Miles v Amos

Catchwords

[2007] HCA 10 Adami v The Queen (1959) 108 CLR 605[1959] HCA 70 Anning v Anning (1907) 4 CLR 1049[2019] NSWCA 199 Ballard v Multiplex [2012] NSWSC 426 Brannigan v Smith (2017) 18 BPR 37,193[2017] NSWSC 1201 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 Browne v Dunn (1893) 6 R (HL) 676 ER 67 Burnside v Mulgrew[2000] FCA 44 Elfic Ltd v Macks [2003] 2 Qd R 125[2001] QCA 219 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498[2012] HCA 7 EWC Payments Pty Ltd v Commonwealth Bank of Australia [2014] VSC 207 Ex parte Dally-Watkins[2010] FCA 67 Holt v Heatherfield Trust Ltd [1942] 2 KB 1 Honeysett v The Queen (2014) 253 CLR 122[2014] HCA 29 In Re H (Minors) [1996] AC 563 In the matter of Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233[2014] NSWSC 789 Jeans v Cleary [2006] NSWSC 647 Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8 Mateljan v HTT Huntley Heritage Pty Ltd (2016) 111 ACSR 277[2015] UKPC 9 Porter v Bonarrigo [2009] VSC 500 Poulton v The Commonwealth (1953) 89 CLR 540

Judgment (29 paragraphs)

[1]

ty Limited (2006) 229 CLR 386; [2006] HCA 41 Charara v City First Holdings Ltd [2017] NSWDC 448 Charara v Commissioner of Taxation [2016] FCA 451 Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42 Coles v Reynolds & Anor [2020] EWHC 2151 Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 Consolidated Trust Company Limited v Naylor (1936) 55 CLR 423; [1936] HCA 33 Craig v Silverbrook [2013] NSWSC 1687 Cushing v The Lady Barkly Gold Mining Company Registered (1883) 9 VLR (E) 108 Davie v Magistrates of Edinburgh 1953 SC 34 Davis v Commissioner of Taxation (2000) 171 ALR 654; [2000] FCA 44 Elfic Ltd v Macks [2003] 2 Qd R 125; [2001] QCA 219 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 EWC Payments Pty Ltd v Commonwealth Bank of Australia [2014] VSC 207 Ex parte Dally-Watkins; Re Wilson (1955) 72 WN (NSW) 454 Fiona Trust & Holding Corporation v Privalov [2010] EWHC 3199 (Comm) Gawne v Gawne [1979] 2 NSWLR 449 Goodridge v Macquarie Bank Limited (2010) 265 ALR 170; [2010] FCA 67 Holt v Heatherfield Trust Ltd [1942] 2 KB 1 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 In Re H (Minors) [1996] AC 563 In the matter of Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789 Jeans v Cleary [2006] NSWSC 647 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Mateljan v HTT Huntley Heritage Pty Ltd (2016) 111 ACSR 277; [2016] NSWCA 20 McGlen-McLeod v Galloway [2012] NSWCA 368 Mearns v Australian Litigation Fund Pty Ltd [2006] FCAFC 81 Monk v Australia and New Zealand Bank Group Ltd (1994) 34 NSWLR 148 National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Nina Kung v Wang Din Shin [2005] HKCFA 54 Onassis v Vergottis [1968] 2 Lloyd's Rep 403 Pora v The Queen [2016] 1 NZLR 277; [2015] UKPC 9 Porter v Bonarrigo [2009] VSC 500 Poulton v The Commonwealth (1953) 89 CLR 540; [1953] HCA 101 Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr [2005] NSWCA 240 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Queenfield Pty Ltd v Gordon Finance Pty Ltd [2020] VSCA 282 R on the application of SS (Sri Lanka) v The Secretary of State for the Home Department [2018] EWCA Civ 1391 R v Browne-Kerr [1990] VR 78 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11 South Australia v McKendrick Ahern Pty Ltd (Supreme Court (SA), 9 December 1997, unrep) Telfer v Telfer (2014) 87 NSWLR 176; [2014] NSWCA 186 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Trendtex Trading Corporation v Credit Suisse [1982] AC 679 Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Watson v Foxman (1995) 49 NSWLR 315 West v Government Insurance Office of New South Wales (1981) 148 CLR 62; [1981] HCA 38 WorkCover Queensland v Amaca Pty Limited [2013] 2 Qd R 276; [2012] QCA 240 Texts Cited: David Malcolm, "To Wig or be Damned" (1988) 15(7) Brief at 8 Hodge M Malek QC (ed), Phipson on Evidence (19th ed, 2018, Sweet & Maxwell) J D Heydon, Cross on Evidence (2020, LexisNexis) J D Heydon, M J Leeming, P G Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) Michael V Argyle QC, Phipson on Evidence (10th ed, 1963, Sweet & Maxwell) Category: Principal judgment Parties: Phillip Jacob Miles (Plaintiff) Catherine Gonzales Amos (Defendant) Representation: Counsel: Plaintiff (self-represented) P Folino-Gallo (Defendant)

[2]

Solicitors: Plaintiff (self-represented) Coleman Greig Lawyers (Defendant) File Number(s): 2018/00185934

[3]

Introduction

HIS HONOUR: Despite a host of factual, and other, disagreements, there can be no dispute that this is an unusual case. On some of the fundamental facts, there are serious difficulties standing in the way of the acceptance of the evidence of the principal witnesses. At almost every level, the competing positions of those witnesses cannot be reconciled. Determining where the truth lies and which version of the facts is the more convincing, has been much more difficult than one might expect, given that the only witness on the facts in dispute, who was plainly self-interested, was the Defendant. The other witnesses, on each side, appeared to have no apparent motive to give untruthful evidence, and each had no apparent financial interest in the outcome of the case. Nor was her, or his, evidence, undermined, in such a way, as to make it clear that she, or he, was being mendacious. There was the added complexity of the uncontested expert forensic evidence which supports the Defendant's case. In order to explain, one must descend into the detail of the evidence.
Yet, it is not necessary to decide every point that has been advanced in order to determine the issues. Indeed, it is impossible to do so, although the nature of the factual disputes must be set out. It is only necessary to decide whether the matters relied upon by each of the parties, respectively, are supported, and, if they are, whether they warrant the relief sought.
As was recently written in Coles v Reynolds & Anor [2020] EWHC 2151 (Ch), by Matthews HHJ, at [26]: "…judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence. Expressed findings are always surrounded by a penumbra of imprecision which may still play an important part in the judge's overall evaluation."
Even so, the process has, resulted in an over-long judgment and one in which detailed references to the evidence have been necessary.

