time she met him in Adelaide in 1998 until his death on 17 March 2006.
Ms Doan was not born in this country. English is her second language. She had limited schooling in Vietnam although she did tell me that she went to a TAFE when she arrived in Sydney to learn special English so that she could do a trade course to become a beauty therapist. Although she told me at the trial that she did not understand documents like court or contract documents, she did, over her 30 years in Australia since arriving here in 1984, have several occasions to at least become familiar with legal and contractual documents and other business documents.
Most of this evidence came out in cross-examination. That is not a criticism of Ms Doan nor of her counsel. Her case in examination-in-chief concentrated on establishing that she knew little about her husband’s business or his work, and in describing the circumstances in which she signed a document at Mr Pantelin’s request which she did not see or read or have explained to her.
In cross-examination Ms Doan said that she started working for herself in Sydney in 1995. She did that after she got married and after she did a beautician training course which was conducted over 15 months. She said that she owned a house in Sydney and when she purchased it she signed a contract and transfer papers. She said she assumed that both her and her husband’s names were on the papers. She said that they had a lawyer and she did not understand much.
Ms Doan said that when her marriage in Sydney broke down there were proceedings in the Family Court. As a result of that the house was sold. She again signed some papers for the sale of the house. She said that she swore some affidavits in the Family Court proceedings but that she did not read the affidavit before she signed it. She said she had a solicitor and that if you have one to do your work ‘then you just sign whatever the document he asked you to’. She said that she did not ‘understand the full document’, being the affidavit she signed. She said that she did not understand the contract to buy or sell the house. She said that she always had ‘the solicitor or somebody explain to me before I sign’.
Ms Doan said that when the house in Woodville Gardens in Adelaide was purchased she did not attend the auction, She said that Mr Pantelin went there by himself. She said that as a result of the auction she became the owner of the house although he signed the papers at the auction to buy it. She said that it was her money that was used to buy the house, Mr Pantelin ‘didn’t contribute any money at all’. She had said in examination-in-chief that the house was purchased in late 1998.
Ms Doan said that Mr Pantelin’s name was registered as a part owner of the house. When asked why he became a joint owner of the house with her she answered: ‘At that time we thinking to live together and he’s going to help with renovation to the home because the house need a bit of renovation when we purchase that so I put his name on together in the owning partnership’. She then agreed that she did that to make it easier to apply to council to get building consents or something like that.
Ms Doan said that when the house was bought she did not borrow money. She said, however, that she had a loan agreement with her parents. She said that by that agreement her parents lent her some money. She agreed that that was dated 11 January 1999. She said that she did not have a copy of the loan agreement in court and Mr White indicated that he had asked for it to be produced.
Ms Doan said that after the purchase she and Mr Pantelin moved into the house. He started work on the house but he never finished the work. She said that she paid for all the materials that were used when he worked on the house, and she also paid the bills and the expenses of living. She said that she also lent money to Mr Pantelin from time to time. She thought he also borrowed money from her parents and from her brother. She said that he never paid any of that money back ‘so that’s why we – our marriage broke up’. She agreed that she got sick of Mr Pantelin not working on the house, borrowing money and not paying it back. She said that she said that she did not think that she trusted him to pay the money back. She said that she did not have any confidence in him paying the money back, and she had no confidence in him finishing the house. When Mr White said that he understood that Mr Pantelin moved out of the house in early 2005, probably about February, Ms Doan answered ‘Yes, that’s right’. She agreed that at that time her parents were angry about the fact that the house was unfinished and that she was angry too.
Mr White then cross-examined Ms Doan about her speaking to Mr Pantelin to get him to transfer his share of the Woodville Gardens house to her. She agreed that she wanted the house in her name only. When this topic first arose during the trial I struggled to understand the time frame in which this apparently happened, bearing in mind that Ms Doan’s evidence had been that she and Mr Pantelin had broken up in February or March 2005, that he had moved out of the house in early 2005 and probably in February, and that the Deed was dated 5 April 2005. While I was in that state of uncertainty Ms Doan told me that Mr Pantelin had said that he wanted some money from her before he would transfer his share of the house to her. She said:
He did want us to pay some money to him before he transfer the name back to my name, the house back to my name.
QWho is ‘us’.
AI request him, you know, to take the name title out from him.
QYes but you said ‘He wanted us to pay him money’.
ANo, he say he owes a lot of money from all the other bills so he say ‘Okay, I will sign a paper over to you if you pay me out’, I pay him out some money, 10 or 15,000 at the time.
