Miles v Amos

HIS HONOUR: Despite a host of factual, and other, disagreements, there can be no dispute that this is an unusual case. On some of the fundamental facts, there are serious difficulties standing in the way of the acceptance of the evidence of the principal witnesses. At almost every level, the competing positions of those witnesses cannot be reconciled. Determining where the truth lies and which version of the facts is the more convincing, has been much more difficult than one might expect, given that the only witness on the facts in dispute, who was plainly self-interested, was the Defendant. The other witnesses, on each side, appeared to have no apparent motive to give untruthful evidence, and each had no apparent financial interest in the outcome of the case. Nor was her, or his, evidence, undermined, in such a way, as to make it clear that she, or he, was being mendacious. There was the added complexity of the uncontested expert forensic evidence which supports the Defendant’s case. In order to explain, one must descend into the detail of the evidence.

Yet, it is not necessary to decide every point that has been advanced in order to determine the issues. Indeed, it is impossible to do so, although the nature of the factual disputes must be set out. It is only necessary to decide whether the matters relied upon by each of the parties, respectively, are supported, and, if they are, whether they warrant the relief sought.

As was recently written in Coles v Reynolds & Anor [2020] EWHC 2151 (Ch), by Matthews HHJ, at [26]:

Even so, the process has, resulted in an over-long judgment and one in which detailed references to the evidence have been necessary.

The proceedings involve a claim made by the Plaintiff, Phillip Jacob Miles, against the Defendant, Catherine Gonzales Amos, pursuant to what is said to have been a valid assignment of debt owed but unpaid, which includes the value of jewellery, said to have been retained by, the Defendant.

Two other principal participants in the proceedings, although each is not a party, are Cristina Yu Ong (Ms Ong), who is, and who was at all material times, a Philippine national, and who is said to have assigned the debt (and chose in action) to the other participant, Thomas Baena (also known as Tom), a solicitor, who, in turn, is said to have assigned the debt (and chose in action) to the Plaintiff. Each was one of the witnesses called by the Plaintiff in the proceedings. The amount of the claim, as asserted in the third amended Statement of Claim filed by the Plaintiff, was $305,334, plus interest, filing and service fees.

For reasons to which I shall later refer, the Defendant’s broad submission was that the Plaintiff’s claim should be dismissed with costs. In broad summary, as she put it, “I do not have the jewellery. I do not [owe] money to Cristina Ong and … she is the one who owed money to me. That has not been settled”: Tcpt, 3 September 2020, p 290(31–32).

Thus, the central conflicts of evidence concerned whether the Defendant signed a written Deed of Debt and whether she had retained the jewellery which she acknowledged that she had received but which she said she had returned.

The Plaintiff is a litigant in person. Although not a lawyer, it was clear, from his conduct of the proceedings, that he has some experience in conducting litigation and appearing in Court. In addition, according to what he said at a directions hearing held on 4 August 2020 (Tcpt, 4 August 2020, p 2(16–20)), and at the hearing, he has sought, and obtained, legal advice, in relation to the conduct of the proceedings.

Whilst the Court suggested to the Plaintiff, more than once prior to the hearing, that he should be legally represented at the final hearing, the Court accepted, in view of the fundamental right of a litigant to appear in person, enshrined in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.1(1), he could continue without legal representation. He did not suggest that he required the assistance of the Court to explain matters of procedure or applicable rules. He seemed to be well aware that the Court’s duty was not to advise him of how to conduct his case; or to advise him of how his rights should be exercised; or to advise him as to any inadequacies in his evidence, having regard to the pleaded case; or to become his advocate, or stand in the shoes of legal representatives had they been retained; and that the Court would not unduly interfere with the conduct of the trial on his behalf.

The matter was listed for hearing for four days. It commenced on the afternoon of Monday, 31 August 2020, and continued until Thursday, 3 September 2020. Mr P Folino-Gallo of counsel appeared for the Defendant.

When directions were given on 4 August 2020, the Court noted the agreement of the parties that the hearing could proceed by way of live hearing. Arrangements were then made, and the imprimatur of the Chief Justice was then obtained, for that to occur. However, in the week before the hearing, the Plaintiff made an application that Ms Ong and Ms Maricel Cruz Gonzales, the sister of the Defendant, each of whom was to be called as a witness in support of his case, should be permitted to give evidence by audio-visual link as each was in The Republic of the Philippines and would not be able to travel to Australia for the hearing.

On behalf of the Defendant, an application was made that Robin Rin Salandanan, who was also in The Republic of the Philippines should be permitted to give evidence in the same way.

There was no dispute that the Plaintiff’s two witnesses were important, and that her evidence, and credibility, was in contest, which made it relevant to a consideration of the interests of justice. It was accepted that the Defendant’s witness, Mr Salandanan, was less important to the determination of the case than the Plaintiff’s witnesses.

Although the application for those witnesses to give evidence by audio-visual means, was not the subject of a notice of motion, the Court was able to take judicial notice of the fact that international travel into Australia was constrained in response to the COVID-19 pandemic, and that the evidence could not, more conveniently, be given in the courtroom without creating a potential health risk. In addition, by allowing the evidence to be given remotely, the hearing could proceed, thereby making efficient use of available judicial and administrative resources. Finally, neither party opposed the application of the other.

Section 62(1) of the Civil Procedure Act 2005 (NSW) provides that the court may, by order, give directions as to the conduct of any hearing. UCPR r 31.3(1) also provides that, if the court so orders, evidence and submissions may be received by telephone, video link, or other form of communication. Thus, the Court has a general power to make orders permitting the evidence of a witness to be given by audio video link.

Despite the late request, I was satisfied that to make an order permitting each of the overseas witnesses to give oral evidence to the court by audio visual link from a place outside Australia, would not be unfair to any party to the proceeding and that, otherwise, it was in the interests of the administration of justice to permit that to occur. I exercised the broad discretion in s 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), and made the direction for evidence to be taken from each from a place outside Australia by audio visual link.

On the second day of the hearing, without opposition from either party, the Court made the following direction (Tcpt, 1 September 2020, p 51(19–25)):

In the events that happened, the Court was informed that Mr Salandanan, on the night before the second day of the hearing, had been hospitalised, having received a coronavirus diagnosis. The Plaintiff did not dispute the facts asserted. It was accepted that Mr Salandanan, therefore, was unable to be cross-examined on his affidavit. Ultimately, I did not allow the affidavit to be read as he was not available for cross-examination: Tcpt, 3 September 2020, p 338(22) – p 339(09).

The giving of the evidence of each overseas witness was conducted using “Microsoft Teams”, a video communication platform that enables multiple persons to appear together online and communicate face-to-face using audio and video facility. Although there were some technical problems, whilst the evidence was being given, they were resolved, and the matter proceeded without any significant interruption. (However, the written transcript of evidence suffered as a result.)

Despite the hearing being conducted in this way, there was no informality, as counsel for the Defendant, and I, were wigged and robed throughout the cross-examination. The location and appearance of the AVL facility also was sufficiently formal with each party giving her evidence without any other witness being present in the room.

Each of the witnesses who gave evidence remotely had the opportunity to give her evidence comfortably, and the hearing was not materially impeded. I was able to see each almost as I would have, had she been present in the courtroom.

Having concluded that part of the hearing, my view that the cross-examination could be undertaken fairly, in a forensically sound, thorough, and just, manner was confirmed. I was also satisfied that, notwithstanding the circumstances, there was an effective cross-examination. No complaint was made about the way in which the cross-examination had been conducted.

As I have stated in another case, adherence to Court protocol is not without reason. As the Honourable David Malcolm AC QC, then Chief Justice of Western Australia, wrote extra-curially:

In the third amended Statement of Claim, the Plaintiff sought the following relief:

In summary, the Plaintiff sought recovery of a debt said to be owed by the Defendant. The Plaintiff, however, brought his claim as the second assignee of the debt. The underlying transaction said to have given rise to the debt was one between Ms Ong and the Defendant.

On the Plaintiff’s case, Ms Ong and the Defendant had entered into a contract (partly oral) to the effect that the Defendant would purchase land in Tasmania in Ms Ong’s name and would arrange for the construction of a building on that land. In consideration, Ms Ong would, initially, pay $40,000 to the Defendant in cash, and would pay the balance, $265,334, by giving her jewellery said to be of that value. Ms Ong had paid the Defendant in accordance with the agreement. However, the Defendant had failed to purchase the land in Ms Ong’s name, and had failed to construct any building upon it, and that, in consequence of the failure to uphold the terms of the agreement, those parties had entered into a Deed of Debt on 22 May 2017. A copy of the Deed of Debt was found in Ex P1/4–10.

The original of the Deed of Debt, immediately prior to the hearing, had been in the possession of the Plaintiff: Tcpt, 1 September 2020, p 97(09–30). It was not produced to the Court until 1 September 2020 and it was then marked Ex P2. The original, as tendered, did not have any photographs annexed to it. In re-examination, Ms Ong stated that when she had signed the original Deed, there were eight photographs attached to it: Tcpt, 1 September 2020, p 103(38) – p 104(17). She gave evidence that prior to the preparation and signing of the Deed, she had handed the photographs to Ms Gonzales to give to the Defendant: Tcpt, 1 September 2020, p 107(23–42). Ms Gonzales gave similar evidence at Tcpt, 1 September 2020, p 121(40) – p 121(50).

The Deed was said to operate as a guarantee, or as an acknowledgement, of the debt that was owed by the Defendant, which debt was to be repaid by the end of October 2017. The Plaintiff pleaded that the Defendant had failed to repay any part of the debt.

It was the substance of the Plaintiff’s case, that the precise identification of how the debt was created, the formality of execution before witnesses, and the contents of the Deed of Debt supported the conclusion that it was intended to prove, and to provide written evidence of, the claims being made.

The Deed of Debt specifically recited:

The parties to the Deed of Debt were also said to have agreed that the debt consisted of certain things set out in Recital B, arising from two bank transfers ($40,000) and expensive “jewelleries”, each with a value attributed to it, including 6.17 carat diamond earrings, a Chopard ladies luxury wristwatch, plus bracelets, earrings, a necklace, and other items, said to be of considerable value ($265,334). The Deed also acknowledged that interest could be charged at 15 per cent per annum: Recital D. Recital E of the Deed provided that “[t]he debtor unconditionally and willingly accept that the Creditor can sell the debt to any person or entity without any restriction, and the Creditor’s ownership and entitlement of this deed is an automatic transfer with the sale”. It will be necessary to return to the Deed of Debt in more detail later in these reasons.

Pausing there, one might have thought that the case would have been relatively straightforward, but the Defendant denied that the Deed of Debt had been signed by her. She called two witnesses to support her denial. In addition, she called a forensic document examiner, with over 10 years’ experience, Ms Melanie Holt, to give evidence on the topic. Ms Holt’s first report was dated 2 July 2018 and with a document headed “Case Notes” dated 9 January 2020, was tendered and marked as Ex D1. Her second report, which was dated 18 April 2019, and which was tendered and marked Ex D2, was written after she was given the opportunity to examine the original Deed of Debt. Each report was admitted over the objection of the Plaintiff. It will be necessary to return to the expert evidence.

The Plaintiff asserted that on 26 February 2018, Ms Ong assigned her rights to the Deed of Debt to Mr Baena, solicitor, by a written document headed “Assignment of Debt”.

On 6 March 2018, Mr Baena was said to have assigned his rights to the Deed of Debt, to the Plaintiff by a written document headed “Assignment of Debt”.

In about June 2019, after the commencement of the proceedings, it became apparent that the Defendant was challenging, amongst other things, the nature and completeness of the assignment. As will be referred to later in these reasons, the Defendant contended that, if the Deed of Assignment were valid, it only effected an assignment of Ms Ong’s rights under the Deed of Debt and was not an assignment of any other cause of action that might exist.

In response to that contention, Ms Ong deposed in an affidavit sworn 14 June 2019:

Whilst the issue of the rectification was rarely referred to during the hearing, it was plain that the Plaintiff sought to rely on two Deeds of Rectification (as evidenced in the third amended Statement of Claim). The first Deed was one dated 15 June 2019 and purported to rectify the Deed of Assignment entered into between Ms Ong and Mr Baena. The second was one dated 17 June 2019 and purported to rectify the Deed of Assignment entered into between Mr Baena and the Plaintiff. I shall return to the topic later in these reasons.

It is best to identify, verbatim, the Plaintiff’s ultimate claim as adverted to in par 15 of the third amended Statement of Claim:

The Defendant, in her amended Defence, denied some of the allegations in the third amended Statement of Claim. In respect of the alleged contract between her and Ms Ong, however, she admitted that there was an agreement by which the Defendant would purchase property in Tasmania on behalf of Ms Ong. She asserted, however, that the agreement was wholly oral and was made in, or about, November 2016 using the communication app “Viber”. The terms of that agreement were, relevantly:

The Defendant denied that it was a term of the agreement that, initially, $40,000 of the purchase price would be paid in cash. She also denied that it was a term that the balance of the purchase price would be paid in jewellery.

The Defendant admitted to receiving a payment of $19,980 from Ms Ong on about 16 November 2016: Ex P1/11. However, she characterised the payment as being one to demonstrate good will, made to assure the Defendant that Ms Ong would comply with her obligations under the agreement. The Defendant gave a similar characterisation to a second payment of $19,980 received on 27 March 2017: Ex P1/12. (The difference between the amount received and $20,000, in each case, are likely to have been bank charges.) Accordingly, she denied that either of the payments of $19,980 was made pursuant to the terms of any agreement between her and Ms Ong.

The Defendant asserted that, shortly after the November 2016 payment was received, Ms Ong instructed her to use the funds that had been transmitted to purchase certain luxury items for her, which the Defendant says that she did. She stated that Ms Ong promised to transfer further funds to reimburse her for the balance of the costs of the items purchased.

It was then asserted that between 27 February 2017 and 25 May 2017, the Defendant did, in fact, purchase four parcels of real property in Tasmania, pursuant to the terms of her agreement with Ms Ong. Each property, it was said, received the approval of Ms Ong before it was purchased.

In May 2017, Ms Ong (and others) travelled to Australia, at different times, and met the Defendant. It was during this visit that it was said that the Deed of Debt was signed, a matter denied, from the outset, by the Defendant.

In relation to the jewellery, the Defendant admitted, that, on two occasions during that visit, she received some pieces of jewellery from either Ms Ong, or from Ms Gonzales (on behalf of Ms Ong). However, she asserted that all of the jewellery that had been handed to her, was returned to Ms Ong, or to Ms Gonzales, later during the same trip, partly on about 12 May 2017, when she met Ms Ong in person for the first time, and told her that she did not wish to buy the jewellery from her, and as to the balance, on 23 May 2017, when she returned the balance of the jewellery to Ms Gonzales, whilst on a domestic flight travelling from Victoria to Sydney, who was then observed to have handed it to Ms Ong. The Defendant asserted that she had never seen the jewellery again after it was returned.

(Ms Ong firmly disputed this, stating that not a single piece of jewellery was returned: Tcpt, 1 September 2020, p 75(27–39).)

The Defendant also averred to having made several demands of Ms Ong to repay certain expenses that the Defendant had incurred on her behalf. Not only were these expenses associated with the properties in Tasmania, but also with the costs of Ms Ong’s trip to Australia, referred to above, some of which expenses it was said had been paid by the Defendant.

The Defendant pleaded that she did not know, and could not admit, the factual circumstances surrounding each assignment. However, she denied that any assignment was legally effective on four bases, namely that:

The Defendant denied the receipt of any notice of assignment from Mr Baena, although she admitted to having received a written notice of assignment from the Plaintiff. Indeed, there was undisputed evidence from the Plaintiff that on Saturday 10 March 2018, he had received a telephone call in which the Defendant denied being indebted to Ms Ong. However, the Defendant also denied the validity of the Plaintiff’s notice of the assignment in circumstances where she asserted that she did not know that she was indebted to Ms Ong or of the existence of the Deed of Debt, which she disputed having signed.

Finally, the Defendant denied, by reason of the above matters, that the Plaintiff held any equitable interest in the Defendant’s interest in certain land at Mount Annan on the title to which he had lodged a caveat.

The Plaintiff filed a Reply to the Amended Defence which amounted to a total denial of the factual allegations raised by the Defendant.

I shall next refer to the parties and the witnesses.

The Plaintiff is a director of a number of businesses including PJM Litigation and Debt Management Pty Ltd. In his first affidavit, he described himself as a “litigation manager”, and in his last affidavit as a “businessman”. He stated that he was not a lawyer. However, when asked in cross-examination, he also stated that he had obtained a law degree from the University of Liberia in the 1980’s, although he could not remember when, precisely, he had obtained a degree. (Liberia is a country on the West African coast.)

In Ex D4, which was a copy of a document obtained from the company’s website, the Plaintiff was described as having “attended law school in Australia and was licensed by the Court and subsequently issued with a master licence”. The document did not identify the law school that the Plaintiff had attended or when he had attended the law school.

When asked about the licence to which the document referred, he stated, at Tcpt, 2 September 2020, p 150(45–47), that he “was licensed by the Local Court of New South Wales to carry out commercial services, commercial agent services”. It was put to him that the statement in the document was one designed to mislead, which, somewhat disingenuously, he denied.

In Ex. D4, the Plaintiff, whether incorrectly or not, was also said to have “over 20 years’ knowledge and practical experience in the law and Court procedures and has conducted litigation in the Local Court, District Court, Supreme Court, the Administrative Tribunals of Australia, the Federal Court and the High Court, as he conducts his cases”. No examples of cases in which he had appeared, in any of these Courts, were given.

Finally, the Plaintiff was cross-examined, and he admitted, that in other proceedings, in which he had been a party, he had been identified as “Jamal Charara”. The proceedings were referred to with the medium neutral citation Charara v City First Holdings Ltd [2017] NSWDC 448.

(Although there is also a decision of the Federal Court in Charara v Commissioner of Taxation [2016] FCA 451, referred to, involving “Jamal Charara” as the applicant, I do not draw any conclusion from this case because the hearing occurred on 30 July 2015 even though the date of the reasons for judgment was 29 April 2016.)

The Plaintiff said that he had changed his name in 2015 or 2016, later confirmed by a document to have been December 2015, but he could not explain why he had been referred to by that name in September 2017 (the date of the application in Charara v City First Holdings Ltd): Tcpt, 1 September 2020, p 141(03) – p 142(39).

The Plaintiff accepted that he “purchased debts and cases from other people” as his business and that he “run[s] those cases in [his] own name for profit”: Tcpt, 1 September 2020, p 142(50) – p 143(05).

Ms Ong, in her affidavit, and orally, described herself as a “[b]usinesswoman”. She said that she was the owner of a “large corporation”, Dairy Essence Cheese, which is registered in the Republic of the Philippines. It is a business of not insignificant size, having over 400 employees. The company is engaged in cheese manufacturing and wholesale and retail sales thereof. It is owned by PYO International Corporation, which she described as “a family corporation”: Tcpt, 1 September 2020, p 65(05–10).

Ms Ong swore four affidavits that were read in the proceedings, and she gave her oral evidence through an interpreter, it being asserted, by the Plaintiff, that she needed to do so because she has “hypertension, high blood pressure, so she [feels] comfortable giving evidence through an interpreter. That’s what I’m informed”: Tcpt, 31 August 2020, p 7(01–04). Ms Ong confirmed that she had high blood pressure: Tcpt, 1 September 2020, p 66(34–35).

