Miles v Amos

Court of Appeal (NSW)|2021-08-24|Before: Meagher JA, Leeming JA, Brereton JA, Hallen J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

MEAGHER JA: I agree with the reasons of Leeming JA and the orders he proposes.
LEEMING JA: Mr Phillip Jacob Miles appeals as of right from the dismissal of his third amended statement of claim against Ms Catherine Gonzales Amos following a four day trial in the Equity Division in August and September 2020. The primary judge produced reasons for judgment of 547 paragraphs: Miles v Amos [2021] NSWSC 38. The notice of appeal includes no fewer than 49 grounds, plus a further ground related to costs and an application for leave to adduce further evidence. Mr Miles appeared for himself in this Court as he had at trial. However, the letterhead of his first correspondence with Mr Amos' solicitors describes him as "a very experience [sic] Litigant in the Court of Appeal, Federal Court and the High Court". That experience is not as a lawyer admitted to practise in any of those Courts or any other Australian court. The primary judge recorded Mr Miles' evidence that he "purchased debts and cases from other people" as his business and that he "run[s] those cases in [his] own name for profit". He was extremely familiar with the details of the evidence in this proceeding, giving a rapidly delivered address occupying some 3¼ hours.

The authenticity of Ms Amos' signature

Ms Amos's signature was purportedly on all six substantive pages of the Deed of Debt. It is found on the bottom of each substantive page (the front page is a coversheet) as well as in the execution clause reproduced above.
Ms Ong gave evidence (by audio visual link from the Philippines via an interpreter) that she saw Ms Amos sign the Deed on 22 May 2017 in Melbourne.
Ms Gonzales, the biological sister of Ms Amos (the two were raised in separate homes), also gave evidence (by audio visual link from the Philippines) that she saw Ms Amos sign the Deed, in Melbourne, on 22 May 2017. The primary judge recorded at [65] that Ms Gonzales was a trusted employee of Ms Ong, in fact her personal secretary.
Ms Amos accepted she was in Melbourne on 22 May 2017. She said (as did two witnesses called by her) that she spent most of that day in her hotel room, unwell. She denied ever signing the Deed.
Ms Amos relied upon two reports prepared by Ms Melanie Holt, a professional document examiner. No challenge was made to the ruling to admit both reports, after Mr Miles' objection (which was confined to the fact that the reports were not accompanied by an affidavit) was overruled.
When Ms Holt prepared her first report, she had only been provided with a copy of the 22 May 2017 Deed. She compared Ms Amos' signatures with at least 12 specimen signatures provided on original documents, and identified some 9 fundamental differences (enumerated in 9 subparagraphs in paragraph 14 of her report) between the signatures. They were the separation of the "C" and "a" formations, the design and shape of the "a" formation, the design, shape and fluency of the "th" formations, the baseline habits of the first name, the diacritic (the dot for the "i"), the ending of the signature (the end of the "s"), the absence of variations between the signatures on the Deed compared with the specimen signatures, the apparent absence of speed and fluency in the signatures on the Deed, as evidenced by the apparent "blunt endings" and the relatively poor line quality, and the apparent pen lifts and/or hesitations in unexpected areas in the questioned signatures. Ms Holt's conclusion in her first report was that there was "strong support" for the proposition that someone other than Ms Amos had written the six signatures on the Deed.
Ms Holt prepared a second report following an examination of the original deed. She said she compared the signatures on that deed with the photographic images Ms Holt had taken of the specimen signatures (she confirmed at the end of her cross-examination, in answer to a question asked by the primary judge, that she had not been provided with the original specimen signatures again). Her microscopic examination confirmed her opinion that the signatures on the Deed were "written in a slow and deliberate manner as well as displaying hesitations, blunt endings, poor line quality and pen lifts in unusual areas". She illustrated this with six very substantially blown up examples in her report, said to show "potential indicia of forgery". One (the letters "mos" at the end of her surname as appearing in the execution clause) was as follows:
Ms Holt's examination of the four signatures of the parties and witnesses on the execution page of the Deed led to her opinion that "inks with the same or very similar optical properties were used to write all four signatures contained on the document".
Ms Holt stated that the examination of the original allowed her to attain a higher level of conclusion: "I am now of the opinion that there is very strong support for the alternative hypothesis ie that someone else, other than the writer of the Catherine Amos specimen signatures (Items 2-10), wrote the questioned signatures on Item 1, compared to the first hypothesis that Ms Amos wrote the signatures on Item 1 in such a way as to disguise her signature or it was accidental."
Ms Holt explained that: "the observed differences noted between the questioned and specimen writing very strongly point towards the nominated signature being written by someone other than the writer of the specimen signatures within the limits of 'practical certainty.'"
Each of Ms Ong, Ms Gonzales, Ms Amos and Ms Holt was cross-examined before the primary judge (as were the two witnesses called by Ms Amos who had seen her that day in Melbourne who said she had been unwell). It was put to each of Ms Ong and Ms Gonzales that her evidence concerning the signing of the Deed by Ms Amos was a lie. Ms Amos' denial that she had done so was also challenged.

