Iskandar v Mahbur & Ors

Judgment Introduction 1The plaintiff, Hazairin Iskandar, was arrested on 23 February 2010 and charged with murder. He was subsequently convicted and has been sentenced to a lengthy term of imprisonment. He has been in prison since 23 February 2010. The plaintiff's son, Andrew, who fled the country to Singapore soon after the murder, was (after agreeing to his extradition back to Australia to face trial) also convicted of the same murder. The plaintiff's wife, Mrs Nita Iskandar, was also arrested and charged with being an accessory after the fact to murder. Mrs Iskandar was granted conditional bail on security of $100,000. She was subsequently convicted. The relevant events in this matter are to be viewed in the context of these arrests and charges and the need to fund the costs for legal representation for the plaintiff's criminal trial and to meet Mrs Iskandar's bail conditions. 2The proceedings relate to the sale of the plaintiff's Taxi plates, Taxi licence and the vehicle (collectively, the Taxi) pursuant to a Deed of Agreement dated 5 May 2010. 3By Amended Statement of Claim (SOC) filed in Court on 14 February 2013, the plaintiff sues his brother, Zulfikri Abu Yasid Mahbur, the first defendant (the defendant), Ms Aminah Theglory (Ms Theglory), the second defendant, and Ms Theglory's de facto partner, Wahyu Sasterawan (Wahyu), the third defendant. The plaintiff seeks an order setting aside the Deed of Agreement for the Sale of the Taxi dated 5 May 2010 on the basis that it was procured by deceit, undue influence, unconscionable conduct and in breach of fiduciary and statutory duties. 4The plaintiff purchased the Taxi in 2005 for approximately $266,000 and thereafter operated it as an owner/driver. The purchase was funded in part by the sale proceeds of an investment property that the plaintiff and his wife owned in Campsie and by a loan secured by a mortgage over their jointly owned matrimonial home in Croydon (the Property). The claim as pleaded alleges that on or about 27 April 2010 whilst the plaintiff was in custody on remand, he instructed the defendant and Wahyu to deliver the Taxi to his friend, Peter Syarif, who was to drive it in a profit share arrangement whilst the plaintiff remained in prison (the Instructions) (par 7, SOC). It is alleged that at this time Wahyu represented to the plaintiff that he and the defendant would agree to act in accordance with the Instructions and that he would arrange a Power of Attorney for the plaintiff to sign "so as to effect those instructions" (the Representations) (par 8(c), SOC). It is alleged that the plaintiff was induced by the Representations to execute a Power of Attorney in favour of the defendant (par 9, SOC). It is also alleged that the Representations were false, that Wahyu had no intention of carrying out the Instructions and that Wahyu's real intention was "to steal the plaintiff's money" (par, 10 SOC). 5It is further alleged that on 5 May 2010, inconsistently with the Instructions and without the plaintiff's authority, the defendant entered into an agreement to sell the Taxi to Ms Theglory for $400,000. It is also alleged that in "furtherance of the purported sale" of the Taxi, Wahyu made further representations in a document entitled "Acknowledgement of Received Payments" that he drafted and dated 8 May 2010 (pars 12-13, SOC). That document, purportedly signed by the defendant on the plaintiff's behalf, acknowledges receipt of $224,950 (by two cash payments of $200,000 on 3 May 2010 and $15,000 on 4 May 2010 and a bank cheque of $9,950 on 5 May 2010). It also refers to a bank cheque of $160,000 dated 5 May 2010 said to be "on hold" until the GST component of the sale of the Taxi was finalised. It is contended on Ms Theglory's behalf that she paid $215,000 in cash to the defendant in part payment of the purchase price for the Taxi. The defendant denies that he received that money. The balance of the purchase price has been paid into Court. 6The plaintiff maintains a claim of undue influence against the defendant and Wahyu in respect of the procurement of the Power of Attorney and the sale of the Taxi. There is also a claim of unconscionable conduct against each of the defendants in respect of the procurement of the Power of Attorney and the sale of the Taxi. Finally there is a claim against the defendant for breach of his fiduciary duty allegedly owed to the plaintiff and breach of s 12 of the Powers of Attorney Act 2003. 7In respect of the claims of undue influence and unconscionable conduct the plaintiff relies on three factors: (1) that at the time of the procurement of the Power of Attorney and the sale of the Taxi he was in custody and on remand; (2) that he had limited understanding of the English language; and (3) that he was befriended by and had considerable regard for and confidence in the defendant and Wahyu (par 6, SOC). There is no doubt that at the relevant time the plaintiff was in custody and on remand. Nor is there any doubt that prior to this time he had not known Wahyu and was introduced to him by the defendant. I will return to the plaintiff's apparent capacity to understand the English language. Pre-trial matters 8On 17 May 2010 on the plaintiff's undertaking as to damages, an order was made restraining Ms Theglory from selling, transferring or disposing of the Taxi. That order was continued in that form until 11 June 2010 when it was varied to allow Ms Theglory to grant a lease of the Taxi to an accredited taxi operator on a month-to-month basis. On 11 June 2010 an order was made that the plaintiff's solicitors pay into Court the amount of $175,050 (the balance of the purchase price of $400,000 less $224,950) "purportedly paid" by Ms Theglory to the plaintiff's solicitors "allegedly in consideration" of the transfer of the Taxi. 9On 15 February 2012 the Court made a declaration that Wahyu was incapable of managing his affairs. Orders were made that part of his estate be subject to management under the NSW Trustee and Guardian Act 2009 and that the NSW Trustee and Guardian manage that part of his estate: Iskandar v Mahbur (No 6) (unreported, Supreme Court of New South Wales, Slattery J, 15 February 2012) (Ex 5 p 491-502). 10The plaintiff made an application in late 2012 for a similar declaration and orders under the NSW Trustee and Guardian Act in respect of Ms Theglory. That application was refused: Iskandar v Mahbur (No 9) (unreported, Supreme Court of New South Wales, White J, 10 December 2012). Hearing 11The proceedings were heard on 11 to 15 and 18 February 2013. Judgment was reserved on 18 February 2013. Mr FD Coyne, of counsel, appeared for the plaintiff. The defendant filed a submitting appearance. Mr AJ McInerney SC appeared for Wahyu, instructed by the solicitors for the NSW Trustee and Guardian. On the first day of the trial a further application under the NSW Trustee and Guardian Act 2009 was made in respect of Ms Theglory. Mr Amjad Mehboob (who described himself as a welfare person and community representative) was granted leave to make the application. The application was refused. Overnight Mr A Cheshire, of counsel, was briefed to appear for Ms Theglory for the remainder of the trial. 12The plaintiff gave evidence during the proceedings that although the signature on certain documents was his signature, he did not sign those documents. The documents about which the plaintiff gave this evidence were copy documents. A forensic document examiner, Mr Clifford Hobden, had provided a report in respect of those copy documents (Ex B) and expressed the opinion that two of the plaintiff's signatures had been "simulated". The expert expressed the opinion that these two signatures "had been produced by making a differently scaled copy of the other (or all are copies based on another source model)." 13On the third day of the trial access was granted to documents produced under subpoena by the NSW Police Force and were tendered and marked as Ex A(1) to Ex A(5). These Exhibits were then uplifted and taken to Mr Hobden for review. They were subsequently returned to the Court with no further evidence being given about them. After judgment was reserved, and on reviewing Ex A(4), it appeared that the plaintiff's signatures on those documents were original signatures. As the trial had been conducted on the basis that these were copy documents without original signatures upon them, the matter was re-listed on 27 February 2013 to alert the parties and their legal representatives to this aspect of the matter. The plaintiff's legal representatives were granted leave to uplift the documents, for further review by Mr Hobden. 14On 6 March 2013 the plaintiff was granted leave to re-open his case to tender a further report from Mr Hobden, dated 5 March 2013 (Ex H). There was no objection to the re-opening of the plaintiff's case nor to the tender of the report. The report confirmed that these signatures are original signatures. I will return to this aspect of the matter in due course. Judgment was then reserved on 6 March 2013. 15The witnesses in the plaintiff's case were the plaintiff, his wife, Mrs Iskandar, and his brother, the defendant. The plaintiff also relied upon the affidavits of Benjamin Archbold sworn on 10 May 2012, Peter Syarif, affirmed on 18 May 2012 and of Burmansjah Amasin, affirmed on 17 May 2012. Messrs Archbold, Syarif and Amasin were not required for crossexamination. The plaintiff also relied upon Mr Hobden's reports of 11 February 2013 and 5 March 2013. Mr Hobden was not required for crossexamination. 16Ms Theglory did not give evidence. However various documents were tendered in her case (Ex D2-1; Ex D2-2). Wahyu did not give evidence. The only witnesses in Wahyu's case were Mr Abubakar Rasyid, the President of the Indonesian Australian Islamic Society At-Taqwa of New South Wales (IAISA-NSW) Incorporated (the Society) and Ms Rosemary Grant, the solicitor retained by Mrs Theglory to prepare the Deed for the sale of the Taxi that was executed on 5 May 2010. Relevant events 17At the time of his arrest on 23 February 2010, the plaintiff had two assets to which he could have recourse for the purpose of obtaining finance or funding to meet his legal fees. Those two assets were the Taxi and the Property. At that time the Property was encumbered by a first mortgage in respect of the remaining amount of the loan (approximately $100,000) for the purchase of the Taxi in 2005. 18On 3 March 2010, Mr Benjamin Archbold, solicitor, visited the plaintiff at Goulburn Correctional Centre (Goulburn CC). Mr Archbold was at that time acting for Mrs Iskandar, and he advised the plaintiff that his wife had been granted bail conditional upon the provision of a surety of $100,000 and that this was to be provided by way of second mortgage over the Property. The plaintiff consented to a second mortgage for that purpose. 19Mr Archbold asked the plaintiff how he intended to pay for his legal fees. The plaintiff informed Mr Archbold that he owned the Taxi that was presently being forensically examined by the Police and that he did not know when he would get it back. He said he was planning to have someone take over his Taxi and that he would "get money from it each week", about $500. The plaintiff said that he needed Mr Archbold's help to retrieve the Taxi so that he could make those arrangements. Mr Archbold advised the plaintiff that he would liaise with the Police and advise him further. However Mr Archbold also advised the plaintiff that although $500 per week (or $24,000 a year) would "get things started" in relation to paying his legal bills, he would need more than that. 20The plaintiff had heard about a particular Queen's Counsel from other inmates at Goulburn CC and asked Mr Archbold if he could instruct him for his trial. Mr Archbold informed the plaintiff that the particular QC was "very expensive" (tr 24). At this time the plaintiff understood that the estimate for his legal fees would be between $150,000 and $200,000 (tr 29-30). 21Prior to his arrest, the plaintiff had been an active member of the Society. He served as the Treasurer whilst Mr Rasyid was (and still is) the President of the Society and he knew Mr Rasyid "very well" (tr 40). After the plaintiff was arrested, Mr Rasyid visited him in Goulburn CC. The two visits about which Mr Rasyid gave evidence occurred on 13 March 2010 and 27 March 2010. On the first of those visits Mr Rasyid took members of the Society and friends with him to visit the plaintiff to give him some support. Mr Rasyid's evidence of this meeting included a claim that the plaintiff spoke to him about the Taxi. Mr Rasyid claimed that as they were "talking together" the plaintiff advised him that he was "selling taxi" and that he mentioned "360 or 370", indicating an approximate price. They then spoke of "other things" (tr 270). On the second visit Mr Rasyid took the plaintiff's aunt and niece with him. There was no discussion about the Taxi at this meeting. The plaintiff denied speaking to Mr Rasyid about the necessity to sell assets to raise money for his legal representation (tr 52). 22On 29 March 2010 Mr Archbold wrote to the plaintiff at Goulburn CC advising of his discussions with the Police in relation to the "retrieval" of the Taxi. Mr Archbold advised that the forensic examination of the Taxi would probably be finalised by the end of the week at which point an arrangement could be made for its return. By this time Mrs Iskandar had informed Mr Archbold that she had received some accounts for household expenses that were in the plaintiff's name and that these accounts remained unpaid. The letter to the plaintiff included the following: Finally, I attach a Power of Attorney for your consideration. It is for the purpose of enabling me to deal with third parties, for example the cancellation of your Oputsnet Broadband Account which has been forwarded to us by your wife, and of which I enclose a copy for your records. We will also need to deal with the Ministry of Transport once your Taxi has been returned and you have decided who will use it. I will discuss this document with you further when I attend upon Goulburn Gaol with barrister James Trevallion for the purpose of a legal visit with you. 23The plaintiff contacted Mr Syarif and informed him that he wanted to "organise a driver to rent the Taxi". Mr Syarif informed the plaintiff that he could "help" him. The plaintiff informed Mr Syarif that the Police were "doing testing" on the Taxi and that when this was finished he would organise someone to get the Taxi to him. Mr Syarif's evidence was that it was in "early 2010" that the plaintiff contacted him. The plaintiff did not give evidence about the details or date upon which he contacted Mr Syarif. However it appears from the conversation that it was probably in March 2010, having regard to Mr Archbold's advice to the plaintiff in his letter of 29 March 2010 that the testing on the Taxi would be finished by the end of the week. 24The defendant lives in Palembang, Indonesia. He is a teacher of English and has a Masters degree in Education. He was delayed in coming to Australia to assist the plaintiff because he had to sit his "thesis examination" at Sriwijaya University in Palembang. His brothers and sisters who also live in Indonesia asked him to come to Australia to visit the plaintiff to "determine his health and wellbeing". The defendant's aunt advised him that her daughter, a student at Wollongong University, knew Mr Rasyid and that he could help him when arrived in Australia. 25The defendant arrived in Sydney from Indonesia on 16 April 2010. He then went straight to Mr Rasyid's home/boarding house in Randwick. He stayed with Mr Rasyid for the duration of his time in Sydney until 9 May 2010 when he returned to Indonesia. 