Foundas v Arambatzis

Authenticity of the deed

1. The evidence to be considered comprises lay and expert evidence. It is convenient to consider the expert evidence first. It may assist in what follows to set out the execution portion of the deed:
2. On 18 January 2023, Ms Holt attended the Registry together with the brother's solicitor and examined the Deed of Acknowledgement on the court file. Ms Holt brought an eyepiece which provided ten times magnification, together with a digital microscope which provided 100 times magnification. Ms Holt observed that the document was not an original.
3. Further, Ms Holt is of the opinion that it is extremely likely that no original of the deed exists at all, by reason of two matters. First, the brother's signature likely came from the Commonwealth Bank document and was 'cut and paste', either using a photocopier or computer imaging software, onto the deed. Ms Holt was able to overlay the brother's signature on the Commonwealth Bank document onto the deed by reducing the image by 5%. The only real difference between the two signatures was that the brother's signature on the deed was slightly shorter, having likely been 'cut off' during the copying process.
4. Ms Holt observed that no two naturally written signatures or handwritten entries will overlay each other to such an extent that, for all intents and purposes, they are identical and superimposable. This is because humans cannot write with machine-like repetition and two signature or entries naturally written by the same person will exhibit an observable degree of variation. Ms Holt was of the view that the brother's two signatures shared a common source. Where the brother's signature on the Commonwealth Bank document was executed in 2001, that is, some 12 years before the deed and witnessed by a bank employee, the brother's signature on this document was likely the source of the signature on the deed. This was further corroborated by the fact that the brother's signature was taken from a signature box in the Commonwealth Bank document, resulting in the letter forms being cut off and shortened during that process.
5. Second, while the signatures of the witness, Ms Cox, show some variation between them, the handwriting of the witness' name "Kristine Cox" does not. Rather, the two handwritten names are, for all intents and purposes, identical and superimposable. Ms Holt was able to overlay one "Kristine Cox" onto the other. Any divergence between the images was likely do to with the reproduction quality of the deed, which appeared to be at least a copy of a copy. Ms Holt concluded that the two handwritten entries "Kristine Cox" shared a common source, that is, one of the entries was the source of the other or, more likely, both entries came from another document not provided to Ms Holt.
6. Ms Holt concluded that neither the brother nor Ms Cox completed their entries in the usual, normal manner but that their entries had been cut and paste onto the deed from other source documents. Ms Holt is of the view that the deed is a composite document made up of entries sourced from other documents. Ms Holt concluded, "These observations very strongly suggest that no original of the questioned deed exists at all."
7. Next, it is convenient to consider the evidence of the witness, Ms Cox. In the statutory declaration, Ms Cox declared that, on or around 4 December 2013, she witnessed the Deed of Acknowledgement for the sister and brother "in the area of Liverpool." In cross-examination, Ms Cox said she recognised both witness signatures on the document, as well as the handwriting of her name "Kristine Cox", as hers. Ms Cox had no independent recollection of having witnessed the signatures on the deed, where she sometimes witnessed 2,000 and 3,000 documents per month. While Ms Cox did keep a register of appointments, she no longer had the register given the passage of time. Ms Cox said "My recollection is knowing that that's my signature, not the actual date. I mean, it's 10 years ago. … I just know that that's my signature."
8. As to when Ms Cox witnessed the signatures, Ms Cox agreed that the document could have been signed on a date other than 3 December 2013, where the page containing the execution clause did not have a date, "all I know is that that's my signature. There was no place to put a date." Ms Cox agreed that she could not definitively tell the Court that she witnessed the document on or about 4 December 2013, nor that the document was witnessed in 2013, "where I witnessed it there's no date to say that that's when I did it."
9. As to where Ms Cox witnessed the signatures, in December 2013, Ms Cox was working for an electronics company in Eastern Creek. Ms Cox agreed that she could not definitively tell the Court that she witnessed the document near Liverpool. Nor could Ms Cox say whether the signature or her name were placed on the document at one or more locations, "All I can agree to is yes, they are my signature and that is my name."
10. As to whether Ms Cox witnessed both signatures on the same occasion, Ms Cox could not say whether she witnessed both signatures at the same time. On occasion, she witnessed a document signed by only one party. However, Ms Cox was confident that she had witnessed both signatures on the deed "because they're both my signature." Ms Cox also said that she would have seen the original document on the day of signing, "I do not sign photocopies unless it has been stamped by another JP to say it's a copy of an original."
11. Turning, then, to the evidence of the parties to the Deed of Acknowledgement, the sister maintained that Ms Cox witnessed the execution of the deed on or about 3 December 2013, including the brother's signature. The sister maintained that she saw her brother sign the document. The sister variously said that she gave a copy of the deed to the brother, then said he "didn't want a copy." The sister denied cutting and pasting her brother's signature from the Commonwealth Bank loan agreement to the deed. The sister denied that the deed came into existence long after 3 December 2013.
12. The brother said he had no documentary proof of his whereabouts on 3 December 2013, "You're asking ten years ago. … When she left the house she took all the documents with her. All the paperwork, everything, was cleared out of the filing cabinet that we used to keep at home. Even my father's records." He accepted that his signature appeared on the execution page, "But then my signature was on a lot of things which was not meant to be, because I didn't sign them." The brother said the first time he saw the Deed of Acknowledgement was when his solicitor showed it to him attached to the sister's 23 February 2021 affidavit. The brother said he did not place his signature on the deed and does not know who Ms Cox is. He has never signed any document at any time that looks like the Deed of Acknowledgement. The brother maintained that he did not sign any deed.