XXN
QIn any event it’s the case, isn’t it, that in the end you agreed that Mr Pantelin could have $20,000 and you would pay off $10,000 of a loan that he owed to your brother; is that correct.
AYes, that all, yes.
Ms Doan agreed with Mr White’s suggestion that the arrangement was that she would pay off a $10,000 loan that Mr Pantelin owed her brother and that she would give Mr Pantelin an extra $20,000 if he agreed to transfer his interest in the house to her. She agreed that she negotiated all of that. She agreed further that some documents were prepared and signed and that she arranged for those documents to be prepared and signed by a conveyancer who prepared a transfer and a statutory declaration which she signed. She said she understood that they had to be signed in order for Mr Pantelin’s share of the house to be transferred to her. She said that she also understood that the statutory declaration had to be signed in order for her to avoid paying stamp duty. She said that she swore the statutory declaration and she said that at the time she did so she read it.
Mr White then produced to Ms Doan, and ultimately tendered, Exhibits P11 and P12. The former is a Memorandum of Transfer from Mr Pantelin and Ms Doan (as transferor) to Ms Doan (as transferee) dated 4 November 2005.
The Memorandum of Transfer (Exhibit P11) evidences that the transferor was Mr Pantelin and Ms Doan, both of the address at Woodville Gardens. The transferee was Ms Doan. The consideration stated is ‘NO MONETARY CONSIDERATION’ and is stated to be pursuant to certain provision of the Stamp Duties Act SA. It is signed by Ms Doan in two places. One signature was before what she said was a Justice of the Peace at a Commonwealth Bank. In the other place her signature is witnessed by the conveyancer who prepared the document. Ms Doan said that she understood that she had to sign the transfer both as an owner and as a transferee.
When Mr White put Exhibit P12 before Ms Doan she agreed that that was the Statutory Declaration to which she had previously referred. She agreed that both her signature and that of Mr Pantelin appear on the document and that they both swore the document before a person at the Commonwealth Bank. It was the same person who was one of the witnesses to Ms Doan’s signature on the transfer. Ms Doan said she understood that she was swearing to the truth of the document and that she needed to swear to that in order not to pay stamp duty. This Statutory Declaration refers to Mr Pantelin and Ms Doan as being both of the address at Woodville Gardens.
By the Statutory Declaration dated 3 November 2005 Ms Doan declared that she was married to Mr Pantelin, that they were the only parties in the Memorandum of Transfer dated 4 November 2005, and that the Woodville Gardens property was their matrimonial home. By the Memorandum of Transfer Mr Pantelin and Ms Doan acknowledged receipt of the consideration of ‘no monetary consideration’. The Memorandum indicated that there were no encumbrances over the property.
Mr White then asked Ms Doan to confirm that after Mr Pantelin died in March 2006 and later became bankrupt, Mr Pantelin’s Trustee in Bankruptcy claimed an interest in the house at Woodville Gardens. She agreed and she said that she then instructed a lawyer. She agreed that eventually a settlement was reached. She agreed that she told her lawyer what had happened and why she felt Mr Pantelin was not entitled to an interest in the house. She agreed that in the course of those proceedings she swore an affidavit which was prepared for her by the lawyers she instructed. These proceedings were in the South Australian District Registry of the Federal Court of Australia.
A draft of Ms Doan’s affidavit was ultimately tendered. It became Exhibit P15. Ms Doan said that this exhibit is a copy of the affidavit that was prepared for her to swear and that she did swear for the Federal Court proceedings. The draft affidavit is dated 1 June 2007. It is stated to be sworn pursuant to an Order of a Federal Magistrate made on 1 May 2007.
By letter dated 5 July 2007 a solicitor from Strachan Carr Solicitors wrote to Ms Doan. This letter is Exhibit P14. In her evidence Ms Doan said that she had read this letter from her solicitors and that she understood it, possibly with the help of her brother. She said that she understood that the letter recorded a settlement that had been reached between her and Mr Pantelin’s Trustee in Bankruptcy. She said that she understood that the settlement included that the caveat on her property would be removed, that her undertaking not to deal with the property would be lifted, and that she would pay the Trustee in Bankruptcy the sum of $42,000, inclusive of legal costs, within four months of 4 July 2007. She said that she also understood that a trial that had been set would not proceed. Finally, she said that she understood that she could lodge a proof of debt claim against Mr Pantelin’s estate. She said that she understood that, and that she did that.
Ms Doan completed, signed and dated a Proof of Debt form. It is dated 15 August 2007. It is Exhibit P13. She confirmed that she had signed this Proof of Debt and that she had written her name in her own handwriting.
