By Stuart Eustice, Partner 

In a most interesting decision of the Victorian Supreme Court on 28 May 2020[1], the Plaintiff failed in her claim for specific performance of a contract for the sale of land. The Defendant contending it was not his signature on the contract. The Court heard evidence from lay witnesses and experts in hand writing. Neither were sufficiently persuasive, and the Plaintiff filed to discharge he burden of proof.

The Plaintiff (purchaser) sought specific performance of a contract for the sale of land said to have been executed by the Defendant (vendor). The Court set out two issues for determination, being –

1. Was the Defendant bound by the contract noting he denies it is his signature; and
2. If it was his signature, is the Plaintiff entitled to specific performance.

We will only look at the first issue in this article.

The Plaintiff gave evidence herself and otherwise relied upon evidence from lay witness Charlseworth (the plaintiff’s ex-defacto) who had negotiated the sale of land with the Defendant. The Plaintiff also called evidence from handwriting expert Holland. Similarly, the Defendant gave evidence himself and called evidence from hand writing expert Ganas.

In relation to the three lay witnesses named above, the Court concluded –

• The Plaintiff was mostly credible though not reliable, and was otherwise unimpressive with her recollection of events;
• Charlseworth was not an honest witness, lacked credibility and told lies (it should be noted Charlseworth had convictions in nearly every state of Australia for dishonesty offences, had pleaded guilty in 2006 to counts of fraud and was at the time of giving evidence in this proceeding, incarcerated in WA for unrelated fraud offences in 2011/2012);
• The Defendant was credible though not reliable given his dyslexia, inability to read figures, he could barely can read words nor write. His recollection of events was otherwise unsatisfactory.

As to the experts, the court made the following observations –

• The evidence in general was unsatisfactory given the expert evidence had not been based upon a common set of the defendant’s signatures;
• Holland basing his conclusion on a sample of signatures over a 15 year period from 1996 to 2011, had identified some 25 unique characteristics to the signatures and concluded the relevant signature in issue was that of the Defendant’s with some high degree of probability;
• Gana was inconclusive. He noted a lack of original documents upon which to review and analyse line quality, pressure, direction and pen lifts. Whilst the relevant signature did possess some similarity it could equally be that it was his signature, or the sample signatures were likewise not the defendant’s signature either.

The Court preferred Holland’s conclusions and methodology but noted it was only one piece of the evidence to take into consideration when determining the matter. Accordingly, accounting for the totality of Charlseworth’s influence and prevalence in the dealing, his unreliability and lies, the Plaintiff failed to establish the defendant had signed the contract for the sale of land.

Comments

This case is peculiar insofar as the key lay witness for the Plaintiff was clearly going to be of little weight, yet the magnitude of that lay witness’s unreliability was sufficient to displace what otherwise was well reasoned expert opinion supporting the Plaintiff’s claim. The Court otherwise provided some guidance for using experts in hand writing, including significantly that a common set of sample signatures should be used by both experts.

[1] White v Woodward [2020] VSC 258