[2012] NSWCA 48
Elfar v Registrar General of New South Wales [2010] NSWSC 539
In the Marriage of Jacobson (1988) 93 FLR 320
12 Fam LR 828
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653
[2008] NSWCA 206
Jones v Dunkel (1959) 101 CLR 298
[1959] HCA 8
Marsh v Marsh (2014) FLC 93-576
Source
Original judgment source is linked above.
Catchwords
[2012] NSWCA 48
Elfar v Registrar General of New South Wales [2010] NSWSC 539
In the Marriage of Jacobson (1988) 93 FLR 32012 Fam LR 828
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653[2008] NSWCA 206
Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8
Marsh v Marsh (2014) FLC 93-576[1992] HCA 66
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589[1981] HCA 45
Re Sabriex parte Brien v Australia & New Zealand Banking Group Ltd (1989) 137 FLR 165[2011] FamCAFC 150
Valceski v Valceski (2007) 70 NSWLR 36[2007] NSWSC 440
Xie v Li [2019] NSWSC 808
Young v Lalic (2006) 197 FLR 27
Judgment (15 paragraphs)
[1]
Judgment
HER HONOUR: This matter involves a dispute between the plaintiff (Mr Adam Musa) and his former wife (Ms Bushra Alzreaiawi), as to the proceeds of sale of a property in Smithfield (the Smithfield property).
The Smithfield property, which was sold by Ms Alzreaiawi in November 2017, had been acquired by Mr Musa and Ms Alzreaiawi in early 1999 as joint tenants. In June 2011, a transfer to Ms Alzreaiawi was registered in respect of Mr Musa's then share of the Smithfield property, such that she was the sole registered proprietor at the time of the sale of the property in November 2017. Mr Musa's contention in these proceedings is that his signature was forged on the transfer form (and on a discharge authority in respect of the mortgage that was then held over the property), and that Ms Alzreaiawi was a party to that fraud (either by having forged his signature herself or having in some way caused that to occur). Ms Alzreaiawi denies any such conduct. Her case is that the transfer was in accordance with an agreement reached between the parties in 2009 for, in effect, an informal property settlement, and that what Mr Musa is now seeking to do is to circumvent the time restrictions on the seeking of family law property adjustments.
By his statement of claim filed 29 November 2017, Mr Musa seeks, among other relief: declarations that he was the beneficial owner of a one-half interest in the Smithfield property prior to the completion of the sale in November 2017, and that he was "removed as a registered proprietor" of the Smithfield property by the fraudulent conduct of Ms Alzreaiawi; and an order that Ms Alzreaiawi account to him for one-half of the proceeds of sale of the Smithfield property. Further and in the alternative, Mr Musa seeks damages for fraud.
[2]
Background
The parties were married in Saudi Arabia on 15 January 1994. Ms Alzreaiawi had previously been married and has one child from her first marriage (Mr Ahmed Kater Aswad), who gave evidence in the present proceedings. Together, Mr Musa and Ms Alzreaiawi have three children. The family (including Ms Alzreaiawi's first child) migrated to Australia in about mid-1994.
Ms Alzreaiawi's evidence is that when the family migrated to Australia she brought with her six gold bars (which she had acquired or had with her at the time of her marriage, when she was living in Saudi Arabia in a refugee camp) and jewellery (see her affidavit, sworn 23 March 2018, at [5]; [8]). Mr Musa does not dispute that Ms Alzreaiawi had some gold bars which she sold in Australia (although there is a dispute as to the amount realised on the sale of the gold bars - see below).
Ms Alzreaiawi deposes that, on arrival in Australia, the family rented a unit in Ashfield for a period of two to three months; that Mr Musa began working as a labourer; and that the family then moved to rented accommodation in Auburn (see her affidavit, sworn 23 March 2018, at [9]-[10]).
Ms Alzreaiawi's evidence (read as her assertion, subject to relevance, and in part only provisionally admitted - see below) is that Mr Musa started gambling in or about 2000 and that their relationship rapidly declined as a result of his gambling habit (see her affidavit, sworn 23 March 2018, at [17]-[20] and [22]). Her evidence is supported by the observations of her son (Mr Aswad - see his affidavit, sworn 28 March 2018, at [8]-[12]) and her brother (Mr Abdel Alzreaiawi whose name appears differently in the Court documents and to whom I will refer simply as Abdel) (see his affidavit, sworn 4 April 2018, at [12]-[15], [17]-[19], [26]). Mr Musa denies that he has or had a gambling problem or that he dissipated his earnings by gambling (see his affidavit, sworn 24 April 2018, [11]-[13]).
Leaving aside the cause of the breakdown in the relationship, it seems not to be disputed that the couple separated at some time around 1998 (earlier than the date from which Ms Alzreaiawi says Mr Musa started gambling). A joint application for divorce was filed on 25 November 1999. On 7 February 2000 the application for dissolution of their marriage was heard and a decree nisi was made for the dissolution of the marriage. On 8 March 2000, the decree nisi of dissolution of the marriage became absolute (see the certificate dated 9 March 2000). There was no formal property settlement.
Meanwhile, the Smithfield property was acquired by the parties as joint tenants in February 1999 (after their separation but before their divorce) for the sum of $190,000 (see the transfer dated 3 February 1999) (although I interpose to note that Ms Alzreaiawi in her affidavit deposes that it was purchased for $200,000).
There is a dispute as to how the deposit was funded. According to Ms Alzreaiawi, she sold her jewellery and gold bars and contributed towards the purchase of the property in the form of a deposit of approximately $20,000; and she says that Mr Musa paid no moneys and made no contribution of funds towards the purchase of the Smithfield property (see her affidavit, sworn 23 March 2018, at [13]). As noted above, Mr Musa accepts that Ms Alzreaiawi had some gold bars but says each was small in size (see his affidavit, sworn 24 April 2018, at [5]) and that he was present when the gold bars were sold for $8,000 in cash (see his affidavit, sworn 24 April 2018, at [8]). Mr Musa's evidence is that he contributed the balance of the deposit for the Smithfield property (the loan, he says, being 90% of the purchase price) and that he paid all the expenses associated with the purchase out of his earnings (see his affidavit sworn 24 April 2018, at [9]). Ms Alzreaiawi does not admit that there was any shortfall in respect of the deposit (see her affidavit, sworn 23 March 2018, at [13]; and the amended defence, filed 29 March 2019, at -(d)). In written submissions filed in advance of the hearing, she says that if there had been any shortfall, the amount in question would have been accumulated during the relationship and would be treated as joint savings.
[3]
Claims here made
By prayer 1 of the statement of claim, Mr Musa seeks a declaration as to his claimed entitlement to the beneficial ownership of a one-half interest in the Smithfield property on the basis of his equitable title to it immediately prior to the time of completion of the sale of it on 24 November 2017. By prayer 2, Mr Musa seeks a declaration that he was removed as registered proprietor of the Smithfield property by way of the fraudulent conduct of Ms Alzreaiawi which occurred after the dissolution of their marriage. By prayer 3, Mr Musa seeks that Ms Alzreaiawi account to him for one-half of the proceeds of sale of the Smithfield property.
Damages are sought as alternative relief (in prayer 4). They are sought as at the date of transfer rather than the date of the fraud (the date of the transfer being said by Mr Musa to be the proper time of assessment, relying on Rentokil Pty Ltd v Channon (1990) 19 NSWLR 417). It is said that although the commission of the fraud was at the time of registration of the forged transfer, Mr Musa's rights as registered proprietor were converted to an equitable interest in the land (together with any other loss he may have suffered, although it is accepted that none is here alleged), and his loss is to be determined when that interest was realised by the sale of the property. Mr Musa argues that he is entitled to compensation for his loss at the time the property was sold because he was improperly denied his continuing title to it as registered proprietor, and because the sale price of the same is the best means of assessment of the value of the land.