[4]

The nature of the proceedings

The proceedings involve a claim made by the Plaintiff, Phillip Jacob Miles, against the Defendant, Catherine Gonzales Amos, pursuant to what is said to have been a valid assignment of debt owed but unpaid, which includes the value of jewellery, said to have been retained by, the Defendant.
Two other principal participants in the proceedings, although each is not a party, are Cristina Yu Ong (Ms Ong), who is, and who was at all material times, a Philippine national, and who is said to have assigned the debt (and chose in action) to the other participant, Thomas Baena (also known as Tom), a solicitor, who, in turn, is said to have assigned the debt (and chose in action) to the Plaintiff. Each was one of the witnesses called by the Plaintiff in the proceedings. The amount of the claim, as asserted in the third amended Statement of Claim filed by the Plaintiff, was $305,334, plus interest, filing and service fees.
For reasons to which I shall later refer, the Defendant's broad submission was that the Plaintiff's claim should be dismissed with costs. In broad summary, as she put it, "I do not have the jewellery. I do not [owe] money to Cristina Ong and … she is the one who owed money to me. That has not been settled": Tcpt, 3 September 2020, p 290(31-32).
Thus, the central conflicts of evidence concerned whether the Defendant signed a written Deed of Debt and whether she had retained the jewellery which she acknowledged that she had received but which she said she had returned.
The Plaintiff is a litigant in person. Although not a lawyer, it was clear, from his conduct of the proceedings, that he has some experience in conducting litigation and appearing in Court. In addition, according to what he said at a directions hearing held on 4 August 2020 (Tcpt, 4 August 2020, p 2(16-20)), and at the hearing, he has sought, and obtained, legal advice, in relation to the conduct of the proceedings.
Whilst the Court suggested to the Plaintiff, more than once prior to the hearing, that he should be legally represented at the final hearing, the Court accepted, in view of the fundamental right of a litigant to appear in person, enshrined in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.1(1), he could continue without legal representation. He did not suggest that he required the assistance of the Court to explain matters of procedure or applicable rules. He seemed to be well aware that the Court's duty was not to advise him of how to conduct his case; or to advise him of how his rights should be exercised; or to advise him as to any inadequacies in his evidence, having regard to the pleaded case; or to become his advocate, or stand in the shoes of legal representatives had they been retained; and that the Court would not unduly interfere with the conduct of the trial on his behalf.

[5]

The Plaintiff's Case

In the third amended Statement of Claim, the Plaintiff sought the following relief: "1. Order that until further order by the Court, caveat number AN171777, be extended pursuant to section 74K of the Real Property Act 1900 (NSW). 2. Judgment for the Plaintiff in the amount of $420,240.76. 3. Order that, the defendant pays the plaintiff's cost on an indemnity basis or as the Court thinks fit. 4. The caveat number AN171777 be extended over the defendant's interest in the real property at (Folio: XXXX/YYYYYYY) until the judgment is satisfied or until further order by the Court. Amount of claim $305,334.00 Interest $113,612.76 Filing fees $1,144.00 Service fees $150.00 TOTAL $420,240.76"
In summary, the Plaintiff sought recovery of a debt said to be owed by the Defendant. The Plaintiff, however, brought his claim as the second assignee of the debt. The underlying transaction said to have given rise to the debt was one between Ms Ong and the Defendant.
On the Plaintiff's case, Ms Ong and the Defendant had entered into a contract (partly oral) to the effect that the Defendant would purchase land in Tasmania in Ms Ong's name and would arrange for the construction of a building on that land. In consideration, Ms Ong would, initially, pay $40,000 to the Defendant in cash, and would pay the balance, $265,334, by giving her jewellery said to be of that value. Ms Ong had paid the Defendant in accordance with the agreement. However, the Defendant had failed to purchase the land in Ms Ong's name, and had failed to construct any building upon it, and that, in consequence of the failure to uphold the terms of the agreement, those parties had entered into a Deed of Debt on 22 May 2017. A copy of the Deed of Debt was found in Ex P1/4-10.
The original of the Deed of Debt, immediately prior to the hearing, had been in the possession of the Plaintiff: Tcpt, 1 September 2020, p 97(09-30). It was not produced to the Court until 1 September 2020 and it was then marked Ex P2. The original, as tendered, did not have any photographs annexed to it. In re-examination, Ms Ong stated that when she had signed the original Deed, there were eight photographs attached to it: Tcpt, 1 September 2020, p 103(38) - p 104(17). She gave evidence that prior to the preparation and signing of the Deed, she had handed the photographs to Ms Gonzales to give to the Defendant: Tcpt, 1 September 2020, p 107(23-42). Ms Gonzales gave similar evidence at Tcpt, 1 September 2020, p 121(40) - p 121(50).

[6]

The Defendant's Case

The Defendant, in her amended Defence, denied some of the allegations in the third amended Statement of Claim. In respect of the alleged contract between her and Ms Ong, however, she admitted that there was an agreement by which the Defendant would purchase property in Tasmania on behalf of Ms Ong. She asserted, however, that the agreement was wholly oral and was made in, or about, November 2016 using the communication app "Viber". The terms of that agreement were, relevantly: 1. The Defendant would purchase four parcels of real property in Tasmania, at her own discretion, and in her personal name; 2. The Defendant, initially, would pay for all costs and expenses associated with each of the purchases; 3. The Defendant and Ms Ong would take all necessary steps to transfer the title to the properties purchased from the Defendant to Ms Ong or her nominee; 4. Ms Ong would pay the Defendant, in Australian dollars, the costs and expenses associated with the purchase and transfer of the properties purchased; 5. After the transfer, Ms Ong would engage the Defendant to manage the properties in Tasmania, including to oversee any construction of buildings thereupon; and 6. Ms Ong would pay the Defendant, in Australian dollars, for all expenses incurred in relation to the management of the properties.
The Defendant denied that it was a term of the agreement that, initially, $40,000 of the purchase price would be paid in cash. She also denied that it was a term that the balance of the purchase price would be paid in jewellery.
The Defendant admitted to receiving a payment of $19,980 from Ms Ong on about 16 November 2016: Ex P1/11. However, she characterised the payment as being one to demonstrate good will, made to assure the Defendant that Ms Ong would comply with her obligations under the agreement. The Defendant gave a similar characterisation to a second payment of $19,980 received on 27 March 2017: Ex P1/12. (The difference between the amount received and $20,000, in each case, are likely to have been bank charges.) Accordingly, she denied that either of the payments of $19,980 was made pursuant to the terms of any agreement between her and Ms Ong.
The Defendant asserted that, shortly after the November 2016 payment was received, Ms Ong instructed her to use the funds that had been transmitted to purchase certain luxury items for her, which the Defendant says that she did. She stated that Ms Ong promised to transfer further funds to reimburse her for the balance of the costs of the items purchased.

[7]

The Dramatis Personae

I shall next refer to the parties and the witnesses.
The Plaintiff is a director of a number of businesses including PJM Litigation and Debt Management Pty Ltd. In his first affidavit, he described himself as a "litigation manager", and in his last affidavit as a "businessman". He stated that he was not a lawyer. However, when asked in cross-examination, he also stated that he had obtained a law degree from the University of Liberia in the 1980's, although he could not remember when, precisely, he had obtained a degree. (Liberia is a country on the West African coast.)
In Ex D4, which was a copy of a document obtained from the company's website, the Plaintiff was described as having "attended law school in Australia and was licensed by the Court and subsequently issued with a master licence". The document did not identify the law school that the Plaintiff had attended or when he had attended the law school.
When asked about the licence to which the document referred, he stated, at Tcpt, 2 September 2020, p 150(45-47), that he "was licensed by the Local Court of New South Wales to carry out commercial services, commercial agent services". It was put to him that the statement in the document was one designed to mislead, which, somewhat disingenuously, he denied.
In Ex. D4, the Plaintiff, whether incorrectly or not, was also said to have "over 20 years' knowledge and practical experience in the law and Court procedures and has conducted litigation in the Local Court, District Court, Supreme Court, the Administrative Tribunals of Australia, the Federal Court and the High Court, as he conducts his cases". No examples of cases in which he had appeared, in any of these Courts, were given.
Finally, the Plaintiff was cross-examined, and he admitted, that in other proceedings, in which he had been a party, he had been identified as "Jamal Charara". The proceedings were referred to with the medium neutral citation Charara v City First Holdings Ltd [2017] NSWDC 448.
(Although there is also a decision of the Federal Court in Charara v Commissioner of Taxation [2016] FCA 451, referred to, involving "Jamal Charara" as the applicant, I do not draw any conclusion from this case because the hearing occurred on 30 July 2015 even though the date of the reasons for judgment was 29 April 2016.)

