WHEELER -v- SAVOLDELLI [2026] WASC 162

[2026] WASC 162 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : WHEELER -v- SAVOLDELLI [2026] WASC 162 CORAM : WHITBY J HEARD : 9 - 12 MARCH 2026 DELIVERED : 1 MAY 2026 FILE NO/S : CIV 1083 of 2024 BETWEEN : HEIDI HENDRIKA WHEELER Plaintiff AND GIUSEPPE SAVOLDELLI & CONCETTA SAVOLDELLI First Defendants EDDIE AHMED KAMIL Second Defendant THE REGISTRAR OF TITLES Third Defendant (BY ORIGINAL ACTION) EDDIE AHMED KAMIL Plaintiff by counterclaim AND GIUSEPPE SAVOLDELLI & CONCETTA SAVOLDELLI First Defendants by counterclaim -- 1 of 64 -- [2026] WASC 162 Page 2 HEIDI HENDRIKA WHEELER Second Defendant by counterclaim THE REGISTRAR OF TITLES Third Defendant by counterclaim (BY COUNTERCLAIM) GIUSEPPE SAVOLDELLI & CONCETTA SAVOLDELLI Plaintiffs by counterclaim AND EDDIE AHMED KAMIL Defendant by counterclaim (BY COUNTERCLAIM) Catchwords: Evidence - Assessment of credibility of witnesses - Inconsistency of witnesses' evidence - Documentary evidence - Authenticity of documentary evidence - Expert evidence - Forensic handwriting and document examination - Evidence Act 1906 (WA) s 31 - Forgery - Finding that a disputed document is a forgery - Onus and standard of proof - Briginshaw standard - Rules of the Supreme Court 1971 (WA) O 20 r 9 Contracts - Termination by notice - Whether notice of termination valid - Automatic termination by failure of special condition - Specific performance - Whether plaintiff is ready, willing and able Real property - Caveats - Validity - Priority of competing contracts of sale - Estoppel Legislation: Criminal Code (WA) Evidence Act 1906 (WA) -- 2 of 64 -- [2026] WASC 162 Page 3 Rules of the Supreme Court 1971 (WA) Result: Plaintiff's claim for specific performance of contracts is made out Orders made removing second defendant's caveats Second defendant's counterclaim dismissed First defendants' counterclaim against second defendant for damages granted Category: B Representation: Original Action Counsel: Plaintiff : C S Williams First Defendants : S R Sirett Second Defendant : P G McGowan Third Defendant : No appearance Solicitors: Plaintiff : Solomon Brothers First Defendants : Thomson Geer Lawyers Second Defendant : Butcher Paull & Calder Third Defendant : No appearance Counterclaim Counsel: Plaintiff by counterclaim : P G McGowan First Defendants by counterclaim : S R Sirett Second Defendant by counterclaim : C S Williams Third Defendant by counterclaim : No appearance Plaintiffs by counterclaim : S R Sirett Defendant by counterclaim : P G McGowan -- 3 of 64 -- [2026] WASC 162 Page 4 Solicitors: Plaintiff by counterclaim : Butcher Paull & Calder First Defendants by counterclaim : Thomson Geer Lawyers Second Defendant by counterclaim : Solomon Brothers Third Defendant by counterclaim : No appearance Plaintiffs by counterclaim : Thomson Geer Lawyers Defendant by counterclaim : Butcher Paull & Calder Case(s) referred to in decision(s): 1110 Hay Pty Ltd as trustee for the Hay Street Trust v Metso Minerals (Australia) Ltd [No 4] [2019] WASC 146 Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 277 CLR 445 Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 Bellmere Park Pty Ltd v Benson [2007] QCA 102 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Cardydis v Merrag Pty Ltd [2007] NSWSC 1220 Cherrycoast Enterprises Pty Ltd v Dr Francis John Roberts as Executor of the Estate of Kennyth Peter Roberts (Dec) [2002] WASC 28 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gange v Sullivan [1966] HCA 55; (1966) CLR 418 Heid v Reliance Finance Corporation Pty Ltd [1983] HCA 30; (1983) 154 CLR 326 Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2006] FCA 1802 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 Real Estate and Business Agents Supervisory Board and Kamil [2008] WASAT 189 -- 4 of 64 -- [2026] WASC 162 WHITBY J Page 5 Contents Introduction ........................................................................................................................... 6 Evidence ................................................................................................................................ 8 Chronology of relevant events............................................................................................... 9 Pleadings.............................................................................................................................. 12 Issues ................................................................................................................................... 13 Observations of witnesses ................................................................................................... 14 Mr Giuseppe 'Joe' Savoldelli ........................................................................................... 14 Mr Ahmed Eddie Kamil .................................................................................................. 15 Mr Anthony Collie .......................................................................................................... 20 Mr Hayssam 'Sam' Allan ................................................................................................. 21 Did Mr Savoldelli sign the Disputed 2021 Lease? .............................................................. 25 Pleadings.......................................................................................................................... 25 The Disputed 2021 Lease ............................................................................................... 25 Onus and standard of proof ............................................................................................. 26 Mr Savoldelli's evidence.................................................................................................. 31 Absence of an original document or any photocopy hard copy of the Disputed 2021 Lease ................................................................................................................................ 31 Expert evidence of Dr Strach........................................................................................... 32 My own observations of the Disputed 2021 Lease.......................................................... 35 Alleged metadata of the scanned copy of the Disputed 2021 Lease ............................... 39 Dates of signatures on the Disputed 2021 Lease ............................................................. 46 Inconsistency of the witnesses' evidence ......................................................................... 47 Contemporaneous documents inconsistent with Mr Savoldelli signing the Disputed 2021 Lease ................................................................................................................................ 48 Summary of findings ....................................................................................................... 51 Did the Savoldellis validly terminate the Wheeler Contracts? ............................................ 52 Pleadings.......................................................................................................................... 52 Mr Kamil's submissions .................................................................................................. 52 Failure to pay full amount of deposits ............................................................................. 53 Finance approval.............................................................................................................. 54 Is Mrs Wheeler entitled to specific performance of the Wheeler Contracts? ...................... 57 Did the Kamil Contracts automatically terminate pursuant to special conditions thereof? 58 Effect of Encumbrance Condition ................................................................................... 59 Estoppel ........................................................................................................................... 61 Determination .................................................................................................................. 62 Conclusion ........................................................................................................................... 63 -- 5 of 64 -- [2026] WASC 162 WHITBY J Page 6 WHITBY J: Introduction 1 Mr Giuseppe 'Joe' Savoldelli and Mrs Concetta Savoldelli own three short stay apartments (apartments 109, 221 and 321) at a complex in West Perth known as 'Perth City Apartment Hotel' (Apartments). Mr Eddie Kamil owns several apartments at the apartment complex and runs a business of managing and leasing out his and others' apartments. Mrs Heidi Wheeler also owns several apartments in the complex and manages and leases her own and others' apartments. 2 In December 2020, the Savoldellis signed an agreement to lease the Apartments to Mr Kamil in return for a guaranteed income amount (2020 Lease). It is not in dispute that the 2020 Lease was for a one-year term and expired in December 2021. 3 What happened next is in dispute. Mr Kamil says Mr Savoldelli came into the apartment complex in December 2021 and signed a new lease for the Apartments for another one-year term ending in December 2022. I will refer to this as the Disputed 2021 Lease. Mr Savoldelli's signature and handwriting appear on the Disputed 2021 Lease but Mr Savoldelli says he did not sign that document. Mr Kamil relies upon the Disputed 2021 Lease, specifically the clause granting Mr Kamil a 'first right of refusal' to buy the Apartments. The authenticity of the Disputed 2021 Lease was a matter of significant contest at the trial. 4 In November 2022, the Savoldellis and Mrs Wheeler entered into contracts for sale of the Apartments to Mrs Wheeler (Wheeler Contracts). Mr Kamil lodged a caveat over the Apartments preventing the settlement of the Wheeler Contracts relying on the first right of refusal clause contained in the Disputed 2021 Lease. 