Tasoulas v Tasoulas

1. [1]

   BASTEN JA: In July 1991 Christopher Tasoulas and his mother, Vasiliki Tasoulas, became the registered proprietors of a property in Park Road, Hunters Hill. Pursuant to a transfer dated 18 November 1991, registered on 11 December 1992, Mr Tasoulas (the appellant) transferred his half-share in the property to his mother (the respondent). On 25 August 2017 the appellant commenced proceedings in the Supreme Court, Equity Division, seeking to have the transfer of his share to his mother set aside on the basis that his signature on the transfer was forged.

2. [2]

   The matter was heard by Rein J in April 2018. In a judgment handed down on 17 May 2018 Rein J stated: [1]

3. [3]

   On 31 May 2018 the appellant lodged a notice of appeal including six grounds. The respondent filed a notice of contention alleging that the appellant’s claim was in any event statute barred under the Limitation Act 1969 (NSW), being a defence which the trial judge had not found it necessary to consider. Because, for the reasons set out below, the appellant has not made good his appeal, it is not necessary for this Court to address the operation of the Limitation Act.

Findings of trial judge

1. [4]

   Because the grounds of appeal do not squarely confront the primary findings of the trial judge, it is convenient that those findings be explained first. It was common ground that the appellant and his mother had purchased the Hunters Hill property in July 1991 for the sum of $267,000. They obtained a loan from Westpac Banking Corporation in an amount of $240,000, the balance of $27,000 being paid by each in equal shares. [2] That is, each provided $13,500 towards the purchase price. A joint mortgage was executed in favour of Westpac.

2. [5]

   The completion of the impugned transaction required a discharge of the joint mortgage and the execution of a fresh mortgage by Mrs Tasoulas alone. Although the impugned transfer was dated 18 November 1991, those additional steps were not taken until October and November 1992, the three documents being lodged together, presumably by Westpac, on 11 December 1992. The transaction had been arranged by Mrs Tasoulas through her solicitor, Mr Robert Miles.

3. [6]

   First, the judge had regard to the signatures on the documents. As appears from this aspect of the chronology, the joint mortgage and the transfer of the half share to Mrs Tasoulas were signed some four months apart in 1991. The trial judge had before him the joint mortgage, including two signatures acknowledged by the appellant to be his, and the impugned signature on the later transfer. The judge was of the view that the signatures were “strikingly similar, if not identical”. [3] He said there were differences between the appellant’s signatures on the 1991 documents and his signatures on the two affidavits sworn in 2017. He considered that the lapse of some 25 years explained why the signatures on the affidavits might vary from the signatures on the joint mortgage and the transfer. The appellant called no expert handwriting evidence.

4. [7]

   Secondly, the judge also placed significant weight on the plausibility of the ostensible motive for the transfer provided by the mother and the implausibility of the motives for forgery proposed by the appellant. The mother’s evidence was that the appellant’s business had not been going well and he was in financial difficulty. She said that by November 1991 he had made no payments towards the mortgage repayments. [4] On her evidence, the appellant agreed to transfer his share of the property to her in exchange for a payment of $15,000. The mother had a source of rental income from three shops she owned in Darling Street, Balmain.

5. [8]

   The appellant put forward two possible motives to explain why his mother might have arranged for the forgery of his signature on the transfer. The first was that his mother had a gambling problem and needed to secure further equity in the property to allow her to borrow money to cover her gambling debts. However, while the appellant said in evidence that his mother had always been a gambler, he identified the commencement of her problem gambling as arising no earlier than 1998; that is, some seven years after the impugned transfer was executed.

6. [9]

   His second proposed motive was that his mother wanted to make the property available to Mr Paul Fitzgerald, who was the appellant’s nephew, being the son of his sister, Georgia Fitzgerald. However, Paul was only 12 years old in 1991. The possibility that Mrs Tasoulas had fraudulently forged her son’s signature on a transfer so that she could transfer the land (or even part of it) to her grandson was highly implausible.

7. [10]

   With respect to his mother’s claim that he had not been paying his share of the joint mortgage in 1991, the appellant said that he had paid his mother some $850 in cash each month of every year (except for the years 1995-1997) on account of the mortgage. The years when he was not making payments were the years when he was married and not living with his mother at home. This evidence was inconsistent with the proposition that he believed his mother had a gambling problem from 1998; it was not supported by any financial record, and the claimed payments continued over a period from the late 1990s when his sister Georgia was looking after his mother’s financial affairs.

