White v Woodward

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2017 00001

NOLA WHITE	Plaintiff
v
WILLIAM WOODWARD	First Defendant
and
THE REGISTRAR OF TITLES	Second Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 – 21 February 2020
DATE OF JUDGMENT:	28 May 2020
CASE MAY BE CITED AS:	White v Woodward
MEDIUM NEUTRAL CITATION:	[2020] VSC 258

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PROPERTY — Contract of sale of land — Whether defendant/vendor a party to the contract alleged by plaintiff/purchaser— Whether vendor’s signature genuine — Whether purchaser has paid purchase price as alleged — Whether purchaser entitled to specific performance.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	D Connors	Rothwell Lawyers
For the First Defendant	G Lubofsky	Andrew Croxford & Associates
For the Second Defendant	No appearance.

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Evidence............................................................................................................................................... 1

Onus and standard of proof............................................................................................................. 3

Primary findings of fact.................................................................................................................... 4

The failed contract......................................................................................................................... 5
The November memorandum..................................................................................................... 6
The disputed contract................................................................................................................... 9

Expert evidence................................................................................................................................. 15

The circumstances of the creation of the contract...................................................................... 20

Gregory Charlesworth..................................................................................................................... 30

Further signed documents.............................................................................................................. 32

Has Ms White paid the purchase price?...................................................................................... 35

Analysis.............................................................................................................................................. 41

Conclusion......................................................................................................................................... 45

HIS HONOUR:

Introduction

The plaintiff, Nola Joy White (Ms White), as purchaser, sought specific performance from the first defendant, William (Bill) Roy Woodward (Mr Woodward), as vendor, of a contract of sale of the land described in certificate of title volume 11143 folio 712, which is situated on French Island in the State of Victoria.

Ms White sought specific performance of a written contract of sale dated 20 February 2012. Ms White’s formal demand of Mr Woodward for specific performance of the contract made on her behalf by solicitors was dated 2 November 2016.

Gregory Charlesworth (Mr Charlesworth), Ms White’s de facto husband, negotiated the contract on her behalf with Mr Woodward. He is currently serving a sentence for fraud convictions in a Western Australian prison and gave evidence from that location by video link.

There are two issues for resolution.

First, was Mr Woodward bound by the contract? He contended that his signature had been forged and that he did not agree to sell the land to Ms White, or Mr Charlesworth, on the terms found in the contract.

The second issue was whether, if Mr Woodward was bound by the contract, had Ms White performed her contractual obligations and demonstrated that she is entitled to specific performance by transfer of title to her?

Evidence

In addition to the tender of a number of documents, Ms White gave evidence and relied on evidence from Mr Charlesworth, Mr Le Serve (a resident of French Island), Mr Vincent Ryan (a solicitor), Mr David Porritt (a pharmacist) and Mr Neil Holland (a handwriting expert).

The defendant gave evidence and called evidence from a licensed estate agent, Mr John Phoenix of RT Edgar Flinders, and a handwriting expert, Mr John Ganas.

Before setting out the findings of fact I make on the basis of this evidence, I make the following observations about those witnesses.

I found Ms White mostly to be a credible witness, although her understanding of events was largely drawn from what she was told by Mr Charlesworth, or based upon an unimpressive recollection of distant events. She was not a reliable witness.

I reject Mr Charlesworth’s evidence, save in those circumstances where it carried an undeniable ring of probability or was independently corroborated. Mr Charlesworth was not an honest witness. In addition to lacking credibility, he had a poor recollection, no access to contemporaneous documents, and an inability to be consistent. He was unreliable. He told lies. I will refer to examples illustrating these characteristics of his evidence throughout these reasons.

Mr Woodward was a credible witness, doing his best to honestly explain circumstances that occurred many years ago. Mr Woodward is dyslexic. He can’t read figures and has a lot of trouble reading words. He can hardly write and does not use computers or the internet. His recollection of events was often unsatisfactory. Aware of his limitations, his preference was to work through estate agents and solicitors when dealing with a matter such as a land sale. I could not regard him as a reliable witness after making due allowance for his disability.

These three unreliable witnesses suffered a significant disadvantage in being asked to recall in 2020 events that occurred between 2009 and 2012. This forensic disadvantage was significant for Mr Woodward, particularly with his disability, but self-inflicted for Ms White and Mr Charlesworth, who proffered no explanation for a substantial delay of more than four years before specific performance was first demanded and a court proceeding foreshadowed.

Judges have consistently warned of the fallibility of human recollection after the passage of considerable time, and of the utility in careful analysis of the contemporaneous documentary record.[1]
[1]Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, 431; Watson v Foxman (1995) 49 NSWLR 315, 319; Thomas v SNP (International) Pty Ltd [2010] NSWSC 822, [23]; Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [15]–[23]; Linfield Developments Pty Ltd v Shuangxing Development Pty Ltd [2016] NSWSC 68, [10]–[14].

I accept the evidence of the solicitor, Mr Ryan and the estate agent, Mr Phoenix, each of whom was credible and mostly reliable, because they were able to refer to contemporaneous documents when needed. The pharmacist, Mr Porritt, identified himself as an attesting witness of a statutory declaration appearing to be made by Mr Woodward. Although he had no specific recollection of an occasion of witnessing Mr Woodward’s signature, I saw no reason not to accept his evidence of his usual procedures when attesting statutory declarations. I took his evidence into account, although, for the reasons identified below, I considered its utility to be limited.

As is common, the contemporaneous written records created before the threat of litigation were a more reliable indicator of what occurred than the oral evidence. I have mostly drawn my findings of fact from the documents tendered in evidence. That said, I have maintained a healthy scepticism about the reliability of some of these documents. That scepticism arises, firstly, from the very nature of the allegations of forgery that lie at the heart of this case, and from the curious features of some of the documents, including their unexplained provenance, that raise questions about their authenticity. Other documentary evidence, such as entries in bank statements, have been propounded as reliable, notwithstanding, ultimately, that what has been relied on was oral evidence about the true nature of a payment recorded in a bank statement with a different or inconsistent descriptor. I have had regard to the whole of any particular entry in a document produced as a legitimate banking record, and have proceeded on the basis that the banking record was compiled from information provided contemporaneously. Entries made in bank records were accepted at face value, absent persuasive oral evidence of an alternative explanation of a transaction.

Onus and standard of proof

Self-evidently, Ms White bore the onus of proof in this proceeding. The critical allegation that was raised was the defendant’s denial that he signed the contract. Effectively, he alleged that his signature was forged, although the proposition was put in the negative. Ms White must prove, on the balance of probabilities, that Mr Woodward was a party to the contract. Mr Woodward neither alleged, nor needed to prove, who forged his signature.

In determining whether I am satisfied that Ms White has proved her case on the balance of probabilities, I may take into account the nature of the defence and the gravity of the matters alleged.[2] I am satisfied that Mr Woodward discharged an evidential onus by denying that he made the agreement alleged and denying that he signed the contract as alleged. The onus of proof does not shift from Ms White, but the standard of proof may be qualified, having regard to the gravity of the questions to be determined.
[2]Evidence Act 2008 (Vic) s 140(2).

The test is whether Ms White affirmatively satisfied me, on the balance of probabilities, that Mr Woodward was a party to the contract she seeks to specifically perform. I cannot be satisfied by inexact proofs, indefinite testimony or indirect references.[3] The High Court explained the rational for this approach in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.[4]
[3]Briginshaw v Briginshaw (1938) 60 CLR 336, 362; Helton v Allen (1940) 63 CLR 691, 701; Rejfek v Mcelroy (1965) 112 CLR 517, 521; Bannister v Walton (1993) 30 NSWLR 699, 711–12.
[4](1992) 67 ALJR 170, 170–1.

Primary findings of fact

Mr Woodward, who is retired, had worked as a self-employed contractor, particularly in concrete pumping. In retirement, he ran a small farm on French Island and volunteered teaching gardening skills at a school for children with special needs in Frankston.

Mr Woodward moved to French Island in about 2001 and purchased land that he later subdivided into three blocks. The property the subject of this dispute was Lot 1 on that plan of subdivision. Relevantly, there was a history between Mr Woodward and Mr Charlesworth touching the land resulting in three identifiable agreements.

The failed contract

Before the plan of subdivision was registered, Mr Woodward decided to sell the land that would later become Lot 1. The sale was listed through Mr Phoenix at RT Edgar Flinders, who erected sale boards on the land and placed other advertising on the internet.

Mr Charlesworth, then residing in Western Australia, saw the listing. In April 2009, Mr Charlesworth agreed to buy the land for $255,000. David Gibbs & Associates, Mr Woodward’s solicitor, prepared a contract of sale (2009 contract). The contract provided for an initial deposit of $13,550 payable on 1 June 2009, with the balance of the deposit of $114,000 payable on 1 August 2009 or earlier as agreed. The contract fixed the day of settlement as 1 June 2011.

On 1 June 2009, Mr Charlesworth defaulted in payment of the initial deposit. Later that month, the plan of subdivision was registered. David Gibbs & Associates warned Mr Charlesworth that Mr Woodward would issue a notice of rescission if the initial deposit and the balance of the deposit was not paid by 3 August 2009.[5] Mr Woodward intended to discharge a mortgage on the land, in favour of RMBL Investments Ltd, with funds drawn from the deposit. However, Mr Charlesworth was unable to provide the necessary funds to his solicitor and the deposit, in total, remained unpaid.
[5]1 August 2009 was a Saturday.

Mr Woodward had incurred advertising and surveying expenses of $5,032.50. Mr Phoenix’s commission on the sale was $12,045.

As foreshadowed, on 5 August 2009, David Gibbs & Associates served a notice of rescission. Mr Charlesworth did not remedy his default. The 2009 contract was terminated because Mr Charlesworth paid no monies at all. There were no funds forfeited to Mr Woodward as vendor. Mr Phoenix was not paid and Mr Woodward continued servicing the mortgage. Mr Charlesworth has never contested that this contract was validly terminated because of his default and that Mr Woodward consequently incurred expense. Ms White accepted that this contract had been rescinded.