5 In July 2023, the Savoldellis, by their solicitors, purported to terminate the Wheeler Contracts. In August 2023, the Savoldellis entered into contracts with Mr Kamil to sell the Apartments to Mr Kamil (Kamil Contracts). Mrs Wheeler did not accept the termination of the Wheeler Contracts and lodged a caveat over the Apartments preventing the settlement of the Kamil Contracts. 6 These proceedings concern who is entitled to specific performance of contracts for the sale of the Apartments - Mrs Wheeler or Mr Kamil? -- 6 of 64 -- [2026] WASC 162 WHITBY J Page 7 7 In order to answer that question, much turns on whether I find that Mr Savoldelli signed the Disputed 2021 Lease. If I find he did, then Mr Kamil had a 'right of first refusal' under the Disputed 2021 Lease to buy the Apartments. The nature of that right of first refusal and whether it had been satisfied was also a matter in dispute. However, if Mr Savoldelli did not sign the Disputed 2021 Lease, then Mr Kamil had no 'right of first refusal' and the Savoldellis were free to sell the Apartments to anyone without offering them for sale first to Mr Kamil. 8 Credibility findings are central to determination of the issue of whether Mr Savoldelli signed the Disputed 2021 Lease. 9 For the reasons I will outline, I found Mr Kamil to be a dishonest witness. I also found the witnesses he called to corroborate his contention that Mr Savoldelli signed the Disputed 2021 Lease to be wholly unreliable. 10 When those credibility findings are considered, together with the expert evidence and the documentary evidence, I find that Mr Savoldelli did not sign the Disputed 2021 Lease. On the basis of that evidence, I find that Mr Savoldelli's signature and handwriting from the 2020 Lease were copied onto the Disputed 2021 Lease. I find that the Disputed 2021 Lease is a forgery. This means Mr Kamil cannot rely upon the Disputed 2021 Lease and he has no right of first refusal to purchase the Apartments. 11 Given this finding, the issues that remain to be considered are: (1) Did the Savoldellis validly terminate the Wheeler Contracts? (2) Did the Kamil Contracts terminate on the day they were due to be settled? 12 For the reasons that follow, I find the Savoldellis did not validly terminate the Wheeler Contracts and the Kamil Contracts did automatically terminate on the day they were due to settle. 13 The consequence of these further findings is that Mrs Wheeler is entitled to specific performance of the Wheeler Contracts and Mr Kamil's counterclaim fails. The Savoldellis are entitled to damages for trespass from Mr Kamil. 14 The parties agreed to bifurcate the determination of the issues as to liability and quantum in this matter and, on 22 October 2025, -- 7 of 64 -- [2026] WASC 162 WHITBY J Page 8 Master Russell made orders by consent to give effect to the separate trial of the issues relating to liability. Given this trial was only concerned with determining the liability issues, I am not required to, at this stage, assess the damages that Mr Kamil must pay the Savoldellis. 15 In these reasons, I set out the chronology of relevant events by reference to uncontested facts and those facts in dispute, the pleadings, the issues that arise in this case, my general observations of the credibility of some of the witnesses, the legal principles that apply to my findings of fact, my findings of fact by reference to the issues, and the consequences of those findings. Evidence 16 The trial was heard over four days from 9 to 12 March 2026. At the hearing, the following evidence was tendered: (1) a bundle of trial documents (exhibit 1); (2) the expert report of Dr Steven J Strach, forensic document examination consultant, 'The examination of Signatures and Handwriting in the Name Joe Savoldelli' dated 30 April 2025, (exhibit 2) (Strach Report); (3) an additional bundle of documents containing emails from Mr Sirrett to Mr Camp dated 31 July 2024 attaching a letter from Thompson Geer to Butcher Paull & Calder dated 29 July 2024 and redacted instructions from Thompson Geer to Evidence Advisory dated 29 July 2024 (exhibit 3); (4) Mr Kamil's diary pages from 29 November 2021 to 3 December 2021 (exhibit 4); and (5) two 'Guaranteed Income Lease Agreements' between Perth City Apartment Hotel and others (exhibits 5.1 and 5.2). 17 The plaintiffs called Mrs Wheeler and Mr Greg Wheeler to give evidence. 18 The first defendants called Mr Savoldelli and Mrs Savoldelli to give evidence. 19 The second defendant called Mr Kamil, Mr Anthony Collie, and Mr Hayssam Allan to give evidence. -- 8 of 64 -- [2026] WASC 162 WHITBY J Page 9 Chronology of relevant events 20 I set out below a chronology of relevant facts. Where facts are in dispute, I will identify the facts contended for by each party. The relevant facts are as follows. 21 On 1 December 2020, Mr Kamil emailed Mr Savoldelli the 2020 Lease and a proxy form for Mr Savoldelli to sign.1 On 3 December 2020, Mr Savoldelli emailed Mr Kamil a signed copy of the 2020 Lease and proxy form which Mr Savoldelli signed and dated 1 December 2020.2 22 On 29 November 2021, Mr Kamil emailed and requested Mr Savoldelli sign a new proxy form (2021 Proxy Form).3 23 Mr Kamil says that, on or around 1 December 2021, Mr Savoldelli attended the apartment complex and signed the Disputed 2021 Lease. Mr Savoldelli says that he did not attend the apartment complex at this time and did not then, or at any time, sign the Disputed 2021 Lease. There is no original or hard copy photocopy of the Disputed 2021 Lease. Mr Kamil relies upon a scanned copy of the Disputed 2021 Lease, which he says was scanned into his computer system on 4 December 2021.4 24 On 7 December 2021, Mr Savoldelli emailed Mr Kamil a signed copy of the 2021 Proxy Form.5 25 From 12 September 2022 to 10 October 2022, Mr Kamil and Mr Savoldelli exchanged emails regarding the possible sale of the Apartments by the Savoldellis to Mr Kamil.6 26 On 24 October 2022, Mr Kamil sent an email to Mr Savoldelli attaching a lease for the Apartments and requested Mr Savoldelli sign and email it back to him.7 27 On 8 November 2022, the Savoldellis entered into a contract to sell apartment 109 to Mrs Wheeler.8 On 17 November 2022, the Savoldellis entered into a contract to sell apartment 221 to 1 Exhibit 1, page 8. 2 Exhibit 1, pages 10 - 15. 3 Exhibit 1, page 20. 4 Exhibit 1, page 29. 5 Exhibit 1, pages 30 - 31. 6 Exhibit 1, pages 37 - 41. 7 Exhibit 1, pages 52 - 57. 8 Exhibit 1, pages 58 - 98. -- 9 of 64 -- [2026] WASC 162 WHITBY J Page 10 Mrs Wheeler.9 Also on 17 November 2022, the Savoldellis entered into a contract to sell apartment 321 to Mrs Wheeler.10 These are the Wheeler Contracts. 28 Between 18 November 2022 and 22 November 2022, Mrs Wheeler paid the deposits, save for an amount of $2,000, for the Apartments as required by the Wheeler Contracts.11 29 On 30 November 2022, Mr Kamil emailed Mr Savoldelli purporting to exercise an option to extend the lease of the Apartments for three months 'from the expiration date of [the Savoldellis'] lease'.12 30 On 2 December 2022, Mr Savoldelli emailed Mr Kamil a notice of termination purporting to give 30 days' notice of termination of the lease of the Apartments to Mr Kamil.13 31 On 6 December 2022, the settlement agents for the Savoldellis emailed the settlement agents for Mrs Wheeler stating 'we are still waiting for the balance of deposit from your client'.14 32 On 16 December 2022, Mr Kamil sent Mr Savoldelli an email stating that the notice of termination was not valid, and that '[o]ur rental agreement will expire 3 months from the 3rd of December 2022'.15 33 On 19 December 2022, Mrs Wheeler obtained finance approval for the purchase of the Apartments.16 34 On 29 December 2022, Butcher Paull & Calder, the solicitors for Mr Kamil, sent a letter by email to Mr Savoldelli stating they had been advised that Mr Savoldelli had received offers to purchase the Apartments and, pursuant to cl 4.1 of the 'management agreement', he was required to notify Mr Kamil of any sale of the Apartments and give him a first right of refusal.17 35 On 30 December 2022, Mr Savoldelli emailed Butcher Paull & Calder stating he had sent Mr Kamil a notice of termination on 2 December 2022 as the Apartments had been sold and the 'original 9 Exhibit 1, pages 99 - 135. 10 Exhibit 1, pages 136 - 172. 11 Exhibit 1, page 365. 12 Exhibit 1, page 175. 13 Exhibit 1, pages 182 - 185. 14 Exhibit 1, pages 360 - 361. 15 Exhibit 1, page 186. 16 Exhibit 1, pages 190 - 205. 17 Exhibit 1, page 210. -- 10 of 64 -- [2026] WASC 162 WHITBY J Page 11 contract' signed on 2 December 2020 was only for one year, had expired on 1 December 2021, and nothing else had been signed since then.18 36 On 4 January 2023, Mr Savoldelli sent Mr Kamil an email stating that the notice of termination 'has now occurred' and he required the Apartments to be vacant and to be handed over to the Wheelers.19 37 On 9 January 2023, settlement of the sale of the Apartments from the Savoldellis to Mrs Wheeler was scheduled to occur, but was rescheduled by the National Australia Bank to 12 January 2023.20 38 On 11 January 2023, Mr Kamil lodged a caveat over the titles of each of the Apartments (Kamil Caveats).21 39 The last date for drawdown on Mrs Wheeler's finance facility with the National Australia Bank was 17 June 2023.22 40 On 30 June 2023, Mr Kamil commenced proceedings in the Supreme Court of Western Australia by writ filed in CIV 1965 of 2023 seeking, amongst other things, an order that the Savoldellis transfer the Apartments to Mr Kamil (Kamil Proceedings). 41 From 27 July 2023 to 31 July 2023, the Savoldellis and Mr Kamil, by their solicitors, engaged in correspondence aimed at resolving the Kamil Proceedings.23 42 On 28 July 2023, the solicitors for the Savoldellis gave notice to the solicitors for Mrs Wheeler purporting to terminate the Wheeler Contracts.24 43 On 2 August 2023, the Savoldellis and Mr Kamil entered into the Kamil Contracts.25 44 On 3 August 2023, Mrs Wheeler lodged caveats over the Apartments (Wheeler Caveats).26 18 Exhibit 1, page 211. 19 Exhibit 1, pages 219 - 220. 