8. [11]

   Thirdly, the judge had regard to the evidence as to why the proceedings were commenced only in August 2017, a caveat having been placed on the title to the property by the appellant on 28 June 2017. The trigger for taking this step, according to the appellant, was that in May 2017 he had seen both a notice of valuation from the Valuer-General’s office in both his name and his mother’s name as co-owners and, at about the same time, a rate notice from the Council showing his mother as the sole owner. He said that he then proceeded to make inquiries and discovered that he was not on the title to the property. [5]

9. [12]

   The trial judge described his evidence as to the trigger for commencing the proceedings as both “implausible” and “unconvincing”. [6] The evidence was implausible for three reasons, namely that (i) the appellant had lived at the home for more than 20 years between 1992 and 2016; (ii) he agreed that he had likely seen similar correspondence at earlier times; (iii) he had drawn cheques for his mother on her account; and (iv) he had suggested that his mother’s mail had been sent to a post office box when there was no evidence that she had a post office box in her name. On the other hand, he had been the subject of a provisional apprehended domestic violence order (ADVO) taken out against him by his mother in May 2017 arising from an incident on 19 May 2017 when the police had attended in response to a complaint by his mother that he had assaulted her. That order was followed by an interim ADVO returnable before the Local Court on 3 July 2017. According to the evidence of his sister, [7] the appellant had taken the notice of valuation to the Court and asserted that as he was a part-owner of the property he could not be prevented from living there. The inference, accepted by the trial judge, was that the lodging of the caveat and the commencement of the proceedings were designed to allow the appellant to stay in the house, based on his part ownership of the property.

10. [13]

    Fourthly, there was a difficulty at the heart of the appellant’s case, namely that he could not identify a person who might have forged his signature on the impugned transfer. He gave the following evidence: [8]

11. [14]

    In oral submissions, the appellant confirmed that position, stating: [9]

12. [15]

    Against this background of the main elements in the judge’s reasons for rejecting the appellant’s case, it is convenient to turn to the challenges raised on the appeal.

Grounds of appeal

1. [16]

   This ground concerned the non-production of “transcripts” of certain telephone conversations. To understand its relevance it is necessary to explain the context.

2. [17]

   The trial judge appreciated that there was no documentary evidence establishing the payment of $15,000 to the appellant in 1991. It was a factor which potentially cast doubt on the respondent’s claim that she had made such a payment in exchange for the half interest in the property the subject of the transfer. Of that evidence, the judge noted:

3. [18]

   There was evidence from Mr Miles and the appellant’s sister, Ms Fitzgerald, to the effect that Mrs Tasoulas had told them that she would give (or had given) $15,000 to the appellant for the transfer of his share in the property. [10]

4. [19]

   With respect to Ms Fitzgerald’s evidence, the judge stated:

5. [20]

   The judge further stated that the appellant had said in his evidence, under cross-examination, that he had “been taking transcript” of the telephone conversations he had had with Georgia in relation to the Property.” The judge commented: [11]

6. [21]

   Ground 1 in the notice of appeal took issue with the judge’s statement that he had not attached any such transcript to his affidavits. The ground stated, “I have the original hand written notes and the transcripts were filed with the court in my affidavit.” There followed a list of the dates of eight telephone conversations, each of which had been set out in a paragraph of his affidavit of 13 October 2017.

7. [22]

   On one view the ground could involve a misunderstanding. The affidavit contained quotations from the various telephone conversations. They could be described as transcriptions of the words said on the telephone. However, the ground also appeared to acknowledge that the appellant understood that the cross-examiner had been referring to his failure to annex copies of his handwritten notes, being the point relied on by the judge.

8. [23]

   In the course of his cross-examination, when parts of Ms Fitzgerald’s affidavit were put to him, the appellant noted that she had referred to her “recollection”, whereas he said he was “taking notes on these calls word for word.” The trial judge was entitled to take the absence of the notes into account as a matter going to the appellant’s credibility.

9. [24]

   Even had there been a misunderstanding as to the importance of producing the contemporaneous records, the significance of the complaint turned on the appellant’s challenge to Ms Fitzgerald’s evidence. The appellant’s cross-examination of Ms Fitzgerald was limited. She gave evidence that, when he asked her “how much does mum owe on the house?” she had said words to the effect, “I don’t know. I’ll get back to you”, but did not intend to get back to him. The appellant asked why she took that approach, to which she replied “because it is up to my mother to disclose the, the balance of her, of her mortgage, not mine.” [12] A further question simply confirmed that she did not recall a conversation in relation to the rental the respondent was obtaining from the Balmain properties. There was no challenge to her evidence with respect to the conversation relied on by the trial judge and set out above.