The finding of the primary judge concerning the authenticity of Ms Amos' signature

The primary judge proceeded on the basis that Ms Gonzales was seemingly an independent witness with no motive to lie, and that Ms Ong (the original assignor) likewise had no motive to lie, that the witnesses called by Ms Amos were related to events only by their pre-existing friendship and that Ms Amos was self-interested. His Honour noted that no forensic expert evidence was adduced by Mr Miles to contradict Ms Holt's opinions.
The primary judge stated that "at least some of the evidence of the three principal witnesses, namely Ms Ong, Ms Gonzales and the defendant must have been false": at [455]. That is to say, the acceptance of the evidence of Ms Ong and Ms Gonzales would amount to a finding of perjury by Ms Amos, and conversely the acceptance of the evidence of Ms Amos that she did not sign the Deed would amount to a finding of perjury by both Ms Ong and Ms Gonzales.
His Honour made neither finding. Rather, his Honour decided this issue - which was dispositive of the entire proceeding - on the basis of onus. His Honour said at [455] and [456]: "[455] … Determining which evidence is false, in all the circumstances, has proved to be impossible, even though the Defendant is plainly self-interested, and whilst Ms Ong and Ms Gonzales appear to have no apparent motive to lie, there is the complexity of the independent evidence of Mr Mepani and Mr Santiago as well as the expert evidence of Ms Holt, which is persuasive. Even by reference to, and analysis of, the evidence independent of the parties which is apt to cast light on the probabilities of the situation, I am unable to conclude, in circumstances where I am faced with a stark choice between irreconcilable accounts, that one version is more probable than the other. [456] Applying the evaluative and intuitive assessment that is recognised in this context, the evidence, overall, is not sufficient, applying Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and s 140 of the Evidence Act, to permit me to feel an 'actual persuasion' of the authenticity of the Defendant's signatures on the Deed of Debt. I am simply unable to be satisfied, one way or the other, to a state of actual conviction, by the evidence from either side as to the events of 22 May 2017, and whether the Deed of Debt was signed on that date, or at all, by the Defendant."
His Honour noted that the same stark choices did not apply to the other witnesses, including Mr Miles (whose involvement his Honour said appeared to have commenced in March 2018), and two witnesses called by Ms Amos. At [458] his Honour said: "As I am not satisfied that the Plaintiff has established that the Defendant signed the Deed of Debt, he cannot rely upon the assignment of the rights under that Deed to establish his case. Having come to these conclusions, the Plaintiff is unable to rely upon the Deed of Debt to prove his case. It follows that as Mr Baena had only purchased and taken all of Ms Ong's 'rights, title and interest over the above mentioned Deed of Debt', the assignment by Mr Baena to the Plaintiff could not be for more than that which had been assigned to Mr Baena by Ms Ong. It follows that the assignment to the Plaintiff could only be of all of Ms Ong's 'rights, title and interest over the above mentioned Deed of Debt.'"

