TRUSTS – Express trusts – resulting trusts – constructive trusts – requirements of writing
EVIDENCE – Documents – where lost – admission of secondary evidence – need to have personal knowledge of contents – admissions as to contents – admissions contained in later contract
Express written trust arising from the 1980 agreement
42 George seeks to prove the existence and terms of the 1980 agreement in various ways. First, he relies on direct evidence from those who say they saw the agreement – that is, himself and Rita. Second, he seeks to infer its existence and its terms from the contents of the 1990 agreement. Third, he relies on statements made by or on behalf of Mr and Mrs Minas concerning their interest in the Carlingford property. Those statements take various forms. There are the statements in the 1990 wills which were signed by Elie. There is the statement in the caveat concerning the interest that they claimed. There are the statements in Mrs Minas’s later wills. Finally, George and his sisters and some other witnesses give evidence of oral statements made by Mr and Mrs Minas concerning their interest in the property. Some of those statements were made in discussions leading up to the acquisition of the property. A substantial number of them were made after the property had been purchased.
43 Section 48 of the Evidence Act 1995 sets out how a party may adduce evidence of the contents of a document. Relevantly, it permits a party to prove the contents of a document by adducing evidence of an admission made by another party to the proceeding as to the contents of the document (s 48(1)(a)) or, where the document in question is not available to a party, by “adducing from a witness evidence of the contents of the document in question” (s 48(4)). Clause 5 of the Dictionary of the Evidence Act relevantly provides that a document is taken not to be available to a party if “it cannot be found after reasonable inquiry and search by the party”. Section 51 of the Evidence Act abolishes the common law principles applicable to the proof of the contents of a document.
44 Although s 51 of the Evidence Act abolishes the common law principles relating to the admissibility of evidence to prove the contents of documents, it does not affect the principle that, at least where property disputes are in question, clear and convincing evidence of the contents of the lost document is necessary. In Maks v Maks (1986) 6 NSWLR 34, for example, the plaintiff sought to establish by oral secondary evidence the contents of a declaration of trust by the defendant in favour of the plaintiff in respect of a half share in a house. McLelland J said (at 36):
“I am of the opinion that where the original writing is not produced and secondary evidence is relied on, there must be clear and convincing proof not only of the existence, but also of the relevant contents, of the writing, of the same order as the proof required to establish an entitlement to the rectification of a written instrument …, the two classes of case being to my mind in relevant respects analogous.”
See also Mack v Lenton (1993) 32 NSWLR 259 at 261 per Young J; Chapman v Luminis Pty Ltd (No 2)  FCA 1010 at  per von Doussa J.
45 There is no specific provision of the Evidence Act dealing with how the existence of a document is to be proved. That depends on the common law as modified by the general provisions of the Evidence Act .
46 I think that it is more likely than not that there was some form of written agreement dated 11 December 1980. I say that largely because of the terms of the 1990 agreement and the caveat prepared at the same time. I deal below with the question whether the fact that Elie signed the 1990 agreement (and the wills) can be taken as an admission by him in relation to the 1980 agreement. However, even if it is not, in my opinion, the 1990 agreement and the caveat are admissible to prove the existence of the 1980 agreement. Mr Phair signed the caveat. He could not recall seeing the 1980 agreement. However, he gave evidence that it was his practice to satisfy himself that there was at least some basis for the claim made in the caveat. The likelihood is that he saw a document dated 11 December 1980 and it was that document that formed the basis of that claim. Mr Phair could not recall preparing the 1990 agreement. However, he signed the letter dated 23 March 1990 to Mr and Mrs Minas enclosing a draft of that agreement. Again, the likelihood is that he reviewed the draft agreement even if he did not prepare it himself; and, again, it is difficult to see where the reference to an agreement bearing a date of 11 December 1980 would have come from other than from a document bearing that date. It is possible that Mr Phair did not actually see the 1980 document but was relying on a description of it given to him by Mr Minas or George. But in that case the document still must have existed in order to be described. The only other alternative is that Mr Minas or George gave Mr Phair the date and some description of the document sufficient to permit the caveat and 1990 agreement to be prepared in circumstances where no such document existed. That strikes me as unlikely.
47 What, then, were the contents of the 1980 agreement? As I have said, s 48 of the Evidence Act determines what is admissible in answering that question. Mr Loofs made two submissions in relation to that section. First, he submitted that the 1980 agreement was “not available” to George within the meaning of the Act. Consequently, he said, s 48(4) applied. Second, he submitted that that subsection should be read as permitting the admission of all evidence admissible in accordance with other provisions of the Act which was relevant to the contents of the document, or that it should at least be interpreted as permitting admissible hearsay evidence of the contents of the document.
48 I am prepared to accept that the 1980 agreement was “not available” to George in the sense required by the Evidence Act . The likely location of the document was at Mr Phair’s offices or among his parents’ papers. A subpoena was served on Mr Phair to produce documents but he did not produce a copy of the 1980 agreement. Although George did not give direct evidence of the searches that he had made among his parents’ papers, it is clear that he did search through those documents and he attached a number of them to his affidavit. I am prepared to infer that, as part of his searches, he also looked for the 1980 agreement and was unable to find it.
49 However, I do not accept Mr Loofs interpretation of s 48(4) of the Evidence Act . That subsection permits a party to adduce evidence of the “contents’ of the document. That evidence could take the form of evidence from a person who has seen the document and who can give evidence about what it contained. It could also take the form of another document that purported to record the contents of the document that is unavailable: Lewis v Nortex Pty Ltd (in liq)  NSWSC 337. However, I do not think that it includes evidence concerning people’s intentions or beliefs from which the contents of the document might be inferred. That evidence is not evidence of the contents of the document.
50 For similar reasons, I do not think admissible hearsay evidence of the contents of a document (such as evidence from a witness that Mr Minas told the witness about the contents of the 1980 agreement) is admissible under s 48(4). That evidence is evidence of what one person said to another concerning the contents of the document in question. It is not itself evidence of the contents of the document.
51 There is some support for the conclusion of the previous paragraph in the Report of the Australian Law Reform Commission that led to the Evidence Act (ALRC 38). In its Interim Report on Evidence (ALRC 26), the Commission recommended adoption of similar principles to those contained in the US Federal Rules in relation to the proof of the contents of documents. That recommendation was adopted in the Final Report (see ALRC 38 para 231) and the legislation drafted by the Commission to give effect to that recommendation (see cl 125(3) of the draft legislation appended to the Commission’s Report) was based, in part, on Rule 1004 of the US Federal Rules. That rule provides that “[t]he original is not required and other evidence of the contents of a writing, recording, or photograph is admissible” if certain conditions are satisfied. Section 48(4) is in substantially the same terms as cl 125(3). Rule 1004 does not state what “other evidence” is admissible to prove the contents of the document. However, Wigmore states the principle at common law in these terms:
“a person who proposes to testify to the contents of a document, either by copy or otherwise must have read it. He may not describe its contents merely on the credit of what another has told him it contains even though his informant purports to have read it aloud in the presence: Wigmore on Evidence, 1972 Volume 4, § 1278 (emphasis in original).”
52 It is hard to believe that the US Federal Rules intended to depart radically from the principle stated by Wigmore without expressly saying so. Similarly, it is hard to believe that the Australian Law Reform Commission in recommending adoption of a clause based on the US Federal Rules (cl 125(3)) intended to depart radically from that principle.
53 There is nothing in s 48(4) of the Evidence Act to suggest that it sets out the exclusive means of proving the contents of a document that it is not available to a party. It is still open to a party to prove the contents of a document not available to the party in accordance with subs (1) – and, in particular, by adducing evidence of an admission by a party concerning the contents of the document.
54 It follows from what I have said that the contents of the 1980 agreement can be proved either through admissions by Elie or through direct evidence of someone who saw the agreement.
55 Elie signed the 1990 agreement and, in the absence of an application to have it set aside, is bound by its terms: Toll (FGCT) Pty Ltd v Alphafarm  HCA 52; (2004) 219 CLR 165. However, it is not a deed and consequently does not give rise to an estoppel in relation to the facts asserted in it: see J D Heydon, Cross on Evidence (7th ed) at . In any event, any such estoppel would only operate in proceedings based on the 1990 agreement. It would not operate in proceedings the 1980 agreement: Offshore Oil NL v Southern Cross Exploration NL 9 (1985) 3 NSWLR 337. The 1990 agreement, and the wills signed by Ellie, may amount to an admission by him in relation to the facts asserted in them, but the weight of that admission depends on the circumstances in which they were signed. As Ryan J explained in Australian Competition and Consumer Commission v Pratt (No 3)  FCA 407 at :
“An agreement does not ordinarily constitute a representation by a contracting party. One reason for that is the difficulty in attributing a particular statement in the agreement to one party or the other. It is also notorious that parties to an agreement may elect to conduct their contractual relations and, if necessary, enforce the rights arising from them on a basis which is contrary to fact. That is not to say that no statement in an agreement or contractual document can ever constitute a representation in the sense used in the definition of “admission” in the Evidence Act . A recital to a deed or other written contract may, in its context, be so expressed as to warrant the conclusion that both contracting parties intended it to operate as an assertion of actual fact. In that event, the recital, in my view, would be admissible in later proceedings as an admission against either contracting party.”
See also Lustre Hosiery Ltd v York  HCA 71; (1935) 54 CLR 134 at 143-4 per Rich, Dixon, Evatt and McTiernan JJ.
56 In my opinion, the 1990 agreement is of little assistance in establishing the contents of the 1980 agreement and what assistance it is does not support George’s case. Recital A is the only provision of the 1990 agreement that purports to record the terms of the 1980 agreement. That recital suggests that George, but not Elie, was a party to the agreement. The operative terms of the 1990 agreement purport to vary the terms of the 1980 agreement. Consequently, it is difficult to see how they could operate as admissions by Elie of the terms of the earlier agreement. Even if they could, clause 1 (providing that Mr and Mrs Minas can remain in the property for the whole of their lives) seems unnecessary if they owned half the property.
57 I do not think that the wills signed by Elie take the matter any further. They could only amount to an admission if it could be said that Elie intended, by signing them, to adopt the statements made in them as his own. It strikes me as inherently improbable that someone would sign another’s will for the purposes of adopting the statements it contained, particularly when, at the same time, that person signed an agreement dealing with the same subject matter. The likelihood is that Elie signed the wills in error at the time that he signed the 1990 agreement. He did not pay close attention to what he was signing because of his father’s insistence, the heated debate that they were having and his concern to return to work.
58 Both George and Rita say that they saw the 1980 agreement and gave evidence of its terms. However, I think that this evidence needs to be treated with caution. George did not say when he last saw the 1980 agreement, although it appears from his evidence that it was at about the time that it was signed – some 30 years ago. He says nothing about what happened to the agreement after it was signed. His evidence was unreliable on other important aspects of the case (such as how the purchase price was made up) and the likelihood now is that his memory has been clouded by an emotional investment in the case.
59 The only person apart from George who says she saw the 1980 agreement is Rita. According to her, she raised a concern with her father shortly after the purchase of the Carlingford property about whether Mr and Mrs Minas would be protected. In response, Mr Minas went and got a copy of the 1980 agreement and asked Rita to explain it to him. Rita describes the document in much the same way as George in her affidavit. However, in cross-examination she was much less certain. She insisted she saw the four names. She admitted that she did not read the second page and did not understand all of the words used on the first page. However, she described what she saw in the following terms:
“I saw the Agreement 1980 and then I saw four names and four signatures. I saw the 25% on each one of them, next to them, whatever, up, down, it was there, 25%. I can see the signatures, but after that it is blocked …”
I do not find this evidence convincing. It is possible that Rita was shown a document by her father in 1980 but having regard to the amount of time that has lapsed and the evidence that she was able to give of it, I do not think that any weight can be placed on her evidence of its terms.
60 Mr Loofs submitted that the terms of the 1980 agreement could be inferred from statements made by Mr and Mrs Minas both at the time that the agreement was entered into and later and from Mrs Minas’s later wills. In particular, he relies on evidence from Maria to the effect that her parents told her on several occasions during the 1980s that they owned the Carlingford property with Elie and George in quarter shares. In my opinion, that evidence is not admissible under s 48 of the Evidence Act . In any event, I do not think that Maria’s evidence is reliable. Again, it is implausible that she would remember conversations from over 20 years ago. She was insistent that she could remember exactly what was said in circumstances where she clearly could not do so. Moreover, it is clear from an SMS message she sent to Elie that was highly critical of Elie’s decision to seek to take possession of the Carlingford property and that she thinks poorly of Elie for doing so. That view clouded the evidence that she gave.