Adamson v Ede [2009] NSWCA 379 (26 November 2009)

Last Updated: 27 November 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Adamson v Ede [2009] NSWCA 379


FILE NUMBER(S):
40052/08; 40053/08

HEARING DATE(S):
11 May 2009

JUDGMENT DATE:
26 November 2009

PARTIES:
Christopher Michael Adamson (Appellant in 40052/08 & Applicant in 40053/08)
ACN 097 590 817 Pty Ltd as Trustee of the ACN Trust (Second Appellant in 40052/08)
Kenneth John Ede (Respondent in 40052/08 & 40053/08)


JUDGMENT OF:
Giles JA Hodgson JA Campbell JA

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
6285/03; 3712/06

LOWER COURT JUDICIAL OFFICER:
Windeyer J

LOWER COURT DATE OF DECISION:
14 December 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
ACN 097 590 817 Pty Ltd as Trustee of the ACN Trust v Ede; Adamson v Ede [2007] NSWSC 1384

COUNSEL:
In person (Appellant/Applicant)
J Horowitz, Solicitor (Respondent)

SOLICITORS:
In person (Appellant/Applicant)
Horowitz and Bilinsky (Respondent)

CATCHWORDS:
COURTS AND JUDGES – natural justice – procedural fairness – nature of natural justice in a judicial context – importance of judicial context when determining content of natural justice – nature of an opportunity to respond – whether natural justice requires a judge to warn a witness that adverse credit findings are proposed to be made against them – entitlement of trial judge to make findings about credibility – COURTS AND JUDGES – judicial duty – reasons for judgment – whether a trial judge ought to avoid making findings about credibility if the case can be resolved without making such findings – obligation of the judge to state the real reasons for judgment – EVIDENCE – admissibility and relevancy – decisions as to admissibility – obligation on party tendering evidence to demonstrate admissibility and relevancy – whether evidence which a party failed to demonstrate was admissible or relevant can be adduced on appeal – parties bound on appeal by manner in which the case below was conducted – CONTRACTS – onus of proof – whether plaintiff has the onus of proving the validity of a document sued upon when the validity is disputed by the defendant – COURTS AND JUDGES – judges – bias – apprehended bias – matters giving rise to a reasonable apprehension of bias in a fair-minded lay observer – COSTS – costs of interlocutory applications

LEGISLATION CITED:
Bankruptcy Act 1966 (Cth)
Contracts Review Act 1980
Family Law Act 1975 (Cth)
Real Property Act 1900
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CATEGORY:
Principal judgment

CASES CITED:
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
ACN 097 590 817 Pty Ltd as Trustee of the ACN Trust v Ede [2007] NSWSC 1384
ACN 097 590 817 Pty Ltd v Ede (NSWSC, Windeyer J, 18 October 2007, unreported)
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Amadio Pty Ltd v Henderson (1998) 81 FCR 149
Angaston and District Hospital v Thamm (1987) 47 SASR 177
Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297
Banque Commerciale SA, en liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Brott v The Queen [1992] HCA 5; (1992) 173 CLR 426
Browne v Dunn (1894) 6 R 67
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Capel v Child [1832] EngR 40; (1832) 2 Cr & J 558; 149 ER 235
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383
Coshott v Sakic (1998) 44 NSWLR 667
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Craig v Kanssen [1943] KB 256
Currie v Dempsey (1967) 69 SR (NSW) 116; [1967] 2 NSWR 532
Devries v Australian National Railways Commission (1993) 177 CLR 472
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Ex parte Fealey (1897) 18 NSWLR (L) 282
Ex parte Lucas (1910) 10 SR (NSW) 325
Ex parte Taylor; Re Butler (1924) 41 WN (NSW) 81
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45
Fothergill v Monarch Airlines Ltd [1980] UKHL 6; [1981] AC 251
Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
Government Insurance Office (NSW) v Foot (1990) 12 MVR 455
Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304
Habib v Director-General of Security [2009] FCAFC 48; (2009) 175 FCR 411
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
Holt v Protective Commissioner (1993) 31 NSWLR 227
J v Lieschke [1987] HCA 4; (1987) 162 CLR 447
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Jones v National Coal Board [1957] 2 QB 55
Kable v Director of Public Prosecutions for NSW [1996] HCA 24; (1996) 189 CLR 51
Kassem v Crossley [2000] NSWCA 276; (2000) 32 MVR 179
Lazarevic v State of Western Australia [2007] WASCA 156
Ledesma v Nobule [1999] NSWSC 928
Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455
Manly Council v Byrne [2004] NSWCA 123
Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518
MZWIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1636
Payless Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551
Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142
Piras v Egan [2008] NSWCA 59
Potts v Miller [1940] HCA 43; (1940) 64 CLR 282
R v Bryant (No 2) [1956] St R Qd 570
R v Martin (No 4) [2000] SASC 436; (2000) 78 SASR 140
Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88
Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298
Re Coldham; Ex parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; 168 ALR 407
Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
Thomas v Wan Den Yssel (1976) 14 SASR 205
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; 60 ALR 68
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431
Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65; 149 ALR 25
Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156

TEXTS CITED:
Daniell's Chancery Practice, 7th ed, (1901) Stevens and Sons
JD Heydon, Cross on Evidence, 7th Australian ed, (2004) LexisNexis Butterworths
Seton’s Judgments and Orders, 7th ed, (1912) Stevens and Sons

DECISION:
In proceedings 40052/08 - Appeal dismissed with costs.
In proceedings 40053/08 - Application for leave to appeal dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40052/08

CA 40053/08

SC 6285/03

SC 3712/06

GILES JA

HODGSON JA

CAMPBELL JA

26 NOVEMBER 2009

CHRISTOPHER MICHAEL ADAMSON & ANOR v KENNETH JOHN EDE

Judgment

1 GILES JA: I agree with Campbell JA.

2 HODGSON JA: I agree with Campbell JA.

3 CAMPBELL JA:

Nature of the Case

4 The Respondent, Mr Kenneth Ede, was at one time the registered proprietor, as joint tenant with his wife, Mrs Parmilla Ede, of a rural property located in Trapyard Road near Bulahdelah, and known as Lot 106. In 2001, as a result of the implementation of orders settling Family Court proceedings between himself and his wife, Mr Ede became the sole registered proprietor.

5 The First Appellant, Mr Christopher Adamson, is a solicitor who has at times acted for Mr Ede. The Second Appellant, ACN 097 590 817 Pty Ltd (“the Trustee”) is, and at all relevant times has been, the Trustee of a family trust for Mr Adamson’s family known as the ACN Trust. At all relevant times the Trustee has been effectively controlled by Mr Adamson.

6 The Trustee brought proceedings in the Equity Division of the Supreme Court of New South Wales against Mr Ede in which it claimed, in broad terms, entitlement to a two-thirds beneficial interest in Lot 106, and various orders consequential upon having that entitlement. It also sought an order that Mr Ede repay it certain loan monies which it claimed were outstanding pursuant to a Deed of Loan dated 31 July 2001.

7 Mr Ede at all times conceded that he had received a loan of $80,000 from the Trustee, and had an obligation to repay it.

8 Windeyer J decided the Trustee’s claims in December 2007: ACN 097 590 817 Pty Ltd as Trustee of the ACN Trust v Ede [2007] NSWSC 1384. His Honour held that the Trustee was entitled to a repayment of $80,000 plus interest that had accrued pursuant to the Deed of Loan, and thus entered judgment for the Trustee against Mr Ede for $129,460. All other claims that the Trustee made against Mr Ede were dismissed.

9 The proceedings before Windeyer J also involved the concurrent hearing of another claim that Mr Adamson personally had brought against Mr Ede, seeking the delivery up of a particular solicitor’s file relating to a matter in which Mr Adamson had once acted for Mr Ede, that Mr Adamson alleged Mr Ede had wrongfully obtained possession of, and other consequential orders arising from that alleged wrongful obtaining of possession. Windeyer J dismissed that claim, and no appeal is brought concerning it.

10 In the proceedings brought by the Trustee, Mr Ede brought a cross-claim, against both the Trustee and Mr Adamson personally, seeking a variety of relief. Windeyer J granted two of the remedies Mr Ede sought in that cross-claim. One was a declaration that a document in the form of a charge under the Real Property Act 1900, dated 31 July 2001 and purportedly given by Mr Ede over Lot 106 in favour of Mr Adamson, was void. The other was an order that two caveats, AA88405A and AB349413, that had been lodged by the Trustee and Mr Adamson respectively over Lot 106, be withdrawn. A variety of other claims that Mr Ede had made in the cross-claim were dismissed. Mr Ede does not appeal against the judge’s decision concerning dismissal of those claims.

11 While Mr Adamson is named as First Appellant in the Notice of Appeal, the orders which are sought in that Notice of Appeal are all ones in favour of the Trustee. They relate to three separate topics. The first is the claim of the Trustee to entitlement to a beneficial interest in Lot 106. The second is a claim that the Trustee is entitled to be paid a greater sum of money than that which the trial judge ordered, arising from a claim that the Trustee had lent to Mr Ede not only the $80,000 that was admitted, but also an additional sum of $16,164. The third claim, made in the alternative, is for a new trial.

12 The grounds of appeal raise the following issues:

(1) Whether the judge failed to accord the Trustee procedural fairness in the manner in which he conducted the proceedings, in particular – by not giving Mr Adamson an opportunity to be heard before making adverse and serious findings of credit against him, and

– by not giving Mr Adamson an opportunity to be heard before making certain findings of fact.

(2) Whether the judge erroneously rejected evidence tendered by the appellants, in particular in rejecting a file of Mr Adamson relating to a proposed plan of subdivision of Lot 106.

(3) Whether the judged erred by holding that an onus of proof rested on the appellants.

(4) Whether the judge displayed bias against the appellants.

(5) Whether the judge failed to give adequate reasons for rejecting the Trustee’s claim to repayment of an additional $16,164.

(6) Whether the judgment and findings appealed against were obtained by fraud of Mr Ede.

13 Mr Adamson has filed a Notice of Motion, seeking to have this Court receive further evidence that was not tendered before Windeyer J, or that was rejected by his Honour.

14 There is also an application for leave to appeal concerning an interlocutory injunction that Windeyer J granted before the hearing in the present case.

15 At the hearing of both the trial and the appeal, Mr Adamson appeared for himself and for the Trustee.

16 I have concluded that none of Mr Adamson’s contentions should succeed.

Factual Background

17 In 1994, Mr and Mrs Ede had long been separated, but not divorced. Mrs Ede was living in the house on Lot 106. Mr and Mrs Ede were being sued by Esanda for a debt alleged to have arisen from a failed business venture. Mr Adamson came to act for them in that litigation. The litigation was eventually settled on terms requiring money to be paid to Esanda. To raise the money to pay Esanda, Mr and Mrs Ede mortgaged Lot 106 to Searson & Shannon, solicitors.

18 Mr Ede and Mr Adamson executed a document dated 10 May 1995. At the time they were living together in a rented flat. The document included terms whereby Mr Adamson was retained to act as Mr Ede’s solicitor. The terms of the retainer were unusual. Mr Ede agreed to bear all out-of-pocket expenses of Mr Adamson acting on his behalf, including the cost of practicing certificates and library, accommodation, travelling, and office and clerical expenses, and also to pay a retainer of $50 net after tax per week. Mr Adamson was excused from liability of any kind, including for negligence.

