105 The allegation that Youssef El-Bayeh procured the Westpac loan in 2000 and the Perpetual loan in 2004 by means of forgery is, of course, an extremely serious allegation. As submitted on behalf of Perpetual, the gravity of the matters alleged must be taken into account in deciding whether the Court is satisfied that David El-Bayeh has made good his defence. In that respect, my attention was drawn to the principles stated by Johnson J in Jeans v Cleary [2006] NSWSC 647 at [27] to [29]. I have had regard to those principles.
106 I have determined the issues relating to the impugned signatures primarily on the basis of my assessment of the credibility and reliability of the evidence of David El-Bayeh and Youssef El-Bayeh and my consideration of the appearance of the signatures (with the assistance of the expert opinion evidence on that issue). Before turning to those matters, I should deal with two further considerations raised in the submissions on behalf of Perpetual.
107 Perpetual submitted as a factor telling against fraud that there was no need for a non-genuine signature written without authority. In particular, Perpetual relied on the clear evidence that Youssef El-Bayeh "ruled" the family and that family members (including David El-Bayeh) were compliant to his wishes. So much may be accepted, but I do not think it follows that forgery was "quite unnecessary". In my view, Youssef's autocratic approach is equally consistent with David El-Bayeh's case. To Youssef, it was not so much a question of being confident that he would have David's consent as believing he did not need it, as evidenced in the following exchange in his cross-examination by Mr McKeand (T312.39):
"Q. So you say. Mr El-Bayeh, you knew before you borrowed that $480,000 that apart from the money that would be used to pay off the existing Westpac mortgage debt on David's property, he would not agree to a borrowing of a larger sum for you to use for other purposes. You knew that, didn't you?
A. I don't need him to agree or not agree. Because when I borrowed the money and when I do the business and the loan from anywhere, he didn't have anything to do with it. Only I ask him what I am doing, like what I have, talking with him and with my father, with the family. I try to buy some house to each of my brother and sister. If I get accident, if I die, they have something in their name."
108 In my view, there was force in the submission put by Mr McKeand on behalf of David El-Bayeh that Youssef El-Bayeh's evidence could be encapsulated in the proposition that he would not admit anything against his interests in the present case, meaning his view of his interests, which was not necessarily a legal view. As noted by Mr McKeand, the best example of that was his extreme pride in his role in looking after the family, which he may or may not have known had a potential legal significance (adverse to his trust claim against David).
109 The second additional consideration raised in submissions by Perpetual was whether the person who made the questioned signatures was likely to have a physical resemblance to David El-Bayeh. The need to consider that issue arises in respect of the signatures witnessed by the two Justices of the Peace, Mr Lamont and Ms Tolar, and the signature purportedly witnessed by Mr Naaman. Whilst I do not disbelieve the evidence of the two Justices of the Peace, I think it is quite possible that they could, through confusion or oversight, have signed the documents in the absence of David El-Bayeh. As to Mr Naaman, the simple fact is that he did not give evidence and I draw no comfort whatsoever from the fact of his having purportedly witnessed one of the David El-Bayeh signatures.
Did David El-Bayeh sign the Westpac documents?
110 Perpetual submitted that it ought to be found as to some of the Westpac signatures that they appear to be those of David El-Bayeh. Although Perpetual's claim does not turn on the authenticity of those signatures, Perpetual submitted that the determination of that question should inform the determination of the issues relating to the Perpetual documents. In particular, it was submitted that, if the Westpac signatures are genuine, they will add to the body of comparable handwriting for the purposes of reaching conclusions about the Perpetual documents. It was submitted, further, that since the Westpac loan in 2000 is disputed by David El-Bayeh as another alleged forgery, "an adverse finding to him about authenticity ought to resolve any other complaints of forgery".
111 Understood in that way, the authenticity of the Westpac signatures was put by Perpetual as a matter going primarily to credit. The critical question in that context is whether David El-Bayeh was lying when he said that the signatures on the Westpac documents relating to the advance of $190,000 in December 2000 are not his. Separately, the authenticity of the Westpac signatures is a fact in issue in determining what is secured by the Perpetual mortgage if it is forged and in David El-Bayeh's claim against Youssef El-Bayeh.
112 A starting point is to record that, overall, David El-Bayeh impressed me as a straightforward and fairly reliable witness. He has a tertiary qualification and is evidently a man of some intelligence. As already indicated, I accept that he was probably not entirely frank as to whether he was pressing Youssef to give him the same deal as Louis. I think his evidence on that issue was probably coloured by self-interest or embarrassment. However, that recognition does not prompt me to reject other parts of his evidence. An attempt to negotiate a deal of the kind alleged is not inconsistent with his case. Indeed, there are aspects of the conversation deposed to by Mr Saadie that are entirely consistent with David's description of the recent discovery of large borrowings secured by a mortgage over his property.
113 There was a substantial attack on David El-Bayeh's credit by each of the other parties to the proceedings. Dealing particularly with the Westpac documents, Perpetual noted that there had been a series of occasions on which David El-Bayeh had obeyed or acceded to the requests of Youssef El-Bayeh and abided by his decisions. The matters relied upon by Perpetual included the fact that the property was purchased after David was told that Youssef required him to sign documents and he "obeyed" (T121.11); the giving of the power of attorney; the circumstances surrounding his opening the Westpac account in 2004 and the fact that, following the purchase of the property, Youssef had in effect dealt with it as if he was the owner, with no objection from David. In that context, Perpetual submitted that it defies credulity to suggest that David El-Bayeh would have resisted any "requirement" by Youssef El-Bayeh that he sign documents for loans against the property in 2000 or 2004.
114 I do not accept that submission. Youssef El-Bayeh was clearly both difficult and autocratic. As already noted, he said that he bought the properties for his brothers' own benefit, not for his benefit. However, he evidently regarded their benefit to be subject to his whim. He said that he had promised his father he was happy to give each brother a house and a car when they got married. He said "That's why I didn't have big argument with my brother Louis because he get married and have few children, I gave him the house" (T291.34).
115 Youssef El-Bayeh insisted, nonetheless, that he meant to help his siblings both before and after marriage, subject to one thing (at T292.11):
"Something important here, for all of you. That's in my mind to help my brother and my sister and my family all the way, before marry and after marry. Only one thing. Between our family I used to say all the time I don't want anyone to break the religion law, the government law and no gambling and no drug, and I was very happy to help them all the way, before marry and after marry, because I bring them to Australia and I responsible for them and all the people from my village and the people they know, they know me, they know that."
116 It accords with common sense and common experience that David El-Bayeh's response over the years to that measure of authority was one of mixed resistance, particularly as he grew older.
117 It should be noted that, apart from his evidence in relation to the redraw authority, Youssef gave no evidence that he did in fact approach David to sign any documents relating to the loan of $190,000. Under cross-examination by counsel for Perpetual, he stated that the signatures attributed to him on the Westpac documents were his and that those attributed to David El-Bayeh were David El-Bayeh's (see T278.4; T278.42; T279.10 and T279.17). However, he professed to having no recollection of a loan in that amount (T298-300).
118 Separately, it was clear that Youssef El-Bayeh considered himself entitled at all times to use the property as he wished, as disclosed in the following exchange in cross-examination (at T296.19):
"Q. In 1989 when the property was in David's name David could have sold it to someone else, couldn't he?
A. Can't sold it. He is under my control. The whole family up to now didn't do anything before they ask me. My father, he say you're the one and he agree with me and he know who I am and all the family was happy with me up to this point and I am proud what I done with my family.
Q. But the property was in David's name. He could have sold it and paid off the mortgage?
A. I don't think he could sold it. To pay the mortgage, I ask him, when we get problem with the money, I say look, we have problem, we must do something. I need some money to pay the mortgage and the bank, the Perpetual or something, they want their money. Let's come to do something to lend money from different bank to pay this and to control ourselves going. He say no, I don't want. I say I can put it on my brother Tony name or my son name because my son doesn't borrow any money, I was trying to go up on his name and he also get angry. He say you have to give me house. I say how can I give you house now? What for to give you house? And I say you be living since you born with us and the last time 15 year you work for $50,000, $70,000 a year and now you tell me you didn't have anything?"
119 I am not satisfied that Youssef El-Bayeh sought David El-Bayeh's express consent to the second Westpac loan at any time. No party suggested that David had sought the loan of his own initiative. I am satisfied that it was Youssef who applied for that loan.
120 Could it be concluded, nonetheless, that Youssef had David's authority to enter into that transaction on his behalf? It was David El-Bayeh's evidence that, if Youssef had come to him in 2000 and said he wanted to borrow money against the property, he "probably would have had an objection" (T124.40). He explained:
"I was under the impression that the loan would never go any higher than what it was and it was, the property was going to be for my future and I would have, I would have probably, I would have rejected that Youssef could borrow more money."
121 It was submitted on behalf of Perpetual that David's explanation was "transparent nonsense". I disagree. Even making due allowance for hindsight wisdom, it is an explanation that makes perfect sense, in my view. As already noted, Youssef acknowledged that the property was bought for David's benefit. Perpetual's submissions placed reliance on the fact that David had not previously resisted any instruction from Youssef, but he had not (so far as the evidence discloses) previously been asked to consent to further borrowings in his name secured by the mortgage over the property in his name. Further, although he had not previously shown any interest in the state of borrowing against the property, it must be remembered that, by the year 2000, he was aged 29. The question is not whether his position has moral force but what he is likely to have done (assuming he was asked) knowing that the property was registered in his name.
Consideration of the Westpac signatures
122 A critical task, of course, is to consider the signatures themselves. David El-Bayeh retained a handwriting expert, Mr Chris Anderson, who gave expert opinion evidence on that issue. No other party called evidence of that kind. Mr Anderson was provided with a collection of "specimen signatures" for the purpose of his reports. He examined some, but not all, of the impugned Westpac documents.
123 The documents obtained on subpoena by David El-Bayeh from Westpac which allegedly bear forgeries of his signature were annexed to his affidavit sworn 10 September 2009 (marked "B"). Those documents are listed below (for ease of reference, I have included the reference numbers allocated by Mr Anderson to the documents he considered):