26On 17 April 2010 Mr Rasyid took the defendant to Wahyu's home where he introduced him to Wahyu and his family, including Ms Theglory. It was at this meeting that Wahyu advised the defendant that he would take him to visit the plaintiff at Goulburn CC. 27The defendant's affidavit evidence (22 September 2010) was that on 18 April 2010 Wahyu (with his family) drove him to Goulburn CC to visit the plaintiff (par 26). Wahyu and his family waited outside while the defendant went in to see the plaintiff. The defendant's affidavit evidence was that after initial greetings and discussing the fact that he was staying with Mr Rasyid, the plaintiff informed him that he was going to arrange for Mr Syarif to use his Taxi and that he wanted Mr Syarif to handle his Taxi whilst he was in prison. He claimed that the plaintiff said that Mr Syarif would get the daily income from the Taxi and put it into his (the plaintiff's) account. The defendant also claimed that at this meeting the plaintiff asked him to contact the particular QC he had discussed with Mr Archbold because he wanted him to be his lawyer. The defendant claimed that the plaintiff said that this particular QC was a "good lawyer" and that he handled many criminal cases. 28The defendant's affidavit evidence was that on the way back to Sydney, Wahyu said that he would help the plaintiff because he knew "all the Australian laws". The defendant also claimed that Wahyu made a promise that he could get him a scholarship to study in Australia. The defendant also claimed that Wahyu then asked him to pay him $500 for the trip to Goulburn CC. The defendant said that he paid this amount to Wahyu and did not know whether it was "too much or not". The defendant claimed that Wahyu said that he should not approach the plaintiff's informants "because they will try to kill you". He claimed that this made him feel scared as he was alone in a foreign country and he had never been in this situation before (par 40). The defendant also claimed that Wahyu said that he should ask his friends to transfer $3,000 to Mr Rasyid's account. The defendant claimed that he informed Wahyu that he would contact his "friends and family back home and organise the money". The defendant also claimed that Wahyu advised him that he should open a bank account with the Commonwealth Bank in Sydney so that when his family sent him money from overseas he would be able to withdraw it (par 42). 29The defendant claimed that when he arrived back at Wahyu's house Mr Rasyid (and his wife Laila) came to pick him up and there was a conversation in which both Mr Rasyid and Wahyu asked him what the plaintiff had discussed with him. The defendant claimed that he informed them that the plaintiff had asked him to handle his Taxi with Mr Syarif. The defendant said that Wahyu then informed him that Mr Syarif was a "bad man". The defendant said that he did not know about Mr Syarif but that this is what his brother wished him to do. 30The defendant claimed that Mr Rasyid and his wife then drove him back to Mr Rasyid's house. The defendant's affidavit evidence was that during this trip Mr Rasyid asked him why he had not asked the plaintiff about "his property like his house, his car, his savings account and all his finances". The defendant claimed that Mr Rasyid "looked angry and was shouting at me". He claimed that he was "frightened of him" and he thought that it was none of his business. He claimed that Mr Rasyid said "don't bother visiting your brother if you only talk about your family" (par 43). 31The defendant's affidavit evidence was that on 19 April 2010 Mr Rasyid drove the defendant to Wahyu's house. The defendant claimed that Wahyu took him to the Commonwealth Bank in the city and helped him open a bank account. A few days later he received his cheque book and noticed that Wayhu's name was also on the cheque book. He claimed he had a discussion with Mr Rasyid about the cheque book and asked him not to tell Wahyu about it "because he will get angry with me". He said that he informed Mr Rasyid that he did not know why Wahyu's name was on his cheque book. He claimed that Mr Rasyid suggested that he should talk to Wahyu about it and that he could have his own name on the cheque book without Wahyu's name. The defendant claimed that he did not speak to Wahyu about it because he was "scared" of him and that he "was always angry at me" (par 48). 32It is not clear why the defendant became scared of either Mr Rasyid or Wahyu. He had only been in Sydney for 3 days and he gave no evidence of any conduct that would justify becoming scared of either man at this stage. 33The defendant claimed that on 19 April 2010 Mr Rasyid drove him to Wahyu's house and a conversation ensued in which Wahyu said we "need to make you the Power of Attorney." When the defendant asked why this was necessary, Mr Rasyid said that with the Power of Attorney he could act on behalf of the plaintiff and that they had "already asked your brother to give us authorisation but he didn't want it". The defendant responded, "I will try, I don't know." The defendant claimed that Wahyu and Mr Rasyid searched on the Internet for information about good lawyers who could represent the plaintiff. The defendant said he looked on as they made these searches over "a few hours" (par 53). 34On 21 April 2010 Wahyu telephoned a firm of solicitors in Goulburn of which Mr Rodney Boyd was an Associate. It is apparent from the records of that firm that Wahyu had been referred by another firm. The file note of his call on 21 April 2010 is as follows (Ex 4 p 9): Re: Iskandar Hazairin (in Glbn gaol...) He rang J & S and they referred him to us. He is calling on behalf of above inmate's brother. Julfikri Abu Wazid Mahbur - want us to draft Power of Attorney for Iskandar appointing his brother and for you to attend gaol for him to sign same. Brother has come out from Indonesia and saw Iskandar in gaol yesterday. Wants to know costs of same. Said he is known only as "Wahyu". Rang back and told him $660 & you could do it on Thursday. He will let us know this pm or tomorrow am at the latest. 35On 22 April 2010 the defendant and Wahyu attended Mr Boyd's office in Goulburn and paid $660 for the preparation of the Power of Attorney. Mr Boyd then visited the plaintiff at Goulburn CC. He informed the plaintiff that his brother and his "friend" Wahyu had come to see him and he had a Power of Attorney for him to sign (tr 33). The plaintiff informed Mr Boyd that he was not signing the Power of Attorney and that he did not know Wayhu. Mr Boyd left the draft Power of Attorney with the plaintiff and departed. 36On the afternoon of 22 April 2010 Mr Archbold attended the Goulburn CC with Mr Trevallion, of counsel. The plaintiff informed Mr Archbold that the defendant had come to Australia and had visited him. The plaintiff gave Mr Archbold the draft Power of Attorney that Mr Boyd had left with him. He informed Mr Archbold that he had advised the defendant that he was making arrangements for Mr Syarif to use his Taxi. The plaintiff also advised Mr Archbold that Mr Syarif would use the Taxi and that he, the plaintiff, would get money each week for himself and his wife. The plaintiff asked Mr Archbold to arrange for the Taxi to be delivered to Mr Syarif. He also said that he would get his friend, Burmansjah Amasin, to contact Mr Archbold with Mr Syarif's details. Mr Archbold advised the plaintiff that once he spoke to Mr Syarif he would negotiate an agreement to lease the Taxi on his behalf and would write to him and obtain his approval in respect of that leasing arrangement. 37During this meeting Mr Archbold referred to the various household bills that were in the plaintiff's name, which had been delivered to Mrs Iskandar. Mr Archbold informed the plaintiff that he had advised Mrs Iskandar that he would need the plaintiff to sign a Power of Attorney so that these matters could be dealt with and to make any necessary arrangements in relation to the Taxi. Mr Archbold noticed that the plaintiff "paused and hesitated". It was at this time that Mr Archbold informed the plaintiff that unless he verbally authorised him, he would not use the Power of Attorney. He assured the plaintiff that it could not be used, for example, to sell the Property or the Taxi. He said that he would be able to sort out his bills and draw up an agreement and get the Taxi to Mr Syarif. In response to the plaintiff's hesitation, he also informed the plaintiff that to put his mind at ease he would include a written restriction in the Power of Attorney. The plaintiff then signed the Power of Attorney in favour of Mr Archbold with the restriction, "this does not authorise the sale of my land or taxi or house" added to the document in Mr Archbold's handwriting. 38On 24 April 2010 the defendant and Wahyu visited the plaintiff at Goulburn CC. The plaintiff's evidence of the conversation at this meeting was that Wahyu asked him why he did not sign the Power of Attorney that Mr Boyd had brought him. The plaintiff claimed that Wahyu informed him that he was a friend of the defendant, that he used to study law and that he could help him. He advised the plaintiff that he really needed to "trust us". The plaintiff claimed that during this meeting he asked the defendant and Wahyu to get his Taxi from the Police and have it delivered to Mr Syarif so that he could earn some money whilst he was in gaol to help pay the bills, "including the legal bills". The plaintiff claimed that Wahyu said that he had to sign a Power of Attorney "to do that" and that he would get Mr Boyd to come back to see him. The plaintiff claimed that he informed the defendant and Wahyu that he had already signed a Power of Attorney with his solicitor, Mr Archbold. Wahyu then informed the plaintiff that for "us to be able to help you with the taxi rental you need to sign Mr Boyd's Power of Attorney". It was at this time that the plaintiff informed the defendant and Wahyu that he would sign the Power of Attorney when Mr Boyd came back "so we can rent the Taxi to Peter". The plaintiff claimed that he informed the defendant and Wahyu that he did not want to sell anything and that he just wanted to lease the Taxi. He said that he also informed them that Mr Archbold's Power of Attorney was granted on that basis. 39On 28 April 2010 Mr Boyd visited the plaintiff in Goulburn CC. He asked the plaintiff why he had changed his mind about signing the Power of Attorney and whether he was "sure" he wanted to sign it (tr 38). The plaintiff claimed he informed Mr Boyd that he trusted his brother and that he had told him to see Mr Syarif so that he could arrange for the leasing of the Taxi. The plaintiff also claimed that he informed Mr Boyd that he was happy to sign the Power of Attorney "so that my brother can do that for me". Mr Boyd signed a certificate under s 19 of the Powers of Attorney Act 2003. The Power of Attorney was registered with the Department of Lands, Land and Property Information Division on 30 April 2010. 40Soon after his meeting with Mr Boyd, the plaintiff informed Mr Archbold that his brother was going to help him with the Taxi and that it would be better for Mr Archbold just to look after the criminal charge. 41On 30 April 2010 the defendant signed a letter to Mr Archbold that requested Mr Archbold to "refrain immediately" from acting for the plaintiff. It advised Mr Archbold that the defendant was fully aware that he was also acting for Mrs Iskandar as well as their son, Andrew. That letter included the following: The undersigned understands that being a legal professional, it has been a great catastrophe from your part with lack of professionalism knowing the above that you are strictly restricted to act for Iskandar Hazairin as his acting legal representative. Your involvement with Iskandar Hazairin is simply mischievous and mysterious and/or secretive for your personal financial benefit only that you are fully aware of that your involvement is inappropriate and unprofessional that is to be established as serious professional misconduct together with conflict with interest under Legal Profession Act 2004. 42The letter included a request for Mr Archbold to leave the plaintiff "alone from now on, and mind your own business". There was also a threat that if Mr Archbold did not withdraw from his "culpable involvement" there would be a complaint made to the Legal Commissioner NSW, meaning, no doubt, the Legal Services Commissioner of NSW (the Commissioner). 43The defendant admitted that he signed this document. However he claimed that he did not read it and that Wahyu and Mr Rasyid just gave him information. He said that he should have read it before he signed it but Mr Rasyid and Wahyu wanted him to sign it to help his brother (tr 167-168). Having read the extract in Slattery J's judgment of the content of some of Wahyu's emails, I am satisfied that Wahyu probably drafted this letter or made a large contribution to its drafting. The same type of language and threats are used in this letter as were deployed in the extracted email in the judgment: Iskandar v Mahbur (No 6) (unreported, Supreme Court of New South Wales, Slattery J, 15 February 2012 at [22]). 44On 1 May 2010 the defendant signed an Agency Agreement with a real estate agent purportedly pursuant to the Power of Attorney that the plaintiff had granted to him. That Agreement was for the sale of the Property. There is no evidence from the real estate agent. However it is not in issue that the defendant signed the Agency Agreement. 45Mr Rasyid visited Ms Theglory at her home some time after dark on the evening of 1 May 2010. Present at the meeting were Mr Rasyid, the defendant, Wahyu, Ms Theglory, and Ms Theglory's daughter (tr 295). At this meeting Mr Rasyid negotiated with Ms Theglory on the basis that he was representing the interests of the defendant in respect of the Taxi. Mr Rasyid claimed in his evidence that the instruction to sell the Taxi came from the plaintiff through the defendant. Mr Rasyid claimed that after some discussion about the value of taxi-plates and some checks being made on the Internet about taxi values, Ms Theglory agreed to pay $400,000. She said that it was "okay four hundred, no problem, including the car not only licence" (tr 299). 46On 1 May 2010 (although the defendant claimed it was 25 April 2010) the defendant, Wayhu and Mr Rasyid attended a law firm in Parramatta known as "Crimlaw (NSW) Pty Ltd" (Crimlaw) and met with the principal of that firm, Mr Robert Kaufmann. Mr Kaufmann prepared two documents. The first was a Revocation of the Power of Attorney that the plaintiff had granted to Mr Archbold. The second was a letter on Crimlaw's letterhead directed to Mr Archbold's firm advising that the plaintiff had retained Crimlaw to represent him in his criminal proceedings and requesting that Mr Archbold's file for the plaintiff be released to Crimlaw (the Crimlaw letter). 47On 2 May 2010 the defendant and Wahyu visited the plaintiff in Goulburn CC. The plaintiff claims that at this meeting Wahyu informed the plaintiff that Mr Archbold could not act for him and his wife and his son in all of their criminal matters because there was a conflict of interest and that they "all know your secrets". Wahyu informed the plaintiff that he needed to instruct another solicitor. Although the plaintiff said that he was happy with Mr Archbold, Wahyu advised him that he had spoken to Mr Kaufmann and that the plaintiff should retain him as his solicitor. The plaintiff claimed that he asked what was happening with his Taxi and that Wahyu informed him that they could pick it up but that "we need you to sign two documents first for us to be able to get it back". Wahyu said that one of the documents was revoking Mr Archbold's Power of Attorney so that the defendant could be his Attorney and the other one was the Crimlaw letter for Mr Kaufmann to obtain the file from Mr Archbold. 48The plaintiff agreed that he signed the Crimlaw letter and also signed the Revocation of the Power of Attorney, dating both documents 2 May 2010. There is a serious issue in respect of other documents that were allegedly signed at this meeting to which I will return later. 