Three matters can be noted from this failed sale. Mr Charlesworth was content to pay $255,000 for the land. He had difficulty raising funds to complete the purchase. Mr Woodward, because of his disability, preferred to deal through an estate agent and a solicitor.

The November memorandum

Later in 2009, Mr Charlesworth persuaded Mr Woodward that he was then able to obtain funds and wished to proceed with the sale. Mr Woodward wanted the matter handled by his estate agent. Mr Woodward and Mr Charlesworth met with Mr Phoenix on 17 November 2009, when a memorandum of their understanding was prepared by Mr Phoenix (November memorandum).

Both Mr Woodward and Mr Phoenix recollected that Mr Charlesworth attended at the office of RT Edgar Flinders and signed this memorandum. The November memorandum had been drawn up prior to the meeting and was based on discussions that Mr Phoenix had with both men. Mr Phoenix was keen to document the agreement described to him because of Mr Charlesworth’s prior history of promise and default. Mr Phoenix clearly recalled that Mr Charlesworth both attended his office and signed the memorandum, because he did not expect that he would do so and had been pleasantly surprised that he had.

Mr Charlesworth claimed that he had no recollection of these events, as at the time that the November memorandum was said to have been signed, he had recently undergone bypass surgery. I make no finding whether he had undergone bypass surgery, but I consider his stated want of recollection of this second round of negotiations to be a false denial of them. The memorandum was prepared and signed as described by Mr Phoenix. Ms White was not familiar with the memorandum and had no recollection of being told about this agreement. She was not invited to state whether she knew of Mr Charlesworth’s bypass surgery, or of a trip by him to RT Edgar Flinders in November 2009.

Mr Charlesworth claimed to recall agreeing, at a later time, to pay Mr Woodward $20,000 for wasted expenses. He also claimed that he paid this sum to Mr Woodward and did not include it in the $150,000 payment that I will explain in due course.

The content of the November memorandum confirmed that Mr Charlesworth was experiencing difficulties in raising the purchase price and that this was his principal concern. He was still interested in paying the agreed price. Mr Woodward’s interest in dealing through his estate agent and solicitor was again stressed.

Under the November memorandum, the sale price remained $255,000, but the proposed terms of payment were unusual:

(a) Mr Woodward would extend his mortgage for a further 12 months and Mr Charlesworth would make 12 monthly payments of $5,000 to be applied first against the finance charges on the mortgage with the balance to be considered ‘reduction of principal paid to the vendor’. In addition, Mr Charlesworth agreed that a total of $120,000 (including the $60,000 in monthly payments) would be paid to Mr Woodward by the end of the 12 month period, when the mortgage would have been repaid. Mr Woodward would extend vendor finance for the balance owing for a further period of two years.

(b) Further, Mr Charlesworth agreed to pay $20,000 in compensation for delay, interest paid and finance charges, extra legal and borrowing costs, lost opportunity, and pain and suffering resulting from the 2009 contract not proceeding to settlement. That sum was to be paid in two instalments of $10,000 in December 2009 and January 2010. A previous payment by Mr Charlesworth of $2,333 for compensation was acknowledged, and agreed to be deducted from the January 2010 instalment.

The November memorandum plainly contemplated that it would not come into force until contracts had been drawn up by Mr Woodward’s solicitor, Mr Gibbs. It also contemplated that all of Mr Charlesworth’s payments would be made to the RT Edgar Flinders trust account, from which payments would be made directly to the mortgagee.

Mr Charlesworth‘s offer to finance Mr Woodward’s mortgage for 12 months was unusual. It was consistent with his awareness that Mr Woodward had intended to pay out the mortgage from the deposit payable under the 2009 contract. By offering to pay the interest and part of the principal on the mortgage, Mr Charlesworth extended his opportunity to purchase the property. His proposal permitted him time to obtain funds to discharge the mortgage. Once the mortgage was discharged, Mr Woodward could then extend vendor finance to Mr Charlesworth.

An email that passed from Mr Phoenix to Mr Gibbs on 4 December 2009 reported that Mr Woodward and Mr Charlesworth had agreed to vary the schedule of proposed payments to require $35,000 to be paid by the end of February 2010, $120,000 to be paid by the end of February 2011. The evidence was not clear as to when the balance was to be paid, perhaps not until February 2013. Mr Charlesworth falsely claimed that he had no recollection of this variation, as he was convalescing following his operation.

A contract was not immediately drawn up. By April 2010, RT Edgar Flinders had not received any payments from Mr Charlesworth. Mr Gibbs wrote to Mr Phoenix, setting out his understanding of the agreement to be documented. He invited Mr Phoenix to confirm the agreement with Mr Charlesworth, stating that once he had been advised by Mr Phoenix that Mr Charlesworth would proceed on the basis set out and that the $35,000 partial deposit had been paid, formal contracts would be prepared.

Soon after, in June 2010, Ms White visited French Island for the first time. The land still carried the RT Edgar ‘for sale’ sign.

On 22 August 2011, Mr Phoenix wrote to Mr Gibbs in response to his enquiry recording his understanding from Mr Woodward that ‘the matter has lapsed, and that the property has been withdrawn from sale’.

In submissions, Ms White contended that Mr Woodward knew by 31 January 2010 that the November memorandum would not be proceeding, as Mr Charlesworth was in default from this date. I rejected this submission, as the contention had not been put to Mr Woodward in cross-examination. As I will later explain, the subsequent conduct of Mr Charlesworth in making payments to Mr Woodward (all after January 2010) is explicable because he believed that the November memorandum was the operative agreement between the parties.

The disputed contract

On 20 February 2012, a further contract of sale in respect of the land was created, naming Mr Woodward as vendor and Ms White as purchaser. This is the contract that Mr Woodward disputed and of which Ms White seeks specific performance. Neither, Mr Phoenix nor Mr Gibbs had any involvement with this contract.

The terms of the contract were, again, unusual. The purchase price was now $75,000 and was payable in full by 15 January 2012,[6] but the particulars of sale noted that this amount had already been paid, so that a nil balance was payable at settlement on 29 March 2012. However, Ms White alleged an undocumented side deal, by which Mr Charlesworth had paid a further sum, approximately $75,000, to Mr Woodward or to creditors at his direction. The total amount that Ms White contended Mr Woodward agreed to accept for the land was accordingly ‘approximately’ $150,000.
[6]The $75,000 is described as a ‘deposit’ of the purchase price.

Ms White said that Mr Charlesworth negotiated the terms of the contract, and all she did was initially inspect the land and then later sign documents.

Mr Woodward denied any agreement to a sale on the terms alleged by Mr Charlesworth, Ms White, or as documented in the contract.

Mr Charlesworth explained how the sale was negotiated:

The agreement was that if all infrastructure was going to be done by us, and that is fencing and everything like that, we agreed at $150,000. $75,000 was going to be on the contract which would be – go through. That suited him for whatever reason, that’s what he wanted to show for his thing and the other 75 would go into however he wished it to be paid or to be bought or whatever and it would just be paid through so it would work to that value. That suited us because that could mean we could – you know, if he wanted something bought or something that didn’t matter either way, it would still go through the accounts anyway so it didn’t matter at all.

There appeared to be at least two versions of the particulars of sale and the attestation clause. The first version purported to be signed by Ms White and was dated in handwriting ‘15/1/2012’. It describes her as purchaser as trustee for the Nerabil Family Trust. The term as to price in the particulars of sale included the acknowledgement that $75,000 was paid on ‘15/1/2012’. The settlement date was ’29/3/2012’. This version was not signed by Mr Woodward.

The second version identified in handwriting the date of Ms White’s signature as ‘15/02/2012.’ The handwritten date appeared altered by writing a ‘2’ over a ‘1’, having the effect of changing the month of execution from January 2012 to February 2012. The term as to price in the particulars of sale identified the deadline for payment of the $75,000 ‘deposit’ as ‘15/1/2010’, two years earlier than the first version.[7] The settlement date has been varied to ‘28 April 2012’, a month later than the first version. It appeared that the word ‘April’ overwrote the number ‘3’.
[7]This amount is acknowledged as having been paid, consistent with the first version of the contract.

Ms White’s evidence was that the only mark she added to the contract was her signature and her initials, and that all of the other handwriting was that of Mr Charlesworth. The document that she signed had not been signed by Mr Woodward when she signed it. The second version appeared to have been signed by Mr Woodward on 20 February 2012, with his name being printed underneath his signature.

On 14 March 2012, Mr Charlesworth received a valuation report from Paul Snowden, which stated that he valued the land as at 15 January 2010 at $150,000. The report notes that Mr Snowden inspected the land on 2 March 2012. Mr Snowden did not give evidence. Although there was no objection taken to the tender of this document, I do not accept the report as evidence of the true value of the land at that time.

It appears that by 5 April 2012, the second version of the contract of sale was in Mr Charlesworth’s possession. On that day, he spoke to Tegan Hall, a solicitor employed by Mr Ryan’s law practice, Vincent J Ryan. Then he emailed scanned copies of the contract of sale and the valuation to both Vincent J Ryan and Lexus Conveyancing (Lexus). Approximately half an hour later, Ms Hall responded to Mr Charlesworth, informing him that Lexus would act for him and Vincent J Ryan would act for Mr Woodward. Lexus and Vincent J Ryan were both accommodated on the same floor of a city office building.

Mr Charlesworth stated in that email that the ‘deposit/full payment for the land’ was paid in January 2010. He also stated, ‘we waited until now for settlement to allow clear title of the total property owned by the Seller, William Woodward. We will be building a residence on the land’. I do not accept that these statements were true.

On 19 April 2012, Lexus wrote to Ms White confirming her instructions in respect of the contract, noting that the vendor had not provided a section 32 statement.[8] Lexus recommended that Ms White lodge a caveat to protect her interest as purchaser, but that was not done. A section 32 statement was later prepared by Tegan Hall of Vincent J Ryan.
[8]Sale of Land Act 1962 (Vic) s 32.