19 On 10 September 1995, a further deed was entered between Mr and Mrs Ede and Mr Adamson. The judge said (at [9]) that it:

“... looks like an employment contract, but ... was probably a retainer agreement under which Adamson was to perform legal work for Mr and Mrs Ede for up to five hours per week for a retainer of $50 net of tax per week and thereafter at $10 per hour after tax for time spent over the five hours. This was the charge which was to apply other than in contentious matters, where the appropriate scale was to be charged instead. The deed included an extraordinary clause excluding any liability in Adamson for any act, omission, wrong advice, recklessness or negligence. There is no application in these proceedings to set it aside. It could, in any event, have been terminated by either side on notice.”

20 Mr Ede and Mr Adamson executed another document dated 4 October 1995. It contained a provision whereby, in return for Mr Adamson continuing to act for Mr Ede as his solicitor and in return for continuing to assist him in his business and financial affairs for the next 12 months, Mr Ede agreed to assign to Mr Adamson half of Mr Ede’s interest in Lot 106. There was a complex definition of what amounted to Mr Ede’s interest in the property, which in broad terms was the proceeds of sale of the property (whether it was sold as a whole or subdivided) minus the total of (a) the costs of sale or subdivision, (b) any mortgage debt, and (c) an amount of “up to the amount of $90,000” that was intended to be paid for the provision of a house for Mrs Ede. In the event that the amount so payable to Mr Adamson did not exceed $10,000, Mr Ede undertook a personal liability to make the amount up to $10,000. The deed provided that Mr Adamson had a caveatable interest in Lot 106. There was also a provision that if any provision of the deed was alleged by Mr Ede, or was held to be, void or unenforceable, Mr Adamson could elect to receive a payment of $100,000 as his fees for acting for Mr Ede. The deed provided for Mr Adamson to have a further caveatable interest in Lot 106, to secure payment of that $100,000. The deed stated that, “Pursuant to s 175 of the Legal Practitioner’s Act NSW [sic]”, the deed, “sets out the amount of costs and the billing arrangements for the legal services to be provided by Christopher Adamson to Kenneth J Ede for the next twelve months”.

21 Mr Adamson had become bankrupt on 22 December 1992, and was discharged from that bankruptcy on 22 December 1995. Thus, he was still an undischarged bankrupt at the time of entering, in particular, the deed of 4 October 1995. The judge held that, to the extent to which the deed of 4 October 1995 purported to confer a property interest on Mr Adamson, that property was after-acquired property, within the meaning of section 58(1)(b) Bankruptcy Act 1966 (Cth), and thus was divisible amongst Mr Adamson’s creditors. There is no ground of appeal challenging that finding.

22 On 10 September 1998, Mr Adamson signed the statutory declaration supporting a caveat that was subsequently registered as caveat number 5388466F. By that caveat, Mr Adamson claimed an interest in Lot 106, stated to be as “beneficial and equitable proprietor of one half share” pursuant to a deed dated 10 September 1995 between Mr and Mrs Ede and Mr Adamson. The address of Mr and Mrs Ede on that caveat was stated to be care of the firm of solicitors that Mr Adamson then operated. The caveat was endorsed with a consent of the registered proprietor, that was executed by Mr Adamson in a manner that was stated on the face of the document to be “under Power of Attorney 5.10.95.”

23 The judge found that there was no evidence of any deed dated 10 September 1995 apart from the retainer agreement earlier mentioned, and that that retainer agreement gave no interest in the property. The judge found that there was no power of attorney dated 5 October 1995 in favour of Mr Adamson. There were, however, general powers of attorney from Mr and Mrs Ede to Mr Adamson bearing dates in January 1996.

24 I would interpolate that the caveat could not have been based on the deed of 4 October 1995 (even if that deed had been effective), because Mrs Ede was not party to that deed, and the interest purportedly given to Mr Adamson by it was not a half interest.

25 On 18 July 2001, Mr and Mrs Ede filed an application in the Local Court at Forster, seeking orders for property settlement under the Family Law Act 1975 (Cth). On the same day they executed Terms of Settlement of those proceedings that recorded that Lot 106:

“... is presently the subject of a first mortgage registered to Searson & Shannon Solicitors (ITF Simmonds and & [sic] Denson) to secure a loan in the sum of $80,000.00 and an equitable charge in favour of C.M. Adamson for legal costs and outlays.”

26 In essence, the Terms of Settlement provided that Mr Ede would procure for Mrs Ede a release from liability for payment of all money due under the mortgage, and concerning the equitable charge to Mr Adamson, and concerning any personal liability of Mrs Ede to Mr Adamson. Mrs Ede would transfer her interest in the land to Mr Ede in return for a payment of $80,000, and would vacate Lot 106. Orders to give effect to those terms were made on 19 July 2001 in the Local Court at Forster.

31 July 2001 Deed of Loan

27 On 31 July 2001, Mr Ede executed four documents. The first of them was a document entitled “Deed of Loan” between Mr Ede and the Trustee. It confirmed that the Trust had loaned Mr Ede $80,000, and that:

“... The Trust has made and may make further and additional advances to [Mr Ede] and such advances shall all be deemed loans governed by the terms of this deed.”

28 The Deed made provision for Mr Ede to repay those sums within two years with interest at 10% per annum. It made provision for Mr Ede to grant:

“... an equitable charge over all of his property real or personal to the Trust to secure the repayment of all sums advanced or paid hereunder whatsoever.”

29 There was provision for Mr Ede to execute a mortgage in registrable form over Lot 106, and to not further encumber Lot 106:

“... other than by a mortgage to Suncorp-Metway for $82,000 to refinance the existing mortgage to Searson and Shannon solicitors.”

31 July 2001 Transfer

30 The second document that Mr Ede executed that day was a Real Property Act form of transfer. As ultimately tendered at the hearing, it identified the land transferred as:

“Lot 106 DP753156

Proposed Lots 1061, 1062 and 1063 DP753156”

31 It identified the transferor as Mr Ede. In it Mr Ede acknowledged receipt of consideration of “deed dated 4^th October 1995 and forgiveness of $80,000 loan”. It identified the transferee as:

“ACN 097 590 817 as trustee of the ACN Trust (‘ACN Trust’) a 2/3 share and Kenneth John Ede a 1/3 share as tenants in common. ‘ACN Trust’ sole proprietor proposed Lot 1063 and as tenant in common with Kenneth John Ede as to Lots 1061 and Lot 1062 in equal shares.”

31 July 2001 Charge

32 The third document executed that day was a Real Property Act form of charge. In the form as ultimately tendered, it identified Lot 106 as the land charged, and Mr Ede as the chargor. It identified Mr Ede as being the registered proprietor of “Fee Simple (1/3 share in equity)” in the land charged. It identified Mr Adamson as the chargee. Its operative provision was:

“... for the purpose of securing the payment of past and future legal fees, charges all the above estate for the benefit of the chargee, the payment to be made upon issuance of accounts and 30 days.”

31 July 2001 Residential Tenancy Agreement

33 The fourth document that Mr Ede executed that day is a standard form Residential Tenancy Agreement document. In the form as ultimately tendered to the Court, it provided for Mr Ede to lease a part of Lot 106 “comprising all buildings and dwelling & surrounding grounds within existing fences and gates including front entry and driveway as per annexed plan.” The term of the agreement was stated to be “3 years beginning on 30/06/03 and ending on 30/06/06 plus 2 options of 3 years each.” The document said nothing about the manner of exercise of those options. The provision concerning rental was that:

“The rent is $150 pw payable every 6 months starting on 01/02/04. The tenant must pay in advance on the 1^st day of every 6 month period.”

34 The Residential Tenancy Agreement contained various special conditions. By one of them, Mr Ede acknowledged that the ACN Trust was beneficially entitled to two-thirds of the rent, and that the tenant would account direct to the ACN Trust for such sum. By another, Mr Adamson was appointed as the caretaker/manager of Lot 106, and was entitled to a rebate of rent of “$16 ph net plus disbursements for such work”. Mr Adamson was given the handling and carriage of the subdivision of Lot 106, and was entitled to a rebate of rental of $60 ph net plus disbursements for that work. Mr Adamson was given a broad power to carry out building and demolition work on the premises, at his sole discretion, and was entitled to a rental rebate of $50,000 for the cost of that work. Mr Adamson was also entitled to a rental rebate “for all unpaid legal fees owed to Chris Adamson whether past or future”. Mr Ede granted to Mr Adamson “his fullest power of attorney to do all things and to sign all documents as if he stood in the shoes of Ken Ede”. There was also provision that if the tenancy ceased for any reason before the end of any term, Mr Adamson would be entitled to recover as a debt the value of any work done or disbursements under the provisions appointing him as manager, giving him the carriage of the subdivision, or entitling him to carry out building or demolition work.

35 Each of the documents executed on 31 July 2001 shows on its face that Mr Ede executed it before Faddoul Faddoul, a Justice of the Peace.

Later Events

36 A transfer whereby Mrs Ede transferred her interest in Lot 106 to Mr Ede is dated 3 August 2001.

37 On 23 October 2003, the Trustee lodged caveat registered number AA88405A against the title to Lot 106. The estate or interest that the Trustee claimed was said to arise by virtue of the transfer dated 31 July 2001, and to be:

“Equitable interest as owner of 2/3 share of Lot 106 DP753156.

Equitable interest as owner of proposed Lot 1063 and as tenant in common with Kenneth John Ede in equal shares of proposed Lots 1061 and Lot 1062.”

This is one of the caveats that Windeyer J ordered be removed.

Interest in Land Pursuant to The Transfer?

Issues on the Pleadings

38 The relief claimed by the Trustee in its Second Further Amended Statement of Claim (“SFASC”) was a declaration that it had the interest in Lot 106 that the transfer of 31 July 2001 purported to convey to it, a declaration that it was justified in lodging caveat AA88405A, and various consequential orders.

39 The SFASC put the entitlement to an interest in Lot 106 as arising from an agreement that was partly oral and partly in writing. The written part was the transfer dated 31 July 2001. The substance of the oral agreement was said to be:

“(i) The agreement set out in the transfer dated 31 July 2001 was conditional upon the due refinancing of the existing mortgage over the land into the name of the defendant and the registration of the transfer of the land into the name of the defendant pursuant to the matrimonial settlement between the defendant and his wife;

(ii) Upon satisfaction of the conditions as aforesaid, the plaintiff would be entitled to the interest as set out in the transfer dated 31 July 2001.

(iii) Upon satisfaction of the conditions as aforesaid, the plaintiff would be entitled to a caveatable interest and would be entitled to lodge a caveat over the land to protect the plaintiff’s interest in the land by virtue of the transfer dated the 31 July 2001.

(iv) The plaintiff and the defendant would do all things and execute all documents required to give effect to the written and the oral agreement.”

40 Mr Ede’s defence denied that any such agreement had been entered, and raised other defences (of laches, hardship, that relief should be denied because it would require the Court’s supervision, and under the Contracts Review Act 1980) that the judge did not uphold and which are not pressed in the present appeal.

