Deed Invalidated by Deficient Execution
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This article has some quite clever points in law but I have found that previous lawyers in AU as well as judges seem unable to grasp extremely simple points. One aspect is the obvious lack of a statute of limitation of Fraud in Victoria, and clearly perjury is ‘fraud on the court’. This is quite separate from a civil appeal process which they get bogged down in.
The reason that they are unable to grasp the points that other parties (outside Australia, Singapore and Sri Lanka can do blindfolded), is that a lot of fools have bought into the Melbourne Fraudsters and now do not know what to do to avoid massive damages claims from me 🙂
20170222 UPDATE 2 – EXECUTING DEEDS IN VICTORIA, AUSTRALIA
PROPERTY LAW ACT 1958 – SECT 73
Execution of deeds by an individual (1) Where an individual executes a deed, he shall either sign or place his mark upon the same and sealing alone shall not be deemed sufficient.
S. 73A inserted by No. 9043 s. 4.
Notwithstanding the fact that issues in relation to the Promissory Note should have litigated in Singapore, (as well as me deliberately not putting State of Victoria as the jurisdiction on the deed which is also evident, which a Victorian Deed requires), the Deed has not been executed under Victorian Law either.
Mind the Gap:-
2017022 UPDATE – CASE LAW IN AUSTRALIA
Today I remembered the case which I reviewed when drafting the Promissory Note. I am happy to confirm that I am spot on, both in relevance and interpretation 🙂
400 George Street (Qld) Pty Limited & Ors v BG International Limited  QCA 245 (10 September 2010)
The key aspects of 400 George Street are Mutual Acceptance as well as the Intention to be Bound and Delivery. It specifically demonstrates the situation in which the signatures of less than all the required parties for deed execution, does not result in an obligation on the parties who have signed. The result is the invalidation of the deed.
Muir JA states:-
 It follows, I think, from the conclusion just reached that the Instrument, although executed by the respondent with the intention that it become of contractual force and that it take effect as a deed when the other parties were bound by it, was never delivered. There was no “intention to be legally bound either immediately or subject to the fulfilment of a condition”. No “condition” existed. The basis on which the parties dealt was that no legal obligations would arise under any instruments executed by them until all were bound.
 In addressing an argument which was not pursued on this appeal that the parties became contractually bound when the letter of 7 October 2008 from the solicitors for the appellants was accepted by the respondent, the primary judge concluded, in effect, that the conduct of the appellants’ solicitors in relation to the above matters indicated that the appellants did not consider that the respondent was contractually bound at the time the documents were returned to them by the respondent’s solicitors. Equally, it may be said that the conduct of the respondent’s solicitors and of the respondent indicated that the respondent did not consider itself bound.[Brown confirmed in writing that the Promissory Note was ‘null and void’ – I said ‘‘As such, kindly sign the Promissory Note, get it witnessed and send me a colour scan. If you do not then no money will be sent anywhere’. In fact what then occurred was a resulting trust, but the Rhodium Australia set-offs then applied.]
 Earlier, I referred to the primary judge’s conclusion that it would not have been commercially realistic for the respondent, by executing the Instrument as a deed, to place itself in a position from which it could not withdraw whilst the other parties were not so bound. His Honour was of the view that if it had been the respondent’s intention that the Instrument be a deed, it was probable that the respondent or its solicitors would have stipulated expressly the conditions upon which it was delivered.
This is exactly that which I did. Mutual Acceptance was a condition of my attempted delivery and Brown was completely aware of the same. These conditions are so obvious from the construction of the document, as well as my repeated attempts for Brown to execute the document.
Brown’s execution would have provided the ACTIVE ACCEPTANCE that I sought from Brown, because he was continually dithering and changing his mind and I wanted to ensure that there were no subsequent issues of unconscionability and/or anything else.
Brown’s continual refusal to execute the agreement and well as labelling the document ‘null and void’ and even explaining why, demonstrated irrefutable conduct on the part of Brown that he did NOT want to execute the document.
By way of information, had I intended to be unconditionally bound (which is denied) then I would not have structured the document in the way that it is constructed. And additionally I would not have spent hours with Brown, discussing various items including but not limited to his Directorship of Synergize Consulting Pty Ltd and Mutual Acceptance. I also would have not continually asked him to sign the document after he took it from me under false pretenses, if I had not required it,
As can be seen the bottom section was deliberately added because I knew of the 400 George Street case and the implications of not requiring Mutual Acceptance in relation to a Deed.
