The Plaintiff, Mr Christopher Tasoulas, is the son of the Defendant, Mrs Vasiliki Tasoulas. The subject of this dispute is a property at 74 Park Road Hunters Hill, New South Wales ("the Property").
The Property was purchased in July 1991 for $267,000 in the joint names of the Plaintiff and the Defendant. Of the purchase price, $240,000 was provided by Westpac Banking Corporation ("Westpac") and the balance of $27,000 was paid by the Plaintiff and Defendant in equal shares. The Plaintiff and Defendant provided to Westpac a mortgage over the Property to support the loan dated 2 July 1991 ("the Joint Mortgage") (see Exhibit A, pp 28-29).
In 1992, a transfer dated 18 November 1991 transferring the Plaintiff's half interest in the Property ("the Transfer") was lodged with the Land Titles Office. Following the lodgement of the Transfer, the Plaintiff ceased to be recorded as an owner of the Property. Since November 1992, the Defendant has continued to be recorded on title as the sole owner of the Property.
The Transfer (see Exhibit A, p 36) bears a signature above the description "Signature of Transferor", purporting to be the signature of the Plaintiff. I shall refer to this signature as "the Impugned Signature". Alongside that signature is the Defendant's signature as witness to its execution by the Transferor. The document also bears the signature of Mr Robert Miles ("Mr Miles"), as the solicitor who acted for the Defendant on the transfer. The Transfer is not signed by the Defendant as "Transferee".
The Plaintiff asserts that the Impugned Signature is not his signature and that he never agreed to transfer his half interest in the Property to the Defendant. He says he only became aware that he had ceased to be recorded as a co-owner of the Property in 2017 when he saw a rate notice from Hunters Hill Council ("the Council") addressed to his mother alone.
The Defendant has lived in the Property since it was purchased in 1991.
There is no dispute that the Plaintiff lived at the Property from 1991 until 1995 when he married his first wife and moved out, returning in 1997 following the termination of his marriage. There is a dispute as to the precise periods since 1997 in which the Plaintiff resided at the Property but he has been living there since 2009 with Ms Kathryn Buist ("Kathryn"), now his wife, and their child, until mid-December 2017. In mid-December 2017, the Plaintiff was, by reason of an interim Apprehended Domestic Violence Order ("ADVO") made against him on behalf of the Defendant, precluded from residing at the Property. That ADVO was made final on 18 January 2018: see T128.41-129.2 and T131.14. After his departure, Kathryn and their daughter continued to live at the Property until last month, when the Defendant excluded them from the Property. The orders made on 18 January 2018 followed the initiation of process in May 2017 in which the Plaintiff was put on notice that the Defendant was seeking to exclude him from the Property: see Exhibit A, pp 99-107 and p 106, in particular.
The Plaintiff sought an ex parte injunction in this Court to prevent the Defendant from excluding Kathryn and their daughter from the Property but that application was refused by Parker J on 12 April 2018.
The ADVO described above was not the first ADVO obtained by the Defendant against the Plaintiff but it was the first to preclude him from entering the Property. An earlier provisional ADVO had ordered him not to molest or intimidate the Defendant (see Exhibits B and C). There was a period when, due to a provisional ADVO, he did not reside for a short period at the Property: see T143.10-20. Although the Plaintiff had said that he had always lived at the Property except for the period between 1995 and 1997, he was forced to admit that that was not correct: see T142-147, and for reasons extraneous to any ADVO.
The Defendant says that the transfer of the Plaintiff's half interest came about because he had (since July 1991) made no contributions to the mortgage repayments and in November 1991 she had the following conversation with him:
Defendant: "Chris, you have not given me any money for the Joint Mortgage."
Plaintiff: "My business is not doing well. I have no money."
Defendant: "I will pay you $15,000 for your share of the Property."
The Defendant says that the Plaintiff agreed to this and that she then asked her solicitor, Mr Miles, to prepare the paperwork for the transfer. She says she paid the stamp duty and legal costs associated with the transfer, and there is no dispute that she did.