MS Doan agreed that the debts that she claimed against Mr Pantelin’s Trustee in Bankruptcy are referred to on Exhibit P13. There is a debt of $5,593 incurred on 21 March 2006 for funeral expenses (which were presumably Mr Pantelin’s funeral expenses). There is a debt of $7,000 which are said to be cash loans from Ms Doan to her bankrupt deceased husband said to have been incurred in September and December 2001. There is a sum of $68,932 said to be Visa Card Loans/Expenses Ms Doan made to and paid for her bankrupt deceased husband said to have been made and incurred between June 2002 and February 2005. Finally, there is a sum of $20,000 said to be a cash payment by Ms Doan to her bankrupt deceased husband said to have been incurred in 2005.
Ms Doan said in evidence that the $20,000 was the amount that she had paid to Mr Pantelin in relation to his transferring his interest in the house to her. This appears to have occurred in November 2005 for ‘no monetary consideration’ (Exhibits P11 and P12).
I asked Ms Doan about the $10,000 that she said that she had paid to her brother as repayment of a loan her brother had made to Mr Pantelin which she had said was part of the ‘arrangement’ she had made with Mr Pantelin so that he would transfer his interest in the Woodville Gardens house to her. When I asked that Ms Doan replied:
What about the 10 that you paid to your brother.
AYes, I did pay to my brother.
QWas that the same time as 20 or different time.
AAfter, because, my family let me to pay off later, because I didn’t have money to pay to my brother all at the same time.
QYou had the money to pay to your brother at the same time, but you didn’t.
ANo, I did not have any money – my brother make arrangement I pay off monthly to him later, so I didn’t put on the claim at that time.
QWhat claim.
AOn that on the bankrupt.
QBut there’s no $10,000.
ANo, I didn’t put it on.
Ms Doan then told Mr White that, leaving aside the $20,000 and $10,000 in respect of which she had given evidence, she did not give Mr Pantelin any more money after February 2005.
I now refer to Ms Doan’s draft affidavit, Exhibit P15, in a little detail. I infer and find that Ms Doan swore its contents to be true on 1 June 2007.
In her affidavit Ms Doan refers to her running a hair and beauty salon in Sydney in rented premises at Campbelltown. She also refers to her then husband and she owning a family home at Fairfield.
Ms Doan refers to the fact that when she and her husband separated they came to an agreement about caring for the children and their property assets. That agreement was not reduced to writing and was not made subject to a Family Court of Australia order.
Ms Doan refers to the house at Fairfield being sold at auction in December 2007 and that she received her share of the proceeds in early January 1998. She refers to her beauty salon business in Campbelltown being sold for $70,000 plus stock of approximately $10,000. She states that she was paid partly in cash and partly by cheque in the sum of about $44,000 which she received in February 1998. She states that she banked that cheque on 28 April 1998 in an account which she opened on the same day in the names of herself and her second husband Mr Pantelin. She refers to annexing to her affidavit a photocopy of a bank statement apparently evidencing that.
Ms Doan refers to meeting Mr Pantelin at the beginning of 1998 when she moved from New South Wales to South Australia. She refers to her deciding to buy a house into which Mr Pantelin could move with her and her two children from her first husband. She refers to she and Mr Pantelin locating a suitable property at Woodville Gardens into which a contract was entered to purchase in approximately early April 1998. She refers to her paying all the funds necessary to effect the purchase. She refers to paying a deposit on 3 April 1998, paying part of the balance of the purchase price on 30 April 1998 and paying $90,000 in cash to the vendor, being the balance payable, at settlement. She refers to an annexure to her affidavit which included a Transfer of the property dated 1 May 1998.
Ms Doan then refers to her agreeing to put Mr Pantelin on the title of the Woodville Gardens property. She states that as it needed renovation she and Mr Pantelin agreed that by having his name on the title it would be easier for him to apply for loans and planning approvals necessary to renovate the house. She estimated that up to the time of her affidavit she spent something in the order of $100,000 on renovations to the house, of which $60,000 came from her parents. She refers to annexing to her affidavit a loan agreement signed by she and her parents that related to her borrowing a sum of $50,000 from her parents to assist in the renovations. She refers to subsequently borrowing a further $10,000 from her parents. She does not state when she did that.
Ms Doan then refers to Mr Pantelin asking her to lend him money to assist with his building business to buy materials. He told her that he would repay her when the building work was finished and he had been paid for it. She states that she lent Mr Pantelin money in September 2001 and December 2001. She made two separate cash loans that totalled $7,000. She states she never received repayment of those amounts.