41 Mr Ede’s defence also raised a defence of lack of writing. On the third day of the hearing Mr Adamson made an application to amend his pleading to raise an allegation of part-performance. The judge records in his judgment at [22]:

“Defences based on lack of writing became unnecessary as the plaintiff’s claim that the agreement was partly oral was not pursued and amendments to the further amended statement of claim as indicated in the transcript were deemed to be made.”

42 The “transcript” referred to appears to be a judgement delivered on 28 November 2007 that was not included in the appeal papers.

43 Mr Ede’s Second Further Amended Cross-Claim, dated 12 May 2006, set out the basis on which he denied the agreement upon which the Trustee sued. The judge summarised that basis (at [23]) as being:

“... that the 2001 documents were represented by Adamson as required for the Family Law proceedings; that the transfer was blank; that all the documents were signed in the presence of Mr Faddoul in his tobacconist shop at Kings Cross and that Adamson was present; that the documents were not required for the stated purposes, or not all of them were; and that the transfer was filled in at a later date and there was no consideration for it ...”

Affidavit Evidence

44 By an affidavit made on 8 May 2007, Mr Adamson gave his account of the circumstances leading to execution of the transfer:

“7. In about July 2001, the defendant said to me: ‘Will you lend me monies on an ongoing basis to assist me in my business and to enable me to do a matrimonial property settlement with my wife.’ I said to the defendant: ‘Alright, I will arrange for my family trust to make loans to you on an ongoing basis pursuant to a deed of loan including up to $80000.00 to enable you to do a settlement with your wife. Such loans to be repayable with interest at 10%p.a. in the next couple of years and to be secured over the Trapyard Road property. Provided further that if and when the land is duly refinanced and registered in your name, my family trust will forgo the benefit of the deed dated 4 October 1995 and forgive the repayment of the $80000.00 loan in return for a 2/3 share of the property prior to subdivision and as sole proprietor of proposed lot 1063 being the proposed lot containing the building and residence and as tenant in common with you in proposed lots 1061 and 1062 in equal shares and I will require you to do all things and to execute all documents to give effect to such agreement including a transfer(s) and consent caveat.’ The defendant replied ‘I agree.’

...

15. I refer to the terms of the transfer dated 31 July 2001 a copy of which is discovered and will be tendered at the hearing.

16. The part of the consideration expressed in the transfer as ‘the deed’ was intended by the parties to express the said oral agreement that part of the consideration would be that the plaintiff would forgo the benefit of the deed dated 4 October 1994.”

45 Mr Ede swore an affidavit on 7 April 2005 that set out his account of his relationship with Mr Adamson. After giving an account of a conversation between Mr Ede and Mr Adamson on 14 July 2001, in which Mr Adamson told Mr Ede that he had arranged a settlement of Mr Ede’s property affairs with Mrs Ede on the basis that she would receive $80,000, the affidavit continued:

“29. Adamson produced some documents that he had prepared purporting to effect the Family Court settlement and refinance of the property. I recall signing documents at King’s Cross in the presence of a Justice of the Peace at Kingsway. To the best of my recollection, the documents included a blank transfer, residential tenancy agreement for Parmilla to stay if she wanted to and mortgage to Adamson for $80,000. I did not check the details. I recall these documents were sworn in front of the JP dated 31 July 2001. I recognize the transfer dated 31 July 01 as one of the documents signed that day – Exhibited and marked KE11 is that document.

30. On the following day, I went to Forster with Adamson and remained in a park while he spoke to Parmilla’s solicitor Mr Mark Morris. At Adamson’s request I signed further documents[,] they included a Deed of Settlement. ... I did not go to court but Adamson and Mark Morris went into court while Parmilla and I remained outside the court. I returned to Sydney with Adamson and thereafter to the Gold Coast.

31. At the time I signed the blank transfer KE11 in front of the Justice of the Peace at Kings Cross the document dated 31^st July is in my writing. The writing in paragraphs A, C, D and F was Adamson’s signature. The purpose of signing the transfer was to effect the transfer of the land from Parmilla to myself. To the best of my information and belief, the writing that appears in paragraphs A, C and F was added later. As to paragraph A, the lot numbers being the various lots referred to could not have been allocated by mid 2003.”

46 In his oral evidence in chief on the third day of the hearing (but not before), Mr Ede gave evidence to the effect that the paragraph numbered 30 should have appeared before the paragraph numbered 29 in this affidavit. When it was quite clear that the documents to settle Mr and Mrs Ede’s Family Law Act property affairs had been executed in Forster before 31 July 2001, that evidence had some intrinsic plausibility.

47 By a further affidavit made on 24 October 2007, Mr Ede gave a fuller account of the circumstances of execution of the transfer document:

“6(g) I first saw the transfer in the following circumstances:

i. I came to Sydney as requested by Adamson and I was moving furniture, cleaning and sorting documents in his garage at Brougham Street Kings Cross. Adamson came downstairs with some papers and there was a discussion between us to the following effect:

Adamson: ‘You have got to come with me straight away to see a JP and sign some documents for the Family Court settlement.’

ii. I went across the road to the Kingsgate building. At a tobacconist shop there was a person there who I now know to be called Faddoul Faddoul. He was a Justice of the Peace.

iii. Adamson put some papers on the counter and there was a discussion to the following effect:

Adamson: ‘You’ll have to sign these papers.’

Me: ‘I haven’t got my glasses with me.’

Adamson: ‘Don’t worry, you just sign where I point.’

iv. Adamson held his finger on the documents and I signed next to where he put his finger. I then saw Faddoul Faddoul sign some documents which I believed was him witnessing my signature.

v. Whilst I did not have my glasses with me I can see whether there is writing on a document but I can’t make it out because I am long sighted.

vi. Other than my signature and Mr Faddoul’s signature and details and the date there was no handwriting at items in (a), (c), (d) and (f).

vii. To the best of my recollection I signed about 4 documents. Adamson said to me at the time words to the effect:

Adamson: ‘All these documents are relevant to you property settlement. One of the documents is a mortgage which will be an unregistered mortgage for $80,000.00 that I am going to lend you.’

We then left Mr Faddoul’s shop and we went to the St George Bank at Kings Cross. Mr Adamson produced $36,000.00 which was then banked into my account.

7. I also refer to document discovered no. 22 in the Plaintiff’s Discovered Documents being a Charge also dated 31 July 2001. I do not recall having seen that document prior to swearing my 7 April 2005 affidavit but, having reviewed its contents, I say as follows:

(a) I accept that this document was signed by me in the presence of Faddoul Faddoul, in circumstances set forth in the preceding paragraph, on 31 July 2001;

(b) The document that I did sign had no other hand writing on it other than my handwriting, the date and in certain places the Justice of the Peace’s handwriting.

8. At the time that I signed the documentation before Faddoul Faddoul in Kings Cross on 31 July 2001, Mr Adamson was acting on my behalf as my solicitor in the Family Court proceedings against my former wife.”

48 Mr Adamson made no evidentiary response to these allegations until he swore an affidavit on 27 November 2007. That day was the second day of the hearing before Windeyer J. His evidence in reply on the topic of execution of the documents on 31 July 2001 was in its totality:

“25. I deny the defendant[’]s allegations in respect of the execution of any of [sic] documents at issue herein.

26. Although I was extremely busy at the time, I can say that I was not present when the defendant executed the documents before the J.P.

27. My recollection is that when I executed the documents on or about the date that they bear the documents were completed and I do not recall that there were any blanks in them.”

The Judge’s Decision

49 The judge’s reasoning concerning the transfer was:

“40 ... It is right to say that Adamson was not a convincing witness and Ede was not totally convincing either. Adamson’s conduct at the commencement of the trial in endeavouring to say that he had not been served with documents because they did not come from the solicitor on the record was ridiculous and I would think improper. His conduct in lodging a caveat based on a document which gave no interest in land and signing a consent on the authority of a document which did not exist could not, I think, have been in error. His answers as to the state of documents when executed were not direct and I think they were evasive. On the other hand, Ede had given false evidence on oath in other proceedings and his evidence on the state of the documents when he signed them was contradictory, as in cross-examination he said that he saw Adamson’s writing in places on the transfer whereas previously his evidence was that those places were blank.

41 On the validity or effectiveness of the transfer Adamson has the onus. Even he says that the transfer is not correct insofar as it expresses consideration. It has all the hallmarks of later addition, even if added before he signed. The fact is that it is expressed to be consideration of forgiveness of a loan of $80,000 made under a document signed on the same day makes the latter document purposeless. I find that the document was not in its present form when it was signed by Ede. In addition I accept the evidence of Ede that he was told the documents were required for the family law settlement and thus he would have expected to sign a transfer from his wife to him of her interest in the property. On balance I find that the description of the transferee was not inserted when the document was signed by Ede. The description of the subsequent lot numbers was not then known. In fact Adamson signed Ede’s signature on the subdivision application, although on one basis he might have had authority to do so. The document is a nullity. I find Adamson knew of this.

42 Adamson knew the state of the documents and signature was in issue. He could have called the witness. There was no explanation for not doing so. It is proper to infer the witness’s evidence would not have assisted Adamson.

43 The transfer could not be registered even in its present form as now completed. No agreement under the document could be subject to specific performance. That part of the claim should be dismissed. The transfer should remain on the file.

44 I have not overlooked the fact that caveat [AA88405A] purports to have the signature of Ede consenting to its lodgement. In his affidavit of 7 April 2005, Ede denied signing it. He was not cross-examined on this and, I accept his evidence. A cursory examination of the signature and initialling would give some reason for doubt as to its veracity.”

The Procedural Fairness Challenge

50 Mr Adamson submits that procedural fairness requires a judge who is contemplating making a finding detrimental to a party to warn that he is contemplating making that finding, and also to give the party an opportunity to be heard about whether the finding should be made. The giving of a proper opportunity to be heard, he submits, includes the opportunity to tender further evidence. He submits that the trial judge denied him procedural fairness by making findings, in paras [40]-[44] of the judgment, that were extremely detrimental to his credit without giving him any such warning, or any such opportunity.

51 On this appeal Mr Adamson asks the Court to receive certain further evidence that, he submits, was available to him and could have been placed before the judge if the judge had given him the opportunity to do so. At one stage of his argument Mr Adamson submitted that reception of this further evidence would enable this Court to give him the relief that he had sought in the court below. However, ultimately he accepted that, even if the further evidence were to be received, and even if this Court concluded that the trial judge’s decision was flawed, there would still be conflicting testimony and questions of credit that this Court could not resolve on the transcript. Hence, he accepted that the appropriate result, if his procedural unfairness submission were to succeed, would be an order for a new trial. Even if that were the only remedy this court could give, however, the further evidence would assist in showing that the opportunity that Mr Adamson had lost through the alleged breaches of procedural fairness was a real one, and thus that the granting of a new trial was the appropriate remedy.

52 In his oral submissions, Mr Adamson made particular complaint about three matters that the judge placed reliance upon in accepting Mr Ede’s account of how the documents dated 31 July 2001 came to be signed. These are:

– the finding that the “description of the subsequent lot numbers was not then known”;

– the judge’s view that Mr Adamson had been evasive in his evidence about the state of the documents when executed; and

– the judge’s reasoning that if the transfer was signed on the same date as the Deed of Loan, for a consideration including forgiveness of the loan, it would make the Deed of Loan purposeless.

