Briginshaw v Briginshaw

Creditor and debtor - Whether there were oral loan arrangements between parties - Whether signature of plaintiff on document acknowledging purchase and loan by purchaser to vendor was a forgery

Evidence - Proof of forgery of signature to documents - Principles to be applied

Transfer of Land Act 1893 (WA), s 68, s 138C

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Cherrycoast Enterprises Pty Ltd v Dr Francis John Roberts as Executor of the Estate of Kennyth Peter Roberts (Dec) [2002] WASC 28

Gawne v Gawne (1979) 2 NSWLR 449

Grainger v Williams [2009] WASCA 60

Jeans v Cleary [2006] NSWSC 647

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

New Resource Holdings Pty Ltd v Lunt [No 2] [2008] WASC 140

R v Doney (2001) 126 A Crim R 271

1 This is an action commenced by originating summons but, as a result of case management orders, treated as if commenced by writ.

2 The plaintiff and the first defendant are both of Vietnamese origin.

3 By the statement of claim the plaintiff seeks principally a declaration that she is the sole legal and beneficial owner of a certain residential property in Stratton, Western Australia; that the first defendant deliver up to the plaintiff the duplicate certificate of title to the Stratton property; in the event the first defendant complies with that order the second defendant cancel the entry of the first defendant as registered proprietor of the Stratton property, substituting the plaintiff as its registered proprietor; and in the event the first defendant fails to comply with the order for delivery up the second defendant cancel the certificate of title and substitute a certificate of title for the Stratton property which shows the plaintiff as its registered proprietor. The plaintiff was formerly the registered proprietor of the Stratton property. She pleads the first defendant became the registered proprietor as a result of her signing a transfer which the first defendant deceived her into signing by his representing the document was of another kind.

4 By his defence and counterclaim the first defendant says the plaintiff sold the Stratton property to him and it was pursuant to that sale that she signed a transfer of the property to him. The first defendant's counterclaim is for payment of an amount he says he lent to the plaintiff but no part of which he says the plaintiff repaid, together with interest on that amount.

5 The plaintiff by reply and defence to the counterclaim denies that there was a sale, or that there was a debt, as the first defendant alleges or in any amount.

6 The second defendant has confirmed that he does not intend to enter an appearance and has agreed to abide by any orders made by the court on certain provisos.

7 Both the plaintiff and the first defendant at all material times had limited English language speaking and reading skills. They gave oral evidence by interpreters, and I permitted the first defendant, who was self-represented at the trial, to so act with the assistance of an interpreter, and to have a friend nearby to further assist him. Those states of affairs meant that the trial, originally listed for four days, in fact extended to seven. This was notwithstanding that, pursuant to trial orders the examination in chief of witnesses, other than the expert witness, was by affidavits previously filed, supplemented in some cases by further examination-in-chief by leave.

8 As will become apparent, the parties' language difficulties in English also made evaluation of at least certain aspects of their testimony more difficult.

9 In the first section of these reasons, I provide a background to the matters relevant to this action. In large part, these matters are not challenged. In that section I also set out the testimonial evidence on the principal issues in this case. With regards to that evidence, there are sharply contested questions of facts which I must resolve.

10 In the second section of these reasons I set out the applicable law. I then deal with each of the principal issues in the case in turn. The final section of these reasons is my conclusions and proposed orders.

11 On 10 June 1954 the plaintiff was born in Vietnam. She came to Australia about 17 years ago.

12 In 1997 the plaintiff and the first defendant commenced a de facto relationship. The plaintiff had been married previously and had two children, apparently from that union.

13 One of the plaintiff's children was a son, who in 2002 changed his name from Tony Dv Nguyen to Tony Vu Le. I will refer to him from this point as Mr Le or the plaintiff's son. Mr Le was 34 at the time of the trial. The other child of the plaintiff was Lisa Tu Anh Do. Ms Do was 26 at the time of the trial.

14 It is not shown on the evidence in the trial when the first defendant came to this country. However, he has been in this country at least from 1997, although he has returned to Vietnam on a number of occasions. It appears that at the time he began a de facto relationship with the plaintiff he had two or three children of his own. At about that time the first defendant was conducting a bakery business under the name 'BBH's French Hot Bread', which was also referred to in the evidence as 'BBH's Hot Bread'. He later relocated that business and borrowed at least $25,000 - $30,000 for the purpose. As will be seen there is a contest between the parties as to the source of that borrowing.

15 On 19 January 1999 the plaintiff became the registered proprietor by transfer of the property situated at 48 Brilliant Rise in Stratton, being Lot 735 on Diagram 80835 and being the whole of the land comprised in Certificate of Title Volume 1957 Folio 998 (the Stratton property). The consideration for the transfer of the Stratton property was $104,000. Part of the consideration was $20,000 provided by the plaintiff from her savings and the balance was the proceeds of a loan from Homeside Lending, which was in the amount of $87,000 and was secured by a registered mortgage on the Stratton property.

16 Beginning in January 1999 the plaintiff, the first defendant and the first defendant's children began to live in the Stratton property. It was not apparent from the evidence where the two children of the plaintiff were living at that time.

17 It was the plaintiff's evidence that during the period January 1999, when the Stratton property was purchased by the plaintiff, to April 2001, when she separated from the first defendant, she was working part-time at a deli/lunch bar in High Wycombe, while also working part-time in the first defendant's bakery and receiving low income support from Centrelink for her daughter, Ms Do, who was then a high school student. She also testified that she used most of her earnings from the job in High Wycombe to pay into the loan account on the Stratton property. The first defendant's evidence was that during that period the plaintiff was unemployed with her sole source of income being provided by Centrelink and he provided the 'majority' of the loan repayments on the Stratton property in cash from the takings from his business BBH's Hot Bread. As I understood his testimony, the first defendant reiterated in his examination-in-chief that he had made the 'majority' (not all) of the loan repayments over the period January 1999 - April 2001. He reiterated this when his attention was drawn to a difference in that respect between the English and the Vietnamese versions of his affidavit. The plaintiff denied in cross examination that she had received any money from the first defendant 'for the mortgage and for the loan' (20 March 2009, ts 35), which I understood to be the mortgage with Homeside on the Stratton property.

18 I have determined that it is more likely than not that the plaintiff did assist the first defendant in his bakery business. I so find based on my assessment of the credibility of the plaintiff, to which I return below.

19 I have also determined that the first defendant did assist with mortgage repayments until the parties separated, if not necessarily the majority of them, and that the plaintiff also provided a substantial portion of them, and did so from her earnings from the job in High Wycombe she testified she had. I so find based on my assessment of the parties' evidence as to their relationship even after their separation, as well as the first defendant's means at the relevant time, which I return to below and which in my view would have been sufficient to make such contributions.

20 By a document styled 'Agreement to Purchase a Business (as a Going Concern)' dated 21 March 2001 the first defendant agreed to sell the goodwill of the 'bakery wholesale and retails' carried on by the first defendant at 'Shop 8 Stratton Shopping Centre' known as 'BBH's Hot Bread' to Van Bao Tran and Thi Anh Dai Dinh, for the sum of $100,000. By a further document styled 'Private Agreement' bearing the same date the purchasers acknowledged that 'the price of the shop' was $130,000 but 'due to our financial hardship' the first defendant 'agree to let us paid [sic] $100,000 up front on the day of settlement and the remain balance of $30,000 will be paid within 6 months from the day we take possession to the shop'. It is common ground the business sold was BBH's French Hot Bread, and that the purchasers duly completed the purchase.

21 In April 2001 the plaintiff and the first defendant separated and the plaintiff moved out of the Stratton property to live at a property in Ballajura with her son, Mr Le. Mr Le had been living in Sydney, and had acquired the Ballajura property by an offer accepted in February 2001 under a transfer of land he had executed on 12 March 2001. However, on his evidence he was not living there in April 2001, as I will indicate.

22 The first defendant testified that it was at the time of the separation in April 2001 that an oral agreement was entered into for the purchase by him from the plaintiff of the Stratton property (the oral purchase agreement). His examination-in-chief was as follows (exhibit 13, [8.3] - [8.7]:

8.3 At the time the plaintiff said words to the effect of 'Do you want to buy the Property for $105,000.00? I'm buying a new house with Tony' who had recently returned from living in Sydney and was at the time unemployed and living at the Ballajura Property.

8.4 I am not aware of any means through which Tony could have afforded to purchase the Ballajura Property alone.

8.5 The plaintiff and I agreed that I would purchase the Property from her for the amount of $105,000.00. This amount was to be paid to the plaintiff by me in cash payments from time to time when requested by the plaintiff.

8.6 The plaintiff and I agreed that I was to use the proceeds of the sale of the Bakery to pay the plaintiff for the Property.

8.7 The plaintiff and I agreed that once the loan from Homeside was discharged, the plaintiff would transfer the Property into my name at any time on my request.

23 The first defendant's testimony in his examination-in-chief as to the payment of the purchase price of $105,000 was as follows (exhibit 13, [8.10] - [8.15]):

8.10 From in or around May 2001 to December 2001, I paid the agreed purchase price of $105,000.00 to the plaintiff in various instalment payments. These instalment payments would be paid from time to time at the request of the plaintiff and to suit her requirements. There were no agreed set of regular instalment repayments for the Property.

8.11 The plaintiff on different occasions told me that she required money for repayments on the Ballajura Property which she was paying off on behalf of Tony, for the purchase and operation of the plaintiff's deli business, for school fees for her daughter Lisa DO and for investment in Tony's short lived camera and photography business.

8.12 Whenever the plaintiff requested from me an amount of money as a part payment of the purchase price of the Property, I would either draw a cash cheque from my existing Business Cheque Account previously used for the Bakery and give it to her or would pay the plaintiff the amount requested in cash. Annexed hereto and marked 'LNV-5' is a copy of my Bank Statements from my Business Cheque Account from May 2001 to December 2001. I say that the majority of the funds withdrawn from this account were payments to the plaintiff towards the purchase price of the Property.

8.13 Several cash payments were also made by me to the plaintiff from the $30,000.00 received from Van Bao TRAN and Thi Anh Dai DINH from the amount outstanding from the sale of the Bakery.

8.14 I often made cash payments to the plaintiff between May 2001 and December 2001 towards the purchase price of the Property.

8.15 Between May 2001 and December 2001, I paid to the plaintiff the total amount of $105,000.00 being the agreed purchase price of the Property.

24 The plaintiff denied there was any agreement for the sale of the Stratton property to the first defendant.

25 However, it is not in contest that following the separation the first defendant lived in the Stratton property with his two children. The plaintiff's evidence was that the first defendant did so pursuant to an oral lease under which he paid rent; the first defendant's evidence was that there was never any lease and he never paid any rent.

26 It is common ground between the parties that they remained on at least 'amicable' terms following their separation and trusted one another.

27 It is also not in contest that the first defendant paid all water rates on the Stratton property. The first defendant further testified that he paid all council rates, while the plaintiff's testimony was that the first defendant paid council rates only for 2004 and 2005 after the plaintiff had provided him with the cash to make those payments on her behalf. The evidence of the plaintiff was also that she paid all of the annual premiums for the building and contents policy for the Stratton property from April 2001 until January 2007. The plaintiff's testimony was that this arrangement, so far as it covered the Stratton property's contents belonging to the first defendant, was pursuant to the lease agreement, whose existence as I have indicated the first defendant denied.

