Oruc v Bozkurt [2002] VSC 121

8. To a large extent this was a consequence of the fact that the defendant conducted his own case. His lack of familiarity with legal procedures and his imperfect appreciation of principles of relevance meant that the evidence ranged over a vast canvas of transactions a substantial number of which proved to have nothing to do with the case. In an effort to contain the debate I directed that closing submissions be put in writing. This has meant that multiple versions of the defendant's submission were received. These contain a good deal of assertion which is not supported by the evidence before me and enclose documents which were not tendered during the trial. I have had no regard to these matters; my judgment in this case is based solely on the evidence.

11. There was no dispute that the plaintiff in October 1989 lent to the defendant $150,000. The parties signed an acknowledgment of this bearing date 30 October 1989. It is in the following terms:

"In Consideration of you REMZI ORUC of 49 Dunloe Avenue, Norlane agreeing to advance to me at my request the sum of $150,000.00 I METIN BOZKURT of 54 Dunloe Avenue, Nolane hereby agree with you as follows:

1. TO repay to you the said sum after the expiration of three months from the date hereof upon either party giving one month's notice;

2. Until such repayment as aforesaid to pay you monthly commencing on the 30th day of October 1989 interest on the principal sum of 20% per annum."

This document may well not have contained the whole of the loan agreement for it was not disputed that the parties agreed at the time that the defendant should provide security. According to the plaintiff, this was to be by the deposit of titles over an apartment in Perth and over property in the Geelong area. On 2 October 1989, a Certificate of Title volume 1609 folio 354 over the Perth apartment was lodged with the plaintiff's solicitors as an unregistered mortgage security. No other titles were lodged. That security was ultimately released to the defendant on 20 March 1990 although, as will be seen, the circumstances of its release were in dispute.

18. Interest was to be paid monthly, as a matter of calculation, at the rate of $2,500. It was common ground that two such payments were made in the early months of the loan although there was controversy about the dates of these payments. A further payment of $6,000 was made by the defendant at a disputed date in 1991 but the defendant said that this was not related to the loan.

21. It was agreed by the parties that a letter of demand was sent by the solicitor for the plaintiff to the defendant on or about 28 May 1996.

24. The principal area of controversy was the allegation of the defendant that the loan had been repaid. Particulars of this payment provided by the defendant in the pleadings were that it was made in one payment at "Texas Hamburgers, 26 Malop Street (sic) Geelong". Evidence showed that in 1990 the plaintiff conducted a hamburger shop known as Texas Hamburgers which was in fact located at 26 Mercer Street, Geelong. When pressed in the course of the pleading for further details of this payment allegation, the defendant responded by providing as a further particular that the whole of the principal sum was repaid to the plaintiff in cash and that this took place "after the final payment of the interest due which was in December 1989". The plaintiff's case was that no such payment was made.

27. Evidence of the repayment was given by the defendant and on his behalf by Geoffrey William Fountain, a business associate of his. In essence the evidence of the defendant was that, on 5 December 1989, he went with Mr. Fountain to the Texas Hamburger shop at 26 Mercer Street, Geelong. They went into a back room and the defendant handed over the money in bank notes. The plaintiff counted the money and put it in a safe. He thanked the plaintiff and signed a receipt. The receipt and a photocopy of it were filed away by the defendant at his office in 30 Malop Street, Geelong. The defendant said that the original receipt was removed by some person unknown and cannot now be found.

30. I accepted in evidence the photocopy,. (Exhibit 14), over the objection of counsel for the plaintiff. The document is in the following terms:

THIS IS TO CERTIFY THAT I, REMZI ORUC HAVE NOW RECEIVED THE TOTAL SUM OF ONE HUNDRED AND FIFTY DOLLARS (sic) ($150,000.00) IN FULL FROM METIN BOZKURT AND/OR NOMINEES, BEING THE TOTAL MONEYS OUTSTANDING FROM HIM TO ME.

THERE ARE NO OTHER FINANCIAL OBLIGATIONS LEFT FROM METIN TO ME. RECEIVED DATE: 05-DECEMBER-1989. RECEIVED BY: REMZI ORUC SIGNED: ...."