[8]

Some general legal principles

Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. Generally speaking, the person who asserts something bears the burden of proving it. Importantly, if the person who bears the burden of proof of a particular matter satisfies the court, after considering the material that has been placed before it, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then, for those purposes, it did not happen.
In Purkess v Crittenden (1965) 114 CLR 164 at 167-168; [1965] HCA 34 at [4], Barwick CJ, Kitto and Taylor JJ (Windeyer J agreeing) referred to two distinct meanings of the expression "burden" or "onus" of proof, quoting Phipson on Evidence (10th ed, 1963, Sweet & Maxwell) at par 92: "(1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence." (emphasis in original)
At 168, their Honours again approved the statement from Phipson on Evidence, at par 95: "the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates."
The burden in the first sense, is often described as the legal, or the persuasive, burden. The second is described as the evidential burden. Before an evidential onus shifts from a plaintiff, the plaintiff must have adduced enough evidence for the court to infer, if that evidence was accepted by the court and was the only evidence on that topic in the case, that the proposition concerning which the plaintiff had the onus of proof was more likely than not true. Then, the onus of adducing evidence shifted to the defendant because if she, he, or it, does not adduce evidence concerning that proposition, the plaintiff might succeed in establishing that proposition. But before the defendant had that onus, "the evidence that the plaintiff has put forward on the topic must be such that, if accepted and the only evidence on the topic, it would justify the court in deciding it is more likely than not that the proposition for which the plaintiff bears the onus of proof is true. If the evidence that a plaintiff adduces is equally consistent with that proposition being true, or that proposition not being true, so that the plaintiff would fail to discharge its onus of proof if that were the only evidence on the topic, the defendant does not come under the sort of practical compulsion" described: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [84] (Campbell JA, McColl JA and Handley AJA agreeing) (emphasis in original).

[9]

The Deed of Debt

It is next convenient to set out, in more detail, some of the features of the Deed of Debt. As stated, the original (or, perhaps, an original) Deed of Debt was tendered as Ex P2. There are no amendments, interlineations or alterations on any part thereof. Each page bears a number of different signatures or initials. The front page of the Deed of Debt bears a handwritten "Annex A" but when, by whom, or for what purpose, it was written, is unclear.
The substantive part of the Deed consists of seven typewritten pages. It begins with a cover page displaying the title "Deed of Debt" and listing the parties as "Ms Cristina Yu Ong (Creditor)" and "Ms Catherine Gonzales Amos (Debtor)". There is no legal firm which, or individual who, had prepared the Deed, identified on the cover page.
The second page records that the Deed is dated "22ndrd [sic] day of May 2017". It repeats that the parties to the Deed are Ms Ong and the Defendant. It provides the address of both as the Defendant's home address at Mount Annan (a suburb of south west Sydney).
I refer to Recital B verbatim: "The Creditor and Debtor have unconditionally and willingly agreed that the Debtor has directly received the following money and things as valued on the purchase receipts: (i) $40,000.00 through two (2) Bank Transfers on the following dates (15/11/2016 and 24/3/2017); and (ii) Jewelleries: (a) 6.17 carat Diamond Earrings valued at $57,345.00 (Annexure 'A') (b) Chopard Ladies luxury wristwatch with Diamonds valued at $70,998.00 (Annexure 'B'). (c) Illusion Bracelet valued at $ 17,750.00 (Annexure 'C'). (d) Rositas earrings valued at $ 25,577.00 (Annexure 'D'). (e) Green Stone (Emerald) necklace and earring set valued at $ 25,942.00 (Annexure 'E'). (f) Black diamond earring valued at $17,750.00 (Annexure 'F'). (g) Illusion set of necklace, bracelet and earrings valued at $23,211.00 (Annexure 'G'). (h) Diamond necklace with round diamond pendant valued at $ 26,761.00 (Annexure 'H')."
There does not appear to be any document that reveals the source of the values shown. What is said to have been the cost of the jewellery is contained in the invoices from Claxson International Multi Products Inc addressed to Ms Ong: Ex P1/184. However, the amounts in that invoice are denominated in Philippine pesos. The invoice was dated 10 May 2017, some twelve days prior to the purported signing of the Deed.

[10]

The Deeds of Assignment

Because the Defendant was unable to say anything about the events that occurred in relation to each of the assignments, I shall next deal with that aspect of the case. The documents speak for themselves and I shall refer to each of them and the evidence surrounding its preparation.
Sometime in the latter part of 2017, around November, Ms Ong made contact with Mr Baena, by telephone, having been given his name by a former client (whose name he could not remember but who was identified by Ms Ong as Jess Icon). Ms Ong contacted Mr Baena, in order to obtain legal advice about the debt allegedly owed to her by the Defendant.
Mr Baena gave evidence about the circumstances in which he and Ms Ong agreed to enter the Assignment of Debt. He said that before arriving in The Republic of the Philippines, he had been told by Ms Ong that she was owed over $300,000 by the Defendant and that she and the Defendant had entered into a Deed guaranteeing the repayment of the debt. At some point thereafter, he travelled to The Republic of the Philippines to meet with Ms Ong: Tcpt, 2 September 2020, p 161(33-50).
Mr Baena said that he was provided with the original document headed Deed of Debt, as well as some coloured photographs of certain jewellery marked with the letters A through to H respectively. He stated that Ms Ong told him that two originals of the document had been signed, one of which she retained, and the other of which was retained by the Defendant. He was also provided with a copy of two applications for money transfers which related to the transfers totalling $40,000. One of those transfers was dated 16 November 2016 and the other dated 24 March 2017. He noted that the "Purpose" for the transfer noted in each application form referred to the purchase of land. In the first, the purpose was described as "Partial Payment of Land Property" and, in the second, "Partial Payment for Purchased Property".
Mr Baena said that he was also provided with a copy of two Sales Invoices, each of which was dated 10 May 2017, and a number of documents, each of which was said to be a receipt issued by Claxson International Multi Products Inc, for the payment, by Ms Ong, for the items of jewellery. (It is to be noted that some of the jewellery referred to in the first Sales Invoice bearing date 10 May 2017, formed part of the jewellery that the Defendant had received from Ms Gonzales on or about 3 May 2017.)

[11]

Rectification of the Deeds

As I have referred to above, the issue of the rectification of the Deeds of Assignment was said to have come about as a result of difficulties the Defendant asserted existed in the scope of each of them. Unfortunately, the effectiveness of either of those Deeds was not addressed, in any detail, or at all, by the Plaintiff, or by counsel for the Defendant during submissions.
In the third amended Statement of Claim, at pars 10-11, the Plaintiff pleaded: "On 26 February 2018, the Assignor assigned all her rights to the Debt and the Deed of Debt, to (Mr Tom Baena). On 14 June 2019, the Assignment was voluntarily rectified by the Assignor and Mr. Tom Baena to their common intentions of assigning all the Assignor's rights to the Debt and the Deed of Debt 'the Written Assignment of Debt to Mr. Tom Baena'. The documents were served on the defendant. On 6 March 2018, the plaintiff took assignment from (Mr. Tom Baena) of all the Assignor's rights to the Debt and the Deed of Debt. On 17 June 2019, the Assignment was voluntarily rectified by the plaintiff and Mr. Tom Baena to their common intentions of assigning all the Assignor's rights to the Debt and the Deed of Debt 'the Written Assignment of Debt to the Plaintiff'."
In the Defence to the third amended Statement of Claim, at par 12(b), the Defendant simply pleaded that she did not know, and could not admit, the allegations relating to the rectification of the alleged assignment. She referred to what was argued, at the hearing, before Pembroke J (to which further reference will be made below), and added that it: "Cannot be said to have been the common intentions of the parties to the assignment at the time of any agreement."
The Defendant pleaded at par 12(c)(iii): "On or about 17 June 2019, her former solicitor on record in these proceedings, Ms Gianna Doyle was sent an email from the Plaintiff attaching a document described as 'Rectified Assignment of Debt between Tom Baena and Ms Cristina Yu Ong effective from the original date of assignment'."
There was no similar paragraph in the Defence referring to the rectified Assignment as between the Plaintiff and Mr Baena.
In her affidavit sworn on 14 June 2019, Ms Ong deposed that she and Mr Baena had voluntarily rectified the Deed of Assignment dated 26 February 2018 to "fully incorporate our intentions upon which the 'Assignment of Debt' was made and signed".