20 Exhibit 1, page 260. 21 Exhibit 1, pages 222 - 259. 22 Exhibit 1, page 194. 23 Exhibit 1, pages 267 - 268 and pages 278 - 283. 24 Exhibit 1, pages 276 - 277. 25 Exhibit 1, pages 296 - 304. 26 Exhibit 1, pages 316 - 333. -- 11 of 64 -- [2026] WASC 162 WHITBY J Page 12 45 On 15 August 2023, the Savoldellis requested Mrs Wheeler remove the Wheeler Caveats.27 46 On 16 August 2023, Howard J made orders by consent discontinuing the Kamil Proceedings. 47 On 16 August 2023, Mrs Wheeler advised the Savoldellis that she was entitled to maintain the Wheeler Caveats.28 48 On 30 August 2023, the Savoldellis wrote to Mr Kamil advising they intended to terminate the Kamil Contracts.29 49 On 6 September 2023, Mr Kamil purported to affirm the Kamil Contracts.30 50 On 25 January 2024, Mrs Wheeler commenced these proceedings. 51 On 31 December 2025, Mrs Wheeler's finance approval for the purchase of the Apartments expired.31 52 On 22 January 2026, Mrs Wheeler paid the remaining balance of $2,000 outstanding for the deposits on the Apartments.32 Pleadings 53 Mrs Wheeler seeks specific performance of the Wheeler Contracts and removal of the Kamil Caveats. 54 The Savoldellis admit that: (1) they entered into the Wheeler Contracts; (2) Mrs Wheeler was ready, willing and able to complete the settlement of the Wheeler Contracts at all material times and that settlement of the Wheeler Contracts would have been completed but for the Kamil Caveats preventing that from occurring; (3) their unilateral termination of the Wheeler Contracts was unlawful and ineffective; and 27 Exhibit 1, page 334. 28 Exhibit 1, page 341. 29 Exhibit 1, pages 342 - 345. 30 Exhibit 1, page 346. 31 Exhibit 1, page 194. 32 Exhibit 1, page 473. -- 12 of 64 -- [2026] WASC 162 WHITBY J Page 13 (4) they entered into the Kamil Contracts. 55 The Savoldellis deny that Mr Savoldelli signed the Disputed 2021 Lease. The Savoldellis plead that the Kamil Contracts automatically terminated pursuant to the special condition clauses in the Kamil Contracts and seek, by way of counterclaim against Mr Kamil, damages for trespass and payment of outstanding amounts under the 2020 Lease. 56 Mr Kamil pleads that he has a first right of refusal to purchase the Apartments pursuant to the Disputed 2021 Lease and seeks specific performance, or alternatively damages for breach, of that clause. 57 Further, Mr Kamil pleads that the Savoldellis were entitled to and did terminate the Wheeler Contracts in July 2023 by reason of Mrs Wheeler's failure to pay the full deposits for the Apartments. 58 Further or alternatively, Mr Kamil pleads that he entered into the Kamil Contracts in reliance upon representations made to him by the Savoldellis and that the Savoldellis are estopped from denying they terminated the Wheeler Contracts. Mr Kamil seeks specific performance of the Kamil Contracts and removal of the Wheeler Caveats. 59 On 22 October 2025, Master Russell ordered there be a trial of preliminary issues, those issues being by reference to paragraphs of the pleadings. The effect of those orders is that all substantive issues are to be determined first, with any issues regarding loss and damage to be determined later. Issues 60 The following issues arise in chronological order: (1) Did Mr Savoldelli sign the Disputed 2021 Lease? (2) Did the Savoldellis validly terminate the Wheeler Contracts? (3) Is Mrs Wheeler entitled to specific performance of the Wheeler Contracts? (4) Did the Kamil Contracts automatically terminate at the settlement date? -- 13 of 64 -- [2026] WASC 162 WHITBY J Page 14 61 Before I turn to consider the issues and the evidence relevant to each issue, I will make some general observations about the credibility and reliability of some of the witnesses. Observations of witnesses 62 My assessment of the credibility of witnesses is generally made where I consider a witness's evidence in the context of the issues. But I set out below my general assessment of the credibility of Mr Savoldelli, Mr Kamil, Mr Collie and Mr Allan, as it is the evidence of these witnesses that is relevant to the signing of the Disputed 2021 Lease. 63 I make these general observations cognisant of the limited, if any, weight that may be given to the demeanour of a witness.33 I also do so mindful of the fact credibility findings should be avoided if they are unnecessary to decide the issues in this case. 64 I also note that even if I disbelieve a witness in respect of one particular matter, it does not mean other parts of the witness's evidence are not truthful. Further, findings of credibility are not factual findings, they are findings that assist me to determine the issues. Mr Giuseppe 'Joe' Savoldelli 65 Mr Savoldelli finished school in year 10. He then started an apprenticeship as a motor mechanic and obtained a trade certificate as a technician. He is currently employed as a fixed operations manager.34 66 Mr Savoldelli's evidence, so far as it was contentious, was that he did not sign the Disputed 2021 Lease. His evidence was that he did not attend the apartment complex in December 2021 as contended by Mr Kamil. 67 I found Mr Savoldelli to be an impressive witness who gave responsive answers. He did not embellish his answers and he was willing to say when he did not remember something in circumstances where his failure to remember did not assist his case. 68 I accept Mr Savoldelli's evidence unless it is inconsistent with contemporaneous documents. 33 See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow & Kirby JJ). 34 ts 67. -- 14 of 64 -- [2026] WASC 162 WHITBY J Page 15 Mr Ahmed Eddie Kamil 69 Mr Kamil's evidence about Mr Savoldelli signing the Disputed 2021 Lease was critical to determining several issues in this case. 70 There are some important matters that adversely affect Mr Kamil's credibility generally. 71 Mr Kamil was previously convicted, on his pleas of guilty, to offences of forging and uttering and of obtaining a benefit by deceit pursuant to s 409(1)(c) and (f) and s 473(1)(a) and (b) of the Criminal Code (WA) respectively. 72 The relevant facts of those offences are that, between 9 December 2005 and June 2006, Mr Kamil:35 (1) used another person's name to purchase property without that person's knowledge or consent; (2) forged the other person's signature as required throughout the purchase and settlement of the transaction; (3) gained a benefit of the first home owners grant of $7,000 and a reduction in stamp duty valued at $3,034 by fraud; and (4) misled or deceived the owners as to the identity of the purchaser of the property. 73 Mr Kamil was sentenced to a term of imprisonment for those offences. Mr Kamil was a real estate agent at the time he committed those offences. Mr Kamil also had his certificate of registration as a real estate cancelled and was disqualified from being registered as a sales representative or agent for 10 years. In making those orders, the State Administrative Tribunal stated:36 The finding that [Mr Kamil] is unfit to hold a certificate of registration is also bolstered by the related conduct of [Mr Kamil] that he made false representations to persons other than the owner of the property, namely, the authorities concerning the payment of the first home owners grant and reduction of stamp duty. The conduct of [Mr Kamil] at all material times is properly described as fraudulent. 35 Real Estate and Business Agents Supervisory Board and Kamil [2008] WASAT 189 (Kamil WASAT Decision). 36 Kamil WASAT Decision [46]. -- 15 of 64 -- [2026] WASC 162 WHITBY J Page 16 74 In cross-examination, Mr Sirrett asked Mr Kamil questions about those convictions. Mr Kamil gave the following evidence:37 [Q] Do you agree that you have some experience in forging documents? [A] No, I don't have experience in forging documents. [Q] Well, you've been convicted of an offence of dishonesty involving the forging of a number of documents relating to a property transaction in respect of which you served a term of imprisonment; is that correct? [A] That's - that's correct, and that's some 20 years ago, and I've learned from that, and it wasn't forging. [Q] I appreciate that it is some time ago, but do you agree that the facts of that case were that while you were employed as a real estate salesperson, you made an offer to purchase a property listed with your employer under the name of another person without their knowledge or consent, and that you forged a number of documents in order to enable the sale to be completed? [A] I didn't forge a document. I willy-nilly put any signature down. 75 Mr Kamil gave evidence that he met Mr Collie in prison.38 In cross-examination, Mr Kamil gave the following evidence about his knowledge of Mr Collies' previous convictions:39 [Q] When you employed Mr Collie, you were aware that he was a convicted fraudster? [A] He wasn't a fraudster. He got charged with stealing. He never did any fraud. He stole. [Q] Well, did - you're aware that Mr Collie has served three terms of imprisonment for fraud-related offences? [A] For stealing. Big difference. [Q] Are you aware that in May 2010, he was charged for fraudulently using corporate credit cards? [A] Stealing. 37 ts 152. 38 ts 202. 39 ts 202 - 203. -- 16 of 64 -- [2026] WASC 162 WHITBY J Page 17 [Q] And he pleaded guilty to 14 charges in March 2015 for defrauding $200,000 from investors through a fake computer service business? … [A] I didn't know about the investment thing. [Q] And then in February 2021, he was charged with 54 counts of fraud. Were you aware of that at the time? [A] There was allegations from Wheeler that he stole from him. Yes. 76 Mr Kamil's responses to these questions about his own convictions and those of Mr Collie are elucidating. Mr Kamil sought to downplay his and Mr Collie's previous convictions. He sought to distance himself and Mr Collie from any fraudulent conduct - characterising their previous offending as something other than fraud. It was in fact, properly characterised as fraud. Mr Kamil's prior offending related to forging property documents by applying someone else's signature to those documents indicates that Mr Kamil was dishonest. Mr Kamil's prior fraud offences are of a similar nature to what is alleged by Mr Savoldelli in this case - being that a document relating to property has been forged. 