By cross-claim filed on 28 March 2019, Ms Alzreaiawi sought various declarations. Certain of that declaratory relief was not pressed at the hearing. The declaratory relief that was pressed was that sought in prayer 3 and in prayer 4(b), as follows:
3. DECLARATION in the event the Supreme Court of New South Wales should find that it has Equitable jurisdiction to make declaration as to the beneficial interests of the parties in [the Smithfield property], that [Ms Alzreaiawi] is entitled to the whole of the beneficial interest in the proceeds of sale of the said property and [Mr Musa] has no such entitlement.
4. In the event the Supreme Court of New South Wales should become seised of jurisdiction pursuant to Family Law Act 1975 to declare the interests of the parties in [the Smithfield property] or order division of the proceeds of sale thereof pursuant to Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) or Jurisdiction of Court (Cross-Vesting) Act 1987 (Cth) or otherwise:
…
(b) [Mr Musa] has not made contributions or otherwise established entitlement to an adjustment of property pursuant to Part VIII of the Family Law Act 1975.
[4]
Lay evidence
Each of the parties was cross-examined on his or her affidavit, as was each of Abdel and Mr Aswad.
[5]
Mr Musa
For Mr Musa, it was said that his evidence was clear, cogent and "survived" cross-examination (T 161.42). It is certainly the case that Mr Musa was not shaken in his denial that he had signed the transfer form (or the discharge of mortgage form). He gave his evidence in a matter of fact way and his account of events, in a number of respects, more closely accorded with the objective or contemporaneous documentary record than that of Ms Alzreaiawi. In particular, his evidence as to the timing of the meeting with Sheikh Ansari was better supported by the contemporaneous documentary record (the handwritten note of the $10,000 loan).
Some of the explanation for evidence of Mr Musa that would otherwise have been difficult to accept having regard to the bank statements (such as his denial that he had withdrawn $25,000 on 26 October 2009, when it is evident that a sum in that amount was deposited in an account opened in his name on that day) was clarified in cross-examination - where it became clear that what Mr Musa meant was that he had not withdrawn that sum in cash on that day (contrary to what Abdel has deposed), but he accepted that the money had been transferred to his personal account by the bank on that occasion.
Other evidence, such as to the making of child support payments through an agency rather than direct to Ms Alzreaiawi or to an account of Ms Alzreaiawi cannot properly be tested on the evidence before me; nor can the assertions made by Mr Musa as to the deposits made in the Australian Capital Territory bank branches to Ms Alzreaiawi's accounts. Suffice it to note that it is not implausible that during the period in question Mr Musa was making some contributions from time to time to his former wife (for the upkeep or support of the children or otherwise).
I do not make any adverse credit finding against Mr Musa. I accept that he is adamant that he did not sign the transfer/discharge documents. However, I am faced with directly opposing accounts in this regard and, faced with the inconclusive nature of the expert's opinion, I am simply not persuaded that Mr Musa has discharged the onus of proof he bears of establishing the fraud allegations (as I will explain in due course).
Whether or not Mr Musa had, or was perceived by family members to have, a gambling problem is not to the point (though it may well explain the breakdown in the relationship and it might also provide a plausible reason for the parties to have reached an informal property settlement of the kind that Ms Alzreaiawi says they did), and I make no finding in relation to this contentious issue.
[6]
Ms Alzreaiawi
As to Ms Alzreaiawi's evidence, which was given with the assistance of an interpreter, Mr Musa submits that the evidence of Ms Alzreaiawi was untrue and at some points (such as her explanation for the error in the amount stated in her affidavit to be the purchase price for the Smithfield property), bizarre. In cross-examination it was put to her (expressly on instructions) that she had procured the false evidence of her brother and son - a very serious allegation to make and one which was both adamantly denied by Ms Alzreaiawi and not made good on the evidence.
Ms Alzreaiawi gave her evidence in a much more emotional manner than did Mr Musa. She was voluble at times in her accusations against her former husband and she was also tearful at times. I bear in mind of course the difficulties of giving evidence through an interpreter (exacerbated as they no doubt were by the fact that the evidence was taken during the Covid-19 pandemic via audio visual link in the virtual courtroom).
I do not consider Ms Alzreaiawi to have been untruthful in the giving of her evidence. There were certainly aspects of her affidavit evidence that were demonstrably incorrect by reference to contemporaneous documentary evidence (such as the affidavit evidence as to the purchase price paid for the Smithfield property, which she deposes in her affidavit was $200,000, but which in fact was $170,000), and her evidence that the property was first mortgaged to Suncorp (when in fact it was first subject of a mortgage to Perpetual). As to the purchase price error, for which various explanations were given "on the run" by Ms Alzreaiawi, her suggestion in the witness box that it was a typographical error made no sense in circumstances where the affidavit was in English and (though it had not been properly certified as such) the evidence was that the affidavit had been read through to her in Arabic before she confirmed it was correct and signed it (see T 87). If that is the case then it is difficult to see how there could have been a typographical error (unless the Arabic version of the two monetary amounts would be the same or readily able to be confused when spoken).
However, what became clear in the course of her evidence was that Ms Alzreaiawi's memory of dates and numbers was generally unreliable (so, for example, she put the commencement date of Mr Musa's gambling problem at around 2000, but if that was indeed the cause of the relationship breakdown then this date must be wrong as the separation was in 1998 or at least certainly by 1999, since it was accepted that the Smithfield property was acquired after separation). Ms Alzreaiawi herself made clear that she was confused as to dates (see, for example, at T 107.45). And it was also clear from the cross-examination that she paid little attention to or had little recall of precise financial details.
[7]
Abdel and Mr Aswad
Abdel, who is the brother of Ms Alzreaiawi, gave evidence while in isolation at his home. An affidavit sworn by Abdel on 4 April 2018 had been filed and served in the proceedings. It was not formally read when the case was opened by the respective parties (as it was not clear then whether he would be available for cross-examination), though I gave indicative rulings in relation to those portions of the affidavit to which objection was taken. As it transpired, Abdel was in due course cross-examined as to his recollection of accompanying Ms Alzreaiawi to the bank in October 2009, and to his recollection of the meeting with Sheikh Ansari. Although not formally read at the time, I have proceeded on the basis that the affidavit is to be treated as read, with the indicative rulings I had earlier indicated.
As to the matters to which Abdel there deposed, his recollection that a sum of money was withdrawn in cash from the bank in October 2009 is inconsistent with the bank records (which make clear that there was an electronic funds transfer between accounts on that day). However, it is not implausible that Abdel did accompany his sister to the bank (and to the meeting with Sheikh Ansari), given that by this stage the marital relationship between his sister and her husband was at or nearing an end and it is not implausible that he was assisting his sister at the time. If nothing else, Ms Alzreaiawi would no doubt have required an interpreter if she was to deal with documents in English and may well have wanted a family member present. I accept that Abdel has a genuine recollection of being at both meetings (although I consider it probable that he is mistaken as to the date of the meeting with Sheikh Ansari). Further, I accept that Abdel's perception was that Mr Musa had a gambling problem (though nothing here turns on whether that perception was correct) and there is no reason not to believe he is giving truthful evidence as to his recollection of there being a loan from his mother to Mr Musa at one stage, about which they had a conversation (although I accept that Mr Musa denies this).
As to Mr Aswad, Ms Alzreaiawi's son, he gave evidence in a brusque, matter of fact way. He was challenged on evidence such as his recollection of receiving mortgage payment demand notices or other overdue bill notices. I accept it is quite plausible that, since his mother does not read English, as her oldest son it is likely that he would have opened and read mail addressed to her, and that it is not implausible that the mail included mortgage demands (particularly since there are bank statements that show clearly that there were dishonoured direct debits for some time).