The document bears what appears to be the plaintiff's signature and underneath that, in a place provided for a witness, a signature which is said to be that of Mr. Fountain. This account was corroborated by Mr. Fountain who said that, on the evening of 5 December 1989, he was picked up by the defendant at his place of business, the Spit Roast Carvery and Catering, sometime after 8.00 p.m. and they travelled together to the Texas Hamburger shop. There, he said, the defendant paid to the plaintiff a sum of money, the receipt was signed by the plaintiff and he, too, signed the document as a witness. The money was then placed in the plaintiff's safe. He said that he recalled signing a second document but he was unable to say what this document was. He stated that the plaintiff and defendant then kissed each other on the cheek as is the Turkish custom and that he and the defendant then returned to his office where he picked up his car and went home.

37. The plaintiff denied that any such event took place. When shown the copy receipt in evidence in chief, he acknowledged that the signature looked like his signature but he said that he had not seen the document before it was produced by the defendant on 2 March 2000, which was the first day of the trial. He denied that he signed the original of the receipt or that Mr. Fountain was at Texas Hamburgers on 5 December 1989. He maintained that the statement contained in the document namely, that he had received the money, was untrue.

40. A second document, likewise initially produced by the defendant on the first day of the trial, supported his contention that the loan was repaid. This was a statutory declaration purportedly made by the plaintiff on 2 November 1994 and which was received in evidence as Exhibit 32. Omitting the formal parts the statutory declaration is in these terms:

"As of today, the Second day of November 1994, (02-Nov-1994), I hereby acknowledge and confirm that, Metin Bozkurt and/or Nominee(s) of 54 Dunloe Avenue, Norlane, Victoria:

(a) Does not have any outstanding debt to me at all,

(b) Does not have any financial obligation to me,

(c) Has paid all of his outstanding debts to me in full.

I, Remzi Oruc, also confirm that I hereby accept all the debts and outstanding loans of Onville Pty. Ltd. that is currently in existence and to be repaid (particularly to Metin Bozkurt and/or his family members) and I fully release Ahmet Turkkan from any further financial responsibilities in this matter."

51. The document appears to bear the plaintiff's signature. It recites also that it was declared at Geelong on 2 November 1994 before a person who signed as witness and who, on the evidence, was apparently a woman pharmacist, D.T. Meade. The plaintiff said of this document that the signature was "a likeness of my signature" but that he normally signed above the line and not below as appears on the document. He accepted that he made a statutory declaration to the effect of the second paragraph, dealing with a business venture he had had involving a company called Onville Pty. Ltd. but he maintained that the first time he saw Exhibit 32 was on the first day of the trial. The evidence of Ahmet Turkkan who had been a partner with the plaintiff and defendant in the Onville enterprise confirmed the signature of statutory declarations by himself and the plaintiff on 2 November relating to his own release from the Onville business.

54. Mr. Neil Holland, a highly credentialed document examiner, was unable to give a definitive opinion as to the genuineness or otherwise of what purported to be the plaintiff's signature on either of the disputed documents.

57. As is clear, the genuineness of these two documents, which, on their face, evidence repayment of the loan money, is a crucial issue in this case.

60. The burden of proving payment of the debt lies on the defendant. It is only if the Court is satisfied on the balance of probabilities that the loan was in fact repaid that this defence is made out (see Young v. Queensland Trustees Ltd.)[1]

63. Before turning to the evidentiary material relevant to this issue, I make one further preliminary observation. Although I have not discussed the evidence of all the witnesses called, I have nonetheless had regard to it in reaching my decision. The opposite is the case in respect of the proposed witnesses from Turkey, (whose evidence was foreshadowed in affidavit form). It was put by the defendant that such witnesses as Mr. Mehmet Ayaz and Mr. Kerim Demir would be called to give evidence in accordance with those affidavits. One purpose of this evidence was to prove that funds in excess of US$76,000 had been sent to Turkey by the plaintiff in the first half of 1990 in order to purchase a commercial property in Adapazari. Despite the intimation of this Court that their evidence would be received either in person or, if necessary, by way of video link, these witnesses were not called. For completeness I should add that the plaintiff asserted that he only made A$1,000 available to Mr. Ayaz to develop a Turkish company called [in English] Oray Food and Agricultural Products Pty. Ltd.