The Application of Natural Justice in Court Proceedings

53 The presupposition of Mr Adamson’s argument, that a judge is required to conduct judicial proceedings in accord with natural justice (sometimes called procedural fairness) is sound. As Bayley B said of the audi alteram partem rule in Capel v Child [1832] EngR 40; (1832) 2 Cr & J 558 at 579; [1832] EngR 40; 149 ER 235 at 244:

“... it is considered an invariable maxim of law, that you cannot proceed against a party without his having the opportunity of being heard, and without his appearing in Court, before a judgment shall be pronounced against him. In the case of proceedings before magistrates on summary conviction, if the conviction does not state either that the party was summoned, or that he appeared, the conviction is bad. If you remove a corporator, and it turns out that he was not summoned, however gross and flagrant his misconduct may have been, he is entitled to be restored; and I know of no case in which you are to have a judicial proceeding, by which a man is to be deprived of any part of his property, without his having an opportunity of being heard.”

54 In Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 396, Dixon CJ and Webb J (with whom Taylor J agreed) said of the rules of natural justice that “It is hardly necessary to add that its application to proceedings in the established courts is a matter of course.” Similarly, in Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186, Handley JA said: “Compliance with the requirements of natural justice is ... an incident of the judicial process”.

55 High Court discussion of Chapter III of the Constitution has emphasised the fundamental role of natural justice in exercising judicial power: Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 150 per Gaudron J; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 at 496 per Gaudron J; Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455 at 470 per Mason CJ, Dawson and McHugh JJ, 502 per Gaudron J; Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 359 [56] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 at 76 [63]- [64] per Gummow, Hayne and Crennan JJ; Kable v Director of Public Prosecutions for NSW [1996] HCA 24; (1996) 189 CLR 51 at 116 per McHugh J.

56 Many specific rules of procedure applied in courts have been explicitly recognised as founded on a requirement to accord litigants natural justice. The system of pleadings provides one example: Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 at 517 per Isaacs and Rich JJ; Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-7 per Mason CJ and Gaudron J, 293 per Dawson J. Rules requiring service of process are another: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589 per Rich J (approved in Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 4 per Gibbs J, with whom Stephen J agreed); Craig v Kanssen [1943] KB 256 at 262. So is the rule in Browne v Dunn (1894) 6 R 67; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16 per Hunt J; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [188] per Basten JA; Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297 (NSWCA) at 303-4 per Mason P and Beazley JA (with whom Meagher JA agreed); Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 (FC) at 101 per Tamberlin J (applied in Amadio Pty Ltd v Henderson (1998) 81 FCR 149 (FC) at 244 per Northrop, Ryan and Merkel JJ); Payless Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551 at 556 per Clarke JA (with whom Priestley and Meagher JJA relevantly agreed); Government Insurance Office (NSW) v Foot (1990) 12 MVR 455 (NSWCA) at 458 per Kirby P (with whom Priestley and Meagher JJA agreed).

57 That it is a court, rather than some other sort of decision-maker, that is required to grant natural justice can affect what, in the circumstances of a particular case, natural justice requires. Established rules of procedure of courts can affect the content of natural justice as applied in the courts. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 at 456 Brennan J (with whom other members of the court agreed) recognised that the audi alteram partem principle applied to courts, but continued:

“That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings.”

58 This has led the requirement of natural justice in court proceedings to sometimes be put as an entitlement to a fair trial. In Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145, the joint judgment of Mason, Wilson, Brennan, Deane and Dawson JJ approved of the statement of the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 at 67 that:

“There is one thing to which everyone ... is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

59 Both in a court and in a tribunal, natural justice requires that a person be given a reasonable opportunity to present his or her case. However, as Gaudron J (with whom Dawson J agreed) pointed out in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (sub nom Re Coldham; Ex parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208 at 220):

“... the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given ‘a reasonable opportunity to present his case’ and not that the tribunal ensure ‘that a party takes the best advantage of the opportunity to which he is entitled’. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers’ Industrial Union; Ex parte Gallagher [1988] HCA 4; (1988) 62 ALJR 81 at 84; [1988] HCA 4; 76 ALR 353 at 358.” (original emphasis)

60 The role of established procedures of courts, in deciding whether natural justice has been accorded to a litigant, is illustrated in Ex parte Fealey (1897) 18 NSWLR (L) 282 at 288 where Owen J (with whom GB Simpson J agreed) said:

“A decision contrary to natural justice is where the presiding Judge or Magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a Magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or cases of that kind.” (emphasis added)

61 This principle stated by Owen J was applied in Ex parte Lucas (1910) 10 SR (NSW) 325 at 334 per Cullen CJ and in Ex parte Taylor; Re Butler (1924) 41 WN (NSW) 81 at 83 per Owen J, and was quoted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 98 [35].

62 The interaction between established court procedures and the playing out of the requirement of natural justice in a court is illustrated by the way the rule in Browne v Dunn will not require a witness’ account to be challenged explicitly in cross-examination if other procedural steps in a case have given the witness notice that his or her account will be challenged in particular ways: West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [97]-[98] and cases there cited; Thomas v Wan Den Yssel (1976) 14 SASR 205 at 207 per Bray CJ (with whom Jacobs and King JJ agreed); Lazarevic v State of Western Australia [2007] WASCA 156 at [17]- [20] per McLure JA (with whom Wheeler JA and EM Heenan AJA agreed).

63 Another illustration is that a fundamental feature of our court system is that it is an adversary system, in which the parties are to make good their contentions: Forge v ASIC at 76 [64] per Gummow, Hayne and Crennan JJ; Fothergill v Monarch Airlines Ltd [1980] UKHL 6; [1981] AC 251 at 273-4 per Lord Wilberforce. That an adversary system is in existence in courts can mean that natural justice plays out differently in courts to the way it plays out in inquisitorial tribunals: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at 540-1 [71], per Gummow and Hayne JJ.

The Specific Authorities Relied On

64 Mr Adamson relied on Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 and Holt v Protective Commissioner (1993) 31 NSWLR 227 in support of his submission that he had been denied natural justice. It is necessary to consider those cases to see whether they support Mr Adamson’s proposition that the particular matters of which he complains show that he has been denied natural justice.

65 In Smith, the Bar Association had brought disciplinary proceedings against Mr Smith, seeking his removal from the Roll of Barristers. The case was heard at a time when such proceedings were heard at first instance before the Court of Appeal. The acts of professional misconduct with which Mr Smith was charged related to the circumstances in which he had informed a Magistrate, in court, that he was instructed by a particular firm of solicitors. The Court of Appeal concluded, on the basis of evidence given before it, not only that the barrister had lied to the Magistrate, but also that he had lied to the Court of Appeal in giving evidence before it. Lying to the Court of Appeal was one of the bases upon which the Court of Appeal found Mr Smith guilty of professional misconduct.

66 The High Court set aside the Court of Appeal’s finding on the basis that Mr Smith had been denied procedural fairness. Brennan, Dawson, Toohey and Gaudron JJ at 269 said:

“But even if the evidence was sufficient to support the finding so made and even if that finding could properly be taken into account in determining the result, considerations of procedural fairness require that the appellant be given an opportunity to be heard as to whether the finding should be made. In the ... hearing before the Court of Appeal, no allegation of deliberately lying was made against the appellant before the adverse finding was made. That being so, the finding then made that the appellant had lied and the consequence of that finding then determined by Mahoney and Meagher JJA that the appellant be disbarred were flawed.”

67 In my view, Smith’s case is readily distinguishable from the present. In Smith, the Court of Appeal had, in effect, made a finding that Mr Smith had, by lying to the Court of Appeal, engaged in professional misconduct, when he had never been charged with misconduct of that kind. To find a lawyer guilty of an act of professional misconduct that he has never been charged with, in proceedings the very purpose of which is to investigate whether the lawyer has engaged in professional misconduct, is in my view quite different to a judge making incidental findings relevant to credit or disputed facts in the course of deciding a case.

68 In Holt v Protective Commissioner an application had been made by the siblings of a protected person to replace the Protective Commissioner as the manager of the protected person’s estate. Even though the application was in effect ex parte (because the Protective Commissioner submitted to such order as the court might make) the Protective Judge dismissed it. One of the reasons of the Protective Judge for taking that course was that the siblings were directors of the trustee of a family trust, and claimed that the protected person owed money to the family trust. The siblings had offered some undertakings to the Protective Judge to seek to overcome any conflict of interest that might thus arise, but the Protective Judge, in his reasons, rejected those undertakings as a “transparent device”.

69 The Court of Appeal granted leave to appeal, set aside the orders below, and remitted it for re-hearing.

70 One of the grounds on which the siblings sought the setting aside of the orders concerned certain remarks made in the judge’s reasons that were critical of the siblings. Kirby P (with whom Sheller JA and Windeyer AJA agreed) concluded, at 236:

“That application was never, as it seems to me, considered with manifest neutrality and dispassion. In the approach which his Honour took (as evidenced in his reasons) he appears to have reacted most unfavourably to the appellants and their solicitors. As he did not take the opportunity (either initially or on their motion) to hear from the appellants personally and to put to them or their representatives the matters which were obviously troubling him, the hearing of the motion miscarried. There are too many factual issues which, in the result, were not fully explored. Most importantly, these concern the entirely proper reservations which his Honour expressed relating to the alleged debt of Mr Michael Holt to the appellants and their position as directors of the Corporate Trustee (Angala Pty Ltd) of the Holt family trusts. This Court has been informed that, so far as the appellants are aware, the Protective Commissioner does not dispute Mr Michael Holt’s indebtedness to the appellants and to the corporate trustee. The appellants made it plain that they would submit to orders which removed this suggested source of conflict if it continued to trouble the Court considering their application. Their complaint was that this possibility was never properly explored in the way in which their motion was dealt with. On the contrary, their indication of willingness was (as they assert) ‘uncharitably characterised’ as a ‘transparent device’.”

71 While there was another reason why Kirby P favoured remitting the matter (namely, that the Protective Judge had applied a legally incorrect test in deciding whether the Protective Commissioner should be removed) it is clear from the reasons at 235-6 that Kirby P regarded the procedural unfairness as a sufficient reason for remitting the matter.

72 I do not regard the decision in Holt as standing for any general proposition that a judge should inform someone concerning whom he is contemplating making an unfavourable finding, and give them a specific opportunity to argue against that finding being made. The reasons for remitting the matter in Holt were closely connected with the facts of the particular case, and in particular with the application being ex parte.

73 Deciding whether Mr Adamson has been denied procedural fairness requires a closer examination of the facts relevant to his specific complaints, and considering them in the light of the principles I have earlier outlined.

Subdivision Lot Numbers – Affidavit Evidence

74 Mr Adamson’s affidavit account of his conversation with Mr Ede in July 2001 (para [44] above) contains express reference to proposed lots 1061, 1062 and 1063. While the judge did not expressly reject that particular item of evidence, the judge’s finding that in July 2001 the lot numbers were “not then known” is inconsistent with the judge having accepted it.