77 Mr Kamil's previous convictions for fraud, and his re-characterisation of both his and Mr Collie's convictions as something other than fraud, are relevant when assessing Mr Kamil's credibility. Both matters weaken my confidence in the character and trustworthiness of Mr Kamil as a witness of truth in relation to the authenticity of the Disputed 2021 Lease. 78 Mr Kamil's evidence was also replete with inconsistencies and was inherently implausible. I will outline further examples of the inconsistencies and implausibility when I come to consider the issues. However, the following examples demonstrate this point sufficiently: (1) the evidence established Mr Kamil generally communicated with Mr Savoldelli by email, including providing him with all documents he requested Mr Savoldelli to sign (the one and only exception being the Disputed 2021 Lease). It is highly suspicious that the Disputed 2021 Lease was the only document that Mr Kamil says he requested Mr Savoldelli to sign in person and the only document Mr Kamil did not provide Mr Savoldelli a copy of by email; -- 17 of 64 -- [2026] WASC 162 WHITBY J Page 18 (2) Mr Kamil gave no evidence-in-chief about the fact that cl 2.4, cl 2.41 and cl 4 of the Disputed 2021 Lease were highlighted. These clauses relate to the extension of the lease agreement period and Mr Kamil's right of first refusal to purchase the Apartments. In cross-examination, when asked about the highlights on those clauses in the Disputed 2021 Lease, Mr Kamil accepted that there was nothing in his evidence to explain why anyone would have placed those highlights on the Disputed 2021 Lease, but said that was because no one has asked him.40 In re-examination, Mr Kamil said he highlighted clauses in the Disputed 2021 Lease in December 2021 when Mr Savoldelli signed the document and Mr Allan was present. He said he made those highlights to reinforce to Mr Allan that the Apartments were not available for Mr Allan to purchase. However, Mr Kamil's evidence was inconsistent with Mr Allan's evidence. Mr Allan's evidence was no one made any alterations to the document while he was standing there.41 Mr Kamil's evidence as to the circumstances in which he made the highlights is also implausible given one of the highlighted clauses refers to Mr Kamil's option to extend the lease for three months - this clause is not relevant to an option to purchase the Apartments and there was no plausible reason for Mr Kamil to highlight that clause to Mr Allan. In my view, Mr Kamil's evidence in re-examination was a recent invention; (3) Mr Kamil said that he could not remember Covid restrictions as he did not 'believe in Covid' and was 'totally against it'.42 Given Mr Kamil was running a hotel during a time of travel restrictions and quarantine requirements, I do not believe that he would not remember Covid restrictions. Rather, his answers demonstrate an awareness that travel restrictions impacted upon the plausibility of Mr Allan's evidence; (4) Mr Kamil did not mention, in his affidavits filed in the Kamil Proceedings, the presence of Mr Allan at the time Mr Savoldelli signed the Disputed 2021 Lease;43 and (5) when asked if he suggested to Mr Allan that Mr Allan was present at the time Mr Savoldelli signed the Disputed 2021 40 ts 199 - 200. 41 ts 248 - 249. 42 ts 190. 43 ts 191. -- 18 of 64 -- [2026] WASC 162 WHITBY J Page 19 Lease, Mr Kamil said he did not suggest it to Mr Allan. Mr Kamil said he could remember Mr Allan saying to him at the time he met Mr Savoldelli in reception 'have you got a new employee?'44 Yet on Mr Kamil's and Mr Allan's evidence this is the first occasion that Mr Allan had stayed at the apartment complex - it is highly unlikely in my view that Mr Allan would have asked about a new employee, having only stayed at the apartment complex for the first time in December 2021. 79 I found Mr Kamil to answer questions in the way he thought would most assist his case. He claimed to have a very good memory of events where the narrative supported his case and claimed not to remember matters where they weakened his case. This resulted in inconsistencies in his evidence, examples of which I have outlined above. 80 Mr Kamil gave evidence in an attempt to bolster his case, on occasions adding his own unsolicited commentary to his answer. To give one example, when Mr Kamil was asked in examination-in-chief about his hard copy 2021 diary entry which said 'Doc, Joe + proxy', he commented 'luckily I kept them'.45 81 While I acknowledge that I should be reticent to find that a witness has lied, I do make this finding in relation to Mr Kamil. Such a finding is warranted when all the evidence is considered. For several compelling reasons I will outline, I find that Mr Kamil, or someone at his direction, forged the Disputed 2021 Lease by copying Mr Savoldelli's signature and handwriting that appeared on the 2020 Lease onto the Disputed 2021 Lease. It follows that I find Mr Kamil deliberately lied when he gave evidence that Mr Savoldelli signed the Disputed 2021 Lease. 82 I do not accept Mr Kamil as a truthful witness. I do not accept anything Mr Kamil said unless his evidence is in relation to a matter not in dispute, contains an admission against his interest, is consistent with a contemporaneous document, or is consistent with the evidence of a witness whose evidence I do accept. 44 ts 192. 45 ts 142. -- 19 of 64 -- [2026] WASC 162 WHITBY J Page 20 Mr Anthony Collie 83 Mr Collie and Mr Kamil met in prison.46 Both were in prison for fraud or dishonesty type offences. Mr Collie has been charged with fraud or dishonesty type offences on four previous occasions. He has been convicted on three occasions and served (or is serving) three prison terms for those convictions. Mr Collie is currently in prison for fraud and gave his evidence from custody. 84 After his release from prison for a previous conviction, Mr Collie was employed by Mr Kamil to work at the apartment complex. Mr Collie was employed by Mr Kamil from 2018 to 2023.47 Mr Collie's role included checking in guests, collecting payments from guests, dealing with customers and organisations making bookings, organising housekeeping, and general running of the apartment complex.48 85 Mr Collie gave evidence that he was present, along with Mr Kamil, when Mr Savoldelli signed the Disputed 2021 Lease in December 2021. 86 I found Mr Collie to be evasive when answering questions about his previous convictions. When Mr Collie was asked what offence he was currently in prison for, his response was '[i]t doesn't really matter'. Mr Collie confirmed the offence was fraud when I directed him to answer the question.49 When asked whether one of his previous convictions was for defrauding investors through a fake computer business, Mr Collie said 'I guess. I can't remember. It's a bit vague'.50 When asked if he was grateful that Mr Kamil gave him a job after he had spent time in prison for fraud, he said 'I'm grateful to anyone who gives me a job'.51 87 Mr Collie was also evasive when answering questions about his preparation for giving evidence in these proceedings. Mr Collie had a copy of his affidavit sworn on 27 June 2023 in the Kamil Proceedings with him as he was giving evidence. When asked who sent that affidavit to him, he initially said 'my lawyer', but when pressed in 46 ts 224. 47 ts 219. 48 ts 219 - 220. 49 ts 223. 50 ts 224. 51 ts 225. -- 20 of 64 -- [2026] WASC 162 WHITBY J Page 21 cross-examination about the identity of his lawyer, he said that the prison gave it to him.52 88 I did not find Mr Collie to be a credible or reliable witness. In my view, the most likely explanation for the differences between Mr Kamil's evidence and Mr Collie's evidence was that Mr Kamil had not had an opportunity to speak to Mr Collie freely before he gave his evidence and to confer about the evidence Mr Collie would give. Mr Collie only had his affidavit to prepare himself to give evidence and he gave a very unsatisfactory explanation for how that affidavit came into his possession. 89 I do not accept anything Mr Collie said unless his evidence is in relation to a matter not in dispute, contains an admission against his interest, is consistent with a contemporaneous document, or is consistent with the evidence of a witness whose evidence I do accept. Mr Hayssam 'Sam' Allan 90 Mr Allan was often argumentative and often gave unresponsive answers to questions. On other occasions he was effusive with irrelevant information - for example, his daily personal evaluations and self-appraisals, his daughter's hockey career and the suburbs in Perth he liked.53 I find he was so because he wanted to paint himself in a favourable light. 91 Mr Allan claimed he had a very good memory.54 Referring to when he met Mr Savoldelli at the apartment complex on 4 December 2021 and saw him sign paperwork, he said his memory was not hazy55 and that he 'remembered it exactly'.56 Mr Allan purported to give an account of his encounter with Mr Savoldelli in detail. As an example of the minutiae of that encounter Mr Allan recalled:57 They [referring to Mr Kamil and Mr Savoldelli] were talking together, quietly. They were talking together and that was when he introduced - no, sorry. He introduced him because I was talking about buying or leasing a property in Perth. Then that was when Mr Kamil said, 'Oh, I just took over this property'. His - 'you're staying at 221', and I went, 'Oh, okay', and that was when I, 'Hi, I'm Sam', exchanged, and then they 52 ts 228 - 229. 53 See for example ts 244, 253, 256. 54 ts 241. 55 ts 249. 56 ts 243. 