4 On 29 November 2006, Mr Braybon emailed Mr Moody, concluding: "The question for you is … are we in the ball park with our intended expenditure? … and (more importantly) … would you be interested in taking us on?". Mr Moody soon after returned the call, and they had a conversation about the possibility of Mr Moody buying a racehorse for Mr Tulloch.
5 According to Mr Braybon, on or about 30 November 2006, Mr Tulloch authorised him to instruct Mr Moody to buy a horse for up to AUD$150,000. On the same day, Mr Braybon contacted Mr Moody and conveyed Mr Tulloch's instructions.
6 Mr Moody unsuccessfully attempted to buy a horse at the Gold Coast Magic Millions sales. Thereafter, Mr Moody told Mr Braybon that he would attempt to buy a horse in New Zealand. In January 2007, Mr Moody attended yearling sales in New Zealand, where he purchased the horse that would later be called Excelltastic. In late January, Mr Moody informed Mr Braybon that he had bought a suitable yearling in New Zealand that was available for Mr Tulloch to buy.
7 In early February 2007, Mr Braybon researched the details of the yearling and discussed the horse with Mr Tulloch, and Mr Tulloch gave instructions to buy the horse. It was in the course of this conversation, according to Mr Braybon, that the prospect of his having an interest in the horse was first raised: Mr Tulloch said that he was not going to pay Mr Braybon for getting him the horse, but offered him a half share in the horse as a registered half-owner. Mr Braybon initially declined this offer because he did not think he could afford to contribute to the costs of upkeep of the horse, but Mr Tulloch pressed him, indicating that he would pay all the bills, that any prize money would be shared, and that the half share was in return for Mr Braybon doing the paperwork and accounts and talking to the trainer. Following this conversation, Mr Braybon informed Mr Moody that they would take the horse.
8 On 6 February 2007, Mr Braybon sent his friend Louise Strid an email, in seeking some capital gains tax advice on behalf of Mr Tulloch, but in which he also mentioned that Mr Tulloch had given him a half interest in the horse and the prize-money:
I told you about him asking for my help to buy him a racehorse with a top Melbourne trainer. After speaking to several I settled on a fellow called Peter Moody who is the number three trainer in Victoria and last week he bought Jack a yearling in NZ for $125,000 which Jack has now paid for. Much to my amazement he has registered me as a half share owner with no expense to me but I am to receive half of any prize money the horse may win … so here's hoping it wins plenty!! It's all very exciting.
9 According to Mr Braybon's step-daughter Jade Camden, who resides in the United Kingdom, in early February 2007 Mr Braybon told her on the telephone that Jack Tulloch had given him a half share in a racehorse.
10 According to Mr Braybon, on 26 February 2007, he received the invoice for the horse, and over the next two days, he assisted Mr Tulloch to transfer money from his accounts with the Banksia Financial Group to the Bendigo Bank, so that an international bank draft could be prepared to pay for the horse in New Zealand Dollars. Ms McNaught, who handled Mr Tulloch's affairs at the Banksia Group, sometimes received communications from Mr Braybon, but only ever acted on the express instructions of Mr Tulloch. On 27 February 2007, AU$116,900 was transferred from Banksia to Mr Tulloch's Bendigo Bank account, to pay for the horse. Thereafter, NZ$130,645 was paid directly from Mr Tulloch's Bendigo Bank account to New Zealand Bloodstock Limited.
11 According to Ms Black, in March 2007, Mr Tulloch mentioned to her his idea of giving a half share of the horse to Mr Braybon: "But I'm going to give half this horse to Fred. But it's not to go in his name. The horse will have to pay its way first, and it may never be any good. But if the horse is good, I'll share the prize money with Fred. It'll be just a gentleman's agreement". He said nothing to suggest that the idea had emanated from Mr Braybon; it was presented as his own idea. Ms Black said nothing to attempt to dissuade Mr Tulloch from his proposal. According to Ms Black's husband Noel, at about the same time - probably shortly after they were married on 3 March 2007 - Mr Tulloch told him: "I am going to give Fred half the horse after the horse has won its cost and training costs back".