75 On Mr Ede’s affidavit evidence, subdivision of the land was discussed between Mr Ede and Mr Adamson in the course of 1995. The deed dated 4 October 1995 (para [20] above) specifically contemplated subdivision of the property. Concerning that deed, Mr Ede deposed in his affidavit of 7 April 2005, “... the property could not be subdivided because of access problems through the forestry land.”

76 In his affidavit of 7 April 2005, Mr Ede had said specifically that the lot numbers referred to in the transfer “could not have been allocated by mid 2003”. That affidavit also deposed, in paras 41-42, to Mr Adamson enquiring of Mr Ede in May 2003 whether Mr Ede still had the plans of subdivision that he had in 1994, and that Mr Ede, after that enquiry, located the plans and gave them to Mr Adamson. Those plans (KE18) showed a division of Lot 106 into four separate lots, of 20 acres, 80 acres, 100 acres and 100 acres. The divisions were simply drawn on an old surveyor’s map, and did not allocate lot numbers to the various sub-lots.

77 Mr Ede’s affidavit also asserted that, in the 2003-2004 period, Mr Adamson had lodged documents with the Taree Council seeking approval of a subdivision, and had obtained approval to that subdivision, without Mr Ede’s approval, and by documents that purported to contain Mr Ede’s signature but which he had not in fact signed. The subdivision so obtained divided the land into lots called 1061, 1062 and 1063.

78 In that affidavit Mr Ede also deposed that, following the refinancing consequent on settlement of the litigation with Esanda (at a date not precisely placed, but that appears to be in 1996):

“... I ascertained from enquiries with the Greater Taree City Council that I was unable to subdivide the land ... because of the changes to the rules relating to subdivisions. There was also a problem with road access because of a problem with the Forestry Commission.”

79 In his affidavit in reply dated 27 November 2007, Mr Adamson said, concerning the legal work he had done for Mr Ede in 12 months after 4 October 1995:

“I also advised and assisted him with an unsuccessful application for subdivision of Lot 106 in lots Trapyard Road Nabiac NSW 2312 into lots 1061, 1062 and 1063.”

80 Notwithstanding the garble in the typing, it is a clear enough admission that there had been an attempt at that time to subdivide Lot 106 into lots 1061, 1062 and 1063, and that that attempt had been unsuccessful.

81 Mr Adamson’s affidavit in reply said nothing in response to the allegation in Mr Ede’s affidavit that “the lot numbers ... could not have been allocated by mid 2003”, nor did it take issue with the inference that arises from the circumstances of handing over the plans KE18 that the subdivision that was proposed in 1994 involved four lots, that were unnumbered.

Subdivision Lot Numbers – Oral Evidence

82 Mr Adamson cross-examined Mr Ede on his allegations of the subdivision of the land having been achieved without Mr Ede’s consent, but did not put to him in the course of cross-examination that the subdivision lot numbers 1061, 1062 and 1063 were known at a time before the transfer was signed. Mr Adamson’s failure to cross-examine on the topic presents an insuperable obstacle to this court reversing the judge’s finding that the lot numbers were not known. The thrust of Mr Ede’s evidence in that cross-examination was that he reiterated that Mr Adamson had not had consent to apply for a subdivision of the land, and what Mr Ede had authorised was “an application for a building permit to put an extension onto the house”.

83 The evidence before the judge concerning subdivision lot numbers was thus that, on Mr Ede’s account that Mr Adamson had not challenged other than by the references to lots 1061, 1062 and 1063 referred to in paras [74] and [79] above, there had never been a plan to subdivide Lot 106 into those three lots. Even according to Mr Adamson’s evidence, there had once been a plan to subdivide Lot 106 into lots 1061, 1062 and 1063, but that that plan had failed in about 1995 or 1996, and was not a current proposal for subdivision as at July 2001. The transfer described the lots as “Proposed Lots 1061, 1062 and 1063 DP753156”. That description makes sense, in its context, only if as at the date of the transfer there was a proposal for Lot 106 to be divided into those three lots. Whichever party’s evidence the judged looked at, there was no such current proposal. The judge’s finding that “the description of the subsequent lot numbers was not then known” was correct on the evidence of both parties. Quite apart from any other considerations, there is no occasion for a judge to warn a litigant that he proposes to make a finding that is correct on the evidence of both parties.

84 While Mr Adamson points out that he was not cross-examined about the existence or non-existence of a plan of subdivision of the land into lots 1061, 1062 and 1063, on the state of the evidence there was no occasion for Mr Ede’s counsel to do so.

Subdivision Lot Numbers – Rejection of Evidence Below and New Evidence on Appeal

85 It will be recalled that on 27 November 2007, the second day of the trial, Mr Adamson made an affidavit that was supposedly an affidavit in reply, and (to the extent, if any, that Mr Ede had evidence on his cross-claim that was not also relevant to Mr Adamson’s claim) Mr Adamson’s evidence in response on the cross-claim.

86 Mr Adamson exhibited to that affidavit 20 separate legal files that he identified as ones “in which I acted for or advised or assisted the defendant in respect of his business and personal affairs 1995 to 2003”. The affidavit said nothing about any particular file or part of a file.

87 Mr Sirtes, counsel for Mr Ede at the trial, objected to the paragraph that exhibited those files on the ground that it was not in reply, on grounds of form, and that it was not appropriate to burden the court with the material. At the time Mr Sirtes made that objection the judge said, “I don’t think it has anything to do with the case, does it?”.

88 After Mr Sirtes had finished making his objections to the affidavit, and the judge had said the words I have just set out, Mr Adamson said, “I’ll leave it to your good judgment, your Honour. You were kind enough to allow me to hand it up.” He made no further submission about admissibility of any of the material. In particular, he did not seek to point out in what way any of the files might properly go to an issue in reply, or indeed have relevance to any issue in the case. The judge then rejected that paragraph of the affidavit. There was no later attempt to re-tender any of the files.

89 Mr Adamson submits on appeal that one of those files, if admitted, would have showed that there had been a proposal to subdivide Lot 106 into three lots numbered 1061, 1062 and 1063. He did not take us to any particular part of that file.

90 Mr Adamson also seeks to have admitted on the appeal an affidavit from a Mr John Sorby made 20 May 2008. Mr Sorby deposes to having made an application in late 1993 and 1994 on behalf of Mr and Mrs Ede for subdivision of Lot 106 into three lots. He annexes various items of correspondence which show the making of that application on 2 February 1994, and the Council’s opposition to it on the ground that access was via a forestry road, not via a public road. The correspondence also shows that the application was rejected by the Council on 9 May 1994 on the following grounds:

“1. Trapyard Road does not fall within any Crown Road reserve or public road reserve, therefore, the proposed subdivision has no legal access.

2. It is undesirable to create additional allotments with access via forest roads where future maintenance of the Trapyard Road and right of access cannot be guaranteed.

3. Trapyard Road giving access to the subject land does not comply with the requirement of Clause 3.4 of DCP 1990.”

91 A letter from Mr Sorby to Mr Ede dated 23 August 2004 advised:

“We feel that while the problem of access can be overcome the possible construction costs would make the subdivision unviable.”

92 An affidavit of Mr Adamson made 30 May 2008 deposed to all of these annexures to Mr Sorby’s affidavit having been discovered in the proceedings, and also being included in one of the files that had been exhibited to his affidavit of 27 November.

93 Mr Adamson at one stage submitted to us that the judge had erred in rejecting his tender of, at least, the files that showed the history of the subdivision application. In the course of the appeal hearing I gained the impression that Mr Adamson abandoned rejection of evidence as being a stand-alone ground of appeal. However, it is not absolutely clear that he abandoned it, so it is preferable that I deal with it.

94 I do not accept that the judge made any such error. Decisions about admissibility of evidence are necessarily made in the course of running a trial, and on the basis of such evidence and submissions as the judge has at the time of making the decision. A consequence of the adversary system is that if objection is taken to an item of evidence, it is for the party seeking to have it received in evidence to explain the basis upon which the evidence is relevant, and admissible. Mr Adamson gave no such explanation. In those circumstances, the judge made no error in rejecting them.

95 The principle applicable here was stated by Starke J in Potts v Miller [1940] HCA 43; (1940) 64 CLR 282 at 292:

“It is for a party tendering evidence to make clear to the trial judge the purpose for which the evidence is tendered and how it becomes relevant and admissible: see National Mutual Life Association of Australasia Ltd v Godrich [1909] HCA 93; (1910) 10 CLR 1, at p 39. In the present case, the appellant failed in that duty and cannot now complain of the rejection of [the evidence].”

96 It is a particular instance of the more general principle that a party is bound on appeal by the manner in which he or she conducts the case in the court below: University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483; [1985] HCA 28; 60 ALR 68 at 71; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7-9; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497.

97 JD Heydon, Cross on Evidence, 7^th Australian edition, (2004) LexisNexis Butterworths, at para [1645], p 122 states:

“When inadmissible evidence is tendered, or a question is asked which may elicit inadmissible evidence, it is the duty of counsel who opposes its reception to object at once. The objection should be made with precision, both as to what is objected to and (if the court requires it) what the specific grounds of objection are. The tendering party should be equally specific.” (emphasis added)

98 In the authority cited for the sentence I have italicised (R v Bryant (No 2) [1956] St R Qd 570 at 575 (FC)), Stanley J says clearly that a party tendering evidence has a “duty to state the specific grounds on which he tenders the evidence”. However, the other judges in Bryant (Mack J at 585 and Hanger J at 595) are not so dogmatic, recognising that there may be peculiar circumstances in a particular case that would warrant departure from the strict rules. It should be recognised that what their Honours were considering in Bryant was whether it was open to a litigant to succeed on appeal in a civil trial on a ground that evidence had been rejected, when the basis on which it was admissible had not been put to the trial judge. That is not the same as whether the trial judge had denied a litigant procedural fairness by rejecting evidence when a basis on which it was admissible had not been put to him or her. I see no basis for concluding in the present case that the trial judge erred in a way that can be corrected on appeal, or denied Mr Adamson procedural fairness, by rejecting the tender in the circumstances in which he did.

99 Neither Mr Sorby’s affidavit of 20 May 2008, nor the portion of Mr Adamson’s affidavit of 30 May 2008 referred to in para [92] above, should be admitted on the appeal. A sufficient reason is that they do not show that in truth the factual situation concerning the subdivision proposal is any different to the broad picture that emerges from the evidence that was admitted before the judge.

100 A further reason is that they impermissibly seek to cure, on appeal, Mr Adamson’s failure at the trial to explain why the evidence in his subdivision file was relevant.

101 A further reason concerns the circumstances in which further evidence may be received on appeal. Section 75A Supreme Court Act 1970 includes:

“(7) The Court may receive further evidence.

(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.

(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.”

102 The evidence sought to be tendered is not evidence concerning matters occurring after the trial, so section 75A(8) applies, and requires the court not to receive further evidence except on special grounds. This is not the occasion to elaborate on the type of circumstances in which “special grounds” might exist. The documents annexed to Mr Sorby’s affidavit were all in existence at the time of the trial, and known to Mr Adamson. There are no special grounds justifying their reception in evidence.