Ms Doan states that between June 2002 and February 2005, at Mr Pantelin’s request, she made her Visa card available to him so he could purchase supplies used for his building business. That expenditure totalled nearly $69,000 and she never received any repayment of those amounts.
Ms Doan states that by February 2005 she had reached the end of her patience with Mr Pantelin. She was funding his building work through his use of her Visa card but she never saw any payments from owners, which were presumably owners of properties on which Mr Pantelin worked. She states: ‘At that stage I wanted him to leave and we agreed that I would pay him $30,000 to do so’. She states that in February 2004 she received $40,000 as a result of a motor vehicle claim and it was with those funds that she paid Mr Pantelin $30,000 during 2005. She states that that sum comprised two sums. One was an amount of $10,000 Mr Pantelin owed to her brother. The other sum was $20,000 which she states ‘was more than adequate compensation for work (Mr Pantelin) had done around the house and bearing in mind the loans I gave him and the advances for building materials that he had made on my Visa card. I had also estimated that I thought the worth of his work in and around the house was about $30,000. (Mr Pantelin) had suggested that figure of $30,000 to me as his price for leaving and I was comfortable with that figure’. She states that in June 2005 she paid $20,000 to Mr Pantelin and she also paid her brother $10,000.
I have referred in some detail to the contents of this affidavit as it refers in some more detail to matters upon which Ms Doan gave evidence before me and, in some respects, identifies with more precision the time at which certain events occurred, some of which times are inconsistent with what Ms Doan said in evidence at the trial before me. There is other material in the affidavit which is inconsistent with evidence Ms Doan gave before me.
An example of an inconsistency is when Mr White asked Ms Doan some questions about her Defence in this action. She said that she saw that Defence ‘before I came here, yes’. When she was asked whether she read the document when she saw it she replied: ‘Yes I did’. She acknowledged that that was her Defence. She was asked to look at and read paragraph 4.5. When asked to do that she read that paragraph aloud in court. She read: ‘by April 2005 the defendant maintained bank accounts and her financial affairs separate to those of Zivko’. Mr White asked whether it was the case that Mr Pantelin’s and her finances were quite separate by 2005. Ms Doan replied: ‘No, it’s never been together before’. She said that their finances had never been together. They had always been separate.
In her affidavit in June 2007, however, Ms Doan referred to banking a cheque of just over $44,000 into an account which she opened on 28 April 1998 in the names of herself and Mr Pantelin.
Ms Doan was not cross-examined about this part of her affidavit and, accordingly, it would be unfair to her if I took that into account when assessing her credibility and her reliability. I do not do so. I consider, however, that I am entitled to consider what she swore in her affidavit as to whether or not her financial affairs were always kept separate from Mr Pantelin’s, and also the fact that she opened a bank account in the names of herself and Mr Pantelin in April 1998.
Whilst acknowledging and allowing for the fact that Ms Doan’s affidavit of June 2007 was prepared by her solicitor, I consider that I can take into account the contents of it when considering Ms Doan’s ability to understand or not business and financial transactions.
Another example is the apparent inconsistency between her affidavit and her evidence at trial as to what monies she gave to Mr Pantelin, when she gave whatever she did, and the reason or reasons why she gave any such monies. The details of all of these matters differed in her evidence and in her affidavit.
Yet another example is the apparent inconsistency between her affidavit and her evidence as to what, if anything, she gave her brother and for what. In her affidavit she states that she paid her brother from $40,000 she had received from a motor vehicle claim whilst in her evidence she said that she paid her brother this sum whilst later she said that she did not as she did not have any money at the time and made arrangements to pay him by instalments.
In Ms Doan’s Defence in this court it is stated that in ‘early in 2005, and in any event, prior to April 2005’ she and Mr Pantelin ‘became estranged’. The Defence does not refer to Mr Pantelin leaving the family home at Woodville Gardens then, or at any time. Ms Doan’s affidavit in June 2007 refers to an agreement between she and Mr Pantelin that was reached by February 2005 that she would pay him $30,000 to leave the house. That money was apparently paid in June 2005. The affidavit does not refer to if or when Mr Pantelin left the family home at Woodville Gardens.
Both the Statutory Declaration dated 3 November 2005 (Exhibit P12) and the Memorandum of Transfer dated 4 November 2005 (Exhibit P11) give the address of both Ms Doan and Mr Pantelin at the Woodville Gardens house.
Mr Pantelin’s address on the Deed dated 5 April 2005 (Exhibit P3) is the Woodville Gardens address.