Submissions

1. The sister submitted that the brother was not a credible witness. He was aware of the deed but chose to ignore it by running the earlier proceedings and also made sure that she was not present when the orders were made, so that the Deed of Acknowledgement was not placed before the Court. The sister maintained that the brother signed the deed and said it was "my bad" for not following up on taking the deed to the Land Titles Office, or ensuring that Mr Currie did so.
2. As for Ms Holt, the sister submitted that the expert report was not based on scientific method and was biased in favour of what the client wanted. Where the signatures were superimposed using "Photoshop", this was hardly scientific. Further, it was suggested that Ms Holt had herself engaged in fraudulent conduct by superimposing the same signature on itself, being the brother's signature on the deed. (This allegation was not put to Ms Holt in cross examination. The submission also does not account for the fact that the signature on the deed is 'cut off' and is the same as the signature on the Commonwealth Bank document). The sister added, "they will come after me to get money. Sorry but, that isn't happening."
3. The brother submitted that there were a number of circumstances which raise questions as to the authenticity of the deed and give rise to an inference that the deed was created long after the date on it bears. The sister did not refer to or produce the deed until 23 February 2021. There is no credible explanation was to why the sister did not produce it earlier, or even refer to it. The sister has failed to produce the original deed, despite being ordered to do so by Brereton JA on 1 March 2021. Ms Holt's expert evidence was compelling and ought be accepted: the brother's signature on the deed was cut and paste from the Commonwealth Bank document. The Court ought conclude that the Deed is a false document which does not contain a true signature of the brother. In any event, it could not be said that the brother had obtained a judgment by fraud in the relevant sense where the sister knew about the deed and had intimate knowledge of the very subject of the brother's alleged fraudulent or dishonest conduct: Nadinic v Drinkwater [2017] NSWCA 114; (2017) 94 NSWLR 518 at [22]; Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 at [114].
4. The Trustees took no position on the allegations made by the sister. The Trustees submitted to the orders of the Court save as to costs, remuneration, charges, fees and expenses; save as to the trustees' indemnity as applicable; and save as to any ancillary orders that may be required following the Court's determination of the sister's claim. Where the Trustees are currently the registered proprietors of the Magee Street property, ancillary matters may include potential responsibility for tax resulting from any transfers or transactions, or any tax rulings or otherwise that might be required that may potentially arise from any orders made. The Trustees would seek to address these issues, if needed, following the determination of the dispute between the sister and brother.

Principles

1. Rule 36.15 of the UCPR confers on the court, upon sufficient cause being shown, a power to set aside a judgment if it was made irregularly, illegally or against good faith. One basis for setting aside a judgment under this provision is that the judgment was obtained by fraud.
2. In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, Kirby P discussed the principles guiding the determination of an application to set aside a judgment on the basis that it was obtained by fraud: at 538. These principles were usefully summarised by French J (as his Honour then was) in Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262 at [60]: (emphasis added) 1. The essence of the action is fraud and particulars of the fraud claimed must be exactly given and the allegations established by the strict proof which such a charge requires. 2. It must be shown by the party asserting that the judgment was procured by fraud that there has been a new discovery of something material in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment. 3. Mere suspicion of fraud raised by fresh facts later discovered will not be sufficient to secure relief. 4. Although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud and although there may be exceptional cases where such proof of perjury would suffice, without more to warrant relief of this kind, the mere allegation or even the proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment. 5. It must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. 6. The burden of establishing the components necessary to warrant the drastic step of setting aside a judgment allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly.
3. The threshold to have a judgment set aside on the basis that it was obtained by fraud is high. This is warranted having regard to the public interest in finality of public litigation: Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 at [29] (Payne and Brereton JJA).
4. Of particular importance in this case is the requirement that the evidence of the fraud is 'fresh', that is, something that has come to the applicant's attention after the judgment and orders were made: McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 at 533 (per Barwick CJ). The applicant does not need to show, however, that the fresh evidence could not have been discovered by the exercise of due diligence before the orders were made: Toubia v Schwenk (2002) 54 NSWLR 46; [2002] NSWCA 34 at [37]-[45] (per Handley JA, Heydon and Hodgson JJA agreeing).