28 The first defendant further testified that beginning in May 2001 the first defendant also provided loans to the plaintiff by way of a series of cash advances. In his examination-in-chief he said this (exhibit 13 [8.15] - [8.17]):

8.15 Between May 2001 and December 2001, I paid to the plaintiff the total amount of $105,000.00 being the agreed purchase price of the Property.

8.16 During this period I also provided a loan to the plaintiff in the amount of $50,000.00 on top of the purchase price of the Property by way of various cash advances to assist the plaintiff with the her deli business, for school fees for Lisa DO, for repayment of the loan for the Ballajura Property and for Tony's camera and photography business. The plaintiff promised to pay me back this $50,000.00 upon my request provided I gave reasonable notice to her to repay this amount. The plaintiff never repaid me the $50,000.00.

8.17 During the period in which the loan repayments were made by me to the plaintiff for the Property and the loan of $50,000.00 was provided by me to the plaintiff, the plaintiff and I were still on amicable terms and I fully trusted the plaintiff. For this reason no formal loan documentation was created to evidence the loan repayments or the $50,000.00 by me to the plaintiff.

29 The plaintiff denied the first defendant paid or lent any money to her as he claimed.

30 By a Centrelink form styled 'Claim for parenting payment' dated 7 June 2001 the first defendant applied for assistance from Centrelink as a sole parent. The form became exhibit 1.20. The application was, it appears, successful, and the first defendant received such assistance until October 2006. There was considerable attention focussed in the cross-examination of the first defendant on the answers as shown on exhibit 1.20 to its questions, and I will return to that cross-examination below.

31 It is common ground that in August 2001 the plaintiff purchased a 'deli mixed business' which she has operated since then. On the plaintiff's evidence, which I did not understand to be challenged, she paid $67,000 for the deli mixed business. She used the Stratton property as security to refinance with Tonto (which later changed its name to FirstMac) the previous secured loan from Homeside and to take out an investment loan for the purchase of the deli mixed business. The first defendant testified that he believed the proceeds of the loan from Tonto were not used for the purchase of the deli mixed business as the plaintiff had previously told him that purchase was paid for by funds provided by him for the payment of the purchase price of the Stratton property pursuant to the oral purchase agreement and the $50,000 loan and she 'had requested various amounts of money from me specifically for the purchase of the deli business' (exhibit 13 [11.2]).

32 The testimony of the first defendant is that from the time the plaintiff purchased the deli mixed business he helped her manage the business. This continued until September 2005. The testimony of the plaintiff is that some time in 2004 the first defendant offered to work in the plaintiff's deli mixed business in lieu of the first defendant paying an increase in rent on the Stratton property. She accepted that offer and the first defendant continued to work in the business, more intensively for two months while Mr Le was away in mid-2005, until September 2006.

33 The testimony of Mr Le was that in August 2001 he returned to Perth from Sydney, began to help his mother with her deli business and started his own business. It will be recalled that it was the evidence of the first defendant that at the time of the oral agreement to purchase the Stratton property that Mr Le had 'recently returned from living in Sydney'. However, I found the evidence of Mr Le to be credible, for reasons which I will explain below, and find that indeed it was in August he returned.

34 On 19 October 2002 the first defendant brought a Mrs Thi Nhu Lien Trinh to live with him at the Stratton property. The first defendant's marriage to Mrs Trinh was solemnised in Perth on 10 December 2002.

35 In July 2004 Mrs Trinh moved out of the Stratton property for a period of about 12 months, returning to live with the first defendant there in July 2005. The move out was to do with a quarrel between Mrs Trinh and a person associated with one of the persons remaining in the Stratton property.

36 The first defendant testified in his examination-in-chief that on 27 June 2005 he received from the plaintiff a document in the Vietnamese language bearing that date and stating that he was the owner of the Stratton property, that she was willing to transfer it to him at his request and that she was indebted to him in the amount of $50,000 with an interest component on that debt. This came after he had asked the plaintiff on several occasions for the duplicate Certificate of Title and to transfer the Stratton property into his name, apparently to enable him to obtain finance for various investments he was considering. That evidence was as follows (exhibit 13 [13], [14]):

1. In or around mid 2005 I asked the plaintiff on several occasions for the duplicate Certificate of Title to be given to me to transfer to my name but she declined to do so. I had attempted to obtain finance for various property and other investments however was not successful as I had no assets in my name. I expressed to the plaintiff on several occasions that I was not happy with the current arrangement in relation to the Property. She continued to assure me that she will transfer the Property to me soon.
2. On 27 June 2005 whilst assisting the plaintiff at the deli, the plaintiff provided me with a document prepared by her in the Vietnamese language. The plaintiff said words to the effect of 'this is so you have proof that you are the owner of the Property'. Annexed hereto and marked 'LNV-7' is a true copy of the document prepared by the plaintiff and given to me on or around 27 June 2005 in Vietnamese and the English translation of this document. The document states that the plaintiff was willing to transfer the Property to my name at my request, and that the plaintiff was indebted to me in the amount of $50,000.00 and that she would pay monthly interest of $300.00. I say that I have not received payment of any of the loan to the plaintiff of $50,000.00 nor have I ever received any interest payments from the plaintiff.

37 As will be seen below, the further oral testimony of the first defendant as to when and why he was provided with this document was at some variance with the quoted evidence.

38 The original copy of the Vietnamese document of 27 June 2005 became exhibit 15. An English translation of that document was provided as annexure 'LNV7' to exhibit 13. I will refer to that translation of exhibit 15 from this point. That translation assumed some importance at the trial and read as follows:

Perth 27/06/05

I am: Duong Thi Tuyet Anh

Date of birth: [date]

Licence No#: [number]

Passport No#: [letter and number]

I hereby write this document to certify that the house number 48 Brilliant Rise Stratton is in the ownership of Mr Vo Ngoc Luong, I only have my name on the paper. Whenever Mr Luong wants to sell or transfer, I am willing to sign the documents.

I currently owe Mr Luong an amount of $50 000.00 (Fifty thousand dollars) and pay monthly interest of $300.00 (Three hundred dollars). Whenever Mr Luong needs the amount of money mentioned above, please inform me 6 months in advance.

Perth 27/06/05

Signed

Duong Thi Tuyet Anh

39 The plaintiff in her evidence denied ever writing exhibit 15. As will be seen a Mr John Douglas Gregory was called by the first defendant and gave evidence as to who wrote the signature in (the questioned signature) and who did not write the contents of (the questioned writing) exhibit 15. I return to Mr Gregory's evidence in some detail below, as that evidence was central to the first defendant's case, both on his defence and on his counterclaim.

40 The plaintiff's evidence in her examination-in-chief was that in 2004 she borrowed $25,000 from her daughter, Ms Do, and in 2005 $46,800 from her son, Mr Le, which she applied to the repayment of the debt due FirstMac (formerly Tonto) secured on the Stratton property. The evidence of Ms Do, as to the loans from her, was to the same effect. The documentary evidence with respect to the payment out of the debt due FirstMac (exhibits 1.48, 1.49 and 1.52) would indicate that a sum of $46,800 received from the plaintiff enabled the final payment on the debt to be made.

41 The first defendant denied that Ms Do and Mr Le had made any such loans on the basis the former was a fulltime student and the latter was unemployed at the time.

42 However, the unchallenged evidence of Ms Do was that in 2004 she was working part-time as a pharmacist and had savings in the amount of $20,000. There was also evidence from her and from the plaintiff that her father in Vietnam had provided $10,000 to the plaintiff to give to Ms Do in December 2004. The evidence of the plaintiff was only faintly challenged by the first defendant in cross-examination. I consider, on my assessment of the credibility of Ms Do and of the plaintiff to which I return below that it is more likely than not that the plaintiff did borrow $25,000 from Ms Do which the plaintiff applied as I have indicated.

43 As to Mr Le, his evidence was that he had been operating a business from November 2001 onwards, and in 2005 he had funds in an equity account for the business from which he withdrew $46,800 to lend to the plaintiff. On the basis of my assessment of the credibility of Mr Le, who gave his evidence in a clear, coherent and consistent fashion, and my assessment of the credibility of the first defendant, to which I return below, I consider it is more likely than not that in 2005 the plaintiff borrowed $46,800 from Mr Le which the plaintiff applied as I have indicated.

44 It is common ground that in September 2005 following the discharge of the mortgage over the Stratton property the plaintiff received the duplicate certificate of title to that property. The plaintiff's evidence was that she never parted with possession of it, but discovered it was missing from the place where she had kept it at her deli mixed business on 24 December 2006. On her evidence the first defendant had access to that place and knew the duplicate certificate of title was kept there as a result of a conversation he had with the plaintiff in the business premises in or around May 2006. The first defendant's evidence was that shortly after the plaintiff received the duplicate certificate of title the plaintiff at his request had given him the duplicate certificate of title which he kept subsequently at the Stratton property. I return to this conflict in the evidence below, where I describe its resolution by reference to my findings on the principal issues in this action and the credibility of the evidence of the plaintiff and of the defendant.

45 By a document filed in the Magistrates Court in Midland on 13 March 2006 the plaintiff applied for an order. It was common ground that that application was for an order to evict Mrs Trinh from the Stratton property. The parties to the application were shown as the plaintiff and Mrs Trinh. It was further common ground that the matter was referred for mediation later in March and that the mediation was to be by the Midland Debt Information and Legal Advocacy Service Inc (MIDLAS). On the evidence from the MIDLAS file (exhibit 8) the correspondence in the mediation was directed to both Mrs Trinh and the first defendant.

46 The first defendant was cross-examined on the contents of exhibit 8 for what he had said during the mediation as to leasing the Stratton property. He made no admissions as to having said during the mediation that he was leasing the property or might at any time be evicted from it.

47 I reserved my opinion on the question whether or not the contents of the file, and other evidence as to what transpired during the mediation, was privileged. As counsel for the plaintiff conceded, it was not possible to say of the first defendant that he had waived any privilege of his in respect of what he had said during the mediation. While the plaintiff had waived her privilege, in my view it also could not be said that Mrs Trinh had waived her privilege.

48 In my view, as a party to the mediation, the first defendant was in a position to claim a privilege in respect of what he said and how otherwise he conducted himself during and for the purposes of that mediation. I note for this purpose that forming part of exhibit 8 were the notes of a meeting which the plaintiff and the first defendant (but not Mrs Trinh) are shown to have attended on 2 May 2006, and those notes, compiled by an officer of MIDLAS who was present at the meeting, were headed 'Without prejudice file notes'. The first defendant testified he did not recall the detail of that meeting. In my view evidence from exhibit 8 of such communications by the first defendant including records of them by others, whether headed 'without prejudice' or not, would have such a privilege. Thus, the letter from MIDLAS addressed to the first defendant and Mrs Trinh, which was 'sent as confirmation of the agreement made during the mediation session on 2nd May 2006', a letter which the first defendant testified he could not recall seeing, would it seems to me, at least to the extent it reflected such communications or other conduct by the first defendant, attract privilege. See Heydon J D, Cross on Evidence (7th Aust ed, 2004) [25355] and authorities cited at n 689.

49 Thus I put aside the contents of exhibit 8 which reflect what the first defendant said and how otherwise he conducted himself during and for the purposes of the mediation.

50 However, it was not in contest that the first defendant did not in the course of the proceedings in the Magistrates Court draw the attention of the plaintiff to exhibit 15. The first defendant testified in cross-examination that he considered the matter of the proceedings, at least as at the time of the letter of 29 May 2006 from MIDLAS, to be one between the plaintiff and Mrs Trinh, and 'it did not concern me', although had Mrs Trinh asked for help, he 'would likely see what it is if I can help her' (ts 307).

