Musa v Alzreaiawi

1. [1]

   BELL P: I agree with the reasons of Gleeson JA for dismissing the appeal with costs.

2. [2]

   MACFARLAN JA: I agree with Gleeson JA.

3. [3]

   GLEESON JA: The essential question raised by this appeal concerns the standard of proof required to establish the fraud exception to indefeasibility of title to land under the Real Property Act 1900 (NSW).

Nature of the dispute

1. [4]

   In the proceedings below, Mr Adam Musa challenged the validity of a transfer of his joint interest in land at Smithfield to his then wife, Ms Bushra Alzreaiawi, by an undated transfer said to be signed by him in October 2010 and registered on 24 June 2011. The effect of registration of the transfer was that Ms Alzreaiawi became the sole registered proprietor of the Smithfield property.

2. [5]

   Mr Musa’s claim relied upon the fraud exception to indefeasibility pursuant to s 43 of the Real Property Act. Whilst a forgery of a transfer is a nullity, upon registration, the named transferee will take an indefeasible title: Frazer v Walker [1967] 1 AC 569 at 584. However, permitting a dealing to go forward for registration with a false certificate of attestation by the witness to the transferor’s signature amounts to fraud within the meaning of s 43: National Commercial Banking Corp of Australia Ltd v Hedley (1984) 3 BPR 9477 at 9,480-81; Australian Guarantee Corp Ltd v de Jager [1984] VR 483 at 498; Westpac Banking Corp Ltd v Sansom (1994) 6 BPR 13,790 at 13,796; Beatty v Australia and New Zealand Banking Group Ltd [1995] 2 VR 301 at 315. On the other hand, the fraud exception is not established if the person tendering the document for registration was unaware of the problem with the document: Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202 at 221-222.

3. [6]

   Mr Musa’s case was that he did not sign the transfer, the purported signature on the transfer was a forgery and Ms Alzreaiawi was a party to the fraud. He accepted that his case required him to demonstrate sufficiently cogent evidence of the fraud.

4. [7]

   Ms Alzreaiawi’s case was that Mr Musa had given her the transfer with his signature on it in October 2010, following an agreement to do so reached in 2009. She contended that the transfer of Mr Musa’s interest in the Smithfield property was given as an informal property settlement.

5. [8]

   At trial, neither party called as a witness the person named on the transfer as the attesting witness “Salah Namens”. A report from a handwriting expert jointly instructed by the parties was inconclusive as to whether the purported signature of Mr Musa on the transfer was written by Mr Musa.

6. [9]

   The primary judge (Ward CJ in Eq) dismissed Mr Musa’s claim as failing on the question of onus of proof that his signature on the transfer was a forgery: Musa v Alzreaiawi [2020] NSWSC 638.

7. [10]

   The appeal by Mr Musa raised three issues. First, whether the primary judge erred by requiring too much evidence from Mr Musa before accepting his version of events. This was described as the Neat Holdings error: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 (Neat Holdings). Second, if so, whether the findings and evidence established that Mr Musa’s case can be accepted, and if not, whether in any event Mr Musa discharged the onus of proof. Third, whether on appeal Mr Musa is entitled to rely on a Jones v Dunkel submission not made at trial, that Ms Alzreaiawi should have called Mr Namens, and what are the consequences of that submission if permitted on appeal.

8. [11]

   For the reasons that follow, the appeal should be dismissed.

Outline of the evidence at trial

1. [12]

   Mr Musa and Ms Alzreaiawi were married in Saudi Arabia in January 1994 and migrated to Australia in mid-1994. They had three children: two sons and a daughter. Ms Alzreaiawi also had one son, Mr Ahmed Aswad, from a previous marriage.

2. [13]

   The Smithfield property was purchased by Mr Musa and Ms Alzreaiawi in February 1999 as joint tenants for a price of $190,000. It was common ground that the purchase of the property was motivated by the desire to provide a home for their three children, notwithstanding their separation in 1998. From 2000 to until around 2009, Mr Musa lived in a “granny flat” at the rear of the Smithfield property. By 2009, Mr Musa was living on and off in Canberra, where he was working as a formworker. He moved permanently to Canberra in June 2010. On 9 March 2010, a decree nisi of the dissolution of the marriage became absolute. There was no formal property settlement.