12 According to Ms Ros Kennedy, who worked at the Finley Bowling Club, of which Mr Tulloch was a patron, in March 2007 he told her that he had given a half share of the horse to Mr Braybon, in return for Mr Braybon's work for him: "Fred has arranged to buy a racehorse. I have given Fred half the horse in return for all the work that Fred and Sharon are doing for me. Fred is good with books and figures and will manage the horse for both of us. I hope the horse can win some prize money, because Fred and Sharon are good people". Ms Kennedy's evidence was neither challenged nor contradicted.
13 Mr Tulloch's final version is contained in his own affidavit sworn in these proceedings, on 24 September 2009, in which he deposed:
I remember that I had an idea to buy a better racehorse a few years back. I had had some racehorses over the years, but they did not do well. When I had a bit of money, and thought my time was getting short, I thought I would spend the money to buy a better horse.
I was friendly with Fred Braybon then. He treated me well, and I liked him and thought well of him. I thought he knew his way around bookkeeping and computers, and I thought he had to be clever to do that. I asked him to [make] the arrangements to buy the horse. I do not remember what he said, but I remember that I paid for the horse, and it turned out to be a good one. Of course, I paid a lot of money for it. I thought a lot of that horse.
After I bought the horse I began to think that I might one day give half of the horse to Fred. I had this idea because I liked him. I have a got a few friends, and I think I have been pretty generous to them, but I have never given them anything as valuable as half of this horse. I thought I should do this for Fred because back then I thought he was worth it to me. I thought a fair bit of him in those days. I lent on him as a crutch.
I remember that I told Fred about this idea. I said 'you can have half this horse, but under my conditions'. I remember that I did not tell him what the conditions were, and he did not ask about them. I remember that Fred did not speak. The idea I was thinking about was that I would share half the horse with Fred and I would have the prize money. I would pay the expenses. I wanted to do it in a way that meant that I would have the controlling interest. That was important to me.
14 There is an obvious inconsistency between that version given by Mr Tulloch (that Mr Tulloch would retain any prize money) and what Jeanette and Noel Black attribute to him (that he would share the prize money with Fred). Moreover, in his oral evidence given to the Albury Local Court in criminal proceedings brought against Mr Braybon on a charge of "obtain financial benefit by deception", Mr Tulloch said that the terms were to be made up by him as it went along, and that he had none in mind as at 18 May 2007.
15 According to Mr Braybon, on 2 April 2007, he received the registration papers for the horse, some items in which had been completed by Mr Moody's secretary, Ms Kelly. At about this time, he told Ms Kelly that Mr Tulloch had made him a half-owner in return for managing the horse. Mr Braybon went to Mr Tulloch's house to have the form completed. Before filling out the registration papers, Mr Braybon explained to Mr Tulloch that the first-named owner would be the contact person for the horse. Mr Tulloch said that he wanted Mr Braybon to be named first, because Mr Tulloch did not want anybody ringing him. Mr Tulloch also nominated the owners' percentages, saying "Its 50% each". Mr Braybon filled out his details as first owner and then completed the details for Mr Tulloch as the second owner. Then, Mr Tulloch read the form, made an inquiry about Hotmail, and signed the form. The "Application to Register Horse" was lodged with RISA on 18 May 2007, and the fee of $100 was paid, by Mr Moody, who claimed reimbursement of the fee in his May invoice.
16 Mr Tulloch has given several versions of how his signature came to be on the registration papers showing Mr Braybon as one of the owners. In a signed statement made by Mr Tulloch to police on 7 March 2008, he said, with reference to the registration papers, "It looks like my signature". However, on 16 June 2008, in a further signed statement to the police, Mr Tulloch stated: "I don't remember signing the registration papers for the horse. It was never my intention to give ownership of the horse to Fred Braybon. I would not have given ownership of the horse to Fred Braybon". On 3 October 2008, at the opening of criminal proceedings against Mr Braybon on the charge of "obtain money by deception", the prosecutor abandoned an allegation of forgery. In the ensuing cross-examination, Mr Tulloch, although agreeing that he had suggested to the police that his signature on the registration papers had been forged, said that he remembered signing the papers, but alleged that when he was asked to sign them, they had been folded over, obscuring the name of Mr Braybon as a joint owner. However, the folds in the original registration form very obviously did not conform to the folds in the copy folded by Mr Tulloch in court as a demonstration of how he alleged Mr Braybon had folded it. Under further cross-examination, Mr Tulloch then claimed that the original registration form had not been filled in when he signed it. However, Mr Tulloch then retracted this allegation, saying he was "pretty old mate, and I make a few mistakes". Eventually, Mr Tulloch conceded that he had suggested to Mr Braybon that he (Mr Braybon) name the horse; implicit in "naming" the horse is completing the registration papers on which the name appears.