On 2 May 2012, Vincent J Ryan wrote to Mr Woodward, confirming his instructions to act to settle the contract and asking that he sign the section 32 statement, an instrument of transfer of land, and a goods statutory declaration. This letter was not received by Mr Woodward. A file note recorded a conversation on 16 May 2012 to this effect, indicating that a further copy of the letter would be sent to him.

There was no evidence that Mr Woodward returned the instrument of transfer of land, and the goods statutory declaration to Vincent J Ryan. A copy of a goods statutory declaration dated 28 June 2012 and an instrument of transfer of land, undated, both purporting to bear the signature of Mr Woodward, were found on the Lexus file during the trial. The signature of the person in whose presence Mr Woodward signed the instrument of transfer of land was illegible and that witness was not identified. The goods statutory declaration purportedly signed by Mr Woodward identified the attesting witness as Mr Porritt.

By 5 July 2012, Lexus was in possession of a signed section 32 statement, because it is described as being included by them as an enclosure in a letter to Ms White. That letter notified Ms White that a further $2,751.43 was required from her at settlement to pay stamp duty, lodgement fees and the conveyancing charge. There was no evidence that this sum was provided to Lexus.

Mr Woodward paid out the mortgage on the land in August 2011 when he receive an inheritance of $300,000 from his father’s estate. The discharge of mortgage was registered on 26 August 2011. A title search of the land on 12 April 2012 showed the mortgage as discharged.

Apparently, settlement could not be completed on 30 April 2012,[9] because Mr Woodward had not produced the duplicate certificate of title. On 18 July 2012, Vincent J Ryan wrote to Mr Woodward seeking that document. It was not provided. An undated note on the file copy of this letter reads ‘rang Bill Woodward – he says there’s still $75,000 unpaid’. A second handwritten note reads ‘20/9 rang Bill, he has to pay me $85,000 yet – in 8 days’. The evidence did not provide a more fulsome account of these conversations.
[9]The settlement date in the contract, 28 April 2012, was a Saturday.

It appears that the settlement of the contract then lapsed, and nothing further was done by either Vincent J Ryan or Lexus.

In or about August 2012, Mr Charlesworth and Ms White claimed to have commenced to deal with the land as if they owned it. With their children they moved to French Island initially living in a caravan on the land. Ms White claimed that a concrete slab, a shed, and a temporary dwelling were constructed that became their home from around October 2012. Mr Woodward conceded that Mr Charlesworth had partly erected a shed and wanted to borrow money from him to fit it out. Mr Woodward said Mr Charlesworth put down the concrete slab while he was in Queensland. He noted that it was not in the permitted position determined by the building envelope on the plan of subdivision. I accept Mr Woodward’s evidence that he quite often lent money to Mr Charlesworth.

In September 2016, Mr Charlesworth returned to Western Australia, but Ms White remained in occupation of the land. Mr Woodward characterised this as occupation without an immediate obligation to pay rent, but the basis for it was never satisfactorily explained. On this topic, Mr Woodward was unconvincing. He referred to his desire to have additional children living on French Island and attending the local school to avoid it being closed. Mr Woodward said:

Did you ever think of getting rid of them from the property?---Not really because I knew the school would be disappointed and I sort of just thought I will let it go until they get things sorted out. He always kept on saying that he was going to pay me when the Western Australian Government - right up until he went back.

Ms White agreed with her cross-examiner that she never once asked Mr Woodward to transfer the land into her name, and seemed to believe that title would just be transferred to her because Mr Charlesworth told her they had bought it.

Mr Charlesworth dissembled about the transfer of title. For example:

Mr Charlesworth, when did you first become aware that there was a problem in terms of the purchase of this property?---Basically back at the - you are saying ‘problem’ but I never felt - we were always so open I never felt there was a problem but I knew there was delays when Bill was instructing me that there was issues with the - I believe there was issues with the titles and that there was just issues that he was getting sorted out. I didn't have any reason to disbelieve it.
When did you first become aware that Mr Woodward was refusing to transfer the property then?---As I said, after he visited Nola and I was told so in prison.

I am satisfied that in the period of occupation up to September 2016, Mr Woodward, Mr Charlesworth and Ms White were friendly and accommodating, but relations deteriorated when Mr Charlesworth was jailed. Ms White found this deterioration inexplicable.

Mr Woodward drove Mr Charlesworth to the airport when he was returning to Western Australia and was surprised by Mr Charlesworth saying he thought he was about to go to jail:

What did he tell you in the car ride?---’Listen, I think I'm buggered, actually. I think I'm going to gaol’, which was news to me. He said he had me buggered too which was - he said, ‘I've been signing your name all over the place’ and this is what he said.
…
Did he say anything about his skills in signatures?---He just said, ‘I've signed your name all over the place. Once you've seen someone's signature signed it's hard to tell the difference’, he said, yes.

Mr Charlesworth described this evidence as an absolute lie, but I do not accept his denial as truthful.

On 9 September 2016, Mr Charlesworth was sentenced to a term of imprisonment on fraud charges, after having been committed for trial on 9 January 2015. Mr Charlesworth was indicted with 12 counts, each alleging that he had gained a benefit by fraud or gained a benefit for a company, Hortus Australia Pty Ltd, in the period between 15 April 2011 and 10 April 2012. Mr Charlesworth maintained pleas of not guilty until 13 May 2016. He was sentenced to a total effective term of imprisonment of five years and eight months, and was required to serve three years and eight months before becoming eligible for parole.

Ms White stated that soon after Mr Charlesworth was jailed, Mr Woodward told her that that ‘Greg had another woman in his life and that he owed money to him; that he drained him of his bank account.’ A few days later, Mr Woodward asked Ms White to leave the land, but she refused.

Mr Charlesworth contacted Mr Woodward from jail. He threatened to hold up any sale of the land for years unless Mr Woodward sold it to Mr Charlesworth’s children for $1,000. Mr Charlesworth agreed there was a conversation about the land after he was imprisoned, but he denied that he threatened Mr Woodward about the sale of it. I accept Mr Woodward’s evidence of a conversation to this effect. Mr Woodward had made a note of this conversation at some point that was referred to in evidence. Ms White foreshadowed an objection to this note, but there was neither further reference to it by Mr Woodward nor objection from Ms White to it staying in the court book and going into evidence. Although the note recorded more substantial threats by Mr Charlesworth than were described in evidence, I will say no more about it.

On 2 November 2016, Rothwell Lawyers, the solicitors presently acting for Ms White served a notice of default under the contract on Vincent J Ryan. The notice asserted that:

(a) Ms White had paid double the full purchase price for the land, but Mr Woodward had refused to complete the transfer;

(b) Mr Woodward was in default under the agreement in not providing a transfer of land by the settlement date; and

(c) unless the land was transferred to Ms White within 14 days, she intended to seek specific performance of the contract, compensation and indemnity costs.

Expert evidence

Each of the parties called a document examiner to express an opinion as to whether the signature on the second version of the contract of sale was that of Mr Woodward or was forged.

By way of preamble, I note that the preparation of the expert evidence was unsatisfactory, as the experts did not use a common set of Mr Woodward’s sample signatures. Mr Ganas, who gave evidence for Mr Woodward, did not base his opinion on an examination of any original documents, notwithstanding that such documents were available. Further, only the contract was examined, despite there being two other transactional documents purportedly signed by Mr Woodward.

Mr Holland expressed affirmatively his opinion that the disputed signature on the contract was made by the writer of the sample signatures, that is, by Mr Woodward. On the other hand, Mr Ganas’ opinion, based on his examination of copy documents, was inconclusive.

Mr Holland identified a number of significant similarities between Mr Woodward’s signature on the contract and the sample signatures. The similarities led him to conclude that the writer of the sample signatures signed the contract. He was of the same opinion in relation to the hand written ‘WRW’ initials that appeared on the footer of each page of the contract.

In substance, Mr Holland noted that he had been provided with a mixture of photocopied and original documents to compare with the contract. The date range of these signatures, where identified, varied between 1991 and October 2006. He considered the signature standards to be consistently written over that time period, with little departure from a particular signature style. Further, that signature style was a complex sequence of strokes, written very skilfully, and with speed. The writing was fluent and a particular stroke sequence pattern and unusual letter forms were observed. These matters were significant, and Mr Holland expressed his conclusion to a standard of ‘highly probable’.

On examining the contract, Mr Holland concluded that the signature had been written with a black ballpoint (paste) ink and the date ’20/02/2012’ and the printed name ‘William Roy Woodward’ also appeared to be in the same ink. Mr Holland identified 25 separate features or characteristics of the signature on the contract that were observed in the sample signature. Further, in his view, the signature on the contract did not show unsteadiness or hesitation and had been written with speed, as he had observed of the sample signatures.

Mr Ganas stated that his examination was limited by the non-original nature of the document submitted to him. He conceded that feature information such as line quality, pressure, direction and pen lifts are difficult to analyse in copy documents and are often lost in the reproduction process. As a result, the examination of non‑original documents is generally limited to the gross features of the signatures or hand writing in question. Although he found that the signature on the contract exhibited similarities in construction characteristics with the range of sample signatures, he concluded that the examination was significantly limited by the degree of variation exhibited in the sample signatures and the disfluent nature of both the questioned and sampled signature formations.

Mr Ganas said, somewhat self-evidently, there were two alternatives that could account for the observations between the questioned and sampled signature set. First, the questioned signature was written by the sample writer. Second, the questioned signature is not genuine, and was by a writer other than the sample writer. Mr Ganas’ opinion was that the evidence did not support one of these alternatives over the other, and he was therefore unable to offer an opinion with regard to the authorship of the questioned signature. His examination was, he stated, inconclusive.

For the following reasons, I prefer the evidence of Mr Holland.

Mr Ganas made several important concessions in cross-examination. First, he agreed that his ability to come to a conclusion may have been enhanced if he had been provided with original signatures.