68. I must state at once that the evidence of both the plaintiff and the defendant was, on occasions, less than credible. It may be that memories have become distorted and rationalisation has occurred over the long passage of time since October 1989. Some issues were never fully explored because the defendant, whilst making assertions of fact in his evidence, had never cross-examined the plaintiff on the subject matter. To some extent this was a product of his lack of representation although he is an intelligent man and not without some experience in the courts. Further, it is quite clear that the written documentation does not necessarily fully reflect the terms of any given transaction between the parties.

71. It is also apparent that there were many financial transactions between the parties over the ensuing years. The operations of Onville Pty. Ltd. being one example. The plaintiff asserted that such ongoing dealings were undertaken because he was made to understand by the defendant that the only way he would ultimately retrieve his money was if subsequent business ventures proved profitable. The defendant argued that subsequent joint business ventures would never have been contemplated if the original loan of $150,000 had not been repaid. Indeed it was submitted by the defendant that he would not have given further money to the plaintiff while accumulating interest liabilities at a 20% rate. On its face this is an important point. However, the nature of the subsequent financial transactions between the parties was never clear. This aspect of the case was complicated by the use of the plaintiff by the defendant as a custodian of his assets which he wished to hide from his wife in the period following the couple's separation in November 1990. The witness Geoffrey Fountain agreed with the defendant's own description that there was "siphoning of funds from me to Remzi [Oruc] for personal reasons".

74. To a considerable extent the case became mired in a moras of evidence about the subsequent business transactions. Indeed, I allowed the defendant, being unrepresented, some latitude to explore them. Although I have had regard to these matters insofar as they may impinge upon the credit of the parties, and in arriving at the conclusions which I must reach, on the balance of probabilities, it is not necessary to prolong this judgment by any detailed analysis of them. It is sufficient to state that, if there were other dealings between the parties in which money was paid by the defendant to the plaintiff, it is not alleged by him that this was part of any repayment of the original loan. Nor is there is any counterclaim or set-off pleaded. Accordingly, the narrow question I must decide is whether the defendant has proved the repayment of this specific loan on 5 December 1989.

(ii) Evidence Relating to 5 December 1989 Repayment and Receipt

78. The reason for the loan itself is shrouded in mystery. It appears that a cheque for $13,000 was written by the plaintiff for the defendant on 11 October 1989, but was not banked by him until 30 October in that year when, it is asserted, the balance of the $150,000 was received.

81. In the course of his evidence the defendant gave differing reasons for requiring this sum of money. These included money for a small investment, the nature of which could not be recalled, and bridging finance. The defendant also claimed that the money was for the purchase of two properties, 32 and 47 Malop Street. The defendant's witness Fountain also deposed to the defendant seeking a loan from him at this time with a view to purchase either 32 or 47 Malop Street. In relation to the former, this claim was effectively retracted by the defendant when it was demonstrated that settlement had occurred prior to any loan arrangements; further, it was conceded in cross-examination that the agent for 47 Malop Street had made it clear, at the relevant time, that the vendor was not prepared to sell that property.

84. Such admissible evidence as there was before the Court, relevant to the defendant's financial situation, indicated a balance in his ANZ Bank account of $177.38 between 1 and 19 December 1989. These funds were not directed to the payment of the $5,000 interest. As to the source of those payments, and the $13,000 required to top up the $137,000 cash which the defendant claimed he kept and did not utilise, specific details were not provided by the defendant.

87. All this material is relevant to the assertion by the defendant of the repayment of the money. No satisfactory explanation was forthcoming as to why money was required to be borrowed at such a high interest rate, (the current bank rate, according to the evidence, was 13% to 14%), if there was no specific use for it. The inference which I was invited to draw by the plaintiff's counsel was that there must have been some purpose for the money, and if so, this undermined the credibility of the defendant's assertion that he had repaid the money. In my view, it does adversely affect the defendant's credibility.

90. It was submitted that the defendant had breached the loan agreement, for example by not making any interest payment on 30 October 1989 and providing only one title as security for the loan, (namely the Perth unit valued at $59,000). All this may be so, but the plaintiff took no action about it and it merely serves to reinforce the proposition that the activities of the parties were not necessarily reflected in the extant documentation.