[8]
Mr Ghassan Alassadi
The accountant who witnessed signatures on the Suncorp mortgage documents from 2000 was unwell and unable to be cross-examined. His evidence was thus unchallenged in any practical sense but has to be approached cautiously with that in mind. His evidence in general went to the issue whether the witness' signature on the 2011 transfer document had been forged (see his affidavit, sworn 19 March 2018, at [13]). He was unable to shed any real light on that issue.
[9]
Sheikh Ansari
No evidence was called from Sheikh Ansari, who was at the meeting in late 2009 when the document in relation to the $10,000 loan was signed. As adverted to earlier, for Mr Musa it was suggested that an adverse inference could be drawn from the fact that no evidence was called from him. I do not accept that a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298 at 308, per Kitto J; at 312-313, per Menzies J; at 321, per Windeyer J; [1959] HCA 8) should here be drawn. While I readily accept that Sheikh Ansari may have been able to shed light on what happened at the relevant meeting (and, in particular, whether it was agreed that there would be a loan of $35,000 in total - inconsistently with the signed document), I do not accept that Sheikh Ansari would be regarded as someone in Ms Alzreaiawi's "camp", so to speak (see RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [78]-[96], per McColl JA, Sackville AJA agreeing, for a discussion of the relevant principles). There is no "property" in a witness and no obvious reason why Mr Musa could not have called such evidence himself had he wished to do so. Moreover, an explanation was proffered by Mr Aswad for the fact that Sheikh Ansari was not called to give evidence (see T 152.8), namely that in their culture it would not have been appropriate. That explanation on its face is not implausible.
[10]
Expert evidence - Ms Michelle Novotny
There was in evidence a report by the joint handwriting expert, Ms Novotny. Ms Novotny was not available for cross-examination (see the affidavit of Ms Alzreaiawi's solicitor, Ms Sherine Metry, sworn 17 March 2020) and no issue was taken with her unavailability.
Relevantly, Ms Novotny was asked to opine on two opposing propositions and she concluded as follows:
41. As to proposition P1 [that the original of the questioned signature was written by the writer of the Musa specimens], the similarities could be evidence of the same writer and the isolated unaccounted for features could be further (incidental, accidental or deliberate) variations beyond the range of variation depicted by the 12 specimen signatures …
42. As to proposition P2 [that the original of the questioned signature was written by a person other than the writer of the Musa specimens], the similarities could be the result of another person attempting (reasonably skilfully at least with respect to the gross pictorial signature features) to simulate the Musa signature style with the isolated unaccounted for features being possible "errors" in that process.
43. Within the limitations discussed above, and on the basis of the assumption made and my observations, I am of the opinion that the observations provide approximately equal support for propositions P1 and P2. That is to say, my observations based on the documents submitted do not allow me to distinguish between the two propositions and the finding is indeterminate. I am inconclusive as to whether the questioned signature reproduced on Q1 was or was not written in original form by the writer of the Musa specimens.
What Ms Novotny examined was only a copy of the transfer document (not the original, which was unavailable despite endeavours to obtain it from Land and Property Information) and various sample specimen signatures. It is not disputed that she was not provided with a copy of the discharge authority form (which was obtained on subpoena shortly before the agreed instructions to the joint expert were forwarded), on which there is also a disputed Musa signature. (There was no real explanation for this other than the timing of production on subpoena of the discharge form; though of course at that stage Mr Musa had not yet disavowed his apparent signature on that document.)
[11]
Mr Musa's fraud claim
Mr Musa accepts that, in order to succeed on his fraud claim, he must establish that Ms Alzreaiawi was party to the alleged fraud (fraud being an exception to indefeasibility pursuant to s 42 of the Real Property Act 1900 (NSW)). His submission is that Ms Alzreaiawi had the means (by reason of access to his identity documents), motive (i.e., financial benefit), and opportunity to forge his signature; and (presupposing a finding that his signature was forged) that it is difficult to see how such a fraud would occur without the participation of Ms Alzreaiawi (and without access to the certificate of title), as there is no other immediate person who stands to have his or her interests advanced by the fraud.
Mr Musa submits that the fact that the evidence of the parties is "diametrically opposed" (in that, according to Ms Alzreaiawi, he decided voluntarily give his interest in the land to her, arranged the execution of the transfer, and handed it to her; whereas he adamantly denies this) means that there is no room for a conclusion other than that, if his signature was forged, then Ms Alzreaiawi was a party to the fraud.
Mr Musa's case is that the fraud of Ms Alzreaiawi gives him an equitable entitlement (by way of a constructive trust) to the one-half interest in the Smithfield property of which he was deprived; and which, at least up to the time the land was sold, could be asserted against Ms Alzreaiawi as the registered proprietor (citing McGuinness v Registrar-General (1998) 44 NSWLR 61 at 71-72, per Hodgson CJ in Eq, as his Honour then was), and therefore against one-half of the total proceeds of sale.
Mr Musa accepts that the question as to whether or not the signature on the transfer is a forgery is a question of fact to be determined on the basis of the competing versions of events (as presented in both written and oral evidence of both parties). Mr Musa submits that, although the expert evidence is inconclusive (see below), the "probability that the unaccounted features in the signature could be deliberate" points strongly away from Mr Musa being the writer. It is submitted that it is "inherently improbable" that Mr Musa would sign the transfer with deliberate variations.
Pausing here, it is by no means unprecedented for accusations to be made of deliberate forgery, or acquiescence in a forgery, by the very person whose signature is in question - see for example the situation in Elfar v Registrar General of New South Wales [2010] NSWSC 539 where one of the allegations was that Mr Elfar had acquiesced in, or had knowledge of, the provision to the then incoming mortgagee of a discharge of mortgage in registrable form containing a signature purporting to be his, so as to enable a discharge of the mortgage to be registered (there then being a claim made for compensation as a result of the registration of the allegedly forged discharge). However, I did not understand it here to be suggested (nor was it put to Mr Musa) that Mr Musa had sought deliberately to sign the transfer in such a fashion as to give himself an ability later to deny the signature (and it is difficult to conceive of a scenario where that might have been thought to be for his benefit).
[12]
Ms Alzreaiawi's cross-claim
Ms Alzreaiawi submits that what Mr Musa is now seeking to do is to set aside an existing agreement and to make a "belated attempt to bring Family Law property proceedings of a sort". It is submitted that Mr Musa is seeking to circumvent the restrictions of ss 44(3) and 79 of the Family Law Act 1975 (Cth) (Family Law Act) (which would have required an application for a property adjustment to be made within 12 months of the decree absolute, i.e., by 9 March 2001) by now claiming equitable relief and damages. It is noted that Mr Musa has not sought cross-vesting orders in respect of the Family Law Act jurisdiction.
Ms Alzreaiawi points out that in cases where the Family Law Act jurisdiction has been cross-vested, a common feature is the presence of third parties such as trustees or directors (referring to Xie v Li [2019] NSWSC 808; Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440; Young v Lalic (2006) 197 FLR 27; [2006] NSWSC 18; Montgomery v Porter [2019] NSWSC 1524); whereas here the present case is only between the parties and, she says, arising directly from the marriage between the parties. Ms Alzreaiawi further points out that post-separation contributions (where they can be established) are taken into account under s 79(4)(a) of the Family Law Act and can be assessed to the time of the hearing pursuant to Family Law Act jurisdiction (see, for example, In the Marriage of Jacobson (1988) 93 FLR 320; 12 Fam LR 828). There is consequently said to be no need for Mr Musa to turn to the equitable jurisdiction for relief for post-separation contributions, should he establish that they were made (citing Marsh v Marsh (2014) FLC 93-576; [2014] FamCAFC 24). In that regard, it is noted that Mr Musa has not produced receipts in relation to claimed contributions.
