Ling v Pang

JUDGMENT

1. LEEMING JA: I agree with Kirk JA.
2. MITCHELMORE JA: I agree with Kirk JA.
3. KIRK JA: The core dispute in this appeal is whether or not the respondent signed two contracts as witness of someone's signature when that person in fact had not signed the documents. The primary judge, Ward CJ in Eq, found that he had not done so. That finding is challenged by the appellants. The appeal turns on issues of fact, save that one argument of principle about the scope and application of the rule in Jones v Dunkel has been raised.
4. The first appellant is Ms Kuo Shu Ling. She is married to Mr Jonathan Lee, who is the director of the second appellant, Chuan Dian International Trade Co Ltd. The first and second appellants respectively advanced sums of $200,000 and $700,000 by way of loan to Beyond Development Group Pty Ltd on 2 November 2016. Two documents titled "Mortgage Linked Loan Agreements" were executed a week after the money had been advanced, on 9 November 2016, to document these loans (Loan Agreements).
5. Mr Peter Zhuang - also known as Peter Chung - was a director of Beyond Development. He was married to Ms Liping Wang. The Loan Agreements provided that each of Mr Zhuang and Ms Wang was a guarantor of each of the loans. The signature of both of them purportedly appeared on the agreements, accepting their liability as such. The signatures were purportedly witnessed by the respondent, Mr Oliver Pang. He is an accountant who had done some work for Beyond Development. He is also a justice of the peace.
6. The principal amount of $900,000 under the Loan Agreements came due on 9 November 2017. It was not paid and these proceedings were commenced. Default judgment was entered against Beyond Development for the sum of $1.3 million in May 2018. Beyond Development was placed into administration then liquidation shortly thereafter.
7. The appellants sought to enforce the personal guarantees of Mr Zhuang and Ms Wang. The primary judge made orders against Mr Zhuang, who did not participate in the proceedings. But her Honour found that Ms Wang's signature on the loan agreements had been forged, probably by Mr Zhuang or someone acting at his direction (at J [257]), and accordingly the appellants' claim against her was dismissed. That finding and order are not disputed on appeal.
8. In the event that Ms Wang's signature was forged, as it was found to be, the appellants claimed that for Mr Pang to have attested to witnessing Ms Wang's signature in her presence when she did not sign the Loan Agreements was negligent and amounted to misleading conduct (both direct and as an accessory to Mr Zhuang's misleading conduct). The primary judge found that Mr Pang did not witness the false signatures and his signature was forged, again most likely by Mr Zhuang or someone acting at his behest (at [278] and [385]). Mr Pang's own evidence was that he did not recall witnessing the signatures but that he also never witnessed the execution of documents in his capacity as justice of the peace unless he had actually done so. Her Honour found that Mr Pang was a credible witness (J [151]) and accepted his evidence. There was some evidence from Mr Sokotame Tupou, the appellant's solicitor, which tended to suggest that Mr Pang had witnessed the signatures. Her Honour found that he too was a truthful witness but found inconsistencies in his testimony which limited its value (at [153] and [273]). Her Honour gave limited weight to the evidence of the appellants' handwriting analyst, Mr Clifford Hobden, which provided "qualified support" for the authenticity of Mr Pang's signature (at [373]). Her Honour rejected the argument that a Jones v Dunkel inference should be drawn against Mr Pang for failing to call Mr Zhuang to give evidence (at [130]).
9. The appellants' primary challenge, raised by Ground 1, is to the factual conclusion that Mr Pang did not witness the false signatures of Ms Wang on the Loan Agreements. Ground 2 was not pressed. Grounds 3-5 assert that the primary judge erred in failing to draw a Jones v Dunkel inference against Mr Pang relating to his failure to call Mr Zhuang to give evidence of an exculpatory conversation. The appellants argue in Ground 6 that Mr Pang's conduct caused them to lose an opportunity of value and her Honour erred in concluding to the contrary. Ground 6 only arises if the appellants succeed on Ground 1.
10. The Jones v Dunkel issue is raised in order to support the conclusion sought under Grounds 1, and it is thus appropriate to address Grounds 3-5 first in what follows. In my view the primary judge did not err in declining to draw a Jones v Dunkel inference. More generally, and in any event, her Honour did not err in concluding that Mr Pang had not signed the Loan Agreements. Although not necessary to decide, ground 6 was also not made out. The appeal should thus be dismissed with costs.
11. A Notice of Contention filed on 26 September 2022 asserted that Mr Pang did not owe a duty of care to the appellants and his conduct was not in trade or commerce such that he had no liability for misleading conduct. It is not necessary to address these issues.

Grounds 3-5: Application of Jones v Dunkel inference

1. In explaining why these grounds are not made out I will first address the context then identify and apply the relevant principles.