93. What is clear is that two payments of interest of $2,500 were made prior to 5 December 1989, the latter, according to the defendant, on 4 December 1989. It was pointed out by counsel for the plaintiff that, if repayment of the loan had occurred on 5 December 1989, (that is after 36 days), interest would have been approximately $2,958.00. Consequently, the payment of interest of $2,500 on 4 December 1989 would represent an overpayment of interest of about $2,042. It was further argued, plausibly in my view, that this made any repayment of the total loan on 5 December 1989 improbable. Furthermore, it might be asked why the whole of the amount owing could not have been paid on 4 December rather than separately. Why incur an extra day's interest? The defendant claimed to have told the plaintiff on 4 December that he would repay him the next day. This is in the context of his claim to have had the money in a briefcase throughout the whole of the relevant period. On the face of it, this is quite improbable.

96. Of course any repayment of principal without one month's notice departed from the terms of the lease. Given the nature of the dealings of the parties, I do not place great weight upon this factor, nonetheless it may be regarded as "a straw in the wind" when considering if repayment occurred.

99. The receipt of 4 December which, it was agreed was genuine, is interesting in two respects. First, it is a document created by the defendant with a format that could be used for future repayments. Secondly, the body of it is clearly filled in by the plaintiff. This contrasts with the disputed receipt of 5 December 1989, also created by the defendant, and in which all the relevant details are typewritten save for the plaintiff's purported signature. The reference in the receipt that "there are no other financial obligations left from Metin [Bozkurt] to me [Oruc]" is reflected to some extent in the statutory declaration dated 2 November 1994 which is also in dispute. The defendant was cross-examined as to whether this was the first payment of interest made and whether there was a further repayment of $2,500 later in December 1989 or early January 1990 as deposed to by the plaintiff. At one stage the defendant appeared to concede that it was possible a second payment of interest was made in late December 1989 (p.1105T). This would, of course, undermine the defendant's assertion of repayment of principal on 5 December 1989. However, his answers may reflect confusion and do not accord with his evidence in chief.

102. In his evidence in chief the defendant referred to obtaining a signed receipt from the plaintiff. In cross-examination he spoke of obtaining two signed receipts as well as the original Acknowledgment of Debt document from the plaintiff. Of those documents only one photocopy receipt was produced to this Court. Even if the originals had been taken from the defendant's filing cabinets, (as was asserted by the defendant in relation to all relevant documentation), one might have expected a second photocopy of the receipt to be forthcoming. The defendant did not assert that he had ever given a copy of the 5 December receipt to the plaintiff.

105. The defendant's evidence as to the circumstances of the repayment was, as I have indicated, supported by that of the witness Geoffrey Fountain. Mr. Fountain was a former business partner of the defendant, who had previously given evidence for him in the unsuccessful defence of a civil suit. Mr. Fountain also regarded the defendant as a future business partner and regarded his avoidance of bankruptcy as the result of this suit as a laudable objective. He also empathised with the defendant in his efforts to conceal assets from his wife. Shortly after entering the witness box he ventured the view that the plaintiff's action was "the greatest waste of time and resources ..." He was not, on any view, an independent or objective witness. His detailed account of what had occurred at Texas Hamburgers over 10 years earlier when his presence had purportedly been as a casual witness, was quite unconvincing. All the more so since he claimed that he had not discussed the matter with the defendant until three months before the hearing, (that is about January 2000).

108. According to the defendant he just happened to take Mr. Fountain with him as a witness, despite the fact that Nebi Orhan, who had witnessed the repayment of interest on 4 December would also have been available at Texas Hamburgers on that evening as a witness to any repayment.

111. Although Mr. Fountain had met with the defendant on a number of occasions since the letter of demand had been written on 28 May 1996, and the writ had been issued on 10 February 1997, he deposed that the matter of the receipt had never been discussed. I find it incredible that, if this receipt had come into existence in the manner alleged by the defendant and his witness, the topic of the plaintiff's claim and the documentary defence to it, would not have been discussed. In short, I do not regard Mr. Fountain as a credible witness as to the circumstances of the repayment of the loan.

114. Ancillary to this evidence is the defendant's own lack of specificity as to when and where and in what circumstances the receipt, for which he claimed he had searched long and hard, was found. Moreover, he was not, he maintained, excited by its discovery. Again, in my view, all this points towards the creation of the receipt at a time other than 5 December 1989.