Ms Ong said that she had assigned the claim because she did not want the stress of litigation. Yet, she was prepared to participate in these proceedings and to make herself available for cross-examination, as the Defendant “got … all [the jewellery and] I want justice”: Tcpt, 1 September 2020, p 68(02–04).

Relevantly, one of the company’s employees was Ms Gonzales who is the biological sister of the Defendant. They grew up in The Republic of the Philippines but were raised in different homes. She was, at the relevant times, Ms Ong’s personal secretary and Ms Ong regarded her as a trusted employee: Tcpt, 1 September 2020, p 74(34–43).

In about 2000, the Defendant had emigrated from The Republic of the Philippines to Australia. Between 2000 and 2009 or 2010, there was little contact between the Defendant and Ms Gonzales. However, in about early 2010, they had reconnected and began communicating with some regularity.

By this time, Ms Gonzales had commenced working for Ms Ong. Although Ms Gonzales denied it, I am satisfied that it was likely to have been Ms Gonzales who introduced Ms Ong to the Defendant. There was some dispute about when this occurred, but whether it was in August 2016, or in November 2016, matters little, for the determination of the instant case.

Ms Gonzales was also a witness, called by the Plaintiff, and she was cross-examined.

Mr Baena is a solicitor, practising in the CBD in Sydney. He is a solicitor admitted in New South Wales and he practises as a sole practitioner trading under the name of “Baena Legal”. He was admitted as a solicitor in about 2006. Formerly, he had been a Major in the Australian Defence Force. He was a witness in the proceedings called by the Plaintiff and he was cross-examined.

Mr Baena met Ms Ong in about February 2018, (although he had spoken to her, by telephone, before then) when he travelled to The Philippines for that purpose. He had “made an offer to purchase her case” on the day after he had first met her: Tcpt, 2 September 2020, p 162(09–11). It was to Mr Baena that Ms Ong assigned the rights under the Deed of Debt on 26 February 2018 for $50,000: Ex P1/54–55.

Then, it was Mr Baena who, on 6 March 2018, assigned the rights under the Deed of Debt to the Plaintiff for $63,799.26, which amount had been paid to him by the Plaintiff: Ex P1/57–58. He gave evidence that he had sold the debt because he believed “it will take a long time and I don’t have the resources to pursue it myself”: Tcpt, 2 September 2020, p 164(15) – p 165(03).

Mr Baena gave evidence that he had sent a letter on 2 March 2018 to the Defendant effectively saying, “I now own this debt” and required payment, the receipt of which letter the Defendant denied.

Mr Baena had assisted in the preparation of Ms Ong’s affidavits by typing the affidavits when she told him what had happened. He had also assisted in the preparation of Ms Gonzales’ affidavits. He had also “been present” when the Plaintiff had prepared his affidavits and had provided guidance on “the substance of the [matters]” contained in it: Tcpt, 2 September 2020, p 64(34–50), p 111(09) – p 112(14), p 160(45) – p 161(19). He had also attended, with the Plaintiff, at a number of directions hearings.

Mr Baena, on instructions from the Plaintiff, apparently obtained a Deed of Rectification from Ms Ong on 14 June 2019. That document purported to expand the rights that had been assigned under the original Deed of Assignment that had been entered into between Ms Ong and Mr Baena. He gave evidence that whilst he had conferred with the Plaintiff about this document and they had agreed to obtain it, he had used his own money to obtain the Deed of Rectification from Ms Ong: Tcpt, 2 September 2020, p 162(36–48).

Mr Baena also said that he was not being paid by the Plaintiff for his professional services; that he had not entered a costs agreement with him, but that “[the Plaintiff] promised me that he … will pay me one day”: Tcpt, 2 September 2020, p 162(50) – p 163(41). (This statement was inconsistent with the Plaintiff’s evidence at Tcpt, 2 September 2020. p 152(17–49).)

A person by the name of Sabas Capili, who was not called as a witness by either party, was shown as one of the signatories, with Ms Ong, Ms Gonzales, and the Defendant, to the Deed of Debt. In the cross-examination of Mr Baena, it was ascertained, for the first time, that he knew a person by the name of Sabas Capili. He denied, however, that this person was the same person referred to in the Deed of Debt as one of the attesting witnesses: Tcpt, 2 September 2020, p 168(23) – p 171(39). Mr Baena had told the Plaintiff that he did not know the person referred to in the Deed: Tcpt, 2 September 2020, p 154(24) – p 155(30), p 174(13–20).

Ex D3 was a bundle of documents relating to Mr Capili, including one which was a photograph of Mr Baena and Mr Capili together. Mr Baena stated that he had not asked, and would not have asked, Mr Capili whether he was the signatory on the Deed of Debt because “I respect other people’s privacy so I don’t ask them about their commercial transactions or anything”: Tcpt, 2 September 2020, p 172(23–26), p 174(05–11).

Each of the Plaintiff, Ms Ong, Ms Gonzales, and also the Defendant, denied knowing a Mr Capili, although Ms Gonzales described him was as “a friend of Cathy’s”: Tcpt, 1 September 2020, p 66(12–17), p 92(23–29), p 126(22–30), p 143(07–17); Tcpt, 2 September 2020, p 270(44) – p 271(01).

The Defendant gave evidence and was cross-examined. She described her occupation as that of a Service Officer, formerly at the Department of Human Services, and at the date of hearing, at Centrelink. Not very much more about her was known although she had a business relationship with one of the other witnesses called on her behalf.

Mansukh P Mepani was a friend of the Defendant. He was present in Melbourne in May 2017 whilst she entertained her sister and others from The Philippines. In his affidavit affirmed on 7 September 2018, he wrote that on 22 May 2017 (the day the Deed of Debt was purportedly signed), the Defendant had spent almost the whole day in the room, as she was not feeling well, a matter he observed as he had looked after her at least for part of the time. He also said that later in the day, the Defendant was feeling better so they, and others, went out to a shopping outlet, and were together, until 5:00 p.m. when they returned to the Hotel. He, too, was cross-examined.

Neil Santiago was also a friend of the Defendant. He was present at a number of the events the subject of evidence to which I shall refer. He gave evidence, in his affidavit of 7 September 2018, that when he left the room at about 9:00 a.m., on 22 May 2017, the Defendant had remained there as she was not well, and that it was only at about lunchtime that he returned. Following his return, the Defendant left the room in which they were staying and that they, with others, went together to a shopping outlet where they remained, together until about 6:00 p.m. that evening. He was cross-examined also.

Jalel Elias (also known as Jake) was another friend of the Defendant. He gave evidence that he was in Sydney and that he had lent the Defendant his credit card, because she had told him that Ms Ong, “her potential new business partner”, “was having trouble using her credit card and that I would be paid back”. His evidence was short and he was cross-examined.

I am satisfied that each of the three witnesses called for the Defendant were related to the events only by his pre-existing friendship with her. None appeared to have any financial interest in the outcome of the proceedings.

As stated, the Defendant called Ms Holt, a forensic document examiner, who had provided two reports, the first dated 2 July 2018 (Ex D1), and the second dated 18 April 2019 (Ex D2). She had read the Expert Witness Code of Conduct and had agreed to be bound by it. She maintained, on affirmation, the opinions that were expressed in those two expert reports. She was cross-examined by the Plaintiff.

Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. Generally speaking, the person who asserts something bears the burden of proving it. Importantly, if the person who bears the burden of proof of a particular matter satisfies the court, after considering the material that has been placed before it, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then, for those purposes, it did not happen.

In Purkess v Crittenden (1965) 114 CLR 164 at 167–168; [1965] HCA 34 at [4], Barwick CJ, Kitto and Taylor JJ (Windeyer J agreeing) referred to two distinct meanings of the expression “burden” or “onus” of proof, quoting Phipson on Evidence (10th ed, 1963, Sweet & Maxwell) at par 92:

At 168, their Honours again approved the statement from Phipson on Evidence, at par 95:

The burden in the first sense, is often described as the legal, or the persuasive, burden. The second is described as the evidential burden. Before an evidential onus shifts from a plaintiff, the plaintiff must have adduced enough evidence for the court to infer, if that evidence was accepted by the court and was the only evidence on that topic in the case, that the proposition concerning which the plaintiff had the onus of proof was more likely than not true. Then, the onus of adducing evidence shifted to the defendant because if she, he, or it, does not adduce evidence concerning that proposition, the plaintiff might succeed in establishing that proposition. But before the defendant had that onus, “the evidence that the plaintiff has put forward on the topic must be such that, if accepted and the only evidence on the topic, it would justify the court in deciding it is more likely than not that the proposition for which the plaintiff bears the onus of proof is true. If the evidence that a plaintiff adduces is equally consistent with that proposition being true, or that proposition not being true, so that the plaintiff would fail to discharge its onus of proof if that were the only evidence on the topic, the defendant does not come under the sort of practical compulsion” described: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [84] (Campbell JA, McColl JA and Handley AJA agreeing) (emphasis in original).

In Watson v Foxman (1995) 49 NSWLR 315, McLelland CJ in Eq, at 319, noted that the plaintiff is required to prove each element of the cause of action to the reasonable satisfaction of the court, “which means that the court ‘must feel an actual persuasion of its occurrence or existence’. Such satisfaction is ‘not ... attained or established independently of the nature and consequence of the fact or facts to be proved’ including the ‘seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’” (citations omitted).

In Jones v Dunkel (1959) 101 CLR 298 at 305; [1959] HCA 8, Dixon CJ noted that “[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”. The statement was cited with approval by the majority in West v Government Insurance Office of New South Wales (1981) 148 CLR 62 at 66 (Stephen, Mason, Aickin and Wilson JJ); [1981] HCA 38.

Section 140 of the Evidence Act 1995 (NSW) provides that the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities, and that without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450; [1992] HCA 66 at [2], the majority of the High Court effectively stated what would become the mandatory considerations in s 140(2):

In In Re H (Minors) [1996] AC 563, Lord Nicholls (Lord Goff and Lord Mustill agreeing) stated, at 586:

In Fiona Trust & Holding Corporation v Privalov [2010] EWHC 3199 (Comm), Andrew Smith J stated at [1438]:

Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56 at 69 [48]; [2011] FCA 1123, wrote, at [48]:

In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, also expressed the view, at [44]–[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].

In the context of forensic proof it has been observed that the “difficulty of proving a negative is well known”: A v State of New South Wales (2007) 230 CLR 500 at 520 [60]; [2007] HCA 10 at [60] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ). Where a party (in this case, the Defendant) is required to prove a negative, proof of the negative fact usually requires proof by circumstantial evidence because of the tendency for there to be some supporting facts which might be inconsistent with the fact sought to be disproved: J D Heydon, Cross on Evidence (2020, LexisNexis) at [7070].

The credibility of a witness and his, or her, veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1 at 57 (Robert Goff LJ).

In R on the application of SS (Sri Lanka) v The Secretary of State for the Home Department [2018] EWCA Civ 1391, Leggatt LJ (Sir Colin Rimer and Lewison LJ agreeing) wrote at [33], [37]:

A judge’s ability to evaluate honesty and reliability merely from a witness’ demeanour is also fallible, and, therefore, where possible a court should rely on documentary evidence and any other objectively provable facts. Sackar J in Craig v Silverbrook [2013] NSWSC 1687, at [140], described reliance on demeanour as “notoriously a crude and inaccurate methodology”, and that “[I]ts defects have been exposed on numerous occasions”.

In this regard, I have found what Lord Pearce wrote, in his dissenting speech, in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, at 431, to be useful:

Furthermore, it is now widely accepted that memory is fallible, people can convince themselves of the veracity of false recollections of events and retain confidence in their false recollection. In other words, the evidence of a witness may be wholly wrong without her, or him, having lied. Recollection may be distorted by the re-interpretation of what had happened.

In McGlen-McLeod v Galloway [2012] NSWCA 368 at [87], Tobias AJA, with whom Allsop P and Campbell JA agreed, cited, with approval, the observations of Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]–[74] concerning findings of credit of witnesses:

Where the credibility of a witness’ evidence is challenged, the question whether the evidence relied upon by the opposing party has been put to the witness is an essential factor. It is useful to repeat the oft-quoted speech of Lord Herschell LC in Browne v Dunn (1893) 6 R (HL) 67; 6 ER 67 at 70–71:

Lord Halsbury, in a separate speech in Browne v Dunn, wrote at 76–77:

In this case, forgery was not specifically alleged in the amended Defence. However, if the Defendant did not sign the Deed of Debt, as was asserted by Ms Ong, someone else did. In Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16, Tamberlin J wrote at [117]:

Although written in another context, what was written in Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550, by Brereton J, at [26], is relevant:

There can be no dispute that the Court may admit the evidence of the opinion from an expert upon the genuineness of a disputed signature, after the expert has compared it with specimens proved to the satisfaction of the Court to be genuine. Even without making comparison, an expert is also entitled to give her, or his, general opinion from her, or his, general knowledge of the subject on whether the writing is in a feigned or natural hand.

In Clark v Ryan (1960) 103 CLR 486 at 491; [1960] HCA 42, Dixon CJ (Fullagar J agreeing) quoted, with approval, from J W Smith’s notes to the decision of Carter v Boehm in Smith’s Leading Cases:

In Honeysett v The Queen (2014) 253 CLR 122 at 131; [2014] HCA 29 at [23] it was observed:

The true role and value of expert evidence is as stated in Phipson on Evidence (19th ed, 2018, Sweet & Maxwell) at par 33-67, quoting Lord Cooper, the Lord President in Davie v Magistrates of Edinburgh 1953 SC 34 at 40, that the duty of an expert “is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence”.

In Pora v The Queen [2016] 1 NZLR 277 at 286; [2015] UKPC 9 at [24], the Judicial Committee of the Privy Council, stated:

In Nina Kung v Wang Din Shin [2005] HKCFA 54, a decision of the Court of Final Appeal of Hong Kong, Chan PJ (Sir Noel Power and Lord Scott NPJJ agreeing) wrote at [17] - [20]:

The authorship of a disputed document is a question of fact: Adami v The Queen (1959) 108 CLR 605; [1959] HCA 70; Jeans v Cleary [2006] NSWSC 647 at [155] - [158] (Johnson J).

A sample of a person’s handwriting may be admissible where there is a dispute about the author of a document, but the sample is only admissible if the Court is satisfied that it is genuine: Porter v Bonarrigo [2009] VSC 500 at [45] (Vickery J). This requires the judge to be satisfied, on the balance of probabilities, that the sample was written by the alleged author: R v Browne-Kerr [1990] VR 78 at 83–85 (Crockett, Gray and McDonald JJ). (In the present case, the signatures of the Defendant used by Ms Holt as comparable were not in dispute.)

Of course, a judge, sitting as a tribunal of fact, has to consider all the evidence before making his, or her, decision, and may prefer other evidence to the evidence of expert: Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 at [247] (Young CJ in Eq). The Court does not simply accept an expert opinion as if there were no other evidence. The expert opinion should be tested both against the other evidence received during the course of a trial, and, against its internal consistency.

In this regard, Ms Holt’s evidence must be weighed against the evidence of Ms Ong and Ms Gonzales, each of whom has stated that she saw the Defendant sign the Deed of Debt.

I have borne all of the observations set out above in mind. They have particular force in this case because of the factual disputes about most aspects of the case.

It is next convenient to set out, in more detail, some of the features of the Deed of Debt. As stated, the original (or, perhaps, an original) Deed of Debt was tendered as Ex P2. There are no amendments, interlineations or alterations on any part thereof. Each page bears a number of different signatures or initials. The front page of the Deed of Debt bears a handwritten “Annex A” but when, by whom, or for what purpose, it was written, is unclear.

The substantive part of the Deed consists of seven typewritten pages. It begins with a cover page displaying the title “Deed of Debt” and listing the parties as “Ms Cristina Yu Ong (Creditor)” and “Ms Catherine Gonzales Amos (Debtor)”. There is no legal firm which, or individual who, had prepared the Deed, identified on the cover page.

The second page records that the Deed is dated “22ndrd [sic] day of May 2017”. It repeats that the parties to the Deed are Ms Ong and the Defendant. It provides the address of both as the Defendant’s home address at Mount Annan (a suburb of south west Sydney).

I refer to Recital B verbatim:

There does not appear to be any document that reveals the source of the values shown. What is said to have been the cost of the jewellery is contained in the invoices from Claxson International Multi Products Inc addressed to Ms Ong: Ex P1/184. However, the amounts in that invoice are denominated in Philippine pesos. The invoice was dated 10 May 2017, some twelve days prior to the purported signing of the Deed.

I note that the handwritten sheet of paper sent to the Defendant, by Ms Ong, and received by her, did not contain the above figures; nor does it contain a reference to all of the pieces of jewellery referred to in Recital B.

It is fair to say that a number of the clauses of the Deed of Debt contain a statement of facts that seem to be far more favourable to the creditor than to the debtor and include the proposition that “[t]he Debtor unconditionally and willingly accept[s] …”. There is then a statement of facts under the heading “Background”. This Clause includes admissions made by the debtor, including that she had spent the $40,000 transmitted to her by the creditor, having “put [it] towards her mortgage payment on the said land and that she has also spent the proceeds from the sale of the items [at Recital (B)(ii)]”, and that “[a]s a result, the Creditor and Debtor have agreed to reduce all that happened between them to this Deed”. (It is fair to say that the information contained under the heading “Background” would not usually be found in a Deed of Debt.)

Clause 2 of the Deed of Debt, which is under the heading “Debt”, states:

Clause 3 of the Deed of Debt appears incomplete:

Clause 4 of the Deed of Debt provides a covenant that the Debtor will pay “all costs, charges, and expenses … paid or payable by the Creditor for or in relation to the negotiation, preparation, execution, stamping and registration of this deed or any collateral security …”.

It is not clear from the evidence, as already stated, how the value of each item of jewellery came to be inserted into the Deed of Debt. Nor is it clear when, if at all, the interest provision, or the rate of interest, was discussed by Ms Ong and the Defendant.

There is also no evidence that, at any time prior to 22 May 2017, the Defendant had agreed to give security over her land to Ms Ong, as set out in Clause 3 of the Deed of Debt. Nor is there evidence that there was any conversation in which the Defendant agreed to pay all costs, charges, expenses, stamp duty, registration, as set out in Clause 4 of the Deed. (In fact, an earlier document signed by Ms Ong and dated 31 March 2017, referred to “rates taxes for transfer” ($6,700) being payable by her.)

Turning to the final page, the document purports to be “Executed as a Deed”. The final page bears four signatures, purportedly being of:

The name of each of these persons is typed on the original Deed of Debt, although there was no evidence given of how the author of the document would have known, when he, or she, prepared it, or had it prepared, who was going to be present when the Deed was to be signed.

The Defendant and Ms Ong, purportedly, signed and accepted the Deed as the parties to it, whilst Mr Capili and Ms Gonzales purportedly witnessed the document. Each of the signatures bears the date of 22 May 2017, although each date is written in a slightly different form.