Some matters bearing upon the authenticity of Ms Amos' signature

In addition to the diametrically opposed lay and opinion evidence summarised above, there are a number of aspects of the evidence which are difficult to reconcile. They include the following. 1. First, there is the date of the "Deed of Debt". It is very difficult to see how the "rd" in the date "22ndrd day of May" could have come to be inserted. The date is typed, and if the Deed were executed by the parties and witnesses on 22 May 2017 in accordance with their handwritten signatures and dates, the printed date must have existed prior to the execution. 2. To my mind, it is a remarkable fact that the assignment of debt executed some nine months later in the Philippines by Ms Ong to Mr Baena was expressed to have annexed to it the Deed of Debt stated to have been "duly executed in the State of New South Wales, Australia on the 23rd day of May 2017", thus: That is to say, the incorrect date on the assignment nine months later is similar to the incorrect superscripted "rd" after "22nd" on the Deed of Debt itself. How if presented with the original deed did the drafter of the assignment from Ms Ong to Mr Baena come to write "23rd day of May 2017"? 1. The Deed of Debt lists eight items of "jewelleries". It seems most unlikely that the Australian solicitors who, on Mr Miles' case, drafted the Deed on behalf of Ms Amos, would have used such a term. 2. Similarly, why would the debtor's solicitors draft a Deed which, by recital C (but not in any substantive clause) stated that the $40,000 transferred to her had been used to make mortgage repayments on land owned by her and therefore "the Debtor unconditionally and willingly accepts that the $40,000.00 created an equitable interest in the said real property until the debt plus interest is paid in full"? 3. The printed form of the Deed also identifies the witnesses Mr Sabas Capili and Ms Maricel Cruz Gonzales. How did the solicitor who, on Mr Miles' case, drafted it know in advance that those two individuals would be present?
That said, it may be acknowledged that a number of matters tended in favour of Mr Miles' case. They included the following. 1. If there was a fraudulent scheme, what advantage was there to Ms Ong and Ms Gonzales and (if he participated in it) Mr Baena, in circumstances where the whole of the benefit, so it would seem, rested with Mr Miles? Why would Ms Ong and Ms Gonzales lie? The latter had no apparent financial interest in the case. The former had apparently received $50,000 AUD almost three years prior to the hearing. In considering whether Mr Baena would be involved in some fraudulent scheme, it is to be borne in mind that he was a solicitor and likewise apparently had no financial interest in the outcome of the litigation. 2. There were contemporaneous exchanges on social media between Ms Ong and Ms Amos shortly prior to the date of the Deed of Debt concerning large amounts of cash and the provision of jewellery, including at least some items corresponding with those mentioned in the Deed. For example: 1. Ms Amos sent a text message to Ms Ong saying "oo pls dalhin mo madam yan na lang do 2.1 million yan ok" which was translated as "yes, please bring it, ma'am. Just bring the 2.1 million, okay". There were invoices in evidence, dated November and December 2017, indicating that two items of jewellery in the amounts of 1,265,000 and 891,660 (Philippine) pesos were supplied. (Interestingly, the latter invoice describes the goods as "jewelries"). 2. Ms Ong replied "Pa airport na ako dala ko 6.17ct" which was translated as "I'm about to go to the airport. I'm bringing 6.17ct".
It is conventional to refer to the principles concerning appellate deference to demeanour-based findings stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and Lee v Lee (2019) 266 CLR 192; [2019] HCA 28 in relation to actual findings of primary fact based or likely to have been based on the demeanour of the witness. The present case is remarkable in that the primary judge declined to make findings as to the primary facts, including the main issue in the case - whether Ms Amos signed the Deed of Debt. Nonetheless, his Honour's conclusion that he was not satisfied that Mr Miles had discharged the onus which he bore, in light of the competing documentary and testimony evidence which bore upon the point, is a conclusion which warrants just as much deference as a positive finding of fact one way or the other.
It is quite plain that his Honour brought to bear the competing considerations which were relevant to that primary question of fact. That is perhaps most evident by 14 subparagraphs at [448] which explore the relationship between the objective evidence and the inherent probabilities and the respective parties' cases (overlapping with some of the matters mentioned in [25] and [26] above). It is quite clear that they included his Honour's impressions of the credibility and reliability of witnesses all of whom were cross-examined before him (albeit via audio visual link). And it is quite clear that his Honour fully appreciated that at least one and perhaps two of the three women who gave evidence concerning the execution of the Deed was committing perjury.
The burden therefore fell to Mr Miles on appeal to establish appellable error in his Honour's findings, including his failure to be satisfied that Ms Amos had signed the deed.