117. Even allowing that the defendant was unrepresented, an examination of the pleadings is instructive. There is no mention of the receipt in the defence of 6 March 1997, or the Amended Defence of 9 April 1997. In the latter, there is an assertion of repayment but no date is specified and further, the repayment was said to be marked, not by any receipt, but by the prompt return of the property title handed over as security.

120. When one turns to the Further and Better Particulars dated 3 July 1997, a receipt, (which was purportedly witnessed), is mentioned for the first time. No date is given but reference is again made to the release, in March 1990, of the property title as being consequent upon the loan repayment. I interpolate that the plaintiff deposed to consenting to the release of the title in March 1990 in the hope that the sale would generate funds enabling the defendant to repay him.

123. In a letter written by the defendant and dated 28 July 1997, reference is again made to a written receipt, but no date is provided. Further and Better Particulars dated 14 August 1997 record the second interest repayment as 4 December 1989, (for which there existed the genuine receipt), but does not specify any date for the repayment of the principal amount.

126. I note that, in his Interrogatories for the Examination of the Plaintiff dated 31 October 1997, the defendant, (at interrogatory 12) questioned the plaintiff as to whether any repayments of capital had occurred before, on, or after 30 October 1989 as well as the mode of repayment. On its face this is inconsistent with the existence of a receipt for 5 December and knowledge by the defendant of the date and manner of repayment. Further, the defendant interrogated the plaintiff on an array of documents none of which was the receipt of 5 December.

129. Without detailing further pleadings, which culminated in the document entitled Further Answers to Further and Better Particulars of the Defendant's Case dated 25 November 1999, it is sufficient to record that, between March 1997 and November 1999, no specific details of this receipt were ever provided. It was not a document that was discovered and, indeed, it was not produced by the defendant until 2 March 2000 when this case commenced.

132. Paralleling this documentary material was the defendant's dealings with the plaintiff's legal representatives. There was no written response by the defendant specifically to the letter of demand from Lamb Cassidy, (the plaintiff's then solicitors), on 28 May 1996. According to Mr. Vaughan Lamb, (a partner in that firm), on one occasion the defendant, (while visiting the office on another matter), claimed verbally to have repaid the loan; but the witness rejected an assertion by the defendant that he and the plaintiff had visited the office together and stated that repayment of the loan had occurred. At no time had the defendant ever claimed to Mr. Vaughan Lamb to have a receipt dated 5 December and signed by the plaintiff attesting to the fact that the loan had been repaid.

135. Evidence of the solicitor Mr. Phillip Cassidy, (also a partner in the abovenamed firm), corroborated that of Mr. Lamb, that the plaintiff and defendant had never visited the solicitor's office claiming that the loan had been repaid. Further, Mr. Cassidy deposed that, in no verbal or written communication with the defendant, was reference ever made to either the 5 December receipt or the statutory declarations, (to which I shall turn shortly), as evidence of such repayment. Whilst the defendant claimed repayment had occurred, the tenor of the correspondence received by the solicitors from the defendant was to the effect that the Perth title had been held by the solicitors as security and that its release indicated the loan had been repaid. This, as has been noted, was the gravamen of the Notice of Defence dated 9 April 1997, (in which no receipt was mentioned).

138. Again, in the fax dated 19 March 1990, drafted by the defendant and signed by the plaintiff and which was sent by the defendant to Lamb Cassidy, there is no mention of the loan having been repaid. Indeed, on the same date another fax was sent to Lamb Cassidy by the defendant stating that he had sold the [Perth] property and needed the title for settlement. Moreover, one may ask if the retrieval of the title was consequent upon the December loan repayment, why wait three and a half months to effect it?

141. The photocopy receipt ultimately produced to the Court was purportedly certified as a true copy of the original in November 1994 by P. McCann, Registrar of the Magistrates' Court of Victoria. That certification involved the imprint of a rubber stamp. As I endeavoured to explain to the defendant, the certification of the original document does not make that original document a genuine one. Putting that to one side, if any record existed of the original receipt being shown to Mr. McCann no evidence was called about it. Instead, what was produced was a photocopy purporting to bear certification. However, the photocopy itself did not exhibit an original court stamp as one would have expected. Rather it was yet a further photocopy of the document (that is a photocopy of a photocopy). No satisfactory explanation was provided as to why this should be so; nor was there any satisfactory explanation forthcoming as to why the authentication took place as late as November 1994. This is yet another aspect of the matter which throws doubt upon the genuineness of the receipt.