51 It was also not in contest that Mrs Trinh was allowed to remain in the Stratton property until November 2006.

52 The first defendant gave evidence that in July 2006 the plaintiff provided him with a piece of paper containing in Vietnamese her calculations of the cost of transferring the Stratton property into his name. The plaintiff's evidence was that she did not recognise the handwriting on the piece of paper referred to. I had no other evidence as to the authenticity of this document. Mr Gregory in his evidence did not address it, nor was I addressed further on it. In those circumstances I consider the weight I should assign to it at most to be very slight.

53 The first defendant also gave evidence that the plaintiff 'did acknowledge to me at various times that she was obliged' to transfer the Stratton property to him. I took this evidence to be denied by the plaintiff's denials in relation to exhibit 15.

54 On 20 August 2006 the plaintiff signed a transfer of land form (the transfer of land form) under the Transfer of Land Act 1893 (WA) (TL Act) for the Stratton property from her to the first defendant (exhibit 3, annexure 'C'). She also, at that time, signed a document headed 'Schedule Form 1: Appointment of a Settlement Agent' in respect of that transfer (exhibit 1.59). The evidence in their respective examinations-in-chief of the plaintiff and the first defendant as to these signings is as follows.

55 The plaintiff's initial examination-in-chief (exhibit 3 [18] and [19]):

1. In August 2006 the First Defendant telephoned me and said words to the effect 'Centrelink has changed their rules regarding rental assistance. I need to get you to sign three forms rather than the usual single form'.
2. Shortly after this telephone call the First Defendant brought some papers to me at my shop at Beechboro. I can recall that the first page was from Centrelink with the usual Centrelink logo but I didn't sign on that page. I signed other pages although I didn't read the content of the documents. Because of what the First Defendant had said to me, I believed that I was signing Centrelink forms which related to the First Defendant obtaining a rental assistance allowance on the basis he was paying rent to me for the property. I was born in Vietnam and my English is quite limited. Further, I completely trusted the First Defendant at the time. When I now look at the Transfer which is annexure 'D' hereto, I see that the First Defendant tricked me into signing the transfer to transfer the property to him. At no time did I intend to transfer the property to the First Defendant. I have not received any consideration for the transfer of the property. I had no contact whatsoever with the settlement agent who assisted the First Defendant to register the transfer of the property from my name to the First Defendant's name.

56 The defendant's examination-in-chief (exhibit 13 [24.1] - [24.3]):

I deny paragraph 19 of the plaintiff's affidavit and say as follows:

24.1 When I attended the plaintiff's deli on the 20 August 2006, there was a Ms Thu Ha NGUYEN who was at present at the deli at the time. I was aware that Ms NGUYEN is a translator and a friend of the plaintiff. The documents were all signed and witnessed in the presence of Ms NGUYEN. I say that Ms NGUYEN translated the documents the plaintiff. The plaintiff said to Ms NGUYEN words to the effect of 'The Property belongs to him and was just held in my name'. The plaintiff then signed the Transfer of Land and Notice of Appointment willingly and in the presence of Ms NGUYEN and me. Ms NGUYEN then signed the Transfer of Land and recorded her details as witness to the signature of the plaintiff. The plaintiff then gave me these documents and I left the plaintiff and Ms NGUYEN at the deli.

24.2 I say that the plaintiff was fully aware of the nature of these documents and was willing to sign them as she was holding the Property on trust for me. I say that the plaintiff has received the amount of $105,000.00 as consideration for the transfer of the Property pursuant to our agreement in April 2001.

24.3 As I required the Property to be transferred to me, I made all arrangements for the transfer and there was no need for the plaintiff to deal with Vincent Settlements after the Notice of Appointment and Transfer of Land were executed by the plaintiff.

57 The plaintiff's further examination-in-chief (exhibit 5 [40], [41]):

1. I deny paragraph 24.1 of the First Defendant's affidavit and assert that Ms Thu Ha Nguyen never translated any documents to me on 20 August 2006. At the time, Ms Nguyen was visiting my deli business as a customer as she had occasionally done so. The First Defendant came to deli business about 5 minutes prior to Ms Nguyen's arrival. When Ms Nguyen arrived at my deli business, the First Defendant was explaining about Centrelink's strict requirements for Rent Assistance. He then asked Ms Nguyen to witness my signature on a document without specifying what it was for. With Ms Nguyen's agreement, the First Defendant gave me one of the documents to sign and Ms Nguyen signed underneath my signature. Ms Nguyen then left my deli business immediately. She never asked what the documents were for.

4.1 I refer to sections 24.2 and 24.3 in paragraph 24 of the First Defendant's affidavit and assert that I was not at all aware of the documents being for the transfer of the property. I was made to believe by the First Defendant that those documents were for Centrelink to prove his rental arrangement for the property. The First Defendant made all arrangements for the transfer of the property with Vincent Settlements without my knowledge to avoid the detection of his fraudulent act.

58 Mrs Nguyen also testified as to one of the signings by the plaintiff on 20 August 2006, and I will consider her evidence below.

59 On 13 September 2006 by registration of transfer T J913030 the first defendant became the registered proprietor of the Stratton property.

60 On or about 27 December 2006 the plaintiff signed an absolute caveat in respect of the Stratton property claiming an estate or interest by virtue of a 'statutory declaration that owner has lost original certificate of title due to theft and unauthorised transfer of land to the current proprietor'. This caveat became Caveat K039874 and on 14 November 2008 its operation was by order of Le Miere J extended pursuant to TL Act s 138C until further order of the court.

61 Finally, on 23 March 2007, there was a hearing on an application by Mrs Trinh for a restraining order against the first defendant. In the course of that hearing as shown by the transcript of it Mrs Trinh was asked by the magistrate in the presence of the first defendant whether the house she had been living in with the first defendant was 'rented or did you own the house?'. Mrs Trinh replied 'it is a rented house' (exhibit 1.66, ts 7). Counsel for the plaintiff put to me that it was a matter to be weighed by me against the first defendant's denials in these proceedings that he rented the Stratton property that he did not intervene at this point or elsewhere in the proceedings as shown by that transcript. However, as counsel frankly, and correctly in my view, conceded, the matter was not 'hugely persuasive'. It was not made evident to me that the matter called for intervention. I also note that the transcript carries at its commencement a 'reporter's note' which is that 'this is an interpreted hearing; only one channel working; very poor quality' (exhibit 1.66 ts 2).

62 As framed by the pleadings, and the trial unfolded, there were four principal issues.

63 The first issue was whether or not there was the oral agreement to sell the Stratton property claimed by the first defendant. The second issue was whether or not there were the oral loan arrangements claimed by the first defendant. The third issue was whether or not exhibit 15 was authentic, in the sense that the plaintiff had signed it. The fourth issue was whether or not the plaintiff was deceived as to the natures of the documents she signed on 20 August 2006.

65 The plaintiff by her claim is seeking both a declaration of a continuing interest as owner in the Stratton property, and to upset the position of the registered proprietor of the Stratton property, the first defendant.

66 The claim for a declaration, as counsel for the plaintiff agreed, is one that must be understood as a claim for a declaration of beneficial ownership. Unless and until the plaintiff becomes registered proprietor of the Stratton property again, she cannot be declared to be legal owner: see Sykes E I, Walker S, The Law of Securities (5th ed, 1993) 225 - 226. To make good the plaintiff's claim to be declared beneficial owner, the burden is on the plaintiff to show that the defendant's claim relating to the oral purchase agreement (issue (1)) should be not sustained.

67 The claim to upset the position of the current registered proprietor of the Stratton property was, counsel for the plaintiff accepted, one to which the indefeasibility principle in TL Act s 68(1) applied. That provision protects the position of the registered proprietor, 'fraud' aside. If the plaintiff has made good her claim as to the circumstances under which her signatures to the transfer and related document concerning the Stratton property were obtained (issue (4)) the fraud exception would apply. See Bradbrook A J, McCallum S V and Moore A P, Australian Real Property Law (4th ed, 2007) [4.200] - [4.225]. If exhibit 15 is authentic (issue (3)), or there was the oral purchase agreement as the first defendant claimed but the plaintiff denied (issue (1)), then the burden on the plaintiff to convince me that the fraud exception applied would on the way this action was fought be impossible to discharge.

68 Of particular importance, where a claim of fraud is involved in each of issue (3) and issue (4), is the law as to the standard of proof in relation to such claims. I take the following as a convenient statement of that law in a case like this one where the authenticity of a document is in issue: New Resource Holdings Pty Ltd v Lunt [No 2] [2008] WASC 140 [6] - [7] (Templeman J), referring to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170:

Despite the seriousness of the allegations made by the plaintiff, it is required to prove its case only on the balance of probabilities. However, it is necessary to keep in mind the well known passage in the judgment of Dixon J in Briginshaw ...:

'The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish LJ says: 'No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct' (361 - 362).

More recently, in Neat Holdings ..., the majority of the High Court said:

'The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct (170 - 171). (footnotes omitted)

69 In relation to the question of the authenticity of exhibit 15 there are a number of principles having to do with expert evidence I must employ to which I refer below in my consideration of issue (3).

70 In relation to the first defendant's counterclaim, the burden of proof is of course on the first defendant and the standard of proof is one to which the quoted remarks from New Resource do not in my view apply. The first defendant's counterclaim is issue (2). If exhibit 15 is authentic (issue (3)) then the defendant's burden of proof with respect to issue (2) would likely have been discharged.

71 I turn now to the issues in the trial I have listed.

72 In considering whether or not there was such an agreement, I put aside one matter, that of the price under the oral purchase agreement. While the increase in price over period of about 16 months since purchase from $104,000 to $105,000 might seem small, and the amount stated in the transfer of the land to the first defendant (exhibit 1.2), of $260,000, on which the first defendant paid stamp duty on 13 September 2006 (exhibit 1.60), might be taken to indicate that $105,000 was indeed a low price, I have no admissible valuation evidence of the land as at April 2001, the date of the alleged oral purchase agreement.

73 In considering whether or not there was such an agreement, I consider of particular relevance are the matters of the plausibility of such a sale having taken place, having regard to the relations between the parties at the time (including my finding as to the contribution by the first defendant towards the mortgage repayments on the Stratton property), the evidence as to the means of the first defendant at that time, the evidence as to the practices of the first defendant in relation to transactions of this size and the evidence as to the reasons for the sale. Also of particular relevance is the evidence as to the parties' subsequent conduct, including the evidence of Mrs Trinh, and the evidence as to the payment of rent and council and water rates by the first defendant and building and contents insurance premiums by the plaintiff; and other matters going to the credibility of the plaintiff and the first defendant.

74 As to the plausibility of an oral agreement for the sale and purchase of the Stratton property by the plaintiff to the first defendant in April 2001, shortly after their separation, I note first that as I have indicated it is not in contest that the relations between the two at that time were amicable, and there was trust between them. On the first defendant's evidence, indeed, their relationship was 'like a boyfriend and girlfriend' and 'sometimes I went to her place' (cross-examination, 26 March 2009, ts 320). Further, there is the finding I have made as to contributions having been made by the first defendant towards the repayment of the mortgage on the Stratton property, which might go to indicate that the first defendant might have been interested in the purchase of the Stratton property. And there is no doubt the first defendant continued to live in the Stratton property with his children and, later, his wife, Mrs Trinh.