Mr Miles' challenge to the evidence concerning Ms Amos' signature

As noted above, there are no fewer than 51 grounds of appeal. But the appeal must fail unless Mr Miles can establish error in the finding which the primary judge treated as dispositive, namely, his failure to be satisfied that Ms Amos had signed the Deed on which Mr Miles' case turned. Appreciating this, Mr Miles directed most of his oral submissions to an attack on that finding, commencing (appropriately) with Ms Holt's opinions.
It was put that Ms Holt's opinions should be devalued. Mr Miles observed that Ms Holt had been provided with relatively informal documents, rather than the most formal documents, namely, her driver's licence and passport. As Mr Miles put it, "The defendant did not give any reason as to why she did not provide her passport, driver licence which are of more value; instead she provide all these separate irrelevant documents ...". Mr Miles also emphasised, at some length, that Ms Holt had not been re-provided with original signatures when the time came to prepare her second report, and so she was unable to compare original specimen signatures with the original signatures on the Deed of Debt. For example, he maintained: "the expert failed to match the original questioned signatures on the original deed of debt to the original and questioned signature of the defendant's specimen; (2) dramatically, the expert failed to analyse the dates written next to the signature that is signed adjacent to the defendant's name on the signature panel in the deed, bearing in mind that the trial judge made his own findings that all the dates on the deeds were written differently. That is the trial judge finding. That is very fundamental. That alone should cause doubt on the validity of the expert's report. (3) The expert failed to include in any part of her report that she did not match the original questioned signature on the deed of debt to the original and questioned signature of the defendant's specimen. The fact that the expert does not have the opportunity any longer to do so, the only remedy to the problem is to reject the expert report."
These submissions are unpersuasive. The specimen signatures were provided on a wide range of documents, some of which were quite formal. They included a bank signature, a power of attorney, a withdrawal slip, and a property transfer document. Significantly, all those documents were dated 2015, so there could be no suggestion that the form of the signature was affected by the dispute concerning the Deed of Debt. Further, I would accept the submission made by Mr Folino-Gallo, who appeared for Ms Amos at trial and in this Court, that judicial notice can be taken of the fact that a signature on a passport or a drivers licence is an electronic image of a signature, rather than an original, and thus inapt for the comparison undertaken by Ms Holt.
Secondly, Ms Holt explained (in answer to questions asked by the primary judge) why she did not need the original specimen signatures again for the purposes of her second report. She had taken and retained high resolution photographs of the original specimen signatures when she prepared her first report. Indeed, her second report annexed some of those photographs. There is no evidence to which Mr Miles could point to suggest that there could be any difficulty in taking that course, which seems on its face unproblematic. If there was some difficulty, Mr Miles did not articulate it in submissions on appeal, and, more fundamentally, he did not raise it when cross-examining Ms Holt, even when he was given an opportunity to do so after it had been raised by the primary judge.
Contrary to Mr Miles' submission that the report should have been rejected, I see no reason to doubt her explanation that the high resolution photographs she had taken were sufficient. Even if that were not so, no such objection was made by Mr Miles at trial, no ground of appeal challenges the ruling admitting Ms Holt's report into evidence, and even if one did, it is too late to do so now.
Based on the submission reproduced above, Mr Miles continued: "At para 349 of the judgment, your Honours, his Honour found that, 'Relevantly, in par 14 of the first report, Ms Holt had identified nine different "fundamental differences observed between the questioned and specimen signatures" in terms of "letter design, construction, slope, shape, spatial relationships, baseline habits and apparent speed and fluency."' That finding is manifestly flawed and relevantly the finding is also said by Ms Holt, by the expert's own analysis and her evidence which is at transcript 2 September 2019 at para 226, line 15 to 50. That judgment, that finding is not consistent with that part of the oral evidence given by expert report which is at p 226, line 15 to 50."
But paragraph 349 accurately summarised the basis of Ms Holt's opinion, namely the numerous differences between the specimen signatures and those contained in the Deed of Debt. It is unexceptionable. Further, the transcript at p 226 lines 15-50 is Ms Amos' evidence that she signed two documents in June 2018, which is in no way inconsistent with Ms Holt's reports. It may be that Mr Miles provided an incorrect reference, but even so I am unaware of any evidence capable of undermining Ms Holt's reasoning.
Fundamentally, it is necessary to bear in mind that Ms Holt's strong conclusion of forgery was uncontested by any evidence adduced by Mr Miles, notwithstanding that Ms Holt's reports were dated 2 July 2018 and 18 April 2019, more than two years and one year respectively before the hearing. Against this, Mr Miles made the following submission: "The plaintiff did not see the need to waste money on the handwriting expert's report for the following reasons, your Honour. The defendant's biological sister was present when her own biological sister signed the deed. She saw how she did definitely answers to the questions were true to her and she answered clearly. She said: I was there; I saw it; she signed it; she came to me around lunch time, called me to the room."
But that is to say no more than something of which the primary judge was acutely conscious: one sister was not telling the truth. Nothing turns on the fact that the witness was Ms Amos' biological sister, as opposed to an unrelated person.
