CIVIL — Injurious falsehood — Australian Consumer Law — Allegation of forgery of signature on guarantee for finance of property — Context of marriage breakdown between P and D — Not open on balance of probabilities that D, as opposed to another, forged P’s signature — P and D not in trade or commerce — No apparent loss suffered by P
Quick Take
1Where a forgery is established but multiple persons had opportunity and motive to commit it, the plaintiff must still prove on the balance of probabilities that the particular defendant was responsible; the gravity of the allegation (involving potential criminal conduct) requires the [name withheld] standard of 'reasonable satisfaction' commensurate with the seriousness of the finding sought.
2Deliberate untruths by a party (per [name withheld] v Zurich Financial Services Australia Ltd) may support adverse inferences, but where another person with independent motive and clear opportunity is implicated by the evidence, those untruths alone are insufficient to discharge the plaintiff's onus on a grave allegation of forgery.
3The 'in trade or commerce' requirement of ACL s 18 is not satisfied where the parties are spouses dealing with each other in the context of matrimonial property arrangements; the financial services carve-out from the ACL further precluded the claim.