10. [25]

    There was no error in the statement in the judge’s reasons challenged by ground 1. Even had there been, it was a matter of no particular significance in the overall reasoning of the trial judge. Ground 1 must be rejected.

11. [26]

    Ground 2 simply set out the details of the signatures on the impugned transfer. That document named Christopher Tasoulas as the transferor and his mother, Vasiliki Tasoulas, as the transferee. His (impugned) signature appeared over the description “Signature of Transferor” and Mr Miles’ signature appeared over the description “Solicitor for Transferee”. In the space headed “Signed in my presence by the transferor who is personally known to me”, Vasiliki Tasoulas had signed as the witness to the signature of the transferor.

12. [27]

    In his affidavit of 9 November 2017, Mr Miles noted that he had signed the transfer on behalf of the transferee, Mrs Tasoulas, and had not witnessed the signature of the transferor. In her evidence, Mrs Tasoulas said that she recognised her son’s signature on the transfer, continuing, “I do not now recall him signing the document but I recognise my signature as the witness.” [13]

13. [28]

    The judge addressed the issue of the signing of the impugned transfer in the following terms:

14. [29]

    While ground 2 accurately states the matters noted above, it does not identify any error in the reasoning of the trial judge in dealing with those issues, nor is there any evident error in the material passages in the judgment.

15. [30]

    It is convenient to set out the terms of ground 3, which were as follows:

16. [31]

    The appellant’s written submissions did not clarify the documents to which he was referring. However, the following exchange took place in the course of the appellant opening his case at trial: [14]

17. [32]

    There was then reference to the order in which witnesses would be called. There was an issue as to whether a Mr Longmire would be called, he being described by the appellant as “one of the contractors that I employed on the house since we bought the property.” Noting that no affidavit had been received from him and that the time had passed for preparing affidavits, the exchange continued: [15]

18. [33]

    Although he had said that he had further documents that he wished to tender, the following exchange took place at the end of the first day: [16]

19. [34]

    In this Court it also appeared that the appellant had in mind tendering the handwritten notes of the telephone conversations with his sister, which he claimed not to have had with him in the course of the trial and did not seek to tender. Nor, after the exchange noted above, was there any further attempt to put documentary material before the trial judge, nor to call Mr Longmire.

20. [35]

    Although there was no motion supported by an affidavit to call further evidence in this Court, and the Court therefore has no direct knowledge of what the evidence might have been, the ground of appeal can be disposed of on two separate bases. First, as the trial judge indicated to the appellant in the exchange set out above, directions had been given as to the service of affidavits in advance of the trial for the purpose of ensuring that each party was on notice of the evidence sought to be called. According to his own statements before the trial judge, the appellant had had a solicitor acting for him, and expected that the solicitor would brief counsel to appear for him at the trial. He claimed that the solicitor had abandoned him a few days before the trial because he refused to appear without being put in funds.

21. [36]

    Further, although the appellant professed ignorance as to how documents should be put before a court by way of evidence, his own principal affidavit contained numerous annexures and his supplementary affidavit contained a further annexure. Apart from blaming his solicitor for not annexing further documents to his affidavits, there was no explanation as to why the documents had not been produced in a timely fashion, or indeed at all.

22. [37]

    Secondly, at least part of the further evidence appears to have involved receipts from contractors who had undertaken work on the house at Hunters Hill. It is possible that he wished to argue that his role in obtaining contractors supported an inference that he had an interest in the property. However, that is a matter of speculation. The appellant also told this Court, in relation to his mother’s shops on Darling Street, Balmain, “they are her properties and I have helped her develop those over the years … and I’ve helped maintain – I don’t have any, any claim on those properties whatsoever …”. [17] For similar reasons, it is entirely possible that any work he had arranged to be undertaken on the Hunters Hill house reflected his interest as an occupant, over some 20 years, rather than as a part-owner. At best the evidence would have provided a basis for an inference that he believed he was still a part owner.

23. [38]

    The potential relevance of the handwritten notes of his conversations in 2017 with his sister has already been addressed.

24. [39]

    There is no basis to infer that any of the unseen documentary material could demonstrate that his signature on the impugned transfer had been forged. Nor, for the reasons indicated above, could it support a relevant motive on the part of any person (unidentified) associated with his mother, who may have forged his signature on the transfer.

25. [40]

    Thus, for procedural, practical and substantive reasons, ground 3 was without merit.

26. [41]

    Two mediations were held, being a formal mediation conducted by a Registrar of the Court and a second mediation conducted by a member of the family.

27. [42]

    The written submissions on the appeal did not identify any particular material which the appellant had sought to tender; nor was there any consideration of the prohibition, subject to exceptions, of adducing evidence of communications made between persons in dispute, and documents produced in connection with an attempt to negotiate a settlement of such a dispute, within the terms of s 131 of the Evidence Act 1995 (NSW). Although the appellant mentioned two matters of disquiet as to the manner in which the formal mediation was conducted, nothing said in oral submissions suggested that there was any material evidence arising out of the mediation. Indeed, the appellant stated, “[s]uffice it to say nothing happened at it …”. [18]

28. [43]

    With respect to the second mediation, which was proposed by his cousin, Mr Peter Pliatsikas, the appellant said he had expressed his full support for a further mediation if his mother would attend. She did not. His sister Ms Fitzgerald attended. Although the appellant asserted that the second informal mediation was not conducted on a “without prejudice” basis, he did not seek to provide evidence in either of his affidavits as to any event which occurred, or statement made, in the course of that mediation.

29. [44]

    There was no substance to ground 4.

30. [45]

    The appellant expressed the ground in the following terms:

31. [46]

    There was no affidavit evidence before the trial judge or before this Court as to any arrangements between the appellant and a solicitor. Nor was any application made to adjourn the hearing of the trial. However, the following exchange took place at the commencement of the trial. [19] On being asked by the judge why he had not provided an outline of submissions, the appellant stated:

32. [47]

    In this Court he stated that he had seen a solicitor, Mr Michael Fitzgerald, in order to obtain the caveat. The solicitor had told him: [20]

33. [48]

    The appellant stated that he then sought assistance from another solicitor who helped him prepare his affidavits, but required fees in hand before the hearing.

34. [49]

    None of this material provides any basis for overturning the judgment below.

35. [50]

    Again, it is convenient to set out the ground in full:

36. [51]

    It is true that the appellant was in the witness box under cross-examination for almost the whole of the first day of the hearing. The transcript records that he was sworn at 10.25am, cross-examination not being completed until shortly before 4pm on that day.

37. [52]

    There was also an indication that the appellant was tired towards the end of his cross-examination. He was being cross-examined by Mr Wyner, counsel for the respondent, as to whether, as stated in his first affidavit, he had “been living in the property since its purchase except for a period when [he] was married from 1995 to 1997.” It was suggested to him that he had not been living in the property from 30 December 2010 to 14 January 2011 when he had been subject to an ADVO. He was then taken back to the statement in his affidavit and he asked: [21]

38. [53]

    It may be accepted that the appellant was tired by the end of his cross-examination. However, what resulted were not “incongruencies” but inconsistencies within his testimony. They led the trial judge to conclude that he “did not find the plaintiff to be a credible witness.” [23] That finding was undoubtedly open on the evidence. At no point did the appellant, however, suggest that he needed a break. Further, although he referred in the ground to “unfair or irrelevant questions” to which he felt he could not object, he did not identify which questions, even in retrospect, he considered fell within those categories. There is no basis in ground 6 for this Court to intervene.

Conclusions

1. [54]

   These proceedings were commenced by the appellant, who sought to establish that the registration of the land at Park Street, Hunters Hill in the name of his mother had occurred as the result of fraud, in the form of the forgery of his signature on the impugned transfer. There was no evidence to suggest that any person other than he himself had signed the transfer. The evidence affirmatively supported the conclusion that he had signed the transfer.

2. [55]

   No ground of appeal demonstrates error on the part of the trial judge. The case presented on the appeal did not support a finding that the appellant had been denied a fair trial, nor that there had otherwise been some substantial wrong or miscarriage warranting a new trial. [24]

3. [56]

   In these circumstances, the Court should make the following orders:

   1. (1)

      Dismiss the appeal from the judgment and orders made in the Equity Division.

   2. (2)

      Order that the appellant pay the respondent’s costs in this Court.

4. [57]

   PAYNE JA: I agree with Basten JA.

5. [58]

   WHITE JA: I agree with Basten JA.