It should also be observed, at this point, that the Recitals in the Deed refer to several annexures. Those annexures were not in the original of the Deed that was tendered in evidence. The annexures (marked A to H) were said to be photographs of the pieces of jewellery that had been received by the Defendant. Copies of those photographs formed annexure CYO4 to Ms Ong’s affidavit sworn 14 June 2019.

Ms Ong gave evidence that she was the person who took each of the photographs: Tcpt, 1 September 2020, p 82(39) – p 83(33). She also gave evidence that prior to leaving for Australia in May 2017, she had marked each of those photographs with the letters A through to H respectively: Tcpt, 1 September 2020, p 83(42) – p 84(09).

Whilst she provided a copy of the photographs to the Defendant, through messages on Viber, the copies that were sent did not contain the letters A through to H marked on each photograph respectively: Tcpt, 1 September 2020, p 84(13–29).

Then, whilst in Sydney, at the Sir Stamford Hotel, Ms Ong gave a copy of the photographs to Ms Gonzales to then pass on to the Defendant. Ms Gonzales’ evidence corroborated that she had received the photographs from Ms Ong at the Hotel and, then, had duly passed them on to the Defendant: Tcpt, 1 September 2020, p 123(36) – p 124(12). Providing copies was said to have been done to allow the Defendant to prepare the Deed of Debt: Tcpt, 1 September 2020, p 107(31–42).

To an extent, Ms Ong’s evidence in this regard was internally contradictory. Her evidence that she marked the photographs with the letters A through to H and that she gave those photographs to Ms Gonzales to give to the Defendant is inconsistent with the following exchange earlier in her cross-examination (Tcpt, 1 September 2020, p 84(25–29)):

Ms Ong confirmed that when she signed the Deed of Debt, eight photographs had been annexed to it. Those photographs, she said, were identical to the ones found at annexure CYO4 to her affidavit: Tcpt, 1 September 2020, p 103(38) – p 104(41). Similarly, Ms Gonzales confirmed that the photographs were attached to the Deed of Debt when it was signed: Tcpt, 1 September 2020, p 121(40–50).

If the evidence is correct, there was no explanation given going to why the photographs did not form part of the original Deed of Debt as tendered. It was suggested by the Plaintiff, from the Bar table, that the photographs had been separated from the Deed of Debt by the NSW Police: Tcpt, 1 September 2020, p 99(41) – p 100(18). (The role played by NSW Police in the events will be discussed later in these reasons.)

Because the Defendant was unable to say anything about the events that occurred in relation to each of the assignments, I shall next deal with that aspect of the case. The documents speak for themselves and I shall refer to each of them and the evidence surrounding its preparation.

Sometime in the latter part of 2017, around November, Ms Ong made contact with Mr Baena, by telephone, having been given his name by a former client (whose name he could not remember but who was identified by Ms Ong as Jess Icon). Ms Ong contacted Mr Baena, in order to obtain legal advice about the debt allegedly owed to her by the Defendant.

Mr Baena gave evidence about the circumstances in which he and Ms Ong agreed to enter the Assignment of Debt. He said that before arriving in The Republic of the Philippines, he had been told by Ms Ong that she was owed over $300,000 by the Defendant and that she and the Defendant had entered into a Deed guaranteeing the repayment of the debt. At some point thereafter, he travelled to The Republic of the Philippines to meet with Ms Ong: Tcpt, 2 September 2020, p 161(33–50).

Mr Baena said that he was provided with the original document headed Deed of Debt, as well as some coloured photographs of certain jewellery marked with the letters A through to H respectively. He stated that Ms Ong told him that two originals of the document had been signed, one of which she retained, and the other of which was retained by the Defendant. He was also provided with a copy of two applications for money transfers which related to the transfers totalling $40,000. One of those transfers was dated 16 November 2016 and the other dated 24 March 2017. He noted that the “Purpose” for the transfer noted in each application form referred to the purchase of land. In the first, the purpose was described as “Partial Payment of Land Property” and, in the second, “Partial Payment for Purchased Property”.

Mr Baena said that he was also provided with a copy of two Sales Invoices, each of which was dated 10 May 2017, and a number of documents, each of which was said to be a receipt issued by Claxson International Multi Products Inc, for the payment, by Ms Ong, for the items of jewellery. (It is to be noted that some of the jewellery referred to in the first Sales Invoice bearing date 10 May 2017, formed part of the jewellery that the Defendant had received from Ms Gonzales on or about 3 May 2017.)

Mr Baena concluded, having seen these documents, that the Defendant owed the debt and that Ms Ong could commence proceedings in Australia to recover the debt, which would involve additional expenses, or “she can choose to sell all her right to the debt and the deed of debt for a lesser amount”. He advised her to consider his advice before making any decision.

The next day, Mr Baena and Ms Ong met again, and she said that she wanted “to sell all my rights to the debt and the deed of debt, because I really don’t have the energy and time to go after [a] Court case in Australia”. Mr Baena offered to buy all her rights to the debt and the deed of debt: Affidavit, Tom Baena, 7 June 2019 at par 8. For reasons to which I shall come, I am unable to accept, as quite improbable, the terms of the conversation so far as it relates to buying “all her rights to the debt”.

After negotiation, they agreed on the price of the equivalent of AUD$50,000. On 26 February 2018, Ms Ong and Mr Baena executed a document headed “Assignment of Debt” (the legal effect of which was in dispute).

A copy of the document headed “Assignment of Debt” was annexed to the Plaintiff’s first affidavit. It was dated 26 February 2018. It appeared to have been typed by a Notary. The only parties were Ms Ong and Mr Baena. It was signed by each of Ms Ong and Mr Baena, and her, and his, signature was shown as having been witnessed before “Atty. Noel R Valerio”, a notary public for, and in, Quezon City, The Philippines. It appears to have been registered.

The operative provisions were as follows:

It can be seen that under the Deed of Assignment, what was assigned was all of Ms Ong’s “rights, title and interest over the abovementioned Deed of Debt”.

Mr Baena paid the peso equivalent of AUD$50,000. There is evidence, being a copy of a cash payment receipt (Ex P1/56), that Ms Ong received two million pesos, in cash, on 26 February 2018 “as full satisfaction of the consideration referred to in the written assignment of debt”.

Following the signing, Ms Ong handed to Mr Baena “some of the written smart chats from [the Defendant], which is written in Filipino language and some of the photos that clearly shows [the Defendant] wearing some of the jewelleries”. (A copy of a translation of the messages was annexed to Mr Baena’s affidavit.)

Taken together, all of these matters establish that the document dated 26 February 2018 was entered into, on that date, between Ms Ong and Mr Baena.

Neither of the parties referred to the fact that the date of the Deed of Debt was incorrectly referred to in the Deed of Assignment as being 23 May 2017, when, in fact, it bears the date 22 May 2017. Nor did either refer (until their later attempt at rectification of the Deed of Assignment, discussed below) to the fact that the Deed of Debt was incorrectly recorded as being executed in New South Wales, rather than in Victoria.

Mr Baena gave evidence, in his affidavit in reply affirmed on 22 November 2019, that, following the assignment to him, he sent, on 2 March 2018, by prepaid post, a “Notice of Assignment of Jewellery and Deed of Debt” to the Defendant.

A copy of the document, together with the envelope in which it was said to have been sent, addressed to the Defendant, was each annexed to Mr Baena’s affidavit.

The Defendant asserted that she had never received the notice. It was put to Mr Baena, in cross-examination, that he had never sent it to the Defendant, an assertion he denied: Tcpt, 2 September 2020, p 168(12–21). No explanation was given by him for the failure to annex a copy of the notice that he said he sent, or a copy of the envelope in which the notice was sent, to his earlier affidavit which had been sworn on 7 June 2019.

(Bearing in mind the nature of the case, there does not appear to be any logical reason for the Defendant to have denied receiving the notice said to have been sent to her by Mr Baena, in circumstances where she acknowledged that she had received the notice sent to her, subsequently, by the Plaintiff, of the assignment of debt to him.)

A little over one week after the assignment to him, Mr Baena and the Plaintiff, on 6 March 2018, discussed the possibility of the former assigning the rights in the debt and the Deed of Debt to the Plaintiff: Tcpt, 2 September 2020, p 153(09) – p 154(15). During those discussions, the Plaintiff examined the Deed of Debt and observed the signatures thereon. He asked Mr Baena whether Mr Baena knew any of the persons who had signed the document. In particular, he asked Mr Baena whether he knew Mr Capili, to which he replied that he did not: Tcpt, 2 September 2020, p 154(17–35).

In cross-examination, it was put to the Plaintiff (Tcpt, 2 September 2020, p 155(26–30)):

It is surprising that the name of the signatories on the Deed of Debt was raised with Mr Baena by the Plaintiff, as there was no suggestion that Mr Baena had been present when the Deed of Debt was said to have been signed. Mr Baena’s response was equally surprising bearing in mind his evidence, given only during the hearing, that he knew a person with the same name as one of the signatories to the Deed of Debt, a matter that, apparently, he did not consider necessary to disclose to the Plaintiff.

The Plaintiff, on that day, or at any time thereafter, did not make any inquiries as to the identity of the person identified as Sabas Capili, a signatory on the Deed of Debt: Tcpt, 2 September 2020, p 155(49) – p 156(24) and the only named signatory who did not give evidence in the proceedings.

Following their discussions, the Plaintiff and Mr Baena, on 6 March 2018, entered into a document headed “Assignment of Debt” (the legal effect of which document was in dispute). As consideration for the assignment, the Plaintiff provided an “assignment of a debt owing to the assignee by the District Court of New South Wales judgement of debt … in the amount of $63,799.26 plus interest …”. In this document, the date of the Deed of Debt was correctly identified. However, as in the Deed of Assignment between Ms Ong and Mr Baena, it incorrectly referred to the Deed of Debt as having been executed in New South Wales.

The relevant part of the Assignment of Debt dated 6 March 2018 was:

Although it purports to refer to Mr Baena having purchased and taken “assignment of the debt from the original creditor (Cristina Yu Ong) which the debtor unconditionally owes”, the assignment from him to the Plaintiff could not be for more than that which had been assigned to Mr Baena by Ms Ong. It follows that the assignment could only be of all of Ms Ong’s “rights, title and interest over the above mentioned Deed of Debt”.

On the same day, the Plaintiff sent a notice of the assignment of the debt to the Defendant, which included a demand for payment of $305,334 plus interest. The Defendant accepted that she had received that notice and that she had refused the Plaintiff’s demand.

On 12 March 2018, the Plaintiff lodged a caveat over the Defendant’s interest in her home in Mount Annan. Schedule 1 to the Caveat recorded in the section entitled “Particulars of the estate or interest in the abovementioned land”:

There was a response to the Plaintiff’s Notice of Assignment, on behalf of the Defendant, in a letter dated 11 April 2018, from Doyle Legal. In this document, the following passage appears:

On about 14 June 2018, the Plaintiff received, from the Registrar-General, a lapsing notice pursuant to s 74J of the Real Property Act 1900 (NSW). Then, an application was made by the Defendant, who was a registered proprietor (with her spouse Jerry Amos as joint tenants, as to a 2/3 share of the Mount Annan property and Mr Mepani, as tenant in common in 1/3 share) for the caveat to lapse.

It appears, from the Court file, that proceedings were then commenced by the Plaintiff and were first listed before Darke J on 22 June 2018, when, by agreement, the operation of the Plaintiff’s caveat was extended until further order of the Court and the matter was adjourned until 6 July 2018. Directions were made for the matter to proceed by pleadings and for evidence to be served. The matter was adjourned until 21 September 2018.

On 24 October 2018, the Defendant issued a subpoena to Detective Sergeant Bob Brisby of NSW Police, to produce all documents relating to fingerprint and DNA forensic examination of the Deed of Debt. The subpoena was in the following terms:

On the same day, the Plaintiff filed a notice of motion seeking an order, amongst other orders, that the subpoena be set aside in its entirety.

On 24 October 2018, the Defendant filed a notice of motion seeking production of the original Deed of Debt for the purposes of allowing its examination by an expert forensic document examiner.

On 24 March 2019, the Defendant filed another notice of motion seeking an order under UCPR r 14.28 that various paragraphs of the Statement of Claim be struck out as they did not disclose a reasonable cause of action and constituted an abuse of process.

The three notices of motion were listed, for hearing, before Pembroke J on 12 April 2019. On that date, his Honour made orders dealing with each of the notices of motion, including one permitting the amendment of the Statement of Claim; directions regarding the filing of an amended defence; requiring the Plaintiff to produce, to the Defendant’s solicitors, for examination by an expert nominated by the Defendant, the original Deed of Debt; and dismissing the Plaintiff’s notice of motion to set aside the subpoena to Detective Sergeant Brisby.

His Honour delivered a short, ex tempore, judgment, a copy of which remains on the Court file and he listed the matter before the Registrar in Equity on 12 June 2019.

At about this time, on 11 April 2019, the Defendant filed an affidavit sworn by her on 21 June 2018 (Ex P4) in which she denied that she had signed any Deed on 22 May 2017 or on any other date.

On 7 June 2019, the Defendant filed another notice of motion seeking an order under UCPR r 14.28, that various paragraphs of the second amended Statement of Claim be struck out as they did not disclose a reasonable cause of action and constituted an abuse of the process of the Court.

On 15 June 2019, a document entitled “Assignment of Debt” was entered into and signed by Ms Ong and Mr Baena. Despite the title, its terms reveal that it purported to rectify the Assignment of Debt made between them on 26 February 2018.

Similarly, on 17 June 2019, the Plaintiff and Mr Baena entered into a document entitled “Rectification of the “Assignment of Debt” dated 6 March 2018”.

On 18 June 2019, the Plaintiff filed a notice of motion, said to be pursuant to the Court’s inherent power, seeking rectification of each of the Deeds of Assignment to include the terms of the rectification documents that had been signed several days prior. The premise of the notice of motion was misconceived and, consequently, on 3 September 2019, Kunc J dismissed the notice of motion with costs.

The matter was then listed on a number of occasions before Kunc J, who permitted the Plaintiff to re-plead his case, and then listed the matter before the Registrar in Equity, who, on 3 December 2019, listed it, for hearing, before me on 31 August 2019 for four days.

As I have referred to above, the issue of the rectification of the Deeds of Assignment was said to have come about as a result of difficulties the Defendant asserted existed in the scope of each of them. Unfortunately, the effectiveness of either of those Deeds was not addressed, in any detail, or at all, by the Plaintiff, or by counsel for the Defendant during submissions.

In the third amended Statement of Claim, at pars 10–11, the Plaintiff pleaded:

In the Defence to the third amended Statement of Claim, at par 12(b), the Defendant simply pleaded that she did not know, and could not admit, the allegations relating to the rectification of the alleged assignment. She referred to what was argued, at the hearing, before Pembroke J (to which further reference will be made below), and added that it:

The Defendant pleaded at par 12(c)(iii):

There was no similar paragraph in the Defence referring to the rectified Assignment as between the Plaintiff and Mr Baena.

In her affidavit sworn on 14 June 2019, Ms Ong deposed that she and Mr Baena had voluntarily rectified the Deed of Assignment dated 26 February 2018 to “fully incorporate our intentions upon which the ‘Assignment of Debt’ was made and signed”.

Attached to the back of that affidavit was a document entitled “Assignment of Debt”. However, the opening paragraph makes it clear that the document was intended to be the document pursuant to which the earlier Deed of Assignment was to be rectified. A copy of the Deed of Rectification was not marked separately as an annexure, but it seemed simply to have been added to the end of another, unrelated, annexure.

Whilst Ms Ong referred to the rectification in her affidavit, she did not refer specifically to the Deed of Rectification as an annexure.

Curiously, also, the Deed of Rectification was signed by Ms Ong and Mr Baena (witnessed by Julieta Austria, a friend of Ms Ong’s, and Ms Gonzales) on 15 June 2019 (although the recitals purported to date the Deed on 14 June 2019). That is, one day after Ms Ong’s affidavit, to which it was annexed, was supposedly sworn.

Turning to the specific content of the Deed of Rectification, it appears to constitute a completely revised version of the original Deed of Assignment rather than amending specific clauses therein. Relevantly, for present purposes, the Deed of Rectification redefined “the debt” as follows:

The Deed of Rectification purported to alter the operative part of the Deed of Assignment in the following way:

The Deed of Rectification purported to be effective from 26 February 2018, that is, the date of the Deed of Assignment between Ms Ong and Mr Baena.

A copy of that Deed of Rectification was also attached to an affidavit of Mr Baena sworn 7 June 2019. Again, there was no reference, in the body of Mr Baena’s affidavit, to the rectification, nor to the document itself. How the Deed of Rectification, which post-dated the swearing of the affidavit, could have been an annexure thereto was not explained.

Also attached to Mr Baena’s affidavit (again without any reference being made) was a document entitled “Rectification of the “Assignment of Debt” dated 6 March 2018”. This document, dated 17 June 2019, purported to rectify the Deed of Assignment entered into between Mr Baena and the Plaintiff.

Much like the other Deed of Rectification, it purported to expand the scope of the assignment beyond the Deed of Debt, to the rights to the debt more broadly. The following, with the amendments in strikethrough and underline, indicates the purported effect of the rectification:

Once again, it must be asked how a copy of a Deed of Rectification dated 17 June 2019 was annexed to an affidavit sworn 7 June 2019. No explanation was sought or given. The problem is compounded by the fact that the document was not referred to within the body of the affidavit.

As will be discussed further below, with reference to the authorities, the purpose of a rectification is to correct the written instrument such that it conforms to the true agreement between the parties, which the instrument mistakenly fails to express. There was little, if any, evidence going to the common intention of the parties to each Deed of Assignment at the time it was made. Mr Baena gave some evidence of the conversations that occurred between Ms Ong and him prior to the original assignment and preparation of the Deed of Assignment. I have already made reference to those conversations above.

Ms Ong’s evidence made no more than a bare assertion of their common intention:

Again, as noted earlier, Mr Baena did not refer to the rectification of the Deed of Assignment in the body of his affidavit. In par 12 of his affidavit sworn 7 June 2019, he referred to the assignment of his rights to the Plaintiff and said, as to his intention, at that time:

There was little attention given to the issue of the rectification in cross-examination. The only brief foray into the topic occurred in the cross-examination of Mr Baena, when counsel for the Defendant confirmed that Mr Baena had conferred with the Plaintiff and had obtained the Deed of Rectification from Ms Ong: Tcpt, 2 September 2020, p 162(17–45). (I observe that counsel for the Defendant referred to that Deed of Rectification as having been signed on 14 June 2019, when the date on the Deed itself was 15 June 2019.)

When the Plaintiff was asked about the consequences if the Court was not satisfied of the validity of the Deed of Debt, he did not mention the effect, if any, of the Deeds of Rectification.

It was suggested, in arguendo, that the Deed of Rectification, in each case, followed the proceedings before Pembroke J, who, in discussion with Mr Doyle (then counsel for the Defendant) was informed about the issue of the scope of the original Deed of Assignment. The following exchange had occurred when the matter was before Pembroke J (Tcpt, 12 April 2019, p 11(01–49)):

In his Honour’s ex tempore judgment, Pembroke J stated at [12] and [17(1)]:

Certainly, the evidence suggests that the purported rectification of each Deed of Assignment was prompted by what had occurred in the proceedings before Pembroke J, rather than by any common intention supposedly manifest at the time each of the Deeds of Assignment was entered into.

