New South Wales Court of Appeal: May 2021

EVIDENCE 

Standard of proof – balance of probabilities – appellant alleged signature on transfer form forged – whether necessary to establish ‘clear and cogent proof’ of the fraud – application of Briginshaw v Briginshaw – Evidence Act 1995 (NSW), s 140

Musa v Alzreaiawi [2021] NSWCA 12

Background facts: The appellant, Mr Adam Musa, is the former husband of the respondent, Ms Bushra Alzreaiawi. Mr Musa and Ms Alzreaiawi separated in 1998. A property in Smithfield was purchased as joint tenants in 1999 to provide a home for their three children. Mr Musa resided in a ‘granny flat’ at the property from 2000 to 2009 before moving to Canberra in 2010. A transfer of the property to Ms Alzreaiawi was registered in June 2011. The property was sold by Ms Alzreaiawi in 2017. Mr Musa alleged that his signature on the transfer form purporting to transfer his interest in the property to Ms Alzreaiawi in October 2010 had been forged. Neither party called as a witness the attesting witness of the transfer form. The evidence of a handwriting expert was inconclusive. 

The primary judge dismissed Mr Musa’s claim, finding that he had not discharged the onus of proof that his signature on the transfer form was a forgery and that Ms Alzreaiawi was a party to that forgery. Mr Musa appealed. 

The issues: The principal issues on appeal were:

1. Whether the primary judge erred in finding that Mr Musa had not discharged the onus of proof that the registration of the transfer to Ms Alzreaiawi was a result of fraud to which she was a party; and 
2. Whether it was open to Mr Musa to raise a new point on appeal that the primary judge should have drawn a Jones v Dunkel inference against Ms Alzreaiawi for failing to call the attesting witness of the transfer form, that the missing witness would not have assisted Ms Alzreaiawi.

Decision: In dismissing the appeal, the Court commented upon the standard of proof required to establish the fraud exception to indefeasibility under the Real Property Act 1900 (NSW). 

It was not in dispute that the primary judge correctly held that s 140(2) of the Evidence Act 1995 applied to the proceedings, with the consequence that when determining whether her Honour was satisfied of Mr Musa’s case on the balance of probabilities, she was to take into account from a non-exhaustive list of matters:

1. the nature of the cause of action or defence, and
2. the nature of the subject-matter of the proceeding, and
3. the gravity of the matters alleged.