The Plaintiff denies having had any conversations with his mother concerning the transfer of his interest in the Property.
In October 1992, Westpac required the Defendant to enter into a new mortgage over the Property which she did and the Joint Mortgage was discharged (see Exhibit A, pp 38-44). The Defendant, according to Mr Miles, told him that she had given the Transfer to Westpac and it is likely that it was Westpac who lodged it with the Land Titles Office. The Defendant says that she has met all the mortgage payments required to be paid to Westpac, both in respect of the Joint Mortgage and the replacement mortgage. The Defendant has used the Property as collateral for other loans to the Defendant, and apparently a significant amount remains owing by the Defendant to Westpac. The Property is, according to the Plaintiff's assessment, now worth more than $3 million: see T133.
The Plaintiff does not dispute that all mortgage payments were made to Westpac by his mother but claims that he paid half of the mortgage repayments from 1991 to 1995, and from 1997 onwards, by paying $850 in cash each month to his mother. He also claims that he paid for work performed by tradesmen at the Property, namely:
1. $2,000 for carpet in 1991;
2. $5,000 for a new kitchen in 1991;
3. $1,000 for painting in 1991;
4. Amounts for plumbing work performed by Mr Michael Moore on various unspecified occasions;
5. $1,500 for the construction of a shed (no year is specified);
6. $3,000 for work done by D4 Electrical for driveway lights and poles, new circuit board and smoke detector on various unspecified occasions; and
7. Lawn mowing by DKL House and Yard Maintenance at various times.
The Defendant denies that the Plaintiff has given her any money for the mortgage at any time. She also denies that the Plaintiff paid for any work performed at the Property at any time. She accepts that the Plaintiff did help organise tradesman over the years at her request. The Defendant says that prior to 2017, she paid for every item of work or service performed at the Property and the bills for which she has paid. The Defendant accepts that a shed was constructed on the Property but says that the Plaintiff requested it so that he could store his goods there and that she paid for it. The Defendant also asserts that, in 2017, the Plaintiff organised for work to be done at the Property without her request or approval, although she does not accept that the Plaintiff paid for any of that work either, and the Plaintiff has produced no evidence that he did pay for that work, or indeed any of the work for which he claims he paid for in the past.
The Plaintiff lodged a caveat on the title of the Property on 28 June 2017. The caveat contained an assertion on behalf of the Plaintiff that:
"The half (1/2) interest was transferred fraudulently out of the Caveator's name without his knowledge or consent and he wishes to be restored as a co-owner of the property."
In these proceedings, the Plaintiff has represented himself. He said he did have a lawyer assist him with the preparation of his affidavits but that solicitor did not file an Appearance. The Plaintiff did not provide any written submissions prior to the hearing as he and the Defendant had been ordered to do by the Equity Registrar. I did permit the Plaintiff to outline his case orally and he did so (at T5-6), asserting that he had brought the proceedings at the suggestion of the Land Titles Office, that his half interest had been transferred without his knowledge or agreement and that the signature on the Transfer purporting to be his was not his.
Mr J. Wyner, of Counsel, appeared for the Defendant. Mr Wyner provided a detailed and helpful written outline of submissions.
The Plaintiff relied on his affidavits of 24 August 2017 and 13 October 2017 and the affidavit of Kathryn of 24 April 2018.
The Defendant relied on the affidavits of herself (of 14 November 2017 and 18 April 2018), of Mrs Georgia Fitzgerald ("Georgia") (the Defendant's daughter) of 14 November 2017, Mr Paul Fitzgerald ("Paul") (the Defendant's grandson) of 14 November 2017, Mr Miles of 9 November 2017 and 13 April 2018 and Ms Karina Penfold ("Ms Penfold") (the Defendant's solicitor) of 6 April 2018.
The Plaintiff was cross-examined extensively by Mr Wyner. The Defendant, Georgia, Paul and Mr Miles were cross-examined by the Plaintiff relatively briefly.