Consideration

1. I am not satisfied that the judgment and orders obtained by the brother on 15 October 2018 should not be set aside. Assuming for the moment that the Deed of Acknowledgement was executed on 3 December 2013, then this evidence is not 'fresh' as, on the sister's version of events, she was aware of the document before the judgment and orders were made: McDonald v McDonald at 533 (per Barwick CJ). Indeed, on the sister's version of events, she was aware of this evidence for almost five years before the judgment and orders were entered.
2. Further, I am satisfied that the Deed of Acknowledgement is a forgery, having regard to six pieces of evidence.
3. First, although the sister maintains that the deed was executed on 3 or 4 December 2013, it is unlikely that the deed was executed then, where Mr Currie continued to correspond with the sister on 9 December 2013 on the basis that the deed had not been executed: see [27].
4. Second, the sister did not mention the existence of the Deed of Acknowledgement in the ensuing seven years, until the week before the date for eviction from the Magee Street property.
5. The sister did not mention the deed to Wright Lawyers in September 2014 (see [30]) or McLaughlin & Riordan in October 2015 (see [35]), when the sister asserted through these solicitors that she was entitled to more than a half-share in the properties and the surplus on sale of the Stanwell Crescent property. The sister then asserted that her entitlement arose from her greater contribution to the acquisition and maintenance of the properties.
6. Nor did the sister mention the deed when asked by Kunc J in April 2019 what her defence to the brother's claim might be: at [45]. Nor did she mention it when asked the same question by Darke J in June 2019, August 2019 or September 2019: at [49], [50], [54]. No mention was made of the existence of the deed in her six affidavits made in support of the application to set aside the orders made by Darke J on 15 October 2018, in particular, in her affidavit made on 27 June 2019, where she set out the nature of her defence: see [48].
7. Nor did the sister mention the Deed of Acknowledgement in the Court of Appeal proceedings, either in the Notice of Appeal, her written submissions, or at the hearing of the appeal. Indeed, her submissions were at odds with what is now sought to be advanced: see [58].
8. As to why the sister did not produce the Deed of Acknowledgement until 23 February 2021, the sister said that she could not find the deed when the matter was before the Court of Appeal in March 2020 "and I knew that I was just going to be ignored, even if I did mention it. … I'm always ignored because I'm self-represented or they don't want to hear me." Although her brother had put forward his affidavit of 3 April 2018 and "No proof was given," the sister said, "My story always has to be proven; I always have to put in evidence to back my story otherwise I just get ignored. So there's no point in just saying frivolous shit without having the evidence to produce it. I'm sorry about the language. But in layman's terms, that's my … reasoning." The sister said that she found the deed while she was trying to pack her possessions "because I was going to get evicted".
9. This explanation was not given in her affidavits filed in these proceedings, the first affidavit having been prepared when the sister was legally represented. The explanation was only proffered from the witness box at trial. This reduces the weight I am prepared to attach to the sister's evidence.
10. The explanation also does not bear scrutiny. The sister's affidavits filed in the earlier and Court of Appeal proceedings up to 23 February 2021 were replete with allegations unsupported by documentary corroboration. Two examples suffice. First, the sister stated in her affidavit of 27 June 2019 that she had to pay for everything in relation to the Magee Street property and, since 2001, had contributed to the upkeep and maintenance of the property without any assistance from the brother. No documents were attached in support of this contention. Second, in the sister's affidavit of 23 August 2019, she said that her father arrived at the Magee Street property in June 2017 and cited two police reports in respect of the incident, noting that she needed time to obtain the police reports under a Freedom of Information application. That is, the fact that the sister did not then have a document in her possession did not prevent her from referring to the import of the document or its existence.
11. The sister also had no difficulty informing the Court that she hoped to obtain documents which she anticipated would support her defence, but which she did not have when the submission was made: see the transcripts of the hearings before Darke J on 28 June 2019 (at [49]) and Darke J on 2 August 2019 (at [50]).