The interactions in September 2018

1. Administrators were appointed to Beyond Development in August 2018. They were appointed liquidators the following month. After the company went into administration the appellants brought a claim in the proceedings against Mr Zhuang and Ms Wang based on the guarantees. Ms Wang then filed a defence denying that she had signed the Loan Agreements.
2. Unsurprisingly, these events led the appellants' solicitor, Mr Tupou, to ask Mr Pang whether he had witnessed Ms Wang having executed the agreements. Mr Tupou sent an email to Mr Pang on 4 September 2018, following a phone conversation earlier that day, attaching the agreements, and saying "[p]lease advise whether you recall witnessing the documents". After being chased up, Mr Pang responded on Friday 7 September 2018 saying "[i]n our normal practice, we would keep a copy of witness documents", and "[w]e will review our log over the weekend and revert back". On Thursday 13 September 2018 Mr Pang emailed Mr Tupou to say the following (reproduced as written): We wish to advise that we have found our log of signing of the ID, but we did not write down what was the purpose of witnessing for However, we could not find any record of signing as witness of the signature in the contract, however the witness signature looks very similar We called Peter Chung to verify this, and he did not answer our query directly, but over the phone, he acknowledged the writer did not witness the signature in the contract but he declined to give further details The writer could not remember answering your call because it was such a long time, and we did not log phone call in our office In view of this, we think your query can be only resolved by Peter Chung
3. In his affidavit, Mr Pang gave a further explanation of what occurred after 7 September 2018: [34] Over the ensuing few days, I attempted to locate the agreements on the Business hard driver however was unable to find them. Having regard to the fact: 34.1 I could not find the Agreements; and 34.2 the signatures on them looked like mine, I telephoned Peter and had a discussion with him in which words to the following effect were used: Me: Peter, I have been given a copy of some loan documents emailed to me by Pinnacle Lawyers with my signature on them but I cannot find any record of these documents and don't know anything about them. Peter: Look, it's not your signature and you won't get into trouble for that. Me: Well did you sign the documents and how did my signature get on them? Peter: I wouldn't get any friends in trouble. Peter would not directly answer my query regarding how my signature was placed on the Agreements. To the best of my recollection, the discussion moved towards Peter's explanations as to how he was going to try and find investors for his development.
4. In cross-examination Mr Pang said Mr Zhuang "was giving me the impression he is going to solve the problem". All of this evidence was admitted without limitation.
5. Mr Tupou sent a letter to Mr Pang dated 18 September 2018 as follows (reproduced as sent): You advised this office prior to the execution of the documents that you would witnessed them. You advised this office that is in fact what you did. The documents contain your signature and your offices stamp and as you confirm the signatures are very similar. Our client would not have entered into this agreement had you given your assurances, prior to execution, that you would see to the proper attestation of the loan documents. Your offices subsequently advised that this had in fact occurred. You now seem to resile from that position. Our present view is that if the Court finds that the Peter's wife did not in fact execute the loan documents you have engaged (at best) in misleading and deceptive conduct. Unless you provide some reason, by COB Friday 21 September 2018, why we should not join you and your firm as a defendant, in the alternate, to the proceedings as against Liping Wang for the repayment of the loan monies we are instructed to proceed to do so.
6. In an email response of 25 September 2018, Mr Pang again referred to his conversation with Mr Zhuang (reproduced as sent): We wish to reiterate that from our log record that we had witnessed the copies of the passports, and driver licenses and of Liping Wang & Peter Zhuang, but no records indicating the purpose for those copies witnessed for We also reiterate that we had no log record of witness the signing the contract relating to the abovementioned We confirm with Peter Zhuang that the signature in that contract was in fact not by the writer The writer had experience of forged signature on a cheque to be presented to the bank that the signature was very similar, however the bank called our office because it was a cash cheque, and the subject cheque was actually never issued and still in our cheque book. Eventually the offender was arrested at North Sydney and even the police was surprised how identical the signatures were The write would not be surprised the signature was forged in this instance We had no recollection that we had called your office to confirm that we would witness the signatures, as it was a unusual practice that we would made a call to provide a voluntary work without fees We did not have recollection you had called our office to confirm the witnessing the driver licenses to passports for that matter, it was years ago that you may have better memory than the writer We strenuously deny your accusation that we have engaged in misleading and deceptive conducts …
7. Mr Zhuang was not called as a witness by any party. In opening submissions counsel for the appellants said to the primary judge that it appeared he had "effectively absconded" and that his trustee in bankruptcy did not wish to participate in the hearing (he was declared bankrupt in March 2019): J [6] and [112]. Evidence emerged that Ms Wang was still in contact with her (now) ex-husband: J [130].