Brown had “no intention to be legally bound either immediately or subject to fulfillment of a condition”, and de Saram required BROWN’S EXECUTION AND DELIVERY IN SINGAPORE, meaning (a) Brown signing it in Singapore, (b) having it witnessed at that time and (c) returning a colour scanned copy to de Saram.
Brown’s failure to execute and deliver immediately invalidated de Saram’s conditional execution and delivery, causing the document to become inchoate at that point.
The construction of the Promissory Note as a Deed requiring Mutual Acceptance, the conduct, and communication between the parties confirm, that the execution of the Instrument by de Saram had a contractual effect ONLY after Brown had executed it and delivered it.
This is the effect of Mutual Acceptance of a Deed – either all parties sign or no parties are deemed to have signed.
Consciousness of Guilt
Additionally, Brown suppressed both e-mails despite the Overarching Obligations on him for full discovery – it is a well known fact that ‘false exculpatory statements and ‘convenient’ omissions demonstrate consciousness of guilt‘ 🙂
20170220 – Briggs & Ors v Gleeds
On 15 April 2014 the UK High Court delivered its decision in Briggs & Ors v Gleeds (Head Office) (a firm) & Ors  EWHC 1178 (Ch), which confirmed the importance of ensuring that deeds are validly executed.
Non-Signature of the Deeds
From March 1991, some thirty documents, described as deeds (including deeds of amendment and deeds of appointment and retirement of trustees of the scheme) and meant to be executed as such, were not in fact effected in accordance with the relevant execution formalities set out in the Law of Property (Miscellaneous Provisions) Act 1989.
The Act, among other things, requires that for a document to be validly executed as a deed by an individual, it must be signed “by him in the presence of a witness who attests the signature”. This meant that each Gleeds’ partner’s signature to the deeds should have been witnessed. In the case of the thirty documents pertaining to be deeds, this was not done. This would not have been required if the employer was a company, but was required bceause it was a partnership.
The lack of a witness to signatures in the documents have led to the court invalidating 20 years worth of amendments relating to the Gleeds pension scheme. The outcome of the case and the serious implications for the pension scheme should remind entities to always check the execution requirements to ensure that the deed can not be invalidated at a later stage for lack of formalities.
A key element of the court’s decision is that it was obvious just by looking at the documents that Gleeds had not executed them properly.
Any party to a deed should check that the parties (including itself) have complied with the relevant execution formalities to avoid the risk of the deed being ineffective against some or all of them.
Validity and Enforceability
At common law to be valid and enforceable, a deed must fulfill several requirements:
- It must state on its face that it is a deed, using wording like “This Deed…” or “executed as a deed“;
- It must indicate that the instrument itself conveys some privilege or thing to someone;
- The grantor must have the legal ability to grant the thing or privilege, and the grantee must have the legal capacity to receive it;
- It must be executed by the grantor and/or grantee in presence of the prescribed number of witnesses, known as instrumentary witnesses (this is known as being in solemn form);
- In some jurisdictions, a must be affixed to it. Originally, affixing seals made persons parties to the deed and signatures optional, but seals are now outdated in most jurisdictions, so the signatures of the grantor, grantee and witnesses are primary;
- It must be delivered to (delivery) and accepted by the grantee (acceptance) via the method that the document requires.
Formalities of Deed Execution
There has been an increased focus on the requirements for execution of deeds since the Mercury case (R (on application of Mercury Tax Group Ltd) v HMRC  EWHC 2721 (Admin), which has increasingly led to a formalistic approach to execution.
At both the Federal and State levels, the substantive law of Australia is derived from the common law system of English law, so the above decision is entirely relevant.
Brown v de Saram – VIC CC ref CI-13-01735
Whilst there are many aspects to this case, particularly the perjury of Brown and the fact that all of his evidence was untested and the bogus interest calculation he relied upon, the decision at the County Court of Victoria was made in May 2014.
Judge Lacava should have been aware of the High Court decision from 15 April 2014 and its obvious ramifications on common law, and Dr Bill Orow representing de Saram should have known this as well. Orow’s decision to file an affidavit which can only be described as mediocre at best (it contained no rebuttal evidence) achieved nothing of any significance either apart from unnecessary costs for de Saram.
Unfortunately Lacava was the one who had previously read another barrage of lies on 02 July 2013 via another ‘Brown perjurious affidavit‘, this time for substituted service. The transcript confirms Lacava was hostile towards de Saram and also prejudiced.