Ms Alzreaiawi says that Mr Musa, in claiming equitable jurisdiction, seeks to avoid assessment pursuant to s 79(4)(b) (non-financial contributions), s 79(4)(c) (contribution to the welfare of the family), and ss 79(4)(e) and 75(2) (maintenance considerations) of the Family Law Act; and that, if allowed, this does serious injustice to Ms Alzreaiawi.
Ms Alzreaiawi says that the parties reached an agreement in 2009 (see her affidavit sworn 23 March 2018, at [37]-[43]) for the transfer of the Smithfield property to her, which they finalised by carrying out their own arrangements in 2011 when the parties signed the transfer (see her affidavit at [44]-[49]) and the discharge of the Suncorp mortgage. It is submitted that the discharge of mortgage (which I note, up to his oral evidence, appears not to have been called into question by Mr Musa) evinces an intention to transfer the Smithfield property. It is submitted that Ms Alzreaiawi has relied on those arrangements, by relieving Mr Musa of any obligations under the mortgage and making all mortgage payments by herself from 2011 to sale of the property in 2017. (No estoppel claim as such appears here to be pleaded in the cross-claim.)
[13]
Determination
An allegation of fraud is a serious allegation to be made (as Mr Musa here accepts). While the standard of proof for an allegation of fraud in a civil case is still on the balance of probabilities (see s 140 of the Evidence Act), on the Briginshaw test one takes into account the nature and the subject matter of the proceedings, and the gravity of the matters alleged, when determining what evidence is sufficient to establish the fact alleged on the balance of probabilities (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362, per Dixon J; [1938] HCA 34). Where direct evidence as to the fact in issue is not available, the High Court has noted (in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, per Dixon, Williams, Webb, Fullagar and Kitto JJ) that:
… it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture …
[Emphasis added]
In relation to the application of the Briginshaw test where serious allegations have been made, the High Court has said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 (at 171, per Mason CJ, Brennan, Deane and Gaudron JJ) that:
Statements to that effect [that clear or cogent or strict proof is necessary where so serious a matter as fraud is to be found] should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
[Emphasis added]
This is particularly important in the present case. The submission for Mr Musa is that, if it is found that Mr Musa did not give the signed transfer back to Ms Alzreaiawi, then Ms Alzreaiawi must have been party to this fraud (because she said in her evidence that she received it signed from Mr Musa, which he vehemently denies). However, the difficulty for Mr Musa in this regard is (as was quite fairly acknowledged by his Counsel) there is not any one piece of evidence that is so decisive one way or the other that would mean that Ms Alzreaiawi's case could not, as a matter of logic, be maintained. Nor does the totality of the evidence taken together rise sufficiently high to sustain Mr Musa's case such that I could be actually persuaded that on the balance of probabilities Ms Alzreaiawi committed, or was party to, the alleged fraud. This case appears to me to be one of competing inferences, where, without more definitive evidence, the choice between them rests on conjecture, not actual persuasion.
[14]
Orders
For the reasons set out above, I make the following orders:
1. Dismiss the plaintiff's claim.
2. Dismiss the defendant's cross-claim.
3. Order that order 3 of the orders made by consent on 6 November 2017 be discharged and that the moneys held in the controlled moneys account in the names of the respective solicitors be released to the defendant.
4. Order the plaintiff/cross-defendant to pay the defendant/cross-claimant's costs of the proceedings.
[15]
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: 29 May 2020
Parties
Applicant/Plaintiff:
Musa
Respondent/Defendant:
Alzreaiawi
Legislation Cited (5)
Jurisdiction of Courts (Cross Vesting) Act 1987(NSW)
Jurisdiction of Court (Cross-Vesting) Act 1987(Cth)
The bulk of the funds for the purchase of the Smithfield property were the subject of a loan from Perpetual Trustees Australia Ltd (Perpetual), secured by mortgage dated 3 February 1999. The mortgage secured an advance of $170,000 (see the stamp duty paid on the mortgage), which is consistent with the deposit being around $20,000 (given the $190,000 purchase price). The loan was re-financed in late 2000 by Suncorp-Metway Ltd (Suncorp), secured by a mortgage over the property (granted on 7 December 2000) for advances of $180,000.
From 2000 through to until around 2009, Mr Musa lived in a "granny flat" at the rear of the Smithfield property. By 2009, Mr Musa was living on and off in Canberra (where he was working as a formworker). He says he moved permanently to live in Canberra in about June 2010 (see his affidavit, sworn 24 April 2018, at [40]).
According to Ms Alzreaiawi, the arrangement reached between the parties at the time of the purchase of the Smithfield property was that Mr Musa was responsible for the payment of the mortgage and living expenses, and that she paid the children's school and personal expenses, including utility bills (see her affidavit, sworn 23 March 2018, at [15]). She says that she and Mr Musa had separate bank accounts; that she was in receipt of Centrelink benefits for the children at the time; and that she was not employed until she commenced work as a child carer in 2014 (see her affidavit, at [16]). In her oral evidence, Ms Alzreaiawi said she was also in receipt of Centrelink benefits for her mother at the time (see T 94.1-15).
Ms Alzreaiawi says that those financial arrangements (referred to at [15] of her affidavit, sworn 23 April 2018) continued until in or about 2009 (see at [26] of her affidavit). However, she deposes to occasions when she says Mr Musa failed to pay utility bills or council rates and she says that, from time to time commencing in November 2002 through to November 2011, she met the mortgage repayments (see at [28]ff of her affidavit). Indeed, her evidence is that from 2009, Mr Musa ceased paying the mortgage repayments or utility bills and that she made all the payments towards all the mortgage repayments, living expenses, and utility bills (see at [32]-[33] of her affidavit). Ms Alzreaiawi goes on to depose that from time to time she had to borrow money from friends and relatives to do so. Ms Alzreaiawi has produced some receipts for payments on the mortgage (and she notes that Mr Musa has not).
Mr Musa (in his affidavit sworn 24 April 2018) appears to accept that he ceased directly making mortgage repayments in 2009, but he says that he thereafter paid the mortgage repayments directly to Ms Alzreaiawi by depositing the money to her account (see at [18]). His evidence is that the repayments to Suncorp were due monthly and that he usually deposited the monthly payments to their joint account with Suncorp directly by cash deposits at a Suncorp branch, but that on some occasions prior to 2010 he gave the money for the mortgage repayments in cash to Ms Alzreaiawi (see at [17] of his affidavit). Documents produced on subpoena by Westpac Banking Corporation appear to record various deposits to a bank account in the name of Ms Alzreaiawi from a branch in the Australian Capital Territory, which would be consistent with at least some deposits being made by Mr Musa as he has asserted (see Exhibit A).
Ms Alzreaiawi gives evidence that, in about October 2009, there was an agreement reached that Mr Musa would transfer his share in the Smithfield property to her (see the conversation to which she deposes at [37] of her affidavit sworn 23 April 2018).
While Mr Musa denies the specific conversation in October 2009 to which Ms Alzreaiawi deposes at [37] of her affidavit (see [20] of his affidavit sworn 24 April 2018), he nonetheless does accept that there was a conversation in relation to what was to happen to the Smithfield property in 2009. He deposes to a conversation with Ms Alzreaiawi in 2009 to the effect that he said "I am not going to sell the house because I am going to leave it to the kids"; that Ms Alzreaiawi said that is what she wanted and that they had to transfer the land to the children's names; and that he said no "we'll leave it in our names" (see at [7] of his affidavit sworn 2 November 2017).
Pausing here, there is at least a consensus between the parties that the intention (or agreement) between them in 2009 was that the Smithfield property was to be for the benefit of the children. Ms Alzreaiawi's oral evidence is that it was her intention when the Smithfield property was sold that the proceeds be used to benefit the children (see T 82.4ff, 181.14). (Obviously that has not been able to happen while the funds have in effect been left in suspense pending the determination of these proceedings.)