I did not find the Plaintiff to be a credible witness. I shall say more about his evidence below. I have no reason to doubt the reliability of Georgia, Paul, Mr Miles or Ms Penfold. Nothing they said was shown to be untrue.
The Defendant is 84 years of age. She was born in Greece and had very limited schooling. Her English was limited and, during cross-examination, she had the assistance of an interpreter fluent in both English and Greek. She appeared very nervous when entering the witness box and seemed initially somewhat baffled by the whole experience, which I do not find surprising particularly since she was about to be, and was, cross-examined by her son. She conceded both in her affidavit and during cross-examination that there were things that she could not recall, including that, whilst she had signed the Transfer as witness to her son's signature, she does not actually recall seeing her son sign it: see paragraph 13 of the Defendant's first affidavit and T181.20-44. There was one matter, however, which reflected on her credit and that was that, in her first affidavit, she said she had seen her son sign documents on many occasions but she was unable in the witness box to recall any specific occasion: see T178.27-31 and although she did say that the Plaintiff had signed cheques for her (see T179.10), I think she was alluding to him signing in her name not his: see T177.15-23. It would be surprising if, given that they both lived in the Property for such long periods, the Defendant would not have seen the Plaintiff sign documents. In her first affidavit, the Defendant agreed that she had 'self-excluded' herself from the Star Casino and that she had breached that three times. In cross-examination, she said that she had breached it only once. Given the context (see T183.16-45), I think it is possible that she thought that the Plaintiff was asking her whether she had gone with him on three occasions, and she responded saying that she had gone with him only once (which was correct).
Since the main event about which the Defendant is giving evidence occurred (on her case) 25 years ago, it is hardly surprising that she would not be able to recall much of the details. She was emphatic (at T181.5-12) that although she could not recall the date, she had given the Plaintiff $15,000 to transfer his half share in the Property, he was not paying anything, and that he now wants to take half of her home: T185.6. This, coupled with her advanced years, needs to be borne in mind. The Defendant was able to recall from more recent times the names of two tradesmen (see T189), she recalled that the Plaintiff had rejected an offer she had made to provide him with a unit (to be purchased in her name) (see T185.35) and she emphatically rejected the Plaintiff's suggestion that she had made a further offer: see T186.19. I proceed on the basis that the Defendant is essentially an honest witness doing her best to recall what occurred, in the main, a long time ago but I approach her evidence with some caution.
The Defendant was unable to produce a copy of the cheque butt or cheque by which she paid $15,000 to the Plaintiff. She gave evidence that she kept documents relating to the Property in a cardboard box in a cupboard and that many of the documents in that box have disappeared, including cheque butts from late July 1991 to mid-1998. One document which had not disappeared was the cheque butt which established that the Plaintiff had paid one half of the deposit for the Property to the Defendant, and she annexed that to her affidavit. She asserted that the Plaintiff knew that she kept documents relating to the Property in that cupboard and that he had access to it throughout the time he resided at the Property, as he and Kathryn kept clothes and other belongings in that cupboard. The Plaintiff did not deny that he had access to the cupboard but denied that he knew what was in the cardboard box or that he had removed any documents from it.
The principal issue in this case is whether the Plaintiff has established to the requisite degree of proof that the Impugned Signature on the Transfer purporting to be his has been forged. Given that the Defendant has become the sole registered owner on title, it would appear that she could be deprived of the full interest only if she became the sole registered owner by fraudulent conduct on her part, i.e. by forging the Plaintiff's signature on the Transfer and then lodging it (or having it lodged) with the Land Titles Office. That appeared to be the basis of the Plaintiff's claim and he had, in the caveat lodged on his behalf, asserted fraud. Although the evidence which the Plaintiff presented seemed to have been designed to establish a motive for fraud on his mother's part, before me he vacillated on that issue (see T113.40 and T221.25-30). Further, he said that he was not asserting that his mother had forged his signature: see T114.27 and T222.23-43. When I asked him who he asserted had done so he said he did not know: see T114.26. These equivocations present a problem for the Plaintiff's case because if he cannot establish fraud by the registered holder or by someone with whom she is complicit, he could not overcome the indefeasibility provisions of the Real Property Act 1900 (NSW): see s 45(2) and Frazer v Walker [1967] 1 AC 569, Breskvar v Wall (1971) 126 CLR 376, and Anderson v Anderson [2017] NSWCA 131. For fraud to be established, the Court must be satisfied on the balance of probabilities having regard to the seriousness of the allegation made: Briginshaw v Briginshaw (1938) 60 CLR 336, Rejfek v McElroy (1965) 112 CLR 517 at 521 and s 140(2) of the Evidence Act 1995 (NSW) and see Anderson (supra) at [33].