The affidavit also confirms that the Browns’ favoured location for such affidavits is Boroondara Police Station, Kew Victoria 3101!
When the County Court decision was appealed to the Supreme Court of Victoria, they failed to set aside the judgment of the lower court, and also ‘assumed’ that Brown’s affidavit was genuine – unfortunately it was blatantly perjurious and once again the higher court failed to correctly apply the above High Court decision at common law and failed to even test the evidence of Brown.
Promissory Note Executed as a Deed
The Purported Promissory Note (“PPN”) that Brown used to obtain judgment is below. I required his signature and only gave him the PPN on the basis that I would only be bound by the terms by him signing it immediately. He refused to sign it in my presence at 56-03 The Sail despite I suggesting my worker (who was present) be the witness. Brown wanted Cunniffe to be the witness and I could not force him to choose a witness for obvious reasons of duress.
So I went with him to his hotel at Clarke Quay (after surviving the journey in which he actually tried to push me out of a moving taxi after a barrage of his flawed insults), and he caused a scene in the hotel lobby. Brown refused to execute the document and did not return it to me either.
I constructed the document and made Mutual Acceptance a prerequisite for it to be executed correctly and therefore valid only when both parties had signed the document with both signatures witnessed at the time of signing.
The High Court decision specifically addressed the invalidity of a deed when ‘it was obvious from the face of a document that it was deficient from the outset’.
Below are the pages from Brown’s Affidavit which demonstrate that the deed was not executed, thereby making it inchoate and therefore UNENFORCEABLE.
I have specifically used the words ‘Executed as a Deed:’ as well as ‘Signed sealed and delivered by: Joseph Shihara Rukshan de Saram in the presence of’ and ‘Signed sealed and delivered by: David Andrew Brown in the presence of’.
There is ABSOLUTELY NO DOUBT that Brown’s signature was required for proper execution as well as the signature of a witness. I constructed the document, and I told him that which he needed to do to ensure its valid execution, although it is OBVIOUS from the part with his name.
Brown was not interested and had NO INTENTION TO BE BOUND BY IT.
I SPECIFICALLY required ACTIVE ACCEPTANCE in order for valid execution of the deed but Brown was not interested. This is the reason the Promissory Note is a ‘Purported Promissory Note’ because it is inchoate and unenforceable.
In fact a few days later I received the following e-mail from Brown, relayed by Cunniffe (as she specifically states), whilst both of them were still in Singapore:-
As can be seen Brown’s position is that the PN ‘is null and void‘ (which is a confirmation in the present) and he also gives a written explanation as to why it is ‘null and void’. Brown confirms that the PN should have been provided before Brown left for Singapore and since it was not, it effectively ‘means nothing‘.
I do love the way my adversaries do nasty things to me and then accuse me of maltreatment – this is known as Psychological Projection.
I sent the following e-mail to Brown also around 13 March 2012:-
At paragraph (l) I am reminding Brown of his earlier e-mail of 09 March 2012 in which he seemed happy with the document and things in general. However his satisfaction with the proposed terms is certainly NOT valid execution of a document which has been prepared to the level of a Deed.
Even at paragraph (f) part (b) I have confirmed to Brown in writing that he ‘took the original from my apartment promising to sign it’. Once again my position is clear and demonstrates his specific [fraudulent] representation, the reliance upon which ended up with my signature on a document in his possession. Brown did not reject any of my assertions on the e-mail either, confirming that my account is actually the true version.
The Australian lawyers could not grasp ‘why I signed the document if I had not intended to be bound by it’ – well this is the explanation that fits the facts and scenario much better than their foolish conjecture – it relates to the logistics of the execution.
My signature on the document (which was witnessed by Edward de Saram on the previous day at the time I signed it) was predicated on Brown’s immediate signing and witnessing when I presented the original to him for signing. As such my own signature became invalidated due to Brown’s [fraudulent] representations.
To be binding on both parties and to be executed, his signature and that of his witness at the time of his signature was needed, on the original document.
As therefore can be seen, following on from my paragraph (l) above I make the position EXPLICITLY CLEAR when I have written ‘As such, kindly sign the Promissory Note, get it witnessed and send me a colour scan. If you do not then no money will be sent anywhere’.
I was not in a position to order Brown to sign due to issues of duress and unconscionable behaviour on my part. All I could do was explain to him how he needed to execute the deed (“the how”), and not advise him on the merits of signing (“the why”). I am really not sure how I could have been more helpful. The document in Brown’s possession needed to be properly executed to be valid.