[12]

The Tasmanian Properties

Having addressed much of the procedural history and the key documents relied upon as the foundation of these proceedings, it is next convenient to turn to the underlying facts which led to the present dispute.
In about early November 2016, the Defendant went on a holiday to Tasmania. Whilst there, she paid a small deposit to secure a property in Stanley, a town on the north-west coast of Tasmania.
What followed the Defendant's trip to Tasmania remained in dispute at the date of the hearing. Ms Ong gave evidence that in about November 2016, the Defendant befriended her and began encouraging her to purchase land in Tasmania. Ms Ong took up the encouragement and the two of them entered into an agreement for the purchase of land. Under the terms of the agreement, which was, initially, wholly oral, the Defendant was to purchase the property in Tasmania in Ms Ong's name. The total purchase price for the transaction was $150,000. Of that amount, $40,000 was to be paid in cash, and the balance, at the Defendant's request, was to be paid in jewellery.
The Defendant's account differed in several important respects. On her version of events, having paid the deposit for the property in Stanley, she posted some pictures and a video to her social media accounts. Ms Ong came to view those posts, and immediately placed a video call to the Defendant. During that call, Ms Ong expressed an interest in purchasing property in Tasmania, and the Defendant offered to make some inquiries for her. Several video calls and messages followed this initial discussion. At some point, although the Defendant was unable to be precise as to the date or time, the Defendant and Ms Ong orally agreed upon the purchase of properties in Tasmania. The Defendant was to purchase the properties in her own name, and would, initially, pay the purchase price and any incidental costs or expenses. Ms Ong would reimburse her, in cash, for all of these sums. The Defendant was then to transfer the properties into the name of Ms Ong (or her nominee). Once the transfers were complete, the Defendant was to manage the properties for Ms Ong, including overseeing the construction of buildings thereon.
Some of the terms, deposed to by the Defendant, were put to Ms Ong in cross-examination. Aside from acknowledging that there was an agreement to purchase property in Tasmania, Ms Ong denied that any of the Defendant's evidence reflected the agreement reached with her: Tcpt, 1 September 2020, p 69(39) - p 70(37).

[13]

The Purchase of Luxury Items by the Defendant

The Defendant gave evidence that on about 18 November 2016, she had a video call with Ms Gonzales and Ms Ong. Ms Ong asked the Defendant to purchase for her, from stores in Sydney, a number of luxury items including perfume, handbags and other accessories. The Defendant was told to pay for these items using the $19,980 that had already been transferred into her account. Ms Ong promised to transfer more funds into the Defendant's account to compensate for additional expenses.
In cross-examination, Ms Ong denied ever having made such a request of the Defendant, and further denied having been present on the video call on 18 November 2016: Tcpt, 1 September 2020, p 71(08-38).
Ms Gonzales also denied having participated in a video call with the Defendant and Ms Ong on 18 November 2016. Indeed, her evidence was that she did not call her sister at all on that day. In keeping with that evidence, Ms Gonzales denied that any request was made of the Defendant to purchase the items for Ms Ong: Tcpt, 1 September 2020, p 117(05-46). Neither party tendered any documents of a telephone provider which corroborated that a telephone call had, or had not, been made on that date.
The Defendant asserted that the next day she went out and purchased certain goods and kept them with her, in her house at Mount Annan, until she passed them on to Naomi Iris Henson (one of Ms Gonzales' daughters) in March 2017. The intention was that Ms Henson would take the items back to The Philippines and give them to Ms Ong.
Ms Ong denied having received any items in March 2017 from the Defendant: Tcpt, 1 September 2020, p 71(48) - p 72(05). It was put to her that she had thanked the Defendant for the items through a message on Viber. She was unable to recall, given the number of conversations that had occurred between them, whether she had, in fact, done so: Tcpt, 1 September 2020, p 72(09-22).
The Defendant, more globally, was cross-examined on her evidence in relation to these purchases. The Defendant was unable to recall, in respect of any particular transaction, whether she had received a receipt or, if so, the nature of that receipt. She said, however, that if she had received any receipts that they would have been passed to Ms Henson and then, presumably, to Ms Ong: Tcpt, 3 September 2020, p 292(01) - p 294(29).

[14]

Further Purchases of Property and the Jewellery

On 13 March 2017, the Defendant purchased another property in Smithton for $30,000. Smithton is another town located on the North-West coast of Tasmania.
As stated, on 24 March 2017, Ms Ong caused another $20,000 (which again, by the time of receipt, was $19,980) to be transferred to the Defendant in partial payment for the properties.
On 13 April 2017, the Defendant purchased a final property in Herdsmans Cove for $50,000. Unlike the other properties, Herdsmans Cove is located in the South-Eastern part of Tasmania on the River Derwent approximately 20km from Hobart.
Between late November 2016 and May 2017, the Defendant gave evidence that Ms Ong and Ms Gonzales began mentioning that Ms Ong had a supply of high-end jewellery that she was able to sell for low prices. The Defendant deposed that Ms Ong began offering to sell pieces of that jewellery to her. On each occasion, the Defendant said that she refused the offer that was made.
Although the Defendant could not recall the date, she gave evidence that Ms Ong offered some of the jewellery to her in exchange for the Tasmanian properties. This was an offer that the Defendant also refused.
Ms Ong's evidence on the role of the jewellery was completely different. She deposed that it was the Defendant who had requested that the balance of the purchase price (after the two instalments of $20,000) be paid in jewellery: Affidavit, Cristina Yu Ong, 14 June 2019 at par 8.
This, on her evidence, was confirmed by a handwritten document dated 31 March 2017, which purported to record the agreement that jewellery would make up the balance of the purchase price: Affidavit, Cristina Yu Ong, 14 June 2019 at par 8, annexure CYO3: Tcpt, 1 September 2020, p 73(30) - p 74(11). This was a document written by Ms Ong and, on her evidence, the Defendant had agreed to its terms. Importantly, in this document, the two payments of $20,000 were referred to, as was a reference to a diamond ring (AUD$46,000), a necklace and "Rosita" earrings (AUD$46,000). This document then referred to a balance of $18,000 and then referred to $6,700 being for rates and taxes for transfer, making a total of $24,700 "for payment in July".
The Defendant did not deny receiving the document and, indeed, annexed a copy thereof to her own affidavit. However, when put to her in cross-examination, she disagreed that she had accepted the terms of the document: Tcpt, 2 September 2020, p 208(21-23).