17 Ultimately, in his affidavit in the current proceedings, Mr Tulloch gave the following version:
I have been shown a two page document marked "Application to Register a Horse". I see my signature on the second page. My memory is that Fred gave this document to me, and that when he did so he said, 'You need to sign this'. I have no memory of reading the document before I signed it. If someone I trust gives me a document to sign, then I do not usually see the need to read it. That was my habit with Fred back then. I have been farming most of my life, and that is the way things have always been done in the bush as far as I am concerned. I also remember that I did not see any other handwriting on the second page of the document when I signed it. I certainly did not see Fred's name on the document. If I had seen it, I would remember that for sure, because it was important to me that I was the named owner of the horse. That was the point of my buying it. I once thought that the document was folded when Fred gave it to me, but I know now that that is not right. I got this mixed up with bills for the horse's expenses. I remember Fred showing me some bills that were folded. I now know that some of those bills had his name on them, but I did not see that at the time. That is something that I would certainly remember if it had happened.
18 According to Mr Braybon's step-daughter Jade Cameron, on 24 October 2007, she, her husband Chris, and Mr Braybon's son Ashley met Mr Tulloch at the Finley Bowling Club. Ashley and Jade both gave evidence of this event, which was unaffected by cross-examination. According to Ashley, after Mr Braybon had said to Mr Tulloch: "Peter Moody thinks this horse has promise", Jade thanked Mr Tulloch: "Thank you so much for giving Fred and mum a half share in the horse", to which Mr Tulloch responded: "Fred and your mother are doing a lot of work for me and hopefully they will bring us a lot of luck". Jade's version was that she said to Mr Tulloch: "Thank you for your generosity by giving Fred half the horse. This has brought our family a lot of enjoyment", to which Mr Tulloch replied: "Fred and Sharon are good people and they help me a lot".
19 According to Mr Braybon's brother-in-law Rodney James Jukes - who had in March been told by Mr and Mrs Braybon that Mr Tulloch had given them a half share of a racehorse - on Christmas Eve 2007 at Finley Bowling Club, Mr Jukes said to Mr Tulloch: "You are very generous to be giving half the horse to Fred and Sharon", to which Mr Tulloch replied: "I have given them a half share in the horse and we are going to have a lot of fun with it. The horse might not be any good, but hopefully Fred will bring me some good luck".
20 On 29 January 2008, the horse, for the first time, showed promise, by running third in a trial at Cranbourne. Mr Tulloch's good friend Jack O'Malley, who visited him weekly or so in 2007 and 2008 and was called to give evidence in the plaintiff's case, gave oral evidence in chief - not contained in his affidavit - that he remembered a conversation with Mr Tulloch - he said, he thought not long after the horse "got going and won a couple", but was uncertain as to the timing - in which Mr Tulloch had said, with reference to the horse, that once it "got square with the ledger", he was going to "look after Fred".
21 In early 2008, Mr Tulloch called Ms Kelly, and asked "What names is my horse registered in?". Shortly afterwards, on 28 February 2008, Mr Tulloch, in the Finley Bowling Club, publicly accused Mr Braybon of stealing his horse, and announced that he was going to the Police. On the same day, he called Jeanette Black and told her "Fred's stolen my horse".