49On 3 May 2010 Mr Archbold responded to the defendant's letter of 30 April 2010 advising that he was not at liberty to discuss any matters with him and that he had forwarded his correspondence to the plaintiff seeking clarification. On the same day a further letter was written (probably by Wahyu) and signed by the defendant. That letter enclosed the Crimlaw letter and the Revocation of the Power of Attorney with a request for Mr Archbold to cease acting for the plaintiff with the threat of a formal complaint to the Commissioner if he did not do so. 50Mr Rasyid claimed that on 3 May 2010 he and the defendant went to Ms Theglory's house and he asked Ms Theglory whether she "have the money with you now". He claimed that Ms Theglory said "yes, I do have some money with me now" and the defendant said "today can you pay me at least $200,000?". Mr Rasyid claimed that Ms Theglory said, "If Mr Rasyid take the responsibility as my witness, I can pay you in cash $200,000.00 today". Mr Rasyid claimed that he said "yes, I am your witness and Zulfikri's too. I can take the responsibility as a witness that you give me $200,000.00 and I will give that money to Zulfikri in your presence and your husband". 51Mr Rasyid claimed that Ms Theglory then gave him cash and that he counted 20 bundles all with $100 notes one by one and said, "it is $200,000.00". He then said to the defendant "are you ready to receive these $200,000.00 and ready to sell the taxi and taxi licence on your brother's behalf to Aminah?". Mr Rasyid claimed that the defendant said "yes, I am happy and ready to take $200,000.00 from Aminah via you to sell my brother's taxi on his behalf". Mr Rasyid claimed that he then gave $200,000 cash to the defendant and said "please count them for your satisfaction". He claimed that the defendant in his presence and that of Wahyu and Ms Theglory, counted all the bundles and said "it is $200,000.00. I thank you to Mrs Aminah and Mr Rasyid". Mr Rasyid claimed that the defendant then put the cash into his bag (tr 342). The defendant denied receiving this payment. 52On 3 May 2010 Burmansjah Amasin and his wife and two friends were visiting Mrs Iskandar at the Property. Whilst Mr Amasin and the others were there, the defendant, Wayhu and Mr Rasyid arrived. Wahyu informed Mrs Iskandar that Mr Archbold could not act "for all three of you because of conflict of interest". At this stage Mrs Iskandar informed Wahyu that she was quite happy with Mr Archbold. Wahyu then gave a document to Mrs Iskandar. After reading the document Mrs Iskandar "screamed" and said "I don't want to sell the house. Get out of my house. I'm not signing anything". At this stage Wahyu suggested that Mrs Iskandar should sign the document because she and the plaintiff could have "50% each". Mrs Iskandar once again directed Wahyu to get out of her house at which time he said "the house is already on the market". 53Mr Rasyid claimed that on 4 May 2010 Ms Theglory made a further cash payment of $15,000 to the defendant. The defendant denied receiving this payment. 54On 4 May 2010 a further letter was written to Mr Archbold and signed by the defendant with a copy to Mrs Iskandar. That letter included the following: I refer my letter to you dated 30 April 2010 and 3 May 2010 and now I am informed by Ms Nita Eriza ISKANDAR last night that you are adamant to act for her. I may consider your intention in your favour, if you will not be interfering to sale the property to raise the funds to pay the legal costs and other costs for Nita ISKANDAR as well my brother ISKANDAR Hazairin. Please understand that we have no other option whatsoever to raise extensively large amounts of funds to pay all the costs rather than to sale the property immediately. 55The letter then requested Mr Archbold to confirm his position otherwise a complaint would be made to the Commissioner. The letter noted that the defendant consented to Mr Archbold discussing the matter with "my friend Wahyu" as urgently as possible. 56On 4 May 2010 the defendant also signed a letter that was sent to Mrs Iskandar. It included the following: I refer my request of 3 May 2010 for your consent to sale the property, and I further request that please signed the consent and send to me urgently either by post to the above address or preferably by facsimile transmission on [provided], as you are informed that the property is already on the market for sale by Ray White Real Estate Agent. Please understand that to run the cases against you and my brother and Andrew, we both need large amount of money. Without selling the property we have no option whatsoever to raise funds to pay the expensive legal costs. 57This letter contained a threat that if Mrs Iskandar did not comply her bail might be revoked. 58On 5 May 2010 Mr Archbold wrote to the defendant and Wahyu advising that he had spoken to the plaintiff and that he remained instructed to act for him in his criminal matter. That letter included the following: I am instructed that all communications with my client must cease immediately and he has requested Mr Mahbur meet with me. I intend to arrange for a senior member of the Indonesian Community in Sydney to contact Mr Mahbur in due course to assist in the meeting. I confirm I have notified Crimlaw (NSW) Pty Ltd of my continued instructions and I have also notified the Office of the Legal Services Commissioner and informed them of the contents of your continued threatening and slanderous behaviour. I intend to refer the matter to the NSW Police for investigation. I confirm that no one has permission to contact Mrs Nita Iskandar and I wish to reiterate that I am instructed in all three matters. 59On 5 May 2010 the plaintiff spoke by phone with Mr Archbold who informed him that he had received the Revocation of the Power of Attorney and also the Crimlaw letter. The plaintiff informed Mr Archbold that he had asked the defendant to take care of the Taxi but that he wanted Mr Archbold to look after his criminal charge. When Mr Archbold asked the plaintiff whether he wanted to be represented by another firm, he said that he did not. The plaintiff explained that the defendant and Wahyu had come to see him in the previous few days and that he had signed documents at that time. The plaintiff said that there was a "misunderstanding" and that Mr Archbold should ignore those documents because they had no authority to act on his behalf and were only assisting him with the collection and leasing of the Taxi to Mr Syarif. Mr Archbold informed the plaintiff that he would send a further authority to him confirming those instructions. 60On 5 May 2010 Mrs Iskandar returned to the Property to find that the locks had been changed. It is apparent that the real estate agent had arranged for the locks to be changed. Mr Archbold made contact with the real estate agent and this problem was solved. The locks were subsequently changed back and there were no further steps taken in relation to the sale of the Property. 61On 5 May 2010 the defendant, Wahyu and Ms Theglory attended the offices of Eddy Neumann Lawyers and met with Ms Rosemary Grant. There is an issue as to what occurred at the meeting with Ms Grant on 5 May 2010 to which I will return later in this judgment. However there is no issue that a Deed for the sale of the Taxi was executed at Ms Grant's office on that day. 62The Agreement was between the defendant (as Vendor) on behalf of the plaintiff (as Principal) and Ms Theglory (as Purchaser). Ms Theglory agreed to purchase the Taxi for $400,000 with the price apportioned as to $385,000 for the licence and $15,000 for the motor vehicle and extra items (clause 1). The Agreement was conditional on the approval from the Licensing Authority and the transfer of the licence to Ms Theglory (clause 9(1)). It provided that "on or before entering into" the Agreement Ms Theglory would pay by either cash or cheque a deposit of $9,950 "in part payment of the purchase price" to be released to the defendant (clauses 2 and 3). The parties agreed that the Agreement constituted the "entire agreement" between them (clause 4(1)). They also acknowledged that they were aware that the licence had been or might be suspended by the relevant department after the plaintiff's arrest but that they understood that such suspension would be lifted upon the transfer of the licence to Ms Theglory. The parties agreed that the Agreement was contingent upon this occurring (clause 5(10)B(c)). The parties also agreed that if the application for approval for transfer of the licence to Ms Theglory was refused or not granted within 180 days from the date of the Agreement, without Ms Theglory's default, either party could rescind the Agreement (clause 9(4)). If the Agreement were rescinded "the deposit and any other money" paid by Ms Theglory "towards the purchase price" was to be refunded to her (clause 14(1)(b)). 63It was agreed that the defendant had been advised to obtain legal advice and representation "but had chosen not to do so" (clause 5(10)). The Agreement also provided: Balance purchase price 3 i) The balance of the purchase price and all other amounts payable by the Purchaser at the time of completion shall be paid on completion of the sale, by bank cheque, to the Vendor's solicitor, or to the Vendor if not represented by a solicitor, or as the Vendor's solicitor or the Vendor directs in writing. ii.) At the time that the balance of the purchase price is paid, the Vendor will provide cash or a cheque to the purchaser's solicitor in the sum of $40,000.00 which will be held by the Purchaser's solicitor until such time as it is determined by the Australian Taxation Office whether or not GST is payable. ... Completion Time of completion 11(1) Completion of this sale shall occur not later than 3.00 pm on the 14th day after which the transfer of the licence is approved by NSW Transport and Infrastructure which is the date fixed for completion but in this respect time is not of the essence of this Agreement. If completion does not occur on that date, either party may on or after the next Business Day serve on the other party a notice requiring completion to occur on a Business day which is not less than seven (7) days after the date when the notice is received by the recipient of the notice, rendering that date an essential time for completion. Place of completion (2) Completion shall be effected at the Purchaser's solicitor's office and provision of the transfer of the licence to the Purchaser and by deposit by the Purchaser of the balance of the purchase price, less any amount advanced to the Vendor by the Purchaser and the amount referred to in clause 3(ii) herein in to the Vendors (sic) Commonwealth bank account in his name BSB 062188 Act 10403911 and provision of receipt to the Vendor at [dzf email address] 64Whilst he was at Ms Grant's office on 5 May 2010, the defendant, as Attorney for the plaintiff, executed a Mortgage in favour of Ms Theglory. The Mortgage was between the plaintiff, as mortgagor, and Ms Theglory, as mortgagee. Annexure A to the Mortgage included an acknowledgement by the mortgagor of receipt of the principal sum of $200,000 and a promise to repay the principal sum by 4 May 2011. The defendant also signed a Caveat in favour of Ms Theglory. That Caveat noted that the nature of Ms Theglory's interest in the land was "equitable interest as to the interest of Hazairin Iskandar". The instrument by virtue of which the equitable interest was claimed was the Mortgage dated 5 May 2010 between the plaintiff and Ms Theglory with the facts stated to be, "the parties have entered into a Mortgage to secure the principal sum of $200,000.00". The defendant signed as Attorney for the plaintiff consenting to the Caveat. 65On 6 May 2010 Mr Archbold wrote again to the defendant and Wahyu in terms that included the following: I was contacted yesterday by Mr Hazairin Iskandar, who informed me Mr Sasterawan has no authority to act on his behalf. Aside from having no authority to act on behalf of Mr Iskandar, he also has no authority to act on behalf of Andrew or Nita Iskandar. Mr Iskandar informed me that he signed a Power of Attorney on 28 April 2010, which was witnessed by Rodney Boyd, Solicitor. This Power of Attorney conferred powers only to Mr Mahbur, his brother. Mr Iskandar was of the belief that notwithstanding he signed the Power of Attorney, his brother could not act on his behalf unless Mr Iskandar lawfully authorised him to do so. ... Prior to signing the Power of Attorney, I am instructed Mr Iskandar had a conversation with both of you, as to the limitation on any Power of Attorney, as far as to the sale of his house at [Croydon]. He stated to me that he made it abundantly clear to you both that the Attorney had no lawful authority to sell his house. My client also informed me that during a visit on 2 May 2010, he informed you both that you did not have the authority to sell his house. He confirms that he signed a Revocation of Power of Attorney pertaining to an earlier Power of Attorney with my firm. He further confirms that he only signed an Authority to Release Legal File to Crimlaw (NSW) Pty Ltd, as you purported that it needed to be signed to give effect to the Revocation of Power of Attorney. ... Mr Gray [the real estate agent] informed me that you both had requested that he sell the aforementioned property and that you were acting as Attorney for Hazairin Iskandar. I informed [the real estate agent] that you had no such authority and that the Power of Attorney was conferred with limited power to deal with Mr Iskandar's taxi cab. ... I have again spoken to my client, Hazairin Iskandar at 12:45pm today. Mr Iskandar rang me quite distressed, as he had been informed about the attempted sale of his house and the changing of the locks. He has instructed me to arrange for the immediate Revocation of the Power of Attorney ... He also requested that I write this letter outlining the true position. Mr Sasterawan is to have no further involvement in any capacity with Mr Iskandar's matter. Mr Mahbur should contact his brother as a matter of urgency. 66Mr Rasyid wrote to Mr Archbold on 7 June 2010 in respect of a number of matters. That letter included a claim that on 8 May 2010 Mr Rasyid and the defendant went to Ms Theglory's house and the defendant asked Ms Theglory for $160,000 in cash. Mr Rasyid claimed that the defendant was rather "demanding" and said that he was returning to Indonesia the following morning. Mr Rasyid claimed that he had reminded the defendant that he had agreed that before the sale of the Taxi was completed and until the approval by the Ministry of Transport was received, no further payment was to be made to him. Mr Rasyid claimed that the defendant said that he understood but asked how he was going to receive the $160,000 by bank cheque when he was in Indonesia. Mr Rasyid claimed that he informed the defendant that he could authorise him (Mr Rasyid) to deposit that bank cheque into his account. Mr Rasyid also claimed that the defendant apologised as he had misunderstood Mr Rasyid and that he would authorise him to deposit the cheque into his account and he would keep a certified copy of the cheque with him. Mr Rasyid claimed that the defendant authorised him in writing to deposit the bank cheque of $160,000 into his account as his "authorised sub-attorney". 67The document by which the defendant authorised Mr Rasyid was written by the defendant and was in the following terms (Ex 2): I, Zulfikri Abu Yazid Mahbur affirm that the bank check No: 237759-102-272-9993840 will be deposited into my nominated account either (1) by my sub attorney Abu Bakar Rasyid or (2) by the solicitor in the file. This transaction be completed upon the approval of the Ministry of Transport and Infrastructure in relation to Deed Agreement for Sale of taxi business made on 5 of May 2010. If it will be done by my sub attorney of Abu Bakar Rasyid, he requests to send me with the copy of the transaction receipt. 68The defendant agreed in cross-examination that this document is in his handwriting. He also agreed that he signed and dated the document "8/5". However he claimed, "I just write it but dictated by Wahyu" (tr 198). The defendant also claimed that, "they forced me to write" (tr 199). Mr Rasyid signed an acknowledgment of the authorisation within this document and also wrote "I will comply with the condition accordingly". 