A facsimile from the Office of Consumer and Business Affairs addressed to Mr Pantelin and dated 14 April 2005 is addressed to him at the Woodville Gardens house (Exhibit P1, page 62).
A Certificate of Cremation relating to Mr Pantelin, who is said to have died on 17 March 2006 and been cremated on 20 March 2006, includes a statement that Mr Pantelin’s ‘last place of abode is recorded as’ the Woodville Gardens address (Exhibit P1, page 64).
Exhibit P1 includes several letters to Mr Pantelin addressed to the Woodville Gardens house during 2005 up to 15 August 2005.
I do not refer to these matters as reliable evidence that Mr Pantelin was living at the Woodville Gardens house until November 2005. Ms Doan’s evidence was that Mr Pantelin would come to the Woodville Gardens house after February 2005 to collect his mail. I consider I can use the evidence to which I have referred, together with Ms Doan’s oral evidence, as indicating that Mr Pantelin’s attendance at Ms Doan’s house at Woodville Gardens was not rare or even sporadic. I consider that this evidence indicates that Mr Pantelin used the Woodville Gardens address as his postal address and the address which he held out to be his residential address. I do not know what Mr Pantelin's’ facsimile number was and whether a facsimile addressed to him at the Woodville Gardens address was received at a facsimile machine in the Woodville Gardens house or elsewhere.
Ms Doan’s evidence before me clearly was that in about early 2005 she paid Mr Pantelin $30,000 to get him off the title to the Woodville Gardens property, although it was a notional $30,000 which in fact comprised a payment of $20,000 to Mr Pantelin and a payment $10,000 to her brother being an amount owed by Mr Pantelin to her brother. She said that Mr Pantelin wanted to be paid some money because he owed ‘a lot of money from all the other bills’. In her affidavit of June 2007 Ms Doan refers to having reached the end of her patience with Mr Pantelin by February 2005 and that there was then an agreement between the two of them that she would pay him $30,000 to leave her and the house. She refers in her affidavit to that sum relating, at least in part, to the funding she had provided to Mr Pantelin in his business as a builder in respect to other people’s property. She stated that she paid Mr Pantelin $20,000 in June 2005 and $10,000 to her brother at some unspecified time.
Furthermore, Exhibit P11 and Exhibit P12 indicate that the transfer of Mr Pantelin’s share in the Woodville Gardens house to Ms Doan occurred in November 2005 for no monetary consideration.
It is difficult to rationalise this evidence with the oral evidence I heard at the trial.
Another aspect of the evidence to which I have just referred is that it bears upon the state of the relationship between Mr Pantelin and Ms Doan in the early months of 2005 when Ms Doan’s Defence claimed that the two of them ‘became estranged’, and when the most important document in this matter, the Deed, was signed, or at least a page of it was signed by Ms Doan apparently on 5 April 2005.
Ms Doan’s evidence at the trial was that by at least April 2005 she and Mr Pantelin had broken up and he had left the family home at Woodville Gardens in February/March 2005. She had provided considerable funds to him which he had not repaid. Funds had also been supplied to him by her parents and by her brother which had not been repaid. She had no confidence in Mr Pantelin ever finishing the Woodville Gardens house, she did not trust Mr Pantelin or have any confidence in him repaying any of the money he had borrowed from her and her family. She and her parents were angry about the fact that he had not finished the house and had not paid back any of the money given to him. It is not clear what her evidence was as to when she paid him some money to get him off the Woodville Gardens title.
Further, Ms Doan’s evidence was that when Mr Pantelin came to her salon at Flinders Park with the document it was against this background and that she did not trust him or rely on him.
An issue in this case is why would Ms Doan, in those circumstances, sign any piece of paper presented to her by Mr Pantelin in her salon when he arrived unexpectedly, when she had customers waiting, when she did not trust him, when she had got him out of her house and when Mr Pantelin appeared to her, on some of her evidence, to be concealing some of the document from her, when she saw no writing on the document other than the printed part of it and when she was being asked to ‘witness’ that she knew Mr Pantelin to be a person she knew.
Ms Doan’s case is, at least on what is written in her Defence, that Mr Pantelin asked her for her signature and when she enquired as to the reason why he replied that he needed to apply for insurance and for that purpose he needed a verification of his identity by someone who knew him. At one point in her evidence Ms Doan said that she did not ask Mr Pantelin any questions. Further, she did not earlier refer to the fact that Mr Pantelin had to apply for ‘insurance’, although later in her evidence she agreed with that, but later still seemed to retreat from that when asked whether that meant that she understood that the document had something to do with Mr Pantelin wishing to apply for insurance and that she, in some way, was signing a document upon which someone might rely for that purpose.