Despite this e-mail Brown still refused to sign the Deed and this further confirms that Brown had ABSOLUTELY NO INTENTION TO BE BOUND BY THE PROMISSORY NOTE.
BROWN’S AFFIDAVIT CONFIRMING THAT THE AGREEMENT (“CONCORDANCE”) WAS THE PURPORTED PROMISSORY NOTE, IS PURE PERJURY 🙂
It is clear from the Brown AD that Subornation of Perjury has occurred, by McDonald Slater & Lay and/or Simon Vincent Breguet Thompson as most of the statements contained therein are false, and there are aspects of the AD which I know for a fact that Brown would not have stated.
Brown’s Bogus Interest Calculation
I have just realised from the above e-mail that I also paid SGD 3.6k to Brown because he had insufficient money – I need to check if this amount has been reduced off Brown’s ‘payments received’ because Brown confirmed that he received no further money from me or words to that effect in his Affidavit.
Collapsing the judgment based on a bogus interest calculation in which Brown is swearing blind that he received no further amounts (monies which would reduce the principal and/or interest even by his flawed logic) would in fact also be perjury.
By way of information I never agreed to cover their hotel bill and the cost of their stay, as the structure of my e-mail confirms. Brown’s underlying reason for wanting AUD 3k and ‘packaging’ it as the 1st month’s payment is because he did not have sufficient funds to pay for their hotel bill. Given that this was the reason it does confirm that they knew that they had to pay for their own costs and Cunniffe’s alcohol costs which exceeded the room costs from memory 🙂
I assisted them with cashflow all the time because they were poor, and I do believe Brown genuinely cared for Cunniffe. However I was not expecting their ridiculous behaviour as a ‘thank you’ though.
I could have easily transferred the AUD 200,000 to an attorney’s escrow account, and then kicked them out of my property for rental arrears and the other frauds they were running under Synergize Consulting Pty Ltd but Sherborne Preparatory and Mount St Mary’s College‘s Jesuit education taught me otherwise…
The discussion of other aspects of lack of intent as well as more on Brown’s Bogus Interest calculation is here:-
The sad thing is that Brown could have resolved this issue rapidly with me, without Cunniffe and MSL/Thompson goading him on, but the latter are two liars that are extremely convincing. I have recovered specific evidence to confirm my assertion.
Unfortunately Brown and Cunniffe were not making rental payments and also not working properly, and also had insufficient funds to clear their overall debts to me and move out.
During the period of the Special Leave application being made to the High Court, and the decision in relation the same, the HMRC-related fraud occurred (in November/December 2015).
As such there was absolutely no interest from my attorneys to do anything after they had received instructions from detectives/investigators to effectively (a) act as gatekeepers (b) delay me as much as possible, (but not to the extent that I go elsewhere) (c) protect Cunniffe and Brown from litigation and particularly a fraud case (d) ‘pull the plug’ on me at their command (e) package their instructions as those of the attorneys and get me to follow those strategies to my detriment.
The worse part was my attorneys making fraudulent misrepresentations to me to deliberately worsen my position, and having absolutely no interest to furthering my cases. They did not want to tell me the real reason so they lied continually. Linguistic Analysis on their audio recordings ‘before and after’, plus Behavioural Analysis and even IP traffic confirm my assertion.
UK/SG Parties should now be revisiting search warrants in the light of the continual demonstrable perjury of Cunniffe and Brown, as well as Spoliation of Evidence. I am going to be drafting applications against them quashing those authorisations because they were deficient and/or fraudulently obtained.
Denial of Natural Justice
The upshot is that I had absolutely no evidence before the court in relation to this matter, and the perjurious affidavit of David Brown remained unchallenged.
And no-one wanted to help me set aside the fraudulently-obtained judgment, so that the HMRC and/or associated party cases would be easier. However given the fact that I now have forensic evidence which nails everyone, everyone is stuck between a rock and a hard place!
New Attorneys are being engaged next week on 27 February 2017 when I am back, to set aside the Brown judgment and instruct counsel in relation to a Private Prosecution against them.
PS Interesting how the Mercury case above relates to the unlawfully-obtained search warrants by HMRC, in which full and frank disclosure was not provided – I have already identified various parties and my articles from September 2015 address those and related issues:-
6 September 2016
25 September 2016
Perverting the Course of Justice v5
Perverting the course of justice is an offence committed when a person prevents justice from being served on him/herself or on another party. This...
Joseph S R de Saram (JSRDS)