57 ts 248. -- 21 of 64 -- [2026] WASC 162 WHITBY J Page 22 were fine - doing paperwork, and they were talking - whispering to each other … 92 I do not believe Mr Allan remembered a short encounter in 2021 with someone he had never met before in such detail. Mr Allan said the first time he was called upon to remember his encounter with Mr Savoldelli was in December 2025 when Mr Kamil spoke to him about it and they 'shared memories'.58 Mr Allan would have no reason to commit that short encounter in December 2021 to 'perfect memory' in that intervening period. 93 Mr Allan was also reluctant to accept that he was friends with Mr Kamil.59 I find that Mr Allan responded in an obfuscatory manner to questions about that friendship because he anticipated his relationship with Mr Kamil may undermine the credibility of his evidence. 94 I find that Mr Allan had no independent memory of Mr Savoldelli signing the Disputed 2021 Lease at the apartment complex in December 2021. 95 I note a further concerning issue with Mr Allan's evidence. 96 Mr Allan gave evidence that he came across to Perth from Melbourne, where he lived, on 1 December 2021 to stay at the apartment complex. Mr Allan said he was very clear on the date because Victoria was in firm lockdown.60 Mr Allan gave the following evidence about his travel from Victoria to Western Australia during the Covid lockdowns: 61 [Q] Did you have to negotiate any restrictions in travelling from Victoria elsewhere? [A] Yes. Well, you need to have - just after Bordertown, there's - you have a checkpoint, and sometimes it can be closed; sometimes it can be opened. So yes, at that time it was open, and travellers will tell you while we're driving along, 'Oh, the border is open. Perth is open', and you think, 'Beauty, I'm getting down there', and that's what you do. [Q] And is it correct to say you had no other business to come to Perth? You just wanted to come to Perth; I think that was your evidence? 58 ts 242. 59 ts 243, 257. 60 ts 241. 61 ts 252 - 254. -- 22 of 64 -- [2026] WASC 162 WHITBY J Page 23 [A] Actually, Perth has a bit of a sentimental value to me. My daughter is Australian champion in inline hockey, and if it wasn't for Perth adopting her as their lead player, Victoria would never have given her a chance to become Australian champion. [Q] Was she living in Western Australia at the time? [A] No. … [Q] So how did you get through the border? Wasn't the border closed in Western Australia and South Australia? [A] There were times when it would be closed, but in - when I left, about third week in January, it was open. Word got out that the border is open, and - - - [Q] Third week in January? Which year? [A] November, I said. I didn't say January, sorry. Third week in November, when I came down to the apartment, it was actually open. … Third week of November, the border was open. So when I heard the border was open, I raced down. I can show you photos, prove it to you. I raced down and came down, and I thought, beautiful. Yes, border is open. We came into Perth, or I came into Perth. [Q] Just you? [A] Yes. 97 Mr Allan said when he arrived in Perth he checked in to the apartment complex, paid cash, went out and had dinner. He said that during his stay in Perth he went walking through the city; he walked down the street and everyone said hello.62 98 There was no evidence adduced during the trial as to the Western Australian border restrictions in place in December 2021 due to the Covid pandemic. Certain facts however may be established without evidence, including facts judicially noticed. 99 Counsel for Mrs Wheeler submitted that judicial notice could be taken of the fact that Western Australia had a restricted border with Victoria in December 2021 due to the Covid pandemic that prevented 62 ts 255. -- 23 of 64 -- [2026] WASC 162 WHITBY J Page 24 access from interstate residents without significant quarantine requirements upon their arrival. Counsel submitted that the restricted border was not raised or lowered at whim.63 If judicial notice is taken of this fact, then Mr Allan's evidence as to how he came to be in Western Australia and meet Mr Savoldelli on 4 December 2021 would be rejected. The only reasonable inference available would be that Mr Allan did not witness Mr Savoldelli sign the Disputed 2021 Lease on 4 December 2021. Such a finding also impacts upon the reliability and credibility of Mr Kamil's evidence and Mr Collie's evidence. 100 If a fact is so generally known that every ordinary educated person may be reasonably presumed to be aware of it, the court may find the fact exists without formal proof of it by evidence.64 I find that, in December 2021, it was a notorious fact known by every ordinary educated person in Western Australia, that, as a result of the Covid pandemic, a person could not travel from Victoria to Western Australia unless they had permission to do so without quarantine or unless they quarantined for 14 days.65 The Western Australian border did not 'open' randomly on certain days and allow people from Victoria to travel to Perth. I take judicial notice of the fact that Mr Allan could not have travelled to Perth in December 2021 without either having permission not to quarantine or having to quarantine for 14 days. 101 Therefore, Mr Allan's evidence as to how he travelled to Western Australia in late November 2021, arriving on 1 December 2021 without having to quarantine, is implausible. It simply cannot be that Mr Allan witnessed Mr Savoldelli sign the Disputed 2021 Lease in early December 2021. 102 However, putting aside the fact that Mr Allan could not have travelled to Perth in December 2021 from Victoria without quarantining, I would not in any event, for the other reasons I have outlined, accept Mr Allan's evidence that he witnessed Mr Savoldelli sign the Disputed 2021 Lease. 103 I do not accept any of Mr Allan's evidence as credible or reliable. 63 ts 308. 64 Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 196 (Dixon J). 65 Controlled Border for Western Australia Directions pursuant to the Emergency Management Act 2005 (WA) s 67, s 70 and s 72A (as amended from time to time). -- 24 of 64 -- [2026] WASC 162 WHITBY J Page 25 Did Mr Savoldelli sign the Disputed 2021 Lease? Pleadings 104 Mr Kamil pleads that between 1 and 3 December 2021, he and the Savoldellis entered into the Disputed 2021 Lease for the lease of the Apartments for a period of 12 months commencing on 3 December 2021. Mr Kamil pleads that Mr Savoldelli signed the document on behalf of himself and Mrs Savoldelli, at the apartment complex on or around 1 December 2021, and that Mr Kamil signed the document on or around 3 December 2021.66 105 The Savoldellis deny that they entered into the Disputed 2021 Lease and deny that Mr Savoldelli signed the Disputed 2021 Lease.67 The Disputed 2021 Lease 106 There is only a copy of the Disputed 2021 Lease in evidence, that being a scanned copy.68 107 Mr Savoldelli's signature and handwriting appears on pages 1 and 4 of the Disputed 2021 Lease as follows: 69 Page 1 66 Second defendant's further amended defence and counterclaim dated 10 March 2026 [2.1]. 67 First defendant's defence to counterclaim and counterclaim against the second defendant dated 28 May 2024 [1]. 68 Exhibit 1, pages 21 - 26. 69 Exhibit 1, pages 22 and 25. -- 25 of 64 -- [2026] WASC 162 WHITBY J Page 26 Page 4 Onus and standard of proof 108 The parties agreed to tender documents contained in the trial bundle,70 save that Mrs Wheeler and the Savoldellis objected to the tender of the Disputed 2021 Lease. 109 A photocopy of the Disputed 2021 Lease became an exhibit,71 subject to the objections as to its authenticity. No party produced an original of the Disputed 2021 Lease. 110 Given it is Mr Kamil who seeks to rely upon the Disputed 2021 Lease, he has the onus of proving that the Disputed 2021 Lease is an authentic document signed by Mr Savoldelli. The standard of proof is on the balance of probabilities. To be satisfied, on the balance of 70 Exhibit 1. 71 Exhibit 1, pages 22 - 26. -- 26 of 64 -- [2026] WASC 162 WHITBY J Page 27 probabilities, that the Disputed 2021 Lease is authentic, I must feel an actual persuasion that it was signed by Mr Savoldelli.72 111 Mr Savoldelli contends that he did not sign the Disputed 2021 Lease, even though the document appears on its face to bear his signature and his handwriting. In determining whether Mr Savoldelli signed the Disputed 2021 Lease, it necessarily gives rise to a question of whether the Disputed 2021 Lease is a forgery and whether, given Mr Kamil produced that document, he (or someone on his instructions) forged the document. 112 However, O 20 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC) provides that a party must plead fraud or any fact showing illegality which they allege makes any claim of the opposite party not maintainable. Generally, an allegation of fraud, dishonesty, or impropriety must be specifically pleaded, unless such failure did not materially prejudice the opposing party.73 113 The Savoldellis do not plead that Mr Kamil, or anyone else, forged the Disputed 2021 Lease. They simply deny the allegation that Mr Savoldelli signed that document on or around 3 December 2021. 114 However, Mr Kamil seeks to rely upon a document that, on its face, bears the signature of Mr Savoldelli. Mr Savoldelli does not dispute that the signature is his, rather he says he did not apply his signature to that document. Mr Kamil gave clear evidence that Mr Savoldelli signed that document in his presence at the apartment complex on or around 1 December 2021. Mr Kamil called Mr Collie and Mr Allan as witnesses to corroborate his evidence of the occasion on which he says Mr Savoldelli signed the document. 115 Mr Kamil was on notice that Mr Savoldelli denied signing the Disputed 2021 Lease and intended to challenge the authenticity of the document relied upon by Mr Kamil. On 20 March 2025, a registrar of this court made orders by consent of the parties that the Savoldellis and Mr Kamil have leave to adduce expert evidence of a document and handwriting expert with respect to the authenticity of the Disputed 2021 Lease and ordered each provide the other with a copy of any report or statement as to the substance of the expert evidence (naming the expert) 72 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 (Briginshaw). 