There is a dispute between the parties as to certain amounts that were withdrawn from the couple's joint loan account in 2009 (see Mr Musa's affidavit, sworn 24 April 2018, at [20]-[25]; and Ms Alzreaiawi's affidavit, sworn 23 March 2018, at [37]-[43]). The significance of this, for present purposes, is that on Ms Alzreaiawi's case, Mr Musa has already received anything he might have been entitled to receive out of the Smithfield property when he received sums totalling $35,000 in around 2009 or 2010.
Ms Alzreaiawi deposes to a meeting held with Mr Musa, her brother Abdel, and a Muslim religious leader and mediator (Sheikh Ansari) at which she says she agreed to lend Mr Musa the sum of $35,000 (see her affidavit, sworn 23 March 2018, at [38]). She says that she withdrew the sums of $25,000 (on 26 October 2009) and $10,000 (on 9 November 2009) from her bank account (in the presence of her brother, Mr Alzreaiawi, and Mr Musa) and gave those amounts to Mr Musa. (Her bank statements, annexed to her affidavit, record those amounts being withdrawn on those dates.) She maintains that she has not been repaid those amounts (see at [43] of her affidavit).
Annexed to Ms Alzreaiawi's affidavit is a copy of a handwritten document in Arabic, the translation of which reads:
By the Name of Allah the Most Gracious the Most Merciful
I am Mohamad Mousa Mohamad Alaboudi acknowledge and confirm that I borrowed AU $10000 from Boushra Hassan Hashesh. I promised to return it to her within 6 months. I am required by Alsheikh Al Ansari to repay her the money within this period.
Signed by Mohamad Mousa Mohamad Alaboudi (signed)
Date: 21 Thei Alkeda 1430 H 9/11/2009 C.E
Mr Musa accepts that there was a meeting with Sheikh Ansari and Ms Alzreaiawi. However, he says that the meeting was on 9 November 2009 (the date of the handwritten note); and he says that Ms Alzreaiawi's brother was not at the meeting, and there was no conversation as to a loan of $35,000. Pausing here, obviously if the meeting only took place on 9 November 2009, this is inconsistent with an agreement having been reached, prior to the withdrawal of the $25,000 sum on 26 October 2009, for a loan of $35,000. It is relevant here to note that there is no suggestion that there was more than one meeting with Sheikh Ansari.
Mr Musa deposes that in February 2009, he, Ms Alzreaiawi, their children and Mr Aswad travelled to Iraq; that he met the cost of the trip; and that because the loan account was jointly in his and Ms Alzreaiawi's names he needed Ms Alzreaiawi to allow him to withdraw money (as I understand it, to make good the trip expenses he said he had borrowed). He maintains that the document was signed on the date of the Sheikh Ansari meeting (which he says was on 9 November 2009), and that he did not borrow any money; rather, he says, he was using his money which he had paid in advance up to and including 2010 (the sum, he says of $56,905.19) (see at [20] of his affidavit sworn 24 April 2018).
In this regard, Mr Musa has annexed a Suncorp Bank home loan statement for the period 11 July 2009 to 10 January 2010 which records payments in advance of $56,905.19, and total cashbacks of $35,000 (comprised of $25,000 on 26 October 2009 and $10,000 on 9 November 2009). It records total repayments made in that period as nil.
There is recorded for a separate bank account in Mr Musa's name a deposit of $25,000 recorded as "Cashback Dep Parramatta" (on 26 October 2009) and a similar deposit entry "Cash Corr Parramatta" of $10,000 to that account (on 9 November 2009). Mr Musa's evidence is that he did not make the deposit of $25,000 to that account (or the subsequent withdrawals from that separate account) and did not withdraw from the joint account until he withdrew the sum of $10,000 on 9 November 2009 (see at [22] of his affidavit). In cross-examination, this evidence was clarified. As I understand it, Mr Musa accepts that the sum of $25,000 was deposited to his personal account on 26 October 2009 from the couple's joint home loan account - his position is, however, that this was an electronic transfer from the bank and not (as Mr Abdel has deposed) a withdrawal in cash (which he says the bank would not permit) (T 46.34ff). And he maintains that this was not a loan. He seems to be of the view that he was entitled to withdraw moneys paid in advance on the loan account as they were "his" moneys (see T 59.5ff) (if so, of course, that would suggest that they were not contributions to the mortgage repayments - hence there is some inconsistency in his position; but ultimately nothing turns on this).
Mr Musa agrees that he and Ms Alzreaiawi attended the bank on 26 October 2009 (but not, he says, with her brother) and withdrew the sum of $25,000, but says again that he was using his money which he had paid in advance "on the top of the mortgage amount" (see at [21] of his affidavit sworn 24 April 2018). As to the sum of $10,000, he says that he withdrew that amount from the joint account on 9 November 2009 (and that Ms Alzreaiawi had insisted he sign the document annexed to her affidavit before she allowed him to withdraw that money) ([23] of his affidavit sworn 24 April 2018). (In closing submissions, it was suggested for Mr Musa that an inference could be drawn from the fact that Sheikh Ansari had not been called to give evidence by Ms Alzreaiawi - see T 162.29ff.)
Ms Alzreaiawi in her oral evidence says that it was she who paid for the trip to Iraq in 2009 (and she says that she paid for this with gold bars - although this seems to be inconsistent with the gold bars having been sold earlier for the purpose of the house deposit; leading to the "rivers of gold" submission made by Mr Musa in relation to her evidence - see T 106.26; 162.6).
Ms Alzreaiawi also gives evidence that in about February 2010, a Toyota Camry motor vehicle which Mr Musa had purchased on finance in 2007 was repossessed, following which she says that she withdrew $10,000 from her account and paid it to Toyota and Mr Musa transferred the ownership of the vehicle to her (see at [36]-[37] of her affidavit sworn 23 March 2018). Mr Musa's account of the arrangements in relation to the car is that at the time he left to live in Canberra (which he puts as being in 2010) he said to Ms Alzreaiawi that he would leave the car with her, but that she was to make the payments on it; and that he completed a form on the back of the registration certificate to the effect that the car had been transferred to her (see at [19] of his affidavit sworn 24 April 2018). He denies the conversation to which Ms Alzreaiawi has deposed (see at [19]-[20] of his affidavit sworn 24 April 2018).
More relevantly, for present purposes, Ms Alzreaiawi deposes to arrangements made for the transfer of the property to her in about October 2010 (see from [44] of her affidavit sworn 23 March 2018). In particular, she says that she instructed lawyers to act in respect of the transfer of the property; that she called Mr Musa by telephone to come and take the transfer document and have it signed; that she handed him the transfer when he attended the property and told him he needed to sign it and have it witnessed and then return it to her so she could give it to her solicitor; and that a few days later Mr Musa came to the property and handed her the transfer which she took back to her solicitor. Ms Alzreaiawi deposes that she is not aware of when or where Mr Musa signed the transfer; that she does not know the witness on the transfer document; that she did not forge Mr Musa's signature on the transfer document (or any document); and that she did not cause or request any person to do so. Ms Alzreaiawi's evidence as to the provision of the transfer document(s) to Mr Musa is corroborated by evidence from Mr Aswad to the effect that he saw his mother hand a bundle of documents to Mr Musa and ask him to have them signed and returned (see his affidavit, sworn 28 March 2018, at [23]) and Abdel's evidence as to a conversation with Mr Musa (which Mr Musa denies) in relation to the transfer of the house (see his affidavit, sworn 4 April 2018, at [28]).
Ms Alzreaiawi has annexed to her affidavit copies of Mr Musa's passport and South Australian drivers' licence (she says that she had copies of those documents for the purposes of the Iraq trip in 2009 - see T 132.40ff). She deposes that she recalls seeing Mr Musa sign his signature during their marriage and prior to 2009 and to her belief that the signature on the transfer is that of Mr Musa (see at [52]-[53] of her affidavit sworn 23 March 2018).