103 Another item of proposed additional evidence is an affidavit of Graeme Sparkes-Carroll sworn 24 August 2007 in the proceedings below. Mr Sparkes-Carroll is a surveyor, who gave evidence of the circumstances in which the subdivision of the property occurred in 2003 and 2004. He gives evidence of Mr Ede being involved in some of the steps taken to seek to achieve that subdivision. Mr Adamson cross-examined Mr Ede on part of the affidavit of Mr Sparkes-Carroll. When the affidavit was not only available to Mr Adamson, but actually used by him in the proceedings, and when Mr Adamson did not seek to read the affidavit as part of his own case, there is no occasion to admit it on appeal.

Court Itself Reconsidering Admissibility of Evidence

104 Mr Adamson submits that before the judge made an adverse finding of credit against him the judge ought to have reconsidered for himself the rejection of the legal file that Mr Adamson said would have shown there was a proposal to subdivide Lot 106 into three lots numbered 1061, 1062 and 1063. When it had never been submitted to the judge that that was a potential relevance of the file, there was no occasion for the judge to do so.

Failure to Warn About Evasiveness

105 Mr Adamson could have been in no doubt that Mr Ede was making serious allegations against him, and was asking the judge to decide that those allegations were true. Mr Ede’s Second Further Amended Cross-Claim (para [43] above) and his affidavit of 7 April 2005 (para [45] above) so alleged. So did Mr Ede’s affidavit of 24 October 2007 (para [47] above), though there is a difficulty about relying on it as conveying information to Mr Adamson, to which I will return below.

106 Mr Adamson’s awareness of this was illustrated quite early in the first day of the hearing, in the course of making an application for the judge to disqualify himself, when Mr Adamson said:

“I am acting for myself against an opponent who is making serious allegations against me ...”

107 Questions put to Mr Adamson in cross-examination put unmistakably that his conduct had been dishonest.

108 Mr Sirtes’ oral submissions included:

“Your Honour ought not accept any of the evidence of Mr Adamson in preference to where that evidence conflicts with Mr Ede.”

He submitted that a statutory declaration relating to a caveat that Mr Adamson had lodged “was knowingly false at the time”.

109 The written submissions made on behalf of Mr Ede included the following:

“The Court ought find that in the circumstances in which the 31 July 2001 transfer was obtained was by Mr Adamson practising deception upon Mr Ede and having him sign that document, along with the charge and the lease by falsely advising Mr Ede that those documents were being executed in furtherance of the matrimonial settlement that had been concluded between Ken Ede and his ex-wife Parmilla Ede at around the same time that such documents were executed by Mr Ede.”

“The Agreement, as pleaded, was never formed. It is a fabrication. The Court ought not accept the evidence of Adamson on any issue where he is contradicted by Ken Ede. Adamson is a person who by his conduct both before the Court as his own advocate and as a witness demonstrated mendacity and a willingness to say and do anything for his own benefit. This is most powerfully demonstrated in the self-serving treatment of his own client Ken Ede by ritually arrogated benefits in conflict of interest and breach of his fiduciary obligations to his client. [His] conduct as a solicitor deserves the Court’s strongest condemnation.”

110 McHugh J, sitting as a single judge of the High Court, identified a fundamental task of any trier of fact in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; 168 ALR 407 at [67] as including:

“... a finding as to whether [a party] should be believed in his claim — a finding on credibility which is the function of the primary decision-maker par excellence.”

111 Inevitably, that involves taking matters of demeanour into account. McHugh J (with whom the rest of the court agreed) said in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179:

“... when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked.”

112 Similarly, in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 480, Deane and Dawson JJ said:

“... in many cases a trial judge’s observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings.”

113 There is authority against a judge being under an obligation to warn parties that he may make findings detrimental to them. In F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369, Lord Diplock said:

“Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”

114 That passage has been adopted by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 166 [48], and there applied by their Honours to the Refugee Review Tribunal with the comment:

“Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”

To similar effect is Habib v Director-General of Security [2009] FCAFC 48; (2009) 175 FCR 411 at 428 [64].

115 In Piras v Egan [2008] NSWCA 59, a trial judge had referred in his judgment to the evidence of one witness about why some locks had been changed as being of importance in his ultimate conclusion concerning contested matters of credit. He had not told the parties that he was contemplating attributing that role to that particular piece of evidence. It was argued that the judge’s failure to do so amounted to a denial of natural justice. At [174], I considered the possibility that this might have amounted to a breach of natural justice, but did not decide whether or not it was such a breach. I went on to consider what the situation would have been if it had been a breach of natural justice.

116 Giles JA (with whom Tobias JA agreed on this point) did not accept that I had been right in even having a doubt about the matter. He said, at [3]:

“The requirements of natural justice, now often referred to as procedural fairness, depend on the circumstances, see for example R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 552-3 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies and Owen JJ). It was not necessary that the trial judge disclose before judgment that he saw in the evidence what he described at [73] as “a clue as to what might have been going on”, any more than it was necessary that he disclose before judgment the significance he saw in other of the host of competing factual indicators of the nature of the relationship between the deceased and the appellant.”

117 Specifically, proper conduct of court proceedings does not require a trial judge to put to a witness that the judge might make unfavourable findings on the basis of the witness’ demeanour. As Heerey J said in MZWIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1636 at [13]:

“There is no obligation on a Court or by a Tribunal to make observations in the course of a hearing about possible aspects of demeanour. This would be quite impractical. If, for example, the party disputed that he had manifested the demeanour observed by the Court or Tribunal, would there have to be a trial within a trial to determine whether that demeanour had in fact been displayed?”

118 There are some cases that have recognised that, in a case in which a litigant is represented, natural justice might sometimes (though not invariably) require a judge to bring to the representative’s attention any behaviour of the litigant or a witness that was occurring out of the sight and hearing of the representative but that the judge was contemplating taking into account in a way detrimental to the litigant or witness: Angaston and District Hospital v Thamm (1987) 47 SASR 177 at 178-80 per King CJ; Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304 at 323-4; R v Martin (No 4) [2000] SASC 436; (2000) 78 SASR 140 at 142–7 [14]-[34], 149-50 [52]-[54]; Kassem v Crossley [2000] NSWCA 276; (2000) 32 MVR 179 at [15]- [17]; Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [2]- [4], [33]. However, that line of authority has no application in the present case, where Mr Adamson was representing himself and was, for all practical purposes, the alter ego of the Trustee.

119 I do not accept that the judge was under any obligation to warn Mr Adamson that he might make findings detrimental to him on the basis of his perceived evasiveness.

Whether Mr Adamson was Served

120 One specific matter that the judge mentioned early in para [40] of his judgment, in a way that was detrimental to Mr Adamson, was “Adamson’s conduct at the commencement of the trial in endeavouring to say that he had not been served with documents because they did not come from the solicitor on the record”. The circumstances leading to that remark require explanation.

121 Before the hearing, Mr Ede changed solicitors, and appointed Mr Bilinsky as his solicitor. Both Mr Adamson and Mr Bilinsky appeared at the hearing of an interlocutory injunction, at which pre-trial directions were also given, on 18 October 2007. One of the directions the judge gave was that any evidence of the defendant not served by 24 October not be read in the proceedings without special order.

122 The first day of the hearing was on 26 November 2007. Early that day, Mr Sirtes applied to amend the defence and to file an affidavit of Mr Ede dated 24 October 2007. Mr Adamson opposed that application. A draft of that defence and a copy of that affidavit had been given to Mr Adamson by someone from Mr Bilinsky’s office, on 25 October 2007. Mr Adamson strenuously submitted to the judge that he had not been served with those documents, because he had not been served with any document saying that Mr Bilinsky had become the solicitor on the record for Mr Ede. Mr Adamson’s contention to the judge was that, when he received those documents on the 25^th, he handed them to an assistant, saying: “Hold the document until I receive notice of a change of solicitor”. An affidavit of service from Mr Bilinsky’s assistant was read deposing that on the 25^th “I met with Mr Adamson and I gave him the documents”. The following exchange eventuated:

“ADAMSON: That is a different matter from me reading the documents. They came to me a day after they were supposed to and from a firm which I didn’t recognise as the solicitor on the record. Why should I have looked at the document until today? I didn’t even know they were the solicitor on the record until today.

HIS HONOUR: There is no merit in anything you have said so far. I propose to allow the document to be filed. Firstly, notice of those was given and, on the evidence, served on 25 October, which is more than a month before the hearing commenced.

Secondly, the matters alleged are basically legal matters, not factual matters.

ADAMSON: I am not admitting service.

HIS HONOUR: You don’t have to admit service.”

123 Mr Adamson continued to protest that he had not been served. The transcript continues:

“HIS HONOUR: You have had that affidavit, haven’t you?

ADAMSON: I haven’t read any documents.

HIS HONOUR: I said you have had it, have you not?

ADAMSON: I haven’t been served with it. I don’t propose to give any evidence over the bar table.

HIS HONOUR: Mr Adamson, I am asking you, have you had it?

ADAMSON: Are you ordering me to reply?

HIS HONOUR: Yes.

ADAMSON: You are ordering me to reply whether I have had it?

HIS HONOUR: Yes, you are a solicitor.

ADAMSON: Had what?

HIS HONOUR: The affidavit of 24 October.

ADAMSON: It was handed to me and I handed it to Mr Maskell, my associate. I have not read the affidavit.

HIS HONOUR: That is your problem.”

124 A little later, Mr Adamson said of the proposed amended defence:

“ADAMSON: ... This is completely different from what was served on the 25^th. There was a document there, although I didn’t read the document I know it was not in this form.

HIS HONOUR: You can’t say that, you say you haven’t looked at it.

ADAMSON: I said I glanced at it. I said I could see what it was and I answered your question. Is it alleged this is the same document that was supposedly served on the 25^th?

HIS HONOUR: I thought so.

ADAMSON: I don’t think it is. Can the other side be asked that?

HIS HONOUR: I am just going to ask them.”

125 Confirmation was given that the proposed amended defence was identical with the one that had been delivered (to use a neutral word) on 25 October.

126 The topic of when Mr Adamson had received Mr Ede’s affidavit was renewed the next day. In the course of that discussion, the judge said:

“Mr Adamson, you are well aware that you told me yesterday that you had it but you took no notice of it. I don’t intend to renew that ridiculous discussion.”

127 There were also some other mentions of the topic later in the trial. Mr Adamson could not have been in any doubt that the judge regarded unfavourably the way in which Mr Adamson contended that he had not “been served” with the defence and affidavit. The judge’s reference to that topic in para [40] of his reasons was in substance reiterating what he had already said in the course of the trial. In the course of the trial Mr Adamson had several opportunities to seek to persuade the judge that he would be mistaken ultimately to take that view, but did not seek to enter on that task. It would, of course, have been a very hard task to enter upon. Also, the written submissions made on behalf of Mr Ede (para [109] above) made reference to Mr Adamson’s conduct in court as a matter relevant to his credit. In his closing oral submissions, Mr Sirtes invited the judge to take Mr Adamson’s conduct in court into account in assessing his credit [tp 198]. Mr Adamson was given an opportunity to reply to Mr Sirtes’ submissions, but did not contest the judge’s ability to take that conduct into account.