Mr Miles also submitted that Ms Holt's reports should have been excluded because they did not consider the Expert Witness Code of Conduct. While it is true that the code of conduct was not annexed, the reports referred to it explicitly and stated that she agreed to be bound by it. That complied with UCPR r 31.23 and Sch 7. More fundamentally, that submission was not made to the primary judge at the time the reports were tendered.
Mr Miles also made the very serious submission that Ms Holt's opinion had been tainted by the instructions given to her: "If I turn to … the first report that were prepared by Ms Melanie Holt, at para 1 of that report she said that the instruction to prepare the report was given to her by telephone conversation. My respectful submission is it is plausible that a specific instruction was given that the signature on the deed was not for the defendant. As a result, the expert's mind was already set."
No such submission was squarely put to Ms Holt when Mr Miles cross-examined her. It amounts to an invitation to the Court to find serious misconduct by either or both of the solicitor and expert. No basis for such a submission was identified in the evidence. The submission should not have been made. To be quite clear about it, the submission is baseless.
Pausing there, Ms Holt's reports provided a very large obstacle to the acceptance of Mr Miles' case. Ms Holt did not definitively exclude the possibility that Ms Amos had signed the Deed six times, but she provided powerful reasons to the effect that it was extremely unlikely that she could have done so. The reasoning extended not merely to the signatures not being Ms Amos' natural signature, but also that the signatures were not done by Ms Amos pretending to write a disguised signature.
The force of Ms Holt's opinions was not shaken in cross-examination (which occurred at pp 233-251 of the transcript).
First, it was put to her, and she agreed, that the use of alcohol, illness or drugs could affect a person's signature. A call was made for Ms Holt's record of any instructions from her solicitor, and a handwritten page of notes was produced. Following a series of questions directed to whether Ms Holt would include in her report an opinion that a signature was affected by alcohol, drugs or sickness, the trial judge intervened and asked whether in the event that indicia of such a condition were apparent, she would include this in her report, to which Ms Holt agreed.
Secondly, it was put to her, and she agreed, that her analysis focussed on four letters ("C", "A", "T" and "H") and that save for the loop formation in the concluding "S" her analysis was based on differences in those letters. There seems to have been an implicit criticism, albeit one not squarely put to the witness, that she had chosen only a minority of the letters comprising the signature.
Thirdly, she was asked what was meant by the reference in her report to "the indicia of forgery", and Ms Holt explained: "OK, so there's certain signs we, we look for in a simulated signature. So it's, it's actually explained in the footnotes. So I'm looking at things like slow and deliberate writing. I'm looking for pen lifts where I wouldn't expect a pen lift to occur. I'm looking for blunt endings, because that's showing me slowness of writing. I'm looking for lack of fluency. And I'm looking for subtle patches, retouching of the signature. So they're classic signs I look for in a simulated signature."
Fourthly, Ms Holt was asked how long she had known her instructing solicitor, or her solicitor's husband; she said she had no relationship aside from this matter. She was asked whether she had attended at Mr Miles' office with the police (to interpolate, Ms Amos had made a formal complaint of fraud after demand was made of her by Mr Miles). She denied doing so. What was said to be Mr Miles' concluding question elicited the admission that she could not be 100% certain that Ms Amos did not sign the deed. As much was obvious on the face of her reports.
After the primary judge confirmed that if Ms Amos had been feeling unwell that would not affect any of her conclusions, Mr Miles was permitted to cross-examine further including on unrelated topics. Ms Holt gave a long answer, referring to aspects of her reasoning which have been reproduced above, and explaining why she could be confident that the signatures on the Deed were written by someone other than the specimen signatures, and not by the true author trying to disguise her signature.
The primary judge then put to Ms Holt the following questions: "Q. Could I ask you this then? If one were to accept that two people actually observed the defendant sign the original deed of debt, is there any way of explaining your observations set out in paragraph 14 of your first affidavit, which were confirmed in paragraph 5 of your second affidavit? A. Yeah, as I was saying, the signature just doesn't fit with Ms Amos changing her signature, because, as I was saying it would mean that she would have to disregard so many of her ingrained motor habits, firstly, and then, secondly, introduce signs of forgery, which - or signs of simulation which I think would be very, very difficult to do and then repeat that. So - Q. And why repeat it? A. Well, she signed it six times I think, didn't she? So, you know, to, to then each instance of signing remember what she changed, remember to fight against all her very subtle signature movements and then at the same time introduce signs that a document examiner, if it was to go to that point, knows what a simulated signature will usually contain, so, again, as I saw I mean whilst not impossible, I think it would be very, very difficult to, to pull all those steps off."
The acceptance of Mr Miles' case would involve the rejection of essentially unchallenged expert evidence, inherently plausible on its face, or else acceptance of the very slight possibility, acknowledged by Ms Holt, that despite very strong considerations favouring the signature not being that of Ms Amos, it was in fact her signature. The significance of that evidence was very clear to the primary judge. It was evidently a powerful reason not to accept that Mr Miles had made out an essential part of his case.
I do not accept any of Mr Miles' submissions which seek to undermine the weight given to Ms Holt's opinions as to the authenticity of Ms Amos' signatures on the Deed of Debt.