The principles regarding the remedy of rectification are well known. Recently, in Queenfield Pty Ltd v Gordon Finance Pty Ltd [2020] VSCA 282, the Court of Appeal in Victoria (McLeish, Niall and Sifris JJA) wrote at [50] - [51]:

Their Honours continued at [80] - [82]:

Before leaving the topic, I should refer to Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 332, in which Mahoney AP wrote that rectification “does not include consequences which the parties did not have in their mind when the deed was executed even if, had they thought of them, they would have intended them …”.

True it is, in this case, that the Plaintiff did not seek an order of the Court for rectification of either Deed of Assignment. As Hill J explained in relation to a deed of rectification in Davis v Commissioner of Taxation (2000) 171 ALR 654 at 667 [57]; [2000] FCA 44 at [57]:

It is for the Plaintiff to establish that the Deed of Rectification, in each case, truly operated to record that the parties to the Deed of Debt were under a mutual mistake. There needs to be “clear and convincing” proof of the subjective intentions of the makers, respectively, of the document.

Bearing in mind all of the evidence, I am unable to accept that Ms Ong, Mr Baena, and the Plaintiff, were, respectively, under any mutual mistake in circumstances where, at the time each Deed of Assignment was entered into, there had been no need to consider anything other than the Deed of Debt. Prior to that time, according to the evidence, the Deed of Debt was thought to be valid, particularly by Ms Ong and Mr Baena. In this regard, Mr Baena’s evidence on that topic was important (Tcpt, 2 September 2020, p 172(28–45)):

It is also to be remembered that the Deed of Assignment between Ms Ong and Mr Baena was drafted by a notary public and entered into by Mr Baena, a solicitor. Similarly, the Deed between Mr Baena and the Plaintiff was entered into by Mr Baena, a solicitor, and with the Plaintiff, who professed some legal training. One would have expected each to have carefully considered what each was receiving for the consideration that was being given.

Although there was some evidence, referred to above, given by Mr Baena that he and Ms Ong had discussed the assignment of “all [Ms Ong’s] rights to the debt and the deed of debt”, the affidavit in which that evidence appeared was sworn on 7 June 2019, nearly two months after the hearing before Pembroke J. It must therefore be considered in that context.

I also note the Plaintiff’s evidence where, even at the date of the hearing, he maintained his conviction that the Deed of Debt was genuine (Tcpt, 2 September 2020, p 155(49) – p 156(24)):

On the balance of probabilities, each of the Deeds of Rectification, in my view, was no more than an ex post facto attempt to solve a problem inherent in the Plaintiff’s claim, which problem had become apparent in the course of the hearing before Pembroke J. The evidence falls far short of clear and convincing proof of the subjective intentions of the relevant parties at the time the Deed of Assignment, respectively, was entered into. I do not accept that the Deed of Rectification, in each case, recorded the agreement as it always was.

The Deeds of Rectification did not purport to be anything more than a document of rectification. In those circumstances, it is unnecessary to consider if each had any other effect. The Plaintiff did not suggest that either Deed of Assignment had been varied by subsequent agreement between the parties, presumably because it was appreciated that by the date of the Deed of Rectification, each Deed of Assignment had been “wholly spent by the assignment and notice”: Mearns v Australian Litigation Fund Pty Ltd [2006] FCAFC 81 at [12] (Nicholson, Conti and Downes JJ).)

Having addressed much of the procedural history and the key documents relied upon as the foundation of these proceedings, it is next convenient to turn to the underlying facts which led to the present dispute.

In about early November 2016, the Defendant went on a holiday to Tasmania. Whilst there, she paid a small deposit to secure a property in Stanley, a town on the north-west coast of Tasmania.

What followed the Defendant’s trip to Tasmania remained in dispute at the date of the hearing. Ms Ong gave evidence that in about November 2016, the Defendant befriended her and began encouraging her to purchase land in Tasmania. Ms Ong took up the encouragement and the two of them entered into an agreement for the purchase of land. Under the terms of the agreement, which was, initially, wholly oral, the Defendant was to purchase the property in Tasmania in Ms Ong’s name. The total purchase price for the transaction was $150,000. Of that amount, $40,000 was to be paid in cash, and the balance, at the Defendant’s request, was to be paid in jewellery.

The Defendant’s account differed in several important respects. On her version of events, having paid the deposit for the property in Stanley, she posted some pictures and a video to her social media accounts. Ms Ong came to view those posts, and immediately placed a video call to the Defendant. During that call, Ms Ong expressed an interest in purchasing property in Tasmania, and the Defendant offered to make some inquiries for her. Several video calls and messages followed this initial discussion. At some point, although the Defendant was unable to be precise as to the date or time, the Defendant and Ms Ong orally agreed upon the purchase of properties in Tasmania. The Defendant was to purchase the properties in her own name, and would, initially, pay the purchase price and any incidental costs or expenses. Ms Ong would reimburse her, in cash, for all of these sums. The Defendant was then to transfer the properties into the name of Ms Ong (or her nominee). Once the transfers were complete, the Defendant was to manage the properties for Ms Ong, including overseeing the construction of buildings thereon.

Some of the terms, deposed to by the Defendant, were put to Ms Ong in cross-examination. Aside from acknowledging that there was an agreement to purchase property in Tasmania, Ms Ong denied that any of the Defendant’s evidence reflected the agreement reached with her: Tcpt, 1 September 2020, p 69(39) – p 70(37).

Yet, it was, seemingly, common to both accounts that some agreement had been made for the purchase of property in Tasmania. The key differences were, first, into whose name any property purchased was to be initially transferred and, secondly, whether any part of the purchase price was to be paid, not in cash, but in jewellery.

On 9 November 2016, the Defendant purchased two properties in Stanley, in her own name, under the one contract. The purchase price for each property was $75,000. It would seem that one of the properties was the property for which the Defendant had paid the small deposit in early November.

I have already referred to the two payments of $19,980 (made on 16 November 2016 and 27 March 2017) that Ms Ong caused to be transferred to the Defendant.

The Defendant gave evidence that on about 18 November 2016, she had a video call with Ms Gonzales and Ms Ong. Ms Ong asked the Defendant to purchase for her, from stores in Sydney, a number of luxury items including perfume, handbags and other accessories. The Defendant was told to pay for these items using the $19,980 that had already been transferred into her account. Ms Ong promised to transfer more funds into the Defendant’s account to compensate for additional expenses.

In cross-examination, Ms Ong denied ever having made such a request of the Defendant, and further denied having been present on the video call on 18 November 2016: Tcpt, 1 September 2020, p 71(08–38).

Ms Gonzales also denied having participated in a video call with the Defendant and Ms Ong on 18 November 2016. Indeed, her evidence was that she did not call her sister at all on that day. In keeping with that evidence, Ms Gonzales denied that any request was made of the Defendant to purchase the items for Ms Ong: Tcpt, 1 September 2020, p 117(05–46). Neither party tendered any documents of a telephone provider which corroborated that a telephone call had, or had not, been made on that date.

The Defendant asserted that the next day she went out and purchased certain goods and kept them with her, in her house at Mount Annan, until she passed them on to Naomi Iris Henson (one of Ms Gonzales’ daughters) in March 2017. The intention was that Ms Henson would take the items back to The Philippines and give them to Ms Ong.

Ms Ong denied having received any items in March 2017 from the Defendant: Tcpt, 1 September 2020, p 71(48) – p 72(05). It was put to her that she had thanked the Defendant for the items through a message on Viber. She was unable to recall, given the number of conversations that had occurred between them, whether she had, in fact, done so: Tcpt, 1 September 2020, p 72(09–22).

The Defendant, more globally, was cross-examined on her evidence in relation to these purchases. The Defendant was unable to recall, in respect of any particular transaction, whether she had received a receipt or, if so, the nature of that receipt. She said, however, that if she had received any receipts that they would have been passed to Ms Henson and then, presumably, to Ms Ong: Tcpt, 3 September 2020, p 292(01) – p 294(29).

Ms Henson did not give evidence in the case.

One of the items said to have been purchased on Ms Ong’s behalf was a handbag. In cross-examination, the Plaintiff suggested to the Defendant that she, in fact, had given that handbag to another person as a gift. The Defendant denied having given the handbag to another person as a gift: Tcpt, 3 September 2020, p 297(10–30).

In response to the answer given, the Plaintiff showed the Defendant a copy of a Facebook post, from a friend of the Defendant, purporting to thank her, for a gift of an “Hermès” handbag: Ex P8. That document, addressed to the Defendant, from a person called Rey Arbarquez, stated: “Ga Cathy Amos thank u for your special gift … Hermès bag I am speechless … ”. There were two photographs of the Hermès handbag.

The Defendant denied that the post showed that she had given anyone the handbag as a gift. More important, however, is that in the affidavit sworn 15 November 2019, the Defendant, in par 64, referred to having purchased a “Cristian (sic) Dior handbag” for Ms Ong, not an Hermès handbag.

On 13 March 2017, the Defendant purchased another property in Smithton for $30,000. Smithton is another town located on the North-West coast of Tasmania.

As stated, on 24 March 2017, Ms Ong caused another $20,000 (which again, by the time of receipt, was $19,980) to be transferred to the Defendant in partial payment for the properties.

On 13 April 2017, the Defendant purchased a final property in Herdsmans Cove for $50,000. Unlike the other properties, Herdsmans Cove is located in the South-Eastern part of Tasmania on the River Derwent approximately 20km from Hobart.

Between late November 2016 and May 2017, the Defendant gave evidence that Ms Ong and Ms Gonzales began mentioning that Ms Ong had a supply of high-end jewellery that she was able to sell for low prices. The Defendant deposed that Ms Ong began offering to sell pieces of that jewellery to her. On each occasion, the Defendant said that she refused the offer that was made.

Although the Defendant could not recall the date, she gave evidence that Ms Ong offered some of the jewellery to her in exchange for the Tasmanian properties. This was an offer that the Defendant also refused.

Ms Ong’s evidence on the role of the jewellery was completely different. She deposed that it was the Defendant who had requested that the balance of the purchase price (after the two instalments of $20,000) be paid in jewellery: Affidavit, Cristina Yu Ong, 14 June 2019 at par 8.

This, on her evidence, was confirmed by a handwritten document dated 31 March 2017, which purported to record the agreement that jewellery would make up the balance of the purchase price: Affidavit, Cristina Yu Ong, 14 June 2019 at par 8, annexure CYO3: Tcpt, 1 September 2020, p 73(30) – p 74(11). This was a document written by Ms Ong and, on her evidence, the Defendant had agreed to its terms. Importantly, in this document, the two payments of $20,000 were referred to, as was a reference to a diamond ring (AUD$46,000), a necklace and “Rosita” earrings (AUD$46,000). This document then referred to a balance of $18,000 and then referred to $6,700 being for rates and taxes for transfer, making a total of $24,700 “for payment in July”.

The Defendant did not deny receiving the document and, indeed, annexed a copy thereof to her own affidavit. However, when put to her in cross-examination, she disagreed that she had accepted the terms of the document: Tcpt, 2 September 2020, p 208(21–23).

After the handwritten document was sent, the Defendant purportedly asked for additional pieces of jewellery. These were said to be used to fund the building of a house on the Tasmanian property to be transferred to Ms Ong.

Ms Ong’s evidence, therefore, was that the Defendant had ordered the jewellery and that Ms Ong was to bring those pieces of jewellery to Australia for her: Tcpt, 1 September 2020, p 72(34) – p 74(28).

As at the date of her affidavit sworn 15 November 2019, the Defendant had sold both Stanley properties and the Herdsmans Cove property. She was still in the process of selling the Smithton property. In the circumstances, the relief sought by the Plaintiff in respect of the Tasmanian properties cannot succeed.

Some of Ms Ong’s account of the conversations between her and the Defendant is corroborated by what appeared to be contemporaneous messages between the two of them through Viber. As I understand it, Viber is a cross-platform voice over IP and instant messaging software application.

The conversations between Ms Ong and the Defendant were largely in the Filipino language (a standardised form of the Tagalog language). Translated copies of those messages formed annexure TB6 to an affidavit sworn by Mr Baena on 7 July 2019.

In cross-examination, the Defendant was taken to a series of Viber messages between her and Ms Ong dated 18 April 2017. The translation was in the following terms:

The Defendant agreed that the above were messages from her: Tcpt, 2 September 2020, p 273(14–16). Yet, she denied that she owed Ms Ong $150,000, and clarified (Tcpt, 2 September 2020, p 274(36–39)):

Of course, as will be plain from the translation above, and as the Defendant later accepted, there is nothing in the translation that suggests that the sums discussed were in Philippine pesos. Such a suggestion is also at odds with pictures, sent one day later on 19 April 2017, showing bundles of Australian 100 dollar notes.

Despite agreeing, as far as she was able, with the accuracy of the translation, the following exchange occurred with the Defendant (Tcpt, 2 September 2020, p 275(18–35)):

It should be acknowledged, as counsel for the Defendant raised in his closing submissions, that the messages set out above were sent at a time prior to the receipt of any jewellery (as will be discussed further below), although it was after both payments of $19,980 had been received by the Defendant: Tcpt, 3 September 2020, p 379(25–45).

Returning to the narrative, up until this point in the history of the events, all of the dealings between Ms Ong, Ms Gonzales and the Defendant had taken place over the internet or over the telephone.

On 3 May 2017, Ms Gonzales, Catherine Ong (the daughter of Ms Ong), Eidellise Ramos (a friend of Ms Gonzales), Julio Isis Henson (the son of Ms Gonzales) and Ms Henson arrived in Sydney from The Republic of the Philippines.

Prior to leaving, Ms Ong had given Ms Gonzales several pieces of jewellery to show the Defendant: Tcpt, 1 September 2020, p 74(30–36).

On the day of Ms Gonzales’ arrival, on 3 May 2017, she gave evidence that she handed to the Defendant what was described as the “First Collection of Jewellery”. On the Defendant’s account, that included four pieces of jewellery, being:

Ms Ong’s, and the Defendant’s, evidence, given to explain the reasons why the First Collection of Jewellery was handed over, was in conflict, the former asserting that the latter had ordered those pieces, whilst the Defendant asserted that Ms Ong wanted her to wear the jewellery. Her understanding of the reason why she had been given the First Collection of Jewellery is captured in the following passage of her affidavit:

To an extent, Ms Ong’s evidence is corroborated by the contemporaneous Viber messages between her and the Defendant. On 11 May 2017 (that is, one day prior to the arrival of the group in Australia), a conversation occurred between the two of them in the following terms (translated into English):

Those messages demonstrate that the Defendant was at least a knowing, and likely a willing, participant, in the jewellery being brought to Australia.

When not in her personal possession, the Defendant stored the First Collection of Jewellery securely in the safe in her house in Mount Annan.

It was not until 12 May 2017, that Ms Ong arrived in Australia with a number of other persons, namely Bernadette Ong and Catherine Ong (her daughters) and Julieta Austria (a friend of Ms Ong). The purpose of the visit was unclear on the evidence.

The Defendant gave evidence that the four of them had travelled to Australia for a short holiday, whereas Ms Ong’s evidence, given during cross-examination, was that she travelled in order to enter into a Deed of Sale regarding the Tasmanian properties: Tcpt, 1 September 2020, p 72(30–37). It was also, on Ms Ong’s evidence, to give the Defendant several pieces of jewellery that she had ordered. It may also have been for the purpose of attending Ms Gonzales’ wedding to Neil Santiago, which took place on 12 May 2017. As earlier stated, Mr Santiago was a friend of the Defendant.

Later, on 12 May 2017, the group attended the wedding of Ms Gonzales and Mr Santiago.

Following the wedding, a group of eight (comprising, the Defendant, Ms Ong, Ms Gonzales, Mr Santiago, Ms Catherine Ong, Ms Bernadette Ong, Ms Austria and Ms Ramos) went to stay at the Sir Stamford Hotel at Circular Quay, where they stayed for two nights. On the first night, being 12 May 2017, Ms Ong handed to the Defendant (in the presence of Ms Gonzales) what has been described as the “Second Collection of Jewellery”. On the Defendant’s account, that comprised two pieces of jewellery, being:

The Defendant’s evidence was that the illusion bracelet in the Second Collection of Jewellery, whilst similar to an illusion bracelet in the First Collection, was a different piece of jewellery.

The Defendant’s understanding of her receipt of the Second Collection of Jewellery was identical to that connected with the First Collection. It was captured in the following passage of her affidavit:

Ms Ong’s evidence, however, was different. On her account, the Second Collection of Jewellery comprised the following eight pieces:

Apart from the black diamond earrings, the diamond earrings, and the Illusion necklace and earrings, there appears to be some overlap between the above collection and what the Defendant admitted to having received in the “First Collection of Jewellery”.

On 14 May 2017, the group checked out of the Sir Stamford Hotel. Everyone in the group, except for Mr Santiago, then checked into the Meriton Suites on Pitt Street in the Sydney CBD.

There was a deal of confusion in the evidence surrounding certain sheets of white paper on which Ms Ong and the Defendant had purportedly written details of their transaction as a precursor to the preparation, and execution, of the Deed of Debt.

The evidence on this topic is found, first, in par 3 of Ms Ong’s affidavit sworn 28 August 2018. That paragraph was in the following terms:

Ms Ong was taken to that paragraph in her cross-examination. However, upon being questioned on the topic, she denied that she and the Defendant had ever written down those details in that way. She further denied having any input into the contents of the Deed or having seen any draft document: Tcpt, 1 September 2020, p 88(49) – p 89(29).

Ms Ong’s evidence was inconsistent with the evidence given by Ms Gonzales. In cross-examination, Ms Gonzales gave evidence that she saw Ms Ong and the Defendant, in the Sir Stamford Hotel in Sydney, agreeing on the prices of the pieces of jewellery. She saw them both write down the prices and the total value of the jewellery that the Defendant would receive: Tcpt, 1 September 2020, p 123(12–43).

If one accepts Ms Ong’s evidence that there was no preliminary discussion, about the contents of the Deed of Debt, and also that the Deed of Debt was prepared at the behest of the Defendant, then, as submitted by her counsel, it must be that the Defendant gave instructions for its preparation “effectively of her own accord, without having any preliminary discussions as to what was going to be encapsulated in this [Deed of Debt]: Tcpt, 3 September 2020, p 372(24–37).

The Defendant denied that she had ever written down anything on sheets of white paper.

None of the sheets of white paper was tendered. Nor was it clear, on the evidence of any of the witnesses, what had happened to the sheets of white paper.

On 17 May 2017, a group of seven (comprising the Defendant, Ms Ong, Ms Gonzales, Mr Santiago, Ms Bernadette Ong, Ms Austria and Mansukh Mepani) travelled from Sydney to Hobart. As stated, Mr Mepani is a friend and business partner of the Defendant. He came along to drive the hire car used to transport the group in and around Hobart.

After arriving in Hobart, the group checked into the Wrest Point Hotel. Over the next several days, the group went sightseeing around Hobart and Tasmania. It would appear that Ms Catherine Ong and Ms Ramos joined the group in Tasmania at some point during that time.