75 At the same time, the evidence as to the means of the first defendant at the time to meet an obligation to pay $105,000 for the Stratton property, at least within the time frame of April 2001 to December 2001 within which on the first defendant's evidence he met that obligation, gives considerable reason to doubt an agreement giving rise to such an obligation was entered into in April 2001. The evidence is as to the funds in the account he maintained for the business BBH's French Hot Bread over the period April 2001 - December 2001, as to the payments made out of that account to the plaintiff over that period, and as to the first defendant's other cash resources.

76 The evidence as to the funds in the account, in the form of statements of account from the period 4 May 2001 - 6 December 2001 (exhibit 1.8), is that there was a deposit in the account on 22 May 2001 of $82,612.84 which took the balance in the account to its highest level over the period of $108,993.57. As at the last entry in exhibit 1.8, on 6 December 2001, the closing balance was $2,893.88. The first defendant admitted that the proceeds of the sale of BBH's French Hot Bread were deposited in that account (ts 322).

77 Over that period it was common cause that on that evidence the first defendant made payments out of that account to persons other the plaintiff of at least $52,362.74 (see the analysis of the cheques drawn on the account over the period to the end of November 2001 (exhibit 26) and the first defendant's evidence in his cross-examination, 26 March 2009, at ts 326 - 327). The evidence as to payments out of that account over December 2001 (from exhibit 1.22) shows that further amounts totalling $451.55 were paid out over that period, with no further amounts paid to the plaintiff. It was further common cause that the total the first defendant paid out of that account to the plaintiff was no more than $53,437.55.

78 On the plaintiff's evidence, however, the largest single payment part of that sum was $27,437.55, by a cheque dated 7 August 2001. That sum represented the amount of $25,000 which on the plaintiff's evidence the first defendant borrowed from her to set up his bakery plus an amount representing compensation by the first defendant to the plaintiff for underpayment of her work when she worked for him in BBH's French Hot Bread (ts 30). I should note, however, that the matter of that compensation does not sit comfortably with her examination in chief (exhibit 5 [8], referring to the total sum as 'repayment of monies he had borrowed from me in 1998 to set up his bakery'). On the first defendant's evidence the sum of $27,437.55 represented part of the payments of the purchase price for the Stratton property (exhibit 13 [8.12]). The indebtedness to her of $25,000 derives some support from the balance sheet as at 30 June 2001 for BBH's French Hot Bread (exhibit 1.27) which shows under the heading 'Non-Current Liabilities Financial Liabilities Unsecured: Loans from other persons' $25,000. The first defendant's evidence was that that amount represented a loan, not by the plaintiff, but by a financial company (ts 333), although he could not remember the name of the company (ts 330).

79 It needs to be remembered that, over the period April 2001 - December 2001, on at least one account the first defendant gave in evidence, he also made cash advances to the plaintiff under the oral loan arrangements, totalling $50,000. I will, however, have occasion to refer to another account in the first defendant's evidence in that regard, in the next section of these reasons.

80 The first defendant's evidence was that he did not make all of the payments of the purchase price from the proceeds of the sale of BBH's French Hot Bread. His evidence was that he also used 'cash reserves' for the purpose (ts 321). His evidence as to the source of those reserves was that they were accumulated savings from his work in BBH's French Hot Bread. Those reserves were not kept in any bank account, but at the Stratton property (ts 321).

81 However, the evidence as to the income of the first defendant, as shown in the tax returns for the taxation years 1998/1999, 1999/2000 and 2000/2001 (exhibits 1.11, 1.12 and 1.26, respectively) was that his annual taxable income, including his income from BBH's French Hot Bread, over that period was in the range of $25,580 - $26,706. The first defendant's evidence was that he also derived significant cash amounts from trade debtors of BBH's French Hot Bread for whom there were no written accounts (ts 355 - 356), although he agreed that the amounts were not shown on the balance sheets for BBH's French Hot Bread, on his evidence because no documentation was involved (ts 356).

82 I also need to note certain answers recorded to questions in the first defendant's Claim for Parenting Payment to Centrelink dated 7 June 2001 (exhibit 1.20). Under Question 45, 'Have you (or your partner) done any paid work in the last 12 months?' there is the handwritten entry '3 week ago SOLD BAKERY NOTHING LEFT AFTER ALL THE BILLS WERE PAID'. Alongside the Question 40 'Do you (or your partner) have any cash on hand other than for daily expenses?' the box 'No' is ticked. The first defendant's explanation for the first entry is that he was taking account of what he owed the plaintiff under the oral purchase agreement (ts 352), although I find the explanation not an easy one to believe.

83 I return to exhibit 1.20 shortly, for the bearing of other answers in it on the matter of whether the first defendant paid rent on the Stratton property, and for the bearing of those answers on the first defendant's credibility. For now, I note one further question and its answer in exhibit 1.20. Question 39 was 'Do you (or your partner) have any money held in bank, building society or credit union accounts' which was stated to include 'joint accounts, accounts in any other name', and the box 'Yes' alongside which was ticked. Under that box there was a handwritten reference to a bank account, with '$211' entered alongside the form's 'Account balance (total)'. The first defendant explained the discrepancy between the figure recorded on the form and the higher balance at that time in the account under his name trading as BBH's French Hot Bread, on the basis that that was an account for 'the factory' which was required to be used to pay for the Stratton property (ts 353). As with his explanation to the answer to Question 45, I find the present explanation not an easy one to believe.

84 As to the evidence of the practices of the first defendant in relation to transactions of this size there is the documentation of the obligation of the purchasers of BBH's French Hot Bread to pay $30,000 of the price of $130,000 (exhibit 1.19).

85 The plaintiff's evidence was that this fitted the first defendant's 'character' which was to 'require formal documentation for a large sum of money owed to him' and 'thus it would be unreasonable for the First Defendant to not require me to provide formal documentations to evidence the payments in total of $155,000' (exhibit 5 [18]) (which I understood to be a reference to the total of the purchase price of the Stratton property and the loan arrangements), and the relevance of which to the present issue would lie in the likelihood the first defendant would have wanted some documentation of his purchase or his satisfaction of its obligations. In her cross-examination the plaintiff amplified this evidence somewhat, to say that the first defendant's relationship with at least one of the purchasers of BBH's French Hot Bread was closer than that with her (ts 57).

86 However, the first defendant's evidence in this respect was the following:

[HANLY, MR:] Why was it that you didn't obtain something from the plaintiff, such as this document which is exhibit 15, until sometime after 27 June 2005?---I have said that although we are not living together as husband and wife but our relationship was that of a boyfriend and girlfriend. For that reason I trusted her completely. In every matter she wrote down all the details but I did not write down any details at all.

What I'm suggesting is, it's quite a long time, three and a half years, for you not to seek or obtain from Mrs Duong some sort of document acknowledging that you were the owner of the house and that you had paid for the house?---The reason, like I said, I have fully trusted her and I asked her to transfer the title to me when I need to use that title for a business (ts 346 - 347).

87 I find the first defendant's evidence that 'I did not write any details at all' difficult to square with exhibit 1.19. The first defendant's explanation for the lack of documentation for a transaction of the size of the oral purchase agreement is one I find not easy to believe.

88 As to his evidence as to the reasons for the oral purchase agreement, I note the first defendant's account, that the transaction was the plaintiff's initiative, motivated by her joint purchase, with Mr Le, of a new house, Mr Le having recently returned from Sydney (exhibit 13 [8.3], above). However, I have already noted that Mr Le in fact returned from Sydney some time later than the time, on the first defendant's evidence, of the oral purchase agreement and that the new house in question had been the subject of a transfer to Mr Le dated 12 March 2001. This evidence in my view strongly tells against an initiative having been taken by the plaintiff of the kind testified to by the first defendant.

89 As to the evidence regarding the parties' subsequent conduct, I begin by noting the evidence of Mrs Trinh not only that she paid rent on the Stratton property for herself and her husband (exhibit 7 [7]) but that the first defendant 'never spoke to me about buying the property or the property being transferred into my name' (exhibit 7 [8]). The first defendant's evidence includes denials of both matters of her evidence. I consider the evidence as to rent below. My conclusion as to that matter, that the evidence strongly supports the payment of rent by the first defendant on the Stratton road property, strengthens my conclusion, from the way Mrs Trinh gave her evidence, that her evidence is to be believed in respect of the other matter, that of the first defendant never having spoken to her about having bought the Stratton property. Her evidence in my view provides significant support for the plaintiff's claim that there was no oral purchase agreement.

90 I note the evidence that the first defendant paid rent on the Stratton property after April 2001. That evidence was in the form of his answers to that effect in the Centrelink Claim for Parenting Payment (exhibit 1.20), rent certificates he acknowledged he had obtained from the plaintiff to provide to Centrelink for the purposes of receiving Centrelink rent assistance benefits and receipts issued to him by the plaintiff for rental payments, receipts which he also provided to Centrelink.

91 The first defendant's answers to questions at to rent in exhibit 1.20, were as follows.

92 To Question 19 'Which of the following best describes your accommodation?', there is a tick alongside 'I pay rent, board, lodgings or fees for the place in which I live'.

93 To Question 25 'How much rent do you (and your partner) pay for your accommodation each week?', under which appears 'You may be entitled to Rent Assistance', there is the handwritten entry for each of 'Your share' and 'Total rent for the property' '$150.00'.

94 To Question 27 'Do you have a formal lease or tenancy agreement?' there is a tick in the box 'No', alongside which the Claim form states 'You will need to complete a Rent Certificate.'

95 To Question 28 'Who do you pay for your accommodation?' there are the handwritten entries, in the box 'Name', of the name of the plaintiff, and in the box 'Address', of 'Ballajura'.

96 To Question 29 'What type of rent, board, lodging or other fees to you pay for your accommodation?' there is a tick alongside 'Rent to a private landlord or real estate agent (for a house, flat, unit, caravan, mobile home or boat'.

97 As to the matters of the rent certificates and rent receipts, the first defendant's evidence was that persons from Centrelink asked him for rent receipts when he completed exhibit 1.20, and 'I told them I don't have it with me now' (ts 192). As to his subsequent obtaining of rent certificates and rent receipts which he then provided to Centrelink, his principal evidence was as follows. In the course of that evidence he referred to exhibit 6, a rent receipt book of the plaintiff's with copy receipts each in the amount of $520, the first dated 10 April 2004, with subsequent ones dated at monthly intervals thereafter to 20 December 2006. He also referred to exhibit 1.34, a Centrelink Rent Certificate signed by the plaintiff dated 22 September 2003 showing rental payment of $150 per week. His evidence in cross-examination was as follows (ts 193, 194 - 195, 197 - 198):

HANLY, MR: You are looking at exhibit 6 which is a rent receipt book. Are you referring to pages from that that you gave to Centrelink?---Every time I was asked by Centrelink and then I ask Ms Duong to provide this to me.

Indicating, your Honour - the interpreter indicates the book, exhibit 6. I'm not quite sure that this book Ms Duong is provide this to me, but every time I need,(indistinct) and then Mrs Duong make the receipt similar to this.

And you gave the originals of those receipts, from time to time, to Centrelink, did you?---Yes.

And there was a similar receipt book similar to exhibit 6 prior to the first date in that book, was there? First date which I think is in 2004.

...

HANLY, MR: But at the same time, you got Mrs Duong to fill in the certificate which you held up at page 211 of exhibit 1, she also gave you rent receipts out of that little book, or a similar little book. Is that right?

---Yes, yes. If Centrelink ask me to provide them the rent certificate - this one - I will provide it to them. If Centrelink ask me to provide rent certificate and rent receipt, I also ask Mrs Duong to fill it in for me - make it for me and then send it back to Centrelink.