Secondly, there was the following evidence:

In fact, on 20 December 2017 you attended at the premises of Rothwell Lawyers on King Street in Melbourne?---Possibly. I’m sorry, I can’t recall.
And that you examined the original of the contract of sale in this matter?---I can’t remember if I examined the original or a copy. From memory I only examined a copy. When I reported back to the private detective agency my result was again inconclusive.
So you agree that you attended at the office of Rothwell Lawyers to examine documents?---I believe so, yes. I can’t recall specifically, it was some time ago and I do examine quite a few cases.
If I put to you that you were attending there to examine the original of the contract of sale, would you agree or disagree with that?---I agree with the intent, that I may have attended to examine the original, however I don’t recall if I examined the original or not.

I am satisfied that Mr Ganas was, in this passage of evidence, dissembling. Further, an email communication from the plaintiff’s solicitors to Mr Holland on 9 April 2018 that was not challenged during the course of evidence stated:

We have the original contract of sale. This was examined by a handwriting expert for the defendant, but he then declined to go ahead with the expert’s report…

I do not accept that Mr Ganas complied with the Expert Witness Code of Conduct,[10] and consider that his statement of compliance with it was, at the least, inaccurate.
[10]Supreme Court (General Civil Procedure Rules) 2015 (Vic) O 44.

The Code of Conduct requires that experts declare:

(a) that they have made all the inquiries which they believe are desirable and appropriate;

(b) that no matters of significance which they regard as relevant have, to their knowledge, been withheld from the court; and

(c) whether any opinion expressed in their report is not a concluded opinion because of insufficient research or insufficient data or for any other reason.

Although I cannot be affirmatively satisfied that Mr Ganas examined the original contract, because that contention was not distinctly put to him in cross‑examination, his explanation, both in his report and under cross‑examination, of his failure to seek out and examine the original document is unsatisfactory.

Nowhere in his report did Mr Ganas indicate that he requested access to an original document in order to improve the quality of his opinion. Although he expressed compliance with the Code of Conduct, he did not distinctly state, as it required, that his opinion, as expressed in his report, could not be a concluded opinion because he had not examined the original documents.

I do not accept that document examiners operate only on the basis of copy documents when original documents are available. Mr Ganas stated in his report that he had made all the inquiries which he believed were desirable and appropriate, and no matters of significance which he regarded as relevant had, to his knowledge, been withheld. There was no evidence of inquiries to obtain original documents for examination. More significantly, he omitted to mention in his report that he attended at the office of the plaintiff’s solicitor to examine documents. I am satisfied that Mr Ganas withheld from the court that he did seek to examine the original contract.

That conclusion is reinforced by the fact that Mr Ganas’ opinion was inconclusive. That opinion begs clarification by reference to what might have been achieved by examination of original documents.

That is the primary reason why I prefer the evidence of Mr Holland.

Secondly, Mr Ganas sought to distinguish his opinion from that of Mr Holland, on the basis that there was a large degree of variation exhibited in the sample signatures, in what he described as a ‘disfluency’ between the sample signatures and the disputed signature. Mr Holland persuasively rejected this contention when cross-examined. I was not persuaded by Mr Ganas’ opinion, and found the detailed analytical analysis that Mr Holland undertook to be more persuasive.

Section 76(1) of the Evidence Act 2008 (Vic) (the opinion rule) is expressed as it is to direct attention to why the party tendering the evidence says it is relevant; why it is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Here, Ms White asserted a fact in issue was that Mr Woodward, contrary to his denial, signed the contract. She submitted that Mr Holland’s opinion proved or assisted in proving that fact.

That said, whether Mr Woodward signed the contract can only be decided as a matter of inference on the whole of the evidence before the court, and there were other countervailing considerations. As Johnson J observed in Jeans v Cleary,[11] handwriting expert evidence is one part of the body of evidence upon which a court must base its findings of fact, and it would be erroneous to treat expert evidence as being in some way decisive on its own.[12]
[11][2006] NSWSC 647, [155].
[12]See also Gawne v Gawne (1979) 2 NSWLR 449, 453 [A]–[B].

The following analysis leads me to conclude that, if I put Mr Holland’s expert opinion to one side, the whole of the evidence in this proceeding laid out a circumstantial case of some strength that Mr Woodward did not sign the contract, the instrument of transfer, or the statutory declaration. In this analysis, I will closely examine the probable inferences that can be drawn from the circumstances of the creation of the contract, the antecedents of Mr Charlesworth and the want of credibility and reliability in his evidence, the existence of further transactional documents apparently signed by Mr Woodward but not examined by the experts, and the provenance of the documents and the trail of possession.

The circumstances of the creation of the contract

In examining whether the inference that Mr Woodward’s signature was forged was the probable explanation in all of the circumstances revealed by the evidence, it is instructive to take a deeper dive into the circumstances in which the contract came into existence.

First, Mr Charlesworth gave no credible explanation of the unusual agreement that is reflected by the contract. Significantly, he could not say when it was entered into, describing it as:

an evolving thing and it was re‑mentioned and reiterated and all happy about it when we were over there in the June of 2010.

This statement was nonsensical. Ms White submitted that Mr Charlesworth orally renegotiated the arrangement in early 2010, but neither this passage nor any other supported the finding that she contended for.

Mr Charlesworth’s evidence also rendered inexplicable the November memorandum. He claimed to be significantly incapacitated at that time by having recently undergone major bypass surgery. On his plea in 2016, his counsel was instructed with, and cited to the court, a letter from a cardiologist that apparently stated he had a bypass in 2009 but there is no evidence of precise timing that would corroborate Mr Charlesworth’s claim. He suggested that once the agreement was settled, in June 2010, the payments started to commence to pay that amount of money. The difficulty with this contention is that when the payments are analysed later in these reasons, the converse proposition appears probable; namely that this agreement, that only Mr Charlesworth can describe and which was ultimately reflected in the contract that he drew up, was based on a series of identified payments that are not, except on his evidence, payments that appear to be related to a contract of sale.

The first payment that he relied on was on 1 February 2010, which was prior to the negotiation he referred to as being the basis for the contract, but squarely within the timeframe identified by the November memorandum, of which he has no recollection because of his bypass operation. I will show later that the evidence suggested that the payments were likely to be in discharge of Mr Charlesworth’s obligations under the November memorandum. Further, the contract described the sum of $75,000 as already having been paid by 15 January 2010. There was no evidence of any payment before or on that date.

Next, it made no sense that Mr Woodward would reduce the contract price because Mr Charlesworth was going to pay for the infrastructure he was erecting on the land he was buying, as Mr Charlesworth suggested. Nor does it seem probable that it would have suited Mr Woodward for about half of the purchase price to be not included in the contract, but instead be payable in an undisclosed side deal or by payment of his creditors. In cross-examination, Mr Woodward rejected a different suggestion, that he reduced the price because there was no other interest in the land in the market. Mr Phoenix also rejected the suggestion that there was no interest in the land. There was no evidence of other potential purchasers interested in the land, but, more significantly, Mr Woodward was not interested in selling the land below its value, and was not under any financial pressure to do so.

Ms White submitted that Mr Woodward was motivated to reduce the price because he was having trouble meeting his mortgage obligations. This proposition was not put to Mr Woodward and can be ignored for that reason, but more significantly, for reasons explained elsewhere, Mr Woodward was not financially troubled by the fact that the mortgage was not paid out from the deposit moneys expected from Mr Charlesworth.

Secondly, from late 2009, Mr Woodward was expecting payments that were due under the November memorandum—$35,000 to be paid by the end of February 2010, $120,000 to be paid by the end of February 2011 with Mr Woodward financing the balance for two years. I am satisfied that this was the agreement he believed was operative, and was a reason for receiving payments from Mr Charlesworth.

Mr Woodward, because of his dyslexia, would ring his bank and seek a verbal report as to the state of his account. He said:

I kept on ringing up the bank to see if anything had come in and they would say nothing came. I used to ask if it came from Western Australia, probably, meaning Mr Charlesworth’s account, and they said no, ‘No, no money has come through.’ That's how I would have found out.

I pause to note that, in submissions, Ms White contended that this evidence demonstrated an expectation of payment, a nexus between the contract and the payments that Mr Woodward was expecting. Ms White’s case was, on the one hand, that the purchase price was paid by January 2010 with a nil balance due on settlement, as the contract states and as Mr Charlesworth stated to the conveyancers, but on the other hand, she relied on 25 payments dribbling in over a period of about 27 months. That caused difficulty with this submission. It was not possible to be certain about the precise period that Mr Woodward was referring to when he was looking for payments. It was probably during 2010, consistently with the November memorandum. This conclusion is fortified by the analysis later in these reasons of the schedule of payments.

I am also satisfied that Mr Woodward was not aware of the small payments described in the schedule being deposited into his account and was honest when he stated that he had not been paid for the land. He stated that to Vincent J Ryan when he was pressed to provide the duplicate certificate of title, and he maintained that he had never been paid for the land in evidence in court.

Thirdly, the evidence did not reveal when Mr Woodward signed the contract, or that he ever saw it. Ultimately, the plaintiff’s case was confusing and contradictory in this respect. Ms White said the contract arrived at her home in Bunbury, Western Australia, by mail. She could not remember who was identified on the envelope as the addressee and did not know who had sent the contract to her. She signed it and Mr Charlesworth then sent it straight back to Melbourne by mail. Mr Charlesworth completed the contract, all that Ms White did was sign it and initial the bottom right hand corner of each page. She said that the contract was actually dated the date on which she signed it, that is 15 February 2012. She said she also signed the section 32 statement that same day.

In cross-examination, Ms White said that the contract, which was blank, was presented to her in an envelope addressed to her. She clarified that after she signed it, she just gave it back to Mr Charlesworth and did not actually see what he did with it, and was not aware whether he sent it to anybody. All that occurred was that he filled it out and she signed it. Ms White had no knowledge about the payment of the purchase price described in the contract, merely a belief that Mr Charlesworth had paid it with money taken from her business. She could not say when the money had been paid, only that she thought that the money was taken out of her business to pay for the land. She understood that $75,000 had been paid by one single payment. There is no evidence to show that ever happened.