22 The criminal proceedings, to which reference has been made, ensued. On 14 November 2008, the magistrate acquitted Mr Braybon, without Mr Braybon having to go into evidence. On 7 January 2009, despite the acquittal, Mr Tulloch again publicly accused Mr Braybon of stealing the horse. On 26 February 2009, Mr Tulloch instituted the current proceedings, asserting that Mr Braybon had procured his signature on the registration papers by undue influence or unconscionable conduct. On 4 March 2009, Mr Tulloch personally removed the horse from the care of Mr Moody. Mr Moody called Mr Braybon and, on 5 March 2009, on the authority of Mr Braybon, Mr Moody recovered possession of the horse.
23 Excelltastic has continued to race, with success. By 31 October 2009, he had won $338,493 in prize money, which is held by the third defendant, Racing Victoria, pending determination of these proceedings.
24 The plaintiff does not dispute that by 6 February 2007 Mr Tulloch had formed some intention to give a half interest in the horse to Mr Braybon, and that they would share the prize money, but disputes that Mr Tulloch ever perfected that intention. In particular, it is contended (1) that the "conditions" to which the gift was subject were not established, so that it could not be said precisely what Mr Tulloch intended to give or on what conditions, and (2) that Mr Tulloch never intentionally gave effect to any such intention.
25 As to the first of those contentions, nothing in the evidence supports the contention that this was a "conditional gift" in the usual sense of that term: there was no condition that Mr Braybon had to satisfy before becoming entitled. Mr Tulloch's evidence in the criminal proceedings was that he had no particular conditions in mind at the time. The "conditions" to which Mr Braybon referred as having been mentioned by Mr Tulloch (consistently with his 6 February email to Ms Strid) do not qualify the gift of the interest in the horse; if Mr Tulloch were to pay all expenses that was a benefit over and above the gift of a half-interest in the horse; a 50% share of the prize money reflected and accorded with, and did not add to or detract from, a gift of a half interest in the horse; and the nomination of Mr Braybon as managing owner does not affect the beneficial interest in the horse. If the gift was perfected without any relevant conditions having been stipulated, then conditions could not be retrospectively introduced.
26 As to the contention that Mr Tulloch never intentionally gave effect to any such intention, so that the gift remained imperfect, the inquiry turns on execution of the registration papers in April or May 2007. By executing the Application to Register, with Mr Braybon shown as a joint owner, and handing it to Mr Braybon to effect registration, Mr Tulloch did all things necessary on his part to cause Mr Braybon to become a registered half owner of the horse. The plaintiff accepts that on its face, the Application to Register evinced a perfected intention that Mr Braybon have a half interest in the horse and the prize money, but submits that Mr Tulloch did not know or appreciate that by executing it he was thereby perfecting such an intention. In my opinion, this submission is wrong in fact, and (absent a pleading of non est factum, and except in reply to a defence asserting that despite a presumption of undue influence, the gift was the pure voluntary and well-understood act of the donor [cf Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573, 577.46, 578.03-06]), irrelevant in law.
27 I do not accept that when he executed the registration papers, Mr Tulloch did not know and intend thereby to vest a half interest in the horse in Mr Braybon. I prefer Mr Braybon's version, for the following reasons.
28 First, Mr Tulloch's version cannot be regarded as reliable. He has given several factually inconsistent accounts of the circumstances surrounding the signing of the registration papers. At first, he alleged to the Police that his signature was forged. Next, he claimed that Mr Braybon folded over the registration form, so that he did not see Mr Braybon's name as co-owner on the registration form when he signed it. This was exposed as improbable before the magistrate on 3 October 2008, where the folds in the original registration form were inconsistent with its having been folded in the manner described by Mr Tulloch. Then, he suggested that Mr Braybon filled in the details of the registration form after Mr Tulloch had signed it. But Mr Tulloch retracted this allegation under further cross-examination before the magistrate, as a "mistake". The several different versions of the events surrounding his execution of the papers which he has from time to time advanced might be explained by the decline of his memory in the years following the signing of the registration papers; but there is no reason to suppose that his last version is any more reliable than his earlier versions, which he was later compelled to abandon. Indeed even in it, as set out in his affidavit in these proceedings, Mr Tulloch claims no memory of reading the document before [he] signed it. Yet, in the same paragraph, he claims to remember that [he] did not see any other handwriting on the second page of the document when [he] signed it. Mr Tulloch's last version of the events remains inherently contradictory.