73 1110 Hay Pty Ltd as trustee for the Hay Street Trust v Metso Minerals (Australia) Ltd [No 4] [2019] WASC 146 [28]. -- 27 of 64 -- [2026] WASC 162 WHITBY J Page 28 by specified dates. The Strach Report is dated 30 April 2025. Mr Kamil elected not to adduce any expert evidence. 116 In their opening submissions filed on 4 March 2026, the Savoldellis submitted that the Disputed 2021 Lease was subject to forensic challenge, as would be the evidence adduced by Mr Kamil in respect of that document.74 117 During cross-examination, Mr Kamil was given an opportunity, in accordance with the rule in Browne v Dunn,75 to respond to the allegation that he, or someone at his direction, forged the Disputed 2021 Lease. Such questioning was not objected to by counsel for Mr Kamil. 118 In cross-examination, counsel for the Savoldellis put the proposition to Mr Kamil that the document was a forgery:76 [Q] I put it to you that someone, you or someone under your direction, in or about early January 2023, but before 3 January, created the 2021 lease by cutting and pasting elements of the 2020 Lease, that is from pages 1 and 4, on which Mr Savoldelli's handwriting appears, into a new document which you then produced as the 2021 lease? [A] No. [Q] And I also suggest that there were alterations made, perhaps with the use of liquid paper, to the information relating to the date information under Mr Savoldelli's name on the page 4 - - -? [A] No. [Q] - - - before it was copied and made - pasted into - sorry, before it was copied as a PDF document? [A] I think, if that was the case, your specialist would have picked it up. [Q] Sorry, I'm just asking a question? [A] No. 119 In closing submissions, counsel for the Savoldellis submitted that the evidence was sufficient to persuade me that the Disputed 2021 74 First defendant's outline of opening submissions filed 4 March 2026 [9]. 75 Browne v Dunn (1893) 6 R 67. 76 ts 198. -- 28 of 64 -- [2026] WASC 162 WHITBY J Page 29 Lease is a forgery.77 Counsel for Mr Kamil did not object to this submission. 120 There could be no suggestion that Mr Kamil was taken by surprise by an allegation of forgery or that a failure by the Savoldellis to specifically plead fraud materially prejudices Mr Kamil. The authenticity of the Disputed 2021 Lease was clearly a matter in contest between Mr Kamil and the Savoldellis at trial. 121 A finding that Mr Savoldelli did not sign the Disputed 2021 Lease cannot be made without making a finding as to how Mr Savoldelli's signature comes to be on that document. A finding that is open, given Mr Kamil relies upon the Disputed 2021 Lease and gave evidence that he saw Mr Savoldelli sign it, is that Mr Kamil, or someone at his direction, dishonestly created that document by copying Mr Savoldelli's signature and handwriting from the 2020 Lease (making some minor amendments) onto the Disputed 2021 Lease. 122 Given the seriousness of such a finding, I am mindful of the principles set out in the oft-cited passage of Dixon J in Briginshaw v Briginshaw:78 … when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality …. … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer.... In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. … It is often said that such an issue as fraud must be provided 'clearly', 'unequivocally', 'strictly', or 'with certainty'. (citations omitted) 123 In short, this means that the more serious the allegation, the more probative the evidence must be. It remains however, that the standard of 77 ts 286 - 287. 78 Briginshaw (361 - 362). -- 29 of 64 -- [2026] WASC 162 WHITBY J Page 30 proof required is on the balance of probabilities, even where the matter to be proved involves fraud.79 124 In considering whether Mr Savoldelli signed the Disputed 2021 Lease, I have had regard to the following matters: (1) Mr Savoldelli's evidence; (2) the absence of an original document in evidence; (3) the expert evidence of Dr Strach; (4) my own observations of the Disputed 2021 Lease; (5) the authenticity of the alleged metadata evidence of the scanned copy of the Disputed 2021 Lease; (6) the dates of the signatures on the Disputed 2021 Lease; (7) the inconsistencies in Mr Kamil's, Mr Collie's and Mr Allan's evidence; and (8) contemporaneous documents inconsistent with Mr Savoldelli signing the Disputed 2021 Lease. 125 I will set out in detail below my observations and findings in relation to each of these matters. 126 When all these matters are considered, I am of the view that the evidence clearly and unequivocally supports a finding that Mr Savoldelli did not sign the Disputed 2021 Lease. The irresistible conclusion - consistent with the pleadings and as put to Mr Kamil in (unobjected to) cross-examination - is that Mr Kamil, or someone at his direction, forged the document upon which Mr Kamil seeks to rely. Although fraud or forgery were not specifically pleaded, this finding is consistent with the requirements of O 20 r 9 of the RSC as: (1) there was no material prejudice to Mr Kamil as a result of those matters not being pleaded; and (2) consistent with the matters which were pleaded, in making a factual finding my choice is a binary one - either the document was signed by Mr Savoldelli and is authentic, as Mr Kamil 79 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 450 (Mason CJ, Brennan, Deane & Gaudron JJ). -- 30 of 64 -- [2026] WASC 162 WHITBY J Page 31 claims, or the document has been falsified, that is, it is a forgery. Mr Savoldelli's evidence 127 Mr Savoldelli's evidence in examination-in-chief was: (1) Mr Kamil sent him the 2020 Lease by email and he signed it and sent it back by email;80 (2) between 1 December 2020 and August 2022 all his dealings with Mr Kamil were done by email and he did not physically attend the apartment complex;81 (3) he attended the apartment complex in August 2022 and discussed the sale of the Apartments in person with Mr Kamil;82 and (4) the first time he saw the Disputed 2021 Lease was when he received Mr Kamil's caveat documents in January 2023.83 128 Under cross-examination, Mr Savoldelli confirmed that he signed the 2020 Lease, but remained resolute that he did not attend the apartment complex in early December 2021 and he did not sign the Disputed 2021 Lease.84 129 For the reasons I have outlined, I found Mr Savoldelli to be a credible and reliable witness. In the absence of any compelling evidence to the contrary, I accept his evidence that he did not sign the Disputed 2021 Lease. Absence of an original document or any photocopy hard copy of the Disputed 2021 Lease 130 Mr Kamil gave evidence that he did not have an original or photocopy hard copy of the Disputed 2021 Lease. Nor did he have a Word document version in his computer system. He said he only had a scanned copy of the document.85 80 ts 68. 81 ts 70. 82 ts 70. 83 ts 76 - 77. 84 ts 98 - 99. 85 ts 153. -- 31 of 64 -- [2026] WASC 162 WHITBY J Page 32 131 Mr Collie's explanation for the absence of any hard copy of the Disputed 2021 Lease was:86 [Q] What would you usually do with a lease that had been signed? [A] Well, that's a funny question, that one. So when I got arrested - which you obviously know about because I'm in prison - so the police went through all of our paperwork. A lot of things were missing at the time, because a lot of - it was just all over the place. So, unfortunately, this happened. What normally would have happened was it would have gone into a file, but sometimes it would have gone into an out tray. But the police took a lot of paperwork at the time, you know. So if it has gone missing, that would mean that problem I guess. [Q] Well, you don't know that, do you? That the police took it? [A] Well, who else would have taken it? 132 I do not accept Mr Collie's explanation for the absence of an original or hard copy of the Disputed 2021 Lease as reliable or credible. In any event, his explanation amounts to pure speculation. 133 A reasonable inference open on this evidence is that neither the original nor a hard copy photocopy exists because the Disputed 2021 Lease did not exist. Rather, it was forged at a later date. Expert evidence of Dr Strach 134 Dr Strach is a forensic handwriting and document examination consultant. Dr Strach's curriculum vitae was attached to the Strach Report.87 135 Dr Strach was provided with PDF copies of the 2020 Lease (which he refers to as 'S1'), the Disputed 2021 Lease (which he refers to as 'Q1'), the Notice of Termination, and pages of two affidavits of Mr Savoldelli bearing his signature. Dr Strach was requested to provide his expert opinion regarding the origin of the handwriting on the Disputed 2021 Lease. 136 Dr Strach used a mechanical means to enlarge the dimensions of the handwriting on the Disputed 2021 Lease, so that a visual comparison could be made between the handwriting and signature appearing on the 2020 Lease and the Disputed 2021 Lease. Dr Strach 86 ts 234. 87 Exhibit 2. -- 32 of 64 -- [2026] WASC 162 WHITBY J Page 33 then overlaid the handwriting and signatures to compare the similarity of the handwriting on the two documents. Dr Strach confirmed that the adjustment of the writing sample dimensions did not cause any distortion in the structure of the handwriting, it merely allowed for the comparison of the samples to be made.88 137 In relation to the signature and handwriting of Mr Savoldelli appearing on the first page of each document, Dr Strach produced the following comparison by superimposing the images:89 138 The red image is the handwriting and signature appearing on the 2020 Lease. The black image is the handwriting and signature appearing on the Disputed 2021 Lease which has been adjusted in size from the copy of the Disputed 2021 Lease. In the first example, the images are offset slightly. In the second example, the images are superimposed. 