I do not accept the plaintiff’s account (meaning the account of Ms White and Mr Charlesworth) in most of the detail provided, save that I accept that Mr Charlesworth completed the handwritten parts of the contract, and that all Ms White did was sign it and give it back to him and he dealt with it in some way. She left it all to him. Beyond that, I reject her evidence about the circumstances around the preparation of the contract. If she did sign it on the day it was dated, it is probable that that date was 15 January 2012, not 15 February 2012 as she stated, or that she signed both versions of the contract. Her evidence about signing the section 32 statement in February 2012 is false. The dates of annexed documents and Vincent J Ryan’s correspondence to Mr Woodward suggests the section 32 statement was not prepared until April 2012 at the earliest. I am satisfied that the contract did not arrive in the mail as Ms White described. Ms White was probably was told that it had arrived that way by Mr Charlesworth, who preferred not to reveal that he downloaded a form of a contract of sale of land from the internet, as discussed below. These inconsistencies persuaded me that Ms White recognised her signature, but either had no recollection of the circumstances in which she signed it, or has reconstructed the version of events she gave to the court to assist her case.

Mr Charlesworth gave another version of events. Mr Charlesworth stated that he downloaded the copy of the contract from a website at ’realestatedocuments.com.au’. He agreed with his cross-examiner that he downloaded and completed the handwritten parts of the contract. He said he filled it out, Ms White signed it and gave it back to him. I accept that this occurred, but Mr Charlesworth’s explanation of what happened with the contract after Ms White signed it was a tissue of lies.

First, he said he sent to the selling agent. I pause to note that this proposition was never put to Mr Phoenix, probably because Mr Charlesworth was making his evidence up as he gave it. Almost immediately afterwards he contradicted himself, stating that he sent it to Lexus in Melbourne and that they sent it out to Mr Woodward for signature. His second version was:

I will tell you exactly if you let me speak. I originally wrote that out, it’s in my handwriting. It was then signed and sent across to [Lexus] for them to execute, to do the complete thing. They then sent that contract on to Bill to sign. They then received it back. Once that was then sent back and whatever else they did, they then on‑forwarded it back over to [Ms White] in WA. So the actual preparation, I guess, if that’s a play on words and if that’s in that then I apologise. I should have picked that up but I’ve never not said that I didn’t write it out. You can see it’s my writing, obviously, but the contract as it was, was sent over and it was then prepared in the sense of the documents were prepared and put together and then sent on. Bill signed it and sent it back to them. That’s all I know.

Mr Charlesworth appeared to accept that in April 2012 he provided the copy of the contract to Lexus and Vincent J Ryan. He could not identify how he received the signed contract back from Mr Woodward. He stated:

I know it was posted from Victoria, from here, by Lexus and it was sent to the [Australia] Post office for collection and it was addressed to [Ms White].

There was no independent corroboration of this process, either in the form of a contemporaneous document or the testimony of another witness. Mr Woodward denied that this occurred. Further, this evidence contradicted Mr Charlesworth’s earlier evidence that Lexus prepared and sent the contract to Ms White. A witness statement of Mr Charlesworth had been served that stated that in January 2012, Mr Charlesworth (with Mr Woodward) instructed a settlement conveyancer to finalise the sale and the conveyancer prepared the contract of sale. Mr Charlesworth proffered the theory that the document Ms White received from Lexus in the post was the executed contract returned after Mr Woodward had signed.

These statements could not be corroborated by Lexus or Vincent J Ryan and were false, as Mr Charlesworth did not have any contact with either Vincent J Ryan or Lexus before April 2012. Ms White did not submit that the file of Lexus, when eventually produced, suggested otherwise.

Lexus responded to the email of 5 April 2012 by letter on 19 April 2012, acknowledging their instructions and confirming that they had received the contract of sale. This letter is not consistent with Lexus having acted for Ms White at any earlier time and, in particular, in relation to the execution of the contract of sale, as Mr Charlesworth described. It is clear from the letter that the contract in the possession of Lexus was the second version, which nominated a settlement date in April:

We thank you for your instructions in this matter and confirm that we have received a Contract of Sale dated 20/02/2012 for the purchase of the above property at a price of $75,000.

Mr Charlesworth was lying when he asserted that Lexus had an involvement with the contract prior to 5 April 2012. There was a diary note of a conversation at 1.50pm on that day that was not explained by a witness. However, it appeared to record a phone call between Mr Charlesworth and Ms Hall, which of itself suggested that the contact was initially with Vincent J Ryan and not with Lexus, as Mr Charlesworth consistently asserted. That telephone conversation was followed up by the email from Mr Charlesworth of 2.48pm on 5 April 2012, and a further email from Vincent J Ryan at 3.19pm that same day, when Mr Charlesworth was informed that Lexus would act for him and Vincent J Ryan would act for Mr Woodward. I accept from these documents that that is what occurred.

Fourthly, regarding the two versions of the contract, Mr Charlesworth appeared totally confused by the first version dated 15 January 2012 and could not offer any plausible explain for it. I am entitled to examine the documentary exhibits for myself, and I am satisfied that with the exception of Ms White’s signature, the handwritten parts of the first version are identical to those in the second version, save for the instances where they have been written over. The probable inference is that the second version dated 20 February 2012 is a photocopy of the 15 January 2012 version.

It is probable that Ms White signed as purchaser on two occasions, perhaps on 15 January 2012 and on 15 February 2012, but she wasn’t asked on which day she signed each document. While the printed handwriting confirms that one document is a copy of the other, Ms White’s signature is different on each copy, consistent with her having signed twice. The placement of her signature on the dotted line and in the angle of the signature to that line are notable differences. So much was suggested by her recognition and adoption of her signature on each document. Ms White signed the contract twice but could not tell the court why she did so because she did had no recollection.

The second version of the contract, the version purportedly signed by Mr Woodward, bore the date ’15/02/2012’ as the date when Ms White signed. Assuming, there being no evidence of this, that the contract was returned to Lexus Conveyancing by express post, was promptly received by them and promptly despatched to Mr Woodward on French Island, to place him in a position to be able to have signed it on 20 February 2012, the timeframe seems highly improbable, if not impossible. However, this version of the particulars of sale and attestation clauses could be the first version re-signed by Ms White, with handwritten alterations. Assuming a construction of events where Ms White had signed the contract in January 2012 would provide a longer timeframe in which the document could have travelled the journey that Mr Charlesworth postulates for it.

The difficulty is that Ms White did not positively submit that execution by the purchaser, exchange, and execution by the vendor did take place in the period from 15 January 2012 to 20 February 2012. Moreover, a question arose whether the handwritten alterations, on Mr Charlesworth’s version of events, may have been made after the contract had been signed by Mr Woodward and returned to Mr Charlesworth.

There were two material alterations to the second version of the contract. First, the deadline for the payment of the deposit/purchase price of $75,000 changed from 15 January 2012 to 15 January 2010, and settlement was changed from 29 March 2012 to 29 April 2012. These variations were perplexing because Ms White based her claim on a schedule of 25 payments to Mr Woodward the first of which was on 1 February 2010. I cannot identify anyone other than Mr Charlesworth who would be making alterations to the handwritten parts of the contract. I note also that Mr Charlesworth first made contact with Lexus and Vincent J Ryan in early April 2012, after the settlement date in the first version of the contract.

Mr Charlesworth denied that he made any alterations to the contact, but I do not accept that denial, particularly in the context of the email from Mr Charlesworth to Vincent J Ryan on 5 April 2012, discussed earlier in these reasons.

In evidence, Mr Charlesworth sought to resile from the 2010 date, stating that the deposit had not in fact been paid by then, and that the date should have read 2012 instead. He agreed that the first payment on which Ms White relied to make up the purchase price was not made until February 2010. Even on his version of the transaction, nothing had been paid by 15 January 2010, the deadline specified in the contract. He agreed that the date in the contract appeared to have been overwritten, but denied being responsible for overwriting it, and suggested that it should have been 2012 instead. I reject these suggestions but note that they raised two further difficulties.

The first was that the schedule of payments that Ms White relied on to demonstrate that the purchase price had been paid included three payments totalling $16,500 that were made after 15 January 2012.

Mr Charlesworth stated in the 5 April 2012 email that full payment for the land was made in January 2010. Cross-examined, Mr Charlesworth first suggested that Mr Woodward had been completely paid by 5 April 2012. He then accepted that the last payment was made on 23 April 2012. Asked to explain, he contradicted his first answer and responded:

We’re talking of the $75,000 and the commitment to make sure we got close to the rest.

A further inconsistency was that Ms White gave evidence that she received the contract to sign at the same time as she received the section 32 statement. However, Mr Charlesworth was emphatic that he downloaded the contract from the internet and completed it himself and then asked Ms White to sign it. As noted above, the section 32 statement was prepared by Vincent J Ryan, who sent a copy of it to Mr Woodward and an unsigned copy of it was provided to Ms White. The provenance of that document from that time until Lexus apparently provided the signed section 32 statement to Ms White in July 2012, well after she had signed the contract was unexplained.

I find that Mr Charlesworth could not plausibly describe when or how the contract somehow came into Mr Woodward’s possession for his signature. I accept that it was in Ms White’s possession when she signed it and gave it back to Mr Charlesworth, although I am unable to be satisfied of when that happened. I reject as lies each of Mr Charlesworth’s ‘explanations’ of the travels of the contract before April 2012. After Ms White signed the contract, it was next identified as attached to the email of 5 April 2012 to Vincent J Ryan and Lexus. At that time, it was in Mr Charlesworth’s possession. As I have rejected Mr Charlesworth’s two inconsistent statements that he sent it to either Mr Woodward or Lexus, there was no objective contemporaneous corroboration or explanation of how the contract was not only delivered to Mr Woodward and signed, but then returned by him to Mr Charlesworth. The inference from examining the evidence about the document trail was that the contract probably never left Mr Charlesworth’s possession. That inference supports Mr Woodward’s denial that he ever saw, or signed, the contract.

Curiously, there was no direct evidence that the contract was ever in Mr Woodward’s possession at any time. It was always in the possession of Mr Charlesworth or Ms White. It appears that the conveyancers operated on a copy provided by Mr Charlesworth and the original contract next turned up, several years later, in the possession of Ms White’s current solicitors. How those solicitors came into possession of it was unexplained. The logical inference would be that Ms White provided it, but she swore in an affidavit of documents that she only had a copy of the contract. If that be accepted, the logical inference becomes that Mr Charlesworth produced it to those solicitors.