29 Although Mr Tulloch could not, of course, be cross-examined before me, he was cross-examined in the criminal proceedings, and I have had the benefit of a transcript of Mr Tulloch's evidence before Magistrate Lerve in the Albury Local Court, and of listening to the recording of that evidence. His allegations and evidence vacillated widely. He was highly combative with the cross-examiner. It would have been most difficult to accept anything he said without firm corroboration. For the plaintiff, it was submitted that it all made sense once it was appreciated that Mr Tulloch did not understand that he had done anything to perfect his acknowledged intention to give half the horse to the plaintiff, so that he was under the belief that Mr Braybon had somehow obtained for himself one half interest, and upon perfection of the proposed gift would have the whole and own the horse outright. But such rationalisation does not explain his discrepant versions of the crucial event, the execution of the Application to Register; I regret that the better explanation for the many discrepancies in Mr Tulloch's versions is not some underlying rationalisation, but a combination of unreliability of memory, and adaption when one version became unsustainable.
30 Secondly, I found no reason to doubt the veracity and reliability of Mr Braybon's evidence. Mr Braybon gave his evidence carefully and precisely. He demonstrated restraint despite provocation, and he made appropriate concessions when called for; these are the marks of a witness who is able to remain objective despite the emotional overlay of the litigation. Admittedly, a number of attacks were made on his credit. It was suggested that the email sent by him on 29 November to Moody Racing was telling because, by using the terminology "we" and "us", it betrayed an anticipation on Mr Braybon's part that he would have an interest in the horse, months before it was suggested by Mr Tulloch. However, I see nothing curious in the use by Mr Braybon of the plural in that context, as embracing Mr Braybon's principal Mr Tulloch and himself as agent. In that context, it does not convey any anticipation on Mr Braybon's part that he would have an on-going role or interest.
31 Reference was also made to Mr Braybon's email to Ms Strid on 6 February 2007, in particular to the statement in it that might convey that Mr Braybon was already registered as a half-owner, it being suggested that this was inconsistent with Mr Braybon's version, because at that point he had not yet been registered as a half-owner. However, Mr Braybon's affidavit version is that, in early February, Mr Tulloch said to him: "I am not going to pay you for getting me the horse. I'm going to give you half of the horse. You are to put your name on the registration papers as a half owner", to which Mr Braybon responded: "I can't afford to race a horse", and Mr Tulloch replied "No, I will pay the bills, I've got plenty of money and I don't need any more, I want a horse that can win a race in Melbourne and I would like to share any prize money with you as it may bring me a change of luck". In circumstances where Mr Tulloch had said "You are to put your name on the registration papers as a half owner", and had spoken of "sharing" any prize money, there is no sinister inconsistency in the email's assertion that "he has registered me as a half share owner", or to receiving "half of any prize money". While there may be a literal distinction, it would be unduly hair-splitting to suppose that Mr Braybon was focussed on the distinction between a direction by Mr Tulloch that he effect registration in that way on the one hand, and its having been perfected on the other. Indeed, the 6 February email to Ms Strid tends far more to corroborate than to derogate from Mr Braybon's version. Its tone and timing is consistent with his version, and with his being the surprised and grateful beneficiary of a generous gift from Mr Tulloch.
32 Mr Braybon was cross-examined, at some length, by reference to propositions put by his counsel in the criminal proceedings in the course of cross-examination of Mr Tulloch. At the best of times, it is usually a long bow to draw to conclude that what counsel puts in cross-examination to a witness necessarily reflects a client's instructions. Clients do not usually leap to their feet to interrupt their counsel's cross-examination, or correct them as they go. In this case, the danger would be all the greater, where the cross-examiner was confronted by a witness whose position shifted, and who gave various versions of the same event, so that the cross-examination often involved endeavouring to pin the witness down to one or other version, or to remind him of an earlier version, rather than to put to him the accused's version.