3. [14]

   The purchase of the Smithfield property was financed by a secured loan of $170,000 from Perpetual Trustee Limited on 3 February 1999, which was refinanced by a secured loan of $180,000 from Suncorp Metway Limited on 7 December 2000. In June 2011, Ms Alzreaiawi discharged the Suncorp mortgage by payment of $87,254.66, funded by a secured loan of $94,109 from Westpac. The Smithfield property was sold by Ms Alzreaiawi in 2017 for $860,000. On completion of the sale in November 2017, after deduction of the amount due to Westpac and the costs and expenses of the sale, the net proceeds of sale of $779,983.85 were held pending determination of the dispute.

4. [15]

   Each of Mr Musa and Ms Alzreaiawi gave affidavit evidence and was cross-examined at trial. It was common ground that the parties had a conversation in 2009 concerning the Smithfield property. The competing versions of the conversation were:

5. [16]

   The primary judge found that there was at least a consensus between the parties that the intention (or agreement) between them in 2009 was that the Smithfield property was to be for the benefit of the children: J [18].

6. [17]

   There was a dispute at trial concerning the true character of two withdrawals from the joint account of Mr Musa and Ms Alzreaiawi on 26 October 2009 ($25,000) and 9 November 2009 ($10,000), which amounts were transferred to Mr Musa and were not repaid to Ms Alzreaiawi. Mr Musa contended that these payments were withdrawals of amounts from the Suncorp mortgage account which had been paid in advance by Mr Musa. As at 10 July 2009, the payments in advance totalled $95,316 and the amount owing to Suncorp was $67,810. Ms Alzreaiawi contended that Mr Musa had already received anything he might have been entitled to receive out of the Smithfield property when he received the sums totalling $35,000 in 2009.

7. [18]

   There was also a dispute concerning the extent, if any, of contributions by Ms Alzreaiawi to the Suncorp mortgage since 2002, and whether Mr Musa ceased paying the mortgage repayments from 2009. The primary judge noted that Ms Alzreaiawi had produced some receipts for payments on the mortgage (which covered the period from 2002 to 2011) and that Mr Musa had not: J [14]. Mr Musa accepted in his affidavit evidence that he ceased directly making mortgage repayments in 2009 and said that he thereafter paid the mortgage repayments to Ms Alzreaiawi by depositing the money to her account. He also said that on some occasions prior to 2010, he gave money for the mortgage repayments in cash to Ms Alzreaiawi. After observing that documents produced on subpoena by Westpac “appear” to record various deposits to a bank account in the name of Ms Alzreaiawi from a branch in the Australian Capital Territory, which would be consistent with at least some deposits being made by Mr Musa as he had asserted (at J [15]), the primary judge concluded that these assertions could not be properly tested on the evidence before her: at J [46].

8. [19]

   As to the circumstances of the signing of the transfer, the primary judge summarised Ms Alzreaiawi’s evidence at J [29] as follows:

9. [20]

   Ms Alzreaiawi thus adduced corroborative evidence from two witnesses, her son, Mr Aswad, and her brother, Abdel Al Zreaiawi (Abdel), which Mr Musa denied in his affidavit.

10. [21]

    Mr Aswad gave evidence that in about 2011 Mr Musa came to the property for a visit and he observed his mother hand a bundle of documents to Mr Musa and they had a conversation with words to the following effect:

11. [22]

    Mr Aswad adhered to this evidence in cross-examination whilst accepting that he was not quite sure on the dates and that it could have been in 2010.

12. [23]

    Abdel gave evidence that in about 2011 he visited Mr Musa at his home in Canberra where they had a conversation to the following effect:

13. [24]

    There was no challenge to this part of Abdel’s evidence in cross-examination.