144. Finally, the capacity of the defendant to manipulate documents was demonstrated during this trial. Having previously issued subpoenas in the appropriate form, he contrived to produce his own version of a subpoena. In it he inserted the command: "You are required to give copies of all documents to the defendant prior to producing them in Court". Had the subpoenas not been received by professional organisations - an accountancy firm and the ANZ Bank, this ploy may have succeeded. As it was, the recipients were alive to the subterfuge. This episode further erodes any confidence one might have in the authenticity of the disputed documentation.

147. Ultimately I am not satisfied that the receipt is genuine.

(iii) The Statutory Declaration of 2 November 1994

151. The next critical document is the statutory declaration dated 2 November (Exhibit 32). I have already set out its terms.

154. This document should be seen against the background of a series of such documents stating that the plaintiff acknowledged that the defendant had paid all outstanding debts to him. These documents (Exhibit T), while differing in some of the detail are, in many respects, similar to the one purportedly created by the defendant in November 1994. They bear the dates 25 December 1990, 2 May 1994 and 25 September 1995. They contain the same spelling mistake "decleration" instead of "declaration" that is contained in the admittedly genuine statutory declarations being Exhibits 33 and 34.

157. It was the evidence of the plaintiff that the blank documents had been inserted in a sheaf of Onville Pty. Ltd. documents in an endeavour to have him sign them. When the plaintiff discovered them and confronted the defendant, the latter said that he was going to pay the money and so he had got the documents ready. He advanced the excuse that they must have got mixed up with files he was working on the previous evening. Whether or not this evidence accurately reflects what occurred, I am satisfied that the documents, given their format, were prepared by the defendant. If a receipt for the $150,000 was in existence, these documents would not be necessary, or alternatively one would expect reference to be made to that specific transaction or, indeed to any other transactions if other money had been owed and repaid by the defendant.

160. As I have previously indicated, the plaintiff swore that he had not signed Exhibit 32; although he did sign a statutory declaration releasing Ahmet Turkkan, a fellow director of Onville Pty. Ltd., from further financial responsibilities in that business, it was a briefer document than the one impugned. Mr. Turkkan, who was called as a witness by the defendant, stated in evidence in chief, that there were three copies of four statutory declarations each of which was blank as to the place and date of signing. The blank was filled in by the lady who took the statutory declaration. It seems this would have been a Ms. D.T. Meade at Fowlers City Pharmacy, 86 Malop Street, Geelong. This evidence would, at least, seem to accord generally with the visual appearance of most of the documents. After signing each document he, [Turkkan], the plaintiff and the defendant each ultimately received a courthouse-stamped copy. The witness stated, in effect, that the papers related to his release from the Onville company. Mr. Turkkan said he had first been asked to give evidence six days before this hearing in relation to events occurring over five years earlier. His memory suffered accordingly. It was only by way of a series of leading questions in re-examination, that the witness agreed that, after the initial signing, further discussion had occurred between the defendant and the plaintiff and that the plaintiff had left with another document for signature and returned it to the defendant. I do not regard that piece of evidence as reliable.

163. This witness, who had previously been sued by the plaintiff, initially agreed they were not on the best of terms. He then retreated from the statement claiming he had always liked the plaintiff. This did nothing to enhance his credit. His general reliability may be gauged by his assertion that both the plaintiff and the defendant had stated to him that the money had been repaid after the sale of the Perth flat and other property - a proposition neither of the parties advanced. Further, in the course of his cross-examination, Mr. Turkkan was shown a pay-in slip and associated cheque indicating that $10,000 had been paid by the defendant to the credit of Onville Pty. Ltd. (Exhibit 30). Above the signatures of the plaintiff and this witness was written, in the defendant's handwriting, a guarantee by both of them of "full and prompt repayment of the loan". Initially Mr. Turkkan said he had given no such guarantee and such writing had not been on the pay-in slip when he signed it. Later he retreated to a lack of memory of what was on the form. Mr. Turkkan struck me as a witness doing his best to assist the defendant but with mixed results. For completeness I should add that I do not accept his evidence that the plaintiff told him in 1991 that he had put $100,000 into a shop in Turkey.