128 What matters for present purposes is that, quite apart from natural justice not requiring the judge to let Mr Adamson know how he viewed his contention about not having been served, the topic was in fact aired and could have been dealt with had Mr Adamson so wished.

Inconsistency Between Deed of Loan and Transfer?

129 Mr Adamson submitted to us on the appeal that he had a good argument about why there was no inconsistency between the Deed of Loan and the transfer. It was that Mr Ede was under significant financial pressure (including from the existing mortgagees of Lot 106, who were threatening to sell it), that the transfer could not take effect until after Mr Ede had become the registered proprietor of the entirety of Lot 106 (ie after registration of the transfer to him of Mrs Ede’s half share), that Mr Adamson was proposing to make an immediate advance to Mr Ede under the Deed of Loan, that the forgiveness of the amount advanced under the Deed of Loan would not occur until the transfer itself became effective, and thus that the purpose of the Deed of Loan was to provide Mr Adamson with a secured interest in Lot 106 during the period pending Mr Ede becoming registered proprietor of the entirety of Lot 106. As well, the Deed of Loan was to secure not only the $80,000, but any subsequent advances. Mr Adamson submits that if the judge had made clear that he saw a problem with inconsistency between the Deed of Loan and the transfer, Mr Adamson could have put those arguments to the judge clearly and forcefully.

130 I do not accept that there is a factual basis for Mr Adamson’s contention. In my view, the question of whether there was inconsistency between the Deed of Loan and the transfer was explicitly raised in the course of the hearing, and Mr Adamson had the opportunity to put whatever submissions he wished concerning it.

131 At the end of Mr Adamson’s submissions on 28 November 2007 the judge specifically invited submissions about whether the transfer and the deed of loan were inconsistent:

“... the transfer and the deed of loan are dated the same day. I don’t understand how it could be thought that if the transfer is to have a new purpose why you would have the deed of loan.”

132 Mr Adamson responded to that invitation, in a way that is unnecessary to set out, at tp 193.

133 Mr Sirtes, in his oral submissions on 28 November 2007 also dealt with the topic:

“Your Honour has already identified in exchanges with Mr Adamson the implausible and inexplicable circumstances that gave rise to the execution of the transfer. If someone is giving someone else $80,000 and says that they’re getting at the same time a two-thirds share of a property, then you simply enter a conveyance or you sign a transfer and the deed of loan just never comes into existence. So what you have, your Honour, is either a straightforward transfer, where two-thirds of that property is purchased for $80,000, in which case there is no question of there being any deed of loan and forgiveness of deed of loan and the complex array of transactions that occurred. You simply have a straight out purchase.

When Mr Adamson was confronted about this the response he gave during cross-examination and the response he gave your Honour just moments ago made no sense whatsoever. It is utterly inconsistent.”

134 Mr Sirtes raised again the argument about inconsistency between the Deed of Loan and the transfer in the written submissions he handed up on 29 November 2007:

“... the existence of the transfer was inconsistent with Ede’s execution of the Deed of Loan on the same day.

the Deed of Loan made no mention of any transfer of the 2/3rds of the property to Adamson. If this was the subject of agreement on that day, Adamson was at a loss to plausibly explain why the agreement was not notated when the terms of the Deed of Loan were typed and signed.

If Ede had agreed to effectively sell Adamson 2/3rds of the property in exchange for $80,000, why was the Deed of Loan entered at all. The existence of the Deed was to provide for the repayment of the $80,000 in circumstances where Adamson asks the Court to believe that what was in fact occurring was the opposite – that the money was being paid over absent any obligation of repayment.

If the parties’ agreement was for 2/3rds of the property to be owned by the Plaintiff, why was the Residential Tenancies lease signed by Ede the same day not reflecting the landlords as ASC [sic] 097 590 817 and Ken Ede?”

135 When the judge had expressly raised with Mr Adamson the apparent pointlessness of the Deed of Loan if the transfer forthwith forgave the loan, and Mr Sirtes explicitly put the argument, on no possible view could natural justice require the judge to give a warning that he was considering accepting the argument.

Evidence Concerning Financial Pressure on Mr Ede in 2001

136 Other material that Mr Adamson seeks to tender on the appeal is a document issued from the Small Claims Tribunal in Queensland on 5 July 2001, whereby a real estate agency sought orders against Mr Ede at a hearing due to take place on 12 July 2001. The orders related to recovery of possession of premises that Mr Ede had leased at Currumbin Waters, concerning which the real estate agent alleged repeated failures to pay rent, and claimed $835.60 for arrears of rent.

137 Another document sought to be tendered is a notice under section 57(2)(b) Real Property Act 1900 addressed to Mr Ede by Searson & Shannon, giving notice of intention to exercise power of sale over Lot 106 in consequence of failure to pay the principal of $80,000 that had been due on 16 January 2001.

138 In the course of cross-examination of Mr Ede, the following occurred:

“Q. Is it not the case that you were evicted from your premises at Currumbin in July, August 2001?

SIRTES: I object to that, your Honour.

HIS HONOUR: What possible bearing has that got on this matter?

ADAMSON: Well, I’m submitting that he came to Sydney and he stayed at – with me at Woolloomooloo for several months.

HIS HONOUR: What has the question of eviction got to do with it?

ADAMSON: All right, well, I’ll withdraw that.”

139 The topic of Mr Ede being evicted from his premises in Currumbin was not returned to.

140 Mr Adamson asked Mr Ede a question about whether in early 2001 he had received notices of default under the mortgage over the farm. That question was objected to, not ruled on, and withdrawn. There was no further attempt to cross-examine on that topic.

141 The material now sought to be tendered was all available at the time of trial, and related to topics concerning which Mr Adamson abandoned his attempts to cross-examine. There are no “special grounds” that justify reception of the evidence on the appeal.

Lack of Opportunity to Reply

142 In para [40] the judge said that Mr Adamson’s “conduct in lodging a caveat based on a document which gave no interest in land and signing a consent on the authority of a document which did not exist could not, I think, have been in error.” Mr Adamson submits to us that authority existed, and he was “not given an opportunity to reply”. He also submits that there were other evidentiary matters concerning which he was not given an opportunity to reply.

143 I do not agree that he was not given an opportunity to reply.

144 At the close of the case for Mr Ede, the following exchange occurred between the judge and Mr Adamson:

“HIS HONOUR: Any case in reply?

ADAMSON: No, your Honour, in view of; no, your Honour. Your Honour when you say in reply, my case is intended to be a claim on the plaintiff in respect of 6285 and a claim as cross-defendants 1 and 2, to the cross-claim.

HIS HONOUR: I understand that but usually a plaintiff is given an opportunity to have a case in reply on the actual claim.

ADAMSON: I think we have been through that.

HIS HONOUR: You have had your defence on the cross-claim. I am not suggesting you want to.

ADAMSON: I don’t think I will make submissions in reply again.

HIS HONOUR: I am just asking.”

Making Credit Findings Unnecessarily?

145 Mr Adamson submits that it would have been open to the judge to reach the same conclusion as he actually came to by preferring the evidence of Mr Ede to that of Mr Adamson, that thus the detrimental credit findings were not necessary, and thus the judge was in error to make them.

146 I do not accept that the judge was in error in this way. One reason why the judge was not in error is that the obligation of a trial judge in giving reasons for decision is to state the reasons that he or she really has for deciding the case, not to give a bowdlerised or sanitised version of those reasons. There may well be cases where a judge regards it as sufficient reason for concluding the case in one particular way to make a soft finding rather than a harsher finding – but a judge is justified in so doing only if the soft finding is at the end of the day the judge’s real reason for concluding the case that way. There is no legal obligation on a judge to choose the soft finding, when a case could be decided by either a soft finding or a harsher finding.

147 A second reason is that the case Mr Sirtes put made a thoroughgoing attack on Mr Adamson’s credit. The judge’s obligation was to deal with the case that was presented to him.

Conclusion Re Procedural Fairness and Evidence

148 In my view, Mr Adamson has not made out the contentions that he was denied procedural fairness, that the judge wrongly rejected evidence, or that this Court should admit evidence that was not before the trial judge.

Onus of Proof

149 At the start of para [41] of his reasons, the judge explicitly held that “on the validity or effectiveness of the transfer Adamson has the onus”. Mr Adamson submits that the judge erred in law in so deciding. I do not agree.

150 Mr Adamson’s case, concerning an interest in Lot 106, was initially based upon an agreement partly oral and partly in writing, of which the transfer was the written part. It seems that the allegation that the agreement was partly oral was withdrawn on the third day of the hearing (para [41] above). The defence denied the existence of the agreement sued on. The cross-claim explicitly pleaded that the transfer had been signed in blank, and pursuant to a misrepresentation. For Mr Adamson to prove his case, he bore the onus of proving the agreement he sued on. The transfer was part of that agreement as originally pleaded, and the whole of the agreement as ultimately submitted. The judge was right to hold that Mr Adamson had the onus of proving that the transfer, in the form it was tendered, was a valid and effective document: Currie v Dempsey (1967) 69 SR (NSW) 116 at 125; [1967] 2 NSWR 532 at 539; Coshott v Sakic (1998) 44 NSWLR 667 at 670-1. Conversely, Mr Ede had the onus of proving, for the purpose of the cross-claim, the allegations that he made in the cross-claim.

151 In arguing the appeal Mr Adamson relied upon Brott v The Queen [1992] HCA 5; (1992) 173 CLR 426 for the proposition that making a material alteration to a document, so that the document purports to be something that it is not, is forgery. He submits that Mr Ede’s case was in substance that Mr Adamson had forged the transfer, which is a species of fraud. Mr Adamson then relied upon Ledesma v Nobule [1999] NSWSC 928 at [9]- [10] and Banque Commerciale SA, en liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 to support his argument that the judge had misallocated the onus of proof. The parts of those cases to which Mr Adamson specifically referred support the proposition that a party who alleges fraud as part of his or her cause of action bears the onus of proving that fraud. They do not show that, when Mr Adamson was suing on the transfer and its validity and effectiveness was denied, he did not have the onus of proving its validity and effectiveness.

152 Even if, contrary to my view, the judge had been wrong in his decision about onus, the present is not a case where onus played a role in the outcome. The judge made express findings about the circumstances in which the transfer was executed. Those express findings led to a conclusion that Mr Adamson had not made out the agreement on which he sued, regardless of where the onus of proof might have lain.

153 One of the reasons Mr Adamson advanced for the judge’s decision on onus of proof being wrong was that “there is a presumption of validity of documents”. When, for the reasons I have given in the previous paragraph, the topic of onus of proof does not affect the outcome of this case, it is not appropriate for the Court to embark, unaided, on an examination of the scope of the presumption of regularity, and other presumptions that exist concerning documents.

Application for Leave to Appeal

154 Listed for hearing concurrently with the appeal is an application brought by the Trustee for leave to appeal concerning an interlocutory injunction granted by Windeyer J on 18 October 2007: ACN 097 590 817 Pty Ltd v Ede (NSWSC, Windeyer J, 18 October 2007, unreported). It is convenient to deal with it at this stage in the judgment.