Application of principle

1. Against this background, the appellants submitted below that some Jones v Dunkel inference should be drawn against Mr Pang for failing to call Mr Zhuang "to give evidence as to what occurred and to bolster Mr Pang's version of the conversation in September 2018": J [129]. Her Honour declined to do so because "I do not accept that it can fairly be said that Mr Zhuang is in Mr Pang's camp or that it would be more natural for Mr Pang to call Mr Zhuang than for Mr Lee to do so": J [130]. The appellants submit that her Honour erred in this conclusion and should have drawn an adverse inference against Mr Pang.
2. In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, Heydon, Crennan and Bell JJ distinguished two types of inferences that can be drawn where Jones v Dunkel applies (citations omitted): [63] The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. ... The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.
3. Here, the appellants clarified that they were only seeking to draw an inference of the first type.
4. The drawing of a Jones v Dunkel inference requires the court to be satisfied that, first, it is expected or natural for the party in question to have called the person; second, the person's evidence would have elucidated a particular matter; third, the absence of the person is unexplained: Payne v Parker [1976] 1 NSWLR 191 at 201 per Glass JA. In this case it is the first matter which is in issue. It is obvious that Mr Zhuang's evidence could have elucidated how Ms Wang's purported signatures came to be on the Loan Agreements. And senior counsel for the respondent accepted that there was no evidence of attempts having been made on Mr Pang's behalf to track down Mr Zhuang, and that despite the "absconding" remark it did seem that he was potentially available.
5. The Jones v Dunkel "rule" is a principle of judicial reasoning which addresses the drawing of inferences of fact. It only applies "once all the evidence in the case is in": Manly Council v Byrne [2004] NSWCA 123 at [54] per Campbell J. Whether some inference should be drawn, what inference, and with what significance, are all matters that depend upon the particular case. So much is reflected in the reference to Kuhl at [63] to drawing an inference "in appropriate circumstances". It is not a rule that can be applied formulaically.
6. The appellants relied on two types of matter to support the argument that "it was more natural for Mr Zhuang to be called" by Mr Pang: that Mr Zhuang had been his client for a number of years; and that he was invoking what Mr Zhuang had said to him in their phone conversation in September 2018 as exculpatory evidence. The former point is unpersuasive. Mr Pang's evidence was that he had prepared Mr Zhuang's tax returns and provided general accountancy and business services. There is no evidence of any close relationship. Although Mr Pang's affidavit evidence quoted above at [15] recorded that Mr Zhuang had suggested that Mr Pang was a friend, Mr Pang said in cross-examination that it was "just the normal kind relationship [sic]". Merely having provided professional services to a person on a sporadic basis does not mean that person should be regarded as in the professional's "camp" or the like.
7. The latter point, however, is more significant. In Payne v Parker Glass JA listed examples of where it would be expected or natural for the party in question to have called the person (at 201-202, citations omitted): The first condition is also described as existing where it would be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other.
8. What underlies the principle in Jones v Dunkel is that the failure to call the witness "serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party": Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; at 320-1 at 320-321 per Windeyer J; see also Fabre v Arenales (1992) 27 NSWLR 437 at 449 per Mahoney JA. The circumstances in which such a fear may be inferred are various.
9. In some cases no inference will be drawn merely because corroborative or cumulative witnesses are not called: see eg the discussion in Manly Council v Byrne at [60]-[67]. Not calling yet further witnesses to establish some point already established by evidence does not suggest that the party in question fears what they might say; it is rather just a matter of not wasting the time and resources of the parties and the court.
10. This is not such a case. There were only two people involved in the conversation in question, Mr Pang and Mr Zhuang, and the key statement was made by Mr Zhuang. The content of the conversation was peculiarly in the knowledge of those two, and that is a matter tending to support the drawing of the inference: note Tozer Kemsley & Millbourn (Australasia) Pty Ltd v Collier's Interstate Transport Service Ltd (1956) 94 CLR 384 at 403; [1956] HCA 6 per Fullagar J. If anyone was going to call Mr Zhuang to corroborate that he had said what Mr Pang claimed, it was Mr Pang. His failure to do so can be argued to suggest that he feared what Mr Zhuang might say. Yet the failure to call him can be explained on other, more likely grounds, such that it cannot be said that it would be expected or natural for Mr Pang to have called Mr Zhuang.
11. As a distinct party in the litigation with distinct interests Mr Zhuang was not in Mr Pang's "camp", even if he had chosen not to participate in the proceedings. The appellants' case involved a pleaded allegation, put in the alternative, that Mr Zhuang "either falsely executed [Ms Wang's] signature to the loan agreement or caused someone else to do so". The premise of the appellants' claim against Mr Pang was that Ms Wang had not in fact signed the Loan Agreements. In the circumstances Mr Zhuang had "a reason for not telling the truth or refusing to assist": Fabre v Arenales at 450. It is not natural to expect one party in a case to call another unrelated party to testify as to matters touching upon the latter's own possible fraud, where that very fraud is at issue in the case, and where the claim against the first party only arose for consideration if the other party had engaged in wrongdoing.
12. The appellants sought to rely on the recent decision in Owners - Strata Plan 87265 v Saaib [2022] NSWCA 63. In that case Basten JA, with the agreement of Gleeson JA (Macfarlan JA dissenting), held that an inference could be drawn that a person's evidence would not have assisted a party in circumstances where the two people had had a close working relationship but then fell out, with the party ending up alleging to the police that the missing witness had engaged in fraud. His Honour said (at [88], citations omitted): There was no evidence as to why Mr Saaib's lawyer had reported Mr Zaatini to the police for fraud, nor as to whether the police had taken steps to investigate or prosecute him. As this Court said in RHG Mortgage Ltd v Rosario Ianni, a suggestion that the witness might be reluctant to give evidence because it may constitute an admission of wrongful conduct on his part, would invite an application for a certificate under s 128 of the Evidence Act. The fact of the report to the police was consistent with Mr Saaib taking a particular view of Mr Zaatini's conduct, at least after he had obtained legal advice; it does not follow that the person would lie on oath.
13. That decision illustrates, first, that merely because the people involved have fallen out does not of itself mean that one would not be expected to call the other; secondly, the fact that the expected evidence may involve wrongful conduct does not of itself preclude an inference being drawn in light of the potential protections offered by s 128. But the evaluation of whether it is natural to expect the person to have been called by the party is fact specific. It was important in that case, for example, that there was no evidence of what the report of alleged fraud involved and, thus, whether it related to the matters in question. Here, the facts that the missing witness was himself a party, who was accused of fraud in these proceedings by the appellants, are distinguishing features.
14. In any event, to approach the issue from another angle, if an inference was drawn that Mr Zhuang's evidence would not have assisted Mr Pang it is difficult to see how that would advance judicial reasoning in any material way. The primary judge indicated that Mr Zhuang either forged Ms Wang's signatures or caused someone else to do so: J [257]. At most, here, a Jones v Dunkel inference would suggest that the evidence of a likely forger would not have supported Mr Pang's case. That would be a statement of little assistance in resolving the factual dispute.
15. The primary judge thus did not err in declining to draw a Jones v Dunkel inference against the respondent with respect to Mr Zhuang. Even if such an inference was drawn it would not have made any difference to the conclusion in light of the matters discussed below.