14. [25]

    The residential address of the person named on the transfer as the attesting witness “Saleh Namens” was given as a specific location in “Hamilton Road, Fairfield, NSW, 2165”. Mr Musa gave evidence that he knew no such person. Ms Alzreaiawi also gave evidence that she did not know such person. In cross-examination, Mr Musa said he made no enquiries to locate the witness as this was not his job; he said it was for the police or the court to do so. The primary judge declined to draw a Jones v Dunkel inference against Mr Musa (as submitted by Ms Alzreaiawi) that Mr Namens’ evidence would not have assisted his case: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

15. [26]

    The joint handwriting expert, Ms Michelle Novotny, examined only a copy of the transfer document (not the original, which was unavailable despite endeavours to obtain it from Land and Property Information) and various sample specimen signatures of Mr Musa. Her comparative examination of the questioned signature on the transfer and Mr Musa’s specimen signatures was limited to the gross pictorial features of the signatures. She observed 15 similarities between the signatures’ gross pictorial features and three isolated gross pictorial features which could not be fully accounted for in the range of variation depicted in Mr Musa’s specimen signatures. As to the latter Ms Novotny observed at par [39] of her report:

16. [27]

    Ms Novotny was asked to opine on two opposing propositions and she concluded as follows:

17. [28]

    Ms Novotny was not asked to opine on Mr Musa’s purported signature on a Refinance/Sold Authority dated 22 May 2011 addressed to Suncorp, requesting a discharge of the Suncorp mortgage. This document had been produced on subpoena by Suncorp in April 2018, before Ms Novotny gave her report in September 2018. The discharge authority form was not addressed in Mr Musa’s affidavit evidence. In his oral evidence-in-chief, Mr Musa denied that it was his signature on the discharge authority form. In cross-examination, Mr Musa gave conflicting evidence as to whether he signed the discharge authority form, at one point admitting “that’s my signature, yes”, before later asserting, “Well, I didn’t sign anything”. Mr Musa also gave conflicting evidence as to whether he knew that the Suncorp mortgage had been discharged in June 2011, including the following:

18. [29]

    Mr Musa did not contend that he made any payments towards the mortgage after May 2011. Nor did he give any evidence explaining why, on his case, he stopped making payments on the mortgage after May 2011, other than, “I still pay up 2012 because I thought my name still in the house, on the mortgage”. On the evidence, Mr Musa’s reference to “2012” was an error. The balance of Mr Musa’s answer was consistent with him being aware that the Suncorp mortgage had been discharged in mid-2011.

19. [30]

    The discharge authority form was put to Ms Alzreaiawi in cross-examination. She identified her signature on the form, she said her daughter writes everything for her, she was unsure if her daughter’s handwriting was on the document, she was adamant that Mr Musa gave the document to her and said that she recognised his signature on the form. She denied either forging Mr Musa’s signature or having someone else forge it on the form. The primary judge made no finding as to whether the purported signature of Mr Musa on the discharge authority form was a forgery.

The primary judge’s reasons

1. [31]

   The primary judge did not make any adverse credit finding against either Mr Musa or Ms Alzreaiawi, giving the following reasons for that conclusion respectively at [47] and [59]:

2. [32]

   The primary judge found that Ms Alzreaiawi’s evidence as to the provision of the transfer document to Mr Musa was corroborated by evidence from Mr Aswad, her son, to the effect that he saw his mother hand a bundle of documents to Mr Musa and asked him to have them signed and returned and also by Abdel’s evidence as to a conversation with Mr Musa (which Mr Musa denied) in relation to the transfer of the house: at J [29].

3. [33]

   Turning to the question of onus of proof, the primary judge noted at J [92] that an allegation of fraud is a serious allegation to be made, and referred to the applicable standard of proof on the balance of probabilities (s 140 of the Evidence Act 1995 (NSW)), the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (Dixon J); [1938] HCA 34 that one takes into account the nature and subject matter of the proceedings, and the gravity of the matters alleged when determining what evidence is sufficient to establish the fact alleged on the balance of probabilities, and the well-known statement by the majority in Neat Holdings at 171 (Mason CJ, Brennan, Deane and Gaudron JJ).

4. [34]

   The dispositive reasoning of the primary judge appears at J [94]-[98], which it is convenient to reproduce in full:

The amended grounds of appeal

1. [35]

   The amended notice of appeal contains three grounds. Ground 1 contends that the primary judge erred in finding that Mr Musa had not discharged the onus of proof that the registration of the transfer to Ms Alzreaiawi was a result of fraud to which she was a party. This ground was relied upon as raising the first two issues identified at [10] above.