There is in evidence a copy of correspondence produced on subpoena by Suncorp, comprising a signed "Refinance/Sold Authority" form dated 22 May 2011, which purports to bear signatures from both Mr Musa and Ms Alzreaiawi. It was forwarded to Suncorp under cover of a letter dated 24 May 2011 from Ms Alzreaiawi's solicitors, which referred to a "Refinance/Sold Authority" "duly executed by our clients and forwarded to you for processing on 31 October 2010", and advising that their clients were "now ready to finalise the matter". This timeframe is consistent with Ms Alzreaiawi having given instructions to her solicitors in 2010 (as she deposes), albeit that the transfer did not occur until 2011.
Mr Musa denies that it is his signature on the discharge authority form (see T 48.35). The form appears to have surfaced, so to speak, when the present dispute arose and Mr Musa's solicitors requested copies of a discharge authority which they contended would have been required as a matter of common practice at the time, and the subpoena was then issued.
On 24 June 2011, a transfer of Mr Musa's then one-half interest in the Smithfield property was registered. As noted, Mr Musa's allegation is that this occurred as a result of fraud on the part of Ms Alzreaiawi; in particular, that the signature on the transfer form was forged (which is denied by Ms Alzreaiawi).
The transfer form contains an acknowledgement as to the consideration for the transfer being $187,500. There is no suggestion that an amount of $187,500 was paid to Mr Musa at the time (or ever) in relation to the transfer. The transfer was stamped for duty in the amount of $5,052.50. Therefore, it would appear that duty was paid on the basis of a sale consideration in the amount specified on the transfer. The transferor's signature (i.e., that of Mr Musa) on the transfer was purportedly witnessed by a witness whose name on the transfer appears to be "Saleh Namens", with an address specified at a particular location in Hamilton Road, Fairfield. Mr Musa deposes that he knows of no such person (see at [10] of his affidavit sworn 2 November 2017). Nor does Ms Alzreaiawi know of such a person (see at [49] of her affidavit sworn 23 March 2018). There was some cross-examination of Mr Musa to suggest that the Fairfield address might have been known to him through his work as a formworker at some time, but there is no evidence to support such a conclusion; and there was also some "question mark" over the address (i.e., what was located at that address), but again that seems to be no more than speculation (T 53.35ff).
There was also some cross-examination of Mr Musa as to whether he had made enquiries to locate the witness (to which his response was that this was not his job - it was for the police or the court to do so - see T 56.8). I draw no inference from the fact that Mr Musa did not himself apparently investigate the identity or whereabouts of the purported witness. Certainly, it may have assisted his case if he were able to prove a negative, but it does not enable an adverse inference to be drawn against him that he did not.
In June 2011, the Suncorp mortgage over the Smithfield property was discharged (see discharge of mortgage form annexed to Mr Musa's affidavit sworn 2 November 2017). A new mortgage was taken out over the property by Westpac, the sole mortgagor being Ms Alzreaiawi. In 2012, Mr Musa remarried.
Mr Musa's evidence is that he learnt of the proposed sale of the Smithfield property in September 2017 from his brother. (In oral evidence he said variously that he was hospitalised and that he was overseas when he learnt that the property was up for sale but nothing turns on this - see T 67.10ff). Mr Musa deposes (as already adverted to) that his intention was that upon his and Ms Alzreaiawi's deaths the property would be transferred to their children (see at [16] of his affidavit sworn 2 November 2017). (In cross-examination he was challenged as to the fact that he had not made any enquiry as to Ms Alzreaiawi's intentions in selling the Smithfield property - i.e., that she was intending to buy another property for the children; and it was suggested to him that he had changed his mind about the earlier agreement when he realised that the property had increased in value. He denied this. See T 68. He maintains that the intention was for the Smithfield property to be for the benefit of the children, not transferred to Ms Alzreaiawi - "We leave the house for the children to live on, not to transfer her name" - T 65.37; and see T 66.14; T 66.40.)
Mr Musa initially caused a caveat to be lodged on the title but deposes that he withdrew the caveat (following legal advice because the caveat did not particularise the estate or interest in the land claimed by him); and that, when he went to lodge a second caveat, he was informed that an application for the issue of a lapsing notice had been made by Ms Alzreaiawi (of which he says he was not previously aware) (at [18] of his affidavit sworn 2 November 2017).
As already noted, the proceeds of sale of the Smithfield property have been retained in a trust account pending the determination of this dispute. Consent orders were made on 6 November 2017 including that on settlement of the sale of the Smithfield property the net proceeds were to be deposited in a controlled moneys account in the names of the respective solicitors pending further order (order 3).
I formed the impression that in some of her evidence Ms Alzreaiawi may have been prone to exaggeration - such as, for example, in the account she gave of the gold bars (since they featured in the evidence not only at the time of sale for the purpose of the deposit, but also as an explanation as to how she said she paid the expenses for the family trip back to Iraq quite some time later - see T 106.47); and I have some difficulty with the account that she was able to pay considerable sums for the family trip to Iraq (or otherwise) when on her evidence she was only in receipt of Centrelink benefits over the relevant period.
That said, I observed Ms Alzreaiawi to display genuine emotion when giving evidence as to Mr Musa's gambling problem and when calling on Mr Musa on his oath under the Koran not to make false denials (see, for example, T 103.19; 112.24).
Pausing here, I indicated when ruling on the evidentiary objections at the outset of the proceeding that I would read parts of Ms Alzreaiawi's affidavit evidence (see at [18] and [19] of her affidavit sworn 23 March 2018) in which evidence of Mr Musa gambling was given, subject to relevance; and that I would deal in my final reasons with the application by Mr Musa for that evidence to be excluded pursuant to s 135 of the Evidence Act 1995 (NSW) (Evidence Act) (which permits evidence to be excluded if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party or be misleading or confusing, or cause or result in undue waste of time).
The relevance of Ms Alzreaiawi as to her observations of Mr Musa's alleged gambling (on two unidentified occasions at the Smithfield RSL Club, and her assertion that he had "wasted all his pay on the pokies"), to the critical issue as to whether the alleged fraud occurred, is marginal at best. As adverted to above, it provides a plausible context in which the marriage relationship broke down and it may well explain some of the steps taken by Ms Alzreaiawi and/or her family members (such as in documenting the loan arrangement apparently brokered by, or agreed in the meeting with, Sheikh Ansari). Hence it has some relevance (and perhaps in this context "sufficient relevance") to an understanding of what is said to have transpired between the parties, but to my mind it is not determinative of any issue in relation to the alleged fraud itself.
The balancing exercise required by s 135 of the Evidence Act requires an assessment of the danger associated with the admission of the evidence (and whether the probative value of the evidence is substantially outweighed by that danger). In the present case, I have difficulty in seeing any unfair prejudice to Mr Musa in the admission of the evidence (largely because I do not consider it to be of assistance on the question as to whether Mr Musa's signature on the relevant transfer form was forged, and hence there is no risk that the evidence will be misused in some unfair way). I accept that it might be said to be misleading or confusing having regard to the generality of the evidence but again nothing will here turn on this evidence (and it did not cause or result in any undue waste of time at the hearing).
Were it necessary finally to rule on the application to exclude this evidence under s 135 of the Evidence Act I would conclude that the probative value of the evidence to the critical issue in dispute is low but that the "danger" associated with its admission is also very low and hence that it could not be said that the probative value of the evidence is substantially outweighed by the danger of its admission. The weight ultimately to be attached to that evidence would be another matter. As it is, nothing turns on this. I will treat those paragraphs as remaining in evidence (as assertions and subject to relevance and weight), as provisionally admitted at the time.