Ground 1: Factual determination re Mr Pang's signatures

1. The heart of the appeal, raised by Ground 1, is the complaint that the primary judge erred in determining that it was probable that Mr Pang did not sign the Loan Agreements and it was more likely that the signatures were placed on the documents by someone else being, most likely, Mr Zhuang. The appellants' argument focused on the following matters, which I will address in turn: 1. that her Honour did not attribute sufficient significance to the facts that Mr Pang did not deny the signatures on the Loan Agreements were his and did not remember if he did or did not sign them, conceding that it was possible that he had; 2. two key paragraphs of her Honour's reasons involve mistakes of fact; 3. her Honour wrongly discounted the recollection of Mr Tupou, which was supported by contemporaneous emails; 4. her Honour gave insufficient weight to the evidence of the handwriting expert called by the appellants, Mr Clifford Hobden.

Mr Pang's evidence

1. Mr Pang accepted in his affidavit that a signature that looked like his was adjacent to the execution signatures of Ms Wang and Mr Zhuang on the Loan Agreements. He agreed in cross-examination that they were very similar to his own. He did not deny in terms that they were his signatures.
2. The appellants seek to characterise this evidence as supporting their case. The argument is unpersuasive. That Mr Pang said he did not recollect signing the Loan Agreements is unsurprising evidence. Mr Pang had been a justice of the peace since 1991. As Mr Pang aptly put it in cross-examination when asked if his evidence fell short of denying that the signatures were his: "Well, as I have no recollection, how can I deny it?" In fact, Mr Pang's position strengthened somewhat when cross-examined by counsel for Ms Wang. The respondent indicated that, so far as he could recollect, he had never met Ms Wang, and nor had he had any form of audio-visual conference with her. He ended up agreeing that he had not seen Ms Wang sign the loan agreements.
3. Given the finding that Ms Wang had not executed the Loan Agreements there were two possibilities with respect to Mr Pang's signatures appearing on the agreements. Either he had signed the documents, and in that way falsely recorded that he had witnessed Ms Wang having signed them, or his signatures were forged like Ms Wang's. In that context, and where he could not recall having signed them, evidence of his usual practice became critical. The evidence in his affidavit on that point was unequivocal: [6] In or about 2013 or 2014, I implemented an invariable practice of: 6.1 making an electronic copy of important documents I had witnessed the execution of - legally binding documents certainly fall into the category of important documents; and 6.2 saving the electronic copy to a hard drive of a computer located at the Business premises - the documents were scanned into the system and kept on the hard drive. [7] I take my role as a Justice of the Peace very seriously and have never been, prior to my joinder to these proceedings, accused of or found to have inappropriately exercised my role as a Justice of the Peace. [8] When requested, in my capacity as a Justice of the Peace, to witness the execution of documents, I have never done so without actually witnessing the person executing the document actually execute it. [9] When requested, in my capacity as a Justice of the Peace, to certify a true copy of a document, I have never done so without actually sighting the original of the document. [10] When requested, in my capacity as a Justice of the Peace, to witness the execution of documents, it is my standard practice to write my name, the letters "JP" and my Justice of the Peace registration number.
4. In cross-examination counsel for the appellants put to Mr Pang that the signatures were his and, as noted, his position was that he did not know whether they were his signatures as he had no recollection of signing the Loan Agreements. It was put to him directly that Mr Zhuang asked him to verify the signatures already on the agreements, and he denied this (reflecting, thus, his evidence as to his invariable practice). He accepted that he would have kept an electronic copy of the agreements if he had witnessed them. It was suggested to him that when he checked his log in September 2018 he found a copy of the agreements, which he denied. But none of the general evidence about his practice, just quoted, was challenged by the appellants.
5. Not only was that evidence not challenged, but her Honour made the following findings as to the credibility of Mr Pang: [151] … I considered Mr Pang to be a credible witness. Mr Pang did not attempt to argue his case and he did not overstate his evidence. The fact that an accountant or a Justice of the Peace may not remember all the documents he or she witnesses does not seem to me to be implausible. Further, I consider that the somewhat awkward nature of Mr Pang's position in relation to the signatures (i.e., his non-recollection of witnessing the signature but his denial, if he had done so, that he did so not in the presence of Ms Wang) was most likely a product of Mr Pang's evident concern not to overstate his evidence - and I accept that it has the hallmark of a witness attempting honestly and truthfully to give his best recollection of events. I also consider that Mr Pang's evidence as to the "log" he kept (and to having contacted Mr Zhuang) are corroborated by the contemporaneous email to Mr Tupou; and that the fact that his immediate reaction was to contact Mr Zhuang (to find out how his signature could appear on documents that Ms Wang denied signing) is more consistent with an innocent explanation on his part than a consciousness of guilt.
6. The finding that Mr Pang was a credible witness was not challenged.
7. Mr Pang's affidavit evidence as to his usual practice has threefold significance. In order of increasing importance, first, there is his evidence that when asked to witness the execution of a document as a justice of a peace his standard practice was to write "JP" and his registration number after his name. On the Loan Agreements that had not been done. That tends to suggest it was not him that signed them. It is conceivable that Mr Pang distinguished between witnessing an ordinary legal document as an ordinary person and acting as a justice of the peace. However, in context, the plain implication of the evidence quoted above is that he would have regarded being asked to witness execution of documents such as the Loan Agreements as involving exercise of his capacity as a justice of the peace. That proposition was not tested in cross-examination.
8. Secondly, his practice was to save electronic copies of important documents that he had witnessed and he had not done so for the Loan Agreements. His contemporaneous evidence to that effect was recorded in his email to Mr Tupou of 13 September 2018 which is quoted above at [14]. In contrast, as noted in that email, he had logged his certification of copies of identification documents for Mr Zhuang and Ms Wang. He had been asked to certify these copies in about February or March of 2017, some months after the Loan Agreements had been executed. It is worth noting that at the time of the 13 September email he had not been joined to the litigation and had no particular reason - at least prior to his phone call to Mr Zhuang - to be concerned that he had or had not witnessed either the Loan Agreements or the identification documents.
9. Thirdly, Mr Pang's evidence was he had never witnessed the execution of documents "without actually witnessing the person executing the document actually execute it". If this evidence is accepted then, in light of the finding that Ms Wang had not signed the agreements, it necessarily follows that he had not signed them either. As noted, the evidence was not challenged. Moreover, it is entirely plausible. To purport to witness documents without actually having done so would be dishonest and a breach of his duties as a justice of the peace: note eg Graham v Hall (2006) 67 NSWLR 135; [2006] NSWCA 208 at [85]-[92]. In this case, to falsely witness the signature of a client's spouse agreeing to act as a guarantor of loans could be acting as an accessory to fraud. A conclusion that Mr Pang acted in such a manner would not lightly be reached: note eg Gawne v Gawne [1979] 2 NSWLR 449 at 454 per Glass JA; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171; [1992] HCA 66. There is no evidence suggesting that Mr Pang had anything to gain by acting in such a manner. The fact that he had provided accountancy services to Mr Zhuang is a most implausible reason for so acting. There was nothing special about their relationship that suggests any such motive.
10. Mr Pang's usual practice was plausible, indeed expected; anything else would have involved significant wrongdoing and there was no evidence suggesting he was likely to act in such a way. His evidence of usual practice was not challenged. The primary judge found him to be a reliable witness, and this finding was not challenged on appeal.
11. These matters together place a very substantial, if not insurmountable, hurdle in the way of the appellants establishing that Mr Pang had in fact signed the Loan Agreements as a false witness of Ms Wang's signature.