166. The 2 November statutory declaration which the plaintiff claims not to have signed, is a curious document. Unlike the other statutory declarations the word "declaration" is spelt correctly. The date and place of such declaration is, unlike the other documents, not handwritten but typed, and it does not refer to 86 Malop Street, Geelong; rather, it states:

"Declared at GEELONG In the state Aforesaid, this Second Day of November 1994".

Interestingly, the Court stamp on the document is an original one. A further distinction is that the provision for the signature of a Deputy Registrar which appears on all the other statutory declarations, is missing from this document. These discrepancies suggest that the document was created at a different time from the other statutory declarations. I note that two of the Ahmet Turkkan declarations are certified by a different Registrar (Stephen Grant Agnew). The reason for this is unclear but, in the circumstances, it would appear to be irrelevant.

171. The defendant suggested that the typing of the place and date on the disputed statutory declaration was because the plaintiff and Mr. Turkkan had become tired of handwriting in those details. This explanation conflicts with the evidence of Mr. Turkkan that the lady who witnessed the documents [Ms. Meade] inserted this information. Similarly, the defendant's claim that the plaintiff and Mr. Turkkan had gone three or four times to the chemist shop on 2 November 1994, is quite contrary to the evidence of Mr. Turkkan.

174. Although limited by the nature of the material and the controls of Ms. Meade's signature, Mr. Neil Holland, the experienced document examiner, expressed the view, which I accept, that the signature purporting to be that of Ms. Meade on the contentious statutory declaration had probably been made by a different writer. Despite my strong advice to the defendant that Ms. Meade should be called, and the statement by the plaintiff's counsel that, in the absence of the attesting witness, he would invite me to draw an adverse inference, the defendant chose not to call her. Indeed the defendant stated he had done nothing to locate her. No satisfactory explanation was provided to the Court for this inaction. In the circumstances I am prepared to draw the inference that her evidence would not have assisted the defendant. Even if the plaintiff's signature is genuine, (a matter upon which Mr. Holland could reach no conclusion), I am of the view that the document was not signed in its present format.

177. As with the 5 December receipt, the statutory declaration was not discovered or interrogated upon. In short it was never advanced in any of the pleadings, or in communications with the plaintiff's solicitors, as providing an answer to this claim.

180. In all the circumstances, and for the reasons I have enumerated, the defendant has failed to satisfy me that the statutory declaration of 2 November 1994 (Exhibit 32) is a genuine document.

184. Another issue raised in the course of this trial was the characterisation of a payment of $6,000 from the defendant to the plaintiff in 1991. Was it to be regarded as interest on the loan? The defendant agreed, in his answers to the plaintiff's interrogatories [No. 9], that he forwarded $6,000 to the plaintiff's account in Turkey. That interrogatory was specifically directed to April or a time prior to 4 May 1991, and queried whether the money had been paid by way of cash, cheque or otherwise. The mode and date of the payment were not given in the defendant's answer but it was asserted that the financial transaction had nothing to do with the repayment of the loan or interest on it. The plaintiff on the other hand claimed it was an interest payment sent to him in Adapazari in Turkey and produced a copy of a letter purportedly sent from Adapazari dated 3 May 1991. That letter translates as follows:

"Dear Mr. Bozkurt, I am happy to say that I have received the $6,000 that you have had posted to me. In a couple of days I will be returning to Australia. I would like you to organise the rest of the money and I would like you to arrange for the delivery to me on my return. It would also be appreciated if you accept this letter as a one month advanced notice. In my return to Australia I will be in need for the rest of the money that I had lend you. From Turkey, Yours Sincerely Remzi Oruc."

188. The plaintiff deposed to visiting the defendant at 47 Malop Street, (to which the letter had been addressed), about 2 June 1991 and saying to the defendant that he presumed he had some money for him and that he was broke; the defendant offered to do something about it. The plaintiff said that at that time the defendant was situated in 47 Malop Street as 32 Malop Street was being renovated.