On 20 May 2017 the group, now comprising nine, left Hobart for Sydney. From Sydney, the group travelled back to Melbourne, arriving at about 10:30 p.m. on that evening. There, they stayed in the Aura on Flinders, being short term serviced apartments. They had two apartments, in one of which the Defendant, Ms Gonzales, Mr Santiago and Mr Mepani stayed, and in the other, Ms Ong and members of her family, including her son, Percival Ong, stayed: Tcpt, 3 September 2020, p 303(44) – p 304(37).

On 21 May 2017, the group spent most of the day in the Aura on Flinders. In the evening, the Defendant, Ms Gonzales, Mr Mepani, Ms Austria and Mr Santiago went to the Crown Casino to look around and to have dinner. The evidence of the Defendant’s witnesses, including Mr Mepani and Mr Santiago, was that the Defendant began feeling unwell during the dinner at the Crown Casino.

A major plank upon which the Plaintiff relied to substantiate his case was the assertion that on 22 May 2017, the Defendant signed the Deed of Debt: Ex P2. The burden is on the Plaintiff to demonstrate that she did so. The Defendant denied that she had caused the Deed of Debt to be drafted.

As might be expected, the accounts of the witnesses diverged significantly as to what occurred on that day. The Defendant maintained her denial that she had signed this document. It is, therefore, convenient to address each account separately.

The Plaintiff relied on the evidence of Ms Ong and Ms Gonzales as to the signing of the Deed of Debt.

There was little evidence of precisely who had prepared the Deed of Debt. Whilst there was some mention, in Ms Gonzales’ evidence, that a person named “Matthew” prepared the Deed, the identity of that person, or the role that he played in the events that occurred, was not elaborated upon: Tcpt, 1 September 2020, p 122(10–20).

The evidence relied upon by the Plaintiff was that on the morning of 22 May 2017, Ms Gonzales was alone in the apartment that she and the Defendant shared in the Aura on Flinders. Sometime after lunch, the Defendant arrived at the apartment and asked Ms Gonzales to call Ms Ong: Tcpt, 1 September 2020, p 122(02–33).

Ms Ong gave evidence that the three of them, along with the person identified as Sabas Capili, signed the Deed of Debt in Ms Ong’s apartment in the Aura on Flinders.

In an affidavit sworn 12 October 2018, Ms Gonzales deposed that “at the time my sister was signing her part of the deed of debt at the hotel in Melbourne, I saw her wearing a pinky [sic] lady’s fashionable hand glove”. This affidavit was sworn a few weeks after the Defendant’s statement to NSW Police and her volunteering of fingerprint and DNA samples, but before the results of the fingerprint and DNA analysis were known. Ex P6 (the Defendant’s statement to Detective Sergeant Brisby) was taken on 10 September 2018. Ex P7 (Detective Sergeant Brisby’s reply to subpoena), which set out the results of the forensic fingerprint and DNA examinations, was dated 5 November 2018.

Additionally, each of Ms Ong and Ms Gonzales described the witness to the signing (who signed the Deed of Debt as Sabas Capili) as being a “white male man” or “white male person”: Affidavit, Maricel Cruz Gonzales, 12 October 2018 at par 3; Affidavit, Cristina Yu Ong, 12 October 2018 at par 3.

In the oral evidence, each gave an identical description of the witness as a “white man with a black jacket”: Tcpt, 1 September 2020, p 92(10–12), p 124(41–45). Ms Ong said that the only time she had ever seen the man was in the hotel room when he signed the Deed of Debt: Tcpt, 1 September 2020, p 66(12–17), p 92(18–42), p 125(25–44), p 126(22–30). Each stressed that she did not know the man who witnessed the document, and that he did not introduce himself at any stage during the signing. Nor did either know anyone named Sabas Capili or Jun Capili.

(Mr Baena had described the person known to him as Sabas Capili as “an Asian person”: Tcpt, 2 September 2020, p 175(32–43).

It was put to Ms Ong in cross-examination that the Defendant never signed the Deed of Debt. Ms Ong strongly denied that assertion. She maintained, throughout, that the Defendant had signed the Deed: Tcpt, 1 September 2020, p 68(12–17), p 89(38–45), p 92(44) – p 93(01).

Ms Gonzales denied similar propositions when they were put to her: Tcpt, 1 September 2020, p 122(02–08), p 124(10–12).

Curiously, subject to a matter to which I shall come, the Defendant did not include in her affidavit that was read, any evidence going to what had occurred on the day the Deed of Debt was allegedly signed. When it was put to the Defendant in cross-examination that she did, in fact, sign the Deed, she answered, simply, “[n]o. It never happened”: Tcpt, 2 September 2020, p 258(08–11). Thus, most of the evidence relied upon in her case on this issue was given by witnesses other than the Defendant.

The tenor of the evidence in the affidavits of both Mr Santiago and Mr Mepani, was that one, or both, of them was, or were, with the Defendant at all times during 22 May 2017.

Mr Santiago’s evidence was that at no time during the stay in Melbourne did the Defendant leave, on her own, to go somewhere: Tcpt, 3 September 2020, p 307(47–50). He said that he knew nothing of the Defendant having seen a lawyer whilst she was in Melbourne: Tcpt, 3 September 2020, p 308(22–49). He also said that when they were not together, the Defendant would tell him what she was doing: Tcpt, 3 September 2020, p 309(36–45). He specifically denied that the Defendant had signed any Deed whilst in Melbourne, saying that he was with her for some of the time: Tcpt, 3 September 2020, p 309(12–21).

Mr Santiago stated at par 18 of his affidavit affirmed 7 September 2018:

By the afternoon, the Defendant was feeling somewhat better. At around 1:00 p.m. she joined Mr Mepani, Mr Santiago and Ms Austria in visiting the DFO (Direct Factory Outlet) Docklands Wharf (by which I take the evidence to mean the DFO in South Wharf). They stayed there, looking around, until the stores closed in the late afternoon or early evening: Tcpt, 3 September 2020, p 315(37) – p 316(02), p 322(33–34).

In answers to questions from the Court, Mr Santiago repeated that on 22 May 2017, he was with Ms Ong, Ms Gonzales and Ms Austria in the morning Tcpt, 3 September 2020, p 305(21–28); that then they went on a tram for a tour until lunch time; that they went back to the hotel; they met the Defendant, Mr Mepani and Ms Austria, at around 1:00 p.m. and they all went to DFO South Wharf, a shopping centre, staying there until about 6:00 p.m. when the shops closed: Tcpt, 3 September 2020, p 315(33) – p 316(14).

Initially, Mr Santiago repeated this evidence in cross-examination (Tcpt, 3 September 2020, p 306(32–41)):

However, he later clarified that they were not, in fact, together the whole of the time that they were in Melbourne. Rather, there were times when the Defendant would go somewhere without Mr Santiago, and would tell him where she was going. This was reflected at Tcpt, 3 September 2020, p 310(09–25):

Mr Mepani gave evidence that on the morning of 22 May 2017, the Defendant stayed in her apartment to rest as she was still feeling unwell and that he stayed with her throughout the morning in order to look after her.

He also said that after leaving the DFO South Wharf, the group returned to the Aura on Flinders at which time he asked Mr Santiago to remain with, and look after, the Defendant: Tcpt, 3 September 2020, p 323(14–30). He then left to visit some friends for dinner, and later brought those friends back to the Aura on Flinders to meet the Defendant. His evidence was that he, his friends, and the Defendant, continued talking until around 11:00 p.m. that night.

Mr Mepani maintained, through cross-examination, that the Defendant was never by herself on 22 May 2017. He acknowledged that on 22 May 2017, at about 5:00 p.m., he had gone to visit a friend, and therefore, was not with the Defendant although he returned, later in the evening with his friends: Tcpt, 3 September 2020, p 322(36) – p 323(50). His timeline of events on 22 May 2017 was stated at Tcpt, 3 September 2020, p 329(35–43):

He repeated, and stressed, the evidence to which he had already deposed in his affidavit: Tcpt, 3 September 2020, p 328(50) – p 330(11). He denied that he had seen the Defendant with any documents over the days that they were in Melbourne. He also denied having any knowledge about any deed, until these proceedings began: Tcpt, 3 September 2020, p 324(14) – p 325(40).

Ms Austria, who was with them, for most of the time that the group was at the DFO South Wharf, did not give evidence.

As stated above, in the affidavit of the Defendant, there was no evidence about what had occurred on 22 May 2017. However, shortly after the long adjournment on the fourth day of the hearing, after each side had closed his, and her, case, respectively, the Plaintiff sought leave to re-open his case to read par 10 of an affidavit sworn on 10 September 2018, of the Defendant, which affidavit had not been read at the hearing. The paragraph was in the following terms:

The lateness of the application cannot be overstated. There was, at least some, undeniable level of prejudice, occasioned to the Defendant, by the delay in reliance upon this evidence.

Perhaps, more importantly, the Plaintiff had not put to Mr Santiago or to Mr Mepani, that there was an inconsistency between the evidence given by the Defendant and what was said by him. Nor was it put that if the Defendant’s evidence was correct, his evidence was in error, at least as to the date.

I allowed the passage to be tendered, “despite the fact that the assertion of fact so far as it relates to having ‘spent the day in my room’ was not put to the witness Mr Mepani as a statement made by the Defendant, or to Mr Santiago, in circumstances where neither was challenged that he, the Defendant, and another person went out of the hotel after 1pm until 5pm or 6pm”: Tcpt, 3 September 2020, p 360(39–43).

I shall bear the Defendant’s statement on this topic in mind. However, as counsel for the Defendant submitted, the statement was not, inevitably, adverse to the evidence of the Defendant. Nor does the statement establish, on its own, that the Defendant did, in fact, sign the Deed of Debt. Rather, it was a statement that was inconsistent with the evidence of Mr Mepani and Mr Santiago as to the events of the afternoon of 22 May 2017: Tcpt, 3 September 2020, p 360(02–06).

I am unable to speculate on the evidence each would have given had the statement of the Defendant been put to him. However, as independent witnesses who gave evidence inferentially corroborative of the Defendant’s account that she did not sign the Deed of Debt, there was an obligation imposed on the Plaintiff to put the relevant statement made by the Defendant to each of them.

In early 2018, Ms Ong made a complaint to the Narellan Police Station (which is located near the Defendant’s property at Mount Annan). In about early February, officers from that Station contacted the Defendant, requesting that she come down to the Station for an interview.

The Defendant gave evidence that she was contacted by a police officer from Narellan Police Station who asked her to attend “in response to a complaint made against me”. The Defendant attended the Narellan Police Station and was interviewed “in relation to a complaint made by Ms Ong”. The police officers questioned her about the purchase of land in 2016 and 2017 in Tasmania, and about certain pieces of jewellery. Subsequently, the Defendant was informed that the complaint was a civil, rather than a criminal, matter.

It would also appear, although the evidence was somewhat unclear, that, in about September 2018, the Defendant (or someone on her behalf) made a complaint to the Campbelltown Police Station alleging that the Deed of Debt had been fraudulently prepared and obtained. The Defendant voluntarily attended the Station in respect of that complaint and gave a written statement: Tcpt, 2 September 2020, p 258(48) – p 259(28).

However, at the hearing, there was tendered, as part of the Plaintiff’s case, a written statement dated 10 September 2018, made by the Defendant to NSW Police, “that I would be prepared … to give in court as a witness”: Ex P6. In this document, the Defendant referred to the Deed of Debt and stated:

In cross-examination, the Defendant was taken to her written statement, and she was asked why the statement did not set out the fact that she had been travelling through Sydney, Tasmania and Melbourne with Ms Ong and Ms Gonzales. She answered (Tcpt, 2 September 2020, p 260(48) – p 261(05)):

It was put to her that, contrary to her answer set out above, the reason that she had failed to include the detail in her statement was that she had, in fact, signed the Deed of Debt. The Defendant denied that allegation: Tcpt, 2 September 2020, p 261(36–40). What the Plaintiff did not refer to in Ex P6 was par 11, in which the Defendant stated that “[w]hile I was in Melbourne, I did not take part in creating the ‘deed of debt’ document with Cristina Ong or Maricel Gonzales. I did not sign any documents in Melbourne”.

In Ex P6, in par 18, the Defendant stated that “[o]n today’s date, being Monday 10 September 2018, I attended Campbelltown Police Station … I volunteered a set of my fingerprints and DNA to Detective Brisby to assist his investigation into the deed of debt document”.

There was also tendered a copy of a document dated 5 November 2018 headed “Reply to subpoena for production …”, signed by Detective Sergeant Brisby: Ex P7.

In this document, the following appears:

In short, the document, which was shown to the Defendant in cross-examination, set out that the Police were unable to obtain a conclusive DNA test result from the examination. The trace amounts of DNA on the document were insufficient to undertake an effective DNA comparison.

There, were, however, a number of other fingerprints on the Deed. Several of those fingerprints could be attributed to the Plaintiff. That much is understandable given the Deed was, prior to being examined by the Police, located in his office. As stated, none of the other fingerprints matched those of either the Defendant, or the man known to Mr Baena as Sabas Capili.

Not finding the Defendant’s fingerprints on the document may be consistent with the evidence of each of Ms Ong and Ms Gonzales that the Defendant had been wearing “a pink lady’s fashionable hand glove” at the time she signed the Deed of Debt. A concern exists that the reference was to a “hand glove” was in the singular, rather than in the plural.

On 29 June 2018, Ms J Rockstroh, a clerk at Doyle Legal (then solicitors for the Defendant), contacted Ms Holt, by telephone, “requesting signature exam on ‘Deed of Debt’. Verbal instructions were provided by phone to determine whether or not the signatures contained on the ‘Deed of Debt’ were written by the same person who wrote the specimen signatures”.

Ms Holt had had no discussions at all with the Defendant. At the time she prepared her first report, she had a copy of the Deed of Debt and had original unquestioned specimen signatures of the Defendant: Ex D1. She wrote a report dated 2 July 2018 (which formed part of Ex D1).

In order to prepare her first report, she conducted a number of different examinations, including “a microscopic (where needed) and macroscopic examination of the questioned and specimen signatures” and “a comparative examination of the questioned and specimen signatures [which] assesses the structure, features and writing quality of the signatures”.

It is not necessary to state the conclusions reached in the first report because when she prepared her second report, which is dated 18 April 2019, she had the original Deed of Debt available, which had been delivered to her on 12 April 2019, but had returned the original specimen signatures that she had used in relation to the preparation of the first report, although she had retained all of the high quality images that she had taken of them: Ex D2; Tcpt, 2 September 2020, p 249(13–32). In addition, on p 2 of her first report, she noted that “[e]xaminations of reproductions can have a limiting effect on the strength of the conclusions reached as the reproduction process often does not reproduce the finer details of the letter construction, nor does it allow a proper assessment of the line quality and speed or fluency of the writing”. Thus, with the original Deed available, the second report avoided this limitation.

In her first report, Ms Holt noted that the Defendant’s signature on the original Deed of Debt, and the specimen signatures she was given of the Defendant, bore some “level of pictorial similarity”. She defined that phrase as meaning that the signatures bore some visual resemblance that could not be attributed to chance or coincidence.

Based upon that visual inspection, Ms Holt tested two hypotheses:

To undertake the comparison of signatures a forensic document examiner should have access to genuine specimen signatures and handwriting. In this case, it was not suggested to Ms Holt that the signatures of the Defendant on other documents were not genuine signatures from which a comparison could be undertaken.

In summary, Ms Holt initially, in her first report, concluded that there was strong support for the second hypothesis, as compared to the first, namely that someone else, other than the author of the specimen signatures, signed the Deed of Debt. She based this conclusion on a number of observed differences between the signature on the Deed of Debt and the specimen signatures she had received. Those differences, she wrote, strongly pointed to the signature on the Deed being written by someone other than the author of the specimen signatures.

The second report was obtained as a result of the instruction “requesting a re-examination of the original of the seven-page Deed of Debt document dated 22 May 2017”, which was “the original of the questioned document referred to as Item 1 in my initial Expert Report dated 2 July 2018”, “to re-assess my examination of the Catherine Amos questioned signatures … to determine whether or not such an examination changed or altered my opinion in regards to the bona fides of this signature”.

In order to prepare her second report, Ms Holt conducted a number of different examinations, including a “[m]acroscopic and microscopic examination of the Catherine Amos signatures, the latter conducted using a stereo microscope”; an examination “using the Video Spectral Comparator … an instrument designed to detect the different optical properties of document materials” and which “allows for the detailed examination and comparison of inks and paper and the visualisation or exposure of altered or obliterated information, fibre disturbances, as well as the restoration of erased or faded entries”; and a “latent indentation test of selected pages of [the Deed of Debt] using the Electrostatic Detection Apparatus … [which] apparatus develops latent impressions that may be present on a page … useful for determining the provenance of a document”.

Following her sighting, and examining the original Deed of Debt, Ms Holt expressed a higher level of confidence than her initial conclusions. She concluded, with reference to her additional observations, that there was “very strong support” for the second hypothesis, as compared to the first.

(I should note that in her first report, Ms Holt had defined various levels of conclusion. “Very strong support” was defined as:

A matter that received a lot of attention was the focus on letter formation and, in particular the presence or absence of particular features of particular letters. In this regard, relevantly, the second report stated that “[t]he microscopic examination of the original Catherine Amos signatures on [the Deed of Debt] confirmed that the questioned signatures were written in a slow and deliberate manner as well as displaying hesitations, blunt endings, poor line quality and pen lifts in unusual areas” which “can be described as the indicia of forgery” (emphasis omitted).

Ms Holt concluded at pars 13–15 of her second report:

As I understood Ms Holt’s evidence, a “simulated signature” is one created by using a genuine signature as a model. The signer generates an artistic reproduction of this model, thereby attempting to duplicate the signature of the other individual, in this case, the Defendant. She, or he, does so by simulation, that is by attempting to copy, or draw, the form of the genuine signature either freehand or by some form of tracing process in order to capture the design or pictorial appearance of that signature.

In contrast, a “disguised signature” is one created by the author of the genuine signature. However, the signer attempts to change her, or his, signature in some way, potentially in order to later disavow it.

In her oral evidence, Ms Holt explained that attempts at a disguised signature are observable because, whilst a person can change certain “big picture” aspects of her, or his, signature, which I understand to mean, for example, the size, slant, speed, and style of it, is far more difficult for them to disregard their ingrained motor habits and characteristics. As such, many of the minutiae of an author’s signature will remain, even when they attempt to disguise it: Tcpt, 2 September 2020, p 247(22) – p 248(07). Presumably, this is because signing becomes so ingrained and automatic that the signer is unaware of how uniquely individual the signing habit has become.

In both her written reports, and in her oral evidence, Ms Holt confirmed well-known scientific principles that:

Ms Holt had not been told that on the day that the Defendant had allegedly signed the Deed of Debt, she was unwell: Tcpt, 2 September 2020, p 235(27–36). However, after it had been raised in cross-examination, the Court asked her, and she stated, at Tcpt, 2 September 2020, p 245(23–31):

She explained, in answer to further questions from the Plaintiff (Tcpt, 2 September 2020, p 246(05–41):

Ms Holt seemed to accept that the nature of a free-hand simulation of a signature, is such that she was unable to deduce from examination of the questioned signatures, who the writer of the simulated signature may have been. She admitted, specifically, that she could not be 100% certain that the Defendant did not sign that document, adding that “in my professional opinion and what I know and my training, experience, I feel the evidence very strongly supports a simulation”: Tcpt, 2 September 2020, p 243(13–40).