As Mr Wyner pointed out in his submissions, any claim not based on fraud would face the difficulty that 25 years have passed since registration and be statute barred (see s 27(2) of the Limitation Act 1969 (NSW), which provides for a limitation period of 12 years from the date on which the cause of action first accrues to the plaintiff) and, in any event, the Plaintiff did not articulate any in personam claim of the kind that is not excluded by the indefeasibility provisions: see [50] of Anderson (supra) in relation to the limited scope for such claims.
In my view, the reason for the Plaintiff's equivocation is connected to a matter which impacts on both his credit and the key issue in this case, as I shall endeavour to explain.
The Plaintiff has produced no forensic evidence to support his contention that the Impugned Signature is not his. I have compared the Impugned Signature with, firstly, two signatures of his which appear on the Joint Mortgage ("the Joint Mortgage Signatures"): see Exhibit A, pp 28-29. The Plaintiff accepted that the Joint Mortgage Signatures were his. The Impugned Signature appears, to my observation, to be strikingly similar, if not identical, to the Joint Mortgage Signatures. I have also compared the Impugned Signature with the Plaintiff's signatures on his affidavit of 24 August 2017 (both on the final page and at the bottom of each page) ("the Affidavit Signatures"). In my opinion, the Affidavit Signatures are similar to the Impugned Signature but there is less similarity between the Affidavit Signatures and the Impugned Signature. The same, however, can be said when comparing the Joint Mortgage Signatures and the Affidavit Signatures. The fact that 25 years has elapsed between the Affidavit Signatures and the Impugned Signature would readily explain that difference, even without any deliberate attempt by the Plaintiff to make the Affidavit Signatures different. The Impugned Signature and the Joint Mortgage Signatures were subscribed less than a year apart.
That the Court can make its own comparison of handwriting is clearly recognised in Regina v Doney (2001) 126 A Crim R 271; [2001] NSWCCA 463, reiterating that jurors (where there is a jury) are themselves entitled to make a comparison between handwriting that is disputed and admitted, albeit with the qualification, not relevant here, that they should pay particular attention and regard to expert testimony on the issue (see [61]); and see Jeans v Cleary [2006] NSWSC 647 at [157] per Johnson J for a translation of that to the civil sphere.
When taken to the Impugned Signature and asked to confirm that he says it is not his, the Plaintiff responded (at T50.50):
"Not close".
At T51.2, the Plaintiff said it was "a good attempt" but then said again it was not close: see T51.15-19. Shortly after that statement, he agreed that the signatures were similar: see T55.6-22. The Plaintiff did later assert that the Impugned Signature could not have been written by his mother since his mother is essentially illiterate: see T199.39-47 and T222.23-47.
Acceptance by the Plaintiff that his mother could not have forged his signature leads to only three logical possibilities:
1. The Plaintiff signed it and has deliberately given false evidence that he did not.
2. The Plaintiff signed it and has forgotten that he signed it.
3. Some unknown person signed it to benefit the Defendant.
The only person with a motive as at November 1991 to forge the Plaintiff's signature was, on his case, his mother but he does not now assert that it was she who had forged his signature.