155 In October 2007, Lot 106 was subject to a mortgage to Suncorp Metway Limited under which the amount secured was found by the judge “now appears to stand at approximately $141,000”. The Deed of Loan dated 31 July 2001 that was in evidence before the judge, had a term under which Mr Ede agreed that he would not further encumber Lot 106 “other than by a mortgage to Suncorp Metway for $82,000 to refinance the existing mortgage to Searson and Shannon Solicitors”.

156 One of the orders that the Trustee had sought in its Notice of Motion that the judge heard on 18 October 2007 was for Mr Ede to pay into court the difference between $82,000 and the then present balance of the loan. The judge declined to make that particular order. In his reasons for judgment he said:

“... I am prepared to make an order that until the determination of the proceedings, the loan to Suncorp Metway over Lot 106 not be further increased.”

157 The order actually made was:

“Upon the plaintiff and Mr C M Adamson giving the usual undertaking as to damages, I order that the defendant be restrained until the determination of this action or earlier order from taking any action whereby his indebtedness to Suncorp Metway Limited under mortgage over the land in folio identifier 106/753156 would be increased above the sum of $144,000.”

Costs of the Notice of Motion were made costs in the proceedings.

158 Mr Adamson seeks leave to appeal against the judge’s decision. He complains about two separate aspects of it – the unexplained increase in the amount of indebtedness permitted from $141,000 to $144,000, and the failure to give him his costs of the interlocutory application.

159 I would refuse the application for leave to appeal. The effect of the orders that I propose on the appeal from Windeyer J’s final judgment will be that Mr Adamson has no interest in Lot 106, and hence that the difference between the $141,000 and the $144,000 has made no practical difference to him. Putting it that way should not be taken as suggesting that, had it made a practical difference to him, leave to appeal would have been granted.

160 I see no reason to grant leave to appeal concerning the judge’s costs order. There is no rule whereby a plaintiff who successfully applies for an interlocutory injunction should receive an order for the costs of that application. Uniform Civil Procedure Rule 42.7 establishes a default position that costs of an interlocutory applications are costs in the cause. It is not unusual for costs of a successful interlocutory injunction application to be made costs in the cause, or plaintiff’s costs in the cause: Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 at [16]- [28] and cases there cited; Daniell’s Chancery Practice, 7^th ed, (1901) Stevens and Sons, vol 1, at p 957; Seton’s Judgments and Orders, 7^th ed, (1912) Stevens and Sons, vol 1, at p 244-5. The actual costs order made in a particular case remains a matter of judicial discretion concerning a matter of practice and procedure.

161 In the present case, bearing in mind that Mr Adamson had sought from the judge more extensive relief than the judge was prepared to grant, I see no basis on which there would be a realistic prospect of an appeal against the judge’s costs order being successful if leave were to be granted.

Bias

162 Mr Adamson contends that the trial judge displayed bias in the course of the hearing.

163 Mr Adamson made clear in submissions before us that the bias he was alleging was apprehended bias, not actual bias.

164 There is no dispute that the relevant principle for the Court to apply is that stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 [6], whereby:

“... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”

165 Mr Adamson drew attention to several different matters in support of his bias allegation. One is that the judge held that Mr Adamson had an onus of proof in relation to the authenticity of the transfer. When, as I have already held, the judge was right in so doing, that could not contribute to a reasonable perception of bias.

166 Another is the judge’s invocation, in para [42] of his reasons, of the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 concerning the absence of Mr Faddoul from the witness box. The principles concerning Jones v Dunkel, that I have discussed in Manly Council v Byrne [2004] NSWCA 123 seem to me to have been applied by the judge in a conventional way in reasoning in this fashion.

167 Mr Adamson also relies upon the allowing of the extra $3,000 by the judge, and the refusing by the judge of the costs order, in the interlocutory injunction applications. I have already held that there was no error in the costs decision. The additional $3,000 might, so far as the evidence shows, have been a slip on either the judge’s part or in transcription of his orders, or might have involved taking into account the prospect that interest could accrue on the Suncorp Metway debt before judgment was given. The interlocutory injunction hearing and the directions hearing were both conducted at 9.30 am, before the judge embarked on a full list as duty judge at 10.00 am. I do not regard the additional $3,000 as giving rise in a fair minded observer to an apprehension of bias.

168 The written submissions also placed reliance upon the judge’s failure to invite Mr Adamson to make submissions on the specific topics concerning which the judge made adverse credit findings. I have already held that, to some extent, the judge made clear in the course of the hearing that he was concerned about some of the matters upon which he ultimately relied for his credit findings, and that in any event he was not required to invite such specific submissions.

169 In my view, the challenge based upon bias fails.

The Claim Concerning $16,164

170 An issue about the $16,164 was clearly raised on the pleadings. The SFASC para [9] alleged that:

“In the period commencing 9 March 2002 to 9 March 2003, the plaintiff made further loans to the defendant totalling $16,164 which the defendant requested pursuant to the Deed of Loan dated 31 July 2001.”

171 The defence denied that allegation.

172 In his affidavit of 8 May 2007, Mr Adamson deposed to the following:

“18. In the period March 2002 to March 2003, the defendant was about to enter into a tenancy agreement for a unit at 54A Darling Point Road Darling Point NSW. The defendant said to me: ‘I would like to borrow moneys under the deed to pay the bond monies and first months rent for the tenancy?.’ I said ‘Yes, my family trust will pay those moneys to the landlord on your behalf as a further loan under the terms of the deed.’ The defendant said ‘I agree.’

19. In about April/May 2002, the defendant said to me ‘I have just found out that a friend on the Gold Coast is dying of cancer. She has asked me to help her out financially with medical and other expenses and rent. She doesn’t have long to live and promises to pay me back out of her property settlement with her husband or out of her estate. However, I can only help her if I can borrow money under the deed sufficient to pay the rent in Darling Point.’ I said ‘In the circumstances, my family trust will loan you moneys to pay your rent in Darling Point under the deed.’

20. In the period April/May 2002 to April/May 2003, the plaintiff loaned the defendant the sum of $16164.00 more or less ...”

No supporting documents were tendered concerning any such “loan”. No explanation was given of how that sum was made up, or what amounts were lent when.

173 In his affidavit in reply, Mr Ede denied the conversations in paragraphs 18 and 19, and deposed:

“I deny the existence of any loan for the sum of $16,164.00. I did not receive any such sum from Mr Adamson or the Plaintiff. I have never received any written or other request for repayment of any such.”

174 There was no specific cross-examination of Mr Adamson concerning the $16,164 “loan”. However, the cross-examination of Mr Adamson included a thoroughgoing attack on his credibility, that the judge accepted.

175 There was some cross-examination of Mr Ede concerning the alleged loan of $16,164:

“Q. Mr Ede, in 2002 is it not the case that you had a tenancy agreement at Darling Point Road, Darling Point?

A. At your request.

...

Q. And how was the rental paid in respect of that tenancy, Mr Ede?

A. You paid for those rental tenancies – that rental tenancy through my Warwick Credit Union I discovered much later on.

Q. And have you ever repaid me any part of that money or have you ever repaid anyone any part of those moneys?

A. You were residing there, Mr Adamson, I didn’t reside there.”

...

Q. And were you liable for rental in that tenancy agreement?

A. Whoever signed it obviously was, but you agreed that you would pay it because you were residing there.

Q. Yes, but do you agree that you signed the residential tenancy agreement?

A. I agree that I signed it for you.

...

Q. And was not the rent paid by way of moneys deposited into your Warwick account for that purpose?

A. No, Mr Adamson. You paid the money into that Warwick Credit Union account without my authority and also I – asked me on two occasions or three occasions to put money there because I’d stayed there for about three or four weeks on different occasions, so you asked for a rental assistance.

...

Q. Can you explain why the moneys were paid into your Warwick Credit Union account?

A. I never had access to the Warwick Credit Union account. As a matter of fact, it has your postal address on it from a certain date onward. I did not receive those bank statements at all until some time in 2003.

Q. But your evidence previously was that you knew that the moneys was paid – were paid into your Warwick Credit Union account for the purpose of paying the rent to the rent – the landlord? You knew the moneys were being paid?

A. Yes, I knew–

Q. You knew somebody was paying the money?

A. I found out later, yes, in 2003.

Q. Well, if you signed a residential tenancy agreement–

A. Mmm.

Q. –and you’ve acknowledged that you were liable under that agreement to the landlord, how did you think the rent was being paid?

A. You told me you were going to pay it and then I found out you were actually using my bank account to do it.

Q. Well, can you explain what arrangement there was that I would pay your rental?

SIRTES: I object to that, your Honour.

HIS HONOUR: He’s told you three times that you said you would.

...

HIS HONOUR: You’ve done your best with that. He’s admitted he’s liable to the landlord and he’s said that you’re liable and the agreement was that you were going to pay it.”

176 The only reference to the claim for $16,164 in the judgment is at [47] when the judge said:

“The plaintiff is entitled to judgment for $80,000 plus interest on that amount pursuant to the deed of loan. There is no evidence of any further moneys being due under that deed.”

177 Mr Adamson submits that the judge rejected the claim with insufficient reasons.

178 The oral submissions in the present case were transcribed in totality. The transcript shows that Mr Adamson made no oral submission to the judge relating to the additional amount of $16,164.

179 The obligation of a judge to give reasons can be affected by the type of submissions that are made. The absence of submissions on a topic can justify a judge in dealing with it more briefly than would be required if submissions of substance were made.

180 I am not persuaded that the judge was intending at [47] to say anything more than that there was no evidence that he accepted of any further monies being due under the Deed of Loan. I would not set the judgment aside insofar as it rejected the claim for the additional $16,164.

181 UCPR 51.53 forbids this Court from ordering a new trial unless it appears to the Court that some substantial wrong or miscarriage has occurred. In Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 69-70; 149 ALR 25 at 31, Hayne J (with whom Gaudron, McHugh, Gummow and Kirby JJ agreed) collected authorities relating to whether the amount at stake warranted a new trial. My reading of para [47] of the judge’s reasons means that it was not necessary to consider those authorities, or whether the failure of Mr Adamson to make any submissions on the topic meant that there was no miscarriage of justice involved in the judge failing to express himself more fully on that topic.

Judgment Obtained by Fraud

182 The grounds of appeal contended that the judgment had been obtained by fraud. The written submissions put this fraud as being that Mr Ede had given false evidence, that the judge had been duped into accepting.

183 This ground played no part in Mr Adamson’s oral submissions in this Court. It may be that that arose from Mr Adamson’s recognition that deciding whether there had been fraud in the giving of evidence was a task this Court could not carry out on the basis of the transcript.

184 However, it is appropriate to say that a contention that a judgment has been obtained by fraud ought be brought in separate proceedings, not by an appeal from the judgment alleged to have been obtained by fraud. The jurisdiction to set aside a judgment obtained by fraud is equitable in origin (Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538), and is now accommodated by the more general words of UCPR 36.15.

185 If the ground of appeal is persisted in, I am not satisfied that it has been made out.

Orders

186 The order I propose in 40052/08 is:

Appeal dismissed with costs.

187 The order I propose in 40053/08 is:

Application for leave to appeal dismissed with costs.

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LAST UPDATED:
26 November 2009