In this case, it is clear that Ms Holt attempted to detect whether a simulation of the Defendant’s signatures had occurred by identifying the individual handwriting traits consistently present in the undisputed signatures which appeared to be different to, or missing from, the disputed signatures. As she put it, the signer would be unable to duplicate all of the Defendant’s individual signing habits.

Finally, Ms Holt gave the following evidence in answer to questions from the Bench, asked by way of clarification, at Tcpt, 2 September 2020, p 250(44) – p 251(41):

Relevantly, in par 14 of the first report, Ms Holt had identified nine different “fundamental differences observed between the questioned and specimen signatures” in terms of “letter design, construction, slope, shape, spatial relationships, baseline habits and apparent speed and fluency”.

Thus, from the above, Ms Holt was satisfied that the possibility that one or more of the signatures on the Deed of Debt, was, or were, written by the Defendant as a “self-simulation” was excluded.

Importantly, Ms Holt’s conclusions were not challenged by any expert evidence called by the Plaintiff. He failed to adduce any expert evidence going to the authenticity of the Defendant’s signature on the Deed of Debt.

I accept the expertise of Ms Holt. I am also satisfied that she did her best to assist the Court. However, I must remember that her evidence, whilst significant, is only one part of the body of evidence, documentary and oral, in the case that must be considered. It is for the Court to reach an independent judgment in the light of all the evidence, including the opinions of experts. It would be erroneous to treat Ms Holt’s expert evidence as being, in some way, decisive, on its own: Gawne v Gawne [1979] 2 NSWLR 449 at 453, 455–456 (Glass JA, Reynolds and Mahoney JJA agreeing); or to treat it as if there were no other evidence.

The issue of the authenticity of the Defendant’s signatures on the Deed of Debt cannot be resolved in isolation and the conclusions reached on the authenticity of those signatures will also be based on findings concerning the reliability and credibility of the evidence of all of the witnesses, in the case.

The critical question is whether the Plaintiff, as the propounder of the Deed of Debt, established, on the balance of probabilities, that it is a document signed by the Defendant. In answering that question, the seriousness of an allegation that it was not, and thus implicitly, a forgery must be taken into account: Telfer v Telfer (2014) 87 NSWLR 176 at 189 [72]–[73]; [2014] NSWCA 186 at [72]–[73] (Sackville AJA, Macfarlan and Gleeson JJA agreeing).

At some point whilst the group was in Melbourne, the Defendant asserted that she had a conversation with Ms Ong to the following effect:

Ms Ong firmly denied that such a conversation ever took place. She reiterated that the Defendant had agreed to pay for the jewellery in cash: Tcpt, 1 September 2020, p 78(03–14).

On 23 May 2017, the group returned to Sydney from Melbourne. It was the Defendant’s case that she returned what had been described as the Second Collection of Jewellery during the flight. She gave evidence that, on the flight, she had been sitting next to Ms Gonzales. She proceeded to hand back the Second Collection to Ms Gonzales, who then immediately handed it to Ms Ong who was seated two seats away from Ms Gonzales on the other side.

The Defendant confirmed this evidence in cross-examination. She denied, when it was put to her, that she never returned the Chopard watch to Ms Gonzales or saw Ms Gonzales hand it to Ms Ong: Tcpt, 2 September 2020, p 267(22–27).

She was, however, taken to a handwritten document, prepared by her prior to the arrival of Ms Ong in Australia, as a plan of the activities to be undertaken during Ms Ong’s stay in Australia: Ex P3. It was put to the Defendant that, despite it purporting to be a record of the main activities that occurred, the document did not contain any mention of the return of the jewellery. She answered (Tcpt, 2 September 2020, p 225(46) – p 226(02)):

The Defendant was also taken to an affidavit sworn by her in these proceedings dated 21 June 2018. That affidavit had not been read in the Defendant’s case. It contained, generally, a broad outline of the Defendant’s version of events, including the circumstances surrounding the jewellery and her receipt thereof. However, as the Plaintiff put to her in cross-examination, it did not contain any mention of her returning the jewellery to Ms Gonzales or to Ms Ong: Tcpt, 2 September 2020, p 227(01–36).

Counsel for the Defendant raised that the affidavit was responsive to the allegations raised in the Summons filed 18 June 2018 and therefore, each should be read in conjunction with the other. Whilst that is so, one might have thought, given the importance of the return of the jewellery to these proceedings and the narrative of events, that the Defendant would have made some mention of it in her affidavit.

Upon further questioning, the Defendant maintained that the order of seating on the flight was, from left to right: Ms Bernadette Ong, Ms Ong, Ms Austria, Ms Gonzales, the Defendant and Mr Mepani. The aisle being between Ms Austria and Ms Gonzales: Tcpt, 2 September 2020, p 267(03–20). This does not entirely accord with the flight itinerary that was tendered as Ex P5. That document showed that the Defendant had pre-selected seat 4D and Mr Mepani had pre-selected seat 4E (none of the other members of the group were shown as having pre-selected a seat). If the aeroplane contained six seats in each row (three on each side of the aisle), one would have expected seat 4D to have been an aisle seat, and seat 4E to have been in the middle.

Continuing with the evidence in the Defendant’s case, Mr Mepani, who was also on the flight, corroborated the Defendant’s evidence. He deposed that, from his viewpoint in the window seat of the row (the Defendant being in the middle, and Ms Gonzales in the aisle seat), he observed the Defendant hand a bracelet and a watch to Ms Gonzales. He did not say anything about the jewellery being then passed to Ms Ong: Tcpt, 3 September 2020, p 326(45) – p 327(39).

Mr Santiago did not give any evidence regarding the return of the jewellery. He did, however, give some evidence in cross-examination as to the seating arrangement on the flight. He himself was seated in a row behind the others. On his recollection, the seating arrangement in the row in front of him was, from left to right: Ms Bernadette Ong, Ms Austria, Ms Ong, Ms Gonzales, the Defendant and Mr Mepani. With the slight change of Ms Austria and Ms Ong, this was identical to the evidence given by the Defendant and Mr Mepani.

The account of the Plaintiff’s witnesses was rather different. Ms Ong denied having received any jewellery during the flight. Indeed, it was her evidence that she and the Defendant had “stayed apart” on the aeroplane: Tcpt, 1 September 2020, p 76(10–29). Ms Ong was seated near the back of the aeroplane, whilst the Defendant was seated up near the pilot: Tcpt, 1 September 2020, p 106(48) – p 107(08).

Similarly, Ms Gonzales denied that she received any jewellery during the flight. She also confirmed Ms Ong’s evidence that both of them were seated at the back of the aeroplane (across the aisle from each other), whilst the Defendant was at the front of the aeroplane: Tcpt, 1 September 2020, p 119(50) – p 120(19).

One aspect of the Defendant’s resistance to the Plaintiff’s claim, as adverted to in the Defence, was that the Defendant had paid for most, if not all, of the expenses of the group whilst they travelled through Sydney, Tasmania and Melbourne.

On her evidence, she paid for those expenses in reliance upon a conversation with Ms Gonzales, occurring over Facebook, said to have taken place in November 2016. In that conversation, Ms Gonzales promised the Defendant that she would be reimbursed for the expenses that she would incur in the forthcoming trip. The Defendant gave evidence that she had deleted that Facebook account and this, it was said, explained why she could not produce copies of those messages.

She also deposed to conversations with Ms Gonzales in Hobart, and with Ms Ong in Melbourne, where she expressed a demand for payment of expenses.

In an affidavit sworn 2 September 2020, the Defendant provided an updated calculation of the expenses which, on her case, she personally incurred on Ms Ong’s behalf during the period between November 2016 and May 2017. Across a number of expenses, this amounted to $30,982.00.

Mr Mepani gave evidence that he had observed the Defendant paying numerous expenses throughout the trip. She either paid with her own credit card, or, when she had reached the maximum limit on that case, using a credit card borrowed from Mr Elias. Mr Mepani deposed at par 8 of his affidavit:

Mr Santiago, in his evidence, deposed to specific instances where the Defendant had paid for expenses:

Mr Santiago also gave evidence of a conversation between Ms Gonzales and the Defendant on 20 May whilst in Melbourne. The Defendant, ostensibly frustrated with the lack of reimbursement, demanded payment. Ms Gonzales went to Ms Ong and came back with an offer of $1,000. This, however, was not to the Defendant’s satisfaction and she rejected the offer.

Mr Santiago also gave evidence of what seemed to be a final confrontation about the reimbursement for expenses on 23 May 2017. In the afternoon, the Defendant was attempting to marshal everyone back to the rental van in order to travel back to the airport. Mr Santiago deposed as to what happened when Ms Ong entered the van in the following terms:

Mr Elias affirmed a short affidavit that was read in the proceedings that confirmed that he had lent his credit card to the Defendant and was, at that time, introduced to Ms Ong and the others. He confirmed that evidence in cross-examination stating that he lent the Defendant his credit card on 13 May 2017: Tcpt, 3 September 2020, p 334(38) – p 335(11). He did not produce his credit card statements. He admitted knowing a person called Saba, but said that this person was his wife’s first cousin Charbel (also called Charlie) Saba: Tcpt, 3 September 2020, p 336(34) – p 338(04).

Neither Mr Mepani nor Mr Santiago was cross-examined on his evidence, respectively, in relation to the expenses.

As will be discussed further below, the issue of the expenses became a live one in these proceedings. In cross-examination, the Defendant accepted that her claim for expenses, at least initially, amounted to $281,358: Tcpt, 3 September 2020, p 287(33–34). Later in the cross-examination, the Plaintiff used the figure of $281,315.01 when putting propositions to the Defendant. For the purposes of the below passage, I have used the figures as they appear in the transcript.

The Defendant accepted that this figure included the value of the Tasmanian property that was bought on Ms Ong’s behalf. That property, which comprised two lots, was purchased for $150,000 and was sold for a total of $223,000. She accepted, therefore, that she made a profit of $73,000 on the transaction: Tcpt, 3 September 2020, p 288(02) – p 289(42)

The Plaintiff put to the Defendant that, once the amount of $223,000 was accounted for, her claim for expenditure had to be reduced to $58,315 (omitting a reference to cents). Yet, in her affidavit sworn 2 September 2020, she only claimed $30,982 for expenses. The Plaintiff put to her that her claim in the affidavit was some $28,000 less because her initial claim was false. She denied that allegation: Tcpt, 3 September 2020, p 289(46) – p 290(20).

The Plaintiff then took the Defendant back to her earlier affidavit where she had itemised her original claim for $281,315. She accepted that, as at the date of the affidavit, she had already received the proceeds of sale for the Tasmanian property. It was put to her that, having regard to the fact that the $281,315 included the $223,000 comprising the proceeds of sale, her claim was false. Again, she denied that allegation: Tcpt, 3 September 2020, p 290(34) – p 291(45).

Ex D6, a copy letter dated 9 October 2019 from Jonathan Smith Lawyers to the Defendant revealed that a contract for the sale of one of the properties had been entered into on 4 October 2019. It revealed also that the sale price was $118,000.

The Defendant did not explain, bearing in mind that the sale of the properties had occurred well before the hearing, why she had not disclosed to the Plaintiff, that her claim should be reduced, because she had received about $223,000, for the sale of those two properties.

The Defendant’s claim for $30,982 also included the expenses incurred for the various luxury items said to have been purchased on behalf of Ms Ong. I have already referred to the evidence regarding those items above.

The Defendant also included a claim for $5,000 which was described as a “Cash Advance Loan” made to Ms Ong whilst the group was in Hobart on 18 May 2017. In cross-examination, the Defendant clarified that Ms Ong had asked for the money to give to her daughter as Ms Ong herself was short of cash at the time. However, there was no written agreement that documented the advance: Tcpt, 3 September 2020, p 294(38–49), p 296(29–31).

Ms Ong, for her part, denied having any difficulties with her credit cards or debit cards whilst in Australia. She maintained that she, not the Defendant, had paid for all of her hotel accommodation in Australia and for all sightseeing activities. She gave evidence that, at least in relation to hotel bills, she had paid in cash. She said that she did not wish to use her credit cards as they attracted a high rate of interest: Tcpt, 1 September 2020, p 76(31) – p 77(10).

When asked why she had not produced any bank statements in support of that assertion, she replied that she had paid for those expenses in cash. She was also cross-examined on the cash advance of $5,000 allegedly made to her in Hobart. She denied having received any such amount and, rhetorically, asked why she would need to receive cash from the Defendant when she had brought USD$10,000 with her from the Philippines: Tcpt, 1 September 2020, p 76(31) – p 77(23).

Ms Gonzales’ denials were similar. She denied ever having sent a message to the Defendant promising reimbursement for expenses incurred by the group on their Australian trip: Tcpt, 1 September 2020, p 118(05–08).

Initially, the Defendant tendered a copy of her bank statements to support her claims for the payment of expenses (as well as the luxury items discussed above): Ex D5. She asserted that she did not have receipts “because all the original receipt … has [sic] been transmitted to Mrs Ong together with the goods when Naomi Iris Hansen went back on May 2017, so the only retained copy that I have is all my bank statement just to verify the goods”: Tcpt, 3 September 2020, p 292(31–37).

Counsel for the Defendant frankly conceded in his closing submissions that the bank statements were only corroborative of one expense claimed by the Defendant (a purchase from Myer for $380 on 23 November 2016): Tcpt, 3 September 2020, p 380(14–25).

Each of the deponents whose affidavit was read was subjected to cross-examination. As stated, there are many factual issues, the most important of which is whether the Deed of Debt bears the signature of the Defendant.

In trying to resolve some of the factual issues, I bear in mind the fallibility of human recollection. On the principal issue, there can be no suggestion that memory is the relevant consideration. I also bear in mind that Ms Ong gave her evidence through an interpreter.

Importantly, no motive for suggesting that Ms Ong had prepared the Deed of Debt, and had lied about its execution by the Defendant, was put to Ms Ong. Nor was any motive for giving untruthful evidence put to Ms Gonzalez. It was not put to either that she had any financial, or other, incentive to give the evidence that she did. It is also to be remembered that Ms Ong is said to have assigned her interests in relation to the Deed of Debt to Mr Baena some time ago, and also that she had been paid by him.

(A motive that occurred to me was the possibility of litigation between Mr Baena and her, but this was not a matter put to her in cross-examination and is, in any event, no more than speculation on my part.)

It might be said that Mr Baena may gain something from the Plaintiff’s success in this litigation, in that he would be paid some of his professional costs. However, he denied that he had anything to do with the preparation of the Deed of Debt, although him knowing a person with the same name as one of the witnesses to the signature of the Plaintiff and the Defendant on that document is somewhat of a coincidence. His denials of any involvement in the events that occurred were, however, unwavering (Tcpt, 2 September 2020, p 173(09–17)):

The only other person, on the Plaintiff’s side, who appears, now, to stand to gain from the litigation is the Plaintiff himself. However, the evidence is clear that he did not enter the narrative until 6 March 2018, that is to say, some time after the Deed of Debt was said to have been signed.

It was put to the Defendant’s witnesses on this topic, being Mr Santiago and Mr Mepani, that each had lied in his evidence in order to protect his friend. Each denied that allegation Tcpt, 3 September 2020, p 314(50) – p 315(25), p 331(32) – p 332(02).

In addition, the Plaintiff put to Mr Mepani that he had falsified his evidence in order to enable the removal of the caveat over the Mount Annan property, in which he owned a share as tenants in common with the Defendant and her husband. To that suggestion he replied (Tcpt, 3 September 2020, p 332(22–28)):

As stated, the Defendant denied, under oath, that she signed the original document, which was tendered by the Plaintiff and marked Ex P2. She asserted, although not expressly, that her signatures on the Deed of Debt were simulated. Who is said to have carried out the alleged simulations of her signatures on the document was not identified.

Of course, the Defendant has a strong motive for denying that she signed the Deed of Debt.

As stated, the Plaintiff was self-represented at the hearing of the matter (albeit with some assistance from Mr Baena). Despite that, his submissions disclosed a level of experience in litigation not ordinarily seen in litigants in person.

The crux of the Plaintiff’s submissions can be found in par 10 of his written submissions:

He also submitted that the Defendant’s challenge to the validity of the assignments must fail. He submitted at par 12 of his written submissions:

On a proper characterisation, the Plaintiff submitted, the assignments effected an assignment of a right to property. He submitted:

Turning to the rectification of the assignment, the Plaintiff submitted that there was nothing out of the ordinary in parties correcting their intention in a written document. He denied that there was any attempt, through this rectification, to expand his claim to include an alternative case in conversion.

The Plaintiff also submitted that the expert report of Ms Holt was “unlawful” on several bases. First, he submitted that Ms Holt acted as an advocate for the Defendant. He pointed to the absence of any written letter of instruction annexed to the report and to the failure of Ms Holt, in her report, to inform the Court of “key elements”. The Plaintiff’s written submissions did not elaborate on what those key elements were.

Secondly, the Plaintiff took issue with a conclusion of forgery being drawn from handwriting evidence alone. He submitted:

It followed, in his submission, that a handwriting expert could not determine whether a person had a fraudulent state of mind. An expert must therefore be careful not to identify a forgery per se, but only whether or not a signature is genuine.

The Plaintiff expanded on these submissions at the conclusion of the hearing. He submitted that Ms Holt was asked, impermissibly, to conclude whether or not the Defendant signed the Deed of Debt. He also directed me to a passage in the judgment of Johnson J in Jeans v Cleary in which his Honour wrote, at [155]:

Turning to the lay evidence, the Plaintiff’s principal submission, and a matter put to the Defendant, was that she was “an experienced liar”, that “everything [she had] told this Court in respect of this transaction is made up” and that this was done “[j]ust to make sure that [she did not have to] return one single cent”: Tcpt, 3 September 2020, p 297(37–50).

The Plaintiff submitted that the Court should consider the Deed to have been signed between 12:00 p.m. and 1:00 p.m. on 22 May 2017. That, he submitted, enabled the Plaintiff’s case to be reconciled with the evidence of Mr Mepani and Mr Santiago, who gave evidence that they left the hotel with the Defendant at 1:00 p.m. that afternoon: Tcpt, 3 September 2020, p 343(16–19).

As I pointed out to the Plaintiff during the hearing, that submission did not accord with the evidence that had been given. Ms Gonzales’ evidence as to the time of the signing, was that she, Ms Ong and the Defendant had met “around after lunch”. Neither Ms Ong, nor Ms Gonzales, gave any more specific evidence as to the precise time that the Deed had been signed.

Moreover, even if one were to accept that the signing of the Deed occurred before 1:00 p.m., that still does not explain the evidence suggesting that Mr Mepani had remained, throughout the morning, at the hotel, with the Defendant.

The Plaintiff also made a number of submissions going to the credit of the Defendant. He pointed first, to Ex P8, which, as discussed above, was a Facebook post that purported to show a friend of the Defendant receiving a gift of a handbag from the Defendant. This was tendered after the Defendant had expressly denied ever having given such a gift. I have referred to the evidence on this topic earlier and to the difference between the two makes of handbag.