Yes. Now, looking at exhibit 6, did you ever ask Mrs Duong to issue you with rent receipts like you see copies - carbon copies of which you see in exhibit 6?---I don't need to know whatever is Mrs Duong book. Every time Centrelink ask me to provide them the rent receipt, I see Mrs Duong and ask her to make rent receipt for me.

And did she do that?---Yes.

And did she give you rent receipts?---Yes.

And did she give you rent receipts from that book, exhibit 6?---As I told you, I don't know how many books Mrs Duong had. I already told you that every time I need the rent receipt and then I see Mrs Duong to ask her to make one for me.

All right. In that period covered by that book, exhibit 6, from 10 April 2004 to 20 December 2006, did Mrs Duong give you any receipts from that book which you then gave to Centrelink?---Sorry, from the period of?

The period, I think the first one is 10 April 2004; the last one is 20 December 2006?

THE INTERPRETER: The last one is 20?

HANLY, MR: 20 December 2006?---I already answered your question. I don't know how many receipt book Mrs Duong own or Mrs Duong has. Every time I need the rent receipt for Centrelink, I come to see Mrs Duong and Mrs Duong help me to make one for me.

She was happy to fill in the rent certificate which you see on page 211. Did she also fill in rent receipts for you from that book, exhibit 6, for you to take away to give to Centrelink?---I already answer you. If Centrelink ask me to bring back this form at the time, then I bring the form to Mrs Duong and she filled in and then I send it back to Centrelink. If at the same time Centrelink ask me to provide them rent certificate and rent receipt, and then I will see Mrs Duong to get both of them and then send it back to Centrelink.

...

The rent receipts that you were issued by Mrs Duong, are they the same as rent receipts from that book, exhibit 6?

---Yes, is similar but I don't know that is from this book or not. Is similar.

The receipts you got given to you by Mrs Duong are similar to the receipts that would be torn out of that receipt book?---This is in this paper, this blank paper.

Your Honour, he's pointing to an original, a page beyond the last page that was torn out.

SIMMONDS J: All right. We should say that the 'he' you're referring to is Mr Vo.

HANLY, MR: I'm sorry, yes.

Could you just hold it up again, please sir?

SIMMONDS J: Yes, now - - -

HANLY, MR: What page number is that?

SIMMONDS J: Could you pass that through the associate first to Mr Hanly? Held open like that?---Yes, he said that the original is similar to this - - -

Yes. Pass that first to Mr Hanly.

HANLY, MR: Yes, your Honour, thank you.

SIMMONDS J: And then to me. Yes, for the transcript, it is a page, right-hand page from exhibit 6, blue ink printing 'ORIGINAL' on the upper left, 'RECEIPT', all capitals, in the middle, date, 'received from', 'the sum of', 'being for', dollar sign and 'signature', and the number in the right hand side, upper portion, '42'. Yes, that can go back to the witness.

Thank you, Mr Vo. Mr Hanly?

HANLY, MR: So what you're saying, Mr Vo, is that whenever you asked Mrs Duong, she issued you with receipts that were filled in like page 42 that you just showed his Honour?---Yes, the plain paper, the white paper.

98 I should note that the date of the last copy receipt in exhibit 6, 20 December 2006, was on the plaintiff's evidence in error (exhibit 5 [22], [23]). However, in my view this error has no bearing in this case, given the evidence of the first defendant just quoted that the first defendant did seek and obtain receipts of the sort copies of which are in exhibit 6.

99 It may be noted that this evidence, as to the rent receipts, sits most uncomfortably with the form of the denial by the first defendant that he paid any rent, in the first defendant's examination-in-chief (exhibit 13 [10.1]) as follows:

10.1 I have never paid rent to the plaintiff for the Property, have never seen or been issued any of the rent receipts in Annexure 'E' of the plaintiff's affidavit and verily believe that the rent receipts have been conveniently prepared to substantiate the plaintiff's claim that I paid rent for the Property. I do not know where the plaintiff has come up with the figure of $130.00 per week rent.

100 I should note that the rent receipts in exhibit 6 in amounts corresponding to $130 per week may be contrasted with the figure of $150 per week shown in exhibit 1.20 and the rent certificate exhibit 1.34. The plaintiff's evidence was that she 'usually' signed the rent certificates in 'blank form' (19 March 2009, ts 79). She was not challenged on this evidence, and the first defendant's evidence as to the matter was as follows (ts 191):

HANLY, MR: You said that you were asked by Centrelink how much you paid for your accommodation each week, and then I asked you what was your answer to that question?---At first Mrs Duong give the receipts that is $130 a week, and I declare with Centrelink that $130 a week.

That was at some later time though, wasn't it? Not at the time you filled in this form which you have open in front of you?---Yes, at the time the form was filled in, they asked, and then I told them $130 a week.

101 This answer is of course inconsistent with what appears in exhibit 1.20 as to the weekly rent the first defendant is shown there to be paying on the Stratton property.

102 The first defendant's explanation for the answers to the questions as to rent on exhibit 1.20 was that he had required the assistance of a Centrelink officer to fill out the form, even although the answer to Question 60 in exhibit 1.20, 'Did some one help you fill in the form?' is a tick in the box 'No'. His evidence was as follows (ts 185):

[HANLY, MR:] Just above this signature there's a question, 'Did someone help you fill this form in?' and you ticked, 'No'?

---Because I don't understand the content of the form and when Centrelink officer help me to fill in this form, there wasn't anyone who stand there who can help me to understand this form.

All right. So where the box is ticked that nobody helped you fill in the form, that's wrong is it?---Because I don't know how to fill in the form, and then the officer just fill the form for me.

...

What I asked you was to say whether you agree that the answer given at question 60 is incorrect because you say that somebody did help you fill in the form?---Because I already told you that I don't know - I don't understand the English words in this form, so the Centrelink officer help me to fill in this form.

Well, you were asked some questions by the officer from Centrelink in order to fill in this form. Is that correct?---Yes, but my English speaking, I don't know that Centrelink officer understand me or not. They just help me to fill in this form.

103 However, this explanation is difficult to believe to the extent it says the Centrelink officer 'just fill the form for me', if by that is meant (as it appears it was meant) without regard to what the first defendant was saying to him. I note in particular the places in the form where there is handwritten text, rather than a tick, to or alongside a number of the questions in exhibit 1.20, handwritten text I have already referred to. That text is in relation to Questions 45, 39 and 25, above.

[HANLY, MR:] Centrelink asked me whether I have a house or not. I report to Centrelink that I own the house but I don't have the name on the house (indistinct) and the Centrelink officer told me that if I don't have any name on the property - on the house, so they will assist me in receiving rent assistance.

105 The first defendant's explanation for the statement as to the rent receipts in his examination-in-chief (exhibit 13 [10.1]) above was as follows (ts 202):

[HANLY, MR:] Why do you say in your affidavit in paragraph 10.1 that you have never been issued with rent receipts but you have told the court today that you were issued with rent receipts?---Yes, in my affidavit, because I never pay for rent; I never rented the house, so I claim it in my affidavit. I also told you that whenever Centrelink need me to provide to them the rent receipt, then I see Mrs Duong and ask for rent receipts. I didn't say that I renting the house.

I know, but what you did say is that you were never given - you have never seen or been issued any rent receipts, which is the opposite to what you have said to the court today?---According to my knowledge - according to my understanding

THE INTERPRETER: Sorry, I need to ask him to repeat his question. I'm lost?---Everything I say in here is that I tell the truth. I didn't pay the rent because I didn't rent the house, so I cannot say that I received the receipt - the rent receipt. But I accept that every time Centrelink need me to provide to them the rent receipt and then I see Mrs Duong in order to get the rent receipt.

HANLY, MR: Yes, you have said that, but you still haven't explained why you said you had never seen or been issued with any rent receipts by Mrs Duong in your affidavit?---Because I think when I declare in the affidavit, I think that I didn't rent the house. I didn't have any receipt from Mrs Duong.

Well, it's a completely different thing to say whether you rented the house. What you are being asked about is whether you had ever seen or been issued with rent receipts whether or not you paid rent?---Because, to my knowledge, I think that I didn't rent house so I don't receive the rent receipt, but I accept that whenever Centrelink need me to provide to them the rent receipt, then I see Mrs Duong to get the rent receipt.

106 Allowing for the fact of the first defendant's evident difficulty with English, I consider that the first defendant's explanation was that he did not recognise the documents as rent receipts because of his understanding as to the ownership of the Stratton property. This is an explanation, of what is in my view is clear language in his affidavit as to rent receipts, that I find not easy to accept.

107 In my view, the body of evidence provided by the first defendant in explanation of his conduct which is not easily squared with the oral purchase agreement is not easy to believe.

108 I have already noted the evidence of the first defendant and the plaintiff as to the payment of council and water rates by the first defendant and the plaintiff's payment of building and contents insurance on the Stratton property. I leave aside her evidence that she paid for the coverage of the first defendant's property at the Stratton property under the contents insurance pursuant to the lease under which on her evidence he lived at the property.

109 I consider that I have no reason to doubt that the first defendant paid all of the water rates, while the plaintiff paid the building and contents insurance on the Stratton property. However, these matters were not pressed on me in the argument for the plaintiff and I do not consider they have a very large bearing on the resolution of issue (1). They appear to me to be as likely to be consistent with the first defendant having become beneficial owner of the Stratton property, where the plaintiff remained liable under the mortgage on the property, as with there having been no sale and purchase of the property and the first defendant remaining there under a lease.

110 As matters going to the credibility of the plaintiff I found no reason from her evidence on the matter of the oral purchase agreement or indeed the remaining issues to doubt her testimony that she did not sell the Stratton property to the first defendant in April 2001 or at any other time. She gave her evidence in a clear and (with the exceptions of the tension between her examination-in-chief and her cross-examination as to the sum of $27,437.00 paid to her by the first defendant I previously noted) coherent and consistent fashion. The documentary evidence I have reviewed in relation to the oral purchase agreement is consistent with her account (with the exception of the amount of the weekly rent on the Stratton property that I considered above). That same evidence is either inconsistent or in some tension with that of the first defendant, whose explanations of the inconsistencies or tensions are ones as I have indicated I found difficult to believe. Of course exhibit 15 (the 27 June 2005 document, the authenticity of which is issue (3)), and the transfer of the Stratton property (the circumstances of the plaintiff's signature to which are part of issue (4)), are both inconsistent with her account, as the first defendant emphasised, and I return to those matters below.

111 In my view, leaving aside the evidence as to issues (3) and (4) which I consider below, the plaintiff has in my view clearly established that it is more likely than not that there was nothing in the nature of the oral purchase agreement entered into by the plaintiff and the first defendant. I will have occasion to revisit that conclusion after I have considered issues (3) and (4).

112 In determining whether or not there were such arrangements, I consider that of particular relevance are the matters of the plausibility of the loan arrangements having been entered into, having regard to the relations between the parties at the time, the purposes for which the loan arrangements were made, the means of the first defendant at the time, the period over which cash advances were made under the loan arrangement, the loan arrangements' oral character and the matter of interest under the loan arrangements. Also of relevance are the evidence as to the loan arrangements in exhibit 1.20 and other matters going to the credibility of the plaintiff and the first defendant.

113 As to the plausibility of the loan arrangements having been entered into giving regard to the relations of the parties at the time, I note from the previous section of these reasons both the evidence as to the amicable relations between the parties and the uncontested evidence that over the period from the beginning of May to the end of December 2001 the first defendant provided to the plaintiff funds totalling at least $16,000 (net of the amount the plaintiff claimed was repayment of the funds she had provided to the first defendant to assist him with BBH's French Hot Bread and compensation for underpaying her for her time working in that business). Of course, the plaintiff denied that there were any loan arrangements between the parties as the first defendant claimed.