The Plaintiff did point out that there was a gap in time between the Defendant obtaining the unsigned Transfer and returning it to Mr Miles with the Impugned Signature upon it or lodging it with the Land Titles Office, but that does not assist the Plaintiff's case. The Plaintiff also placed reliance on the fact that his mother had (on the face of the document) witnessed his signature on the Transfer when she was a party to the transaction. Sections 12E and 117 of the Real Property Act 1900 (NSW) and rules 6.1.2 and 6.1.3 of the Conveyancing Rules (see Version 3) require that a witness not be a party to a dealing. Those provisions and rules were not, however, in place in 1991-1992 and are not in any event relevant to the principal issue in this case.
In relation to the three possibilities referred to in [33] above, the first, of course, must lead to the dismissal of the Plaintiff's claim but the second possibility does not assist him either, and leads to the same result.
The third logical possibility is highly unlikely since the Defendant was certainly aware that she was to become, and did in fact become, the registered owner.
I have referred to the absence of any documentary evidence establishing the payment of $15,000 by the Defendant to the Plaintiff. I need to take the absence of proof of this payment into account and do so but there are a number of factors to be taken into account alongside it, namely:
1. The Plaintiff said he could not confirm or deny that he had received a cheque of $15,000 from the Defendant: see T71.45, although he did say that if he did receive an amount of $15,000 it was not for half the title of the Property.
2. The Defendant has proffered, at least implicitly, a possible reason for the absence of the cheque butt relating to this payment (and this was put to the Plaintiff by Mr Wyner), namely, that the Plaintiff removed the documents which might assist the Defendant's defence. I do not think this possibility can be ruled out but, in any event, many years have passed since 1991 so it is not surprising that not all documents from that period are available.
3. The Plaintiff has failed to produce a single document which establishes or supports his claim that he paid at any time any money to the Defendant by way of mortgage or for the items he claims he paid in respect of the Property. This links to a further matter of significance. He did not produce a single document in answer to a Notice to Produce and Subpoena issued in these proceedings which were issued to him and he told the Court when answering the Subpoena that he did not have any documents of the kind that would be covered by the Subpoena (see Exhibit A, p 323). Not only is it difficult to accept that he does not have a copy of his own bank account statements, personal and business tax returns, Notices of Assessment, PAYG Summaries, payslips or Centrelink benefits paid (see Exhibit A, p320), but even less so having regard to the fact that he told Ms Penfold, the Defendant's solicitor, that he needed more time in which to "get the documents together" in answer to the Subpoena: see paragraph 12 of Ms Penfold's affidavit. When tasked with his failure to respond, he seemed to suggest that the relevant documents might be at the Property (see T83-85) but he was forced to agree that he was in fact living at the Property in October 2017, at least at the time of receipt of the Notice to Produce.
4. This case is not about the payment of $15,000 but, rather, whether the Plaintiff can establish that he did not sign the Transfer. Proof of payment of $15,000 in either October or November 1991 would put the matter beyond doubt but it is not the only relevant factor.
5. There is evidence from Georgia and Mr Miles that the Defendant told them in 1991 that she was going to purchase the Plaintiff's half share of the Property: see paragraph 4 of Georgia's affidavit and paragraph 7 of Mr Miles' first affidavit and paragraphs 6-7 of his second affidavit. This evidence does not establish the truth of what the Defendant told Mr Miles and Georgia but it does establish that the Defendant's version of events is not a matter of recent invention.
I have referred to the lack of credibility of the Plaintiff and I have touched on his failure to produce a single document in answer to the Subpoena issued in these proceedings. I have referred to his evidence in respect of the Impugned Signature. Although I am of the view that the Impugned Signature is very similar, if not identical, to the Joint Mortgage Signatures, at the very least the Impugned Signature is a good attempt to copy the Plaintiff's signature as the Plaintiff at first conceded. His retraction of that concession is revealing. There were other matters as well:
1. He said in paragraph 10 of his first affidavit that he had, apart from the period between 1995 and 1997, always lived at the Property since its purchase. He was forced to concede that he had lived at a number of different addresses: see T143.1-148.14.