The Plaintiff then turned to Ex P3, which was the handwritten itinerary that, on the Defendant’s evidence, she had prepared prior to the arrival of the group in Australia. However, to the contrary, the Plaintiff submitted that the document ought to be read as a contemporaneous record of the events that occurred. Read in such a way, and observing that the document made no mention of the return of the jewellery to either of Ms Ong or Ms Gonzales, the document reflected adversely on the Defendant’s credit: Tcpt, 3 September 2020, p 346(15) – p 347(28).

The Plaintiff also referred to the evidence, led in cross-examination, that the Defendant had failed to tell the police officers at Campbelltown Police Station, that she had been travelling with Ms Ong and Ms Gonzales: Tcpt, 3 September 2020, p 349(26–33).

Ultimately, the Plaintiff submitted that the manner in which the Defendant had given her evidence, and the content of her evidence, should lead the Court to not accept her version of events: Tcpt, 3 September 2020, p 351(17–37). Rather, the Court should accept the evidence of Ms Ong and Ms Gonzales: Tcpt, 3 September 2020, p 356(02–07).

The Plaintiff’s case, in his submission, turned on the Deed of Debt. He submitted that if the Court were satisfied that the Defendant did, in fact, sign the Deed, the Plaintiff’s case would be made out. If the Court found otherwise, he submitted that there was another basis on which the Plaintiff might succeed:

It was not entirely clear whether the Plaintiff relied on a cause of action in contract, or in tort in this respect. However, given the Plaintiff’s earlier denial that he was bringing a claim in conversion, presumably he was, here, referring to a claim in contract.

In supporting that claim, the Plaintiff submitted that the value of the jewellery could be ascertained from the invoices issued to Ms Ong for the jewellery: Tcpt, 3 September 2020, p 361(19–36). The two invoices, issued by Claxson International Multi Products Inc, amounted to 7,880,000 pesos. (Whilst the amounts in the invoices were not denoted in a particular currency, it may be inferred that they were in Philippine pesos.)

However, there was no direct evidence that Ms Ong had, in fact, paid these invoices. In attempting to address that point, the Plaintiff pointed to the eight collection receipts issued to Ms Ong. Yet, in doing so, he was unable to point to anything on the receipts, apart from the names of Ms Ong and the company, which connected the receipts to the invoices to which he had earlier referred. (I observe that if one adds the amounts on all eight collection receipts, one receives a total of 7,879,999.96 Philippine pesos.)

Nor did Ms Ong provide a copy of any of the cheque stubs, or bank statements that would corroborate such payments made. Her explanation for not doing so was “because I already have official receipts” and “that was not necessary”: Tcpt, 1 September 2020, p 85(48) – p 86(08).

Further in the alternative, the Plaintiff submitted that if the Court found that the Defendant had either paid for the jewellery, or returned them, then the Plaintiff’s claim rested on the $40,000 that had been paid by Ms Ong to the Defendant. Again, the cause of action upon which the Plaintiff relied was not entirely clear in this submission. Presumably, again, it was in contract.

As a final submission, the Plaintiff turned to the submissions made by counsel for the Defendant against the validity of the assignment of the debt or Deed of Debt. The Plaintiff directed the Court to Black J’s decision in In the matter of Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789. Specifically, the Plaintiff relied on [342] of that judgment:

However, in that case, Black J was, in part, concerned with a construction of s 477(2)(c) of the Corporations Act 2001 (Cth), which sub-section provides a liquidator of a company with the power to “sell or otherwise dispose of, in any manner, all or any part of the property of the company”. That power has no relevance in the present case. Moreover, as far as his Honour considered the validity of assignment of causes of action, the issue turned on equitable or statutory causes of action, which, again, have no relevance in the present case.

Counsel for the Defendant submitted that the Court could not be satisfied that the Defendant had signed the Deed of Debt. He submitted that the evidence was clear that the Defendant did not sign, or execute, the Deed of Debt. In making that submission he relied upon the evidence of Ms Holt which, he emphasised, was not challenged by any competing expert evidence. However, he accepted that, for the Court to find that the Defendant did not sign the Deed of Debt, that it would have to be found that both Ms Ong and Ms Gonzales were intentionally lying to the Court: Tcpt, 3 September 2020, p 377(27–40).

Whilst counsel for the Defendant accepted that it was a serious finding to make, it was one that, in his submission, could be made on the totality of the evidence, being the evidence of Ms Holt as to the signatures on the Deed of Debt, and the fact that, if the Defendant were to have signed the Deed, it would have been significantly adverse to her own interests: Tcpt, 3 September 2020, p 378(03–09).

Counsel analysed the Deed of Debt, submitting, with some force, that the document contained a number of anomalies. He submitted that it was difficult to determine what, if any, operative effective the Deed had.

He submitted that the only obligation created by the operative provisions of the Deed of Debt was that in Clause 4 which was a boilerplate clause providing that the Defendant agreed to pay all costs, charges and expenses associated with the preparation of the Deed or any collateral security.

In relation to that collateral security, counsel for the Defendant acknowledged that it might be arguable that Clause 3 of the Deed of Debt created a security interest. However, to do so, he submitted, “would be to ask the Court to infer and make sense of the clause that is unintelligible and syntactically problematic”. Again, there is some force in that submission. Clause 3 is in the following terms:

He also submitted that Clause 3 was, in some respects, inconsistent with the recitals in the Deed of Debt.

In view of those factors, he submitted that the Deed of Debt did not, on a proper construction, create any security interest.

Additionally, he submitted par 47 of his written submissions:

In his oral submissions, counsel for the Defendant pointed to another inconsistency in the Deed of Debt. He referred to the Background section of the Deed, where it had been written:

He submitted that the above had contemplated the sale of the jewellery by the Defendant. This, in his submission, could not have occurred prior to 22 May 2017 when the Deed of Debt was purportedly signed: Tcpt, 3 September 2020, p 372(48) – p 373(17).

He also submitted that the Defendant had not received valid notice of the assignment of the debt as required by s 12 of the Conveyancing Act 1919 (NSW). Although, were it to be found that the notice was received, he did not cavil with its validity otherwise: Tcpt, 3 September 2020, p 384(23–27).

Turning to the claim for the expenses incurred, as discussed above in the factual framework, counsel for the Defendant made some frank concessions as to the sufficiency of the evidence given on this issue. That notwithstanding, he referred to the evidence of the Defendant that she had given the luxury items to Ms Henson to deliver back to Ms Ong in The Philippines. He observed that Ms Henson had not been called, and submitted that the Court ought to draw a Jones v Dunkel inference from the failure to do so.

Counsel for the Defendant, in his written submissions, had largely focussed on the validity of the assignment. The argument against validity proceeded in several stages.

Counsel for the Defendant turned, first, to the purported assignment of rights in the jewellery. It was at least implicit in his submissions that a claim in relation to the jewellery did not fall within the Deed of Debt. He submitted, therefore, that any assignment of rights outside the four corners of the Deed of Debt must necessarily constitute the assignment of a bare right to sue in tort. Specifically, in this case, a bare right to sue in conversion.

Counsel referred to the decision of the High Court in Poulton v The Commonwealth (1953) 89 CLR 540; [1953] HCA 101 (discussed further below). He also referred to Monk v Australia and New Zealand Bank Group Ltd (1994) 34 NSWLR 148. In particular, he referred to the passage of Cohen J’s judgment at 151:

Counsel for the Defendant submitted that, in view of those principles, “Ms Ong’s cause of action in tort against [the Defendant] is not capable of being assigned. Accordingly, the Plaintiff cannot maintain the cause of action”: Defendant’s Outline of Submissions at par 40: Tcpt, 3 September 2020, p 368(11–29).

Counsel for the Defendant then turned to what was, presumably, an alternative argument should the cause of action in respect of the jewellery be one in contract. He referred to the speech of Lord Roskill (Lord Edmund-Davies and Lord Keith agreeing) in Trendtex Trading Corporation v Credit Suisse [1982] AC 679. His Lordship wrote at 703:

He submitted that even if the cause of action was one in contract, rather than in tort, the Plaintiff was still required to establish that he had a “genuine commercial interest” within the meaning adverted to by Lord Roskill. This, he submitted, the Plaintiff could not establish on the facts.

In his oral submissions, counsel for the Defendant also raised that, should his earlier submission on the inability to assign a cause of action in conversion be wrong, then, nevertheless, for the assignment to be valid, the Plaintiff would need to show a general commercial interest: Tcpt, 3 September 2020, p 368(26–29).

He submitted that, in this context, a genuine commercial interest must be a pre-existing genuine interest: Tcpt, 3 September 2020, p 368(33–45). As such he submitted (Tcpt, 3 September 2020, p 369(19–24)):

For that reason, he submitted, even if the Court were to find that a conversion of the jewellery had occurred, and that the loss pursuant to that conversion could be adequately quantified on the evidence, then the Plaintiff’s claim must still fail for want of a valid assignment: Tcpt, 3 September 2020, p 369(29–40).

Nevertheless, he also submitted that the absence of adequate evidence going to the value of the jewellery was fatal to the Plaintiff’s claim.

In the present case, the fundamental, although not the only, plank of the Plaintiff’s case is that the Defendant signed the Deed of Debt, which allegation the Defendant, expressly denies, under oath, having done.

Whilst it is true that each of Ms Ong and Ms Gonzales do not appear to have a motive for making the assertion that she did, there are many other questions that need an answer. In fact, to my mind, the Deed of Debt is one that raised more questions than it answered. Those questions include:

This is not a case in which the Defendant has disputed her signatures on the Deed of Debt upon the basis that that she had no memory of signing it. She stated, specifically, that she did not sign it and she called evidence from two other witnesses in support of that assertion.

In addition, as stated, I have the evidence of Ms Holt, the expert. Whilst it would be inappropriate to substitute her opinion for my own, where it has not been challenged by competing expert evidence, I cannot ignore it either. Furthermore, the expert evidence supports, rather than displaces, the doubt that exists regarding the lay evidence relied upon by the Plaintiff to prove that the Defendant did sign the Deed of Debt. As I am required to do, I have considered the expert evidence with all of the evidence rather than in isolation.

The seriousness of findings about the conduct, on each side, must be taken into account by the Court in determining whether the Plaintiff, as the propounder of the Deed of Debt, has made out his case on the balance of probabilities. The seriousness of the allegations made against each of the parties and the witnesses, must be borne in mind.

I am unable to express meaningful answers to any of the questions that I have posed. There are simply no answers to each of the questions found in the evidence and I am unable to conclude, based upon the demeanour of the witnesses, that any of them was giving obviously untruthful evidence on the topic.

The Plaintiff is placed in a position where, in order to prove that the Deed of Debt is authentic, he must rebut the allegation that the Defendant never signed it. This is a case in which the question of onus matters. The Plaintiff fails on this issue unless the conclusion that the Defendant did sign the Deed of Debt, and a finding can be made that she has lied, has been affirmatively reached. This accords with the statement by McLelland CJ in Eq in Watson v Foxman quoted above.

Having considered all of the evidence, including the evidence of Ms Holt, I am not satisfied, on the balance of probabilities, that the Defendant signed the Deed of Debt dated 22 May 2017. Naturally, I have considered whether it is open to me to determine the very important aspect of the case on this basis. Ultimately, I have concluded that I am able to do so even though this is a case where neither Ms Ong and Ms Gonzales on the one side, nor the Defendant, on the other side, could be mistaken as to the events said to have occurred on 22 May 2017. As I stated at the commencement of these reasons, this is an unusual case in which there are difficulties standing in the way of the acceptance of the evidence of each side.

Cases where the testimonial evidence is so starkly opposed are relatively rare. Undoubtedly, at least some of the evidence of the three principal witnesses, namely Ms Ong, Ms Gonzales and the Defendant, must have been false. Determining which evidence is false, in all the circumstances, has proved to be impossible, even though the Defendant is plainly self-interested, and whilst Ms Ong and Ms Gonzales appear to have no apparent motive to lie, there is the complexity of the independent evidence of Mr Mepani and Mr Santiago as well as the expert evidence of Ms Holt, which is persuasive. Even by reference to, and analysis of, the evidence independent of the parties which is apt to cast light on the probabilities of the situation, I am unable to conclude, in circumstances where I am faced with a stark choice between irreconcilable accounts, that one version is more probable than the other.

Applying the evaluative and intuitive assessment that is recognised in this context, the evidence, overall, is not sufficient, applying Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and s 140 of the Evidence Act, to permit me to feel an “actual persuasion” of the authenticity of the Defendant’s signatures on the Deed of Debt. I am simply unable to be satisfied, one way or the other, to a state of actual conviction, by the evidence from either side as to the events of 22 May 2017, and whether the Deed of Debt was signed on that date, or at all, by the Defendant.

(It is not necessary to reach the same conclusion in relation to the evidence of the Plaintiff or the Defendant’s other witnesses. In relation to the Plaintiff, his involvement appears to have commenced in March 2018, some months after the date of the Deed of Debt and immediately afterwards, he sent a letter of demand to the Defendant. In relation to Mr Mepani and Mr Santiago, although not put to him, each might have been mistaken about the date he attended with the Defendant at DFO South Wharf.)

As I am not satisfied that the Plaintiff has established that the Defendant signed the Deed of Debt, he cannot rely upon the assignment of the rights under that Deed to establish his case. Having come to these conclusions, the Plaintiff is unable to rely upon the Deed of Debt to prove his case. It follows that as Mr Baena had only purchased and taken all of Ms Ong’s “rights, title and interest over the above mentioned Deed of Debt”, the assignment by Mr Baena to the Plaintiff could not be for more than that which had been assigned to Mr Baena by Ms Ong. It follows that the assignment to the Plaintiff could only be of all of Ms Ong’s “rights, title and interest over the above mentioned Deed of Debt”.

I have already expressed my conclusions regarding the Deed of Rectification.

In the circumstances, the Plaintiff’s case should be dismissed with costs.

I shall next deal with the other bases of the Plaintiff’s claim even though it is strictly not necessary to do so.

Before turning to that, I should make some additional findings of fact.

There is no dispute that the Defendant received the two amounts of $19,980 from Ms Ong, one on 16 November 2016 and the other on 27 March 2017: see Defence to Third Amended Statement of Claim at pars 4(c)–(d), (h). Accordingly, I am satisfied that these amounts were paid by Ms Ong to the Defendant.

The Defendant acknowledged that an oral agreement had been reached between her and Ms Ong to the effect that she would purchase four separate parcels of land in her name but that upon Ms Ong reimbursing her for the purchase price and associated costs, she would transfer the land to Ms Ong.

It may be inferred that the amounts transferred were made as part of the arrangement. The Defendant accepted that whilst she purchased the land, she had sold it for a total sum greater than that which she paid and that she had retained the whole of the proceeds of sale. Accordingly, if she had used the two amounts that she received from Ms Ong as part of the purchase price of the land, since she has retained all of the proceeds of sale, she should repay the amount received to Ms Ong.

However, for her part, the Defendant asserted that she had purchased certain luxury items for Ms Ong, which Ms Ong denies, for which she was not reimbursed by Ms Ong and that the total amount of the goods purchased exceeded the amount received by her from Ms Ong. However, the Defendant’s final claim for reimbursement (identified in her affidavit sworn 2 September 2020) was for $30,982. That itemised claim included several of the luxury items said to have been purchased for Ms Ong out of the first payment of $19,980. It follows that the total amount for the goods purchased would not have exceeded the $39,960 she received.

There is also no dispute that the Defendant received from Ms Ong, via Ms Gonzales, on about 3 May 2017, certain jewellery being an illusion bracelet, a set of Rositas earrings, a green stone necklace together with a matching set of green stone earrings, and a necklace with a “diamond appearing necklace”: Defence to Third Amended Statement of Claim at par 6(c)(i)(4); Tcpt, 1 September 2020, p 118(47) – p 119(12).

There is also no dispute that the Defendant received from Ms Ong, on 12 May 2017, certain jewellery, being a Chopard watch and an illusion bracelet (which was very similar and almost identical to the illusion bracelet referred to in the previous paragraph): Defence to Third Amended Statement of Claim at par 6(c)(i)(11); Tcpt, 1 September 2020, p 75(45–47).

The Defendant does not admit the receipt of the 6.17 carat diamond earrings, the Illusion necklace and earrings, or the black diamond earrings.

There is a significant dispute about the reason why the jewellery was given to the Defendant by Ms Ong, the latter asserting that it was in part payment of the land purchased, whilst the former asserting that it was handed to her to wear in the hope that she would ultimately buy the jewellery.

Yet, the Plaintiff did not assert that the land purchased was held on trust for Ms Ong, or that the Defendant held the net proceeds of sale on trust for her, and therefore, as a result of the Deeds of Assignment, now holds the net proceeds on trust for him. He simply asserted that the value of the jewellery forms part of the debt which he says was, ultimately, assigned to him.

Again, the evidence called on behalf of the Plaintiff from Ms Ong and Ms Gonzales, and the evidence of the Defendant and her witnesses, on the topics referred to, are diametrically opposed. Again, the Court is faced with a credibility issue. Ms Ong says that none of the jewellery was returned, whilst the Defendant says, under oath, that she returned the illusion bracelet, the set of Rositas earrings, the green stone necklace together with a matching set of green stone earrings, and a “diamond appearing necklace” directly to Ms Ong on 12 May 2017, and that she returned the Chopard watch and the second illusion bracelet to Ms Gonzales on 23 May 2017 on the plane trip from Melbourne to Sydney, and that she saw Ms Gonzales return those items of jewellery to Ms Ong shortly thereafter. Both Ms Ong and Ms Gonzales denied this.

The Plaintiff referred the Defendant to an affidavit that she had made on 21 June 2018, in support of her application to have the caveat lodged by the Plaintiff lapse. She admitted that evidence that she had returned the jewellery did not appear in this affidavit: Tcpt, 2 September 2020, p 226(24) – p 277(43).

Mr Mepani specifically stated that on the plane trip back from Melbourne to Sydney on 23 May 2017, he was sitting next to the Defendant who was sitting next to Ms Gonzales. He saw the Defendant hand to Ms Gonzales “a bracelet and a watch”. He did not give evidence about what Ms Gonzales did with the jewellery.

Naturally, Mr Mepani was cross-examined on this part of his evidence. It was put to him that he had observed the Defendant return all of the jewellery on the plane trip back to Sydney. His response was “[i]t was just the watch and the bracelet” which she gave to Ms Gonzales: Tcpt, 3 September 2020, p 327(06–10).

Mr Santiago gave no evidence about the return of any jewellery.

On the topic of the return of the jewellery, I have no reason to doubt the evidence of Mr Mepani, in relation to what he observed on the plane trip from Melbourne to Sydney on 23 May 2017, regarding the handing over of “just the watch and the bracelet” to Ms Gonzales. That he confirmed the content of his affidavit sworn almost two years earlier, and did not attempt to embellish what he had written there in relation to this topic does him credit.

Accordingly, on the balance of probabilities, I am satisfied that at least the Chopard watch and the bracelet were returned by the Defendant to Ms Gonzales. I am unable to conclude what Ms Gonzales did with each of those two items of jewellery, but as a trusted employee of Ms Ong, I can only infer that she returned those items to Ms Ong.

In this regard, I accept the evidence of Mr Mepani in preference to Ms Ong and Ms Gonzales.