2. [36]

   Grounds 5A and 5B contend that the primary judge erred in failing to draw a Jones v Dunkel inference in relation to both the transfer and the discharge authority form as follows:

3. [37]

   Ground 5A raised the third issue identified at [10] above. Ground 5B was not mentioned in oral argument and I take it not to be pressed.

A. The asserted Neat Holdings error

1. [38]

   The standard of proof which the primary judge was required to apply to the issue of fraud was proof on the balance of probabilities. That follows from the terms of s 140(1) of the Evidence Act which provides that:

2. [39]

   It is not in dispute that the primary judge correctly held that s 140(2) of the Evidence Act applied to the proceedings with the consequence that when determining whether her Honour was satisfied of Mr Musa’s case on the balance of probabilities, she was to take into account from a non-exhaustive list of matters:

3. [40]

   It has been said that s 140(2) provides for no new principle: Palmer v Dolman [2005] NSWCA 361 at [40] per Ipp JA (Tobias and Basten JJA agreeing); Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [71]-[72] (Allsop P, Giles JA and Tobias AJA). It reflects the principles stated in Briginshaw v Briginshaw, where Dixon J said at 362:

4. [41]

   It is well accepted that the principles in Briginshaw v Briginshaw elucidate the list of matters in s 140(2): Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 at [50] per Sackville AJA (Giles JA and Handley AJA agreeing); Bale v Mills [2011] at [71]; Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 at [205] (Gleeson JA, Beazley P and Barrett JA agreeing); El-Wasfi v State of New South Wales; Kassas v State of New South Wales [2017] NSWCA 322 at [123] (Leeming JA, Simpson and Payne JJA agreeing).

5. [42]

   Importantly, the requirement stated in Briginshaw v Briginshaw that there should be clear and cogent proof of serious allegations, does not change the standard of proof, but merely reflects the perception that members of the community do not ordinarily engage in serious misconduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171; Palmer v Dolman at [46]

6. [43]

   In a supplementary submission filed shortly before the hearing, Mr Musa departed from his written submissions in chief and in reply and submitted, for the first time, that the primary judge erred at J [98] in requiring “actual persuasion” that Mr Musa’s version of events is what occurred. Reliance was placed upon the remarks of the majority in Neat Holdings at 172 (Mason CJ, Brennan, Deane and Gaudron JJ):

7. [44]

   Those remarks were made in the context of the particular situation in Neat Holdings where the central issue was whether projected takings of a business (Karajan), which had been sold to the appellant (Neat Holdings), had been knowingly misrepresented by the directors of Karajan. It was common ground at trial that Karajan’s claimed weekly takings of the business for the sale as recorded in the weekly takings book (before the sale) differed from Neat Holdings’ claimed weekly takings after it took over the business as disclosed in Neat Holdings’ weekly takings books to such an extent that they could not both be genuine. Each side had claimed that the other side had falsified the figures recorded in the relevant takings’ books. It was in that context that the majority observed in Neat Holdings that generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worse misleading.

8. [45]

   Senior counsel for Mr Musa acknowledged that the present case did not involve a choice between competing and mutually inconsistent allegations of fraudulent conduct. That concession was properly made. However, counsel went on to submit that the remarks in Neat Holdings at 172 had been extended by the Queensland Court of Appeal in Tabtill Pty Ltd v Creswick [2011] QCA 381 at [33]-[36]. I do not agree.

9. [46]

   Tabtill involved an allegation in a cross-claim by Felix Creswick that his son, John, had, on many occasions, forged his signature on documents with the consequence that John and others within the Creswick family obtained benefits at his expense. John denied making the signatures, and contended that Felix had written the signatures, and continued the use of the disputed signature after he had accused John of forgery.

10. [47]

    The Queensland Court of Appeal noted that the trial judge had to consider two options: “[e]ither, Felix was using two signatures contemporaneously, or John had forged the disputed signatures” (at [31]) and that the case was “not the usual kind of case in which the only question is whether a particular signature is authentic”, because “[o]n John’s case Felix was in the habit of using two markedly different signatures at different times” (at [32]). It was in this context that the Court found that the parties’ cases involved “two distinct options, each involving very discreditable conduct” (at [34]) and it was incumbent upon the trial judge to make a determination, citing the observations in the majority judgment in Neat Holdings at 172 set out above.