Other submissions advanced by Mr Miles

The balance of Mr Miles' written and oral submissions were directed to other aspects of the case. In circumstances where the failure to be satisfied that Ms Amos signed the Deed was dispositive of the whole proceeding, it is not necessary to summarise them in the same detail, and what follows is intended to be illustrative rather than comprehensive. Those mentioned below have been chosen by reference to those to which Mr Miles gave greatest prominence in his oral address.
Mr Miles maintained that "jewelleries" (the term which appears in the deed) was a plural form in regular use in Australia. "There are thousands of English speaking lawyers in Australia who will no doubt use the plural jewelleries on a specific [occasion]. ... now jewellery can be countable or uncountable. In more general commonly used context the plural form would also be jewellery. However, in more specific context it cannot be said that some English speaking lawyers in Australia will not use the plural form jewelleries. For example, in references to in respect of jewelleries or a collection of jewelleries as was in instant case, where the drafter must account for numerous different types of jewellery and different description and the value."
I cannot agree. It may be noted that Ms Ong's affidavit of 14 June 2019, which stated that it had been prepared for Mr Miles, had Ms Ong saying, repeatedly, "jewelleries" (paragraphs 8(b), 10, 11 and 12); indeed, the conventional collective plural is never used. An affidavit of Ms Gonzales sworn in the Philippines on 20 June 2017 refers, consistently, to "jewelries" (paragraphs 5, 6 and 9). It may be natural for a native Filipino speaker to pluralise more than one item of jewellery, but there is no evidence that Australian lawyers would do so and it is far from being something of which judicial notice could be taken.
Mr Miles pointed to the way in which the evidence of Ms Amos' witnesses could be reconciled with her signing the Deed. He submitted that their evidence that Ms Amos spent most of the day resting in her hotel room was consistent with her being in that room when Ms Ong, her sister and Mr Capili called upon her. That is correct, but it does not much advance discharging Mr Miles' burden of showing appellable error in his Honour's failure to be satisfied that Ms Amos had signed the deed.
Mr Miles emphasised that he had two witnesses with no motive to lie, one of whom was Ms Amos' biological elder sister, while only one witness - Ms Amos herself - supported her contention that she never signed the document. He submitted, correctly, that the other lay witnesses called by Ms Amos could not preclude her signing the Deed of Debt at some time on 22 May 2017. But the days when litigants would win or lose based merely on the number of oath-helpers they could secure have long since passed.
A deal of submissions were directed to evidence in affidavits made by Ms Ong and Ms Gonzales to the effect that when Ms Amos signed the deed, she was wearing a pink lady's glove. In order to put this in context, it is necessary to refer to aspects of the procedural history of the litigation. The proceedings progressed slowly. No affidavits had been served before a subpoena had issued to the NSW Police, requiring production of extracts from the NSW Police Exhibits Forensic Information Miscellaneous Property System. It seems that as part of the criminal investigation, police had undertaken a forensic examination of the Deed of Debt. Mr Miles applied to have the subpoena set aside. His application was dismissed in April 2019. However, production in response to the subpoena did not take place prior to 5 November 2018 (which is the date of the letter supplied by NSW Police). That letter recorded that the forensic examination disclosed that the while some 30 sets of fingerprints had been located on the Deed of Debt, none were identified as those of Ms Amos. In the meantime, prior to production, Ms Ong and Ms Gonzales served affidavits deposing to their recollection that Ms Amos when she executed the Deed of Debt was wearing pink gloves.
The primary judge mentioned this evidence at [289], and then dwelt upon it at [448], identifying issues which he was unable to resolve as follows: "(8) Why was evidence given that the Defendant was wearing 'a pinky [sic] lady's fashionable hand glove' when she was said to have signed the Deed of Debt? Was the plan so cleverly devised, that the evidence relied upon by the Plaintiff, included that evidence, or was that evidence included after it became apparent that the Defendant's fingerprints would not likely be found if forensic examination of the document occurred? (9) Alternatively, was the Defendant so forward thinking in her planning, that at the time she signed the Deed of Debt, she wore 'a pinky [sic] lady's fashionable hand glove' so that if the Deed of Debt were forensically examined for fingerprints, hers would not appear on it?"