What followed was that Ms White had no credible explanation of how the contract came to be signed by Mr Woodward and returned to Mr Charlesworth’s possession. The evidence consistently placed the original contract in his possession, right up until the time that it was provided by her solicitors to the handwriting experts.

The only evidence supporting the inference that the contract was in Mr Woodward’s possession between January/February and April 2012 was Mr Holland’s opinion that Mr Woodward had signed it.

Next, Mr Charlesworth said that the contract didn’t settle in April 2012 because Mr Woodward did not ‘send in the title to Lexus and then settle the stamp duty’. At that point, Mr Charlesworth said he had no reason to doubt that the contract would be completed, because everything had been amicable and the money had been paid. He and Ms White had started building the sheds and infrastructure on the land. Mr Charlesworth explained that he obtained the valuation done by Snowden Valuers at the suggestion of Lexus for stamp duty purposes. He also explained that he told the valuer that he was paying $150,000 for the land.

Gregory Charlesworth

Mr Charlesworth was Ms White’s key witness. Given his antecedents, his demeanour and the want of credibility and reliability in his evidence, I now look more closely at aspects of it.

First, Mr Woodward made no affirmative allegation of forgery when giving his evidence, and it was not necessary that he do so. On the whole of the evidence, if Mr Woodward did not sign the contract, Mr Charlesworth was the most likely person to have forged his signature. The cross-examiner approached that proposition but Mr Charlesworth denied it. Consistently, I have not found Mr Charlesworth’s denials truthful or convincing. I make no positive finding in this regard, but absent the evidence of Mr Holland, I would have been comfortably satisfied on the balance of probabilities that Mr Charlesworth forged Mr Woodward’s signature.

Secondly, Mr Charlesworth stated, and Ms White does not dispute, that the contract does not represent the full agreement between the parties. Ms White contended that the true price was approximately $150,000, made up of the sum of $75,000 referred to in the contract, together with a further $78,464.55 that was paid either to Mr Woodward or on his instructions to certain of his creditors. That allegation was not what the plaintiff set out to prove at trial. Mr Charlesworth’s evidence was that $153,464.55 was deposited into Mr Woodward’s account or paid to creditors at Mr Woodward’s direction by 25 separate payments. None of these payments were in the amount of $75,000. There was no contemporaneous record of the negotiations for the agreement that was pleaded in paragraph 6 of the amended statement of claim. Ms White was wholly reliant on Mr Charlesworth’s evidence.

On review of the evidence as a whole, there was a strong flavour of an attempt by Mr Charlesworth to retrofit the contract onto a series of 25 payments to Mr Woodward that were identified by analysis of banking records of Ms White’s company, Hortus Australia Pty Ltd (Hortus) undertaken in the period prior to his sentence in 2016. Hortus had entered into an agreement with the Western Australian government to provide training services as a registered training organisation. Mr Charlesworth’s offending involved submitting false claims in respect of trainee students resulting in a total amount paid by the State of Western Australia to Hortus of $435,755. Ms White is the sole director and shareholder of Hortus, which is apparently the trustee of a family trust, but Mr Charlesworth then controlled its finances.

Mr Charlesworth was sentenced on the basis that he used Hortus to defraud the State of Western Australia. The offences were alleged to have been committed between 15 April 2011 and 10 April 2012, which dates overlap with the period of the schedule of payments that Ms White relies on to prove that she has paid the price due under the contract by payments made by Hortus.

At that time, the absence of an annotation that the payment was for the purchase of the land suited Mr Charlesworth. The sentencing judge recorded that Mr Charlesworth left Western Australia after a police interview in August 2012 to take up residence on French Island. He needed to show that he had not paid for the land with money stolen from the Western Australian government and passing through the accounts. The absence of a direct descriptor for those payments in bank statements as payments of a purchase price assisted his objective. His evidence was now that the descriptors were applied for a different purpose and Ms White invited the contrary finding that Mr Charlesworth did actually pay for the land with funds from her company.

When it became an issue whether funds originating from the State of Western Australia and paid to Hortus as part of Mr Charlesworth’s offending had been secreted away to his benefit, the sentencing judge was told that Mr Charlesworth had agreed to purchase land from Mr Woodward for $75,000 and ultimately paid him $59,000. These statements cannot be reconciled with his evidence in this proceeding. The sentencing judge noted that Hortus did not have proper accounting procedures, causing confusion and complexity that enabled Mr Charlesworth to disburse funds fraudulently received by Hortus in a manner that was opaque. At the time of his sentencing, there had been no recovery of any of the funds appropriated.

Ms White did not persuade me to accept that payments were made to Mr Woodward for the purposes described by Mr Charlesworth, with one exception.

Mr Charlesworth did not contest that has an extensive criminal record for dishonesty offences and a penchant for the use of aliases. He has dishonesty convictions in almost every state and territory of Australia, beginning from March 1984. He appeared to largely avoid jail until October 1996 in Darwin. Then, in June 1998, in Darwin, he received a substantial sentence of seven years imprisonment, with a non-parole period of three years and six months, on two counts of stealing and four counts of false accounting. In 2005, he pleaded guilty to six counts of fraud in Western Australia, receiving a suspended sentence of ten months imprisonment. It has been noted that Mr Charlesworth was motivated by greed.

Further signed documents

During the course of the trial, it occurred to Ms White’s advisors to track down Lexus’ file. From that file, two relevant documents were produced. The first was an instrument of transfer of land that had been prepared by Lexus and appeared to have been signed by Mr Woodward. However, he denied to his cross-examiner that he signed that document. No witness could identify the signature of the attesting witness on that document. What was unusual about this document was that the signature purporting to be that of Mr Woodward did not appear on the front of the instrument, in the place reserved for signature by the transferor. Rather, the signature appears on a second ‘annexure page’.

Three observations may be made.

First, the annexure page does not appear to be part of the instrument of transfer. The instrument of transfer was a form provided by SAI Global Property Division, a company that provided conveyancers, solicitors and the financial services sector with necessary software, systems and services to complete property settlements. It is a single sheet including the notation ‘Page 1 of 1’. Lexus would be well familiar with it. It was not necessary to include an annexure page on the transfer of land. The annexure page appeared to be part of a form provided by what was then Land Victoria, clearly intended by its content to form part of a multipage document. Rather than identifying the signatories as ‘transferor’ and ‘transferee’ as the instrument of transfer does, the attestation clause reads ‘Signed by William Roy Woodward in the presence of’. None of this was explored in evidence, and I was not persuaded that the second page of the document properly formed part of the instrument of transfer document.

Second, neither this document nor, in particular, the purported signature of Mr Woodward on that second page, was examined by the handwriting experts.

Third, Ms White’s case did not explain how this document came to be signed by Mr Woodward and to have ultimately ended up in the possession of Lexus when there was no settlement. Clause 6 of the general conditions of the contract requires the purchaser to complete the instrument and provide it to the vendor for execution prior to settlement, and usual conveyancing practice requires the vendor to then return it to the purchaser with a duplicate certificate of title at settlement. In this case, due to the absence of the duplicate certificate of title, there was no settlement.

The second document was a goods statutory declaration. Clause 6 of the general conditions of the contract obliged the vendor to prepare any document required for assessment of duty. This statutory declaration disclosed that the consideration stated in the contract, $75,000, was less than the unencumbered market value of the land.

The statutory declaration bears a different version of Mr Woodward’s signature from that appearing on all other documents and all but one of the sample signatures used by the handwriting experts. When cross-examined about that signature, Mr Woodward responded ‘that’s nothing like my signature’ and that he did not sign it. He also said that he had no recollection of attending at the Crib Point Pharmacy on 28 June 2012 and signing it in front of Mr Porritt, who was the witness to the declaration. Mr Woodward accepted that he occasionally visited that pharmacy ‘for different medicine’. In context, I interpreted Mr Woodward’s denial not as a failure of recollection, but as a positive rejection of the cross‑examiner’s proposition that he signed the statutory declaration in front of Mr Porritt on 28 June 2012.

After these documents were produced, Ms White’s solicitors tracked Mr Porritt down. He identified his signature and stated that all of the handwriting around the declaration, apart from the signature ‘W Woodward’ was his writing. Mr Porritt was unable to recall what occurred on 28 June 2012, but described his standard practice that he developed because ‘I do have lawyers in the family’. He then said:

The first thing I ask for is photo ID which is normally for most people a driver’s licence. For example, last Tuesday night when I was working a gentleman presented to do a stat dec and didn’t have any ID and I did have to send him away, so I think – that’s always been my background with stat decs and these sort of things but I cannot actually recall this exact event. I’m sorry.

Mr Porritt believed that on 28 June 2012, he would have asked the person who signed the statutory declaration to produce photo ID, and he believes he would have checked the identity of the person who signed this particular document. He did not keep a record about this process and his example was from the week before he gave evidence, not seven and a half years earlier.

I have no reason not to accept Mr Porritt’s evidence as far as it goes. However, it does not affirmatively establish that Mr Woodward signed the statutory declaration. It establishes no more than a practice to identify a witness to a statutory declaration and a belief that he would have followed that practice some seven and a half years ago. He was unable to affirmatively state that he did, on that occasion, follow his usual practice.

Mr Porritt’s evidence of his usual practice might have assisted Ms White in drawing an inference in her favour, if that document had been examined by Mr Holland. The fact that it was not provided to Mr Holland points to a difficulty with the inferences that might be drawn from Mr Holland’s evidence. Essentially, his examination was limited to one document, and did not include each original signature that Mr Woodward is alleged to have signed as part of this transaction. Careful analysis of the other two signatures and of the documents to which they were affixed may have provided more clarity than presently exists. In particular, the signature on the goods statutory declaration was a signature affixed in front of a witness. If not signed by Mr Woodward the writer was under significantly greater constraints in accomplishing a plausible facsimile of his signature, which may have provided relevant clues for a document examiner. The signature on the statutory declaration was quite different to the other signatures examined by Mr Holland. All of the sample signatures used by Mr Holland were in the format ‘William R Woodward’. There was no ‘W Woodward’. There was however a single ‘W Woodward’ sample signature produced to Mr Ganas.