Returning to the issue of Ms Alzreaiawi's credit, my conclusion is that Ms Alzreaiawi was endeavouring to answer truthfully the questions put to her but that her recollection of dates and events was not always reliable; and she was prone to exaggeration (thus I would discount her broad assertions that Mr Musa paid no amounts towards the mortgage or that he never visited the children or the like). I would (as is almost always the most reliable) prefer the contemporaneous written record to later oral recollections.
Therefore, the two realistic scenarios are that: Mr Musa in fact signed the transfer (and has either forgotten about it or is now giving false evidence about it); or that someone forged his signature (in which case it is difficult to see how Ms Alzreaiawi would not be privy to that conduct at least to the extent that on this hypothesis Mr Musa would not have handed her any documents at all).
What Mr Musa contends for, in essence, is a finding that this is a skilful forgery (albeit one that still gives rise to features which could not be fully accounted for, despite the differences not being significant), that being the second of the propositions considered by the joint expert.
Ms Alzreaiawi on the other hand denies any allegation of, or knowledge of, any alleged forgery in respect of the transfer to her of Mr Musa's interest in the Smithfield property. Ms Alzreaiawi points to evidence from her son that he saw documents handed by her to Mr Musa and that he heard a conversation between the parties concerning the signing of those documents (see the affidavit of Mr Aswad, sworn 28 March 2018, at [23]); and to the evidence from her brother about conversations with Mr Musa in relation to the signing of the documents (see the affidavit of Abdel, sworn 4 April 2018, at [28]). Ms Alzreaiawi submits that this evidence is sufficiently different and unbiased in language as to be highly persuasive of the proposition that Mr Musa signed the documents, as she has asserted.
Ms Alzreaiawi attaches significance to the opinion of Ms Novotny to the effect that, if the signature is not a genuine signature, then the forgery was carried out "reasonably skilfully at least with respect to the gross pictorial signature features" (see Ms Novotny's report, dated 19 September 2018, at [42]). It is submitted that this points to the more likely proposition being the first of the propositions considered by Ms Novotny, namely that the questioned signatures were made by the writer of the known Musa signatures (i.e., Mr Musa himself).
In oral submissions, Counsel for Ms Alzreaiawi also invoked the presumption of regularity in relation to the signature on the transfer (see at T 170.36ff) (citing the decision of Sackar J in Cambodian Buddhist Society of NSW v Meng Eang Thai [2017] NSWSC 1433 (Cambodian Buddhist Society)). I do not consider that the presumption of regularity is here applicable. The presumption is not a general presumption applicable to all forms of evidence; rather it is predominantly used in public law for evidencing due appointment and capacity to act. Sackar J (at [64]-[65] in the Cambodian Buddhist Society case) there referred to the principles surrounding the presumption of regularity as set out in Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 (at [113]-[118], per McColl JA with whom Macfarlan and Whealy JJA agreed). It is not necessary here to repeat those principles. Suffice it to say that it does not seem to me that they are applicable to or would assist in the determination of the issue presently before me, which is whether (on the balance of probabilities) the transfer of Mr Musa's one-half interest in the Smithfield property to Ms Alzreaiawi was procured by a fraud to which she was a party.
Ms Alzreaiawi argues that there is a strong argument for the refusal of an extension of time for Mr Musa to institute proceedings pursuant to s 44(3) of the Family Law Act (citing Sharp v Sharp (2011) 50 Fam LR 567; [2011] FamCAFC 150). (Mr Musa, I should note, disavows any attempt here to bring a property adjustment claim and says that this is essentially a fraud case.)
As to Ms Alzreaiawi's contributions, reliance is placed in her submissions on the evidence that she had a number of gold bars at the commencement of the relationship, as well as cash and jewellery. It is said that the cash was applied for the benefit of both parties, and the gold bars and jewellery were sold to provide the deposit for the Smithfield property. It is further said that Mr Musa received money in 2009 (referring to Ms Alzreaiawi's affidavit, sworn 23 March 2018, at [38], [41]-[43]; Mr Musa's affidavit, sworn 24 April 2018, at [20]-[24]) (namely a sum of $10,000 and a loan of $25,000 which was never repaid), and that the transfer of Mr Musa's interest in the Smithfield property on 24 June 2011 was the culmination of the discussions or arrangements between the parties, in reliance on which Ms Alzreaiawi took on the mortgage and relieved Mr Musa of that liability.
It is Ms Alzreaiawi's case that the transfer and her assumption of the sole liability for the mortgage formalised the informal arrangement existing between the parties from around 2002; that Mr Musa did not make any substantial mortgage payments or contribution to utilities after 2002, notwithstanding he lived in the granny flat at the house from 2000 to 2009 and there were dependent children; and that Mr Musa made no contribution to the mortgage since it was refinanced by Westpac in 2011. Thus, Ms Alzreaiawi submits that, leaving aside the issue of the legitimacy of the transfer, Mr Musa received anything he might be entitled to receive when he received the sum of $35,000. Mr Musa takes issue with the proposition (not now pressed) by Ms Alzreaiawi that the Court does not have jurisdiction to deal with the claim he has brought, and as adverted to above, denies that what he is here seeking is a property adjustment.
As to those declarations sought by Ms Alzreaiawi in her cross-claim that are still pressed, Mr Musa submits as follows.
First, as to the declaration sought by prayer 3 (to the effect that Ms Alzreaiawi is entitled to the whole beneficial interest in the Smithfield property), Mr Musa says that the circumstances of the case did not give anything other than equal entitlement of the parties to the Smithfield property. Mr Musa's position is that he was the primary income earner in the family and Ms Alzreaiawi was the primary care giver in relation to the children; that he paid the mortgage and living expenses; and that Ms Alzreaiawi has, together with the children, had the benefit of the occupation of the house since he moved to Canberra in 2009.
Insofar as Ms Alzreaiawi claims to have contributed to the purchase price by the sale of certain gold bars, Mr Musa submits that, despite the decision of the High Court of Australia in Calverley v Green (1984) 155 CLR 242; [1984] HCA 81, the presumption of advancement should apply to contributions to the purchase price by a wife to her husband. It is said that if a resulting trust is alleged to have arisen at the time of purchase, then, despite the couple being separated at the time of purchase of the house, its acquisition provides strong evidence against the proposition that Ms Alzreaiawi did not intend to bestow a benefit on Mr Musa by so doing.
As to any claim for a declaration based on a constructive trust relying on the principles as set out in Muschinski v Dodds (1985) 160 CLR 583 (Muschinski v Dodds) or in Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, Mr Musa emphasises that the Court does not have regard to idiosyncratic notions of fairness and justice as criteria in themselves, but that the declarations sought would only be warranted by established equitable principles or appropriate legal reasoning by analogy; and the court would require that the relevant personal obligations attach to the property concerned. Mr Musa submits that there is no such constructive trust in this case.
To the extent to which Ms Alzreaiawi relies on Re Sabri; ex parte Brien v Australia & New Zealand Banking Group Ltd (1989) 137 FLR 165; 21 Fam LR 213 (Re Sabri), Mr Musa contends that this case is incorrectly decided or otherwise should not be followed. It is said that the analysis in Re Sabri does not conform to the necessary connection to the land required in Muschinski v Dodds.
In any event, it is submitted that the contributions of the parties and the benefits gained by Ms Alzreaiawi in occupation of the property mean that the "appropriate apportionment that is just and equitable is equal of the whole beneficial interest in the land as between the parties, which reflects the legal title".
As to the declaration sought at prayer 4(b), it is said by Mr Musa that, following the dissolution of their marriage, the parties were content to leave the title of the land in their names as tenants in common (in fact, on the title they are shown as joint tenants). Mr Musa emphasises that he does not here sue for property adjustment (pursuant to s 79 of the Family Law Act), but rather brings these proceedings in relation to his claimed equitable and legal entitlement to the land and the proceeds from its sale (as a result of having been a registered proprietor deprived by a fraud that occurred after the dissolution of the marriage).