I now refer to some cross-examination of Ms Doan by Mr White that commences on page 44 of the transcript and concludes at page 60.
Over those pages it was my impression and my view that Ms Doan gave a careful, informed and apparently understanding account of the events about which she was asked. She seemed to understand a significant sequence of questions on topics that were not particularly simple, and she seemed to answer them appropriately without apparent difficulty. These included questions concerning the fact that she had negotiated with Mr Pantelin to get him off the title of the Woodville Gardens property; that she had arranged for documents to be prepared to effect that; that she understood that a Statutory Declaration needed to be prepared to avoid stamp duty; that she understood that when she was signing documents she was swearing to the truth of their contents; that she had given an undertaking not to deal with her Woodville Gardens property while the Trustee in Bankruptcy proceedings were proceeding; that she understood her settlement with Mr Pantelin’s Trustee in Bankruptcy who claimed an interest in the house included that a payment by her to the trustee would reserve to her the right to claim in her deceased husband’s bankruptcy; that she understood that her lawyers had filed a Defence in this action, that she appeared to read the Defence when it was put before her in the witness box, that she had read it before when she had been shown it by her solicitors and that she read aloud one paragraph in the witness box; that she had a lease for her beautician salon in Campbelltown in Sydney; that she had signed leases for her beautician salons both at Welland and at Flinders Park; that in respect of her salon at Flinders Park she kept records of income and expenses being the accounts of the business, she filed tax returns which she checked and signed and she produced tax assessments (being Exhibit P16); and that she received Family Assistance payments (being Exhibit P17).
After this cross-examination, which I have categorised in the way I have, Mr White moved to question Ms Doan about the time she had said Mr Pantelin had come into her salon at Flinders Park and asked her sign a paper. I have already referred to some of the evidence she then gave from page 60, line 8 to page 86, line 3. My view was and is that Ms Doan’s evidence before page 60, and her evidence after that to page 86 was in stark contrast each to the other. I am referring here to the contrast in the way she gave her evidence in the latter part of that evidence compared with the earlier part. In the latter she appeared to me to be unsure as to how she thought she should answer Mr White’s questions such that they were consistent with what she had previously said in her evidence, with what appeared in her Defence, and with what she thought would be best for her case. She did not seem to me to be answering the questions naturally and in a straightforward way. Her evidence about ‘insurance’ was particularly unconvincing. I thought that she was consciously trying to avoid adopting any suggestion by Mr White which might lead her to accept that she understood that the document had something to do with insurance, and that an insurance company might rely on her signature in some way to the benefit of Mr Pantelin or to her detriment.
There were particular versions of her evidence on various parts of it relating to her signing of her page of the Deed on which I could find that she signed a single piece of paper where she was unaware of anything that was on it; where she did so when Mr Pantelin was attempting to cover up a significant part of the document so that she could not see what was on it; where the paper contained only black printing and no handwriting at all, whether in print or otherwise; where she signed her signature because she thought she was signing to indicate that she knew Mr Pantelin; where she signed the paper to get him out of her shop because she did not want him there and did not wish that he disturb her clients; and when she did not trust Mr Pantelin.
Ms Doan’s evidence in re-examination is relevant to the matters to which I have just referred, insofar as they are relevant to my assessment of her credibility and reliability.
Ms Doan was re-examined about the documents she had told Mr White she had signed in respect of business transactions. She confirmed that she had a lawyer draw the lease of the salon she had in Sydney. She said that she took advice from him about the terms of the lease. She confirmed that she had a conveyancer for the lease of her Welland salon. That person gave her advice about the lease and explained it to her before she signed it. When asked how long she had the lease before she signed it, she answered: ‘I normally take home for a couple of day and go through it and then, yeah’.
Ms Doan then confirmed that she had a conveyancer in relation to her salon at Flinders Park. She said, referring to the lease, that she ‘took a week to take it home’. She said that the conveyancer drew the lease and when asked whether she was given the lease before she signed it, she said that she was and she added: ‘We take it home for a week and go through it, we got seven day to sign it’.
The ‘legal’ documents to which Ms Doan was referring in re-examination were documents that came into existence both before and after the early months of 2005 when the Deed was signed, apparently on 5 April 2005. They indicate that Ms Doan not only had ‘legal’ documents explained to her but that she also took them home for some time to go through them.