[15]

Alleged Admission of Amounts Owing

Some of Ms Ong's account of the conversations between her and the Defendant is corroborated by what appeared to be contemporaneous messages between the two of them through Viber. As I understand it, Viber is a cross-platform voice over IP and instant messaging software application.
The conversations between Ms Ong and the Defendant were largely in the Filipino language (a standardised form of the Tagalog language). Translated copies of those messages formed annexure TB6 to an affidavit sworn by Mr Baena on 7 July 2019.
In cross-examination, the Defendant was taken to a series of Viber messages between her and Ms Ong dated 18 April 2017. The translation was in the following terms: "Defendant: (You) see ma'am, I help people over here too because anyone who becomes close to me and wins my full confidence, does not need to say much. I don't treat them as strangers. Defendant: Tomorrow somebody will pay me 3 million, 1.5 each. Then another will pay 200K. I told Ateng to give you the cheque of 200K because I owe you 150K plus 50K which I owe Dess. Rich people are like that hahaha, money stays within. Defendant: In time ma'am, you will see. You will thank me for investing here. Ms Ong: But of course, Cathy. You really paved the way for us. That is why I am very grateful to you. We still have a long relationship ahead of us. You are not a stranger to me. Maricel, I treat like a member of the family. And you as well. Thanks, God bless."
The Defendant agreed that the above were messages from her: Tcpt, 2 September 2020, p 273(14-16). Yet, she denied that she owed Ms Ong $150,000, and clarified (Tcpt, 2 September 2020, p 274(36-39)): "WITNESS: It's in pesos, your Honour. It refers to that conversation because most of my managed money in the Philippines Mericel is handling it and this refers to a pesos, this is not Australian Dollars. That even in the English translation it says there."
Of course, as will be plain from the translation above, and as the Defendant later accepted, there is nothing in the translation that suggests that the sums discussed were in Philippine pesos. Such a suggestion is also at odds with pictures, sent one day later on 19 April 2017, showing bundles of Australian 100 dollar notes.
Despite agreeing, as far as she was able, with the accuracy of the translation, the following exchange occurred with the Defendant (Tcpt, 2 September 2020, p 275(18-35)): "Q. But you deny that you owed her whether it's 200,000 pesos or 200,000 dollars, you denied you owed her any money, didn't you? A. Yes, your Honour. Q. That suggests otherwise, does it not? That suggests that you do owe her money? A. Your Honour, this one is not an owe because what happened, as I said, I get money from Mericel, most of my - I get property in the Philippines and everything and Mericel always, like..(not transcribable)..cheque and she get cheque from Ms Ong. Q. You told me a moment ago that you didn't owe at any time any money to Ms Ong. This document suggests that you owe her $150,000 plus you owed someone called Dess(?) $50,000. $50,000 or 50,000 pesos, 150,000 pesos. Now, do you agree that this document suggests that you owed, at that date, Ms Ong $200,000 of some money, whether it's pesos or dollars? A. As I said, this is that - what it is look like but it translated this way but I never owe her $200,000."

[16]

Arrival of the Group in Australia

Returning to the narrative, up until this point in the history of the events, all of the dealings between Ms Ong, Ms Gonzales and the Defendant had taken place over the internet or over the telephone.
On 3 May 2017, Ms Gonzales, Catherine Ong (the daughter of Ms Ong), Eidellise Ramos (a friend of Ms Gonzales), Julio Isis Henson (the son of Ms Gonzales) and Ms Henson arrived in Sydney from The Republic of the Philippines.
Prior to leaving, Ms Ong had given Ms Gonzales several pieces of jewellery to show the Defendant: Tcpt, 1 September 2020, p 74(30-36).
On the day of Ms Gonzales' arrival, on 3 May 2017, she gave evidence that she handed to the Defendant what was described as the "First Collection of Jewellery". On the Defendant's account, that included four pieces of jewellery, being: 1. An illusion bracelet; 2. Set of the "Rositas" earrings; 3. A green stone necklace together with a matching set of green stone earrings; and 4. Necklace with a diamond appearing pendant.
Ms Ong's, and the Defendant's, evidence, given to explain the reasons why the First Collection of Jewellery was handed over, was in conflict, the former asserting that the latter had ordered those pieces, whilst the Defendant asserted that Ms Ong wanted her to wear the jewellery. Her understanding of the reason why she had been given the First Collection of Jewellery is captured in the following passage of her affidavit: "I received the First Collection of Jewellery from Maricel on the understanding that I was only to wear them and then return them to either Maricel and/or Ms Ong before either of them returned to the Philippines."
To an extent, Ms Ong's evidence is corroborated by the contemporaneous Viber messages between her and the Defendant. On 11 May 2017 (that is, one day prior to the arrival of the group in Australia), a conversation occurred between the two of them in the following terms (translated into English): "Ms Ong: I'll bring it with me Defendant: Yes, please bring it, ma'am. Just bring the 2.1 million, okay. I'm happy. Then one more looks like… Well, at least that looks okay. Kate and company like it here very much, ma'am. They enjoyed themselves very much. The video Kate made is really nice Ms Ong: I'm about to go to the airport. I'm bringing 6.17ct. Defendant: Thank you, ma'am! (You) were able to get a good supplier. Ms Ong: They think I am rich because I am always bringing things here. Defendant: Hey, thank you ma'am hahah. You are really rich already. Ma'am look for a 5-6 carat round or heart icon for me. Heart. That's good ma'am. You can choose nice ones at a whole sale price."

[17]

Sheets of White Paper

There was a deal of confusion in the evidence surrounding certain sheets of white paper on which Ms Ong and the Defendant had purportedly written details of their transaction as a precursor to the preparation, and execution, of the Deed of Debt.
The evidence on this topic is found, first, in par 3 of Ms Ong's affidavit sworn 28 August 2018. That paragraph was in the following terms: "I and Catherine Gonzales Amos agreed and wrote the quantities, description and value of the jewelleries that she received from me, the two cash transfers, the payment details of the debt and the background history of what had happen [sic] between us on plain white paper sheets. Catherine Gonzales Amos then took our agreement and had the deed prepared. And Catherine Gonzales Amos told me that, the deed was prepared by one of her many solicitors' [sic] friends, upon which we signed."
Ms Ong was taken to that paragraph in her cross-examination. However, upon being questioned on the topic, she denied that she and the Defendant had ever written down those details in that way. She further denied having any input into the contents of the Deed or having seen any draft document: Tcpt, 1 September 2020, p 88(49) - p 89(29).
Ms Ong's evidence was inconsistent with the evidence given by Ms Gonzales. In cross-examination, Ms Gonzales gave evidence that she saw Ms Ong and the Defendant, in the Sir Stamford Hotel in Sydney, agreeing on the prices of the pieces of jewellery. She saw them both write down the prices and the total value of the jewellery that the Defendant would receive: Tcpt, 1 September 2020, p 123(12-43).
If one accepts Ms Ong's evidence that there was no preliminary discussion, about the contents of the Deed of Debt, and also that the Deed of Debt was prepared at the behest of the Defendant, then, as submitted by her counsel, it must be that the Defendant gave instructions for its preparation "effectively of her own accord, without having any preliminary discussions as to what was going to be encapsulated in this [Deed of Debt]: Tcpt, 3 September 2020, p 372(24-37).
The Defendant denied that she had ever written down anything on sheets of white paper.
None of the sheets of white paper was tendered. Nor was it clear, on the evidence of any of the witnesses, what had happened to the sheets of white paper.