191. Despite the defendant's answer to the interrogatory he initially stated to this Court that he had no record of ever sending that money to the plaintiff in Turkey. He denied absolutely receiving the letter from the plaintiff although, in this portion of his evidence, he did not claim that mail was not being delivered to the address in the letter - namely 47 Malop Street; nor did he deny that the plaintiff may have visited him there and had the type of conversation to which the plaintiff deposed (585T). Later, under cross-examination, the defendant claimed that his answer to the above interrogatory - insofar as it implied a pre 4 May payment date - was incorrect. In his evidence in chief the defendant denied making such a payment but, somewhat oddly, added: "And if I did even, I know I didn't, but if I did it wouldn't matter in any way whatsoever, because I had given him subsequent moneys anyway." The reference to "subsequent moneys" related to amounts totalling of US$4,754.40 and US$5,000 sent to the plaintiff's account in Turkey on the dates of 2 October and 2 December 1991 respectively. It was said that such money was sent because the plaintiff had commitments in Turkey. The defendant did not elaborate on the nature of those commitments, nor was the plaintiff ever cross-examined about this money, although it was conceded by his counsel that money, which had nothing to do with the earlier payment, was forwarded in the latter part of 1991.

194. The defendant eventually produced a Water Rate Notice from the Geelong and District Water Board (Exhibit 47), which, he claimed, demonstrated that he had left the 47 Malop Street property prior to June 1991 - that is prior to the plaintiff's alleged conversation with him. That document bears his own handwritten notation, dated 15 August 1990 asserting that he was no longer a tenant of the property and had "vacated almost a year ago". Strangely, the property subject to the rate charges and referred to in this Notice, (and a prior Notice which was also produced), is not 47 Malop Street, Geelong but 4 Malop Street, Geelong. This discrepancy, which, on its face, undermines the defendant's claim,was not clarified in evidence.

197. The defendant called a witness, Nebi Orhan who, while disclaiming any ability at remembering dates, thought it was some time in 1990 that he assisted the defendant to shift from 47 to 32 Malop Street. This may be so but it is also not clear on the evidence whether the defendant returned to 47 Malop Street while there were renovations at 32 Malop Street. The other alternatives are that the plaintiff is mistaken about the meeting place or is lying about the meeting and/or the letter is a forgery. Given that material exists, (including the defendant's own answer to the interrogatory), indicating that the defendant did send $6,000 to Turkey, (albeit the date is not clear), and given his concession that a visit and conversation could have occurred after the plaintiff's return from overseas, the probabilities are that the letter was sent and the meeting occurred as deposed to by the plaintiff. If so the $6,000 could be regarded as a payment relating to the debt and could be relevant to any limitation of actions issue. However, the resolution of this issue is not crucial in reaching my ultimate conclusion in this case.

201. A defence based upon the Limitation of Actions Act 1958 was also pleaded by the defendant. According to the terms of the written agreement between the parties (Exhibit A) the repayment of the loan was to occur after the expiration of three months from the date of the agreement of 20 October 1989. The trigger for that repayment was to be the giving of one month's notice by either party. Hence the loan was repayable, not from the date it was made, but after one month from the date of any demand for repayment.[2] On one view such a notice was constituted in this case by the plaintiff's letter dated 3 May 1991 (Exhibit C). I have already expressed the view that such letter was probably genuine and was received by the defendant; however, on the assumption that this was not so, the requisite notice was constituted by the letter of demand dated 28 May 1996 (Exhibit O). The writ itself was issued on 10 February 1997 and was, accordingly, within six years of each of the dates upon which a notice of demand was given and repayment became due. Accordingly, any defence based upon the Limitations of Actions Act 1958 must fail.

205. On all of the evidence, particularly having regard to my view that the receipt and statutory declaration have not been demonstrated to be genuine, the defendant has failed to satisfy me to the requisite standard that the loan was repaid in the manner and at the time alleged by him. As the evidence revealed, there were many other financial arrangements between the parties; indeed, it is not inconceivable that some other arrangement about repayment of the loan was entered into between the parties. If so it has not surfaced in the course of this trial, and I have, of course, had to decide this matter on the basis of the evidence placed before the Court.

208. Upon that evidence judgment must be given for the plaintiff.

[1] [1956] HCA 51; (1956) 99 CLR 560

[2] See for example Ogilvie v. Adams [1981] VicRp 92; [1981] VR 1041 at 1052 ff.