Returning to Ms Doan’s evidence regarding the page of the Deed that she signed, I earlier referred to Mr White’s cross-examination of her when he suggested that the handwriting (or hand printing) at the top of the page that Mr Pantelin signed was not his. Ms Doan had answered: ‘I don’t know his handwriting much’. Shortly after that Ms Doan agreed with Mr White that she would recognise Mr Pantelin’s handwriting if she saw it. Mr White then directed her attention to the handwriting on the page she signed. He directed her attention to the printed handwriting in blue at the top and at the bottom of that page. She said that handwriting was the same at the top and at the bottom, and was Mr Pantelin’s handwriting.
There was evidence before me of documents which I am prepared to infer and find were written by Mr Pantelin, and were written by him within months of April 2005. One example is in Exhibit P1, pages 7 – 14. This is Mr Pantelin’s application for renewal of insurance which is apparently signed by him and dated 7 December 2004. On the front page it appears that Mr Pantelin has printed his name and the Woodville Gardens address. On page 9 he has also printed Ms Doan’s name, at least in part.
Ms Doan identified the blue printing on both execution pages of the Deed as being Mr Pantelin’s. Mr White tried to ask Ms Doan other questions regarding handwriting, including questions regarding a comparison of her own handwriting on her Proof of Debt (Exhibit P13) and the two sets of initials ‘DN’ on her signing page of the Deed (Exhibit P4). It was submitted, in objection, that that was ultimately a question for me, and on that basis and understandingly I upheld the objection.
I am not a handwriting expert but to my inexpert eye the handwritten printing at the top and at the bottom on both the signing pages of the Deed looks little like Mr Pantelin’s handwriting, or to be more precise his printing, on pages 7 and 9 of Exhibit P1. I consider and find that Mr Pantelin probably did not write the blue printing at the top and at the bottom of the two signing pages of the Deed.
I have already referred to Ms Doan’s evidence when she initially said that ‘I don’t know (Mr Pantelin’s) handwriting much’. Shortly after that, when looking at the same document and having agreed with Mr White that she had seen Mr Pantelin sign and write on various occasions and that she would recognise his handwriting if she saw it, she said that the signing pages of the Deed contained his handwriting. As I have found that they did not, that means either Ms Doan is mistaken about that or she said that because she considered that her saying that would be better for her case. I find that it was the latter, and I am influenced in that finding by her initial assertion that she did not know Mr Pantelin’s ‘handwriting much’.
As to the initials ‘DN’ on Ms Doan’s signing page of the Deed, her evidence was that she did not put those initials there. She did not say that they were in Mr Pantelin’s hand, or that he must have put them there. She conceded that these initials are in black ink and that her signature is in black ink. Her evidence was that if she put her initials on a document they would be ‘ND’, for ‘Nga Doan’.
Ms Doan said in her evidence that Vietnamese people often write their name with the surname or family name coming first. She was not asked about her signature on her signing page of the Deed (nor, for that matter, on Exhibits P11, P12, P13 or P18), and in particular she was not asked in what order she signed her name. When it was put to Ms Doan that if she, as a Vietnamese person, was writing initials she would write them with the first initial of her family name first and the first initial of her given name second, so it would be ‘DN’ for ‘Doan Nga’, she answered: ‘No, because we come to Australia now we change the first name first and the surname come after. So initials now ND all my documents’. That evidence, at least with respect to Ms Doan writing more than her initials, is consistent with Exhibits P13 and P18, although in the case of Exhibit P18 it is not for the witness of it whom I assume was a family member of Ms Doan.
I consider that the ‘D’ and the ‘N’ of the initials on Ms Doan’s signing page of the Deed are both quite similar to the same letters on both Exhibits P13 and P18. I consider that this is particularly so regarding the initial ‘N’, which is very similar on each of the three documents.
When I consider that with the fact that the initials on the Deed appear to me to be made by the same pen as Ms Doan’s signature, or it is at the very least in the same colour as the signature when all the other marks on the page are made with a blue pen, I conclude and find that Ms Doan probably put her initials on her signing page and did so by reversing them by placing the initial of her family name, Doan, first followed by the initial of her given name, Nga.
I have come to the above conclusion and finding, not only because of the matters to which I have just referred, but also because I am not satisfied that I can rely on Ms Doan’s evidence alone for any finding which is crucial to her defence.
I referred earlier in this judgment to various matters concerning Ms Doan’s evidence, including that I have to be satisfied that she is a truthful and reliable witness before I can make findings that are relevant to and vital for her to make out either of her two defences to the plaintiff’s claim, being the defences of Garcia unconscionability and non est factum.