I will not speculate on whether Mr Holland’s opinion might have been different. This was not an enquiry that seemed to interest the parties in the conduct of the trial.

However, in assessing the evidence overall, I am left with an unusual example of Mr Woodward’s signature emphatically denied by him as his, applied to a document before a witness who cannot recollect the occasion, who had a practice of identifying statutory declarants by reference to photo ID, but cannot affirmatively say that the practice was properly implemented on the occasion in question.

Has Ms White paid the purchase price?

Ms White relied on a schedule of payments that were sourced from bank statements. She was unable to explain the schedule annexed to her statement of claim.

Ms White, you and your husband hadn't paid to Mr Woodward $75,000 by January 2010, had you?--- Like I said, I left everything up to Greg to do.
…
Have you spoken to Mr Charlesworth about what happened during the relevant period?---Not really. On and off I have had conversations with him but all the conversations that we had was based more like with our kids, him having spent conversations with his kids, not talking about this.
Did you never ask your husband, 'Greg, can you tell me what happened during this time?' Did you never ask that?---I didn't ask Greg. Greg said that he paid the money over to Bill and - - - But you don't know when he paid the money?---No.
You don't know what he agreed, how much he agreed to pay for the property?---75. Two lots of 75 was put through to his account.
Ms White, you said earlier that you agreed to buy it for $255,000, didn't you?---Well, extra moneys was paid as well.
What extra moneys were paid?---I don't know.
You don't know what moneys?---I left everything up to Greg, Your Honour. He dealt with everything. I signed stuff.

I am satisfied that the relevant obligation to pay was identified by the November memorandum. It was unnecessary to determine whether the November memorandum was immediately legally binding. Mr Charlesworth denied the agreement and I consider his denial was false. Mr Woodward does not seek to enforce it and there was some suggestion that it was regarded as abandoned. However, I am satisfied that for the period from 1 February 2010 to 23 April 2012 the memorandum governed the financial relations between Mr Woodward and Mr Charlesworth and was relevant when properly characterising the nature of payments received by Mr Woodward.

Two observations about the payment regime agreed by the November memorandum are apposite. First, Mr Charlesworth agreed to pay $20,000 to compensate Mr Woodward for the failed 2009 contract. The memorandum acknowledged that $2,333 had been paid, meaning there was a balance of $17,667 payable by 31 January 2010 for compensation for the damage suffered by Mr Woodward when Mr Charlesworth repudiated the contract. Secondly, Mr Charlesworth agreed to make 12 monthly payments of $5,000 in consideration of Mr Woodward extending his mortgage. As I have noted, this arrangement bought time for Mr Charlesworth.

On the first year anniversary of the November memorandum (17 November 2010), Mr Charlesworth ought to have paid almost $140,000, of which $60,000 was to be applied to the mortgage, first, to discharge the finance charges payable, and thereafter in part reduction of the purchase price. Effectively, Mr Woodward was indemnified against the expense of the mortgage while his intention to discharge it was also, in part, being effectuated.

By the 2 December 2009 variation, Mr Charlesworth was to pay $35,000 by the end of February 2010 and $120,000 by the end of February 2011. These payments do not precisely reconcile with the November memorandum. Depending on how the email of 2 December 2009 is construed, Mr Charlesworth ought to have paid either $155,000 or $120,000 by the first anniversary of the memorandum. However, nothing turns on this because he fell well short of the lower target.

I pause to note that Ms White also claimed that payments of $15,000 on 6 July 2010 and $3,000 on 25 August 2010 were made towards the purchase price. The first payment was for a tractor and the second payment was for a water bore. Mr Charlesworth’s evidence was that he bought the tractor for $15,000 for Mr Woodward, on the basis that it was to come off the price of the land. Mr Woodward said that they bought it together to share its use, but Mr Charlesworth damaged it beyond economic repair. Mr Charlesworth also claimed that when Mr Woodward disposed of the tractor, it was ‘in our books’ and written off for tax purposes, a position inconsistent with the tractor being gifted to Mr Woodward as a reduction in the purchase price payable. It is unnecessary to consider the other evidence that related to the tractor.

Mr Charlesworth agreed that the second amount, described in the schedule as a payment for a water bore, had wrongly been included and was not a payment of the purchase price under the contract. It will on the basis of that concession be ignored.

I find that neither the tractor nor the water bore were related to the purchase of the land. Unless Mr Charlesworth’s explanation about the tractor was wholly accepted, which it was not, the schedule fell short of proving a payment of ‘approximately’ $150,000. Ms White could not establish payment of the purchase price. On her case, no other payment was identified as forming part of the payments made for the land. Had I found, which I do not, that all other payments detailed in the schedule were made towards the purchase price of the land, she could not prove payment of more than $135,464.55. That said, I now turn to those other payments.

The following payments were made in 2010:

Date Payee Amount

1 February 2010 Woodward $8,900

8 March 2010 Woodward $5,000

31 March 2010 Woodward $5,000

6 April 2010 Woodward $5,000

25 May 2010 Woodward $5,000

15 June 2010 RMBL $2,536.93

2 July 2010 Woodward $5,000

25 August 2010 Woodward $2,500

9 September 2010 RMBL $2,613.81

2 December 2010 Woodward $2,500

2 December 2010 Woodward $2,500

8 December 2010 Woodward $2,500

8 December 2010 Woodward $1,500

21 December 2010 RMBL $2,613.81

TOTAL $53,164.55

The first payment of $8,900 was unexplained. It should be applied towards the initial payment of $35,000 that was due by the end of February 2010. I find that all of the remaining payments set out in the table above were paid in discharge of the obligation to make 12 monthly payments of $5,000. That is so because the three payments of $2,536.93, $2,613.81, and $2,613.83 directly to RMBL were clearly payments into the loan account secured by the mortgage. The remaining payments are mostly in the agreed monthly sum under the obligation. The probabilities favour the inference that all of these payments, including the payments of $2,500 and $1,500, were made pursuant to, and in pretended performance of, the November memorandum and I so find.

If only the sum of $8,900 is applied towards the $20,000 compensation payment, the generous assumption for Ms White is that the balance of $44,264.55 represents payments to be applied, firstly, to indemnify Mr Woodward for the interest on his mortgage and, secondly, in reduction of the principal outstanding. In the context of her claim, Ms White could only point as a part payment towards a purchase price of the land to such of the total paid as went in reduction in the principal outstanding under the mortgage, whether pursuant to the November memorandum or any subsequent agreement. That sum must be less than $44,264.55. However, as no detail of Mr Woodward’s finance contract was in evidence, it is not possible to make any assessment of the interest charges during this period to ascertain the lesser sum that might fairly represent a payment of a purchase price.

Turning to the payments in 2011, the monthly payments ceased. Ms White contended that the following payments made in 2011 were part payment of the purchase price for the land:

Date Payee Amount

2 June 2011 Woodward $3,000

9 June 2011 Woodward $3,000

14 July 2011 Woodward $800

11 October 2011 Woodward $54,000

16 December 2011 Woodward $4,000

28 December 2011 Woodward $1,000

TOTAL $65,800

These deposits can be seen in Mr Woodward’s bank statements, his receipt of them was not the issue, rather it was whether the payments were part payments of a purchase price. The evidence of purpose was limited to the notations recorded in bank records and Mr Charlesworth’s explanations of the transactions in evidence. As explained earlier, due to his disability, Mr Woodward was largely unaware of individual deposits into his account and operated mainly on an understanding of the available balance.

All that is recorded in Mr Woodward’s bank statements in respect of the first two entries was that each was a payment from ‘ISTA’. This is an acronym for Indigenous Skills Training Authority, which was an organisation wholly owned by Hortus. Mr Charlesworth stated in evidence that payments to Mr Woodward that were described as ‘ISTA’ were in fact payments for the purchase of the land. I am satisfied that he chose to describe the payments in that way at the time they were made because he wanted them to look like business expenses, which they were not. In other words, the entries in the bank records was based on false information to deliberately characterise the expense as deductible for tax purposes as a business expense. Later, it became convenient to identify a different purpose for these payments.

This descriptor ‘ISTA’ was also used for the monthly payments of $5,000 in 2010 referred to above, but the November memorandum provided the context to identify the probable purpose of those payments. In respect of payments made during 2011 and 2012, it was not possible to identify any particular financial obligation against which such payment could be appropriated. These payments were irregular and generally for smaller sums than had been the case in 2010.

At some point, Mr Charlesworth, Ms White and their family were living on the land. Mr Charlesworth had borrowed money from Mr Woodward, and Mr Woodward paid for some infrastructure on the land. There was also some limited evidence of joint agricultural expenditure being incurred, such as for fencing. These matters could explain irregular payments being made to Mr Woodward. Although Mr Woodward could not explain transactions on his bank account, he thought he still had a deal which he described as the one with his estate agent and was looking for money coming in from Western Australia. Ms White bore the onus of persuading me that she had performed her obligations under the contract and, with one exception, she did not persuade me to accept that these irregular small payments were payments towards a purchase price of the land.

The exception was the payment of $54,000 on 11 October 2011. The entry in Mr Woodward’s bank statement describes this deposit as ‘land purchase’. This descriptor was likely to have been applied by the transferor to Mr Woodward, hence it was described as a purchase rather than a sale. Mr Charlesworth could not explain why that descriptor had been used in relation only to this payment and not to all of the payments that he asserted were towards the purchase price. There is no reason to accept Mr Charlesworth’s classification of the purpose of this payment as being any more reliable than any other descriptor, but if all descriptors were accepted at face value, $54,000 was paid for ‘land purchase’. As I have mentioned, Mr Woodward was not particularly knowledgeable about particular dealings on his bank account, but a deposit of $54,000 would seem noticeable. He gave no alternate explanation of it.

Of the total paid during 2011, I was not persuaded that any more than $54,000 could be attributed to any obligation to pay a purchase price for land.