[18]

Events in Tasmania

On 17 May 2017, a group of seven (comprising the Defendant, Ms Ong, Ms Gonzales, Mr Santiago, Ms Bernadette Ong, Ms Austria and Mansukh Mepani) travelled from Sydney to Hobart. As stated, Mr Mepani is a friend and business partner of the Defendant. He came along to drive the hire car used to transport the group in and around Hobart.
After arriving in Hobart, the group checked into the Wrest Point Hotel. Over the next several days, the group went sightseeing around Hobart and Tasmania. It would appear that Ms Catherine Ong and Ms Ramos joined the group in Tasmania at some point during that time.

[19]

Stay in Melbourne

On 20 May 2017 the group, now comprising nine, left Hobart for Sydney. From Sydney, the group travelled back to Melbourne, arriving at about 10:30 p.m. on that evening. There, they stayed in the Aura on Flinders, being short term serviced apartments. They had two apartments, in one of which the Defendant, Ms Gonzales, Mr Santiago and Mr Mepani stayed, and in the other, Ms Ong and members of her family, including her son, Percival Ong, stayed: Tcpt, 3 September 2020, p 303(44) - p 304(37).
On 21 May 2017, the group spent most of the day in the Aura on Flinders. In the evening, the Defendant, Ms Gonzales, Mr Mepani, Ms Austria and Mr Santiago went to the Crown Casino to look around and to have dinner. The evidence of the Defendant's witnesses, including Mr Mepani and Mr Santiago, was that the Defendant began feeling unwell during the dinner at the Crown Casino.

[20]

Alleged Signing of the Deed of Debt

A major plank upon which the Plaintiff relied to substantiate his case was the assertion that on 22 May 2017, the Defendant signed the Deed of Debt: Ex P2. The burden is on the Plaintiff to demonstrate that she did so. The Defendant denied that she had caused the Deed of Debt to be drafted.
As might be expected, the accounts of the witnesses diverged significantly as to what occurred on that day. The Defendant maintained her denial that she had signed this document. It is, therefore, convenient to address each account separately.
The Plaintiff relied on the evidence of Ms Ong and Ms Gonzales as to the signing of the Deed of Debt.
There was little evidence of precisely who had prepared the Deed of Debt. Whilst there was some mention, in Ms Gonzales' evidence, that a person named "Matthew" prepared the Deed, the identity of that person, or the role that he played in the events that occurred, was not elaborated upon: Tcpt, 1 September 2020, p 122(10-20).
The evidence relied upon by the Plaintiff was that on the morning of 22 May 2017, Ms Gonzales was alone in the apartment that she and the Defendant shared in the Aura on Flinders. Sometime after lunch, the Defendant arrived at the apartment and asked Ms Gonzales to call Ms Ong: Tcpt, 1 September 2020, p 122(02-33).
Ms Ong gave evidence that the three of them, along with the person identified as Sabas Capili, signed the Deed of Debt in Ms Ong's apartment in the Aura on Flinders.
In an affidavit sworn 12 October 2018, Ms Gonzales deposed that "at the time my sister was signing her part of the deed of debt at the hotel in Melbourne, I saw her wearing a pinky [sic] lady's fashionable hand glove". This affidavit was sworn a few weeks after the Defendant's statement to NSW Police and her volunteering of fingerprint and DNA samples, but before the results of the fingerprint and DNA analysis were known. Ex P6 (the Defendant's statement to Detective Sergeant Brisby) was taken on 10 September 2018. Ex P7 (Detective Sergeant Brisby's reply to subpoena), which set out the results of the forensic fingerprint and DNA examinations, was dated 5 November 2018.
Additionally, each of Ms Ong and Ms Gonzales described the witness to the signing (who signed the Deed of Debt as Sabas Capili) as being a "white male man" or "white male person": Affidavit, Maricel Cruz Gonzales, 12 October 2018 at par 3; Affidavit, Cristina Yu Ong, 12 October 2018 at par 3.

[21]

The involvement of NSW Police

In early 2018, Ms Ong made a complaint to the Narellan Police Station (which is located near the Defendant's property at Mount Annan). In about early February, officers from that Station contacted the Defendant, requesting that she come down to the Station for an interview.
The Defendant gave evidence that she was contacted by a police officer from Narellan Police Station who asked her to attend "in response to a complaint made against me". The Defendant attended the Narellan Police Station and was interviewed "in relation to a complaint made by Ms Ong". The police officers questioned her about the purchase of land in 2016 and 2017 in Tasmania, and about certain pieces of jewellery. Subsequently, the Defendant was informed that the complaint was a civil, rather than a criminal, matter.
It would also appear, although the evidence was somewhat unclear, that, in about September 2018, the Defendant (or someone on her behalf) made a complaint to the Campbelltown Police Station alleging that the Deed of Debt had been fraudulently prepared and obtained. The Defendant voluntarily attended the Station in respect of that complaint and gave a written statement: Tcpt, 2 September 2020, p 258(48) - p 259(28).
However, at the hearing, there was tendered, as part of the Plaintiff's case, a written statement dated 10 September 2018, made by the Defendant to NSW Police, "that I would be prepared … to give in court as a witness": Ex P6. In this document, the Defendant referred to the Deed of Debt and stated: "I read the contents of this document and I studied the signature that appeared above my name and on pages 2- 7. I do not know anything about this document. That is not my signature that appears on this document. I did not complete or sign this document. I do not know who Sabas CAPILI is. At no time did I take part in the completion of this document with Cristina ONG, Maricel GONZALES or Sabas CAPILI. Until this time, I had never seen this document before. I saw this document was signed on 22 May 2017. I was not in New South Wales on this date when this document was signed. I was actually in Victoria. I flew out from Hobart and stopped at Sydney on 20 May 2017. I flew out from Sydney the same day and went to Melbourne. I returned to Sydney on 23 May 2017. My mobile phone records show I was in Melbourne for those dates. … While I was in Melbourne, I did not take part in creating the 'deed of debt' document with Cristina ONG or Maricel GONZALES. I did not sign any documents in Melbourne. … On today's date being Monday 10 September 2018, I attended Campbelltown Police Station at the request of Detective Bob BRISBY. Detective BRISBY showed me a scanned colour copy of the 'deed of debt' document. I had nothing to do with this document and it is not my signature that appears on the document. I volunteered a set of my fingerprints and DNA to Detective BRISBY to assist his investigation into the deed of debt document."

[22]

The Expert Evidence

On 29 June 2018, Ms J Rockstroh, a clerk at Doyle Legal (then solicitors for the Defendant), contacted Ms Holt, by telephone, "requesting signature exam on 'Deed of Debt'. Verbal instructions were provided by phone to determine whether or not the signatures contained on the 'Deed of Debt' were written by the same person who wrote the specimen signatures".
Ms Holt had had no discussions at all with the Defendant. At the time she prepared her first report, she had a copy of the Deed of Debt and had original unquestioned specimen signatures of the Defendant: Ex D1. She wrote a report dated 2 July 2018 (which formed part of Ex D1).
In order to prepare her first report, she conducted a number of different examinations, including "a microscopic (where needed) and macroscopic examination of the questioned and specimen signatures" and "a comparative examination of the questioned and specimen signatures [which] assesses the structure, features and writing quality of the signatures".
It is not necessary to state the conclusions reached in the first report because when she prepared her second report, which is dated 18 April 2019, she had the original Deed of Debt available, which had been delivered to her on 12 April 2019, but had returned the original specimen signatures that she had used in relation to the preparation of the first report, although she had retained all of the high quality images that she had taken of them: Ex D2; Tcpt, 2 September 2020, p 249(13-32). In addition, on p 2 of her first report, she noted that "[e]xaminations of reproductions can have a limiting effect on the strength of the conclusions reached as the reproduction process often does not reproduce the finer details of the letter construction, nor does it allow a proper assessment of the line quality and speed or fluency of the writing". Thus, with the original Deed available, the second report avoided this limitation.
In her first report, Ms Holt noted that the Defendant's signature on the original Deed of Debt, and the specimen signatures she was given of the Defendant, bore some "level of pictorial similarity". She defined that phrase as meaning that the signatures bore some visual resemblance that could not be attributed to chance or coincidence.
Based upon that visual inspection, Ms Holt tested two hypotheses: 1. First, that the author of the specimen signatures (i.e. the Defendant) signed the Deed of Debt in such a way as to disguise her signature or that any differences were accidental; and 2. Secondly, that someone else, other than the author of the specimen signatures, signed the Deed of Debt attempting to copy the form of the genuine signature either writing freehand or by using some form of tracing process.