Not only are both of these defences equitable defences, I only have Ms Doan’s evidence on which to make findings which are crucial to make out those defences. I am not satisfied that Ms Doan has been truthful in her evidence before me on those matters that are relevant and crucial to her establishing either of the defences she raises and upon which she relies.
I am not satisfied as to where the probabilities are as to the circumstances in which Ms Doan signed the Deed dated 5 April 2005. I am not even able to make a finding as to where she probably was when she signed it. I do not believe her evidence that there is no writing or markings of any sort on her signing page other than the black printed script on it when she signed it. I am satisfied and find that she signed her signing page and initialled it in two places. I am satisfied and find that the writing was on the signing page when she signed it and initialled it, and that when she did so two sub-paragraphs were deleted with the same pen as the printed names and other information, which included her full name and her address.
I have, of course, not heard any evidence from Mr Pantelin. I could not have as he died about a year after the Deed was signed. I am satisfied and find that the written printing on both signing pages was not put on them by him. This signing page indicates that he is said to have executed it at Adelaide on 5 April 2005 Ms Doan’s signing page indicates that she is said to have executed it at North Adelaide on 5 April 2005. She has not satisfied me that she probably did not execute it at North Adelaide.
I am satisfied and find that Ms Doan would probably not have executed the page she signed had she not known what it was she was signing. I can make no findings as to what she was told and by whom about the document and, if it was by Mr Pantelin, what he told her or what she asked about it. I am satisfied and find that Ms Doan would not have signed it without at least asking the person who presented it to her what it was that she was signing; what the purport of it was, and without indicating that she wished to consider it, or at least to speak to someone (possibly her brother), about it. This was the approach she had adopted on occasions before this occasion and that she adopted after this occasion.
I am also not satisfied on the evidence of Ms Doan that she was only presented with one page to sign, that being her signing page. I reject the submission that the number of staple holes that appear in the top left hand corner of Exhibit P3 supports Ms Doan’s evidence that she was only presented with one page. I am prepared to and do infer that Exhibit P3 has been stapled, unstapled and re-stapled several times before it came to be in its current state.
At one point in her evidence Ms Doan seemed to be suggesting that Mr Pantelin may have folded over a larger document and only presented her with the execution page.
I am not satisfied on the evidence of Ms Doan that she was only presented with one page and that she was not presented with the whole document. I am satisfied and find that she was presented with the whole document and that the document presented to her was Exhibit P4, although it may then have been opened at the page on which she had to sign.
I am not satisfied that Ms Doan did not understand the purport and effect of the document she signed and I am not satisfied that she did not know what she was giving, by way of a guarantee and indemnity, when she signed it.
I am not satisfied that the probabilities are that Ms Doan’s lack of any understanding caused her to sign the Deed and thereby enter into the guarantee and indemnity. I consider that the probabilities are that she did understand what she was doing, and that she fully understood the purport and effect of the Deed.
Although I cannot find that Ms Doan received any direct financial benefit from signing the Deed, I cannot exclude the probability that she considered that there was some indirect financial benefit to her because, by her giving the guarantee and indemnity, that would allow Mr Pantelin to keep trading in his building business and to maintain some support for her and their daughter in some way or ways unknown to me.
There is no doubt that the plaintiff did not itself take steps to explain the Deed to Ms Doan. The circumstances here are such that the plaintiff did not issue the insurance cover concerned here in April 2005 after the Deed was signed, and the plaintiff did not, until October 2007, have transferred to it rights and benefits in respect of the insurance and the related Deed.
In cases such as this, where married couples are concerned, a lender is to be taken to have understood that a wife may repose trust and confidence in her husband who may not fully and accurately explain the purport and effect of a transaction to his wife.
In this case I am satisfied and find that Ms Doan did not have trust and confidence in her husband at the time she signed the Deed. I am satisfied and find that Ms Doan would not have signed the Deed unless she had had it fully explained to her and unless she had a full and complete understanding as to what it was she was signing and what the purport and effect of it may be for her in the future. I am satisfied and find that this occurred here, although I cannot find who it was that told Ms Doan what it was and what the effect of it was. It may have been someone at North Adelaide where she signed the Deed. I cannot discount that as a possibility.
Conclusion
I have found that Ms Doan would not have signed the Deed unless she had had it fully explained to her and unless she had a full and complete understanding of what she was signing and what the purport and effect of it may be for her in the future.
I have found that Ms Doan understood what she was doing in signing the Deed and that she fully understood the purport and effect of it.
On these findings neither a Garcia unconscionability defence nor a non est factum defence arises, nor could either be made out.
There will be judgment for the plaintiff.
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