139 In relation to the signature and handwriting of Mr Savoldelli appearing on the fourth page of each document, Dr Strach produced the following comparison by superimposing the images:90 88 ts 125. 89 Exhibit 2, comparison chart 1. 90 Exhibit 2, comparison chart 2B. -- 33 of 64 -- [2026] WASC 162 WHITBY J Page 34 140 The red image is the handwriting that appears on the 2020 Lease. The black image is the handwriting that appears on the Disputed 2021 Lease which has been adjusted in size from the copy of the Disputed 2021 Lease. The images are superimposed over one another. 141 Dr Strach's expert opinion is that 'there is a strong support for the proposition that the writings (name and signature) reproduced on the [Disputed 2021 Lease] derive from the original or other copy of such writings reproduced on [the 2020 Lease], with changes in size and in small details of the end of the signature, rather than for a proposition that these are reproductions of separate writings in which the observed degree of coincidence has occurred by chance'.91 Dr Strach also examined other samples of Mr Savoldelli's signature on the documents he was provided and concluded that Mr Savoldelli did not have a propensity to write signatures or other writings with similar context in close to an identical manner.92 142 In cross-examination, Dr Strach agreed that the low quality reproduction of the writing on both documents was a limitation of his examination of the documents.93 143 In re-examination, Dr Strach confirmed that, after adjusting the size of Mr Savoldelli's signature and handwriting on the Disputed 2021 Lease to mirror the size of Mr Savoldelli's handwriting and signature on the 2020 Lease, the signature, handwriting and written text of those two documents 'comes into correlation'.94 144 Stripped of technical terms, I understood Dr Strach's opinion to be that there was strong support for the conclusion that the signatures and 91 Exhibit 2, pages 6 - 7 [22], [24]. 92 ts 117. 93 ts 118. 94 ts 125. -- 34 of 64 -- [2026] WASC 162 WHITBY J Page 35 handwriting of Mr Savoldelli appearing on pages 1 and 4 of the Disputed 2021 Lease had been copied, with some small amendments, from pages 1 and 4 of the 2020 Lease. 145 Counsel for Mr Kamil submitted that, by virtue of s 31 of the Evidence Act 1906 (WA), evidence in relation to the genuineness of handwriting remains a matter for the judge. Counsel for Mr Kamil submitted that Dr Strach's evidence did not assist me in determining whether Mr Savoldelli signed the Disputed 2021 Lease because all Dr Strach had done was compare the handwriting and signatures on the two leases - something I can do myself. 146 Section 31 of the Evidence Act provides: Comparison of a disputed hand writing with any writing proved to the satisfaction of the judge to be genuine may be made by witnesses, and such writings and the testimony of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. 147 This section allows me to accept expert evidence on the comparison of handwriting in order to assist me.95 However, the function of any such expert evidence is not to express a conclusion as to authorship or otherwise of a document, which is a matter for me, but rather to 'point out similarities or differences, and leave the court to draw its own conclusion'.96 148 Accordingly, while I must draw my own conclusion as to whether the signature and handwriting on the Disputed 2021 Lease was applied by Mr Savoldelli or by some other means, I regard Dr Strach as qualified to assist me in determining the authenticity of the Disputed 2021 Lease. In my view, Dr Strach's adjustment of the size of the writings and the overlay of the writings is evidence that assists me in assessing the authenticity of the Disputed 2021 Lease. My own observations of the Disputed 2021 Lease 149 In providing his expert opinion, Dr Strach was necessarily confined to a comparison of handwriting and signatures. However, it is open to me to take a broader view which involves a consideration of other evidence. 95 Cherrycoast Enterprises Pty Ltd v Dr Francis John Roberts as Executor of the Estate of Kennyth Peter Roberts (Dec) [2002] WASC 28 [59] (McKechnie J). 96 Cross on Evidence (14th Aust ed, 2024) 1569 [39105]. -- 35 of 64 -- [2026] WASC 162 WHITBY J Page 36 150 From my own observations of the Disputed 2021 Lease, I have no doubt that the signatures and handwriting that appear on the Disputed 2021 Lease were applied to that document by copying them from the 2020 Lease. 151 The handwriting and signature of Mr Savoldelli appearing on the first page of the Disputed 2021 Lease appear to me to be almost identical to those appearing on the first page of the 2020 Lease. There is also a remarkable similarity between the handwriting and signature that appears on the fourth page of each document. The only difference being the removal of a plus sign between the numbers 221 and 109 (which is replaced by a comma) and the alteration of the '0' in '2020' to a '1' in '2021'.97 Although it is impossible to determine exactly how these changes were made given there are no originals of either document, these differences could, in my view, have been easily made with liquid paper and a pen. 152 There is another unusual feature which I observe on the face of the Disputed 2021 Lease which causes me to doubt its authenticity. The margin on the page number '1' and the signature block of Mr Savoldelli on the first page of the Disputed 2021 Lease does not align with the typed text on that page:98 97 Exhibit 1, pages 13 and 25 respectively. 98 Exhibit 1, page 22. -- 36 of 64 -- [2026] WASC 162 WHITBY J Page 37 153 By contrast, on the 2020 Document, the page number '1' and the signature block of Mr Savoldelli align with the typed text:99 99 Exhibit 1, page 10. -- 37 of 64 -- [2026] WASC 162 WHITBY J Page 38 154 In cross-examination, Mr Kamil gave the following evidence when questioned about the difference in the margin:100 [Q] Well, putting aside any computer gremlins for the moment, would you agree that you would have had no reason at all to 100 ts 195. -- 38 of 64 -- [2026] WASC 162 WHITBY J Page 39 change the formatting on that block at the front of the 2021 document? [A] I can't explain why it would have - the indentation would have gone. 155 In cross-examination, two other lease agreements Mr Kamil entered into with other unrelated parties were put to Mr Kamil. Mr Kamil accepted that he prepared those leases.101 On the first page of each of these leases, the page number and signature block is aligned with the text section of the document that follows.102 Mr Kamil was asked in cross-examination if he was aware of any other documents he had created where he had formatted them so the indentation on the right side of the first page did not align the page number and the signature block with the text section. He answered '[n]ot that I can remember. No'.103 156 This evidence is consistent with the finding that the page number and signature block on page 1 of the Disputed 2021 Lease were copied from the 2020 Lease and applied to the front page of the Disputed 2021 Lease. It is inconsistent with that signature block forming part of an original document signed by Mr Savoldelli in December 2021. Alleged metadata of the scanned copy of the Disputed 2021 Lease 157 One piece of evidence that Mr Kamil sought to rely upon as proof of the authenticity of the Disputed 2021 Lease was the following 'screenshot' of a pdf of the last page of the Disputed 2021 Lease with an overlaid document properties box (Screenshot).104 101 ts 196. 102 Exhibits 5.1 and 5.2. 103 ts 197. 104 Exhibit 1, page 29. -- 39 of 64 -- [2026] WASC 162 WHITBY J Page 40 -- 40 of 64 -- [2026] WASC 162 WHITBY J Page 41 The document properties box on the Screenshot, when enlarged in size, reveals: 158 Mr Kamil gave the following evidence in examination-in-chief about this Screenshot:105 [Q] Mr Kamil, now, I'm going to take you to page 29 of the trial bundle. Can you tell her Honour what this is? What are we looking at here? [A] So it's the last page where you can clearly see I signed it. [Q] The last page of what? [A] Of the lease agreement. 105 ts 143. -- 41 of 64 -- [2026] WASC 162 WHITBY J Page 42 … And you can see where I've signed it, and where Joe has clearly accepted it. And then you can also see the footprint of the document which establishes the time that it was created. [Q] And is this, what we're looking at here, is this exercise, is this something that you have carried out? [A] Yes, I was asked to have a look to see the date that it was created to provide evidence. 159 The document properties box states the 'Date created' is 4 December 2021. 160 Mr Kamil prepared the Screenshot for the purpose of proving the authenticity of the Disputed 2021 Lease. The Screenshot is not a 'business record' as provided for in the Evidence Act as it was not prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business. Therefore, the Screenshot is not admissible as a business record pursuant to s 79C(2a) of the Evidence Act. 161 Mr Kamil contends the document properties box in the Screenshot is 'metadata' evidence that the Disputed 2021 Lease was scanned into his computer system at 4.25 pm on 4 December 2021. 162 The concept of metadata was described by Tamberlin J in Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd:106 The expression 'meta-data,' … is a reference to electronic information created by and embedded in electronic documents in the form of electronic data. The term describes data contained within an electronic file relating to the identification, origin or history of the file itself. It is, in effect, electronic information about other electronic data. Meta-data can be used to ascertain the author and origin of a document, the existence of any attachments, and whether the document was sent or received by any particular individual. The information which is contained in the meta-data is not visible on a print-out of the relevant document, which shows only the face content and does not disclose the layers of electronic data beneath the visually readable information. 