Mr Miles said that this reasoning demonstrated "unreasonable suspicion". He said: "This is an unreasonable suspicion, your Honour, as there were clear evidence before his Honour that contrary to this suspicion in a transcript of 1 September 2019, p 89, line 50, at p 90, line 5, at p 91, line 20 to 30, this was the first time Ms Ong give evidence. Clearly, your Honour, she said, this was the first time she came to Australia and the first time ever Ms Ong gave her evidence directly and continuously, without any hesitation, Ms Ong said that, this is what she said, she said that the respondent was wearing pink glove, because it was very cold. That's were her exact answer. She didn't say, when counsel for the defendant threw the question on her he say, he say, you only put in a pink glove because you saw the handwritten expert report. She denies seeing the report, she had never saw the report. She answer clearly, she say, it was my first time in Australia, my first time in Melbourne, she were wearing a glove because it was cold, and now if you look at that date, your Honour, we will all agree that that is a very cold period in Melbourne, May is the winter period, so it is consistent with the evidence Ms Ong gave, and Ms Ong gave because she did not say I mean if she was lying, she would've said no, she were wearing the glove, that's what happened. She said the respondent was wearing a pinky glove because it was cold."
I disagree. It was not an unreasonable suspicion to explore how the evidence concerning Ms Amos wearing a glove emerged at a time when it was clear that the police would be producing a document which would show the results of their fingerprint analysis of the document. The fact that police had conducted a forensic examination of the Deed of Debt was presumably known or at least inferred by the lawyers acting for Ms Amos when they issued the subpoena (and would have been based on instructions from their client that she had consented to be fingerprinted). Mr Miles may not have known this, but it could readily be inferred from the terms of the subpoena (it is unclear whether police disclosed to him either the fact that they were conducting forensic tests or their outcome in the course of their investigation). The primary judge did not resolve the point, nor was it necessary for his Honour to do so. There was no error in his Honour demonstrating, transparently on the face of his reasoning, how he was seeking to reconcile the objective evidence insofar as it bore upon the ultimate issue before him.
Mr Miles sought to take advantage of the fact that the Deed contained clauses contrary to the interest of the debtor, such as those purportedly giving rise to a caveatable interest. His submission was to the effect that this was done by Ms Amos' solicitor in order to ensure that Ms Ong would have no difficulty executing the deed ("the person preparing it would have been so careful to ensure that there is no reason to question the deed of debt ... it was the defendants that prepared the deed and included those admissions to please the assignor because the defendant was conscious of how deep the assignor was hurt"). That strikes me as quite improbable, but even if I am wrong about that, it was merely one consideration bearing upon the primary judge's failure to be satisfied. It is a consideration of far less weight than the direct evidence of Ms Ong, Ms Gonzales, Ms Amos and Ms Holt.
Mr Miles made submissions concerning a document dated 17 June 2019 entitled "Rectification of the 'Assignment of Debt' dated 6 March 2018". The primary judge collected and applied principles concerning rectification in equity to that document. Although the word "rectification" was deployed in the title of the document, it appears to have been a formal step taken by Mr Miles and Mr Baena to restate their bargain, which did not attract the principles of rectification in equity. But nothing turns on this point. To reiterate, Mr Miles must fail unless there was appellable error in the primary judge failing to be satisfied that Ms Amos signed the deed.
Mr Miles also submitted that Ms Holt's opinion was not expressed to be beyond all doubt. That is perfectly correct. But for the reasons already expressed, it does not demonstrate error by the primary judge in failing to be satisfied that Ms Holt's opinion was incorrect.