Having considered all of the evidence, and accepting that the Defendant received certain jewellery which was identified, I am unable to be satisfied, on the balance of probabilities, that she returned the balance of the jewellery to Ms Ong as she alleged. In this regard, the onus is upon her to establish the return of the jewellery, in circumstances where she acknowledged it had been received, and where she asserted that she did return it, and where Ms Ong asserted that she did not.

There is nothing specific in the cross examination of Ms Ong, Ms Gonzales, or the Defendant, which clearly raised doubts about her version of the events. In these circumstances, I am unable to reach a conclusion based upon demeanour. Naturally, I have considered whether it is open to me to determine this important aspect of the case on this basis. Ultimately, I have concluded that I am able to do so even though this is a case where neither Ms Ong and Ms Gonzales on the one side, nor the Defendant, on the other side, could be mistaken as to the events that are said to have occurred on 12 May 2017. Having considered all of the evidence on this topic, I am not persuaded, on the balance of probabilities, that the Defendant did return the items of jewellery to Ms Ong on 12 May 2017.

I turn next to the value of the jewellery.

The onus of proof of the value of the jewellery said to have been given to the Defendant, in circumstances where the value was in dispute, was on the Plaintiff. That the value of the jewellery was in dispute is clear on the pleadings, which demonstrate an obvious intention, by the Defendant, to put the Plaintiff to proof of the value of all of the items of jewellery: Defence to Third Amended Statement of Claim at par 6(c)(ii). Omitting any reference to what was said to be the agreed value of each item of jewellery in the Deed of Debt, I am unable to be satisfied about the value of each item of jewellery (which may not have been returned), as referred to by Ms Ong. Merely tendering the sales invoices, which disclose the price paid said to have been paid to a retailer, or a wholesaler, does not establish the actual value of the jewellery said to have been delivered to, and not returned by, the Defendant.

The sheets of white paper on which Ms Ong and the Defendant were said by Ms Ong to have written “the quantities, description and value of the jewelleries that she received … the two cash transfers, the payment details of the debt and the background history of what had [happened] between us” were not produced. If they had been, that might have been enough to establish an agreed value, or if not that, an admission by the Defendant against interest.

Despite the actual items of jewellery, it was said, being unavailable to be valued, the usual methods of valuation to enable the Court to make a reliable estimate of the value, would have been available. One way of establishing the value of each piece of jewellery would have been to establish the value of jewellery of the same description. Photographs, to assist in the process of valuation, would have been available to assist in obtaining expert evidence, which one would think would be readily available. Alternatively, the seller of the jewellery, presumably, could have provided some evidence of its value, even though the person who is said to have sold the jewellery to Ms Ong was a personal friend who sold jewellery “as a personal sideline” who was “my broker for containers”: Tcpt, 1 September 2020, p 84(31–47). Yet, the Plaintiff called no evidence on this topic preferring to simply rely upon the sales invoices.

This is not a case where proof of value of the jewellery was impossible, or even difficult. I am not satisfied on the balance of probabilities as to the value of the remaining items of jewellery based upon the copy of the sales invoices produced by the Plaintiff. It is not a case where the Court is able to estimate the value of the jewellery, “doing the best I can”.

I then turn to the matters raised by the Defendant. I am not satisfied that the Defendant purchased the luxury items, that she asserted she had purchased, or that she made the cash payment to Ms Ong. In this regard, it appears that the total amount of her claim was $30,982. There was no Cross-Claim in which the amount claimed was sought.

Ultimately, the basis of the claim for this amount was an affidavit of the Defendant, filed in Court on the last day of the hearing, being an affidavit sworn 2 September 2020 of the Defendant detailing “expenses which I personally incurred only for Ms Ong between the period November 2016 and May 2017”, by reference to par 136 of her affidavit sworn 15 November 2019, which paragraph had been rejected.

Naturally, bearing in mind its late service, I granted leave to the Plaintiff to cross-examine the Defendant on the affidavit. In answer to a question from him, she said that the affidavit reflected the expenditure that she had incurred on the credit card of Mr Elias and her own credit card: Tcpt, 3 September 2020, p 290(03–09).

Yet, a copy of credit card statements, in each case, was not produced at any time. Nor were the receipts for the purchases, or the expenditure, produced to the Court, although, I note that the Defendant gave evidence that they had been given to Ms Ong (Tcpt, 3 September 2020, p 292(18–37)), the receipt of which goods, unsurprisingly, Ms Ong had earlier denied.

Similarly, on this issue proof of value was not impossible, or even difficult. It would have been relatively easy for the Defendant to have produced the contemporaneous documentary evidence to establish the purchase of the items identified in the affidavit of 2 September 2020. This the Defendant failed to do. Ex D5, being bank statements, which was tendered and said to support the expenditure of the Defendant does not support that proposition.

In relation to the cash advance of $5,000 said to have been made on 18 May 2017, I have been unable to find any reference to that amount in Ex D5.

(I mention, in passing, that even though I have found that the Deed of Debt dated 22 May 2017 cannot be relied upon as establishing the Plaintiff’s claim, there is no reference to amounts said to have been expended by the Defendant for expenses, or otherwise, for, or on behalf of, Ms Ong.)

However, that is not the end of the matter of the receipt of the money or the jewellery. Counsel for the Defendant accepted that in relation to the payments totalling $39,980, there may be a claim for moneys had and received and also accepted that, in the event the Court found that all, or some, of the jewellery had not been returned, “Ms Ong would have a case against [the Defendant] for conversion” but that “[t]he authorities delineate between a [chose in action] and a claim in conversion”: Tcpt, 3 September 2020, p 367(29) – p 368(12).

First, I should refer to s 12 of the Conveyancing Act, which, relevantly, permits the legal assignment of a debt. The section provides:

In the decision of the English Court of Appeal in Camdex International Ltd v Bank of Zambia [1998] QB 22, Hobhouse LJ gave the lead judgment. At 39, his Lordship wrote that none of the authorities he had reviewed:

Peter Gibson LJ agreed with Hobhouse LJ adding, at 40:

Neill LJ also agreed with Hobhouse LJ stating, at 41, in his review of the history of s 136 of the Law of Property Act 1925, 15 & 16 Geo 5, c 20:

All three members of the Court of Appeal concluded that the transaction in which the plaintiff had bought a debt at a discount and was seeking to enforce it, was not champertous.

In Consolidated Trust Company Limited v Naylor (1936) 55 CLR 423; [1936] HCA 33, the High Court considered the requirements of s 12 of the Conveyancing Act. Dixon and Evatt JJ wrote at 438–439:

Thus, s 12 is concerned with the act of assignment and not with an agreement for assignment, whether or not contained in a deed. It does not require that the notice be given by the assignor. It is equally open to the assignee to give a notice under s 12 in order to acquire legal ownership of the debts, or the choses in action, the subject of an absolute assignment: Anning v Anning (1907) 4 CLR 1049 at 1059 (Griffith CJ); [1907] HCA 13. That is what the Plaintiff asserted that he did.

As was accepted by counsel for the Defendant, the notice need not be formal in its nature and it is sufficient if the notice is given at any time before action: Holt v Heatherfield Trust Ltd [1942] 2 KB 1 at 4 (Atkinson J).

It is sufficient, under the Conveyancing Act, s 170(1)(b), that notice required by the Act shall be sufficiently served “if left at, or sent by post to, the last known residential or business address in or out of New South Wales of the person to be served”. The section applies only if, and so far as, a contrary intention is not expressed in the instrument, and has effect subject to the provisions of the instrument: s 170(4).

It has been held that s 170 is not an exclusive prescription of the mode of service. Indeed, under the common law, which is preserved by the section, there is a presumption that even an unregistered letter, if properly addressed, stamped and posted and not returned to the writer has reached its destination: Ex parte Dally-Watkins; Re Wilson (1955) 72 WN (NSW) 454 at 456–457 (Street CJ, Roper CJ in Eq, Sugerman J agreeing); Brannigan v Smith (2017) 18 BPR 37,193 at 37,204–37,205 [71]; [2017] NSWSC 1201 at [71] (Darke J); Cushing v The Lady Barkly Gold Mining Company Registered (1883) 9 VLR (E) 108 at 122 (Holroyd J, for the Court).

As previously stated, the Defendant acknowledged that she had received the notice (at least from the Plaintiff) although she denied having received the notice from Mr Baena. However, in relation to the notice from Mr Baena, reliance may be placed on s 160(1) of the Evidence Act, which provides:

Merely asserting that the notice was not received is not sufficient to rebut the presumption.

However, in this case, I accept the evidence of the Defendant that she did not receive the notice posted by Mr Baena. Simply, there would have been no need for her to deny its receipt bearing in mind she acknowledged receipt of the subsequent notice from the Plaintiff. Furthermore, I note the lack of reference to having sent the notice in Mr Baena’s first affidavit.

In Goodridge v Macquarie Bank Limited (2010) 265 ALR 170 at 211 [168]; [2010] FCA 67, Rares J (overturned on other grounds), at [168], dealt with s 12 of the Conveyancing Act as follows:

His Honour, at [169]–[170], also pointed out that before s 12 could be relied upon the purported assignee must establish that the right he, she, or it, seeks to enforce is a “... debt or other legal chose in action”. If it is not, then s 12 has no bearing and that an “assignment for value will be enforceable in equity by the assignee”.

In relation to an equitable assignment, his Honour added at [172]–[173]:

It should be mentioned that the Deed of Debt specifically contemplated the assignment by Ms Ong of her rights under it: see Recital E. Thus, if it were a genuine document, the parties to it expressly permitted the assignment of rights which were, prima facie, assignable.

In the event that I am wrong in relation to the genuineness of it, there is no doubt that the parties to the Deed of Debt considered that the transactions referred to, involving Ms Ong and the Defendant, constituted debts owed by the latter to the former. Furthermore, each assignee, being Mr Baena and the Plaintiff respectively, by the Deed of Assignment, was taking an assignment of the debts referred to in the Deed of Debt. It follows that, prima facie, there was a valid assignment in each case of Ms Ong’s rights under the Deed of Debt.

However, it is then necessary to consider the argument advanced by the Defendant, namely that upon its proper construction, the Deed of Assignment, in each case, was an attempt to assign a bare right to sue and that it did not create, or assign, rights to any underlying interest in money or jewellery.

Counsel relied upon Poulton v The Commonwealth. In obiter dicta, in the context of considering the ability of a plaintiff to waive a cause of action in conversion, a tort, the Court stated that the ability to waive the cause of action could only be exercised by the persons in whom the cause of action lay. Two reasons were provided for this, the first being, as a matter of fact there was no purported assignment by those persons to the plaintiff, and, the second being “because, according to well-established principle, the right [of action for the tort] was incapable of assignment either at law or in equity”: at 602 (Williams, Webb and Kitto JJ).

However, in England, the House of Lords has liberalised the strictness of the proposition referred to in Trendtex Trading Corporation v Credit Suisse at 703 (Lord Roskill, Lord Edmund-Davies, Lord Fraser, Lord Keith agreeing). The case concerned the assignment of a cause of action in contract. His Lordship wrote:

The assignment to the third party in that case was another matter (at 703–704):

Lord Wilberforce (the rest of the House of Lords agreeing), at 694, framed the test slightly differently:

In their survey of the law, the learned authors of Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) at [6-470] said of the impact of the decision in Trendtex Trading Corporation v Credit Suisse:

The High Court of Australia has moved towards greater liberalisation, in the direction of the House of Lords in Trendtex Trading Corporation v Credit Suisse: Campbells Cash and Carry Pty Limited v Fostif Pty Limited (2006) 229 CLR 386; [2006] HCA 41; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7.

In Campbells Cash and Carry Pty Limited v Fostif Pty Limited, the issue was primarily one of litigation funding, as opposed to the assignment of a cause of action. Gummow, Hayne and Crennan JJ, at [79]–[81], only mentioned the principle in Trendtex in passing. However, Callinan and Heydon JJ (in dissent in the result), at 258, in obiter, commented in more detail, remarking:

In Equuscorp Pty Ltd v Haxton, the receivers and managers of a lender to investors in a blueberry farming enterprise, assigned to Equuscorp Pty Ltd (EPL) the rights that it had against the investors. These rights included those under allegedly invalid loan agreements and restitutionary claims. French CJ, Crennan and Kiefel JJ, at [53], held that the assignments of the restitutionary claims to EPL were valid as they were assigned “along with contractual rights, albeit their existence is contestable” and that EPL had a “legitimate commercial interest … in acquiring the restitutionary rights should the contract be found to be unenforceable”. Gummow and Bell JJ, at [79], also held that EPL had a genuine commercial interest evidenced by the charge which it held over the assets of the lender to secure the lender’s indebtedness. Heydon J, at [156], expressed a similar view.

In Bakewell v Anchorage Capital Master Offshore Ltd (2019) 372 ALR 349 at 360–361 [44]–[46]; [2019] NSWCA 199, the Court of Appeal referred to those lines of authority. Bell P, with whom Macfarlan and White JJA agreed, at [44]–[46] wrote:

At [72], Bell P also noted:

The next question then is what is a “genuine commercial interest”? In Monk v Australia and New Zealand Banking Group Ltd, in which the assignee, Monk, had attempted to take the assignment of a cause of action against the ANZ Bank so that he would have something to set off against a judgment debt recoverable by the ANZ Bank against him, Cohen J, at 153, found that Monk did not have a genuine commercial interest in the assignment, stating “[t]he using of the debt as a set-off against the judgment debt is merely an example of obtaining some personal benefit … where the Trendtex test has been applied, the commercial interest has gone beyond a mere personal interest in profiting from the outcome in the proceedings …”.

In National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514, Lindgren J, at 540, wrote:

In Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr [2005] NSWCA 240, the Court of Appeal discussed “a genuine commercial interest”. Ipp JA (Hodgson JA and Campbell AJA agreeing) held, at [41]–[42], that “[s]uch an interest must be a ‘legitimate interest’. It must be distinct from the benefit that the person supporting the action seeks to derive from the litigation: Giles v Thompson [1994] 1 AC 142. It must be something beyond a mere personal interest in profiting from the outcome of the proceedings …” and that “the mere wish on the part of Austcorp to acquire Cudgen Paddock was far too insubstantial and tenuous to qualify as the kind of commercial interest that would have the effect contemplated in Trendex [sic] and the cases that have followed it. Such an interest must, at least, be rights-based and not a mere hope”.

In WorkCover Queensland v Amaca Pty Limited [2013] 2 Qd R 276 at 299–300 [65]–[67]; [2012] QCA 240 at [65]–[67], Gotterson JA (Margaret McMurdo P and Martin J agreeing) discussed the meaning of “genuine commercial interest”. By reference to earlier cases, his Honour stated that a genuine commercial interest must be in existence prior to the assignment, but need not be an interest which, of itself, was enforceable at law or in equity.

In EWC Payments Pty Ltd v Commonwealth Bank of Australia [2014] VSC 207, Elliott J wrote, at [62] concluded “… that the exception identified in Trendtex Trading Corporation v Credit Suisse now must be treated as good law in Australia”. He then went on, at [76]:

Finally, the Court of Appeal (Gleeson and Leeming JJA and Emmett AJA) wrote in Mateljan v HTT Huntley Heritage Pty Ltd (2016) 111 ACSR 277 at 287 [42]; [2016] NSWCA 20 at [42]:

Counsel for the Defendant submitted that any interest in the subject matter of the proceedings was only created upon payment first by Mr Baena to Ms Ong, and then by the payment to Mr Baena by the Plaintiff, each of which occurred after the event, that is, after the payment of the $39,980 and also after what is said to be the conversion of the jewellery.

The Plaintiff did not address the issue.

In my view, there is merit in the Defendant’s submission if what was assigned was not an action in debt. I am not satisfied that the Plaintiff has established that he has the necessary genuine and substantial interest in the success of the litigation or a genuine commercial interest in the enforcement of the claim of another as described in the authorities. Importantly, any interest that he has did not exist independently of the impugned assignment. In my view, under the Deed of Assignment, the Plaintiff did not have anything beyond a mere personal interest in profiting from the outcome of the proceedings.

Therefore, any ancillary cause of action in contract or in tort (specifically in conversion) purported to have been assigned separately from the Deed of Debt, must fail on the invalidity of the assignment.

It follows that on this basis, also, the Plaintiff does not succeed.

Finally, there remains for consideration any claim in debt said to have been assigned separately from the Deed of Debt.

The assignment of a debt does not require a “genuine commercial interest” to be valid. As Hobhouse LJ wrote in Camdex International Ltd v Bank of Zambia at 39:

Thus, for an action in debt, the Plaintiff avoids the difficulties of reliance upon the Trendtex exception. However, that does not conclude the matter. As Hobhouse LJ lucidly recognised in Camdex International Ltd v Bank of Zambia at 33: “[t]here has to be a debt, otherwise there is nothing to assign”.

As stated, the Plaintiff’s alternative claims, apart from the Deed of Debt, rely on the provision, without payment, of the jewellery and the payment of the $39,980.

Yet, as has been made clear, the Deed of Assignment between Ms Ong and Mr Baena, and then the assignment from Mr Baena to the Plaintiff, upon which the Plaintiff relies, only purported to assign Ms Ong’s rights in respect of the Deed of Debt. In circumstances where, as outlined above, I am not satisfied of the claimed effect of the Deeds of Rectification, the Plaintiff’s claim can rise no higher than the terms of the Deeds of Assignment.

Therefore, it is unnecessary to consider, in detail, whether the Plaintiff’s alternative claims have been made out on the evidence, as he has not received a valid assignment of those claims.

However, in case I am wrong, turning first to the jewellery, the Plaintiff fails on the fundamental requirement of an action in debt, that there be a liquidated sum due and payable. As Olsson J concluded in South Australia v McKendrick Ahern Pty Ltd (Supreme Court (SA), 9 December 1997, unrep), “the essential element of an action of debt is the creation, by contract, of a liability to pay a liquidated sum of money … [w]hat is important is that there is a clear contractual right to recover a specified amount or an amount calculated in a specific manner in clearly defined circumstances”.

As previously noted, I am not satisfied, on the balance of probabilities, that the Plaintiff established that Ms Ong and the Defendant had agreed to the supply of jewellery at a specified value. Indeed, much of the evidence from the Plaintiff’s witnesses indicated that the jewellery was to be used in part-payment for the transfer of the Tasmanian properties, and not as a standalone transaction for which the Defendant would pay cash for the pieces of jewellery. Moreover, I have already referred to my conclusion that I am not satisfied that, for the jewellery that was not returned, the Plaintiff has proved the value of those pieces.

The Plaintiff does not succeed on this basis either.

The Plaintiff made no separate claim for a debt of $39,980 that had been paid. Clearly, the two amounts, which total that sum, had been paid, and as stated, I am not satisfied that the Defendant purchased the items that she said she did on behalf of Ms Ong for which the amounts were said to have been used.

The total amount, therefore, could constitute an amount that the Defendant should repay to the Plaintiff. It follows that the Plaintiff would be entitled to a judgment against the Defendant for $39,980. However, in light of my conclusions regarding the Deed of Debt and the Deeds of Rectification of the Deeds of Assignment, it is unnecessary to do anything about this aspect.

The third amended Statement of Claim should be dismissed with costs.

The Court: