Supreme Court New South Wales Medium Neutral Citation: Miles v Amos [2021] NSWSC 38 Hearing dates: 31 August, 1 – 3 September 2020 Date of orders: 3 February 2021 Decision date: 03 February 2021 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders that the third amended Statement of Claim be dismissed with costs. (2) Orders that the caveat lodged by the Plaintiff on the title to XX Callistemon Street, Mount Annan, NSW be removed within seven days. Catchwords: PERSONAL PROPERTY – Assignment of choses in action based upon Deed of Debt – Whether assignment valid if Defendant's signature on Deed of Debt not proved to be her signature – Evidence of two witnesses of the Plaintiff that Defendant signed Deed of Debt in their presence – Defendant denies having signed Deed of Debt – Two of her witnesses give evidence that the Defendant could not have done so as one, or both, of them were with her on the day the Deed of Debt said to have been signed – Fourth signatory on Deed of Debt not called and each of the other signatories deny knowing him – Also evidence of expert forensic document examiner EVIDENCE – Standard of proof – Whether the Plaintiff has satisfied the Court that the Deed of Debt was signed by the Defendant – Credibility of the lay witnesses – The expert evidence on handwriting regarding simulation of the Defendant's signature on Deed of Debt – No expert forensic evidence called on behalf of the Plaintiff – Seriousness of allegation – Whether Plaintiff able to discharge burden of proof as to authenticity of Defendant's signature on Deed of Debt PERSONAL PROPERTY – Assignment of choses in action – Whether Deed of Debt assigned and if so nature of the assignment – Whether Deed of Assignment rectified CONTRACTS – Rectification – Intention – Deeds of rectification – Where rectification of two different Deeds of Assignment purported to give effect to actual intention of the assignor and assignee, respectively, in Deeds of Assignment – Whether sufficient evidence of actual intention of each of the parties to first Deed of Assignment Legislation Cited: Civil Procedure Act 2005 (NSW), s 62 Conveyancing Act 1919 (NSW), ss 12, 170 Corporations Act 2001 (Cth), s 477 Evidence Act 1995 (NSW), ss 140, 160 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B Law of Property Act 1925, 15 & 16 Geo 5, c 20, s 136 Real Property Act 1900 (NSW), s 74J Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 14.28, 31.3 Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Adami v The Queen (1959) 108 CLR 605; [1959] HCA 70 Anning v Anning (1907) 4 CLR 1049; [1907] HCA 13 Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 Bakewell v Anchorage Capital Master Offshore Ltd (2019) 372 ALR 349; [2019] NSWCA 199 Ballard v Multiplex [2012] NSWSC 426 Brannigan v Smith (2017) 18 BPR 37,193; [2017] NSWSC 1201 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R (HL) 67; 6 ER 67 Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550 Camdex International Ltd v Bank of Zambia [1998] QB 22 Campbells Cash and Carry Pty Limited v Fostif Pty Limited (2006) 229 CLR 386; [2006] HCA 41 Charara v City First Holdings Ltd [2017] NSWDC 448 Charara v Commissioner of Taxation [2016] FCA 451 Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42 Coles v Reynolds & Anor [2020] EWHC 2151 Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 Consolidated Trust Company Limited v Naylor (1936) 55 CLR 423; [1936] HCA 33 Craig v Silverbrook [2013] NSWSC 1687 Cushing v The Lady Barkly Gold Mining Company Registered (1883) 9 VLR (E) 108 Davie v Magistrates of Edinburgh 1953 SC 34 Davis v Commissioner of Taxation (2000) 171 ALR 654; [2000] FCA 44 Elfic Ltd v Macks [2003] 2 Qd R 125; [2001] QCA 219 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 EWC Payments Pty Ltd v Commonwealth Bank of Australia [2014] VSC 207 Ex parte Dally-Watkins; Re Wilson (1955) 72 WN (NSW) 454 Fiona Trust & Holding Corporation v Privalov [2010] EWHC 3199 (Comm) Gawne v Gawne [1979] 2 NSWLR 449 Goodridge v Macquarie Bank Limited (2010) 265 ALR 170; [2010] FCA 67 Holt v Heatherfield Trust Ltd [1942] 2 KB 1 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 In Re H (Minors) [1996] AC 563 In the matter of Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789 Jeans v Cleary [2006] NSWSC 647 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Mateljan v HTT Huntley Heritage Pty Ltd (2016) 111 ACSR 277; [2016] NSWCA 20 McGlen-McLeod v Galloway [2012] NSWCA 368 Mearns v Australian Litigation Fund Pty Ltd [2006] FCAFC 81 Monk v Australia and New Zealand Bank Group Ltd (1994) 34 NSWLR 148 National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Nina Kung v Wang Din Shin [2005] HKCFA 54 Onassis v Vergottis [1968] 2 Lloyd's Rep 403 Pora v The Queen [2016] 1 NZLR 277; [2015] UKPC 9 Porter v Bonarrigo [2009] VSC 500 Poulton v The Commonwealth (1953) 89 CLR 540; [1953] HCA 101 Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr [2005] NSWCA 240 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Queenfield Pty Ltd v Gordon Finance Pty Ltd [2020] VSCA 282 R on the application of SS (Sri Lanka) v The Secretary of State for the Home Department [2018] EWCA Civ 1391 R v Browne-Kerr [1990] VR 78 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11 South Australia v McKendrick Ahern Pty Ltd (Supreme Court (SA), 9 December 1997, unrep) Telfer v Telfer (2014) 87 NSWLR 176; [2014] NSWCA 186 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Trendtex Trading Corporation v Credit Suisse [1982] AC 679 Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Watson v Foxman (1995) 49 NSWLR 315 West v Government Insurance Office of New South Wales (1981) 148 CLR 62; [1981] HCA 38 WorkCover Queensland v Amaca Pty Limited [2013] 2 Qd R 276; [2012] QCA 240 Texts Cited: David Malcolm, "To Wig or be Damned" (1988) 15(7) Brief at 8 Hodge M Malek QC (ed), Phipson on Evidence (19th ed, 2018, Sweet & Maxwell) J D Heydon, Cross on Evidence (2020, LexisNexis) J D Heydon, M J Leeming, P G Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) Michael V Argyle QC, Phipson on Evidence (10th ed, 1963, Sweet & Maxwell) Category: Principal judgment Parties: Phillip Jacob Miles (Plaintiff) Catherine Gonzales Amos (Defendant) Representation: Counsel: Plaintiff (self-represented) P Folino-Gallo (Defendant) Solicitors: Plaintiff (self-represented) Coleman Greig Lawyers (Defendant) File Number(s): 2018/00185934 Judgment Introduction 1. 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. 2. 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. 3. As was recently written in Coles v Reynolds & Anor [2020] EWHC 2151 (Ch), by Matthews HHJ, at [26]: "…judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence. Expressed findings are always surrounded by a penumbra of imprecision which may still play an important part in the judge's overall evaluation." 1. Even so, the process has, resulted in an over-long judgment and one in which detailed references to the evidence have been necessary. The nature of the proceedings 1. 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. 2. 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. 3. 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). 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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)): "Directs, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that the Plaintiff's witnesses, Cristina Yu Ong and Maricel Gonzales, and the Defendant's witness, Robin [Salandanan], shall give evidence by audio-visual link from a place outside Australia, other than Court Room No 2 Hospital Road, Sydney." 1. 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). 2. 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.) 3. 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. 4. 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. 5. 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. 6. 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: "It is important to remember that practitioners and judges are all officers of the Court as it were, and when they are performing their official functions they assume responsibilities quite separate and apart from the individual person they are. The symbolism involved in robing, plays an important part in bringing home to people the sense of responsibility that must drive them in performing their function as officers of the Court": David Malcolm, "To Wig or be Damned" (1988) 15(7) Brief at 8. The Plaintiff's Case 1. In the third amended Statement of Claim, the Plaintiff sought the following relief: "1. Order that until further order by the Court, caveat number AN171777, be extended pursuant to section 74K of the Real Property Act 1900 (NSW). 2. Judgment for the Plaintiff in the amount of $420,240.76. 3. Order that, the defendant pays the plaintiff's cost on an indemnity basis or as the Court thinks fit. 4. The caveat number AN171777 be extended over the defendant's interest in the real property at (Folio: XXXX/YYYYYYY) until the judgment is satisfied or until further order by the Court. Amount of claim $305,334.00 Interest $113,612.76 Filing fees $1,144.00 Service fees $150.00 TOTAL $420,240.76" 1. 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. 2. 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. 3. 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). 4. 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. 5. 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. 6. The Deed of Debt specifically recited: "The Creditor and the Debtor have unconditionally and willingly agreed that the Debtor owes the Creditor in the amount of $305,334.00 AUD plus interest." 1. 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. 2. 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. 3. 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". 4. 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". 5. 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. 6. In response to that contention, Ms Ong deposed in an affidavit sworn 14 June 2019: "I deny the debtor's assertion that only the 'Deed of Debt' was assigned and I say that, when I signed the 'Assignment of Debt' dated 26 February 2018, It was my intention and was fully aware that I was assigning all my rights to the 'Debt' that were owing me [sic] by the debtor and the 'Deed of Debt' that I and Catherine Gonzales signed on 22 May 2017. As a result of the debtor's misunderstanding of the 'Assignment of Debt' dated 26 February 2018, we have voluntarily RECTIFIED the written 'Assignment of Debt' dated 26 February 2018, to fully incorporate our intentions upon which the 'Assignment of Debt' was made and signed." (emphasis in original) 1. 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. 2. 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 owes the plaintiff the Debt in the amount of $305,334.00 plus interest in the amount of $113,612.76 and all incidental expenses including cost. And interest is accruing until the defendant pay the debt in full. a. As a result of the defendant's failure to pay the debt, the plaintiff duly holds equitable interest over the defendant's interest over XX Callistemon Street Mount Annan NSW 2567 (folio: XXXX/YYYYYYY)." The Defendant's Case 1. 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: 1. The Defendant would purchase four parcels of real property in Tasmania, at her own discretion, and in her personal name; 2. The Defendant, initially, would pay for all costs and expenses associated with each of the purchases; 3. The Defendant and Ms Ong would take all necessary steps to transfer the title to the properties purchased from the Defendant to Ms Ong or her nominee; 4. Ms Ong would pay the Defendant, in Australian dollars, the costs and expenses associated with the purchase and transfer of the properties purchased; 5. After the transfer, Ms Ong would engage the Defendant to manage the properties in Tasmania, including to oversee any construction of buildings thereupon; and 6. Ms Ong would pay the Defendant, in Australian dollars, for all expenses incurred in relation to the management of the properties. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. (Ms Ong firmly disputed this, stating that not a single piece of jewellery was returned: Tcpt, 1 September 2020, p 75(27–39).) 8. 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. 9. 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: 1. The debt, Deed of Debt and cause of action did not exist (as she had not been a party to and had not signed that document); 2. The alleged cause of action was not capable of being assigned at law, or in equity, as it was a bare right to bring an action for the tort of conversion; 3. Alternatively, the alleged cause of action was not capable of being assigned as a contractual right, as the Plaintiff did not have a genuine commercial interest in the enforcement of the claim; and 4. The proceedings constituted an abuse of process as the Plaintiff was "trafficking in litigation". (In Elfic Ltd v Macks [2003] 2 Qd R 125 at 137 [65]; [2001] QCA 219, McMurdo P had written at [65] that "the courts must remain vigilant to ensure in the interests of public policy that there is no trafficking in litigation or speculating in causes of action for improper gain".) 1. 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. 2. 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. 3. The Plaintiff filed a Reply to the Amended Defence which amounted to a total denial of the factual allegations raised by the Defendant. The Dramatis Personae 1. I shall next refer to the parties and the witnesses. 2. 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.) 3. 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. 4. 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. 5. 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. 6. 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. 7. (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.) 8. 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). 9. 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). 10. 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). 11. 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). 12. 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). 13. 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). 14. 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. 15. 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. 16. Ms Gonzales was also a witness, called by the Plaintiff, and she was cross-examined. 17. 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. 18. 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. 19. 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). 20. 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. 21. 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. 22. 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). 23. 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).) 24. 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). 25. 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). 26. 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). 27. 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. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. Some general legal principles 1. 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. 2. 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: "(1) the burden of proof as a matter of law and pleading—the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence." (emphasis in original) 1. At 168, their Honours again approved the statement from Phipson on Evidence, at par 95: "the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates." 1. 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). 2. 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). 3. 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. 4. 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. 5. 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): "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations omitted) 1. In In Re H (Minors) [1996] AC 563, Lord Nicholls (Lord Goff and Lord Mustill agreeing) stated, at 586: "The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established." 1. In Fiona Trust & Holding Corporation v Privalov [2010] EWHC 3199 (Comm), Andrew Smith J stated at [1438]: "It is well established that 'cogent evidence is required to justify a finding of fraud or other discreditable conduct': per Moore-Bick LJ in Jafari-Fini v Skillglass Ltd., [2007] EWCA Civ 261 at para.73. This principle reflects the court's conventional perception that it is generally not likely that people will engage in such conduct: 'where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger', per Rix LJ in Markel v Higgins, [2009] EWCA 790 at para 50. The question remains one of the balance of probability, although typically, as Ungoed-Thomas J put it in In re Dellow's Will Trusts, [1964] 1 WLR 415, 455 (cited by Lord Nicholls in In re H, [1996] AC 563 at p.586H), 'The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it'. Associated with the seriousness of the allegation is the seriousness of the consequences, or potential consequences, of the proof of the allegation because of the improbability that a person will risk such consequences: see R(N) v Mental Health Review Tribunal (Northern Region), [2005] EWCA 1605 para 62, cited in Re Doherty, [2008] UKHL 33 para 27 per Lord Carswell." 1. 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]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)." 1. 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]. 2. 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]. 3. 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). 4. 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]: "The term 'demeanour' is used as a legal shorthand to refer to the appearance and behaviour of a witness in giving oral evidence as opposed to the content of the evidence. The concept is, in the words of Lord Shaw in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36, that: 'witnesses ... may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page.' … The reasons for distrusting reliance on demeanour are magnified where the witness is of a different nationality from the judge and is either speaking English as a foreign language or is giving evidence through an interpreter. Scrutton LJ once said that he had 'never yet seen a witness giving evidence through an interpreter as to whom I could decide whether he was telling the truth or not': see Compania Naviera Martiartu v Royal Exchange Assurance Corp (1922) 13 Ll L Rep 83, 97." 1. 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". 2. 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: "'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." 1. 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. 2. 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: "There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed 'The Judge as Juror: The Judicial Determination of Factual Issues' … Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not: (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness. Lord Bingham then added these observations: 'In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented…. … so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such.'" 1. 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: "it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses." 1. Lord Halsbury, in a separate speech in Browne v Dunn, wrote at 76–77: "To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to." 1. 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]: "A positive finding that documents are contrived or fraudulent is a strong adverse finding. Such a serious determination requires a proper foundation and a careful examination of all the relevant evidence bearing on the issue of credibility. A view that part of a claim cannot be accepted does not mean that any documents relating to that claim must be contrived or false and should be disregarded. Each of the documents should be examined and considered on its face and in context. If one or more supportive documents, when properly considered, are found to be genuine, this consideration may strongly support a finding that a claim is credible and has been made out. It may override an impression gained by the Tribunal that the claim lacks substance. A document accepted as genuine after proper consideration can be strongly corroborative of an applicant's case." 1. 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: "It is true that, in Re Pozniak, Morgan v Reuben [2005] NSWSC 766, Palmer J appears to have proceeded on the basis that where forgery was alleged, the onus of proving that the signatures were forgeries fell on the party making that allegation rather than on the proponent of the Will and, indeed, that that onus attracted a Briginshaw standard of proof because of the seriousness of the allegation. But the question of onus does not appear to have been argued before his Honour. What his Honour said, especially at paragraphs [34], [70] and [106], is consistent with the view that a Court should not make an affirmative finding of serious wrongdoing in the absence of comfortable satisfaction that the evidence supports that finding. But it does not follow that the absence of sufficient evidence to make a finding, to the 'comfortable satisfaction' standard referred to in Briginshaw v Briginshaw, that there has been fraud or forgery or other serious misconduct, has as its necessary corollary that the opposing case must succeed." 1. 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. 2. 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: "… it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it." 1. In Honeysett v The Queen (2014) 253 CLR 122 at 131; [2014] HCA 29 at [23] it was observed: "Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience." 1. 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". 2. In Pora v The Queen [2016] 1 NZLR 277 at 286; [2015] UKPC 9 at [24], the Judicial Committee of the Privy Council, stated: "It is the duty of an expert witness to provide material on which a court can form its own conclusions on relevant issues … The expert witness should be careful to recognise, however, the need to avoid supplanting the court's role as the ultimate decision-maker on matters that are central to the outcome of the case." 1. 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]: "What an expert observes by examining the signature in question and comparing it with known and accepted signatures of the writer are matters of fact. On the other hand, the drawing of a conclusion based on the facts which he has observed is a matter of opinion. His opinion is admissible as evidence, subject to one qualification. That is, his opinion need not be accepted by the judge or jury if they are not convinced by the reasons in support of such opinion. The judge or jury can come to their own conclusions, based on the facts and their own reasoning. However, an expert has 2 advantages over the judge and jury. First, he has the scientific techniques or means to find out facts which a judge or jury may not be equipped to do. Secondly, an expert has the necessary experience and expertise. This can help him look for the relevant facts and come to a reasoned conclusion. See Fuller v Strum [2001] WTLR 677, 695 and Phipson on Evidence, para. 37–10 and 37-73. However, at the end of the day, it is for the judge or jury to form their own independent judgment with the assistance of the expert. After all, they are the tribunals of fact. The duty of expert witnesses is, as Lord President Cooper said in Davie v Edinburgh Magistrates [1953] SC 34 at 40: 'to furnish the Judge 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.' Given the nature of expert evidence, one has to approach such evidence with caution. While the factual part of the evidence of an expert is verifiable and is reliable or unreliable as any other piece of factual evidence, the opinion part of an expert's evidence is totally different. Handwriting analysis is not an exact science and the opinion of a handwriting expert, however objective it is, is inherently less precise than a conclusion based on the results of a scientific analysis. The acceptability of an expert's opinion depends very much on how sound and convincing the reasons for his opinion are." 1. 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). 2. 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.) 3. 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. 4. 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. 5. 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. The Deed of Debt 1. 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. 2. 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. 3. 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). 4. I refer to Recital B verbatim: "The Creditor and Debtor have unconditionally and willingly agreed that the Debtor has directly received the following money and things as valued on the purchase receipts: (i) $40,000.00 through two (2) Bank Transfers on the following dates (15/11/2016 and 24/3/2017); and (ii) Jewelleries: (a) 6.17 carat Diamond Earrings valued at $57,345.00 (Annexure 'A') (b) Chopard Ladies luxury wristwatch with Diamonds valued at $70,998.00 (Annexure 'B'). (c) Illusion Bracelet valued at $ 17,750.00 (Annexure 'C'). (d) Rositas earrings valued at $ 25,577.00 (Annexure 'D'). (e) Green Stone (Emerald) necklace and earring set valued at $ 25,942.00 (Annexure 'E'). (f) Black diamond earring valued at $17,750.00 (Annexure 'F'). (g) Illusion set of necklace, bracelet and earrings valued at $23,211.00 (Annexure 'G'). (h) Diamond necklace with round diamond pendant valued at $ 26,761.00 (Annexure 'H')." 1. 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. 2. 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. 3. 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.) 4. Clause 2 of the Deed of Debt, which is under the heading "Debt", states: "The Creditor has at the request of the Debtor agreed that all monies and jewelleries that were previously received by the Debtor from the Creditor have the sum total of $ 305,334.00 AUD plus interest computed at 15% per annum." (emphasis added) 1. Clause 3 of the Deed of Debt appears incomplete: "In consideration of the Creditor agreeing to advance monies and handing in of valuable jewelleries [which are then identified] … the Debtor agrees and acknowledges that as collateral security, her place of residence including any properties that she owns and any assets either real property or cash." 1. 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 …". 2. 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. 3. 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.) 4. Turning to the final page, the document purports to be "Executed as a Deed". The final page bears four signatures, purportedly being of: 1. The Defendant; 2. Ms Ong; 3. Mr Sabas Capili; and 4. Ms Gonzales. 1. 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. 2. 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. 3. 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. 4. 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). 5. 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). 6. 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). 7. 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)): "Q. Did you ever give Ms Amos the photos with the letters on top of them before these proceedings? A. INTERPRETER: None. None. Because through Viber I did not, I did not give her hard copy. I sent the pictures through Viber. So there were not letters like A, B, C." 1. 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). 2. 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.) The Deeds of Assignment 1. 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. 2. 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. 3. 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). 4. 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". 5. 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.) 6. 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. 7. 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". 8. 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). 9. 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. 10. The operative provisions were as follows: "WHEREAS the ASSIGNOR is the Creditor named on the Deed of Debt annexed hereto and marked as "Annex "A" duly executed in the state of New South Wales Australia on the 23rd day of May 2017. WHEREAS, the ASSIGNOR has willingly for the consideration as detailed below, assigned all her rights, title and interest over the above mentioned Deed of Debt and the ASSIGNEE hereby accepts the assignment. It is hereby agreed, that the assignee of this assignment can unconditionally sell all his rights and entitlement of this assignment and the deed that created this assignment to any person whatsoever without giving any notice. However, the requirement for notice can be carried out by the assignee who takes on this assignee's rights and entitlement. NOW, THEREFORE, for and in consideration of the forgoing premises and the sum of TWO MILLION PESOS (2,000,000.00), PHILIPPINE CURRENCY (equivalent in Australian dollar $50,000,00), which the ASSIGNOR hereby acknowledged to have received from the ASIGNEE [sic], the ASSIGNOR hereby assigns, transfers and conveys onto the ASSIGNEE, all her rights, title and interest to the aforementioned Deed of Debt pursuant to this Agreement and the ASSIGNEE by these presents hereby accepts the assignment and agrees to be bound by the terms and conditions of the Deed of Debt and the rules and regulations, and restrictions pertaining to the said document under the laws that governs the deed. This assignment shall be governed and construed under the same laws of the of [sic] debt." (emphasis in original) 1. 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". 2. 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". 3. 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.) 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. (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.) 10. 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). 11. In cross-examination, it was put to the Plaintiff (Tcpt, 2 September 2020, p 155(26–30)): "Q. You took him at his word? A. And I believe him, he's an honest man. Q. Did you exclude the possibility that he may be lying to you? A. He - Mr Baena did not lie to me." 1. 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. 2. 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. 3. 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. 4. The relevant part of the Assignment of Debt dated 6 March 2018 was: "In this written assignment; Catherine Gonzales Amos of XX YY Street, Mount Annan NSW 2567 is ('the debtor'). In this written assignment; the 'DEED OF DEBT' dated 22 May 2017 and executed on 22 May 2017 in the state of New South Wales by Ms Cristina Yu Ong 'creditor' and Ms Catherine Gonzales Amos 'the debtor' is ('the debt'). On 26 February 2018, the assignor purchased and took assignment of the debt from the original creditor (Cristina Yu Ong) which the debtor unconditionally owes in accordance with the deed of debt she and the creditor duly and willingly executed on 22 May 2017. As at today's date, the debtor owes the debt in the amount of $305,334.00 plus interest as detailed in the deed of debt dated 22 May 2017. As at today's date the assignor assigned to the assignee all his rights and entitlement of the debt, and after the assignor signed this assignment he has given complete right to the assignee as per all written paragraphs and clauses in this assignment. 1.1 As a consideration to purchase the debt, today the assignor received assignment of a debt owing to the assignee by the District Court of New South Wales judgement of debt of matter number 2009/00334576 in the amount of $63, 799.26 plus interest in accordance with the Uniform Civil Procedure Act 2005 NSW. 1.2 The assignor assigned all his ownership and rights of the debt from the debtor to the assignee after this document is signed and remain in force until the debt the debtor owes and will owe to the assignor is paid in full to the assignee. 1.3 The assignor assigned to the assignee all his rights entitlements of the debt and any monies the debtor owed and will owe to assignor as if the assignee was the assignor before the assignor made this assignment until payment is received in full." 1. 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". 2. 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. 3. 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": "DEBT IN THE AMOUNT OF $305,334.00 PLUS INTEREST FROM 22 MAY 2017." 1. 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: "Our client instructs that she has no debt to Ms Ong and that in fact Ms Ong has a considerable debt to her. We demand that you remove the caveat immediately…". 1. 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. 2. 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. 3. 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: "With regards to the investigation pertaining to Phillip Jacob Miles relating to a document entitled 'Deed of Debt' the following documents and things:- 1. All expert fingerprint reports relating to the examination of the document including all documents and things relating to the comparison of fingerprints including copies of fingerprint forms from persons which were used for the purpose of comparison; and 2. All DNA reports pertaining to the document 'Deed of Debt' including copies [of] all documents and things used for the purpose of comparison." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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". 10. 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. 11. 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. Rectification of the Deeds 1. 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. 2. In the third amended Statement of Claim, at pars 10–11, the Plaintiff pleaded: "On 26 February 2018, the Assignor assigned all her rights to the Debt and the Deed of Debt, to (Mr Tom Baena). On 14 June 2019, the Assignment was voluntarily rectified by the Assignor and Mr. Tom Baena to their common intentions of assigning all the Assignor's rights to the Debt and the Deed of Debt 'the Written Assignment of Debt to Mr. Tom Baena'. The documents were served on the defendant. On 6 March 2018, the plaintiff took assignment from (Mr. Tom Baena) of all the Assignor's rights to the Debt and the Deed of Debt. On 17 June 2019, the Assignment was voluntarily rectified by the plaintiff and Mr. Tom Baena to their common intentions of assigning all the Assignor's rights to the Debt and the Deed of Debt 'the Written Assignment of Debt to the Plaintiff'." 1. 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: "Cannot be said to have been the common intentions of the parties to the assignment at the time of any agreement." 1. The Defendant pleaded at par 12(c)(iii): "On or about 17 June 2019, her former solicitor on record in these proceedings, Ms Gianna Doyle was sent an email from the Plaintiff attaching a document described as 'Rectified Assignment of Debt between Tom Baena and Ms Cristina Yu Ong effective from the original date of assignment'." 1. There was no similar paragraph in the Defence referring to the rectified Assignment as between the Plaintiff and Mr Baena. 2. 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". 3. 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. 4. Whilst Ms Ong referred to the rectification in her affidavit, she did not refer specifically to the Deed of Rectification as an annexure. 5. 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. 6. 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: "Chopard luxury wristwatch with diamonds for ladies cost equivalent in Australian dollars $70,998.00, Diamond necklace with round diamond pendant cost equivalent in Australian dollars $26,761.00, Diamond earring black cost equivalent in Australian dollars $17,750.00, Rositas earrings cost equivalent in Australian dollars $25,577.00, Diamond earrings 6.17 carat equivalent in Australian dollars $57,345.00, IIllusion bracelet equivalent in Australian dollars $17,750.00, Green emerald necklace and earring set equivalent in Australian dollars $25,942.00, Set of illusion necklace and bracelet and earring equivalent in Australian dollars $23,211.00 'the Jewelleries' and AUD$40,000 'the Cash' and 'interest' and 'the debt'." 1. The Deed of Rectification purported to alter the operative part of the Deed of Assignment in the following way: "The ASSIGNOR hereby assigns, transfers and conveys unto the ASSIGNEE, all her rights, title and interest to the Jewelleries, Cash and interests (1) the debt, the ASSIGNEE by these presents hereby accepts the assignment. The Assignor also hereby assigned all her rights and title over (2) the Deed of Debt dated 22 May 2017. WHEREAS the ASSIGNOR and the Assignee agreed and accepts that the 'Deed of Debt' dated 22 May 2017 stands separately in its own operation as assurance but does not in any way destroy any of the Assignor's rights and entitlements over the debt that has been assigned." 1. 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. 2. 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. 3. 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. 4. 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: "In this written assignment; the 'DEED OF DEBT' dated 22 May 2017 and executed on 22 May 2017 in the State of New South Wales by Ms Cristina Yu Ong 'creditor' and Ms Catherine Gonzales Amos 'debtor' is ('the assurance to pay debt'). The jewelleries and the $40,000 cash are the debt owing by Catherine Gonzales Amos. … 1.2 The assignor assigned all his ownership and rights of the debt and the 'Deed of Debt' from the debtor to the assignee after this document is signed and remain in force until the debt the debtor owes and will owe to the assignor is paid in full to the assignee. 1.3 The assignor assigned to the assignee all his rights entitlements of the debt and any monies the debtor owed and will owe to the assignor as if the assignee was the assignor before the assignor made this assignment until the payment is received in full 'debt and any monies' shall mean the jewelleries, the $40,000 cash and interest." 1. 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. 2. 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. 3. Ms Ong's evidence made no more than a bare assertion of their common intention: "As a result of the debtor's misunderstanding of the 'Assignment of Debt' dated 26 February 2018, we have voluntarily RECTIFIED the written 'Assignment of Debt' dated 26 February 2018, to fully incorporate our intentions upon which the 'Assignment of Debt' was made and signed." 1. 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: "… I did so on the basis that I was assigning all my rights to the debt and all my rights to the deed of debt between [the Defendant] and Ms Cristina Yu Ong." 1. 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.) 2. 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. 3. 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)): "So in a perfect world, gentlemen, the plaintiff would just plead the Deed and sue on the Deed. The defendant would say, 'It's not my Deed, I haven't signed it'. The plaintiff would then put on a reply, setting out at length this claim, based upon the underlying facts. I think the way things have gone forward it's clear enough what has to be done. The plaintiff will come to Court at the hearing with two alternative cases, one based on the Deed and one based on the underlying facts. DOYLE: My submission is, your Honour, is that Mr Miles wouldn't have any standing on the underlying facts, because all that's been assigned to him is the Deed, the right to the Deed, this alleged Deed of Debt. HIS HONOUR: I see. DOYLE: And so if he's suing on the basis of Madam Ong, Ms Ong, then he would be acting as a lawyer, and I would submit he can't do that. He can only have proceeding before the Court, action which he can legally raise against Ms Amos, and as it's been set out, Mr Miles wasn't involved in any of the factual circumstances. HIS HONOUR: He wouldn't be able to prove them anyway, would he? How would Mr Miles be able to prove that it's a 6.7 carat diamond earring? DOYLE: I think it's his intention to bring all those witnesses over from the Philippines. HIS HONOUR: I see. So, Mr Miles, that's correct, isn't it, your standing to bring this action depends upon the assignment of the debt from Ms Christina [sic] Ong to you? PLAINTIFF: Including the circumstances surrounding it and the intentions of the assignment. HIS HONOUR: I don't know what you mean by 'the circumstances surrounding it'. You've got an assignment. PLAINTIFF: That's correct. HIS HONOUR: Which gives you rights under a Deed. It doesn't give you other rights. PLAINTIFF: It gives me rights to the debt, because the debt contains the Deed. HIS HONOUR: Yes, exactly. PLAINTIFF: All right. HIS HONOUR: That's all it gives you." 1. In his Honour's ex tempore judgment, Pembroke J stated at [12] and [17(1)]: "It may be, although I cannot be sure, that the plaintiff has a genuine alternative case. It is not clear to me. Certainly it is difficult to see that he is in a position to prove or establish that he has rights arising from the events which occurred prior to the deed of debt being executed. … The plaintiff's further amended statement of claim should be confined to the only cause of action which is open to him. That appears to be an action on the deed. If there is another cause of action open to the plaintiff which has not been explained to me then that may be included." 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. 2. 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]: "Before turning to the arguments, it is convenient briefly to refer to the principles by which a contract may be rectified, which were not in dispute between the parties either at trial or in this Court. The purpose of rectification is to correct the written instrument so that it conforms to the true agreement between the parties, which the instrument mistakenly fails to express. Gageler, Nettle and Gordon JJ explained in Simic v New South Wales Land and Housing Corporation: For relief by rectification, it must be demonstrated that, at the time of the execution of the written instrument sought to be rectified, there was an 'agreement' between the parties in the sense that the parties had a 'common intention', and that the written instrument was to conform to that agreement. Critically, it must also be demonstrated that the written instrument does not reflect the 'agreement' because of a common mistake. Unless those elements are established, the 'hypothesis arising from execution of the written instrument, namely, that it is the true agreement of the parties' cannot be displaced. The issue may be approached by asking — what was the actual or true common intention of the parties? There is no requirement for communication of that common intention by express statement, but it must at least be the parties' actual intentions, viewed objectively from their words or actions, and must be correspondingly held by each party. Displacing the presumption that the executed agreement reflects the true agreement of the parties requires 'convincing proof'. Anything less would subvert the objective theory of the interpretation of contracts. One aspect of that proof is that the divergence between the common intention of the parties and the terms of their written agreement must be clearly identified." (citations omitted) 1. Their Honours continued at [80] - [82]: "The fact that the evidence did not go so far as to show that a term in that specific form was intended by the parties is not a bar to the rectification claim. What is required is a common intention as to what was agreed. While that might be articulated in legal language or in the form of a draft contractual term, that is not essential. Conversely, the fact that different ways might be found of formulating the intention in legal terms does not deny that the intention exists. Similarly, the evidence that Mr Gordon shared the common intention is not undermined by his evidence that he did not understand, or fully understand, clause (i). The larger point is that he intended that the loans not form part of the sale. The common intention need not descend to consequential accounting, or taxation, treatment. In this regard, McLelland AJA explained in Carlenka: In general, the remedy of rectification of an instrument is available where it is established by clear and convincing proof that at the time of execution of the instrument the relevant party or parties as the case may be had an actual intention (if more than one party, a common intention) as to the effect which the instrument would have which was inconsistent with the effect which the instrument as executed did have in some clearly identified way. In this context 'effect' means the legal and factual operation of the instrument according to its true construction, but does not include legal or factual consequences of the operation of the instrument of a more remote, or collateral, kind (for example, its liability to stamp duty). As it was put by Simonds J in Crane v Hegeman-Harris Co Inc: It is of course, true for the purposes of rectification you must find that which was specifically intended, but the exact form of words in which the common intention is to be framed appears to me to be immaterial as long as in substance and in detail their intention is to be ascertained." 1. 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 …". 2. 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]: "As an alternative to an order of rectification the parties could execute a deed rectifying their prior writing. That deed, if truly operating to record that the parties were under a mutual mistake, and also setting out what the parties acknowledge to be the true agreement between them would not, any more than a court order, actually alter the position as between the parties. It would merely record that agreement as it always was. Whether by court order or by deed, rectification requires that there be a mutual mistake, that is to say what is required is that there be a common intention between the parties as to the effect that the instrument they signed would have had which was inconsistent with the effect which the instrument which they executed in fact had: cf Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 95 ATC 4620. Mistake as to the revenue consequences of the agreement would not bring about the same result: Baird v BCE Holdings Pty Ltd (1996) 40 NSWLR 374 at 384." 1. 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. 2. 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)): "Q. When you looked at the deed of debt, did you form a view as to whether it was a layperson or a solicitor who was the likely person who drafted it? A. When I, I look at the, the deed? Q. Yes. A. And it was - it looks good to me so I, I was happy with it. Q. Did you notice when you were looking at it that the relevant jurisdiction for the governing law, did you read the - I withdraw that. When you had a look at the deed of debt did you read it in detail before you committed to paying for the case? A. Well, I had to be familiar with it, so I - that's the reason why I offered her to, to buy the debt off her. Q. Did you have a look at the relevant jurisdiction that you would have to bring the case in if you, in fact, were going to buy it? A. Well, I, I was convinced that it was a, a good, good safe document, so that's the reason why I decided to buy it." 1. 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. 2. 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. 3. 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)): "Q. Did you take any steps to find Mr Capili to get to the bottom of this? A. I don't need to, I have a deed. I have a deed that I believe it was a legal document, so I don't need to go beyond the deed. Q. You knew there was a question as to the legitimacy of the signing of that deed, don't you? A. It is not my obligation to go there. I have a document. Q. I'm not asking-- A. She have to prove she, she didn't sign it. I'm satisfied that the deed is genuine. I'm satisfied beyond all reasonable doubt that she signed the document. Q. Sorry, I didn't mean to cut across you. Did you nevertheless make any inquiries? I understand that your view is you don't have to go beyond the deed. A. Absolutely. Q. I'm asking you whether or not notwithstanding the legal position, whether you decided or you made any inquiries as to where Mr Capili was? A. I was not - it was not required of me to do that-- HIS HONOUR Q. Mr Miles-- A. And, no, I didn't." 1. 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. 2. 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).) The Tasmanian Properties 1. 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. 2. 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. 3. 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. 4. 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. 5. 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). 6. 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. 7. 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. 8. 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 Purchase of Luxury Items by the Defendant 1. 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. 2. 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). 3. 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. 4. 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. 5. 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). 6. 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). 7. Ms Henson did not give evidence in the case. 8. 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). 9. 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. 10. 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. Further Purchases of Property and the Jewellery 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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". 8. 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). 9. 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. 10. 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). 11. 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. Alleged Admission of Amounts Owing 1. 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. 2. 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. 3. 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: "Defendant: (You) see ma'am, I help people over here too because anyone who becomes close to me and wins my full confidence, does not need to say much. I don't treat them as strangers. Defendant: Tomorrow somebody will pay me 3 million, 1.5 each. Then another will pay 200K. I told Ateng to give you the cheque of 200K because I owe you 150K plus 50K which I owe Dess. Rich people are like that hahaha, money stays within. Defendant: In time ma'am, you will see. You will thank me for investing here. Ms Ong: But of course, Cathy. You really paved the way for us. That is why I am very grateful to you. We still have a long relationship ahead of us. You are not a stranger to me. Maricel, I treat like a member of the family. And you as well. Thanks, God bless." 1. 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)): "WITNESS: It's in pesos, your Honour. It refers to that conversation because most of my managed money in the Philippines Mericel is handling it and this refers to a pesos, this is not Australian Dollars. That even in the English translation it says there." 1. 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. 2. 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)): "Q. But you deny that you owed her whether it's 200,000 pesos or 200,000 dollars, you denied you owed her any money, didn't you? A. Yes, your Honour. Q. That suggests otherwise, does it not? That suggests that you do owe her money? A. Your Honour, this one is not an owe because what happened, as I said, I get money from Mericel, most of my - I get property in the Philippines and everything and Mericel always, like..(not transcribable)..cheque and she get cheque from Ms Ong. Q. You told me a moment ago that you didn't owe at any time any money to Ms Ong. This document suggests that you owe her $150,000 plus you owed someone called Dess(?) $50,000. $50,000 or 50,000 pesos, 150,000 pesos. Now, do you agree that this document suggests that you owed, at that date, Ms Ong $200,000 of some money, whether it's pesos or dollars? A. As I said, this is that - what it is look like but it translated this way but I never owe her $200,000." 1. 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). Arrival of the Group in Australia 1. 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. 2. 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. 3. 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). 4. 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: 1. An illusion bracelet; 2. Set of the "Rositas" earrings; 3. A green stone necklace together with a matching set of green stone earrings; and 4. Necklace with a diamond appearing pendant. 1. 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: "I received the First Collection of Jewellery from Maricel on the understanding that I was only to wear them and then return them to either Maricel and/or Ms Ong before either of them returned to the Philippines." 1. 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): "Ms Ong: I'll bring it with me Defendant: Yes, please bring it, ma'am. Just bring the 2.1 million, okay. I'm happy. Then one more looks like… Well, at least that looks okay. Kate and company like it here very much, ma'am. They enjoyed themselves very much. The video Kate made is really nice Ms Ong: I'm about to go to the airport. I'm bringing 6.17ct. Defendant: Thank you, ma'am! (You) were able to get a good supplier. Ms Ong: They think I am rich because I am always bringing things here. Defendant: Hey, thank you ma'am hahah. You are really rich already. Ma'am look for a 5-6 carat round or heart icon for me. Heart. That's good ma'am. You can choose nice ones at a whole sale price." 1. Those messages demonstrate that the Defendant was at least a knowing, and likely a willing, participant, in the jewellery being brought to Australia. 2. When not in her personal possession, the Defendant stored the First Collection of Jewellery securely in the safe in her house in Mount Annan. 3. 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. 4. 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. 5. Later, on 12 May 2017, the group attended the wedding of Ms Gonzales and Mr Santiago. 6. 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: 1. A Chopard watch; and 2. Another illusion bracelet. 1. 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. 2. 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: "I received the Second Collection of Jewellery from Ms Ong only to wear and then intended to return the Second Collection of Jewellery to either Maricel and/or Ms Ong before either of them returned to the Philippines." 1. Ms Ong's evidence, however, was different. On her account, the Second Collection of Jewellery comprised the following eight pieces: 1. A Chopard watch; 2. Diamond necklace with round diamond pendant; 3. Black diamond earring; 4. "Rositas" earrings; 5. Diamond earrings; 6. Illusion bracelet; 7. Green emerald necklace and earring set; and 8. A set of Illusion necklace, bracelet and earrings. 1. 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". 2. 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. Sheets of White Paper 1. 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. 2. 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: "I and Catherine Gonzales Amos agreed and wrote the quantities, description and value of the jewelleries that she received from me, the two cash transfers, the payment details of the debt and the background history of what had happen [sic] between us on plain white paper sheets. Catherine Gonzales Amos then took our agreement and had the deed prepared. And Catherine Gonzales Amos told me that, the deed was prepared by one of her many solicitors' [sic] friends, upon which we signed." 1. 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). 2. 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). 3. 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). 4. The Defendant denied that she had ever written down anything on sheets of white paper. 5. 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. Events in Tasmania 1. 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. 2. 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. Stay in Melbourne 1. 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). 2. 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. Alleged Signing of the Deed of Debt 1. 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. 2. 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. 3. The Plaintiff relied on the evidence of Ms Ong and Ms Gonzales as to the signing of the Deed of Debt. 4. 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). 5. 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). 6. 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. 7. 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. 8. 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. 9. 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. 10. (Mr Baena had described the person known to him as Sabas Capili as "an Asian person": Tcpt, 2 September 2020, p 175(32–43). 11. 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). 12. Ms Gonzales denied similar propositions when they were put to her: Tcpt, 1 September 2020, p 122(02–08), p 124(10–12). 13. 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. 14. 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. 15. 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). 16. Mr Santiago stated at par 18 of his affidavit affirmed 7 September 2018: "… [the Defendant] was either with me or [Mr Mepani] for the whole of the day because she was unwell." 1. 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). 2. 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). 3. Initially, Mr Santiago repeated this evidence in cross-examination (Tcpt, 3 September 2020, p 306(32–41)): "Q. And this particular 22 May, you said each time you left Catherine, Mansukh would stay. Each time Mansukh left, you will stay, correct? A. That's correct. Q. Is there any reason why both of you picked this particular date of 22 May that Catherine wouldn't be by herself? A. No. Q. Are you sure about that? A. Yes." 1. 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): "Q. I think what Mr Miles is saying to you-- A. Yes, your Honour. Q. --is this. Earlier you gave evidence that on 22 May and at other times whilst you were in Melbourne you were always together? A. That's correct, your Honour. Q. You then said that there were occasions when, if she went somewhere, she would tell you where she was going? A. That's correct, yeah. Q. That suggests, does it not, that you weren't together all the time? A. Yes, your Honour. Q. Which is correct? Were you together all the time or where you together some of the time? A. Some of the time." 1. 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. 2. 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. 3. 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): "I was with her in the morning period until afternoon when she felt a bit better. I went with her, Neil, and Austeria (sic), Ms Austeria (sic), to DFO. When we came back, I told Neil to stay with Catherine while I go to people's house. When I came back, all of us - no, all of us were a bit, we, we must have been together. Because we were, we were together until 11, 11 o'clock in the night when, or something like that." 1. 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). 2. Ms Austria, who was with them, for most of the time that the group was at the DFO South Wharf, did not give evidence. 3. 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: "On the 22 May 2017, I was still unwell and spent the day in my room with either Mansukh Mepani (Mansukh) and/or Neil Santiago (Neil) to look after me. I did not spend any time with either Madam Ong or Maricel on 22 May 2017." 1. 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. 2. 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. 3. 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). 4. 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). 5. 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. The involvement of NSW Police 1. 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. 2. 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. 3. 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). 4. 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: "I read the contents of this document and I studied the signature that appeared above my name and on pages 2- 7. I do not know anything about this document. That is not my signature that appears on this document. I did not complete or sign this document. I do not know who Sabas CAPILI is. At no time did I take part in the completion of this document with Cristina ONG, Maricel GONZALES or Sabas CAPILI. Until this time, I had never seen this document before. I saw this document was signed on 22 May 2017. I was not in New South Wales on this date when this document was signed. I was actually in Victoria. I flew out from Hobart and stopped at Sydney on 20 May 2017. I flew out from Sydney the same day and went to Melbourne. I returned to Sydney on 23 May 2017. My mobile phone records show I was in Melbourne for those dates. … While 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. … On today's date being Monday 10 September 2018, I attended Campbelltown Police Station at the request of Detective Bob BRISBY. Detective BRISBY showed me a scanned colour copy of the 'deed of debt' document. I had nothing to do with this document and it is not my signature that appears on the document. I volunteered a set of my fingerprints and DNA to Detective BRISBY to assist his investigation into the deed of debt document." 1. 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)): "Q. Yeah, you told the police you didn't, you told the police you didn't sign the deed, yes. But why didn't you tell the police the day the deed was signed you were together with these people? A. As I said to you, it's not even the issue of I was with them or not. I was with many people that, as you can see with the flight, and I never even mentioned them as well there. I am more concerned in reporting that this one, this document that you are suggesting are the deed of debt, this never happened and I never signed and I never seen that document." 1. 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". 2. 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". 3. 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. 4. In this document, the following appears: "Result of analysis number AJ00753570 for original deed of debt document relating to this matter. Record of deed of debt document being submitted for fingerprint / DNA examination and comparison. Result of analysis which found 30 sets of fingerprints after examining all surfaces of the deed of debt document. … Result of DNA analysis AJ00759762 relating to DNA comparison with Miss Catherine Amos and Mr Sabas Capili. Comment:- Mixed DNA profile, weak/complex. Meaning an effective DNA comparison could not be conducted with the profiles of Miss Amos and Mr. Capili as the profile(s) found on the tapelift were insufficient for comparison. Result of fingerprint analysis AJ00759763 relating to fingerprints identified on the deed of debt document. Prints reference F2, F10, F15, F23 were identified as belonging to Jamal CHARARA DOB: X/X/XX. Result of fingerprint analysis AJ00759763 relating to fingerprints identified on the deed of debt document. Prints reference F4, F7, F9, F13, F16, F17, F18, F19, F20, F21, F22, F25, F30 were identified as belonging to Jessica ROCKSTROH DOB: X/X/XX. Results of remaining fingerprint analysis AJ00759763. Remaining prints reference no. F1, F3, F5, F11, F12, F24, F26, F27, F28, F29 were not identified as Catherine AMOS. Miss AMOS' fingerprints were not identified on the document. Result of remaining fingerprint analysis AJ00759763. Remaining prints reference no. F1, F3, F5, F11, F12, F24, F26, F27, F28, F29 were not identified as Jun CAPILI @ Sabas CAPILI. Mr. CAPILI's fingerprints were not identified on the document." 1. 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. 2. 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. 3. 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. The Expert Evidence 1. 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". 2. 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). 3. 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". 4. 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. 5. 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. 6. Based upon that visual inspection, Ms Holt tested two hypotheses: 1. First, that the author of the specimen signatures (i.e. the Defendant) signed the Deed of Debt in such a way as to disguise her signature or that any differences were accidental; and 2. Secondly, that someone else, other than the author of the specimen signatures, signed the Deed of Debt attempting to copy the form of the genuine signature either writing freehand or by using some form of tracing process. 1. 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. 2. 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. 3. 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". 4. 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". 5. 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. 6. (I should note that in her first report, Ms Holt had defined various levels of conclusion. "Very strong support" was defined as: "a qualified conclusion which occurs when a forensic document examiner has identified a combination of similarities/differences, where there were no significant differences (in the case of an identification) or no significant similarities (in the case of an elimination), which strongly supports the proposition that two or more signatures/handwritten entries have been written by the same person (in the case of an identification) or by different people (in the case of an elimination). However, some limiting factor (or factors) such as the amount of writing in question and/or when the examination is conducted using reproductions of the questioned and/or specimen documents has lessened the level of 'practical certainty' thus raising the possibility of another writer being involved in the writing of the questioned signature/handwriting, albeit, very limited support for the occurrence of the alternative hypothesis for either an identification or elimination." ) 1. 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). 2. Ms Holt concluded at pars 13–15 of her second report: "The examination of the original signatures on the questioned document has allowed for a higher level of conclusion to be expressed in relation to the questioned signatures … I am now of the opinion that there is very strong support for the alternative hypothesis i.e., that someone else, other than the writer of the Catherine Amos specimen signatures … wrote the questioned signatures on [the Deed of Debt], compared to the first hypothesis that Ms Amos wrote the signatures on [the Deed of Debt] in such a way as to disguise her signature or it was accidental. The above conclusion is a Level 2 conclusion where the observed differences noted between the questioned and specimen writing very strongly point towards the nominated signature being written by someone other [than] the writer of the specimen signatures within the limits of 'practical certainty'." (emphasis omitted) 1. 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. 2. 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. 3. 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. 4. In both her written reports, and in her oral evidence, Ms Holt confirmed well-known scientific principles that: 1. no single writer signs exactly the same way each and every time she, or he, signs a document; 2. some range of variation in signature is expected in everyone's signature, the extent of which is dependent upon a number of factors, including, where relevant, illness, inebriation or being under the influence of drugs; 3. signing is an acquired skill that becomes ingrained; it is habitual and individualised; 4. alcohol, illness, drugs can impact on the way an individual signs her, or his, signature; and 5. no two people sign exactly alike. 1. 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): "… I think what was put to you was that the defendant was particularly unwell. So to complete the three alternatives given, if in fact she had been particularly unwell at the relevant time of signing, would that affect any of your conclusions? A. No, it wouldn't. Because again, when, when people, you know, are potentially sick or they're under the influence of something, it doesn't change their core habits. And that's what I'm seeing here. So what I might expect in a signature of someone not being particularly well is, it might be a little bit frailer. But I'm not expecting it to not look like her signature." 1. She explained, in answer to further questions from the Plaintiff (Tcpt, 2 September 2020, p 246(05–41): "Q. Are you saying that if somebody is unwell that it could not change the manner in which they signed? A. What I'm saying is, signatures are motor habits. They're habits that we form. And what I'm seeing here are not similar motor habits. So no, I wouldn't expect that if a person was ill. … Q. I suggest to you that under no circumstances in your expertise you can say that illness would not change the manner in which a person signs their signature? A. The core motor habits will remain the same. So when you're talking about the example if you had a shake, your signature would still follow your core motor habits, but there would be a lot of tremor in the signature. Q. But they don't dispute that this actually can change a signature? A. So as I was saying before, it might have poor line quality, it might have something else, but your core motor habits will still say the same." 1. 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). 2. 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. 3. 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): "Q. Were you informed at any time either at or before the time you wrote each of your reports that there was evidence from two people who say they were present when the defendant actually signed the document? A. No. Q. Would that information, if known to you, cause you to do anything differently or, well, firstly, cause you to do anything differently? A. No, it wouldn't because, again - no, I mean I would not consider that - I would consider that potentially advising information, because what I want to do is I just want to look at the signature and what does the evidence more support. So - and I, I don't know if that's a believable story either so I think I've got to discount things like that and not be influenced by that and look purely at what the signatures and the evidence is saying. Q. Could I ask you this then? If one were to accept that two people actually observed the defendant sign the original deed of debt, is there any way of explaining your observations set out in paragraphs 14 of your first affidavit, which were confirmed in paragraph 5 of your second affidavit? A. Yeah, as I was saying, the signature just doesn't fit with Ms Amos changing her signature, because as, as I was saying it would mean that she would have to disregard so many of her ingrained motor habits, firstly, and then, secondly, introduce signs of forgery, which - or signs of simulation, which I think would be very, very difficult to do and then repeat that. So-- Q. And why repeat it? A. Well, she signed it six times I think, didn't she? So, you know, to, to then each instance of signing remember what she changed, remember to fight against all her very subtle signature movements and then at the same time introduce signs that a document examiner, if it was to go to that point, knows what a simulated signature will usually contain, so, again, as I say I mean whilst not impossible, I think it would be very, very difficult to, to pull all those steps off. Q. Do I take it from that answer that the signatures that you observed on the original deed of debt as the defendant's is inexplicable if I accept that not one but two people actually observed her sign the original deed of debt? A. I don't know if it would go that it was inexplicable. It - it's just certainly what I would not expect from a disguised signature. It would - you know, it - it'd be quite a - I, I think it's - in my personal opinion it would be a very hard task to pull off, so(as said). Q. Are the elements in paragraph 14 and the elements in paragraph 5 taken together, they are more consistent as I understand your evidence, with a simulated signature than a disguised signature? A. That - yes-- Q. Is that so? A. --that's correct." 1. 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". 2. 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. 3. 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. 4. 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. 5. 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. 6. 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). Alleged return of the jewellery 1. At some point whilst the group was in Melbourne, the Defendant asserted that she had a conversation with Ms Ong to the following effect: "Defendant: Madam Ong, when are you going to settle your account with me? Ms Ong: Why don't we swap some of the jewellery for the Tasmanian properties? Defendant: I don't need jewellery; I need money to pay for the loans I had to take to pay for the properties and all the other expenses. I want to be repaid for all of my account. You must do so before you leave Australia." 1. 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). 2. 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. 3. 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). 4. 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)): "Q. Look at all your handwriting and explain to the honourable judge whereabout you say you wrote anything about jewellery, returning jewellery in that document? A. Yeah, all I know this one was written on 21 June 2018. I was only asked the - you know, recollection of the itinerary, and I went back to all of my documents that I can pull out, and this was written before and prior of Mrs Ong coming to Australia." 1. 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). 2. 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. 3. 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. 4. 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). 5. 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. 6. 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). 7. 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). Expenses of the Australian Trip 1. 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. 2. 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. 3. 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. 4. 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. 5. 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: "Every time I saw a bill being paid, it was [the Defendant] who was paying …" 1. Mr Santiago, in his evidence, deposed to specific instances where the Defendant had paid for expenses: 1. On 13 May 2017, the Defendant used her credit card to pay for the group's dinner; 2. On 13 May 2017, the Defendant used Mr Elias' credit card to pay for dinnerware for Ms Ong, Ms Christina Ong and Ms Austria; 3. On 14 May 2017, the Defendant used her credit card details (in place of Mr Santiago's) to settle the account at the hotel in which the group was staying. This was done, it was said, to ensure a clear chain of expenditure; 4. On 14 May 2017, the Defendant paid for lunch; 5. On 18 May 2017, the Defendant paid for dinner at the Salamanca Market in Hobart; 6. On 20 May 2017, the Defendant paid for silverware purchased by Ms Ong upon the promise that she would be reimbursed; 7. On 20 May 2017, the Defendant paid for the van rentals in Hobart and Melbourne; and 8. On 21 May 2017, the Defendant paid for dinner. 1. 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. 2. 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: "As soon as [Ms Ong] gets inside the van, she was already angry and swore at [the Defendant] and said, 'It is still too early!' and said to [the Defendant] 'Why can't you wait to get paid?'. [Ms Ong] angrily said 'We don't want to go back to [the Defendant's] house and we will just stay at any hotel for the night.'" 1. 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). 2. Neither Mr Mepani nor Mr Santiago was cross-examined on his evidence, respectively, in relation to the expenses. 3. 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. 4. 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) 5. 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). 6. 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). 7. 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. 8. 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. 9. 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. 10. 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). 11. 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). 12. 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). 13. 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). 14. 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). 15. 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). The Witnesses 1. 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. 2. 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. 3. 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. 4. (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.) 5. 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)): "Q. I take no joy in asking this question, but are you the solicitor who, in fact, drafted this document? A. No. Q. Did you arrange the document to be signed by Ms Ong and Ms Gonzales? A. No. Q. Did you arrange for the document to be signed by Mr Capili? A. No." 1. 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. 2. 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). 3. 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)): "Q. You would do anything to get that caveat off, correct? A. It doesn't matter, because the caveat is on Cathy's share. It's not on, not on my share. Q. But you want the caveat off? A. That's for Cathy's share. As I, as I said, I'm only going to protect her as far as it's right." 1. 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. 2. Of course, the Defendant has a strong motive for denying that she signed the Deed of Debt. Submissions 1. 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. 2. The crux of the Plaintiff's submissions can be found in par 10 of his written submissions: "The defendant received payment in full in the amount of $305,334.00, for the purchase of one lot of land in Tasmanian [sic] in the assignor's name and to construct residential building in the assignor's name, but the defendant failed to do so. After the assignor demanded payment, the defendant willingly entered a Deed of Debt assuring the assignor that she will pay the debt, but the defendant failed." 1. 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: "This argument cannot be sustained on the defendant's arguments. The plaintiff took on a valid assignment of a debt that is existing in equity and common law. The debt is also guaranteed by an equitable instrument. There is no evidence to argue that, by the terms of the Assignment, the plaintiff falls foul of the law of champerty." (citations omitted) 1. On a proper characterisation, the Plaintiff submitted, the assignments effected an assignment of a right to property. He submitted: "The right to property is an exceptional right which does not under any circumstances amount to a "bare right". For one example: the 'Deed of Debt' created an equitable right for the assignor in the defendant's real property of the subject. The debt, before assigned, were the properties of the assignor and the written and oral contract were for real property. The integral of the assignor's agreement with the defendant is for real estate. An assignment to property's right is the traditional exception under the law of assignment. It follows that, there is no need for the plaintiff to refer to numerous authorities when the court is fully aware of the 'traditional exception'." 1. 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. 2. 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. 3. Secondly, the Plaintiff took issue with a conclusion of forgery being drawn from handwriting evidence alone. He submitted: "However, a forensic expert opinion as to whether any questioned signature is a "forgery" at LAW, requires an assessment of the writer's intention, such as the proof of an intention to defraud/ deceive as opposed to another intention." (emphasis in original) 1. 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. 2. 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]: "The handwriting expert evidence forms one part of the body of evidence, both oral and documentary, upon which I must base my findings of fact. It would be erroneous to treat the expert evidence as being, in some way, decisive on its own in a case such as this: Gawne v Gawne (1979) 2 NSWLR 449 at 453A-B, 455-456. In Gawne v Gawne, Glass JA (Reynolds JA agreeing) said at 453A-B: 'I am satisfied that his Honour fell into error in his evaluation of the evidence before him. In conceding a dominant role to the expert testimony, he misapprehended the weight of the remaining evidence which, in a cogent way, established the probability that the signatures were genuine, and the improbability and they had been forged. If the opinion evidence of the handwriting experts were put to one side, the whole of the lay evidence made out a strong circumstantial case that the documents of the 9th August, 1968, had in fact been executed by F.C. Gawne.'" 1. 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). 2. 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). 3. 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. 4. 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. 5. 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. 6. 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). 7. 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). 8. 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). 9. 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: "If the court is satisfied that the defendant did not have any participation in the Deed, then the Court is to decide the plaintiff's case away from the Deed, based on the evidence, as to whether the defendant in fact paid for the jewelleries or returned the jewelleries as the defendant claimed." 1. 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. 2. 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.) 3. 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.) 4. 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). 5. 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. 6. 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: "The Defendants also rely upon the decisions in Krishell Pty Ltd v Nilant [2006] WASCA 223; (2006) 32 WAR 540 and MG Corrosion Consultants Pty Ltd v Gilmour [2012] FCA 383; (2012) 202 FCR 354 as reflecting the correct position that such claims are not assignable. In Krishell Pty Ltd above at [73], McLure JA observed that a liquidator's power to sell or assign was confined to 'property' as defined in the Corporations Act; noted that that definition included 'things in action', which her Honour took to mean choses in action; noted that a chose in action is a personal right of property which can only be claimed or enforced by action, including rights enforceable by action; but observed that 'a purely personal right is not a chose in action because it is not property'. The approach adopted in Krishell was referred to in MG Corrosion Consultants Pty Ltd above at [11]-[13] and [19]-[23], where Barker J held that a derivative action by a company against one of its directors, including a claim for breach of fiduciary duty, was not a claim in relation to the company's property for the purposes of s 440D of the Corporations Act, and expressed doubt (at [17]) as to whether the cause of action was property capable of assignment." 1. 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. 2. 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). 3. 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). 4. 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. 5. 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. 6. 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: "In consideration of the Creditor agreeing to advance monies and handing in of valuable jewelleries namely 6.17 carat Diamond Earrings, Chopard luxury Ladies watch, Illusion Bracelet, Rositas earring, Green Stone (Emerald) necklace and earring set, Black diamond earring, Illusion set necklace, bracelet and pendant, and Diamond necklace with round diamond pendant, the Debtor agrees and acknowledges that as collateral security, her place of residence including any properties that she owns and any assets either real property or cash." 1. He also submitted that Clause 3 was, in some respects, inconsistent with the recitals in the Deed of Debt. 2. In view of those factors, he submitted that the Deed of Debt did not, on a proper construction, create any security interest. 3. Additionally, he submitted par 47 of his written submissions: "Furthermore, upon consideration of the terms of the document, it is submitted that the title 'Deed of Debt' mischaracterises the nature of the interest the document creates (if any). There is no debt; at its highest, there is a bare right to sue that has accrued to Ms Ong (should her version of events be correct). This, for the aforementioned reason, is germane when considering whether any interest created by the document (assuming that it be enforceable and executed by the Defendant; both of these propositions are denied) is assignable at law or in equity." 1. 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: "The Creditor came to realise that the arrangement was taking a different direction and not as she was told by the Debtor. As a result, the Creditor requested her monies namely; - The $40,000 at paragraph (B)(i). - The proceeds from the sale of the items at paragraph (B)(ii)." 1. 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). 2. 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). 3. 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. 4. 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. 5. 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. 6. 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: "The general principle at common law has been that there can be no assignment of a mere cause of action in tort. This has also been held to apply in equity as well: Prosser v Edmonds (1835) 1 Y & C Ex 481; 160 ER 196; Defries v Milne [1913] 1 Ch 98; Glegg v Bromley [1912] 3 KB 474. This did not prevent an assignment of a right to property which carried with it a right of action for damages: First City Corporation Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710 (there was an appeal on other grounds:Downsview Nominees Ltd v First City Corporation Ltd [1993] AC 295); Re Daley; Ex parte National Australia Bank Ltd (1992) 37 FCR 390. Nor did it restrict an assignment of the rights to the proceeds from a judgment in proceedings: see Glegg v Bromley." 1. 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). 2. 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: "… it is today true to say that in English law an assignee who can show that he has a genuine commercial interest in the enforcement of the claim of another and to that extent takes an assignment of that claim to himself is entitled to enforce that assignment unless by the terms of that assignment he falls foul of our law of champerty, which, as has often been said, is a branch of our law of maintenance. … If the assignment is of a property right or interest and the cause of action is ancillary to that right or interest, or if the assignee had a genuine commercial interest in taking the assignment and in enforcing it for his own benefit, I see no reason why the assignment should be struck down as an assignment of a bare cause of action or as savouring or maintenance." 1. 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. 2. 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). 3. 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)): "That is, if the position is, and I submit that this is in the case of both Mr Baena and Mr Miles, their interest in the subject matter of the proceedings was only created upon payment of those funds, which occurred after the event, that is, after the conversion. In short, one can't buy into the assignment earlier, if that makes sense. I said that infelicitously, but I hope the point is not lost." 1. 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). 2. Nevertheless, he also submitted that the absence of adequate evidence going to the value of the jewellery was fatal to the Plaintiff's claim. Determination of the Plaintiff's claim 1. 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. 2. 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: 1. Who gave the instructions for the preparation of the Deed of Debt? 2. When were the instructions given for the Deed of Debt? 3. By whom was the Deed of Debt prepared? If, as is asserted, it was prepared by a lawyer, why would the parties to the Deed of Debt not give instructions to a lawyer jointly? 4. Why did an Australian lawyer, if acting upon instructions from the Defendant, include in the Deed of Debt so many admissions that appeared to benefit Ms Ong, the creditor, rather than the Defendant, the debtor? 5. Why would an English-speaking Australian lawyer use the word "jewelleries" in the Deed of Debt, rather than "jewellery" to describe the items said to have been given to the Defendant? 6. How did the author of the Deed of Debt know, when he, or she, prepared it, who was going to be present when the Deed was to be signed? 7. How did the name Sabas Capili come to be inserted in the Deed of Debt when Ms Ong, Ms Gonzales, and the Defendant each professed not to know a person of that name? 8. Why was evidence given that the Defendant was wearing "a pinky [sic] lady's fashionable hand glove" when she was said to have signed the Deed of Debt? Was the plan so cleverly devised, that the evidence relied upon by the Plaintiff, included that evidence, or was that evidence included after it became apparent that the Defendant's fingerprints would not likely be found if forensic examination of the document occurred? 9. Alternatively, was the Defendant so forward thinking in her planning, that at the time she signed the Deed of Debt, she wore "a pinky [sic] lady's fashionable hand glove" so that if the Deed of Debt were forensically examined for fingerprints, hers would not appear on it? 10. Was it merely a coincidence that, apart from Ms Ong, Ms Gonzales and the Defendant, the only other person said to have signed the Deed of Debt bore the name of a person known to Mr Baena, but not known to them? 11. If not a coincidence, what role, if any, did Mr Baena play in the creation of the document? Then, why would he, as a solicitor, be prepared to participate in a fraudulent scheme when it appeared that he had received, from the Plaintiff, consideration that was greater than the amount he had paid to Ms Ong? 12. Then, if the Defendant did not sign the Deed of Debt, is the only plausible explanation for her evidence, that Ms Ong and Ms Gonzales, with, or without, Mr Baena, were acting, in collusion, to assert that she had done so, and that one, or both, had caused the document, with simulated signatures, to be prepared? If so, why would each be prepared to maintain false evidence, in circumstances where Ms Ong had already received the payment of $50,000, more than two years prior to the hearing, and where Ms Gonzales, who is the blood sister of the Defendant, had no apparent financial interest in the outcome of the case? 13. If the Defendant did sign the Deed of Debt, is the only plausible explanation for the evidence called by her, that she, and each of the witnesses who gave evidence on her behalf, were acting, in collusion, to assert, under oath, the evidence each gave as to the events of 22 May 2017? If so, why would each of the independent witnesses called by the Defendant be prepared to give false evidence that one, or both, had remained with the Defendant throughout the day on 22 May 2017, when neither had any apparent financial interest in the outcome of the proceedings and when it had not been suggested to either of them that he was simply wrong about the date of the attendance at DFO South Wharf? 14. Is there a basis for rejecting the evidence of Ms Holt that the Defendant's various signatures on the Deed of Debt appear to be simulated signatures, in circumstances where the Plaintiff called no expert evidence to rebut the proposition and where the questions posed above have not been answered? Ms Holt's evidence certainly gives support for a finding that the disputed signatures were simulated and were not the signatures of the Defendant. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. (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.) 10. 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". 11. I have already expressed my conclusions regarding the Deed of Rectification. 12. In the circumstances, the Plaintiff's case should be dismissed with costs. Other bases of the claim and the defences 1. I shall next deal with the other bases of the Plaintiff's claim even though it is strictly not necessary to do so. 2. Before turning to that, I should make some additional findings of fact. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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). 8. 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). 9. The Defendant does not admit the receipt of the 6.17 carat diamond earrings, the Illusion necklace and earrings, or the black diamond earrings. 10. 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. 11. 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. 12. 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. 13. 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). 14. 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. 15. 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). 16. Mr Santiago gave no evidence about the return of any jewellery. 17. 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. 18. 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. 19. In this regard, I accept the evidence of Mr Mepani in preference to Ms Ong and Ms Gonzales. 20. 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. 21. 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. 22. I turn next to the value of the jewellery. 23. 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. 24. 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. 25. 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. 26. 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". 27. 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. 28. 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. 29. 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). 30. 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. 31. 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. 32. 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. 33. (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.) 34. 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). 35. First, I should refer to s 12 of the Conveyancing Act, which, relevantly, permits the legal assignment of a debt. The section provides: Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor … 1. 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: "... alters the effect of the statute and the earlier decisions of the Court of Appeal. An assignment of a debt is not invalid even if the necessity for litigation to recover it is contemplated. Provided that there is a bona fide debt, it does not become unassignable merely because the debtor chooses to dispute it. Suing on an assigned debt is not contrary to public policy even if the assignor retains an interest. What is contrary to public policy and ineffective is an agreement which has maintenance or champerty as its object; such a consequence will not be avoided by dressing up a transaction which has that character and intent as an assignment of a debt. But, because the assignment of a debt itself includes no element of maintenance and is sanctioned by statute, any objectionable element alleged to invalidate the assignment has to be proved independently and distinctly in the same way as any other alleged illegality has to be proved in relation to a contract which is on its face valid." 1. Peter Gibson LJ agreed with Hobhouse LJ adding, at 40: "But it is not in dispute that as a matter of public policy assignments of bare rights to litigate are invalid, and, if coupled with an agreement to share the proceeds of the litigation with the assignor, will be struck down as champertous. Stirling LJ summarised the crucial distinction in a sentence in Dawson v Great Northern and City Railway Co [1905] 1 KB 260, 271: 'An assignment of a mere right of litigation is bad: Prosser v Edmonds (1835) 1 Y & C Ex 481; but an assignment of property is valid, even although that property may be incapable of being recovered without litigation: see Dickinson v Burrell LR 1 Eq 337.' I do not read any of the trio of cases on which the defendant relied, In re Trepca Mines Ltd (No 2) [1963] Ch 199; Laurent v Sale & Co [1963] 1 WLR 829; and Trendtex Trading Corporation v Credit Suisse [1982] AC 679, as undermining, still less abrogating, that well recognised distinction. In Laurent v Sale & Co [1963] 1 WLR 829, on the very special facts of that case, which include the clear contemplation of the parties that the assignment was for the purpose of the assignee in enforcing 'supposed rights' by litigating a bona fide dispute as to liability, Megaw J felt able to infer a champertous intention. He plainly thought the transaction was colourable. In the present case the debt is not disputed, the particular difficulties of the defendant in paying all or any of its creditors being irrelevant to the question whether there is a bona fide dispute as to liability. In my judgment Mr Howard was right to submit that there is no basis in authority or principle for denying the validity of the assignment. It is a normal, and for many in business an essential, incident of modern commercial life that debts are bought and sold, and it would be highly unfortunate if such everyday transactions were to be held to be impugnable as champertous, save in wholly exceptional circumstances not present here." 1. 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: "In 1873 the courts of common law and the courts of equity were merged. A new form of statutory assignment was introduced by section 25(6) of the Supreme Court of Judicature Act 1873. It then became possible to make an absolute assignment in writing of any debt or legal chose in action. The importance of this change in the law was recognised in a series of cases in the Court of Appeal including Comfort v Betts [1891] 1 QB 737 and Fitzroy v Cave [1905] 2 KB 364. In the latter case Cozens-Hardy LJ put the new position clearly, at p 373: 'Henceforth in all courts a debt must be regarded as a piece of property capable of legal assignment in the same sense as a bale of goods.' The fact that it may be necessary for the assignee to bring an action to recover the debt does not vitiate the assignment on the grounds of maintenance." 1. 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. 2. 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: "The object of the requirement made by the words 'of which express notice in writing shall have been given' is, we think, correctly stated in Warren's Choses in Action (1899), at pp 177, 178. 'The term "express notice" is doubtless employed by way of opposition to notice arising by implication or operation of law, and to what was known in equity as constructive notice. It means a notice which indicates an express intention—a direct and definite statement of a thing, as distinguished from supplying materials from which the existence of such a thing may be inferred.' The purpose is to make essential actual notice that the debt has been assigned. 'One of the objects of the giving of notice to the debtor is that he shall "know with certainty" in whom the legal right to sue him is vested' (McIntosh v Shashoua …). The purpose does not extend to giving the debtor particulars of the assignment. The assignment must be by writing, but, if it is in writing, then notice to the debtor is necessary only to acquaint him with the fact that the debt is payable to the assignee and the statute requires that he shall be expressly notified. But, neither in its exact terms, nor according to its general intent, does the provision appear to make it essential that the notice should contain an express statement that the assignment is a written one." (citations omitted) 1. 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. 2. 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). 3. 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). 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). 5. 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: "It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted." 1. Merely asserting that the notice was not received is not sufficient to rebut the presumption. 2. 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. 3. 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: "It is important not to confuse the nature of an assignment, with the consequence of giving notice of the assignment to the debtor or obligor. An assignment is an immediate disposition of a legal or equitable right, title or interest. Its efficacy depends on, first, the ascertainment of the fact that there has been a disposition of that right, title or interest and, secondly, the formalities under s 12 of the Conveyancing Act or in equity which must be satisfied to effect such a disposition. Different rules apply to differing types of property and to voluntary assignments, as opposed to assignments made for value." 1. 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". 2. In relation to an equitable assignment, his Honour added at [172]–[173]: "An equitable assignment is complete upon the expression by the assignor of an intention to make over to the assignee then and there the assignor's equitable interest in the property or right concerned. It is not necessary to give notice of the assignment to the obligor in order to perfect the disposition in equity of the property or right under the dealing between the assignor and assignee. Notice, however, is important at a practical level, because until notice is given first, the obligor can pay the assignor and obtain a good discharge and, secondly, the assignee may lose, or be postponed in its priority. Notice will bind the obligor: Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614 at 622 per Dixon J; Norman v Federal Commissioner of Taxation (1963) 109 CLR 9 at 26 per Windeyer J; see too Thomas v National Australia Bank Ltd [2000] 2 Qd R 448 at 453 [18] per Pincus JA. In an equitable assignment, the assignee takes no better title than his assignor had and takes subject to all equitable interests and defects affecting the assignor's title: Southern British National Trust Ltd (in liq) v Pither (1937) 57 CLR 89 at 105 per Rich J. No debtor or obligor can relieve himself of the debt or obligation owed to another by making an agreement with a third party. Liabilities to pay debts and obligations are not assignable: Federal Commissioner of Taxation v Orica Ltd (1998) 194 CLR 500 at 513 [19] per Brennan CJ and see at 530 [67] and [68] per Gaudron, McHugh, Kirby and Hayne JJ." 1. 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. 2. 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. 3. 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. 4. 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). 5. 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: "My Lords, I am afraid that, with respect, I cannot agree with the learned Master of the Rolls [1980] QB 629, 657 when he said in the instant case that 'The old saying that you cannot assign a 'bare right to litigate' is gone.' I venture to think that that still remains a fundamental principle of our law. But it is today true to say that in English law an assignee who can show that he has a genuine commercial interest in the enforcement of the claim of another and to that extent takes an assignment of that claim to himself is entitled to enforce that assignment unless by the terms of that assignment he falls foul of our law of champerty, which, as has often been said, is a branch of our law of maintenance. … The court should look at the totality of the transaction. If the assignment is of a property right or interest and the cause of action is ancillary to that right or interest, or if the assignee had a genuine commercial interest in taking the assignment and in enforcing it for his own benefit, I see no reason why the assignment should be struck down as an assignment of a bare cause of action or as savouring of maintenance." 1. The assignment to the third party in that case was another matter (at 703–704): "Though your Lordships do not have the agreement between Credit Suisse and the anonymous third party, it seems to me obvious, as already stated, that the purpose of article 1 of the agreement of January, 4, 1978, was to enable the claim against CBN to be sold on to the anonymous third party for that anonymous third party to obtain what profit he could from it, apart from paying to Credit Suisse the purchase price of US $1,100,000. In other words, the 'spoils' whatever they might be, to be got from CBN were in effect being divided, the first US $1,100,000 going to Credit Suisse and the balance, whatever it might ultimately prove to be, to the anonymous third party. Such an agreement, in my opinion, offends for it was a step towards the sale of a bare cause of action to a third party who had no genuine interest in the claim in return for a division of the spoils, Credit Suisse taking the fixed amount for which I have already mentioned." 1. Lord Wilberforce (the rest of the House of Lords agreeing), at 694, framed the test slightly differently: "If no party had been involved in the agreement of January 4, 1978, but Trendtex and Credit Suisse, I think that it would have been difficult to contend that the agreement, even if it involved (as I think it did) an assignment of Trendtex's residual interest in the CBN case, offended against the law of maintenance or champerty. As I have already shown, Credit Suisse had a genuine and substantial interest in the success of the CBN litigation ... The vice, if any, of the agreement lies in the introduction of the third party. ... This manifestly involved the possibility, and indeed the likelihood, of a profit being made, either by the third party or possibly also by Credit Suisse, out of the cause of action. In my opinion this manifestly 'savours of champerty,' since it involves trafficking in litigation—a type of transaction which, under English law, is contrary to public policy." 1. 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 general acceptance of this sidesteps much of the traditional law. For now all choses in action arising out of a contract are seen as proprietary and hence assignable, and the same is true of many, perhaps most, causes of action in tort." 1. 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. 2. 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: "But the cases do point to some clear criteria. As between the funder and the party funded, there is 'trafficking' in causes of action where they are assigned by the latter to the former in circumstances where there is neither any transfer of any property interest to which the causes of action are ancillary nor any genuine commercial interest which the funder has in taking the assignment of the causes of action and enforcing them for the funder's own benefit. Although the term 'genuine commercial interest' calls for further definition, in this sense to traffic in litigation is to attempt an invalid assignment of a bare cause of action, or to enter a champertous agreement." (citations omitted) 1. 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. 2. 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: "It is not without some irony that the incremental evolution and development of the common law is well illustrated by the relaxation of the once absolute prohibition on the assignment of bare causes of action. This liberalisation of the common law's approach was noted by Lord Roskill in his leading decision in Trendtex itself (see at 702-703). There his Lordship noted, by reference to Scrutton LJ's decision in Ellis v Torrington [1920] 1 KB 399, that the assignment of a cause of action which was 'incidental' to the acquisition of a property right by assignment was valid. His Lordship observed that, on his reading of the cases, it was 'not necessary for the assignee always to show a property right to support his assignment'. Whilst Lord Roskill was not prepared to go as far as the Master of the Rolls in the Court of Appeal and declare that '[t]he old saying that you cannot assign a "bare right to litigate" is gone', he did say, in a passage that was quoted by the plurality in Equuscorp at [51] that: '... it is today true to say that in English law an assignee who can show that he has a genuine commercial interest in the enforcement of the claim of another and to that extent takes an assignment of that claim to himself is entitled to enforce that assignment unless by the terms of that assignment he falls foul of our law of champerty, which, as has often been said, is a branch of our law of maintenance.' (Emphasis added) Equuscorp's embrace of Trendtex can also be seen as representing a significant development of the common law of Australia in light of the High Court's earlier decision in Poulton v The Commonwealth (1953) 89 CLR 540 at 602; [1953] HCA 101. Another highly relevant example of the evolution of the law for present purposes relates to the changing attitudes to maintenance and champerty, surveyed by Gummow, Hayne and Crennan JJ in Campbells Cash & Carry Pty Ltd v Fostif Pty Limited (2006) 229 CLR 386; [2006] HCA 41 at [66]-[82] (Campbells Cash & Carry). The relevance of this for present purposes is considered further at [50]-[51] and [70]-[71] below." 1. At [72], Bell P also noted: "In this context, I would add that the concept of a 'genuine commercial interest' as found in authorities following Trendtex is a mixed question of fact and law … '[and] will depend upon the facts and circumstances of each case'…" 1. 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 …". 2. In National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514, Lindgren J, at 540, wrote: "… the genuine commercial interest referred to in Trendtex is not a nebulous notion of the general commercial advantage of the assignee but something more specific and limited. In particular, it does not embrace an interest arising from an arrangement voluntarily entered into by the assignee of which the impugned assignment is an essential part, like the arrangement in the present case. Rather, the expression refers to a commercial interest which exists already or by reason of other matters, and which receives ancillary support from the assignment." 1. 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". 2. 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. 3. 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]: "In summary, for an assignee to be able to rely lawfully upon an assignment of a cause of action, the assignee must have an interest that is pre-existing at the time of the assignment, which interest represents something more than an interest that would be held by a person who is an 'intermeddler' with the disputes of others. Save for looking at decided cases which provide illustrations of genuine commercial interests or otherwise, it is not possible to positively and definitively state the interest necessary to establish a genuine commercial interest. Each case must be considered on its particular facts to ascertain whether the interest alleged is a genuine commercial interest." 1. 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]: "… the interest must exist independently of the impugned assignment and must be more than an insubstantial and tenuous interest. It must be 'rights-based' and not a 'mere hope'. That is to say, there must be something beyond a mere personal interest in profiting from the outcome of the proceedings. Rather, there must be an interest by the assignee in the assignor or its business affairs or activities that the assignment may in some way protect." (citations omitted) 1. 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. 2. The Plaintiff did not address the issue. 3. 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. 4. 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. 5. It follows that on this basis, also, the Plaintiff does not succeed. 6. Finally, there remains for consideration any claim in debt said to have been assigned separately from the Deed of Debt. 7. 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: "An assignment of a debt is not invalid even if the necessity for litigation to recover it is contemplated. Provided that there is a bona fide debt, it does not become unassignable merely because the debtor chooses to dispute it." 1. 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". 2. 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. 3. 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. 4. 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. 5. 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". 6. 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. 7. The Plaintiff does not succeed on this basis either. 8. 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. 9. 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. 10. The third amended Statement of Claim should be dismissed with costs. 11. The Court: 1. Orders that the third amended Statement of Claim be dismissed with costs. 2. Orders that the caveat lodged by the Plaintiff on the title to XX Callistemon Street, Mount Annan, NSW be removed within seven days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 February 2021