69Mr Rasyid claimed in his letter to Mr Archibold that the defendant also signed an Acknowledgment of Received Payments (referred to below) and a statutory declaration (referred to below). 70The defendant signed a further letter addressed to Mr Archbold on 7 May 2010. That letter contained the florid language of the other letters including mention of Mr Archbold's "dirty criminally liable intention" and a "likeness of cheater and immoral legal professional". It also included the following: Please understand that to run the cases against Iskandar my brother and Andrew, we need large amount of money. Without selling the property we have no option whatsoever to raise funds to pay the expense of legal costs. However, if my brother wish that his house will not be sold to raise funds to run the criminal cases against him and I will have no problem to withdraw his house from the market but I do have a major problem with you, with the serious question that your involvement with professional misconduct and with conflict of interest. 71At some stage the Police released the Taxi to the defendant and Wahyu. The defendant returned to Indonesia on 9 May 2010. 72After Mr Archbold became aware of the sale of the Taxi he was instructed by the plaintiff to commence these proceedings. 73There is no doubt that the defendant was willing to sign documents that were not prepared by him but by either Mr Rasyid or Wahyu. The defendant was shown a series of emails (Ex D2-1) that contain some of the same language and although purporting to be signed by the defendant were probably drafted by Wahyu or Mr Rasyid. There is also the question of whether the email addresses on those documents are addresses to which the defendant had access. There are two relevant addresses. I will refer to the first address as the "ZFM address" and the second address as the "dzf address". 74One email dated 10 May 2010 purportedly from the defendant at the dzf address to Ms Grant was in the following terms: I am Zulfikri Abu Yazid Mahbur, who has the power of attorney from Hazairin Iskandar who applies for the transfer of taxi license ownership - taxi registration number: T3999 to Aminah Theglory. I need your help madam. I was alone in Australia then, my brother is in custody in Goulburn, and I did not feel secure about my safety, so I just followed any idea from the people who seemed to care about me. Now, I am already back in Indonesia and I feel safe to tell you the truth about my position. I suspect something fishy about this transaction. They forced me to sign a document stating as if I have already received the amount of AUS 200,000 (Two hundred thousand dollars). Whereas I haven't received any money on behalf of my brother. I don't even know the function of the CAVEAT which they made me sign. If they are really serious about the transaction and already paid me through my bank account number at Commonwealth Bank of Australia, please send me of the proof of their payment via this email or my fax number [provided]. Thank you for your help. 75In cross-examination (by Mr Cheshire) the defendant admitted that the dzf address was his address and that he sent this email (tr 214). The defendant was then cross-examined as follows (tr 215-216): Q. You don't make any complaint in that document about the power of attorney, the circumstances in which it was created, do you? A. Yes. Q. You agree with me? A. Yes. Q. If you look through you then said at the end, the last two lines, "If they are really serious about the transaction and already paid me through my bank account please send me proof of their payment" Yes? A. Yes. ... Q. What you were trying to do was to make sure you got the money, that's correct, isn't it? A. Yes. Q. And so you in this document made no complaint about the power of attorney and no complaint about the transaction for the sale of the taxi business? A. For the first power of attorney I did not complain and the transaction of the selling of the taxi I complaining. Q. Sorry, say that again? A. I complain, the selling of the taxi licence. Q. When did you do that? A. After I went, after I written to Indonesia and I send this email, when I see, when I went to the Commonwealth Bank and I see that my money $1,700 was lost in my Commonwealth Bank and I mislaid them and I contact Rosemary Grant by sending this e-mail. Q. So you say that when you sent this e-mail you were complaining about the transaction? A. Yeah. Q. About the sale? A. Right. ... Q. Mr Mahbur, I will put it to you this way; what I want to suggest to you is that the only thing this e-mail was directed at, you were directing this e-mail was in relation to making sure you got the money? A. To make sure. Q. Yes, that is all you wanted to do is to get the money? A. Yeah, I want them, yes, because I didn't receive any money at all from the transaction. So that is a why I sent this e-mail to Rosemary Grant, that the reason why I send this e-mail to Rosemary Grant. Q. And you wanted the money because your brother still needed it for his court case? A. Right. Q. But in fact the true position was that you had already received the money, that's right, isn't it? A. Yes. Q. And you had already received $200,000, hadn't you? A. No, I didn't. Q. And what this was, was an attempt to get more money out of the transaction than had been agreed in the contract? A. I didn't receive any money at all. 76An email dated 16 May 2010 purporting to be from the defendant at the ZFM address to Rosemary Grant included the following (Ex D2-1): Hi Rosemary, how are you? I have come to Indonesia on 9 May 2010. As an attorney of my brother Iskandar Hazairin on 5 May 2010 I have signed a Deed Agreement, a mortgage and a caveat with you for the sale of his Taxi business on his behalf. For the sale the agreed price was $400,000.00. I believe that $15,000.00 for the Taxi and $385,000.00 for the taxi licence. From that Deed Agreement from Aminah Theglory I received only $224,9950.00 (sic). On 8 May 2010 I have signed an "Acknowledgment of Received of Payments" with Aminah Theglory in presence of a Justice of Peace, Abubakar Rasyid. Abubakar Rasyid is not only a JP but he is well known to my family in Sydney and in Indonesia. Aminah Theglory is still holding the sum of $160,000.00 bank cheque without depositing into my bank account. To see the proof, please print the attachment (i) Receipt of Payment, and (ii) Statutory Declaration by me from this email. You know that she has promised in your presence on 5 may 2010 that after completion of the sale she will deposit $160,000.00 into my Commonwealth Bank Account No. [provided]. I have not received that $160,000.00. I am now very angry to Aminah Theglory. I am requesting you that please collect the bank cheque in the sum of $160,000.00 from Aminah Theglory and deposit into any of the account below [accounts provided]. I request you that if you cannot deposit $160,000.00 to any overseas bank account, then please make the deposit into my Commonwealth Bank No. [provided] Please send me your confirmation to my email at [ZFM address] and I thank you for your help on this matter. 77An email from Rosemary Grant to the defendant of 17 May 2010 at the ZFM address advised that Archbold Legal had forwarded a revocation of a Power of Attorney so that the defendant could not receive the amounts without the plaintiff's written direction as to where the balance of the funds were to be paid. On 24 May 2010 in an email from Rosemary Grant to the defendant at the ZFM address the following was written: In respect of the balance of funds that were due under the agreement, I refer you to our advice in our email to you dated 17 May 2010 (below) and confirm that as we were provided with a Revocation of the Power of Attorney to you, we were required to pay the balance of funds in the way that was directed by your brother directly, which was to Archbold. Those funds have been paid and we have a receipt for those signed by Archbold (see attached). Thank you for confirming your previous statutory Declaration concerning receipt of the cash funds from our client Aminah when you wer (sic) here in Australia. However, the current whereabouts of the other cash funds that you received on your brothers behalf remain's (sic) a critical issue for teh (sic) Supreme Court case. It would seem that it would be of great assistance to all parties if you can provide a bank account statement showing that those cash funds have been deposited to a bank account in your brothers name (either in Indonesia or elsewhere), or if the funds are held on his behalf in some other official way, a record from the agency holding the funds would be very useful. We would greatly appreciate hearing from you if you are able to provide any records in the above respect. 78On 25 May 2010 in an email purportedly from the defendant at the ZFM address to Ms Grant the following was written: Today 25 May 2010, I have spoken to my brother Iskandar in Goulburn jail from Indonesia. My brother does not like that I will tell the truth. I cannot hurt my brother but only I can reconfirm to you that all my previous emails are true and correct. Please do not ask me for anymore information in relation to the sale of the taxi licence and the monies that I have received from Aminah Theglory that were witnessed by Mr Abubakar Rasyid. If you want to know more, please contact to Mr Abubakar Rasyid on [number provided]. Whatever Mr Rasyid will be telling are to be true and correct. 79The defendant claimed in cross-examination that he had never seen this document, that he did not write it and he did not send it (tr 207). Consideration 80There are some very peculiar aspects to this case. The defendant claimed that he was totally dependent upon assistance being provided by Mr Rasyid and Wahyu to enable him to "help" the plaintiff. He said he understood that Wahyu knew about the law because he told him that he had studied law, although he did not finish his course. He said he relied upon Wahyu driving him to Goulburn CC to see his brother and to provide whatever assistance he could for his brother. However, he claimed that on these trips to Goulburn he was forced to have sexual intercourse with Wahyu and feared that he would kill him if he did not do so. He also claimed that if he had not acquiesced, then Wahyu would not "help" the plaintiff. 81The evidence of the sexual encounters (that was not objected to) was most graphic. It was not clear during the trial what the plaintiff sought to make of the defendant's claims in respect of the alleged sexual encounters with Wahyu. It appears that this evidence was tendered as an explanation of why the defendant did not keep control of the process of following the plaintiff's Instructions. In other words, the defendant was in fear of both Wahyu and Mr Rasyid and simply did as he was asked. The consequence of that appears to be that the defendant's willingness simply to go along with Wahyu's wishes (and those of Mr Rasyid) enabled Ms Theglory to obtain the transfer of the Taxi at an undervalue because $200,000 cash was not paid to the defendant and only $175,000 was paid into Court. 82Having regard to the conclusions that I have reached, it is not necessary to decide whether these sexual encounters occurred or whether they were non-consensual. However had it been necessary to do so there are some serious inconsistencies in the defendant's evidence that would lead to serious doubts about whether the sexual encounters (if they occurred) were non-consensual. The inconsistencies include that the defendant claimed he was "raped" in the car when Wahyu was driving him to Goulburn (affidavit sworn 22 September 2010, par 66). In a detailed description of what occurred in the car the defendant gave affidavit evidence that Wahyu had oral sex with him (par 67). However in cross-examination the defendant changed this version of events to suggest this did not happen in the car but in the motel in Goulburn (tr 154). When he was reminded of the affidavit evidence he reiterated that this did not happen in the car (tr 154155). However when pressed further in relation to whether the affidavit evidence was incorrect he then claimed that the oral sex did occur in the car (tr 155). 83In his affidavit evidence the defendant claimed that there were two occasions of "rape" in the "same" motel in Goulburn (par 101). However in cross-examination he claimed that there were two different motels at which these alleged events took place (tr 173-174). There were other matters that were elicited in cross-examination that were not the subject of the defendant's affidavit. For instance he claimed that when he returned to Australia in September 2010, he travelled to Goulburn with Mr Archbold to identify the motel (rather than the two different motels). Mr Archbold made no mention of this in his evidence and was not called to give evidence in respect of this claim. 84The defendant continued his visits to Wahyu's home notwithstanding these alleged assaults. He made no complaint about these alleged rapes or sexual assaults notwithstanding numerous opportunities to do so. There is no doubt that the defendant had numerous opportunities to make a complaint or simply to reject Wahyu's advances. On his visits to his brother he was surrounded by correctional services officers to whom he could have complained but did not do so. He was with his brother from time to time at the Goulburn CC but made no complaint. He asked a police officer for directions whilst alone in the city but made no complaint. He was in a solicitor's office on more than one occasion but made no complaint. However the defendant explained the lack of complaint on the basis of "shame" (tr 160). 85In any event, it was very difficult to understand why it was necessary for the defendant, as he put it, to "sacrifice" himself for his brother (tr 158, 160, 162), when the very thing the defendant did, as he would have it, was to act against his brother's wishes. It was not possible to ascertain what the so-called "help" for the plaintiff was that the defendant allegedly obtained or was seeking to obtain from Wahyu and Mr Rasyid in exchange for his sexual favours to Wayhu. At one point the defendant claimed that the "help" that Wahyu promised included securing a scholarship for him to study in Australia (tr 178). Although the defendant claimed he just did as he was asked by Mr Rasyid and Wahyu, he did not suggest that he was forced to sign the Deed of Sale for the Taxi in fear for his safety or his life. On his version of events, he knew the plaintiff did not want to sell the Taxi, but he went ahead and entered into a transaction that was inconsistent with his brother's wishes. This could hardly be described as obtaining "help" for his brother. 86Another peculiar aspect of the case is Mr Rasyid's involvement. It is not clear why he thought it was necessary to create so many documents (referred to later) purporting to be receipts, authorisations, an acceptance and an acknowledgment in respect of a transaction for the sale of the Taxi that was the subject of a formal Deed of Agreement drafted by a solicitor. 87On 23 June 2010, Mr Rasyid filed a Defence in the proceedings, purportedly on the defendant's behalf, as the defendant's "sub-attorney". In that Defence there is a denial that the plaintiff had limited understanding of the English language or that he was befriended by Wahyu and had considerable regard and confidence in both his brother and Wahyu. There is also a denial that the plaintiff gave instructions for the Taxi to be collected and delivered to Mr Syarif to be used on a profit share basis while the plaintiff remained in custody. The Defence also includes a claim that it is "just and equitable" that the Agreement for the sale of the Taxi be "upheld" as "genuine and true". The Defence includes reference to a number of documents in support of that claim being: the Power of Attorney signed by the plaintiff in favour of the defendant and given to Mr Boyd on 28 April 2010; documents that were prepared by Mr Rasyid being an Authority in respect of the sale of the Taxi, an Acceptance in respect of the sale of the Taxi and an Authority to transfer ownership of the Taxi; the Deed of Sale prepared by Ms Grant and executed on 5 May 2010; a handwritten document signed by the defendant confirming receipt of payment; a document prepared by Mr Rasyid entitled "Acknowledgement of receipt of payments" purportedly signed by the defendant; a Statutory Declaration of the defendant confirming the receipt of payments; and a Statutory Declaration by Mr Rasyid confirming payments in respect of the sale of the Taxi. 88The plaintiff alleges that the documents relied upon in that Defence, as well as other documents prepared by Mr Rasyid, although containing his signature, were not signed by him and were somehow created by Mr Rasyid probably by scanning his signature into these various documents. If that is so and Mr Rasyid created these documents to falsely claim that they evidence payments being made for the sale of the Taxi, then Mr Rasyid would have to be a party to the alleged fraud perpetrated on the plaintiff, but that was not pleaded, nor was he joined as a defendant. It would follow that he falsely claimed that he had witnessed and counted the $200,000 in cash payment to the defendant by Ms Theglory. An alternative explanation may be that he created the documents to reflect what actually occurred. It is necessary to consider the evidence in relation to the relevant documents. Authority to sell the Taxi 89Mr Rasyid claimed that the defendant informed him that the plaintiff wanted to sell the Taxi. On 1 May 2010 he prepared an Authority to Power of Attorney (to sell the Taxi) (Ex A(4)). He claimed that the defendant took this document to Goulburn CC on 2 May 2010 and returned with it signed by the plaintiff and the defendant and witnessed by Wahyu. It was in the following terms: Authority to Power of Attorney To make certain (for the Power of Attorney made on 28 April 2010, registered on 30 April 2010 for which the reference of, Book: 4589 No. 120), I authorise my attorney to exercise his power by section 15 and section 43 of the Power of Attorney Act 2003. I confirm that this authority is to make certain clause 8 in the Power of Attorney as I did by crossing out clause 8 affirming that no conditions and limitations are to exercise the authority and I intend that this authorisation will effect immediately. I, Iskandar Hazairin hereby duly authorise my attorney to sale of my taxi business with reference to Taxi-cab T3999 and Licence No. 5320 only. I do not authorise my attorney to sale my property at [address] Croydon NSW without my written permission. Signed, sealed and delivered by: .........[signature]............... Hazairin ISKANDAR (Principal's signature) Date: 2 May 2010 _____________________________________________________ Acceptance by the Attorney I accept this authorisation as an attorney in addition to the given General Power of Attorney made on 28 April 2010 and Registered on 30 April 2010. Dated: 2 May 2010 .........[signature].............. Zulfikri Abu Yazid MAHBUR (Attorney's signature) Signature of witness: [signature] 2.05.2010 [in handwriting] Name of witness: Wahyu Sasterawan [in handwriting] Address of witness: [address] [in handwriting] 90The plaintiff denied having signed this document (affidavit sworn 10 May 2012, par 66) and was not cross-examined about it. The defendant gave affidavit evidence that when he visited the plaintiff with Wahyu on 2 May 2010 he was "in full view" of the plaintiff and that he was "sure" that the plaintiff "was only shown" and only signed two documents, being the Crimlaw letter and the revocation of Mr Archbold's Power of Attorney (affidavit sworn 22 September 2010, pars 110-111). 91Mr Hobden did not have the original of this document when he prepared his first Report (Ex B). He reported that he could not comment on the signature on the copy document and would prefer to have access to the original before making any further forensic examinations. In his second report (Ex H), Mr Hobden recounts that he was shown this original document on 13 February 2013 (when it was uplifted during the trial) and was asked to examine it to establish, inter alia, if the signature was "handwritten using a hand held pen" as opposed to be being a printed copy of original handwriting; whether there was any physical evidence that distinguished it or connected it to other documents; and to provide an opinion as to the authorship of the signature. Mr Hobden reported that he declined to provide that opinion on 13 February 2013 because he did not have the equipment or sufficient time to finalise his opinion. However when the document was delivered to him for inspection on 27 February 2013 he proceeded to examine it. Mr Hobden concluded that the signature on this document is an original signature. However he said that he could not express an opinion as to whether the signatures on this document and other documents referred to below were of "common authorship or written by more than one writer". Authority to enter into Mortgage 92Another document that Mr Rasyid claimed he prepared on the evening of 1 May 2010 was an Authority to Power of Attorney (to enter into a Mortgage) (Ex A(4)). Mr Rasyid claimed that the defendant took this document to Goulburn CC on 2 May 2010 and returned with it signed by the plaintiff and the defendant and witnessed by Wahyu. It was in the following terms: Authority to Power of Attorney To make certain (for the Power of Attorney made on 28 April 2010, registered on 30 April 2010 for which the reference of, Book: 4589 No. 120), I authorise my attorney to exercise his power by section15 and section 43 of the Power of Attorney Act 2003. I confirm that this authority is to make certain clause 8 in the Power of Attorney as I did by crossing out clause 8 affirming that no conditions and limitations are to exercise the authority and I intend that this authorisation will effect immediately. I, Iskandar Hazairin hereby duly authorise my attorney to enter into a secured mortgage in the sum of (no more than) $250,000.00 against my property at [address] Croydon NSW at anytime without my prior consent either verbally or in writing. Signed, sealed and delivered by: .........[signature]............... Hazairin ISKANDAR (Principal's signature) Date: 2 May 2010 _____________________________________________________ Acceptance by the Attorney I accept this authorisation as an attorney in addition to the given General Power of Attorney made on 28 April 2010, and Registered on 30 April 2010. Dated: 2 May 2010 .........[signature].............. Zulfikri Abu Yazid MAHBUR (Attorney's signature) Signature of witness: [signature] 2.05.2010 [in handwriting] Name of witness: Wahyu Sasterawan [in handwriting] Address of witness: [address] [in handwriting] 93The plaintiff's affidavit evidence was that he did not sign this document and he was not cross-examined about this document (affidavit sworn 10 May 2012, par 67). The defendant's evidence that the plaintiff only signed two documents on the visit of 2 May 2010 applies also to this document. 94Mr Hobden concluded in his first report that the signature on this document had been "simulated". He concluded that the image did "not represent" an image of a "separate genuine freehand written" signature. 95In his second report Mr Hobden claimed that his opinion given in his first report (Ex B) in respect of this document was not affected by any subsequent examination. However, Mr Hobden then reported that the document that he had inspected for his first report was a copy of the document with the original signature on it. Clearly that means that his opinion in his first report that the signature was not a "separate genuine freehand written" signature but one that had been "simulated" could not be maintained. 96In a forensic step that was understandably not objected to by the defendants, counsel for the plaintiff tendered a portion of Wayhu's affidavit that was not read in Wayhu's case. That portion of the affidavit (Ex D) includes a statement that on 2 May 2010 he witnessed the defendant carrying the Authority to Power of Attorney (to sell the Taxi), the Authority to Power of Attorney (to enter into the mortgage), an Acceptance to Sale Taxi-cab T3999 (referred to below), an Authority to Transferring Ownership of the Taxi (referred to below), the Revocation of Mr Archbold's Power of Attorney and the Crimlaw letter. The affidavit also included the third defendant's claim that he confirmed that the plaintiff signed all of those documents in his presence at Goulburn CC on 2 May 2010 (Ex D, par 32-33). Acceptance to Sale of Taxi 97Mr Rasyid claimed that on 1 May 2010 he also prepared an Acceptance in respect of the sale of the Taxi (Ex 4, p 37). It was purportedly signed by the plaintiff on 2 May 2010 and witnessed by Wahyu. That document was in the following terms: ACCEPTANCE TO SALE TAXI-CAB T3999 LICENCE NO. 5320 Driver/Operator: Hazairin Iskandar Authority Number: G94306 Accredition Number: 33019 [in handwriting] I, Hazairin Iskandar of [address] Croydon NSW 2131 hereby duly authorise my attorney to sale my Taxi-cab T3999 and Licence No. 5320 at anytime pursuant to Power of Attorney and authority to Power of Attorney that I signed today and I also accepted the proposed price for the Taxi-cab T3999 in the sum of $15,000 and Licence No.5320 in the sum of $385,000 The Sale of Taxi-cab will be completed as follows that 1. if any money will be received by my Attorney in cash that must be witnessed by Abubakar Rasyid, the President of Indonesian Islamic Community; 2. my Attorney must acknowledge receipt of any money in cash or by bank cheque by way of signing acknowledgement receipt; and 3. finally, I hereby duly authorise my Attorney to authorise Abubakar Rasyid as his sub-attorney to do anything on my behalf in the absence of my Attorney. I, Hazairin Iskandar hereby to abide by these conditions Signed: [signature] Date this 2 May 2010 Signature of witness: [signature] 2.05.2010 [in handwriting] Name of witness: Wahyu Sasterawan [typed] Address of witness: [address] [typed] 98The plaintiff denied signing this document (affidavit 10 May 2012 par 70; tr 52). The defendant claimed that he had never seen this document before (tr 180; 184). Mr Hobden did not provide any real assistance to the Court in relation to this document. Wahyu's affidavit (Ex D) includes the evidence that the plaintiff signed this document on 2 May 2010. Authority to transfer ownership 99Another document in evidence is an Authority to transfer ownership of the Taxi (Ex 4, p 38). It was in the following terms: Authority to Transferring Ownership Taxi-cab T3999 And Licence Number: 5320 Operator name: Hazairin Iskandar [handwriting] Address: [address], Croydon 2132 [handwriting] Telephone Number: [number] [handwriting] Operator Accreditation No: 33019 [handwriting] Taxi Licence Number: T.3999 [handwriting] Attorney's Name: Zulfikri Abu Yazid Mahbur Attorney's Address: [address], Randwick 2031 I, Iskandar Hazairin (MIN 471437) hereby duly authorise my attorney ("Zulfikri Abu Yazid Mahbur") pursuant to Power of Attorney executed by me on 28 April 2010, Registered Book 4589 No. 120 to transfer the Taxi-cab Number T3999 and the Licence Number: 5320 to Aminah Theglory of [address], Kensington NSW 2033 at anytime after signing the Sale Agreement by my Attorney on my behalf. Signed: [Signature] Date: 02/05/10 [handwritten] Witness: Signature of witness: [signature] Name of Witness: Wahyu Sasterawan [typed] Address of witness: [address] [typed] 100The plaintiff accepted that his signature appeared on this document but claimed that he did not sign it (tr 54). He admitted that his handwriting appeared at the top of the document (indicated in the extract as "handwriting") but he claimed that he did not "apply" his handwriting to the document (tr 54-55). The defendant claimed that he had never seen this document (tr 184). Mr Hobden was unable to comment on the plaintiff's signature on this document and made no comment upon the handwriting at the top of the document. Wahyu's affidavit (Ex D) includes the evidence that the plaintiff signed this document on 2 May 2010. A General Authority 101There is another Authority in evidence that was purportedly signed by the plaintiff on 2 May 2010 and witnessed by Wahyu on the same date (Ex 4, p 34). Mr Rasyid claimed that he did not prepare this document. He said he suspected that "someone create" it (tr 331). He claimed that a paragraph is missing and the third paragraph (as seen in the Authorities for Power of Attorney) had been deleted (tr 325, 332). It is in the following terms: Authority to Power of Attorney To make certain (for the Power of Attorney made on 28 April 2010, registered on 30 April 2010 for which the reference of, Book: 4589 No. 120), I authorise my attorney to exercise his power by section 15 and section 43 of the Power of Attorney Act 2003. I confirm that this authority is to make certain clause 8 in the Power of Attorney as I did by crossing out clause 8 affirming that no conditions and limitations are to exercise the authority and I intend that this authorisation will effect immediately. Signed, sealed and delivered by: .........[signature]............... Hazairin ISKANDAR (Principal's signature) Date: 2 May 2010 _____________________________________________________ Acceptance by the Attorney I accept this authorisation as an attorney in addition to the given General Power of Attorney made on 28 April 2010, and Registered on 30 April 2010. Dated: 2 May 2010 .........[signature].............. Zulfikri Abu Yazid MAHBUR (Attorney's signature) 102The plaintiff denied signing this document (par 73). In cross-examination he accepted his signature was on the document but claimed he did not sign it (tr 51-52). Mr Hobden expressed the opinion that the plaintiff's signature on this document was "created with the use of a copy of a genuine signature" and not written in "any original handwriting act" (Ex H). Acknowledgement 103Mr Rasyid claimed that on 8 May 2010 the defendant signed a document in the following terms (that Mr Rasyid had prepared): Acknowledgment of Received Payments I, Zulfikri Abu Yazid Mahbur, ("the Attorney" & "the Vendor") of [address], Randwick in the State of New South Wales on behalf of ISKANDAR Hazairin ("the Principal") of [address], Croydon in the State of New South Wales pursuant to Power of Attorney dated 28 April 2010, Land and Property Information Registration Book 4589 No. 120 have received payments are apportioned to in the amount of 1) $200,000.00 in cash on 3 May 2010 2) 15,000.00 in cash on 4 May 2010 3) $9,950.00 by a bank cheque on 5 May 2010 4) $160,000.00 by a bank cheque on 5 May 2010 (on hold and be paid in compliance of GST concern referred to in clause 3.ii) in the Deed Agreement) by Aminah Theglory of [address], Kensington NSW 2033 pursuant to a Deed Agreement for Sale of Taxi Business, to. a) sell the Taxi-plate No. T3999 ("the Taxi Licence" & "the Vehicle"), and extra items for the sum of $400,000.00 (Four Hundred Thousand dollars) b) the sale price is apportioned as to $385,000.00 (Three Hundred and Eighty Five Thousand dollars) for the licence and $15,000.00 (Fifteen Thousand dollars) for the vehicle and the extra items. I do solemnly and sincerely declare that the said and the received monies has been received for and on behalf of ISKANDAR Hazairin referred to the Deed Agreement for Sale of Taxi Business and the Loan Agreement made on 5 May 2010. I also declare that if any additional amount has been received by Zulfikri Abu Yazid Mahbur, the attorney ("the vendor") as stated in the Agreement, the vendor (the attorney) will pay to Aminah Theglory ("the Purchaser") including any additional penalty and interest referred to in the Deed Agreement for Sale of Taxi Business made on 5th day of May 2010. Dated Sydney: 8 May 2010 104The other two documents that were referred to in the Defence filed by Mr Rasyid were the Statutory Declarations of the defendant and that of Mr Rasyid. The Statutory Declaration purportedly made by the defendant is dated 8 May 2010. Mr Rasyid has witnessed the signature on it. The Statutory Declaration refers to the Deed Agreement for Sale of Taxi business executed on 5 May 2010, the Mortgage and the Caveat and includes the following: 1. that Zulfikri Abu Yazid Mahbur on behalf of Iskandar Hazairin of [address], Croydon in the State of New South Wales has received the sum of (i) $215,000.00 in cash and (ii) $9,950.00 by a bank cheque (to and for NSW Transport and Infrastructure) from Aminah Theglory of [address], Kensington in the State of New South Wales in condition 2. that in completion of the transfer of the Taxi Business as per the Deed Agreement, the balance in the sum of $160,000.00 and/or any lesser or higher amount be deposited by Aminah Theglory into the nominated and/or authorised bank account of the vendor (i.e. Zulfikri Abu Yazid Mahbur for and on behalf of Iskandar Hazairin), and 3. in addition to clause 1 & 2 of this statutory declaration a certified copy of the "Acknowledgment of Received Payments" be held by Zulfikri Abu Yazid Mahbur, and on the other hand 4. a certified copy of the Bank Cheque No. 237759-102-272-999003840 as the balance amount in the sum of $160,000.00 (issued on 5 May 2010) be held by Zulfikri Abu Yazid Mahbur as proof and for future record in reference to the above, and 5. finally the original copy of this statutory declaration be held by Zulfikri Abu Yazid Mahbur and a certified copy of this statutory declaration may be held by Aminah Theglory as proof of the above. 105In cross-examination the defendant denied that he signed this document. 106The Statutory Declaration made by Mr Rasyid on 12 May 2010 was in the following terms: I, Abubakar Rasyid of [address], Randwick NSW 2031 do hereby solemnly, sincerely and truly declare and affirm that Zulfikri Abu Yazid Mahbur ("the Attorney) of [address], Randwick NSW 2031 on behalf of Iskandar Hazairin ("the Principal") of [address], Croydon NSW 2132 pursuant to Power of Attorney dated 28 April 2010, Land and Property Information Registration Book 4589 No. 120, in my presence has received the following payments 1) $200,000.00 in cash on 3 May 2010 2) $15,000.00 in cash on 4 May 2010 3) $9,950.00 by a bank cheque on 5 May 2010 4) $160,000.00 by a bank cheque on 5 May 2010 (on hold and be paid in compliance of GST concern referred to in clause 3.ii) in the Deed Agreement) from Aminah Theglory of [address], Kensington NSW 2033. In my presence, on 8 May 2010 Zulfikri Abu Yazid Mahbur has acknowledged in receipt of the payments above. A certified copy of the (i) Acknowledgment of Received Payments, and (ii) Power of Attorney are attached as annexure "A" and "B". 107Another document in the defendant's handwriting is a document dated 8 May 2010 confirming that he received $200,000 and authorising Mr Rasyid as his "sub-attorney" to "disclose the money that he also received in relation to agreement". Mr Rasyid's handwriting also appears on this document confirming his undertaking to deposit the "balance monies" into the defendant's nominated account in his absence in Indonesia. 108A further document in evidence is an "Authority to Sale Tax-cab T3999" from Mrs Iskandar to the defendant dated 1 May 2010 (Ex 4, p 31). It is in the following terms: I, Nita Eriza Iskandar, ...hereby duly consent and/or authorise to Zulfikri Abu Yazid Mahbur, ... to sale the Taxi-cab T3999 Licence No. 5320 for and on Hazairin Iskandar's behalf in condition that 1. 50% of the sale price from the taxi above be shared by way of depositing into my Westpac Bank Account No... and the 2. other 50% be received by Zulfikri Mahbur on my husband Iskandar Hazairin's behalf. This consent be effect irrevocably and immediately. To identify me for this consent is to be true and correct, herewith, I enclosed a with a copy of my Indo passport no. ... 109Mrs Iskandar said that the signature on this document was her signature "before 2007" (tr 79). She claimed that she had never seen the document and that she did not sign it. She also claimed that she did not see Mr Rasyid or the defendant before the date that they came to her house (referred to earlier) on 3 May 2010. Although it was suggested to Mrs Iskandar in cross-examination that this document was the one that was shown to her when Mr Rasyid, Wahyu and the defendant attended her home on 3 May 2010, she denied having seen that document before. Mrs Iskandar claimed that the document shown to her on 3 May 2010 was a "different one" (tr 80). She also claimed that there was never any discussion about selling the Taxi on that occasion and that the only discussion was about wanting to sell "my house" (tr 80). Mr Hobden was unable to comment on the signature on this document. Having regard to my findings below it is not necessary to decide whether Mrs Iskandar signed this document. 110Mr Rasyid's evidence was unsatisfactory in parts. For example he claimed that he introduced the defendant to Wahyu so that he could drive him to visit the plaintiff in Goulburn CC (tr 280). He later claimed that Wahyu could not drive "long hours" because he had a "medical problem" and that Ms Theglory "all the time drove" the defendant to Goulburn CC "with her family" (tr 336). Another example was his evidence that he went to the Property with Wahyu and the defendant and that Wahyu said to Mrs Iskandar "we've put the house on the market". He agreed that Mrs Iskandar became quite upset and told them to leave (tr 284). However in evidence on the following day he said he could not recall giving evidence about a discussion with Mrs Iskandar at the Property about selling the Property (tr 351-352). He claimed there was only a discussion about selling the Taxi. 111Mr Rasyid accepted that some of his evidence was "wrong". For instance he gave evidence that Mr Kaufmann took documents to Goulburn CC for the plaintiff to sign (tr 293-294). He subsequently accepted that this evidence was "wrong" (tr 307). He also gave evidence that he was "absolutely sure" that it was on 2 May 2010 that the defendant asked Ms Theglory for the cash payment (tr 299, 301). He then accepted that this evidence was "wrong" and it was on 3 May 2010 that the defendant asked for the cash payment (tr 302). 112There is no doubt that Mr Rasyid and the plaintiff have known each other for some years and that they obviously worked together as office bearers in the Society. The plaintiff accepted that in April 2010 Mr Rasyid was concerned for him and his family (tr 40). 113Until the signatures on the Authority to Sell the Taxi and the Authority to enter into the Mortgage were identified as original signatures, the case proceeded on the basis that it was Mr Rasyid who had concocted these documents by scanning signatures onto them and producing them to various authorities. I am satisfied that the original signatures on these two documents have a signifcant impact on the determination of whether to accept the plaintiff's claim that he was deceived into signing a Power of Attorney by representations allegedly made by Wahyu that he would have his Taxi collected and provided to Mr Syarif. It is also important to the determination of the plaintiff's other claims. The Meeting with Ms Grant on 5 May 2010 114On 4 May 2010 Wahyu telephoned Ms Grant and informed her that he was ringing on behalf of his wife, to make an appointment for the preparation of a contract for her to purchase the Taxi. Wahyu informed Ms Grant that the matter was urgent because the defendant was only in the country for a few days helping his brother to raise money that was urgently needed to pay legal fees because his brother was in prison on a charge of murder. Ms Grant had not previously acted for any of the defendants and agreed that she would act for Ms Theglory. Ms Grant advised Wahyu that the defendant would need to obtain his own legal representation. 115On 5 May 2010 when Wahyu, Ms Theglory and the defendant attended Ms Grant's office Ms Theglory informed Ms Grant that Wahyu spoke on her behalf. Both Wahyu and Ms Theglory informed Ms Grant that they wished to have the defendant present during the drafting of the contract for the sale of the Taxi. Ms Grant gave affidavit evidence that she had the following conversation with the defendant: Ms Grant: Aminah and Wahyu have asked for you to be allowed to be here while I draft the Deed of Sale of the taxi. I have agreed to this but only on the basis that you understand that I am not acting for you, I am only acting for Aminah and you should get your own legal advice about the Deed. The defendant: I understand. My brother has told me to sell the taxi and licence and I am only here for a couple of days from Indonesia because I have to go back to the University where I am a lecturer. I know that you are Aminah's lawyer, not mine. I know I could get my own lawyer but I do not need to get my own lawyer. 116Ms Grant's evidence was that the defendant produced a Power of Attorney dated 28 April 2010. She checked that the Power of Attorney was registered in the Land and Property Information Register. The defendant also showed Ms Grant his Passport and other identity documents. Although Ms Grant attempted to speak to Mr Boyd by telephone, he was not available. Ms Grant's evidence was that she had the following conversation with the defendant: Ms Grant: Aminah and Wahyu have asked me to prepare this Deed. Ordinarily you would have your own lawyer so that you can get independent advice about the Deed because we are acting here for Aminah and not for you. Why don't you get Mr Boyd to act for you? The defendant: He is in Goulburn. I can act for myself. Ms Grant: I would recommend that you get your own lawyer to explain the Deed to you independently. Do you want to get one or do you want us to help you find one? The defendant: No, I don't need my own lawyer. 117During the drafting of the Deed Ms Grant took instructions from Wahyu on Ms Theglory's behalf. The defendant made some comments during the preparation of the Deed "such as how the balance of payments would be paid to his brother and payment of the GST". Ms Grant's file note (an annexure to her affidavit) includes the entry "$200,000 released". Ms Grant's evidence was that she recalled that she was informed by Wahyu during the conference that Ms Theglory had already paid $200,000 to the defendant for the purchase of the Taxi. Her evidence was that when Wahyu said this the defendant said "yes that's right, she's already given me 200,000". 118Ms Grant then met with Wahyu separately from the defendant. It was at this time that she spoke with him about the need for Ms Theglory to obtain some security for the funds that she had already paid because the Taxi was still impounded and there was no certainty that ownership of the Taxi licence would be transferred to Ms Theglory or that the Taxi sale could proceed. Wahyu advised Ms Grant that the plaintiff had a house and that the defendant could grant a mortgage. At this stage Ms Grant reconvened the meeting with the defendant and the following conversation took place: Ms Grant: Zulfikri, there is another aspect: because Aminah has already paid you $200,000, we require you to sign another document acknowledging that and giving security to Aminah. Wahyu says Mr Iskandar has a house. Will you sign a mortgage over your brothers (sic) house as security? The defendant: Yes, I can give Aminah a mortgage, that is fair. Ms Grant: That's good, we will draw up a mortgage but again I want you to get independent legal advice before you agree to it. The defendant: Just draw it up and I will read it first. Ms Grant: You should get your own legal advice. The defendant: I don't need to. I have the money. I will sign it, it is only right. 119Ms Grant then referred the defendant to one of her colleagues, another senior associate at the firm, who prepared the Mortgage and a Caveat. Ms Grant observed her associate hand the documents to the defendant who signed those documents. 120Ms Grant then reconvened the conference and after the final version of the Deed was prepared she gave copies to Wahyu, Ms Theglory and the defendant. Although she again urged him to do so, the defendant refused to seek independent legal advice. Ms Grant then suggested to the defendant that he should go outside and read the draft carefully. To that suggestion the defendant said "I will read it here". Ms Grant went through the Deed and gave a brief overview of each of the clauses. To her observation each of Ms Theglory, Wahyu and the defendant appeared to read the Deed. At one point the defendant asked for a correction to insert "Abu" into his name in paragraph 15 of the Deed. After making some other changes Ms Grant presented the final version of the Deed to each of Ms Theglory, Wahyu and the defendant and went through the changes and asked them to check those changes. Ms Grant said that she observed the defendant read the Deed again. The Deed was then signed by the defendant and Ms Theglory. 121The defendant's version of the meeting with Ms Grant was that Wahyu had said to him "do not say anything in front of her". He claimed that he and Ms Theglory waited in the waiting room whilst Wahyu was in the office with Ms Grant alone for "a few hours". He said he was invited into Ms Grant's office and claimed that "Wahyu told me to sign a document". He claimed that he did not read it nor was it read to him. He claimed that he "did not have a chance" and he said he thought it was "a caveat document". He also claimed that after Wahyu said "sign this document" Ms Grant said "sign here" and pointed to the place to sign. 122The defendant claimed that Ms Grant did not ask him about the receipt of the $200,000 cash and that Wahyu had said to him "I promise I will pay you before you leave for Indonesia". 123Ms Grant's affidavit evidence was that while the defendant may have spent some time in the waiting room he was in her office with Wahyu and Ms Theglory "for a few hours". Ms Grant denied that she simply said "sign here". Her evidence was that she said, "Here is where you sign. It is not too late, you don't have to sign right now. You should get advice before you sign the Deed" to which the defendant responded that he did not need advice, that he understood the Deed and that he was ready to "sign now". 124In cross-examination by Mr McInerney the defendant gave the following evidence (tr 187-197): Q. And together you, Mr Sasterawan, Ms Aminah Theglory and yourself stayed in Ms Grant's office for a few hours, didn't you? A. Yes. ... Q. You said to Miss Rosemary Grant that you were asking her to help you because your brother was in prison for murder and you needed to raise funds for your brother's legal representation, do you agree? A. Yes. ... Q. During the course of the next few hours Miss Grant, the solicitor, prepared the agreement for the sale of the Taxi, do you agree? A. Yes. Q. Whilst she was doing that you were seated in her office with Mr Sasterawan and Mrs Aminah Theglory, do you agree? A. Six hours? Q. During the few hours that you were there at Ms Grant's office you were seated in her room with Mr Sasterawan and Ms Aminah Theglory whilst Miss Grant prepared the agreement for the sale of the Taxi and Taxi licence? A. Yes. Q. During the course of Ms Grant preparing the agreement you made some comments to Ms Grant during the preparation of it, do you agree? A. No. ... Q. After Ms Grant prepared the draft sale agreement you read it, didn't you? A. Yeah, I read it outside. Q. Pardon? A. Read it outside of the office. Q. You read it in Ms Grant's office? A. No, I didn't read it. Q. You read it, you read the sale agreement, didn't you, before you signed it? A. I just sign it, just read it. ... Q. After Ms Grant prepared the draft sale agreement you read it whilst she was present in the room? A. Just looking at it and I didn't read all. Q. Do you agree that you read it whilst Ms Grant was present in the room? A. Yes. ... Q. You asked for a correction to be made to your name on the agreement, do you recall? A. I didn't speak anything with Miss Rosemary Grant. Wahyu asked me not to talk with Rosemary Grant when I visited her in her office. ... Q. After the final version of the agreement was prepared Ms Grant provided it to the three people in the room and you then read the agreement? A. Yes. Q. And then Ms Grant went through the agreement by talking through the clauses of the agreement before anyone signed it, do you agree? A. Yes. ... HER HONOUR: Q. The document that Ms Grant prepared? A. Yeah. Q. And Mr McInerney said that you read that. Do you agree with that? A. Read it? Just little bit. Q. Only a little bit? A. Yeah. ... Q. Is your signature on all the pages? A. Yes. ... Q. No. You are being asked what you read, what part did you read? A. This document, I just look at this document only, not read all, just seeing that my names there, that's it, and I did not, I mean, I didn't understand all that document because, yeah, I just only signed this document with Aminah Theglory when.. Q. You are being asked what parts of that document you read please? A. The first. Q. The first page? A. Yeah. Q. What else? A. Yeah, just read it, I mean, but not all, read all, but I just seen that -- Q. Which parts did you read is the question? A. Only the first. Only the first. Q. The first what? A. The first page. ... MR MCINERNEY: Q. And you knew on reading the first page that by signing this agreement there was to be the sale of the taxi; correct? A. Yes. Q. And the sale of the taxi plate; correct? A. Yes. Q. And you knew the price for the taxi and the taxi plate was $400,000 didn't you? A. Yes. Q. And you were agreeing on behalf of your brother to sell the taxi and the taxi plate, weren't you? A. Yes. Q. And that is what you knew you were doing by signing this agreement; correct? A. Yes. Q. And you did so to enable your brother to raise money to fund his legal representation; isn't that true? A. No. ... Q. You intended to transfer the taxi plate and the taxi licence to Ms Aminah Theglory, didn't you? A. Yes. Q. And you did so because you thought $400,000 for the taxi plate and the taxi licence was a fair deal; correct? A. Yes. Q. And you did so because you wanted to ensure that your brother had money to pay for his legal representation; correct? A. Yes. Case in Deceit 125The plaintiff's case in deceit against Wahyu is that he made statements of existing facts deliberately without believing in the truth of the statements with the intention that the plaintiff would act upon those statements. The plaintiff's case is that he acted upon those statements to his detriment: Derry v Peek (1889) 14 App Cas 337 at 374 per Lord Herschell. 126The Amended Statement of Claim pleads the case in deceit as follows: 7. On or about 27 April 2010 the first and third defendant attended upon the plaintiff and the plaintiff provided the first and third defendant oral instructions with a view to having T3999 collected from the NSW Police and delivered to a person identified as "Peter" to be used on a profit share basis while the plaintiff remained in custody. 8. In the course of the conference described in paragraph 7 hereof, the third defendant represented to the plaintiff: (a) That he had studied law but had not completed his studies; (b) That he and the first defendant would agree to act according to his instructions described in paragraph 7 hereof; (c) Would arrange a Power of Attorney for the plaintiff to sign so as to effect those instructions. 127The statements of fact implicit in the pleading are that Wahyu would carry out the plaintiff's Instructions and that a Power of Attorney was necessary to effect the plaintiff's Instructions to have the Taxi delivered to Mr Syarif. 128Mr McInerney cross-examined the plaintiff in respect of the meeting with the defendant and Wahyu at which the alleged false statements were made. In cross-examination the plaintiff said that Wahyu had informed him that he had to sign the Power of Attorney and he could "take" the "Taxi back" (tr 45). In further cross-examination he claimed that Wahyu informed him that although he had signed the Power of Attorney with Mr Boyd it was "not enough" and that he had to sign the document from Crimlaw to get his Taxi (tr 49). Mr McInerney cross-examined the plaintiff as follows (tr 51): Q. And you knew, didn't you, that it wasn't the position that you needed to sign the document at page 35 [the Crimlaw letter] to enable you to get the taxi back, correct? A. Yes, because I trust my brother this one. Q. And it is the position, isn't it, that you are mistaken about Mr Sasterawan saying to you that, "we need you to sign two documents first for us to be able to get it back", that is the taxi. You are mistaken about that, aren't you? A. Yes. This is what he convince me, if you not sign this two letter from the Kaufman here you can't get your taxi back. Because Rodney Boyd is not enough, he told me this one. You have to sign this two letter also. ... Q. But the true position is, isn't it, that you don't actually recall Mr Sasterawan saying to you that you needed to sign these documents to enable you to get the taxi back. That didn't happen, did it? A. This is true. Otherwise, they say, otherwise you cannot get taxi back if only sign with Mr Rodney. You have to sign this one also. And he mentioned, you cannot working with Archbold because I know what he told me but he say look after your wife and look after your son, you cannot one solicitor to operate everything and plus your taxi. He say if you don't want it this is okay, this all up to you. Otherwise you can't get your taxi back if you not sign this two letter. 129The representations allegedly made by Wahyu that the plaintiff could not get his Taxi back unless he signed the Crimlaw letter and the revocation of Mr Archbold's Power of Attorney were not pleaded. The plaintiff claims that at the time Wahyu made the statements to him about the necessity of signing the Power of Attorney (and the Crimlaw letter and the revocation document) Wahyu did not intend to collect the Taxi for the purpose of delivering it to Mr Syarif, but rather his real object and intention was to "steal the plaintiff's money" (SOC, par 10(b)). 130I am satisfied that in March 2010 the plaintiff was considering having someone else use his Taxi whilst he was in prison and entering into a profit sharing arrangement with that person. I am satisfied that contact was made with Mr Syarif in March 2010 in this regard. However things changed. From discussions with other inmates at Goulburn CC the plaintiff learned of the particular QC and his apparent successes in criminal trials. He was advised that this particular QC was "very expensive". Notwithstanding this advice the plaintiff still wished to proceed to instruct that QC. It was one of the things that he raised with the defendant on his first visit at Goulburn CC in mid April 2010. 131The plaintiff's evidence in relation to his plan to pay his legal bills was elicited in cross-examination. He said that he would obtain a loan and have income from the operation of the Taxi (tr 29). However he did not give any affidavit or oral evidence of requesting either his solicitors or his brother or Wahyu or Mr Rasyid to approach any financial institution or other lending facility to obtain a loan to fund his legal fees. Mr Archbold made it quite clear to the plaintiff that his plan to have someone else drive the Taxi to bring in approximately $500 per week (and then possibly only on a shared basis) was not a realistic approach to payment of his legal expenses. 132In cross-examination Mr McInerney elicited the following from the plaintiff (tr 39): Q. You were very concerned, weren't you, in late April 2010 how you would pay for the lawyers. A. Yes. Q. To defend yourself? A. Yes. Q. And very concerned about how you would pay for the lawyers to defend your wife? A. Yes. Q. You were very concerned about how you would pay the lawyers to act for Andrew, correct? A. Yes. Q. And you knew that you would have to raise a significant sum of money, some 150 to $200,000 to pay them, correct? A. Yes. 133In further cross-examination the plaintiff gave the following evidence (tr 44-45): Q. During the course of the meeting on 24 April 2010 there was a discussion, was there, about the taxi? A. Yes. Q. And at that time you were concerned, weren't you, as to what was to happen with the taxi whilst you were in gaol, correct? A. Yes. Q. And you were prepared to leave it up, were you, to your brother to determine what to do with the taxi? A. Yes. Q. And you knew that he might consider it appropriate to sell the taxi to raise money for your legal defence, didn't you? A. No. 134The plaintiff's evidence was given prior to the date that the originals of the Authority to sell the Taxi and the Authority to enter into the Mortgage that were produced under subpoena were inspected and tendered. Accordingly the plaintiff was not asked about the original signatures on those documents. 135There was a claim in the SOC that the plaintiff had limited understanding of the English language. It is clear that he operated the Taxi from 2005 to 2010. Although some may think otherwise, it is necessary for those who are licensed to own and drive taxis in New South Wales to have a reasonable understanding of the English language. The plaintiff did not suggest that he had any difficulty in dealing with Mr Archbold's request for his consent to the Mortgage for Mrs Iskandar to meet the security condition for her bail. His evidence in this regard was quite clear (tr 22). He understood that he was signing the mortgage to enable Mrs Iskandar to meet her bail conditions. It is also clear that the plaintiff understood that he did not have to sign the Power of Attorney brought to him by Mr Boyd. He dismissed Mr Boyd (apparently quite firmly), informing him that he was not a friend of Wahyu, that he did not intend to sign the Power of Attorney and that he had already granted a Power of Attorney to his solicitor, Mr Archbold. 136The plaintiff's further evidence that he discussed the Power of Attorney with Mr Boyd when he returned on 28 April 2010 also indicates that he had a reasonable understanding of the English language. He agreed that Mr Boyd spoke to him about the Power of Attorney and that he gave him advice about its effect (tr 34). Indeed from his evidence of the discussion it is clear that Mr Boyd was concerned that the plaintiff had changed his mind about signing the Power of Attorney. The plaintiff said that Mr Boyd questioned him as to whether he was "sure" he wished to sign the Power of Attorney and he gave him "time again" to consider the position. 137I am satisfied that at the time of the relevant events the plaintiff had a reasonable understanding of the English language. 138It was submitted on Wahyu's behalf that the deceit case was not pleaded distinctly and with particularity and has not been clearly proved: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573. It was submitted that the evidence does not establish that if the pleaded representations were made that they were false. It was also submitted that this issue is significant having regard to the plaintiff's pleading that Wahyu's real intention was to steal the plaintiff's money. It was submitted that clear and cogent evidence was necessary where such a serious allegation is made: Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449 at 450; 67 ALJR 170 at 170-171. It was submitted that there is no such evidence. 139Neither Wahyu nor Ms Theglory were called to give evidence. Prima facie an explanation would be expected from Wahyu or Ms Theglory in the face of a claim by the defendant that he had not been paid $200,000 (or $215,000) in cash. However both Mr McInerney and Mr Cheshire submitted that the evidence of Mr Rasyid and that of Ms Grant provides an explanation in respect of the payment of $200,000. Mr Rasyid said he was a witness to the payment and indeed counted the money and provided it to the defendant. Ms Grant's evidence was that the defendant informed her that Ms Theglory had already paid him $200,000 and that this was the reason he signed the Mortgage over the plaintiff's interest in the Property. 140Mr McInerney submitted that his client was in a difficult position in respect of giving evidence, having regard to the order made for the NSW Trustee and Guardian to manage his affairs. It does not automatically follow that when such an order is made the person the subject of the order is incapable of giving evidence. However the contents of the letters drafted by Wahyu and the emails to which Slattery J referred demonstrate an understandable basis for the forensic decision not to call Wahyu to give evidence. Mr Cheshire submitted that the question of whether the $200,000 was paid by his client is irrelevant to the issues for determination in the case as pleaded. Accordingly he submitted that there is no basis upon which it would be expected that Ms Theglory would provide an explanation. 141A pivotal matter in determining this aspect of the plaintiff's claim is whether the two Authorities (one to sell the Taxi and the other to enter into the Mortgage) (Ex A(4)) contain his signature. 142The plaintiff's claim that he was deceived into signing the Power of Attorney in favour of the defendant needs to be assessed having regard to all the surrounding circumstances including the documents signed on 2 May 2010. Although, as I say, the representations that it was necessary to sign the Crimlaw letter and the Revocation of Mr Archbold's Power of Attorney were not pleaded as a basis in the deceit claim, those representations were allegedly made on 2 May 2010 when Wahyu and the defendant visited the plaintiff in Goulburn CC. 143The two documents that the plaintiff claimed he signed on 2 May 2010 were the Crimlaw letter and the revocation document. Neither of those documents relate to the Taxi. The plaintiff's claim was that either the defendant or Wahyu represented to him that he had to sign them to enable the Taxi to be delivered to Mr Syarif. However the letter from Mr Archbold to the defendant and Wahyu on 6 May 2010 included the following: My client also informed me that during a visit on 2 May 2010, he informed you both that you did not have authority to sell his house. He confirms that he signed a Revocation of Power of Attorney pertaining to an earlier Power of Attorney with my firm. He further confirms that he only signed an Authority to Release Legal File to Crimlaw (NSW) Pty Ltd, as you purported that it needed to be signed to give effect to the Revocation of Power of Attorney. 144The confirmation referred to in this letter in respect of why the plaintiff signed the Crimlaw letter is quite different to the claim the plaintiff made in the proceedings that he signed it because Wahyu and the defendant informed him that he needed to do so to enable the Taxi to be delivered to Mr Syarif. 145The plaintiff's claim proceeded in the context of the other documents dated 2 May 2010 being only copy documents. The theory propounded on the plaintiff's behalf was that Mr Rasyid concocted those documents by scanning copies of the plaintiff's signatures onto those documents. After the parties were alerted to the view that I held that the signatures on the Authority to sell the Taxi and the Authority to enter into the Mortgage dated 2 May 2010 (Ex A(4)) were original signatures, there was no application by the plaintiff to give further evidence in respect of those signatures. This was so notwithstanding an application to re-open (that was not opposed) to tender Mr Hobden's second report. The plaintiff was placed in a difficult position being confronted with documents with original signatures on them after having propounded a case that Mr Rasyid concocted the documents by using copies of his signatures. The plaintiff was not really in a position to claim that if the signatures on the documents were found to be his signatures, they were procured by trickery or in circumstances where he failed to read the documents or understand what the documents meant. That is because the plaintiff's case was that he did not sign the documents. 146Mr Coyne submitted that notwithstanding the presence of the original signatures on these two documents, it is necessary to consider them in the light of the other evidence especially that of Mr Hobden and also Mr Rasyid. I was not impressed with Mr Hobden's analysis in his second report (Ex H). The more straightforward approach would have been not only to accept that these signatures were original (which he did) but also to accept that this fact must have an impact on his earlier opinion. Mr Coyne emphasised that even Mr Rasyid claimed that one of the documents had been "created" by someone and was not a document that he had prepared. There is no doubt that there are some curiosities about some of the documents. However these two documents are clearly original signatures and they have a significant detrimental impact on the plaintiff's case and his evidence. 147The defendant was only in Australia from 16 April 2010 to 9 May 2010. The plaintiff had asked him to seek out the particular QC about whom he had heard good reports and retain him to be his lawyer for his criminal trial. It is common ground that the particular QC was expensive and that funding would be needed to secure his services. The irresistible conclusion in the circumstances is that the plaintiff wished to obtain funding to secure legal representation for the murder trial. This could not be achieved by someone driving his Taxi for a share of $500 per week. It is also clear that the plaintiff held the view that his legal fees were in the vicinity of $150,000 to $200,000. The only sources of funding to meet those costs were the Taxi or the Property. 148The plaintiff called no evidence that would justify a finding that the signatures on the two Authorities in Exhibit A(4) were forgeries. I am satisfied that the plaintiff signed (at least) those two documents at the same time that he signed the Crimlaw letter and the revocation of Mr Archbold's Power of Attorney on 2 May 2010. It is also probable that he signed the Acceptance to Sale and the Authority to Transfer Ownership in the Taxi, both containing his handwriting and his signature. In the circumstances I am satisfied that the plaintiff knew that when he signed these two documents on 2 May 2010 he was authorising the defendant to sell the Taxi. I reject his evidence that he was misled into signing the Power of Attorney. I am satisfied that the plaintiff authorised the defendant to sell the Taxi and to enter into a mortgage in respect of his share of the Property to enable funds to be advanced to the defendant for the purpose of the plaintiff being in a position to fund his legal costs. 149I am not satisfied that the plaintiff was deceived by Wahyu into signing a Power of Attorney in favour of the defendant. 150The deceit case against Wahyu is dismissed. Undue Influence and unconscionable conduct 151The plaintiff's claims of undue influence and unconscionable conduct were pleaded as follows: 16.Further and in the alternative, the execution of the Power of Attorney on 28 April 2010 and the sale of T3999 were procured by the undue influence of the first and third defendant. PARTICULARS (a) By reason of the matters referred to in paragraph 6 [(1) that the plaintiff was in custody; (2) that he had limited understanding of the English language; and (3) that he was befriended by and had considerable regard for and confidence in the defendant and Wahyu] and by reason of the relationship, friendship and regard with which the plaintiff had for the first and third defendant, the plaintiff came to repose confidence in the first and third defendant, and on or before 28 April 2010, being the time of execution of the Power of Attorney and sale of T3999, the relationship between the first and third defendant on the one hand and the plaintiff on the other, was such that the first and third defendant enjoyed such an ascendancy over the plaintiff that the plaintiff was unable to make any worthwhile judgment as to his interest in the transaction as a whole and unable to make any worthwhile judgment as to the management and of T3999 but was at the mercy of first and third defendant. (b) The plaintiff was exposed to a real risk that the sale of T3999 would be manifestly disadvantageous to the plaintiff. 17. The matter referred to above was at all material times known to or ought to have been known to the first, second and third defendants and each of them. PARTICULARS (a) The first defendant is the brother of the plaintiff and visited from Indonesia. (b) The second and third defendants were in a relationship. 18. Further and in the alternative, the execution of the Power of Attorney on 28 April 2010 and the sale of T3999 were procured by the unconscionable conduct of the defendants. PARTICULARS (a) The defendants knew or ought to have known of the plaintiff's special disability being matters referred to in paragraph 6 hereof, but proceeded to take advantage of the inequality of the bargaining powers or capacities between the plaintiff and the defendants, in luring and allowing the plaintiff to be lured into the transaction and then in keeping him ignorant of the defendants dealings in taking steps to sell T3999 to the second defendant. (b) The first and second defendant co operated with and acted under the direction of the third defendant in selling T3999, but failed to warn or notify the plaintiff, his wife or his solicitor or any other person who might reasonably have been expected to assist or protect the plaintiff. 152The distinction between undue influence and unconscionable dealing was explained by Mason J (as his Honour then was) in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461 as follows: But relief on the ground of "unconscionable conduct" is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, eg, a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position. There is no reason for thinking that the two remedies are mutually exclusive in the sense that only one of them is available in a particular situation to the exclusion of the other. Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest. 153In written submissions the plaintiff relied on the following passage of Brusewitz v Brown [1923] NZLR 1106 at 1109-10: Where there is not merely an absence or inadequacy of consideration for the transfer of property, but there also exists between the grantor and the grantee some special relation of confidence, control, domination, influence or other form of superiority, such as to render reasonable a presumption that the transaction was procured by the grantee by some unconscientious use of his power over the grantor, the law will make the presumption of its invalidity. ... The question in every case is: Did the parties contract at arm's length and on terms of equality, or, on the contrary, did there exist between them such a relation of superiority on the one side and inferiority on the other. 154The plaintiff also relied upon the following passage of Dixon J's judgment in Johnston v Buttress (1936) 56 CLR 113 at 134-135: It applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. 155These submissions were made without addressing the significant matters of the plaintiff's' signature on the two Authorities to sell the Taxi and to enter into the mortgage. In any event, there is no evidence upon which a conclusion could be reached that the defendant and Wahyu enjoyed an ascendancy over the plaintiff in their relationship with him. I do not accept that the plaintiff was pressured into or unduly influenced into signing any of the documents, the Power of Attorney, the Revocation of Mr Archbold's Power of Attorney or the two Authorities. I am satisfied that the plaintiff signed the Authority to sell the Taxi and that he intended that the defendant was to sell his Taxi for the purpose of raising funds for his legal representation. 156The case in undue influence is dismissed. 157In reliance upon Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 462; Blomley v Ryan (1956) 99 CLR 362 at 401-402; and Louth v Diprouse (1992) 175 CLR 621 the plaintiff submitted that he was suffering from a special disability by reason of his incarceration, his limited understanding of the English language and his considerable regard for and confidence in the defendant and Wahyu. 158The fact of the plaintiff's incarceration at the time of the transaction does not constitute a special disability that put him at such a disadvantage that the defendant and Wahyu had an ascendancy over him. Although incarcerated, he was able to make decisions for himself. This can be seen in his refusal to sign the first Power of Attorney provided by Mr Boyd notwithstanding that Mr Boyd had been asked by the defendant and Wahyu to attend upon the plaintiff. The plaintiff demonstrated his ability to defend his own interests by having Mr Archbold limit the Power of Attorney granted to him to prevent it being used to sell the Property or the Taxi. 159I have found that the plaintiff did not have a limited understanding of the English language at the relevant time. Although the plaintiff had considerable regard for the defendant I am not satisfied that he showed any dependence upon or had any confidence in Wayhu. In any event such a factor could not amount to a disadvantage. It certainly did not affect his ability to judge for himself or make a worthwhile judgment as to what was in his best interests. He also had the benefit of the advice and/or assistance of two solicitors, Mr Archbold and Mr Boyd. 160Having regard to the finding that the plaintiff expressly authorised the defendant to sell the Taxi pursuant to the Power of Attorney and the Authority to sell the Taxi dated 2 May 2010, the unconscionable conduct claim must also fail. Breach of Duty/Statute 161Although the plaintiff claimed that the defendant was in breach of his fiduciary duty in selling the Taxi, I have found that the defendant was expressly authorised by the plaintiff to do so. Accordingly the breach of fiduciary duty as pleaded must fail. 162The plaintiff's case against the defendant for breach of s 12 of the Powers of Attorney Act 2003 was that he obtained a benefit for himself in selling the Taxi. Once the case in deceit against the defendant was abandoned, it was difficult to ascertain the nature of the benefit the defendant allegedly obtained. It was not part of the plaintiff's case that the defendant kept the $215,000 cash that was paid to him. The plaintiff's case was that the cash was not paid to the defendant. 163The claim against the defendant in respect of a breach of s 12 of the Powers of Attorney Act 2003 must also fail. Generally 164Both Mr McInerney SC and Mr Cheshire emphasised that they held the plaintiff to his pleadings. They made it clear that they were making forensic decisions to meet the case as pleaded (tr 182-183). The only amendment to the pleadings during the trial was the plaintiff's abandonment of the claim in deceit against the defendant. 165The Agreement for the Sale of the Taxi was attacked on the basis of deceit, undue influence and unconscionable conduct focusing upon the misrepresentations allegedly made to the plaintiff. Although there was a general claim for "damages" in the "Relief" section of the SOC, there was no claim pleaded for breach of contract for a failure to pay the purchase price. 166The plaintiff's case as pleaded and propounded was dramatically and adversely affected by the production of the two Authorities (one to sell the Taxi and the other to enter into a mortgage) with his original signatures on them. 167A good deal of time was spent on the issue of whether Ms Theglory paid the defendant $215,000 in cash. It appears that the plaintiff relied upon the defendant's evidence that he did not receive the payments from Ms Theglory in support of the claim that Wahyu intended to "steal the plaintiff's money". It also appears that the plaintiff relied upon this evidence in support of the claim of unconscionable conduct against the defendant, Wahyu and Ms Theglory. It apparently being contended that they knew that she was obtaining the Taxi at an undervalue, being only $175,000, the amount paid into Court, and not the agreed $400,000. 168I have already referred to the serious doubts about the veracity of the defendant's evidence in relation to the allegedly forced sexual encounters with Wahyu. There were serious deficiencies in each party's case. I have already dealt with the problems for the plaintiff once the Authorities with his signature on them was produced. There was the absence of evidence from Wayhu (apart from Ex D) and Ms Theglory. The creation of so many documents by Mr Rasyid to allegedly evidence the transaction was, to say the least, unusual. However I have found Ms Grant's evidence of assistance in resolving what probably occurred in relation to the payment of $215,000. There was no need for the defendant to inform Ms Grant that he had received the $215,000 in cash. It would have been simple for him to leave the terms of the Agreement for the Sale of the Taxi to apply, with the whole of the amount of $400,000 to be paid on completion. However there was the uncertainty of whether the transfer of the Taxi would be approved and how long it would take, particularly having regard to the fact that the Taxi was still with the Police at the time the Agreement for the sale of the Taxi was executed on 5 May 2010. I am satisfied that at this time the plaintiff needed the funds to pay his legal bills and to secure the services of the particular QC whom he had asked both Mr Archbold and the defendant to retain on his behalf. 169The defendant's communications with Ms Grant on his return to Indonesia included a claim that there was "something fishy about this transaction". That epithet is very appropriate. However, although there were some curiosities to the documents in relation to the receipt of the cash that were handwritten by the defendant and/or purportedly signed by him before he returned to Indonesia, on balance I am satisfied that he was probably paid $215,000 cash by Ms Theglory. Although there is a curiosity to the amount secured by the mortgage ($200,000 rather than $215,000), I am satisfied that the reason that the defendant signed the Mortgage was as security for Ms Theglory for the advance of the cash in case the transfer of the Taxi was not approved and the sale could not be completed. 170Another curiosity to these proceedings is the defendant's and Wahyu's attempt to sell the Property. The Authority to sell the Taxi specifically limited the defendant's authority by prohibiting him from selling the Property. The evidence does not allow a finding one way or the other as to the motivation of the defendant in pursuing that sale. 171Mr Cheshire submitted that one "theory" about some of the peculiarities of this case is that the defendant sold the Taxi with the consent of the plaintiff, but the plaintiff changed his mind or decided to keep the cash and also to try to recover the Taxi. It is perhaps unhelpful to ponder theories that are not converted into realities. However the fact (or the reality) is that the defendant received the cash payment and it is unknown what happened to it. 172I am satisfied that the plaintiff authorised the defendant to sell the Taxi. The plaintiff has failed to prove the claims in the Amended Statement of Claim. The Deed Agreement for the sale of the Taxi should not be set aside. 173There is on file an Amended First Cross Claim filed by Wahyu on 15 February 2011, seeking various declarations and orders against the plaintiff, Mrs Iskandar and Mr Archbold. No evidence was led in support of these claims and prima facie it appears that they should be dismissed. I will hear from the parties on the appropriate orders to be made in respect of the Cross Claim when the matter is listed for final orders. Orders 174The plaintiff's claims in the Amended Statement of Claim are dismissed. The parties are to prepare Short Minutes of Order finalising the matter including an order in respect of the moneys paid into Court and an agreed costs order. If the parties are unable to agree on these orders, I will hear argument in due course on a date to be fixed by arrangement with my Associate.