2. He endeavoured to suggest that his mother had dementia. This came up in connection with issues relating to the ADVOs his mother took out against him, yet, in his second affidavit, he stated that his mother was in very good health: see paragraph 22 of the Plaintiff's second affidavit and see T80.31-81.4. Even in cross-examination, he claimed that, in 2015, his mother had mental problems and that he had told the police that she was afflicted in connection with a complaint made around the same time by his mother (see T31-33) but later he said it had only been as recently as 2017 and 2018 ("only this year and last year") that her mental problems had become apparent: see T63.25-28. He made the latter assertion in the context of responding to questions as to why he would be handing over $850 in cash each month to his mother if she, to his knowledge, had a gambling problem or was in poor mental health.
3. The claim that his mother had dementia, and that is why she was asserting that he had attacked her when he was drunk, did not sit easily with his claim, in effect, that she had tricked him into drinking at the Property with her in order to put him in breach of the ADVO's terms, both in 2015 and in 2009: see T19.38-20.5.
4. Further, he is not recorded in either police report of telling the police about 'the trick' his mother had supposedly played on him to cause him to breach the ADVO in force at the time. In relation to the May 2017 ADVO, the Plaintiff, faced with the absence of any such reference, then said there had been a verbal argument between himself and Kathryn in which his mother became involved: T39.34-50. When asked about an earlier incident in 2015 involving the Defendant to which the police were called and which Kathryn as well as the Defendant were described as the persons in need of protection from him he said that it was made up by "the person in need of protection": T31.12.
5. The Plaintiff advanced a case of motive on his mother's part for the transfer that had two components: one was that she wanted to give the Property to Paul for redevelopment, and the second was that she had a gambling problem: see T103.44-104.5, paragraphs 28-30 of the Plaintiff's first affidavit, T109.1-33 and T112.35. He was forced to admit that the Defendant could not have had the transfer of the Property to Paul for redevelopment in mind in 1991, when Paul was 12 years of age (see T114-115), and that, since his mother did not have a gambling problem until 1998 or 1999 (see T104-106), that could not have been the reason either (see T116-117). I did point out to the Plaintiff that a third logical possibility was that his mother had carried out the transfer for 'greed', and he embraced that possibility: see T119. That theory was not consistent with his acceptance that his mother, having arranged the transfer, had not forged his signature on the Transfer nor was it consistent with his own evidence that his mother had offered that he be relieved from contributing to the mortgage when he was married in 1995 (see T59.21-60.7), the fact that his mother had let him live in the Property rent free for long periods and that even now she was willing to assist him by providing him with a place in which he could reside: see paragraph 11 of Georgia's affidavit, paragraph 9 of the Plaintiff's second affidavit, T135.27-43, and see paragraph 2 of Kathryn's affidavit. It was also not consistent with another theory which he advanced (at T118.30) that his mother wanted to split the Property in favour of Georgia, Sophie (a second daughter of the Defendant) and himself. There was no reference to a conversation of that kind in either affidavit of the Plaintiff.
6. The Plaintiff claimed that he paid to his mother $850 in cash each month for the mortgage, except for the years 1995-1997, and until either 2016 or 2017. His explanation of why he did not make mortgage payments between 1995 and 1997 was that his mother had told him he did not need to do so whilst he was married. He claimed that he resumed those payments after his marriage failed and that, from then on right up until he "found out" about the transfer, he always paid $850 in cash to his mother, and says he did so even when his sister, Georgia, in the late 1990's, took over looking after the financial affairs of his mother, and even when on his case his mother had, since at least 1998, a gambling problem. The claim that the Plaintiff paid $850 in cash each month towards the mortgage until he found out that he was no longer recorded on title was contradicted by his claim in paragraph 13 of his first affidavit that he made payments until "last year", i.e. 2016, because his case is that he found out about the transfer in 2017.
7. The Plaintiff's claim that it was only in May 2017 that he saw correspondence relating to the Property addressed to his mother alone was implausible, not only inherently, but because he accepted that he may well have seen such correspondence at earlier times (see T95.35, T96.7 and T97.1-9) but said he had not appreciated the significance of it. His evidence about how he came to see and notice the Council rate notice was unconvincing (see T93-97 and T123-127) and it did not fit with his claim that he only became suspicious when Georgia would not give him a definitive response regarding the debt on the Property and another property the Defendant owned in Balmain ("the Balmain Property"): T56.22-57.22. Indeed, the claimed discovery in around May 2017 seems to pose an extraordinary coincidence of timing between the claimed ascertainment of loss of his interest in the Property and a prospective exclusion from the Property due to an ADVO, a matter specifically put to him by Mr Wyner and which he denied. I say that his claim that he first saw correspondence relating to the Property addressed to his mother alone is inherently implausible because he was present at the Property until 1995 and later for long periods and was drawing cheques for his mother on her account: T46-47. It is highly unlikely that his mother could prevent him from seeing mail connected with the Property and his acceptance that he probably did see such mail addressed to her confirms this. His later (and new) assertion that mail addressed to his mother was sent to a post office box seemed designed to avoid the problem that he would have observed what he says was hidden from him. There was no evidence that any mail relating to the Property was sent to a post office box or that the Defendant had a post office box.
8. When asked if he had told the Magistrate at Burwood Local Court about the caveat he had lodged, the Plaintiff said he had told the Magistrate on 3 July 2017 about these Supreme Court Proceedings, which cannot be correct because these Proceedings were not commenced until 25 August 2017.
9. The Plaintiff asserted (at T130.12-15) that the ADVOs were a response to his caveat. That cannot be correct since the latest ADVO proceedings were commenced in May 2017, and his caveat was lodged on 28 June 2017 (see Exhibit A, p 116).
10. The Plaintiff gave, in cross-examination, evidence of matters that were not found in either of his affidavits and which would be expected to be in his affidavits: see, for example, T59.25, T60.5, T74.10, T76.13 and T139.44-140.4.
11. The Plaintiff gave non-responsive answers to a number of questions: see T33.1-10, T48.25, T63.25, T69.45-T70.9 and T94.20.
12. In his first affidavit, the Plaintiff said that he asked Georgia about the amount of mortgage outstanding on the Property and the Balmain Property before he found out about the transfer: see paragraph 17. He maintained this at T67.14, but he said he did not recall having said how much does "Mum owe" on the Property: see T69.25. He could not explain convincingly why he asked Georgia about the amount owing on the Balmain Property: see T70.
13. The Plaintiff's evidence at T93-97 exemplifies his lack of credibility. He agrees that he quite possibly saw particular items of mail relating to the Property with his mother's name as the only addressee then he said (about other documents) there was "not a chance" that he did, then he said he might very well have seen a document in 2004 addressed to his mother alone from the Council: see T95.36 and T97.35.
14. The conversations the Plaintiff said he overheard which he put forward to support his claim all occurred, on his evidence, in May 2017 or later, and none in the 25 years before that.
15. The Plaintiff said (at T136.25-137.16) that he had been taking transcript of the telephone conversations he had had with Georgia in relation to the Property. He has not attached any such transcript to either of his affidavits and his explanation seemed to be that they were not legible, not that he could not find them.
16. The Plaintiff denied that he knew what was in the cardboard box in the cupboard at the Property (see T101.18-31) but was very vague (at T102.5) as to what documents of his mother he had seen.
17. The Plaintiff claimed that he had been fully employed or self-employed continuously since 1991 but he has produced no documents by which that claim (relevant to the question of his ability to make the payments he says he did make) could be tested. He also said that he was a recipient of Centrelink benefits for a year: T84.49-85.4.
18. He asserted that his short term memory is "just shot" following a very severe brain injury but he insisted that his long term memory is "ironclad" (T146.6-24). This seemed designed to explain why it was that he had said that he had always lived at the Property except for the period between 1995 and 1997: see T147.18-39.