[23]

Alleged return of the jewellery

At some point whilst the group was in Melbourne, the Defendant asserted that she had a conversation with Ms Ong to the following effect: "Defendant: Madam Ong, when are you going to settle your account with me? Ms Ong: Why don't we swap some of the jewellery for the Tasmanian properties? Defendant: I don't need jewellery; I need money to pay for the loans I had to take to pay for the properties and all the other expenses. I want to be repaid for all of my account. You must do so before you leave Australia."
Ms Ong firmly denied that such a conversation ever took place. She reiterated that the Defendant had agreed to pay for the jewellery in cash: Tcpt, 1 September 2020, p 78(03-14).
On 23 May 2017, the group returned to Sydney from Melbourne. It was the Defendant's case that she returned what had been described as the Second Collection of Jewellery during the flight. She gave evidence that, on the flight, she had been sitting next to Ms Gonzales. She proceeded to hand back the Second Collection to Ms Gonzales, who then immediately handed it to Ms Ong who was seated two seats away from Ms Gonzales on the other side.
The Defendant confirmed this evidence in cross-examination. She denied, when it was put to her, that she never returned the Chopard watch to Ms Gonzales or saw Ms Gonzales hand it to Ms Ong: Tcpt, 2 September 2020, p 267(22-27).
She was, however, taken to a handwritten document, prepared by her prior to the arrival of Ms Ong in Australia, as a plan of the activities to be undertaken during Ms Ong's stay in Australia: Ex P3. It was put to the Defendant that, despite it purporting to be a record of the main activities that occurred, the document did not contain any mention of the return of the jewellery. She answered (Tcpt, 2 September 2020, p 225(46) - p 226(02)): "Q. Look at all your handwriting and explain to the honourable judge whereabout you say you wrote anything about jewellery, returning jewellery in that document? A. Yeah, all I know this one was written on 21 June 2018. I was only asked the - you know, recollection of the itinerary, and I went back to all of my documents that I can pull out, and this was written before and prior of Mrs Ong coming to Australia."
The Defendant was also taken to an affidavit sworn by her in these proceedings dated 21 June 2018. That affidavit had not been read in the Defendant's case. It contained, generally, a broad outline of the Defendant's version of events, including the circumstances surrounding the jewellery and her receipt thereof. However, as the Plaintiff put to her in cross-examination, it did not contain any mention of her returning the jewellery to Ms Gonzales or to Ms Ong: Tcpt, 2 September 2020, p 227(01-36).

[24]

Expenses of the Australian Trip

One aspect of the Defendant's resistance to the Plaintiff's claim, as adverted to in the Defence, was that the Defendant had paid for most, if not all, of the expenses of the group whilst they travelled through Sydney, Tasmania and Melbourne.
On her evidence, she paid for those expenses in reliance upon a conversation with Ms Gonzales, occurring over Facebook, said to have taken place in November 2016. In that conversation, Ms Gonzales promised the Defendant that she would be reimbursed for the expenses that she would incur in the forthcoming trip. The Defendant gave evidence that she had deleted that Facebook account and this, it was said, explained why she could not produce copies of those messages.
She also deposed to conversations with Ms Gonzales in Hobart, and with Ms Ong in Melbourne, where she expressed a demand for payment of expenses.
In an affidavit sworn 2 September 2020, the Defendant provided an updated calculation of the expenses which, on her case, she personally incurred on Ms Ong's behalf during the period between November 2016 and May 2017. Across a number of expenses, this amounted to $30,982.00.
Mr Mepani gave evidence that he had observed the Defendant paying numerous expenses throughout the trip. She either paid with her own credit card, or, when she had reached the maximum limit on that case, using a credit card borrowed from Mr Elias. Mr Mepani deposed at par 8 of his affidavit: "Every time I saw a bill being paid, it was [the Defendant] who was paying …"
Mr Santiago, in his evidence, deposed to specific instances where the Defendant had paid for expenses: 1. On 13 May 2017, the Defendant used her credit card to pay for the group's dinner; 2. On 13 May 2017, the Defendant used Mr Elias' credit card to pay for dinnerware for Ms Ong, Ms Christina Ong and Ms Austria; 3. On 14 May 2017, the Defendant used her credit card details (in place of Mr Santiago's) to settle the account at the hotel in which the group was staying. This was done, it was said, to ensure a clear chain of expenditure; 4. On 14 May 2017, the Defendant paid for lunch; 5. On 18 May 2017, the Defendant paid for dinner at the Salamanca Market in Hobart; 6. On 20 May 2017, the Defendant paid for silverware purchased by Ms Ong upon the promise that she would be reimbursed; 7. On 20 May 2017, the Defendant paid for the van rentals in Hobart and Melbourne; and 8. On 21 May 2017, the Defendant paid for dinner.

[25]

The Witnesses

Each of the deponents whose affidavit was read was subjected to cross-examination. As stated, there are many factual issues, the most important of which is whether the Deed of Debt bears the signature of the Defendant.
In trying to resolve some of the factual issues, I bear in mind the fallibility of human recollection. On the principal issue, there can be no suggestion that memory is the relevant consideration. I also bear in mind that Ms Ong gave her evidence through an interpreter.
Importantly, no motive for suggesting that Ms Ong had prepared the Deed of Debt, and had lied about its execution by the Defendant, was put to Ms Ong. Nor was any motive for giving untruthful evidence put to Ms Gonzalez. It was not put to either that she had any financial, or other, incentive to give the evidence that she did. It is also to be remembered that Ms Ong is said to have assigned her interests in relation to the Deed of Debt to Mr Baena some time ago, and also that she had been paid by him.
(A motive that occurred to me was the possibility of litigation between Mr Baena and her, but this was not a matter put to her in cross-examination and is, in any event, no more than speculation on my part.)
It might be said that Mr Baena may gain something from the Plaintiff's success in this litigation, in that he would be paid some of his professional costs. However, he denied that he had anything to do with the preparation of the Deed of Debt, although him knowing a person with the same name as one of the witnesses to the signature of the Plaintiff and the Defendant on that document is somewhat of a coincidence. His denials of any involvement in the events that occurred were, however, unwavering (Tcpt, 2 September 2020, p 173(09-17)): "Q. I take no joy in asking this question, but are you the solicitor who, in fact, drafted this document? A. No. Q. Did you arrange the document to be signed by Ms Ong and Ms Gonzales? A. No. Q. Did you arrange for the document to be signed by Mr Capili? A. No."
The only other person, on the Plaintiff's side, who appears, now, to stand to gain from the litigation is the Plaintiff himself. However, the evidence is clear that he did not enter the narrative until 6 March 2018, that is to say, some time after the Deed of Debt was said to have been signed.
It was put to the Defendant's witnesses on this topic, being Mr Santiago and Mr Mepani, that each had lied in his evidence in order to protect his friend. Each denied that allegation Tcpt, 3 September 2020, p 314(50) - p 315(25), p 331(32) - p 332(02).

[26]

Submissions

As stated, the Plaintiff was self-represented at the hearing of the matter (albeit with some assistance from Mr Baena). Despite that, his submissions disclosed a level of experience in litigation not ordinarily seen in litigants in person.
The crux of the Plaintiff's submissions can be found in par 10 of his written submissions: "The defendant received payment in full in the amount of $305,334.00, for the purchase of one lot of land in Tasmanian [sic] in the assignor's name and to construct residential building in the assignor's name, but the defendant failed to do so. After the assignor demanded payment, the defendant willingly entered a Deed of Debt assuring the assignor that she will pay the debt, but the defendant failed."
He also submitted that the Defendant's challenge to the validity of the assignments must fail. He submitted at par 12 of his written submissions: "This argument cannot be sustained on the defendant's arguments. The plaintiff took on a valid assignment of a debt that is existing in equity and common law. The debt is also guaranteed by an equitable instrument. There is no evidence to argue that, by the terms of the Assignment, the plaintiff falls foul of the law of champerty." (citations omitted)
On a proper characterisation, the Plaintiff submitted, the assignments effected an assignment of a right to property. He submitted: "The right to property is an exceptional right which does not under any circumstances amount to a "bare right". For one example: the 'Deed of Debt' created an equitable right for the assignor in the defendant's real property of the subject. The debt, before assigned, were the properties of the assignor and the written and oral contract were for real property. The integral of the assignor's agreement with the defendant is for real estate. An assignment to property's right is the traditional exception under the law of assignment. It follows that, there is no need for the plaintiff to refer to numerous authorities when the court is fully aware of the 'traditional exception'."
Turning to the rectification of the assignment, the Plaintiff submitted that there was nothing out of the ordinary in parties correcting their intention in a written document. He denied that there was any attempt, through this rectification, to expand his claim to include an alternative case in conversion.

[27]

Determination of the Plaintiff's claim

In the present case, the fundamental, although not the only, plank of the Plaintiff's case is that the Defendant signed the Deed of Debt, which allegation the Defendant, expressly denies, under oath, having done.
Whilst it is true that each of Ms Ong and Ms Gonzales do not appear to have a motive for making the assertion that she did, there are many other questions that need an answer. In fact, to my mind, the Deed of Debt is one that raised more questions than it answered. Those questions include: 1. Who gave the instructions for the preparation of the Deed of Debt? 2. When were the instructions given for the Deed of Debt? 3. By whom was the Deed of Debt prepared? If, as is asserted, it was prepared by a lawyer, why would the parties to the Deed of Debt not give instructions to a lawyer jointly? 4. Why did an Australian lawyer, if acting upon instructions from the Defendant, include in the Deed of Debt so many admissions that appeared to benefit Ms Ong, the creditor, rather than the Defendant, the debtor? 5. Why would an English-speaking Australian lawyer use the word "jewelleries" in the Deed of Debt, rather than "jewellery" to describe the items said to have been given to the Defendant? 6. How did the author of the Deed of Debt know, when he, or she, prepared it, who was going to be present when the Deed was to be signed? 7. How did the name Sabas Capili come to be inserted in the Deed of Debt when Ms Ong, Ms Gonzales, and the Defendant each professed not to know a person of that name? 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? 10. Was it merely a coincidence that, apart from Ms Ong, Ms Gonzales and the Defendant, the only other person said to have signed the Deed of Debt bore the name of a person known to Mr Baena, but not known to them? 11. If not a coincidence, what role, if any, did Mr Baena play in the creation of the document? Then, why would he, as a solicitor, be prepared to participate in a fraudulent scheme when it appeared that he had received, from the Plaintiff, consideration that was greater than the amount he had paid to Ms Ong? 12. Then, if the Defendant did not sign the Deed of Debt, is the only plausible explanation for her evidence, that Ms Ong and Ms Gonzales, with, or without, Mr Baena, were acting, in collusion, to assert that she had done so, and that one, or both, had caused the document, with simulated signatures, to be prepared? If so, why would each be prepared to maintain false evidence, in circumstances where Ms Ong had already received the payment of $50,000, more than two years prior to the hearing, and where Ms Gonzales, who is the blood sister of the Defendant, had no apparent financial interest in the outcome of the case? 13. If the Defendant did sign the Deed of Debt, is the only plausible explanation for the evidence called by her, that she, and each of the witnesses who gave evidence on her behalf, were acting, in collusion, to assert, under oath, the evidence each gave as to the events of 22 May 2017? If so, why would each of the independent witnesses called by the Defendant be prepared to give false evidence that one, or both, had remained with the Defendant throughout the day on 22 May 2017, when neither had any apparent financial interest in the outcome of the proceedings and when it had not been suggested to either of them that he was simply wrong about the date of the attendance at DFO South Wharf? 14. Is there a basis for rejecting the evidence of Ms Holt that the Defendant's various signatures on the Deed of Debt appear to be simulated signatures, in circumstances where the Plaintiff called no expert evidence to rebut the proposition and where the questions posed above have not been answered? Ms Holt's evidence certainly gives support for a finding that the disputed signatures were simulated and were not the signatures of the Defendant.

[28]

Other bases of the claim and the defences

I shall next deal with the other bases of the Plaintiff's claim even though it is strictly not necessary to do so.
Before turning to that, I should make some additional findings of fact.
There is no dispute that the Defendant received the two amounts of $19,980 from Ms Ong, one on 16 November 2016 and the other on 27 March 2017: see Defence to Third Amended Statement of Claim at pars 4(c)-(d), (h). Accordingly, I am satisfied that these amounts were paid by Ms Ong to the Defendant.
The Defendant acknowledged that an oral agreement had been reached between her and Ms Ong to the effect that she would purchase four separate parcels of land in her name but that upon Ms Ong reimbursing her for the purchase price and associated costs, she would transfer the land to Ms Ong.
It may be inferred that the amounts transferred were made as part of the arrangement. The Defendant accepted that whilst she purchased the land, she had sold it for a total sum greater than that which she paid and that she had retained the whole of the proceeds of sale. Accordingly, if she had used the two amounts that she received from Ms Ong as part of the purchase price of the land, since she has retained all of the proceeds of sale, she should repay the amount received to Ms Ong.
However, for her part, the Defendant asserted that she had purchased certain luxury items for Ms Ong, which Ms Ong denies, for which she was not reimbursed by Ms Ong and that the total amount of the goods purchased exceeded the amount received by her from Ms Ong. However, the Defendant's final claim for reimbursement (identified in her affidavit sworn 2 September 2020) was for $30,982. That itemised claim included several of the luxury items said to have been purchased for Ms Ong out of the first payment of $19,980. It follows that the total amount for the goods purchased would not have exceeded the $39,960 she received.
There is also no dispute that the Defendant received from Ms Ong, via Ms Gonzales, on about 3 May 2017, certain jewellery being an illusion bracelet, a set of Rositas earrings, a green stone necklace together with a matching set of green stone earrings, and a necklace with a "diamond appearing necklace": Defence to Third Amended Statement of Claim at par 6(c)(i)(4); Tcpt, 1 September 2020, p 118(47) - p 119(12).

[29]

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: 04 February 2021

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