114 Further, on the first defendant's case, that they had a relationship 'like boyfriend and girlfriend' over the relevant period (ts 317), the amounts or at least some of them making up the balance of the $16,000 not representing matters for which the first defendant was liable (such as, on the plaintiff's case, rent and rates) would be explicable as gifts. This possibility, as will shortly be seen, the first defendant denied.

115 I also note the purposes for which the loan arrangements were on the first defendant's evidence (exhibit 13 [8.16] above) entered into. In respect of the references to 'repayment of the loan for the Ballajura Property and for Tony's [Tony Le's] camera and photography business', I note the evidence of Tony Le, which I accept, that the plaintiff did not make any loan repayments in respect of the Ballajura Property and she did not invest any money in Mr Le's business (exhibit 9, [10], [11]).

116 The amount the first defendant claimed to have provided to the plaintiff ($50,000) was of course substantially in excess of the amount of $16,000 previously referred to. On the evidence in the previous section of these reasons, there is no support from the records of payments to the plaintiff from the BBH's French Hot Bread account of the first defendant for his payment to the plaintiff of such a sum as well as the purchase price of the Stratton property.

117 At the same time, also on the evidence I considered in the previous section of these reasons, the means of the first defendant from all of his sources of funds to make a sum of $50,000 available to the plaintiff together with the purchase price of the Stratton property over the period May 2001 - December 2001 is very much in doubt.

118 However, the first defendant's evidence as to the period of time over which the $50,000 was provided, under the loan arrangements the subject of the first defendant's counterclaim, differed in his cross-examination from that in his examination in chief.

119 I have already quoted the evidence in the first defendant's examination in chief as to that period (exhibit 13 [8.15], [8.16], above), which is also the period which the first defendant's defence and counterclaim ([20(b)] says was that over which 'the Loan ... was paid to the plaintiff in various cash installments [sic]'.

120 However, in his cross-examination the first defendant said this, when he was closely questioned as to his examination-in-chief (ts 315 - 317):

[HANLY, MR]: So in total you say you gave Mrs Duong $155,000 between April or May 2001 and December 2001. Is that right?---I did not say that I handed over the 50,000 - I did not say - I did not specify the period where I handed over to her the 50,000 but I did say that during that period I pay $105,000 for the purchase of the house.

When do you say you paid the $50,000, the loan? When do you say you loaned $50,000 to the plaintiff?---I did not say, specify the period where I loaned to her the 50,000.

Now I'm asking you the period?---It's not that I hand over to her $50,000 as one lump sum but that I arrive at that amount because I during that period I have handed over to her different amount of money, for example, the money for her to pay for the school fee for her daughter or I hand over some amount of money for her to buy merchandise for the shop, so in the end it work out that she owe me $50,000.

All right, I will ask another way. By December 2001 had you by then paid a total of $155,000 to the plaintiff?

---That I have paid them $105,000.

THE INTERPRETER: It becomes quite convoluted, that's why I have to translate exactly one sentence at a time otherwise I get confused.

HANLY, MR: Well, I am confused.

SIMMONDS J: You still haven't received an answer to your question, Mr Hanly.

HANLY, MR: Perhaps I will just ask it in two parts. You have already said, and you have already agreed, that you paid the house off, all the moneys to buy the house, by December 2001. You have agreed with that, haven't you?

---Yes.

That's your case, isn't it?---Yes.

You also say that you have paid, in various amounts at various times, another $50,000 to the plaintiff?---I did not say that but she recognised that she owe me $50,000.

So how did she recognise that she owed you $50,000?---If she did not owe me the money she would not write it on this page.

That is exhibit 15?---Yes, sir.

...

HANLY, MR: So do I understand you to be saying that you really have no idea of the amounts that you say you paid to the plaintiff which gave rise to her acknowledgment that she owes you $50,000?---So what I can say is, I'm sure that I have paid her the amount of $105,000 for the purchase of the house whereas the other amounts, I have handed over money to her numerous times and at the end she recognised that - she acknowledged that she owe me $50,000.

So when you handed the money over to her from time to time to pay - to assist with her daughter's school fees and the purchase of the - sorry, to assist with her deli business, were these loans?---Although we have not lived together as husband and wife but we are seeing - we have a relationship like boyfriend and girlfriend. For that reason I trust her fully during the time she was with me. For that reason I assisted her in any aspect of the business she was into.

These weren't loans, they were gifts, weren't they?---The reason being that we have a relationship like a boyfriend and girlfriend but we don't have

SIMMONDS J: Sorry. I think Mr Vo was trying to finish something off. Perhaps

THE INTERPRETER: Yes. Because I cannot remember all what he said I am trying to do consecutive translating.

...

THE INTERPRETER: That way I'm sure I could not miss anything.

...

THE INTERPRETER: Yes?---I had a relationship with Mrs Duong although it's not like husband and wife but I can qualify the relationship as a boyfriend and girlfriend. So we had an understanding that we would respect each other's money. If the amount of money is her, that is hers; if the money is mine, that is mine. So we respect that ownership. This (indistinct) between us very clearly, very carefully. We are supporting each other any time that we have - each of us having any difficulties. I do have the same affection for my children as well as her children.

121 I consider this second version of the period of time over which the first defendant provided the $50,000 to the plaintiff would also tend to explain why there might have been no documentation of the loan arrangements. That explanation (see also exhibit 13 [8.17] above) would lie in the way in which the amounts involved were individually (relative to the purchase price under the oral purchase agreement, the lack of documentation of which I considered in the previous section of these reasons) small.

122 However, I consider the way in the first defendant provided this second version of the period over which the first defendant paid the plaintiff the $50,000 by way of loan, in partial contradiction of his examination-in-chief, substantially weakened the first defendant's evidence that there were such loan arrangements.

123 I also note the first defendant's evidence as to the matter of interest under the loan arrangements. That evidence, in his cross-examination, was as follows (ts 342 - 343):

[HANLY, MR:] When you paid for various things for Mrs Duong and she later acknowledged that she owed you $50,000, was there ever any discussion about her paying interest to you?---No, we never discussed about interest thing.

So the $50,000 that you say she has acknowledged that she owes you, there was no discussion with her about her paying interest in addition to the $50,000, was there?---She never discussed with me the

THE INTERPRETER: Sorry, I need to clarify this one otherwise I will do the wrong translation. Could you ask the question again, sir?

HANLY, MR: When you say that she acknowledged that she owed you $50,000 there was never any discussion with her about her paying interest in addition to the $50,000?---She never discussed with me regarding the interest payment on this amount of money.

She never has paid you interest on any money that you say she owes you, has she?---No, she never has, she never pay interest to me.

124 I return below to the detail of the provisions in exhibit 15 as to interest. For now, I note that the lack of any discussion between the parties of interest under the loan arrangements is some evidence against there having been loan arrangements. However, that evidence has to be weighed with the first defendant's evidence as to the relationship of 'boyfriend and girlfriend' I have previously quoted. If that evidence is accepted at face value the lack of such a discussion is much easier to accept.

125 Rather stronger evidence against there having been the loan arrangements the first defendant claimed is the answer to Question 41 in the Centrelink Claim for Parenting Payments of 7 June 2001 (exhibit 1.20). Question 41 was 'Do you (or your partner) have any bonds, debentures or unsecured notes, or have you loaned money to anyone?', alongside which the box 'No' is ticked. However, I also need to take note of the first defendant's evidence as to the circumstances under which exhibit 1.20 was completed. I also note that the first defendant was not cross-examined as to this answer.

126 As matters going to the credibility of the plaintiff in relation to the oral arrangements, I found no reason from her evidence in that regard or indeed the other issues (with the qualification I referred to as to the payment by the first defendant to the plaintiff of $27,437.00 in the previous section of these reasons) to doubt her testimony that there were no loan arrangements for $50,000 between the parties. She gave her evidence in relation to the loan arrangements in a clear, coherent and consistent fashion. What documentary evidence there is in relation to the loan arrangements, being the records of the amounts paid to the plaintiff from the BBH's French Hot Bread account of the first defendant, the other means of the first defendant and the answer to Question 41 in exhibit 1.20, is consistent with her account. That same evidence is inconsistent or in some tension with the claim and aspects of the testimony as to the loan arrangements of the first defendant. However, exhibit 15 (the authenticity of which is issue (3)) is inconsistent with the plaintiff's account, as the first defendant emphasised.

127 In my view, leaving aside the evidence as to exhibit 15 to which I return below, the first defendant has failed to establish that it is more likely than not that there were the loan arrangements on which he relied. I will have occasion to revisit that conclusion after I have considered issue (3) below.

128 In considering whether or not exhibit 15 was authentic, I note Evidence Act 1903 (WA) s 31, which is as follows:

Comparison of a disputed hand writing with any writing proved to the satisfaction of the judge to be genuine may be made by witnesses, and such writings and the testimony of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.

129 Under that provision, I may accept expert evidence on the comparison of handwriting: Cherrycoast Enterprises Pty Ltd v Dr Francis John Roberts as Executor of the Estate of Kennyth Peter Roberts (Dec) [2002] WASC 28 (McKechnie J) [59]. However, the function of any such expert evidence is not to express a conclusion as to authorship, which is the matter for me, but rather to 'point out similarities or differences, and leave the court to draw its own conclusion': Cross on Evidence [39105]; see also New Resource [129]. In drawing its own conclusion, the court is 'entitled to make a comparison between handwriting that is disputed and admitted', although in doing so I must 'pay particular attention and regard to expert testimony on the issue': Jeans v Cleary [2006] NSWSC 647 [157] (Johnson J), referring to R v Doney (2001) 126 A Crim R 271 at 280 [61] (Ipp AJA, Hidden and Barr JJ agreeing). At the same time, I must also consider the remaining evidence relevant to the issue: see Jeans [155], referring to Gawne v Gawne (1979) 2 NSWLR 449 453A-B, 455 - 456. That evidence may include the testimonial and documentary evidence inconsistent with the authenticity of the questioned handwriting (here the evidence as to the oral purchase agreement and the loan arrangements I have previously considered, and the plaintiff's evidence with respect to exhibit 15) and my assessment of the credibility of the testimonial evidence in favour of its authenticity (here, that of the first defendant, both, on the one hand, in relation to the oral purchase agreement and the loan arrangements, and, on the other hand, exhibit 15): see New Resource [149]. The remaining evidence may also include, in my view, the plausibility of the content of the questioned document, which here goes most significantly to the matter of its reference to the payment of interest.

130 In testing the evidence I have referred to, I must remember that a 'reasonable satisfaction' as to the authenticity or unauthenticity of exhibit 15 cannot be attained on 'inexact proofs, indefinite testimony, or indirect inferences' (Briginshaw 362, Dixon J, above), and the strength of the evidence sufficient to attain such satisfaction may be expressed in terms of 'clear or cogent or strict proof' (Neat Holdings [1992] HCA 66; 67 ALJR 170, above). At the same time, it must be understood that this satisfaction may be attained, on the whole of the evidence, even where there is expert evidence to the contrary: see New Resource.

131 I turn first to the evidence of Mr Gregory, the witness for the first defendant. The first defendant relied heavily on that evidence, as expert evidence as to the authenticity of exhibit 15.