Miscellaneous matters

Mr Miles sought to adduce additional evidence, namely, a sound recording of part of the evidence, which he had obtained pursuant to a direction made by the primary judge, in order to correct one part of the transcript. The sound recording was provided to the Court after the hearing. I have listened to the relevant passage, repeatedly. I conclude that Mr Miles is completely correct. The transcript at T122.10-17 (within the cross-examination of Ms Gonzales) should be corrected as follows: "Q. I'm suggesting to you that - well, I withdraw that. Do you know who prepared the deed? A. It was Matthew Cathy. Q. Are you saying Matthew Cathy prepared the deed? A. Yes, because of I was busy doing the laundry of her clothes upstairs. I wasn't the one who (not transcribable) I was the only one there with her at the time. And then she came from the shopping, she bought a lot of her shopping things."
Nothing turns on this. It is simply a further example of the conflict in evidence which confronted the primary judge in resolving the litigation.
I also note, for completeness, that Mr Miles confirmed, at the outset of the hearing (transcript 24 August 2021, p 2), that he had no objection to my participation in his appeal, although I had years before determined another matter involving him, at a time when he was known as Mr Jamal Charara: ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209; [2014] NSWCA 402.

Separate challenge to the costs order

Finally, and separately from the above, Mr Miles contended that even if all other grounds failed, the costs discretion had miscarried. The primary judge had ordered Mr Miles to pay the defendant's costs. His Honour did not separately call on the parties for submissions as to costs. Mr Miles of course had the right to apply within 14 days to be heard as to the costs order, in accordance with UCPR r 36.16. He did not avail himself of that opportunity.
The basis of this ground was that Ms Amos had advanced a claim that she had lent money to Ms Ong, who had not repaid it, and at the end of the trial that claim was withdrawn. Indeed, her counsel said it should never have been made. That said, while this occupied a significant amount of time at trial, there was no cross-claim.
Mr Miles submitted: "I ask your Honours to look at the defendant's evidence. All the evidence before the Court below, almost the vast part of the evidence was dealing with my cross claim. It took me a considerable amount of days and time and, very importantly, the last day, in his Honour's judgment his Honour even made reference to that, that the defendant had taken the whole day. So under no circumstances he put when he had two conflicting claims and found against both of them and order one person to pay costs. It cannot be right. Because the judge did not feel the need to call upon the parties to address the issue of costs that would have been the reason why his Honour made cost order against me, but it was not his Honour's intention. My respectful submission is this. It was not his Honour's intention to order costs against the plaintiff alone, no. It was his Honour's intention to apportion the costs, bearing in mind that the time spent was equally divided to both parties."
It might have been open to the trial judge to depart from the usual order as to costs, if indeed Ms Amos' claim had been discrete and substantial. Doing the best I can from a review of the transcript, I see no reason why it would not have been within a proper exercise of the discretion to order, say, that Mr Miles pay 80% or 90% of the costs of the proceedings. Mr Miles could have made submissions about costs at the end of the trial. For example, he could easily have flagged an intention to apply for a special costs order relating to Ms Amos' claim after it had been withdrawn. He could also have made application after judgment had been delivered. He did none of those things.
This is an appeal, not an application at first instance. In circumstances where his Honour was not asked to make any special order as to costs, there was no error in the order which was made.

Conclusion and orders

For those reasons, the appeal must be dismissed. There is no reason for costs not to follow the event. The order requiring the removal of Mr Miles' caveat on Ms Amos' land was stayed on 9 February 2021 by the primary judge pending appeal. That stay should be discharged. The result is that Mr Miles must cause the caveat to be removed within 7 days of today.
I propose the following formal orders:
Appeal dismissed with costs.
Discharge the stay ordered on 9 February 2021 of order 2 made on 3 February 2021.
BRERETON JA: I agree with Leeming JA.

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: 10 September 2021

At a glance

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Judgment (11 paragraphs)

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Cases Cited (9)