Two mistakes in the judgment

1. In their written submissions, although to a much lesser extent in their oral submissions, the appellants placed significant weight on two statements in the primary judge's factual findings which they assert constitute "fundamental factual error" in the primary judge's factual conclusion: [278] … Ultimately, the telling evidence in my opinion is the email from Mr Pang to Mr Zhuang when confronted with the request for information as to Ms Wang's denials from Mr Tupou in September 2018. Mr Pang's inaction or lack of immediate response when confronted with Ms Wang's denials seems to me equally consistent with Mr Pang seeking to avoid involvement in a dispute not of his own making as with this displaying any consciousness of guilt. [279] Second, as to the conversation said to have taken place on 22 September 2016, I cannot confidently conclude that Mr Pang there made an admission as to having witnessed the signature (relevantly) of Ms Wang. I also place weight on the fact that neither Mr Tupou's contemporaneous file note created on 22 November 2016, nor Mr Tupou's email to Mr Lee of same date, provides any evidence that Mr Tupou asked Mr Pang whether he witnessed the signatures on the loan agreements; rather, both documents provide that Mr Pang confirmed his status as a justice of the peace.
2. The first mistake, in [278], was that there is no email in evidence from Mr Pang to Mr Zhuang in September 2018. The appellants submitted that: the most obvious explanation [for the error] is not that the Court was actually referring to another email exchange and simply confused the participants. The most oblivious [sic] explanation is that the Court, when it came to consider the competing facts, was genuinely confused as to the nature of the communications between the parties. It elevated an alleged conversation as between Mr Pang and Mr Zhuang (who was not called to give evidence) to a written communication.
3. As outlined above at [14]-[18], Mr Pang had said that there was a conversation between them in that month, which conversation was described in Mr Pang's email to Mr Tupou of 13 September 2018, and referred to again, more briefly, in his further email to Mr Tupou of 25 September 2018. It seems relatively clear that her Honour was referring to the conversation between Mr Pang and Mr Zhuang as recorded in the email to Mr Tupou of 13 September 2018 along, perhaps, with the email later in September. That understanding is consistent with what the primary judge said when she revisited the issue at [384]: "I consider that Mr Pang's email to Mr Tupou in September 2018 corroborates Mr Pang's account of his telephone conversation with Mr Zhuang as does his reference to the witness log". The suggestion that her Honour was completely confused and thought there was an email implicitly admitting fraudulent conduct from the person she found was the likely forger - a suggestion not made anywhere else in the judgment - is fanciful.
4. The second mistake, in [279], was that there was no relevant conversation on 22 September 2016. There was, however, a conversation between Mr Pang and Mr Tupou on 22 November 2016, which is discussed further below. Her Honour was plainly meaning to refer to that conversation, a point senior counsel for the appellants ended up conceding.
5. The two errors given so much emphasis by the appellants in their written submission were of the nature of typographical errors and were immaterial. In any event this Court's task in conducting a rehearing is to undertake its own real review of the evidence. That is the task being undertaken here.

Mr Tupou's recollection and the emails said to support this

1. On 18 November 2016 the signed Loan Agreements were delivered by Mr Zhuang to Mr Tupou at his office. Later that day Mr Tupou emailed Mr Zhuang saying he enclosed the signed contract, then saying: We would ask however; (1) That I could view 100 points of identification for both you and your wife; (2) To compare the signatures on the Contract with your identification (other than your passport, which I have); (3) Could also the witness - Oliver Pang please state his address and capacity as a witness for the signed signatures
2. On 21 November 2016 Mr Tupou emailed Mr Lee, his client, saying "I am just waiting on Peter and his wife to come into the office so I can view his 100 points of ID and have the witness properly identify his capacity as a witness". Mr Lee responded asking Mr Tupou to call Mr Lee to liaise with him. The next day, 22 November, Mr Tupou emailed Mr Lee to say "I have also called the witnesser of the Contract - Oliver Pang and he confirms that he is a justice of the peace". There is a file note by Mr Tupou dated that day which recorded that he had called Mr Pang who "confirmed that he is a JP/accountant". The file note also recorded that Mr Zhuang "seemed very dismissive about getting the contracts signed properly".
3. Mr Tupou gave evidence that he called Mr Pang on 22 November 2016 to ask him if he had witnessed the Loan Agreements, with Mr Pang saying that he had. Mr Pang had no recollection of the conversation. He said as much in his email of 25 September 2018, which is quoted above at [18]. Mr Tupou's version of events is supported by an email Mr Tupou sent to Mr Lee on 30 November 2016 which said, amongst other things, "[a]s discussed previously, I contacted the lenders accountant and he confirmed that he witnessed the signatures of both borrowers".
4. Mr Tupou's evidence about the conversation, as supported by the 30 November email, if accepted, would provide significant support for the appellants' claim that Mr Pang had indeed witnessed signing the Loan Agreements on 9 November 2016. It was also the basis of a distinct misleading conduct claim. But it may immediately be noted that the fact that Mr Pang had said he had done so was not recorded in Mr Tupou's file note taken on the day of the conversation. That is surprising given the obvious significance of the point. Further, Mr Tupou's emails to Mr Lee on 18 November, 21 November and 22 November all relevantly refer simply to having Mr Pang confirm the capacity in which he had acted as a witness.
5. The primary judge found that Mr Tupou was a truthful witness: J [153]. But she did not accept his evidence that Mr Pang had said on 22 November 2016 that he had witnessed the contracts. Her Honour noted that: the focus of Mr Tupou at the time seemed more to have been on the capacity in which Mr Pang had signed; this is a context where the precise words used in the conversation may matter, especially where Mr Pang's first language was not English; and human memory is frail: J [273] and [377]-[380]. Her Honour accepted that at least by 30 November 2016, when he sent his email to Mr Lee, Mr Tupou understood that Mr Pang had confirmed that he had witnessed the signing of the documents, but her Honour was "left in doubt as to whether that was an assumption or conclusion drawn by Mr Tupou or whether it was something actually stated by Mr Pang": J [379].
6. The appellants submit that her Honour erred in these conclusions, in particular by referring to the frailty of human memory when there was an almost contemporaneous email account of the conversation. I disagree. Her Honour's conclusion was correct.
7. The best evidence of what occurred in the conversation was the file note, which suggests that the focus of the inquiry was on whether Mr Pang was a justice of the peace and accountant. In cross-examination Mr Tupou accepted the obvious points that his memory on the day was in general better than his memory years later, and that he recorded the file note because he knew it is important to record what occurred in conversations close to the time that they occurred.
8. It might be thought odd that Mr Tupou would just ask Mr Pang about his capacities without asking about whether he had witnessed the Loan Agreements. But, as the primary judge noted, the contemporaneous documents indicate that the issue of capacity was his focus. It might also be thought odd that Mr Tupou would ring Mr Pang just to ask about his capacities without referring to the context in which it arose. But that does not mean it could not occur. And if the context was raised, much would depend on how it was explained. Mr Tupou might have referred broadly to loans that his client was making to Mr Zhuang's company. There are various reasons why the lender might wish to check that the borrower had a respectable accountant.
9. As to precisely what was said, without doubting that Mr Tupou was a witness of truth his evidence of the claimed conversation was not entitled to much weight. He claimed in cross-examination that he remembered the actual words spoken to Mr Pang on 22 November 2016. Yet Mr Tupou gave four slightly different accounts of the conversation he had with Mr Pang: 1. In an affidavit dated 13 September 2018, Mr Tupou deposed that "I contacted the witnesser, justice of the peace - Oliver Pang around November 2016 concerning him witnessing the documents and he responded that he did 'witness the documents'". 2. In an affidavit dated 18 April 2019, Mr Tupou deposed that he asked "I have this contract from Peter Zhuang did you witness it?", to which Mr Pang answered "Yes". Here Mr Tupou refers to the "contract" in the singular form rather than "documents". When cross-examined on the discrepancy between the affidavit of 13 September 2018 and 18 April 2019, Mr Tupou replied that he had "used the wrong word". 3. In an affidavit sworn 7 August 2020 - which was not read but was the subject of cross-examination - Mr Tupou said that he contacted Mr Pang who confirmed that he was the accountant for the first defendant, a Justice of the Peace and that he witnessed the signatures on the loan agreement (singular). 4. In an affidavit dated 1 March 2021, Mr Tupou deposed that he contacted Mr Pang by telephone and asked, "whether or not he … was the accountant for the defendants and whether he had witnessed the agreements", to which the respondent answered "Yes".
10. Three of these four versions do not involve Mr Pang saying he was a justice of the peace, despite the fact that that was the focus of the contemporaneous emails and the file note. Two of the four refer to a singular agreement. It is obvious that Mr Tupou did not have a precise recollection of what had been said in the conversation on 22 November 2016. As the primary judge said, in the current context the actual words used may have mattered.
11. Further, Mr Tupou in fact had given yet a further version of his interactions with Mr Pang. In his letter to Mr Pang of 18 September 2018, quoted above at [17], he said, twice, that Mr Pang had advised prior to the execution of the documents that he would witness them and subsequently advised that this had occurred. He thus seemed to claim that there had been two conversations, one before and one after execution. Yet Mr Tupou gave no evidence of any such prior conversation. The fact that his memory was so different nearly two years after the conversation undermines his claimed recollection of it some three years later still.
12. As for the 30 November 2016 email, as the primary judge explained, it may well be that in Mr Tupou's mind he had confirmed that Mr Pang had witnessed the documents simply by checking that Mr Pang was an accountant for Mr Zhuang and a justice of the peace.
13. Thus there was good reason not to accept Mr Tupou's evidence claiming that Mr Pang had told him he had witnessed the Loan Agreements. Mr Tupou's evidence, even taken with the other evidence on which the appellants relied, does not come close to meeting the persuasive threshold required in light of Mr Pang's evidence that was discussed above.

The expert evidence of Mr Hobden

1. Mr Hobden is a forensic handwriting analyst who was called by the appellants to provide evidence of the authenticity of Mr Pang's signature on the Loan Agreements. Mr Hobden concluded that there was "qualified support for the proposition that the questioned signatures … are genuine and were written by the writer of the specimen signatures". He accepted in cross-examination "qualified support" equated to "moderate support": noted J [158].
2. The primary judge explained at [160] that Mr Hobden identified two limitations to his conclusion. The first was that the specimen signatures of Mr Pang were not so complex as to prevent the "unlikely chance" of a "skilled forger copying the specimen signatures to a level of perfection as to render the forgeries undetectable". The second was that "[t]he examination of images [ie copies] instead of original ink signatures does not allow an examination of the line quality of the ink strokes used to write these signatures". Her Honour considered these limitations lessened the force of Mr Hobden's conclusion of qualified support: J [373]. She noted that to her eye Mr Pang's signature does not appear particularly complicated (which it does not), and observed that Mr Zhuang had possession of the documents for some eight days before they were provided to Mr Tupou, providing ample opportunity for forgery: J [374].
3. Her Honour referred at [167]-[169] to a further limitation of Mr Hobden's evidence which emerged in cross-examination. Mr Hobden's statement of methodology said that a "successful definite comparison is usually more likely to require a supply of specimen signatures from more than twelve separate dates/sittings rather than fewer" (emphasis in original). Here he had been supplied with specimens from only eight different occasions.
4. The appellants submitted that: The primary judge has failed to take into account at all, in the performance of her obligation to weigh up all of the evidence, the unopposed opinion of the appellants' handwriting expert, which she was not entitled to "sweep aside" by recording merely that in various respects, the evidence was the subject of acknowledged limitations. As McCallum J there observed [in a case cited] such an approach may amount to "lawyerly arrogance".
5. That is not a fair characterisation of her Honour's approach, which involved describing then weighing up Mr Hobden's view, taking account of its limitations, as part of the broader "mosaic" of evidence: see at J [157]-[172] and [372]-[385]. It is true that Mr Pang did not call his own handwriting expert. That fact does not elevate Mr Hobden's evidence above its limitations. And it should not be forgotten that it is hardly implausible that Mr Pang's signatures were not his given that the claim against him only arose on the basis that Ms Wang's signatures, on the same two documents, were forged. No error in her Honour's analysis or conclusion has been established.

Conclusions

1. For the reasons set out when addressing grounds 3-5, no Jones v Dunkel inference arises against Mr Pang for failing to call Mr Zhuang as a witness. Even if it did, that would still not suffice to make out the appellants' case. Mr Pang gave clear, unchallenged and entirely plausible evidence that he would not have signed the Loan Agreements in the way that was alleged. Persuasive evidence would have been required to make out the contrary proposition on the balance of probabilities. The appellants emphasised the need to take account of all of the evidence in reaching a conclusion. That is what her Honour did. The evidence on which the appellants focused in this appeal does not come close to establishing their case. The emphasis given by the appellants to two minor mistakes by her Honour was misguided. The evidence of Mr Tupou is entitled only to limited weight. The same is true of the evidence of Mr Hobden. Her Honour was correct to conclude that the appellants have not discharged their onus of proof.

Ground 6: Loss

1. The primary judge went on to consider whether the appellants had established any loss or damage on the assumption, contrary to her finding, that Mr Pang had falsely purported to witness Ms Wang executing the Loan Agreements and in that way engaged in misleading and negligent conduct. Her Honour concluded that the appellants had not established that they had relied on Mr Pang's representation and, further, even if they had it was not proved that they could have avoided their loss. The appellants challenge both points.
2. In light of my conclusions above it is not necessary to address these issues but, lest there be any doubt about those conclusions, it is appropriate to address at least the first aspect of causation (the appellants would have needed to overturn both of her Honour's conclusions on this issue in order to succeed). Her Honour labelled that first point an issue of reliance and addressed it as follows: [392] As to the issue of reliance, I am not persuaded that reliance is made out on the part of the plaintiffs in circumstances where the evidence of reliance comes relevantly only from Mr Tupou (and even if it were sufficient it would suffer from a difficulty in terms of causation since it is apparent that Mr Lee routinely did not act on Mr Tupou's recommendations). I accept that an agent's reliance may be sufficient to establish compensable loss, irrespective of whether the agent may have been careless or failed or comply with standard procedures (see Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liq) [2011] NSWCA 367 at [49]-[69] per Macfarlan JA with whom Campbell and Young JJA agreed). While a solicitor clearly falls into the realm of agency, not every aspect of a solicitor's role involves agency (see Gino Dal Pont, Law of Agency (2020, 4th ed, LexisNexis) at [1.39]). In this respect, Mr Lee's own evidence was that Mr Tupou was "just [his] solicitor and he's not a financial advisor" and as such rejected Mr Tupou's concerns about the transaction (T 65.43). This strongly suggests that the acts and state of mind of Mr Tupou did not govern and represent the state of mind of Mr Lee (or the plaintiffs, for that matter). Accordingly I am not satisfied that reliance is made out on an agency basis. Had reliance been made out, I would have accepted that in principle the plaintiffs lost an opportunity to take steps at an earlier time to protect their interests but I am not persuaded that this was an opportunity of any real value.
3. Mr Tupou had given evidence that if Mr Pang had told him on 22 November 2016 that he had not witnessed Ms Wang's signatures then he would have: advised Mr Lee; sought advice from counsel about the process of obtaining injunctive relief against Mr Zhuang and recovering the money loaned; and sought instructions from Mr Lee to seek urgent relief from a court to ascertain the location of the money and to seek freezing orders, along with orders restricting the disposal of the development property to which the loans related.
4. The appellants complained in their written submissions that "it was never put to Mr Lee that if he had been told the personal guarantee given by Ms Wang was worthless, he would have done nothing about it"; nor was it put to Mr Tupou that "if he had known that he would not have acted to secure his client's interests in accordance with his affidavit evidence"; and that Mr Pang had not pleaded "that the appellants would have done nothing even if they knew [that] Ms Wang's personal guarantee was worthless" (emphasis in original).
5. The appellants' arguments fail to recognise that they bore the onus of establishing causation. It was for them to prove the counterfactual, that is, what would have happened but for the misleading and negligent conduct. The evidence of Mr Tupou, on its own terms, did not do that. It set out what he would have done, including advice that he would have provided to his client Mr Lee. That evidence does not establish what Mr Lee would have done as the driving party on the side of the appellants once he received that advice. As her Honour indicated, Mr Lee's evidence simply did not address this topic.
6. Whatever might be the position in other matters, it cannot be assumed in this case that Mr Lee would have acted on Mr Tupou's advice. Mr Lee was not a man who acted cautiously as regards the loans. The loan money had been advanced a week before the Loan Agreements were executed. This was done even though Mr Lee's financial adviser, Mr Tusa, had repeatedly raised a series of concerns about the proposal: J [39]-[42]. There had been no credit check undertaken despite Mr Tusa's recommendation: J [59]-[60]. The situation was such that Mr Tupou himself obtained an indemnity from Mr Lee before agreeing to continue to act for him: J [48]-[49].
7. By way of illustration, the following exchange took place in Mr Lee's cross-examination: Q. You didn't have a written loan agreement, true? A. You mean prior to me giving him the money? Q. Yes? A. I didn't have it but he was agreed that he was going to give me and we had it after a few - after two weeks. Q. Your solicitor had raised with you concerns about the transaction sufficient to warrant him asking for an indemnity if it was to proceed, I think you've agreed with that? A. Yes. Q. You considered those concerns of your solicitor and you rejected those concerns too, didn't you? A. Because I see that he's just my solicitor and he's not a financial advisor, so. Q. Mr Lee, I want to suggest to you in your decision making, you didn't put any more weight on what Mr Tusa was telling you about the finances because of his apparent expertise in that area, did you? A. Yes. HER HONOUR: Q. Sorry, yes you're agreeing? A. Yes, I agree.
8. In this context no inference can be drawn that Mr Lee would have accepted Mr Tupou's advice. The appellants could readily have adduced direct evidence from Mr Lee to prove the counterfactual. They did not do so. The appellants have not discharged their burden of proof as regards what would likely have occurred but for the claimed misleading conduct and negligence. For this reason, too, their claim against Mr Pang must fail.

Conclusion

1. The appeal should be dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2023