12. Third, Ms Holt's expert evidence is compelling. Nor does Ms Cox's evidence does not detract from the expert's opinion. It is not in issue that Ms Cox's two signatures on the deed are authentic. Nor is it in issue that Ms Cox's handwritten name on the deed is also hers; the point made by Ms Holt is that the two handwritten names are precisely the same and at least one had been 'cut and paste' from the other. Nor is it in issue that the sister executed the document, or that her signature was witnessed by Ms Cox. What is in issue is whether the second signature witnessed by Ms Cox was that of the brother.
13. Ms Holt concluded that the brother's signature was been 'cut and paste' onto the deed from the Commonwealth Bank document. That document was in the sister's possession, having been annexed to her affidavit made on 23 August 2019: see [52]. Whosever signature Ms Cox may have witnessed, it was not the brother's. Had it been, there would have been no need to 'cut and paste' his signature from another document.
14. Fourth, although the sister was ordered to produce the original of the Deed of Acknowledgement to the Court, the sister failed to do so. The fact that the deed which the sister sent to the Court was not the original, but a copy, is confirmed by the Registrar's email of 3 May 2021 (see [70]) and Ms Holt's inspection of the document on 18 January 2023. Indeed, by reason of the 'cut and paste' of the brother's signature and Ms Cox's handwritten name on the document, Ms Holt is of the view that no original of the questioned deed exists at all.
15. The sister's explanation to Brereton JA as to whether she had an original of the deed or not, and whether she had sent it to the Court, remained obscure in these proceedings. The sister said, variously, "I know I sent an original copy to the courts", "What's to say what's an original?" and sought to distinguish an original copy from "an original, like as in the one, the only original." The sister maintained that she had delivered the original to the Court.
16. The sister also submitted "no one said that I must produce an original a copy would suffice. I produced my original that is a copy". The sister relied on sections 48 and 51 of the Evidence Act 1995 (NSW). I understood this to be a reference to section 48(1)(b), which enables a party to adduce evidence of the contents of a document by tendering a copy of the document in question, where the copy has been produced by a device that reproduces the contents of documents. These sections are no answer to an order "that the defendant Cassiani Foundas produce to the Registrar by 18 March 2021 the original …". To use Brereton JA's words, the sister's evidence and explanation as to whether there was an original and whether she was obliged to, or has, produced it to the Court was "absolute nonsense": see [74].
17. Fifth, the sister's description of the circumstances in which the deed was executed by the brother materially changed, without adequate explanation. In the sister's first affidavit made on 28 November 2022 in these proceedings, the deed was still said to have been executed on 3 December 2013 but the place where the document was said to have been executed was different from that described in her affidavit of 23 February 2021. Gone is the chemist or medical centre. The siblings are now in Sydney CBD on Macquarie Street, at a building which is being renovated. The witness is now a building employee. I note in passing that there is no suggestion that Ms Cox worked at a chemist or medical centre and nor was she employed at a building in Macquarie Street, Sydney.
18. In the sister's last affidavit, she said that the reference in her affidavit of 28 November 2022 to "Sydney City" was an oversight and should refer to Liverpool. The address of Macquarie Street in Sydney should read Macquarie Street in Liverpool. In cross-examination, the sister was unable to explain the significant changes between her affidavits, "it was in Sydney, but it was in Liverpool, specifically. Because when you state "Sydney", there's many suburbs in Sydney, as you well know. So, I had to be more specific. I tried to help by being more specific rather than being broad." This explanation was difficult to accept and I do not accept it. Fairly obviously, the sister was trying to align her affidavit with Ms Cox's statutory declaration.
19. Finally, I prefer the evidence of the brother to the sister as to whether or not the brother signed the deed.

Orders

1. For these reasons, I make the following orders: 1. Dismiss Prayers 1 to 7 of the Summons. 2. Order the plaintiff to pay the defendants' costs of the proceedings. 3. In the event that any party seeks a special costs order, a specified gross sum under section 94(4)(c) of the Civil Procedure Act 2005 (NSW) or any ancillary order as referred to in the Trustees' closing submissions: 1. the party seeking such an order is to notify the other parties and the associate to Rees J within seven days of any orders sought, supported by any affidavits and submissions (limited to three pages); 2. any party against whom such an order is sought is to provide any affidavits and submissions in reply (limited to three pages) within seven days thereafter; 3. such application to be determined on the papers. 1. Direct the Prothonotary to refer this matter to the relevant law enforcement authorities.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2023