Turning to the payments in 2012, Ms White relied on three deposits.

Date Payee Amount

27 January 2012 Woodward $2,500

19 March 2012 Woodward $12,000

23 April 2012 Woodward $2,000

TOTAL $16,500

Beyond Mr Charlesworth’s claim from the witness box, which I do not accept, there was no evidence that any of these amounts was paid to Mr Woodward as consideration for the purchase of the land. This period aligns with the period of the creation of the written contract. The allocation of such payments against the purchase price was not consistent with the particulars of sale then being drafted by Mr Charlesworth. The final payment on 23 April 2012 was made after Mr Charlesworth wrote on 5 April 2012 to Vincent J Ryan and Lexus that full payment for the land was made in January 2010. That payment seemed to call for particular explanation to warrant its place in the schedule. None was forthcoming. The same observation can be made about the payment of $12,000 on 19 March 2012, approximately one month after the contract was said to be signed.

On this evidence, I was not persuaded that Ms White paid the agreed purchase price. All that was probably paid towards the purchase of the land was the payment of $54,000 on 11 October 2011 and an unidentifiable part of the $44,000 paid in 2010 attributable to the reduction of principal of the mortgage. I am satisfied that those payments were made pursuant to the November memorandum. Assuming the contract to be enforceable against Mr Woodward, he did not receive the purchase price. Such payments made by or on behalf of Ms White that can reasonably be attributed to payments for purchase of the land, fell well short of the sum of $153,464.55 asserted as the purchase price by Ms White’s claim.

Analysis

I now return to the issues for resolution.

The first issue was whether Mr Woodward was bound to perform the contract. Ms White bore the onus to prove that Mr Woodward agreed to sell the land to her for $150,000. She has not persuaded me that he did so.

If Mr Holland’s expert opinion is put to one side, I am comfortably satisfied, on the balance of probabilities, that Mr Woodward had neither agreed to sell the land to Ms White on the basis she alleged, nor did he sign the contract.

Of course, Mr Holland’s evidence cannot be ignored and, considered in isolation, was most persuasive. Ms White also invited me to rely on Mr Porritt’s evidence of his usual practice when taking the statutory declaration signed by Mr Woodward. The inferences I might draw in Ms White’s favour from the overall factual matrix are less compelling when I examine the combination of circumstances suggested by reference to the evidence of these witnesses.

First, there was no cross‑corroboration between them. The signature applied in Mr Porritt’s presence was, as I have noted, in an unusual format, ‘W Woodward’. Mr Holland had no opinion about it as he was not asked to examine it. The only sample signature in this format was provided to Mr Ganas. Mr Holland saw neither the statutory declaration nor the sample signature. It appeared, at least on my inspection assisted by what Mr Holland said generally, to be a form of Mr Woodward’s signature that was significantly less difficult to forge than the more fluent and long formed signature that he ordinarily used. Further, Mr Woodward’s reaction in the witness box when asked about this signature was distinctly more positive in his rejection of it.

There was no basis, either in Mr Porritt’s evidence or in the surrounding circumstances, to be satisfied that he did follow the procedure he outlined on 28 June 2012. Mr Porritt’s procedure did not include a contemporaneous record of the identification of the declarant that he may have relied on if later asked to confirm his attestation.

Secondly, the instrument of transfer of land was a constructed document, compiled with pages from different sources, the provenance of which was unexplained. I set out above my reasons for not being persuaded by Ms White that Mr Woodward signed the instrument of transfer.

Thirdly, there were four key documents required for this transaction: a contract of sale, a goods statutory declaration, an instrument of transfer and the duplicate certificate of title. On the evidence, only one of those documents ever was, and it remained, in Mr Woodward’s possession, namely the duplicate certificate of title. His refusal to part with it was significant. There was no evidence that any of the other three documents were ever in his possession, apart from inferences that may be drawn from the signatures that appear on them. The only evidence that would permit such an inference is that of Mr Holland, but it was confined to one of the three documents: the contract of sale. It must be the case that if the transaction was legitimate, as Ms White contended, then all three documents must have been signed by Mr Woodward. I have not been persuaded that this occurred, and, ultimately, I have not been persuaded affirmatively, on the balance of probabilities, by Ms White, notwithstanding Mr Holland’s opinion, that Mr Woodward agreed to sell the land to her on the terms that she alleged.

That conclusion is sufficient to determine that Ms White’s claim must fail.

Had Ms White persuaded me that Mr Woodward was bound by the contract, she did not persuade me that she had performed her obligations under the contract and had demonstrated that she was entitled to specific performance of it. Consistently with his denial of ever being a party to the contract, Mr Woodward had not taken any step to terminate or discharge the contract for Ms White’s breach of it.

To be entitled to a decree of specific performance, Ms White must not be in breach of an essential term, and must generally be ready and able to complete her contractual obligation. Although the law permits some latitude with respect to subsisting breaches of inessential terms, that issue does not here arise. Noting my jurisdiction under s 38 of the Supreme Court Act1986 (Vic), I record that damages, either in lieu of, or in addition to specific performance, were neither claimed in the proceeding, nor addressed at any time by Ms White, and need not be considered.

On the assumption that Mr Woodward was bound to a valid contract, which he was not, the law would have held applicable the doctrine that a contract for valuable consideration to transfer land passes a beneficial interest by way of property in that land. The purchaser’s equitable interest in the land is co-extensive with the ability to claim specific performance, not only in the sense of enforcing an executory contract, but also for the protection of rights acquired by contract by equitable relief.[13] Ms White failed to show that entitlement to claim specific performance.
[13]Legione v Hateley (1983) 152 CLR 406; Stern v McArthur (1988) 165 CLR 489, 522–3; Chan v Cresdon Pty Ltd (1989) 168 CLR 242, 252–3.

Being an equitable remedy, a decree of specific performance is discretionary. Whether Ms White was in breach and whether she had proved her readiness and willingness to perform the contract,[14] are both factors relevant to the court’s decision whether to exercise its discretion in the plaintiff’s favour.
[14]Fitzgerald v Masters (1956) 95 CLR 420, 434; Mehmet v Benson (1965) 113 CLR 295; Bahr v Nicolay (No 2) (1988) 164 CLR 604, 619–20.

First, had there been a binding contract, Mr Woodward would have been justified in terminating the contract by Ms White’s breach of it. Failure to pay the purchase price, whether at settlement or at any time thereafter once time ceased to be of the essence, was a serious breach of an essential term. Payment of the purchase price was governed by clause 11 of the general conditions of the contract, but in the context of this agreement, particularly the particulars of sale and the side deal, clause 11 had no role to play. The contract further provided that time was of the essence (clause 16) and that at settlement the vendor must give vacant possession of the land (clause 10.1(b)).

Secondly, on her own case, Ms White’s proofs fell short of demonstrating that $150,000 had been deposited into Mr Woodward’s account or paid at his direction by or on behalf of Ms White, even if I assume that each payment was received by Mr Woodward in part satisfaction of Ms White’s obligation to pay the purchase price. Alternatively, because I was not satisfied about the purposes attributed by Mr Charlesworth to many of the payments, the sum that is reasonably able to be allocated to the purpose of paying a purchase price cannot precisely be identified. However, that sum must necessarily be significantly less than $98,000.

The contract required that a deposit of $75,000, which also represented the total purchase price, was paid by 15 January 2010. There was no evidence of any payment to Mr Woodward prior to that date. In the context of Ms White’s allegations that the contract price was not $75,000 but $150,000, by reference to the agreement between Mr Charlesworth on her behalf and Mr Woodward that was only partly recorded in the contract, Ms White failed to prove that she paid the purchase price, whether before the date for settlement or at any time prior to the judgment in the proceeding.

Second, there was no tender or offer to tender the purchase price or any remaining unpaid part of it at any time, either before or since the commencement of the proceeding. This was, presumably, because Ms White’s case was that the whole of the purchase price was paid by the settlement date, but she has failed to establish that proposition.

In these circumstances, and in the absence of any evidence that Ms White could pay the outstanding balance of the purchase price once precisely determined (a sum greater than $52,000), decreeing specific performance in Ms White’s favour would not secure for Mr Woodward Ms White’s performance of the mutual promise for his transfer of title, namely payment of the purchase price. Mr Woodward would be left without adequate compensation for Ms White’s breach of the contract. There was a want of mutuality in this respect up to the time of judgment in the proceeding.

Finally, as there was no contract or, alternatively, no settlement of the assumed contract, Ms White was unable to maintain that she remains entitled to possession of the land pursuant to the contract she alleged, either because she has not proved that Mr Woodward was a party to that contract, or because she has not proved that she is entitled to specific performance of it. Ms White did not advance any other basis to remain in possession of the land.

Conclusion

The plaintiff’s claim for specific performance of the contract is refused. In those circumstances, it is inappropriate to make any orders affecting the second defendant, the Registrar of Titles. The proceeding will be dismissed.

I will reserve the question of costs of the proceeding. Ordinarily, costs will follow the event, meaning that the plaintiff ought to be ordered to pay the first defendant’s costs of the proceeding. I direct the parties to confer as to whether liability for costs can be resolved, and if so, to submit a consent minute. Otherwise, I direct that by 11 June 2020, the parties file and exchange submissions in respect of costs. Unless persuaded by those submissions to do otherwise, I will determine the question of costs on the papers.

Date	Payee	Amount
1 February 2010	Woodward	$8,900
8 March 2010	Woodward	$5,000
31 March 2010	Woodward	$5,000
6 April 2010	Woodward	$5,000
25 May 2010	Woodward	$5,000
15 June 2010	RMBL	$2,536.93
2 July 2010	Woodward	$5,000
25 August 2010	Woodward	$2,500
9 September 2010	RMBL	$2,613.81
2 December 2010	Woodward	$2,500
2 December 2010	Woodward	$2,500
8 December 2010	Woodward	$2,500
8 December 2010	Woodward	$1,500
21 December 2010	RMBL	$2,613.81
TOTAL	$53,164.55

[2020] VSC 258

28 May 2020