33 Thirdly, there is a substantial body of evidence that shows that Mr Tulloch knew and understood that he had given a half interest in the horse to Mr Braybon: see the evidence of Ros Kennedy, Jade Cameron, Ashley Cameron and Rodney Jukes referred to above. Some attempt was made to exploit inconsistencies between them as to whether the gift was asserted to be to Mr and Mrs Braybon (jointly) or to Mr Braybon alone. In form, the registration papers plainly show that the donee was Mr Braybon. However, it would be unsurprising if it were sometimes perceived as a gift to both Fred and Sharon, by those who did not see the paper, but heard of the gift. It is very easy for participants in conversations to form different perceptions of the intended donee; the ambiguity of the word "you" in that setting contributes to that. Such perceptions can easily affect the recollections of witnesses. Such variations as there were in this respect seem to me of no moment; the Application to Register provides the answer.
34 Fourthly, and less significantly, while Ms Black maintains - and I am sure genuinely believes, to the point of total conviction - that her father would never have given a half interest in the horse to Mr Braybon, this is difficult to reconcile with her admission that he told her in March 2007 that he intended to do just that. Her absolute conviction - which seems to be based on his later denial that he had ever given a share in the horse to Mr Braybon - affected the plausibility of her evidence. She was somewhat combative with the cross-examiner in the witness box. She vacillated and gave inconsistent evidence as to the period over which she had been estranged from her father, her affidavit referring to "years" but her oral evidence to "a few months". She was somewhat evasive in explaining why Mr Braybon and his wife had been invited to a luncheon on Christmas Eve in 2007. There were inconsistencies in her evidence as to the state of her father's memory and capacity, which she tended to suggest were lacking when it suited the plaintiff's case impugning the horse transaction, but otherwise not: she was the beneficiary of very substantial gifts made by her father before his death, the executor of his will and the sole beneficiary of the only asset dealt with by his will, namely the horse; and she maintained that her father was fully in command of his faculties until he died - including as late as August 2009 when, shortly before his death, he closed a number of term deposits and transferred the proceeds to her and her husband. Her evidence that when her father first alleged that Mr Braybon had stolen his horse, she told Mr Braybon that she thought it was a misunderstanding on her father's part, and that she never believed her father had given a half interest to Mr Braybon, sat quite illogically in the context of conversations in which she attributed to Mr Braybon an offer to retransfer his half interest. In my view, her evidence was coloured by her unwavering conviction that her father would not have given Mr Braybon a half interest in the horse, and must be treated with caution. However, ultimately, except for the March 2007 conversation mentioned above - which favours Mr Braybon's case - her evidence did not significantly illuminate Mr Tulloch's intention at the time of the transaction, as distinct from what he maintained a year later when he repudiated it.
35 In any event, absent a plea of non est factum (which was not advanced), it would not matter if Mr Tulloch did not know the contents of the document he signed. It is no longer in dispute that Mr Tulloch signed the registration papers with the name of Mr Braybon on them as a joint owner. In his affidavit sworn in these proceedings on 24 September 2009, Mr Tulloch said that he signed the form at Mr Braybon's request; that it was his practice to sign documents that he was asked to sign by others without reading them; that he has no memory of reading it at the time; and that he did not see Mr Braybon's name on it. Even if it were accepted that Mr Tulloch signed the application form without reading it, in the absence of sufficient grounds to attract the doctrine of non est factum that would give no basis for concluding that there was not a perfected gift. Ordinarily, one who signs a document without reading the contents is nonetheless fixed with the contents. Every suggested circumstance that might have supported a plea of non est factum (forgery, and fraud by folding the document to obscure its true contents) has been disproved or retracted.
36 There was, therefore, a valid perfected gift at law, subject only to the equitable doctrine of undue influence.
Undue Influence
37 In the Amended Statement of Claim, the plaintiff alleges that Mr Tulloch formed his intention to give a half interest in the horse to Mr Braybon, and signed the registration papers, under Mr Braybon's (presumed) undue influence. (The pleading also appeared to allege that Mr Tulloch signed the registration document as a consequence of unfair, unconscientious or unconscionable conduct on the part of Mr Braybon, but this was not pressed in submissions).