To my mind, the evidence of the joint expert is critical in this regard - precisely because it is inconclusive. The expert cannot conclude one way or another that the signature is genuine; nor can she conclude one way or another that it is forged. I accept that some support for Ms Alzreaiawi's position might be gained from the fact that the expert appears to consider that, if the signature was forged, then it was a skilful forgery - insofar as there is nothing to persuade me that Ms Alzreaiawi is likely to have been able skilfully to forge a signature, particularly where she would not have been able to read the document to which the signature was affixed (since I accept that she does not read English); but it is not necessary to resort to such an argument.
The case for Mr Musa fails on the question of onus (which he undoubtedly bears). That is because I am not persuaded to the level of actual persuasion (as I would have to be) that Ms Alzreaiawi forged, or was a party to the forgery of, Mr Musa's signature on the transfer form (or, for that matter, the discharge authority). The explanation that Ms Alzreaiawi gives for the signing of the transfer form in 2010 is by no means implausible and (though I do not suggest that this is in any way determinative) the signing of a transfer form (to be dealt with at some later time at Ms Alzreaiawi's choosing) seems consistent with what Mr Musa says occurred in relation to the car vehicle (namely, that he signed a document for its transfer to Ms Alzreaiawi and then did nothing about it).
If Mr Musa did not understand that Ms Alzreaiawi was to take over responsibility for the mortgage (as happened when the Suncorp mortgage was discharged) then it is odd, to say the least, that he apparently did not enquire into the status of the mortgage or mortgage payments over the time from 2011 through to 2017 (and it is significant that the direct mortgage repayments ceased at that time, whatever may be the case with the disputed cash payments he said he made into Ms Alzreaiawi's hand or deposited from the Australian Capital Territory bank branches), particularly since on that hypothesis he would have remained jointly liable as mortgagor over that period. That said, it is neither necessary nor appropriate to speculate in this regard.
As noted and as Counsel for Mr Musa accepts, for me to find in favour of Mr Musa on the fraud allegation I would need to feel an actual persuasion on the balance of probabilities (though bearing in mind the serious nature of the allegation) that his version of events is what occurred; and I am not. I consider it at least equally likely that Ms Alzreaiawi's version of events is correct. The expert evidence reinforces that conclusion.
Accordingly, it is unnecessary to determine whether a constructive trust should be imposed on the proceeds of sale; or whether damages should be awarded in the alternative because the allegation of fraud (on which those claims are predicated) has not been made good.
Similarly, it is not necessary to consider the claims made in the cross-claim (since Mr Musa accepts that if he fails on the fraud case that is the end of the matter in relation to his entitlement to the Smithfield property and, on Ms Alzreaiawi's case no property adjustment would then be necessary, rendering prayers 3 and 4(b) otiose).
Were it to have been necessary to make factual findings in relation to the cross-claim, the furthest that the evidence goes in my opinion is as follows: the Smithfield property was acquired for the sum of $190,000 in February 1999; at least $8,000 of the deposit of $20,000 was funded from the sale of the gold bars that Ms Alzreaiawi brought with her to Australia when she emigrated here; the balance was most likely funded with savings or earnings from one or other or both of the parties; the mortgage repayments were met at least initially by direct debit from the joint loan account; most likely there were occasions over the years from 2002 to 2011 in which the repayments were in default (or there were other arrears for council rates and the like) for which Ms Alzreaiawi relied upon friends and relatives to assist her; to the extent that there were cash advances paid from time to time in respect of the mortgage it is unclear from where they were sourced but the more likely explanation is that they came from Mr Musa's earnings as a formworker, although I accept that Mr Aswad from time to time gave his mother money to assist in the family upkeep; the sum of $25,000 was transferred by bank transfer from the couple's joint loan account to a personal account in the name of Mr Musa on 26 October 2009 (it is unclear whether there was an agreement that this be a loan or that this was a payment made at the time of an agreement that the Smithfield property would be transferred to Ms Alzreaiawi but I am satisfied that it was not the subject of the loan agreement recorded at the later meeting with Sheikh Ansari); and there was a $10,000 loan agreement evidenced by the note signed in front of Sheikh Ansari on 9 November 2009. I would conclude that the meeting with Sheikh Ansari occurred on the date of the note - 9 November 2009. It is not possible on the evidence to determine who in fact paid for the family trip to Iraq in 2009. Finally, insofar as Mr Musa seems to have believed that he withdrew from the loan account moneys that were "his", that is inconsistent with an assertion that they were his contribution to the mortgage debt.
Relevantly, the parties agree that there was an agreement in 2009 that the property would be "for the children" (albeit that Mr Musa's version of the agreement is that the property was to be kept in the couple's names and that he understood that to mean that the property would devolve to the children on the couple's death); whereas Ms Alzreaiawi's version of the agreement was that she then asked Mr Musa to transfer the property into her name and he agreed to do so). (Pausing here, insofar as Ms Alzreaiawi now says her intention is to use the proceeds of sale to assist her children with their future accommodation, this would be in accordance with what both parties say was the agreement at the time; whereas the claim by Mr Musa to a half share of the proceeds is not, though of course in the absence of a binding agreement it would be open to him simply to have changed his mind - and, in fairness to him, on his account of events he believes that he has been defrauded of his interest in the property which might well explain a change of heart in that regard.)
Although issue was taken, in both written and oral submissions, as to the present proceeding being an attempt by Mr Musa to circumvent the operation of the restrictions under the Family Law Act for the bringing of claims for property adjustment (and there was debate as to the jurisdiction of this Court in relation to such a claim), it is not necessary to enter into that debate for a number of reasons (not least because Ms Alzreaiawi abandoned any challenge to the jurisdiction of this Court (see T 9.30), and in fact argued that a natural consequence of granting the relief sought by Mr Musa would be that there should be a property adjustment and that it would not be in the interests of the parties for that to be the subject of separate proceedings in the Family Court (see T 10)).
There was somewhat of an air of circularity to the submissions made by Ms Alzreaiawi in relation to the jurisdictional question raised in her written and oral submissions. As I understand it, what was being put on her behalf was that: although Mr Musa disavowed the suggestion that what he was here seeking was a property adjustment, that was what he is in effect here seeking (and that is what should have been sought in the Family Court where he would have been out of time); that because the Smithfield property was purchased during the marriage and contributed to during the marriage and post-separation, in order to establish a 50% entitlement to the proceeds of sale Mr Musa must justify and establish an entitlement to such a property adjustment under the Family Law Act; and that Mr Musa has not done so.
It was suggested that some form of Anshun estoppel (see Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589; [1981] HCA 45) was "implicit in the pleadings" (see T 10.22). (I interpose here to note that I made clear at the outset that I was proceeding on the basis that I would be determining the case on the issues framed by the pleadings - see Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 where Ipp JA, in considering the authorities and principles relevant to whether a party would be allowed at trial to depart from its pleaded case, noted that "[a]part from cases where the parties choose to disregard the pleadings and to fight the case on additional issues chosen at the trial, the relief that may be granted to a party must be founded on the pleadings" (at [424]). Even a cursory review of the pleadings reveals that there is no Anshun estoppel there pleaded, let alone any allegation of a resulting or constructive trust case based on Ms Alzreaiawi's contribution to the purchase price or any post-acquisition contributions. I do not accept that it would be sufficient for there to be an Anshun estoppel pleaded implicitly.)
Nor am I persuaded that I would have had sufficient information to exercise the Family Law jurisdiction that it was contemplated by Ms Alzreaiawi might here be exercised. But, as noted above, given the earlier conclusions I have come to, it is not necessary to decide this point. Nor is it necessary to explore the issues raised by Mr Musa as to any presumption of advancement or the (unpleaded) resulting or constructive trust allegations, including the correctness or otherwise of Re Sabri.