19. I have referred to the absence of a single document to support payments made by the Plaintiff, including debts to tradesmen that he says were incurred more recently, and yet he says he kept business cards as a "record": see paragraph 21 of his second affidavit.
20. In 2017, the Valuer General issued a valuation in relation to the Property ("Notice of Valuation"). It showed both the Plaintiff as well as the Defendant as the owners of the Property. It is clear that the Valuer General's office had not picked up the change in ownership that had been recorded by the Registrar-General in 1992. The Plaintiff said in his first affidavit (at paragraph 18) that he saw the Notice of Valuation for the Property "at about the same time" that he saw a rate notice from the Council (at paragraph 19), following which he made enquiries of the Council. In cross-examination, he had difficulty explaining the sequence of events (see T123-125) but he did say that, having seen the Notice of Valuation, he "discarded it": see T123.47-124.10.
21. It will be observed that it is not the Plaintiff's evidence that he spoke to his mother about either the Notice of Valuation or the Council rate notice. He could not remember where he saw the Notice of Valuation: T124.48-125.7. He denied that he had seen the Council rate notice first and then the Notice of Valuation. If the Plaintiff thought he was the half owner of the Property with his mother, it would be strange that he would discard a document of apparent importance to his ownership (and not discuss with his mother the fact of the Notice of Valuation and its significance or his view that there was no need to object to it: see T124.43-44).
22. Another explanation is that, having decided to mount a claim that he had been deprived of his half interest in the Property without his knowledge (as a means of staving off the risk of being precluded from the Property because of the pending ADVO determination), he went through the Defendant's cardboard box of documents seeking a document that he would describe as the means by which he became aware of the loss of his half interest and in the process found the Notice of Valuation which superficially seemed to support his position. I say that the Notice of Valuation superficially seemed to support his position because the erroneous Notice of Valuation does not assist the Plaintiff's case at all, given that the change in title had been effected in 1992, not recently.
I would not accept any evidence of the Plaintiff unless it was corroborated by an independent witness or by documentary evidence. The evidence of Kathryn (who is not an independent witness but was not cross-examined) does not corroborate the Plaintiff's evidence.
I accept Georgia's evidence that she had a conversation with the Plaintiff on 31 August 2017 in the following terms:
"Me: "Chris, did you lodge a Caveat over mum's Property?"
Chris: "Yes, I did"
Me: "You need to take it off. You have no claim"
Chris: "I found the house Georgia, therefore I have a legal share"
Me: "I know mum purchased your share back in 1991. She paid you $15,000.00 for it then" I then said words to the effect: "I have suggested to mum that she should sell the house. If she does, she may be open to purchasing two units- one for her to live in, and one for you and your family to live in. I haven't spoken with mum about this yet, but I will".
Chris: "Put what you've said in an email""
(Emphasis added)
The Plaintiff's question and his response to Georgia's comment are entirely inconsistent with the caveat he lodged and the case he now advances.
I also accept Paul's evidence that he said to the Plaintiff, "you should get your own place" and that the Plaintiff did not reply to that, rather than saying "this is my place" as the Plaintiff asserts, but I do not place much emphasis on the absence of a response.
For these reasons, I am not persuaded that the Plaintiff did not sign the Transfer; rather, although strictly not necessary to so find, I am satisfied on the balance of probabilities that he did sign the Transfer, that the Defendant paid $15,000 to the Plaintiff for his half interest in the Property and that the Plaintiff has been aware at all material times since late 1991 that he did not have an interest in the Property. The Plaintiff's case must therefore fail.
Mr Wyner did make submissions dealing with a limitations defence against the possibility that I found that the forgery claim was made out but, in view of my conclusions on the principal issue, I do not think it is necessary to consider that defence.
[2]
Orders
The Summons should be dismissed and the Plaintiff should pay the Defendant's costs.
[3]
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Decision last updated: 18 December 2018