11. [48]

    The present case is distinguishable on the facts from Tabtill because, unlike Tabtill, this proceeding involved the usual kind of case in which the only question is whether a particular signature is authentic and, if not, was Ms Alzreaiawi a party to the fraud: cf Tabtill at [32].

12. [49]

    Finally, Mr Musa submitted that this Court should extend the remarks in Neat Holdings at 172 to a case such as the present, because the primary judge was faced with “essentially a binary question”, namely whether Mr Musa signed or did not sign the transfer. There is another possibility, namely that Mr Musa may have forgotten that he signed the transfer and with the passage of time formed the view eight years later when giving his affidavit that he didn’t sign the transfer because he could not remember doing so. Against this, counsel for Mr Musa submitted that it was no more than a logical possibility since this proposition was not put to Mr Musa in cross-examination and was not part of Ms Alzreaiawi’s case. So much can be accepted.

13. [50]

    Nonetheless, in my view, no principled basis was advanced for extending the remarks in Neat Holdings to the present case. Moreover, to accept that submission would be inconsistent with the requirement in s 140(2)(c) of the Evidence Act in a case such as the present where fraud is alleged against a party. The primary judge correctly had regard to the gravity of Mr Musa’s allegation that Ms Alzreaiawi forged or was party to the forgery of Mr Musa’s signature on the transfer, in the sense referred to in Neat Holdings at 171, which is referred to at [42] above. There was no error in her Honour requiring “actual persuasion” on the balance of probabilities of Mr Musa’s version of events. As this Court said in Morley v Australian Securities & Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140 at [750] “[r]eferences in the authorities to “actual persuasion” should be understood as equivalent to the state of “satisfaction”, as that word is used in s 140”. (An appeal was allowed, but no exception was taken to this statement.)

B. The cumulative effect of factors relied upon

1. [51]

   Alternatively, Mr Musa submitted that the cumulative effect of the evidence and the inferences relied upon, established sufficiently cogent evidence to make good his case that he did not sign the transfer. This submission did not rely upon any point of principle; it involved a challenge to the primary judge’s assessment of the evidence.

2. [52]

   In writing, the following cumulative factors were identified as giving rise to a persuasive probability that Mr Musa did not sign the transfer:

3. [53]

   Four preliminary matters should be noted in relation to these matters.

4. [54]

   First, reliance upon the matter in (b) was withdrawn. That concession was properly made given that it was not put to Ms Alzreaiawi in cross-examination that she used copies of Mr Musa’s signature on his passport and driver licence to trace or copy his signature or that she gave these documents to a third party for that purpose, and no submission to that effect was made at trial or in this Court.

5. [55]

   Second, in oral argument no reliance was placed upon the matters in (g) and (h) which depended upon success on the Jones v Dunkel point raised by ground 5B. As indicated, Mr Musa did not press ground 5B.

6. [56]

   Third, insofar as reliance was placed upon the matter in (i), that depended upon success on the Jones v Dunkel point, which is addressed in C below.

7. [57]

   Fourth, Mr Musa accepted that the matters relied upon do not, in isolation, discharge the strict proof requirement identified in Briginshaw v Briginshaw and Neat Holdings. The argument is that cumulatively they lead to the very significant probability that he did not sign the transfer.

8. [58]

   The matter in (k) concerns the credit finding in relation to Mr Musa. It was submitted that given the acceptance of his credit, and the finding that his denial was credible, it is difficult to see how her Honour was able to accept the evidence of Ms Alzreaiawi. The submission continued, that since it was not put to Mr Musa that he had forgotten that he had signed the transfer, there was simply no room to conclude other than that Mr Musa did not sign the transfer.

9. [59]

   The difficulty with this submission is that it involves a gloss on her Honour’s credit finding in relation to Mr Musa, which is set out at [31] above. Contrary to Mr Musa’s submission, her Honour did not find that Mr Musa’s denial that he signed the transfer was credible. The finding was no higher than that her Honour accepted that Mr Musa was adamant that he did not sign the transfer / discharge documents. Faced with directly opposing accounts, and the inconclusive expert opinion, her Honour was not persuaded that Mr Musa had discharged the onus of proof he bore of establishing the fraud allegations: at J [47]. No error has been established in this reasoning.

10. [60]

    The matters in (a) and (j) are related and concern the handwriting evidence. According to the submission, since it was not suggested nor put to Mr Musa that he had sought deliberately to sign the transfer in such a fashion as to give him an availability later to deny the signature (as the primary judge noted at J [72]), this “tips the balance ever so slightly” in favour of Mr Musa’s case. I do not agree.

11. [61]

    The joint handwriting expert, Ms Novotny, noted at par [41] of her report that the three isolated unaccounted for features of the questioned signature could be “incidental, accidental or deliberate variations” of the specimen signatures. Accepting that the isolated unaccounted for features of the questioned signature were not “deliberate” does not tip the handwriting evidence in Mr Musa’s favour because the expert did not consider the isolated unaccounted for features to be significant differences in the specimen signatures: see par [39] of the expert’s report, which is set out at [26] above.

12. [62]

    In addition, the submission that the expert handwriting evidence “tips” in Mr Musa’s favour is an attempt to outflank the primary judge’s finding that the evidence of the joint expert is “inconclusive” without challenging it head on.

13. [63]

    The matters in (c) and (f) concern the so-called unexplained delay by Ms Alzreaiawi after the October 2009 in obtaining and registering the transfer. It was submitted by Mr Musa that there was no objective evidence as to when the transfer was received by Ms Alzreaiawi and the unexplained delay in registering the transfer impacted the cogency of her evidence. Those matters were not put to Ms Alzreaiawi in cross-examination, contrary to the rule of fairness in Browne v Dunn (1893) 6 R 37. Nor was any “delay” submission made by Mr Musa below. The inference contended for by Mr Musa cannot “be drawn with the requisite confidence in circumstances where the inference and its significance were never raised with [the particular witness concerned] so that [she] was deprived of any opportunity to respond to it”: Bale v Mills at [79].

14. [64]

    I would add for completeness that had the matter been raised with Ms Alzreaiawi, Ms Alzreaiawi could possibly have given evidence of the time taken to build up a credit rating and obtain finance, apart from arranging the paperwork, in circumstances where there had been a long history of dishonours on the account by Mr Musa with respect to the monthly repayments of $1,250 and the principal amount of the Suncorp loan had significantly increased from $68,480 in October 2009 to $105,307 in January 2010.

15. [65]

    Further, Ms Alzreaiawi could also have given evidence of the time taken in obtaining approval by Westpac to refinance the Suncorp mortgage, noting that there was in evidence at trial documents produced on subpoena by SKM Lawyers, who acted for Ms Alzreaiawi, which showed that those solicitors provided the signed transfer to Westpac under cover of letter of 24 November 2010 and that Ms Alzreaiawi first signed a mortgage in favour of Westpac on 19 November 2010. This was consistent with Ms Alzreaiawi having received the signed transfer from Mr Musa in October 2010.

16. [66]

    The matter in (d) concerns three payments made to Suncorp after October 2010, which Mr Musa contends were made by him as follows:

17. [67]

    The forensic significance of these payments is that they are relied upon by Mr Musa as being inconsistent with him having signed the transfer in October 2010 as part of an informal property settlement. Putting aside the procedural difficulty that there is no statement in narrative form under Uniform Civil Procedure Rules (UCPR), r 51.36(2) of the finding contended for (with evidentiary references) as to the importance of which, see Magann v The Trustees of the Roman Catholic Church of the Diocese of Parramatta [2020] NSWCA 167 at [51]-[56]. The substantive difficulty with this submission is that the primary judge expressly refrained from making any finding that Mr Musa continued to pay the Suncorp mortgage after 2009 (see [18] above). This was because Mr Musa’s assertions that he had made deposits into Ms Alzreaiawi’s account could not be properly tested on the evidence before her Honour.

18. [68]

    The primary judge was faced with a conflict in the witnesses’ affidavit and oral evidence, in circumstances where Mr Musa did not hold any receipts that he paid these amounts to Suncorp or Ms Alzreaiawi. By contrast, there was some evidentiary support for Ms Alzreaiawi’s evidence that she made payments to Suncorp, relevantly after October 2010, as Ms Alzreaiawi tendered in evidence copies of the receipts of deposits which included two of the three disputed payments to Suncorp: the payments on 6 November 2010 ($800) and 11 May 2011 ($3,000). Unfortunately, the photocopying of some of the other deposit receipts was extremely poor, and the dates and amounts cannot be ascertained from the materials before this Court.

19. [69]

    Evidence was also given by Ms Alzreaiawi that, in addition to receiving CentreLink benefits as a carer for her three children, she was receiving an amount of $2,000 per month from her mother by way of financial assistance, and she received other financial assistance from relatives and friends. There was also unchallenged evidence from her son, Mr Aswad, that he made financial contributions to his mother.

20. [70]

    In an attempt to refute this evidence, Mr Musa submitted that Ms Alzreaiawi’s evidence generally concerning payments that she made to Suncorp from 2002 to 2011 should be rejected as fanciful, in the absence of corroborative evidence as to the source of the monies from which the payments were allegedly made. The submission continued that this leaves open the “possibility”, which counsel for Mr Musa accepted was “tenuous”, that Mr Musa was the contributor to the three disputed payments. There are three difficulties with Mr Musa’s submissions.

21. [71]

    First, this Court is not in a position to make an adverse credit finding against Ms Alzreaiawi, which would involve a rejection of her evidence on this topic. Second, as indicated, the primary judge did not make a finding, given the paucity of the evidence adduced by Mr Musa, that he paid the mortgage payments after October 2010. Third, Mr Aswad’s evidence noted at [69] above amounted to some corroborative evidence as to the source of the monies from which payments were made. No error has been demonstrated in this regard.

22. [72]

    In oral argument Mr Musa pointed to two other matters as supporting the cogency of his case. One was that the transfer of the Smithfield property to Ms Alzreaiawi was inconsistent with the shared basis on which the property was bought, which was said to be for the “benefit” of the children.

23. [73]

    Mr Musa’s evidence was that the property was purchased in 1999 with a view to the parties resuming habitation as husband and wife (having separated in 1998) and to provide a home for the children. When Mr Musa moved to Canberra in 2009 he entered a new relationship with another woman, whom he later married in 2012. In 2009, the children of the marriage were aged 15, 13 and 11 years respectively. Ms Alzreaiawi had a reasonable concern at that time to avoid any claim against the Smithfield property by a future new wife of Mr Musa. Transferring the property to Ms Alzreaiawi was not inconsistent with the shared basis of the property being to provide a home for the children.

24. [74]

    The other matter raised in argument was that Ms Alzreaiawi had paid stamp duty of $5,052.50 on the transfer, which was unnecessary if Mr Musa was willing to transfer the house, because a binding financial agreement could have been proposed and this expense saved, but this did not occur: ss 90D, 90G and 90L, Family Law Act 1974 (Cth). In response to this proposition at trial, Ms Alzreaiawi said in cross-examination, “I don’t know these things”, that she did not recall anyone telling her that at the time and that she relied upon her solicitor. Ms Alzreaiawi denied the cross-examiner’s suggestion that she knew that a certificate of independent advice could not be obtained for a binding financial agreement with Mr Musa because he knew nothing of the alleged transfer.

25. [75]

    The primary judge made no express findings on the stamp duty issue, and again this Court is not in a position to make any adverse credit finding against Ms Alzreaiawi not having seen her give evidence. The payment of stamp duty on the transfer is a neutral consideration in the assessment of all the evidence.

26. [76]

    Having considered her Honour’s reasons and all of the above matters taken together, I am not persuaded that the primary judge erred in her assessment that on the whole of the evidence Mr Musa had not discharged the onus of proof.

C. The Jones v Dunkel point

1. [77]

   Only brief reference to the applicable principles is necessary.

2. [78]

   The rule in Jones v Dunkel is summarised in the joint judgment of Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 361; [2011] HCA 11 at [63] in these terms:

3. [79]

   In Payne v Parker [1976] 1 NSWLR 191, Glass JA, although dissenting as to the application of the principles to the facts, said at 201 in proposition numbered (6), that whether the Jones v Dunkel principle can or should be applied depends upon whether the conditions for its operation exist and identified three in number: (a) the missing witness would be expected to be called by one party, rather than the other; (b) his evidence would elucidate a particular matter; and (c) his absence is unexplained.

4. [80]

   Glass JA continued at 201-202 in explication of the first condition referred to in proposition (6):

Ground 5A

1. [81]

   Ground 5A contends that Ms Alzreaiawi was obliged to have called the purported witness of Mr Musa’s signature on the transfer, “Saleh Namens”, and ought to have explained his absence. The submission continued that the consequence of not calling Mr Namens is that his evidence would not have assisted Ms Alzreaiawi. Mr Musa acknowledged that the Jones v Dunkel point was not advanced at trial and the anterior question is whether he should be permitted to rely upon a new point on appeal.

2. [82]

   A new point cannot be taken on appeal where, had the issue been raised in the court below, evidence could have been given which, by any possibility, could have prevented the point from succeeding: Coulton v Holcombe (1986) 162 CLR 1 at 7-8; [1986] HCA 33 citing, among others, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35. That includes evidence that could have been given upon reopening the case to address the new point: Suttor v Gundowda at 438. See also Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12.

3. [83]

   Had the Jones v Dunkel point been raised by Mr Musa in closing submissions at trial, it was open to Ms Alzreaiawi to advance argument as to why the missing witness would not be expected to be called by Ms Alzreaiawi, such as that the witness was not in her camp (Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [169]) and, if necessary, to reopen the case and hear further evidence seeking to explain the absence of the missing witness, such as that attempts had been made by her solicitors to locate Mr Namens which had been unsuccessful.

4. [84]

   There is a related reason for not allowing Mr Musa to rely upon this new point on appeal. If ground 5A was allowed and upheld, it does not follow that this Court would undertake an assessment of the effect of the suggested Jones v Dunkel inference in light of all the other evidence below and make the factual finding sought by Mr Musa that he had established on the balance of probabilities that his signature on the transfer was forged and Ms Alzreaiawi was a party to the fraud. At best, Mr Musa could seek a new trial and that requires the demonstration that some substantial wrong or miscarriage has been occasioned: UCPR, r 51.53(1). Although such relief was not sought in the notice of appeal, counsel for Mr Musa accepted that it would be necessary to seek such relief if the new point was permitted and upheld on appeal.

5. [85]

   The following considerations tell against a new trial.

6. [86]

   First, there is a public interest in maintaining the finality of litigation, with the consequent expectation that parties will present their evidence and submissions in one hearing: State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29; [1982] HCA 51 at 38.

7. [87]

   Second, as the High Court said in Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at [7], in the context of an application to reopen a case following judgment:

8. [88]

   Those remarks have force, by analogy, in the present case, particularly given that the new point could possibly have been met by further argument and evidence at trial from Ms Alzreaiawi or her solicitor. I am not persuaded that Mr Musa has demonstrated that a miscarriage has occurred.

Ground 5B

1. [89]

   Ground 5B contends that the primary judge erred in not drawing a Jones v Dunkel inference that the discharge authority form purportedly signed by Mr Musa could not have assisted Ms Alzreaiawi. As indicated, this ground was not mentioned in oral argument and I take it not to have been pressed.

2. [90]

   If I am wrong in this regard, Mr Musa should not be permitted to rely upon this further new point on appeal. First, given the very late notice at trial that Mr Musa disputed his signature on the discharge authority form (see [28] above), there would have been a strong argument available to Ms Alzreaiawi that the missing witness, being the person who Ms Alzreaiawi said completed the form, would not be expected to be called by Ms Alzreaiawi.

3. [91]

   Second, if necessary, Ms Alzreaiawi could have sought to reopen the case and adduce evidence from the person who completed the form, assuming that person was her daughter (as Mr Musa contended was likely) and she was available to give evidence. Counsel for Mr Musa did not submit that there is no possibility that the daughter could have given evidence that she completed the discharge authority form before it was signed by her mother and father. Mr Musa was correct not to press ground 5B.

Conclusion

1. [92]

   The appeal has failed and there is no reason why costs should not follow the event: UCPR, r 42.1. Accordingly, I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      Appellant to pay the respondent’s costs of the appeal.