132 Mr Gregory testified as to his qualifications as follows (ts 218):

[VO, MR:] Please let me know what is your profession and how long you have worked in this capacity?---I'm a forensic document examiner and I have worked in this capacity for over 30 years.

Which organisation you have worked for in the past?---In the past I started as a forensic document examiner with the West Australian Police Service.

133 Later in his examination-in-chief Mr Gregory said this (ts 219):

Signatures comprise probably at least 50 per cent of the work of a forensic document examiner and I have continually examined signatures for more than 30 years.

134 In the cross-examination of Mr Gregory as to his qualifications, there is the following (ts 247):

[HANLY, MR:] Mr Gregory, in your report you set out your experience, your report which is now exhibit 23. You set out your experience, don't you?---Yes, I do, sir.

Is it fair to say that you rely upon your practical experience as being your basis for being qualified to give evidence as to handwriting?---Not only the practical experience, all the theoretic study that I have done.

You don't set out any theoretical studies that you have done, not in any specific way, in your report?---No. That's just an overview, quickly, on my background.

Do you have qualifications?---When I did my training with the Western Australian police force there was no such tertiary qualifications. There's one just been started actually, at the Canberra Institute of Technology, for trainee document examiners but it was on the job training experience and you couldn't give evidence in court until you had done a minimum of about four year's training and I gave my first evidence in court in the Supreme Court in 1977.

Am I to understand that apart from the new course you just mentioned there are no - as yet, there are no degrees or the like that you can undertake so as to obtain qualifications as a handwriting expert?---No, there's not. There's forensic science courses which briefly touch on questioned documents and things like fingerprints as well, but in its structured form this is the first one that has been available in Australia and as I say, the Canberra Institute of Technology.

135 Counsel for the plaintiff took the position that Mr Gregory's evidence should not be regarded as expert evidence, and as I understood the submission it should be weighted accordingly, on the basis that in his oral evidence and his statement of qualifications in his written report (exhibit 23) he did not refer to any qualifications he had gained in the science of forensic handwriting analysis.

136 However, I consider that Mr Gregory's expertise in forensic handwriting analysis, at least of signatures, is established on the oral evidence I have quoted as well as on the statements as to his qualifications in exhibit 23 (first two unnumbered pages). It is undoubted that a person may be shown to be an expert in a field of specialised knowledge - and it was not in contest that the forensic analysis of handwriting by comparison of handwriting samples and signatures was such a field - by reason of 'experience' alone: see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85] (Heydon JA), quoted in Grainger v Williams [2009] WASCA 60 [53] (Martin CJ).

137 The comparative analysis to which Mr Gregory testified was of three kinds. One was of 30 samples (copies of which became exhibit 16) of what it was accepted was in each case the handwritten signature of the plaintiff (the specimen signatures), over the period 1991 - 2007, with the handwritten signature on exhibit 15. The second was the comparison of three samples (a copy of which became exhibit 24) of the name of the plaintiff in roman characters, which it was accepted the plaintiff had written out (the specimen names), with the same name as it appeared in exhibit 15 (the questioned name). The third was of five instances (a copy of which became exhibit 22) of the text corresponding to the questioned writing in exhibit 15, which it was accepted the first defendant had written out, with the questioned writing in exhibit 15.

138 I consider that I should put the last comparison, which Mr Gregory testified showed the questioned writing was not that of the first defendant, aside. That is because it was not of any specimen writing by the plaintiff with the questioned writing, but rather of specimen writing of the first defendant. It was not in contest that the questioned writing was not that of the first defendant.

139 Mr Gregory's conclusion with respect to the first comparison was that the handwritten signature on exhibit 15 was that of the plaintiff. He so concluded on the basis of the following analysis. I should add that the questions which produced the answers in the passages I next reproduce were mine.

140 Mr Gregory explained the basic consideration he employed in his comparison of the specimen signatures with the questioned signature as follows (ts 219):

Looking at signatures, a signature is almost an automatic writing that an individual can do. A signature can be comprised of the Roman alphabet characters or it can be a complete symbol which has no resemblance to the Roman alphabet. The person executing the signature strives to repeat this pattern, and when examining these types of signatures one is looking at the established pattern in the specimen material one needs to examine first to look at a question signature to see if the habitual characteristics of signing that signature are present. You are looking at the speed at which the signature has been written, the variations in the pen pressures, the line quality of the signature which means the flowing, rhythmic movement of the pen, and the smooth rotation of the pen. And when examining these signatures one is looking for natural variation. That is because no two signatures can be signed the same by an individual, and in looking at the natural variations one has to account for the different styles of letter or symbolic areas written in the signature. One expects to find differences between each of the signatures, however if these differences are only natural variations and not fundamental differences in the construction of the signature, one can then conclude that the question signature and the specimen signatures were all signed by the one person.

141 Mr Gregory later explained he had examined the specimen signatures and the questioned signature both microscopically and macroscopically. He described the signatures as ones with 'no Roman alphabet characters at all ... completely stylised' which in the specimen signatures showed an 'habitual pattern in executing the signature' over the period 1991 - 2007 (ts 223). Mr Gregory referred to that habitual pattern as one in which the signatures showed no 'fundamental differences' but only 'natural variations' over that period (ts 223). Mr Gregory contrasted a 'fundamental difference' with a 'natural variation' by reference in the case of the former to formations 'totally different in their construction' (ts 226).

142 Mr Gregory testified that his microscopic examination of the questioned signature showed no 'hesitation' (explained as a 'stop in the stroke') or 'patching' (explained as an 'additional stroke to link two strokes together'), which indicated the signature had been executed in 'one continuous pen movement', and 'with speed' (ts 226).

143 Mr Gregory explained his conclusion as to whether or not the person who had executed the specimen signatures had executed the questioned signature as follows (ts 228 - 229):

SIMMONDS J: Yes?---At the end of my evaluation there was the support for the proposition that it had been signed by the person who had written the specimen signatures.

What form did that support take?---The form was, sir, that the question signature had all the features occurring in the specimen signatures. There were no fundamental differences in the execution of the question signature when compared to the execution of the specimen signatures.

Can you identify the forms of similarity that you identified as well as any differences that you also identified?---Yes, sir, on another small chart just showing the question signature and three specimen signatures, that is, S11, S19, S23.

Yes?---And in this particular chart it is illustrating that the signatures that are used as specimens, there is no fundamental differences to the question signature.

Are there any differences at all that you noted?---Only just the minor natural variations that I have alluded to earlier, sir, but not fundamental differences.

And in the case of those comparisons what would those natural variations be?---In the specimen signature on S23, sir, there is a faint retrace upwards inside the first formation that commenced the letter and in S23 there's a slight rounding just a the top of the H formation, the first formation.

Sorry, what was the - - ?---There's a slight rounding at the top.

Right, the same specimen?---The same specimen, S23.

Yes?---And the others are showing an angular top which is consistent with the question signature.

You mean the other specimens?---Yes, sir.

The other specimen shown on that?---On this chart, and throughout the other specimen signatures which are not on this chart as well, sir, there's natural variations but not fundamentals.

144 However, it emerged in cross-examination that Mr Gregory had also based his conclusion on 'other factors' (ts 272), which he explained as the conclusion he drew from his comparison of the specimen names with the questioned name (ts 295).

145 In his cross-examination, I have noted the following exchange as to the difference between 'fundamental differences' and 'natural variations' (ts 248):

[HANLY, MR:] I will put it another way. You can't measure in any way, in any scientific way whether a variation is a fundamental difference or is a natural variation, can you?---You can with a natural variation because that's what's occurring through the writing when you go through the bulk of, say, specimen writings because that's the biggest area you would have to look at to see how a person writes particular letter forms, whereas in the questioned writings, of course, you are limited usually as to the amount that you can look at but when it falls into those parameters, either it falls within natural variation or it falls outside that into fundamental differences in the design of the letters.

So you are not prepared to agree that there is any subjective element in forming an opinion that there are fundamental differences or those differences are only natural variations?---No. You still do a full examination and as I say, then comes the evaluation which looks at the way you have found them so it's subjective in the fact that you are putting one into one category and one into another and you can't do that until you, as I say, get to the end of your examination of each type of writing that you are looking at and then the evaluation comes when you put the comparative together with the question and the specimen writings to see which fall within which areas.

146 In my view of his testimony Mr Gregory acknowledged that there was a necessary element of subjectivity in drawing the distinction between a 'fundamental difference', on the one hand, and a 'natural variation', on the other.

147 It emerged from cross-examination that Mr Gregory accepted there were four points of variation between the specimen signatures, or at least the substantial majority of them, and the questioned signature, and one point of difference or variation between all of the specimen names and the questioned name.

148 The first point of variation was that the space between the signature and the underlining or 'rubric' as it was called in evidence was significantly greater in the questioned signature than in any of the specimen signatures (ts 253).

149 The second point of variation was that only the rubric in the questioned signature had an upturned tick at each end of the rubric, where the rubrics of the specimen signatures had either no ticks of any description or one at one end but none at the other (ts 263).

150 The third point of variation was that the slope of the rubric in the questioned signature was relatively horizontal or flat, where the slope of the specimen signatures was for all but three specimen signatures much more sloped upward to the right (ts 251).

151 The fourth point of variation was that the retracing upstroke of one of the legs of the letter-like shapes in the questioned signature, an upstroke which led to the immediately adjacent letter-like shape, was significantly higher up the former than on all but five, or possibly six, of the specimen signatures, while none of the specimen signatures had the same retracing upstroke to the same degree (ts 270, 276).

152 The point of variation between the questioned name and the specimen names was that the letter 'D' in 'Duong' (part of the plaintiff's name in roman characters) in the questioned name was unadorned while the corresponding letter in all of the specimen names was quite stylised (ts 293 - 294).

153 Mr Gregory did not accept that any of these variations, individually, or the sum of them collectively, was other than a natural variation. However, in my view, the sum of them is a matter I should bear in mind in making my comparison of the questioned signature on exhibit 15 with the specimen signatures, and the questioned name with the specimen names. In my view, giving Mr Gregory's evidence due weight, their sum calls into question the conclusion that the signature on Question 15 is that of the plaintiff.

154 I put aside one further matter put to me by counsel for the plaintiff, being what he said was the difference in the colour of the ink in the name underneath the questioned signature compared with the colour of the ink of the questioned signature. The difference is in my view relatively slight, and I have also noted both the result of the infra-red examination of the ink that Mr Gregory did, that there was no difference, and the explanation Mr Gregory gave for any difference that might be seen, that the difference was likely the result of staining from the folding of the page, not from use of a different ink (ts 277 - 279).

155 As to the testimonial and documentary evidence inconsistent with the oral purchase agreement and the loan arrangements I have previously considered, I am of the view that on that evidence there is a strong case there was no such agreement and there were no such arrangements. This of course leaves aside exhibit 15 and the transfer of the Stratton property (the circumstances of the plaintiff's signature to which are part of issue (4)).

156 As to the credibility of the defendant's evidence in relation to the oral purchase agreement and the loan arrangements, I have in the previous sections of my reasons indicated difficulties I had with his testimony in a number of respects. In my view, those difficulties go to the credibility of his evidence inconsistent with that of the plaintiff both in relation to the oral purchase agreement and loan arrangements, and, because of their close relationship with exhibit 15, that document.

157 So far as the first defendant's evidence in relation to exhibit 15 is concerned, I note significant inconsistencies or tensions in his evidence as to the circumstances under which and the time when exhibit 15 came to be given to him by the plaintiff.

158 In his examination-in-chief as I have previously indicated he testified that on 27 June 2005 he received exhibit 15 after he had asked the plaintiff on several occasion for the duplicate Certificate of Title and to transfer the Stratton property into his name, apparently to enable him to obtain finance for various investments he was considering (exhibit 13 [13], [14], reproduced above).

159 However, in his cross-examination he gave evidence at some variance with this account. That evidence included the following (ts 302 - 304):

HANLY, MR: It's dated 27 June 2005, isn't it?---Yes.

Is that the date she gave it to you?---I don't know when she wrote this letter but she gave this letter to me after she has written this letter.

When do you say she gave it to you?---I don't remember exactly the date, I only received it after she has written this letter. If I have seen her write this letter then I could tell when she gave it to me.

All right, by reference to the date on the letter, exhibit 15, how long after that do you say you received it?---I don't remember exactly, that's why I cannot confirm the date that she gave this letter to me. But before she gave this letter to me we have had a dispute regarding the transfer of the property to my name.

What sort of dispute?---Yes, she would like to use this property as a security to buy a property for her daughter. There were many disputes regarding the transfer of this property but this time was regarding - the last time was that she wanted to use this property as a security to buy a property for her daughter, but I did not agree.

...

I want you to tell us when it was you know for sure you had received exhibit 15?---I cannot say before the court what day, precisely what day I had received this exhibit.

What year?---2005.

So sometime between June, sometime between the date on the letter and the end of that year?---Probably that is the time, after she has written this statement.

You had it by the end of 2005. That's your evidence, isn't it?---I did not give evidence that I received this letter at the end of 2005 but the evidence is that I have received this letter after she has written this letter.

So are you telling the court that you have no idea, even what year you received exhibit 15?---Only tell the court that I received this letter after she has written it and gave it to me.

Are you seriously saying that you can't tell us the year you received that letter?---I can say for sure that it was 2005.

You're sure about that, are you?---Yes, sir.

What was so hard about that?---Because you asked me a question regarding which month (indistinct) that's why I was not sure, so I couldn't tell you, but I am sure that the letter, I have received this letter in 2005.

160 In my view this evidence does not sit consistently with the evidence in his examination in chief as to when and why the first defendant received exhibit 15.

161 Of no significant weight, however, was the matter also referred to by counsel for the plaintiff, of the failure of the first defendant to refer to the document in the proceedings taken against him by Mrs Trinh for a restraining order, the matter to which I also made reference in the section of my reasons on the oral purchase agreement..

162 Finally I note two matters in respect of the contents of exhibit 15, one of which gives me some significant reason to doubt its authenticity.

163 One of the two matters was an error as to one digit (the last, in a one letter and seven digit sequence) in the reference in exhibit 15 to the number of the plaintiff's Australian passport. An error of that kind appears to me of little account.

164 The other matter is of rather greater significance. In the translation of the Vietnamese original there is the following reference to interest, as will be recalled:

I currently owe Mr Luong an amount of $50 000.00 (Fifty thousand dollars) and pay monthly interest of $300.00 (Three hundred dollars).

165 Following his testimony that the plaintiff 'never discussed with me regarding the interest payment on this amount of money' and that she 'never pay interest to me' (ts 343), the first defendant was cross-examined on the language from exhibit 15 I have just quoted (ts 343 - 345). His explanation for a reference to interest was as follows (ts 345):

She owe me money, that's why she think she'll make me happier if she wrote on this statement - this statement about this matter like that. I never talked about interest - her paying me interest at all.

166 I consider the reference to interest in exhibit 15, even with the first defendant's explanation, is difficult to square with the first defendant's testimony as to there being no prior discussion between the parties of interest under the loan arrangements.

167 On the weight of all of the evidence, including the evidence relevant to the assessment of the plaintiff's credibility and the first defendant's credibility which I reach in the next section of these reasons, I am reasonably satisfied that exhibit 15 was a forgery. That reasonable satisfaction has been attained, not on 'inexact proofs, indefinite testimony, or indirect inferences' but on 'clear or cogent or strict proof'.

Issue (4): circumstances in which the plaintiff signed the documents in August 2006

168 I have already set out the evidence-in-chief of the plaintiff and the first defendant as to those circumstances. That evidence was principally, from the plaintiff, that the first defendant had brought documents to her to sign, having described them in a telephone call prior to that visit as forms from Centrelink for rental assistance (exhibit 3 [18]). From the first defendant that evidence was that he had told the plaintiff in a telephone call that he needed her to sign some documents to transfer the property to him (exhibit 13 [23.2]). He then brought the documents to her at her deli mixed business where Mrs Nguyen had translated the documents to the plaintiff, while the plaintiff had said to Mrs Nguyen words to the effect 'the property belongs to him and was just held in my name' ([24.1]). On the first defendant's evidence the plaintiff was 'fully aware of the nature of these documents and was willing to sign them as she was holding the Property on trust for me', having received the consideration under the oral purchase agreement ([24.2]).

169 In considering whether or not there was the deception as to the nature of the transfer and authority to settle documents as testified to by the plaintiff, I must approach the matter as one involving an allegation of fraud, to which the principles I reviewed under the previous section of these reasons on the applicable law apply.

170 I consider that of particular importance is the testimony of Mrs Nguyen, who was present at the signature of the transfer at least, and who signed the transfer as a witness to the plaintiff's signature. I found Mrs Nguyen to be a witness of truth, who provided clear, coherent and consistent evidence. Her evidence is entirely consistent with that of the plaintiff and inconsistent at a number of important points with that of the first defendant.

171 Mrs Nguyen's examination-in-chief was as follows (exhibit 11 [1] - [9]):

1. I am an interpreter.
2. I have known the Plaintiff for about 8 years.
3. I first met the Plaintiff when she purchased a property at 48 Brilliant Rise, Stratton. I acted as an interpreter for her at the time she purchased this property.
4. Attached hereto and marked 'THN1' is a copy of the Transfer of Land document in relation to the property at 48 Brilliant Rise, Stratton. My signature appears on page 3 as a witness to the signature of the Plaintiff.
5. I witnessed Mrs Duong's signature on the transfer document at her shop. I then signed underneath her signature as a witness. At that time, it was the only signature of Mrs Duong that I was aware of on the document.
6. I did not translate the transfer document to Mrs Duong as I was at her shop merely as a customer and not in any official capacity as an interpreter or a translator. I had not been requested to attend to translate the transfer document. Further, I recall that I did not have my reading glasses with me.
7. I am aware from my previous contact with Mrs Duong that her verbal English is just good enough for daily basic communication but that her reading skills are quite limited. I know that Mrs Duong cannot read English.
8. I have been provided with a copy of paragraph 24 in both the English and Vietnamese language of the Defendant's affidavit sworn 20 June 2007.
9. I did not, as the Defendant deposes, translate the Transfer document to the Plaintiff when I witnessed her signature at her shop.

172 I particularly note Mrs Nguyen's evidence as to the 'reading skills' of the plaintiff, which would support the plaintiff's evidence that she was unaware at the time of the nature of the documents, even although the plaintiff's evidence was also, that when 'I now look at the Transfer ... I see that the First Defendant tricked me' (exhibit 3 [19]).

173 In her cross-examination Mrs Nguyen added the following.

174 Mrs Nguyen stated that she was handed 'only' the page from the transfer she and the plaintiff signed (ts 138), and that at the time 'I did tell everybody there that I did not have my glasses with me' and 'I came there to get some mineral water' (ts 140), adding (ts 140):

if you can look here about my address, because I didn't have glasses, is there, when I wrote about the word 'Ballajura' and '6066' I did not, I could not write it properly.

175 My inspection of the page from the transfer (the page numbered 3 of annexure 'D' forming a part of exhibit 3) indicates to me that Mrs Nguyen's endorsement of those details was less sure than her endorsement of the other details in the same line of text.

176 Mrs Nguyen consistently maintained under cross-examination that she neither translated the page nor said anything to the plaintiff about its nature. Further, she testified that the plaintiff had not said anything to her about the Stratton road property belonging to the first defendant (ts 140).

177 The evidence of Mrs Nguyen causes me to disbelieve the evidence of the first defendant as to her having made the plaintiff aware, by translation or otherwise, of the nature of the transfer document the plaintiff signed, a signature Mrs Nguyen witnessed by signing the same page. That evidence also causes me to disbelieve the first defendant's evidence that the plaintiff said to Mrs Nguyen words to the effect 'the Property belongs to him and was just held in my name' (exhibit 13 [24.1]).

178 Mrs Nguyen's evidence, with the other evidence in this trial relevant to the credibility of the plaintiff and of the first defendant which I have reviewed in the previous sections of these reasons, as well as my findings as to the matter of the rent certificates that the first defendant obtained from the plaintiff from time to time, the oral purchase agreement and exhibit 15, is the basis on which I am reasonably satisfied that the plaintiff's signatures to the transfer and the authority to settle were obtained as a result of the deception to which the plaintiff testified. That reasonable satisfaction has been attained, not on 'inexact proofs, indefinite testimony, or indirect inferences' but on 'clear or cogent or strict proof'.

179 Further, on all of those findings and the evidence of the plaintiff as to the duplicate certificate of title to which I referred earlier in these reasons I find that the first defendant obtained the duplicate certificate of title to the Stratton property without the plaintiff's permission and used it with the transfer document signed by the plaintiff to become the registered proprietor of that property.

180 I have concluded that on all of the evidence the plaintiff has discharged her burden of proof as to issues (1), (3) and (4), and that the first defendant has failed to discharge his burden of proof as to issue (2).

181 With respect to the orders to be made on the plaintiff's claim, at the hearing on 30 March 2009 counsel for the plaintiff handed up a minute of proposed orders which he indicated were the result of an exchange with Landgate and which modified those in the statement of claim. For convenience I set out the minute:

1. A declaration that the Plaintiff is the sole legal and beneficial owner of the property at 48 Brilliant Rise, Stratton in the State of Western Australia and being Lot 735 on Diagram 80835 and being the whole of the land in Certificate of Title Volume 1957 Folio 998 ('the land').
2. The First Defendant, within 7 days, deliver up to the Plaintiff's solicitors the duplicate Certificate of Title for the land.
3. Caveat K39874 shall lapse under section 138B of the Transfer of Land Act 1893.
4. Upon Application by the Plaintiff to the Registrar of Titles, and upon production of the duplicate Certificate of Title Volume 1957 Folio 998, the Registrar of Titles set aside the registration of Transfer J913030 and reinstate Thi Tuyet Anh Duong as the sole registered proprietor of Certificate of Title Volume 1957 Folio 998.
5. In the event that the First Defendant does not deliver up the duplicate Certificate of Title within 7 days as required by order 2, the Registrar of Titles, upon Application by the Plaintiff to the Registrar of Titles, and without production of the duplicate Certificate of Title Volume 1957 Folio 998, shall set aside the registration of Transfer J913030 and reinstate Thi Tuyet Anh Duong as the sole registered proprietor of Certificate of Title Volume 1957 Folio 998 and issue the next edition of the digital Duplicate Certificate of Title Volume 1957 Folio 998.
6. Such other further or consequential orders as may be required.
7. The First Defendant pay the Plaintiff's and the Second Defendant's costs.

182 As I indicated to counsel for the plaintiff at the hearing, a declaration as to legal ownership would not be appropriate, for the reasons I gave previously in these reasons. The remainder of the orders would appear to me to be suitable.

183 It will also be noted that the minute does not deal with the first defendant's counterclaim. The order which would follow from my conclusions is that that counterclaim should be dismissed, with costs to the plaintiff.

184 I will hear from the parties as to the final form of the orders to be made.