163 Mr Kamil is seeking to prove the authenticity of the Disputed 2021 Lease. The Screenshot is the only document, other than the scanned copy of the Disputed 2021 Lease itself, that Mr Kamil seeks to rely upon to prove its authenticity. Mr Kamil did not adduce any expert evidence to verify how the Screenshot was created. Mr Kamil also did 106 Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2006] FCA 1802 [11]. -- 42 of 64 -- [2026] WASC 162 WHITBY J Page 43 not adduce any evidence of metadata of a Word version of the Disputed 2021 Lease in his computer system, despite his evidence the Disputed 2021 Lease would originally have been created in Word.107 Mr Kamil's evidence was he did not have a Word document in his computer system for the Disputed 2021 Lease because the Word document has been changed and updated, and he does not have a Word document for 'that particular lease'.108 164 I do not accept that the document properties box on the Screenshot is a genuine representation of metadata of the Disputed 2021 Lease. Without independent verification as to the authenticity of the purported metadata, I cannot accept the Screenshot as evidence of metadata of the Disputed 2021 Lease, and therefore as evidence of the date that the Disputed 2021 Lease was scanned into Mr Kamil's computer system. 165 The Savoldellis' solicitors requested that Mr Kamil grant access to his computer system to an expert to undertake a forensic analysis of the 2020 Lease and the Disputed 2021 Lease. This correspondence culminated in the Savoldellis engaging an expert to attend the apartment complex to inspect Mr Kamil's computer system.109 The expert attended at the apartment complex on 31 July 2024, but Mr Kamil refused the expert access to his computer. Mr Kamil gave the following explanation in cross-examination for not permitting the expert to inspect his computer system:110 So when they came, I didn't want anyone just messing with the computer, and I wanted them to sign a - a document which I prepared and to say that, first of all, I wanted to know that whether you - you engaged these people in the past and on what sort of basis, and they refused to sign it. 166 Mr Kamil's evidence in relation to the 'Screenshot' and his refusal to allow an expert to access metadata on his computer system was self-serving and wholly unsatisfactory. It defies logic that Mr Kamil would not permit an expert to access his computer system to prove the metadata of the scanned Disputed 2021 Lease. If Mr Kamil was telling the truth about the Screenshot representing the metadata of that document, then the expert's analysis would have assisted Mr Kamil. In my view, the only reasonable explanation for Mr Kamil not adducing his own expert evidence of the metadata of the scanned copy of the 107 ts 160. 108 ts 161. 109 Exhibit 3. 110 ts 164. -- 43 of 64 -- [2026] WASC 162 WHITBY J Page 44 Disputed 2021 Lease and not allowing the Savoldellis' expert to access his computer system to analyse that metadata is because the metadata that Mr Kamil seeks to persuade this court exists, does not in fact exist. 167 There is another serious concern I have about the authenticity of the Screenshot and about the truth of Mr Kamil's evidence in relation to it. 168 There are several 'tiles' that appear down the side of the Screenshot - these 'tiles' are each of the pages of the Disputed 2021 Lease. Mr Kamil accepted tiles '2' and '3' contain highlighted clauses of the Disputed 2021 Lease.111 169 Mr Kamil gave the following evidence in re-examination as to how the highlighting came to be on those clauses of the Disputed 2021 Lease:112 [Q] What is that highlighting, and how did it come about? [A] So as I was trying to explain before, the highlighting was done during the Savoldelli attendance at the hotel. So Sam was conversing with me, and after, he said hello to Joe, and he asked me, 'Does he work here?' I said no. And then - and I said, 'As a matter of fact, you're staying in one of his rooms.' And he said, 'Does he want to sell?' So Joe smiled, and I grabbed a highlighter pen and I said, 'Just remember, Joe, you can't do anything. These are the conditions.' I already had to deal with the, you know, competitive nature of the Wheelers, so the last thing I wanted was a third party going in there and, you know, causing - you know. 170 Mr Kamil's evidence as to the highlighting is implausible. I find that his explanation of how he came to highlight the clauses to be a recent invention after being questioned about the highlighting in cross-examination. That is for three reasons. 171 First, Mr Kamil's memory of highlighting the document was far too clear to be believable. It was at odds with his evidence he could not remember the time of day when Mr Savoldelli came to sign the Disputed 2021 Lease,113 whether he signed the Disputed 2021 Lease at the same time Mr Savoldelli did,114 whether there were Covid 111 ts 198. 112 ts 215. 113 ts 184. 114 ts 185. -- 44 of 64 -- [2026] WASC 162 WHITBY J Page 45 restrictions at the time,115 whether the first affidavit he signed for the purposes of the Kamil Proceedings in this court included the Screenshot,116 whether he consulted with his lawyers or received legal advice about the Termination Notice provided by the Savoldellis to the Wheelers,117 or whether his lawyers sent him a copy of instructions given to the computer expert sent by the Savoldellis' solicitors to inspect his computer system.118 I find that Mr Kamil's memory was very clear when the evidence supported his case, but very unreliable when it did not. 172 Second, the highlighted clauses relate to the extension of the lease agreement period and to Mr Kamil's right of first refusal to purchase the Apartments. Mr Kamil's evidence as to the circumstances in which he made the highlights is implausible given one of the highlighted clauses refers to Mr Kamil's option to extend the lease for three months - this clause is not relevant to an option to purchase the Apartments and there is no plausible reason he would have pointed out that clause to Mr Allan. 173 Third, Mr Kamil's evidence is not supported by Mr Allan or Mr Collie, the two other people who were alleged to be present when this occurred. Despite Mr Allan's claim that he has a very good memory and remembered exactly what happened when he met Mr Savoldelli at the apartment complex on 4 December 2021 and saw him sign paperwork, Mr Allan's evidence was he did not recall anyone highlighting or making amendments to the document Mr Savoldelli signed.119 Mr Collie did not remember if anyone else was in reception at the time Mr Savoldelli signed the Disputed 2021 Lease.120 When Mr Collie was asked if he put any highlighter or underlining on the document before he gave Mr Savoldelli a copy of it, he said he did not.121 174 I find that Mr Kamil highlighted clauses on a copy of the 2020 Lease at a time proximate to when Mr Kamil became aware that the Savoldellis had entered into a contract to sell the Apartments to the Wheelers, that being sometime in December 2022. He then used that copy of the 2020 Lease to forge a copy of the Disputed 2021 Lease. 115 ts 190. 116 ts 201. 117 ts 211 - 212. 118 ts 164. 119 ts 248 - 249. 120 ts 227. 121 ts 227 - 228. -- 45 of 64 -- [2026] WASC 162 WHITBY J Page 46 175 For the reasons I have outlined, I do not accept the 'properties' box on the Screenshot proves that the scanned copy of the Disputed 2021 Lease was 'created' on 4 December 2021. 176 I am satisfied on the basis of cogent and clear evidence that: (1) Mr Kamil was not telling the truth when he said that the Screenshot records the date that the Disputed 2021 Lease was scanned into his computer; and (2) Mr Kamil, or someone at his direction, forged the Screenshot, that is someone created that document dishonestly in an attempt to bolster Mr Kamil's case that Mr Savoldelli signed the Disputed 2021 Lease in December 2021. Dates of signatures on the Disputed 2021 Lease 177 On the face of the Disputed 2021 Lease, the date '1-12-21' is written under Mr Savoldelli's signature and the date '3/12/2021' is written under Mr Kamil's signature. On Mr Kamil's evidence, Mr Savoldelli signed the Disputed 2021 Lease on a Saturday. 4 December 2021 was a Saturday. 178 Mr Kamil said he saw Mr Savoldelli sign the Disputed 2021 Lease. Mr Kamil said he would have signed the new lease 'there and then, but maybe not straight away'.122 179 It begs the question: 'Why then the two different dates under the signatures of Mr Kamil and Mr Savoldelli, with neither being 4 December 2021?' In cross-examination, Mr Kamil said that Mr Savoldelli possibly put the wrong date on the document and that Mr Kamil did not really care about the date so long as it covered the end of the lease.123 I do not accept that as a likely explanation. There is no plausible reason for both Mr Savoldelli and Mr Kamil to write dates on the Disputed 2021 Lease other than the date they are alleged to have signed the document. 180 As I have outlined, the Screenshot purports to contain metadata that confirms the scanned document was created on 4 December 2021. This adds another layer of implausibility - if I am to accept Mr Kamil's and Mr Collie's evidence that Mr Savoldelli signed the document at the apartment complex, then I expect it would follow that the dates under 122 ts 186. 123 ts 189. -- 46 of 64 -- [2026] WASC 162 WHITBY J Page 47 each of the signatures and the date the document was scanned into the computer system would be the same. The fact they are all different suggests the Disputed 2021 Lease is not authentic and the reason Mr Savoldelli's signature bears the handwritten date 1-12-21 is because his handwriting was copied from the 2020 Lease, and the last number was altered before it was applied to the Disputed 2021 Lease. 181 Further, if I were to accept Mr Kamil's evidence that he highlighted clauses on the Disputed 2021 Lease on the same day that Mr Savoldelli signed it, then there would be no plausible reason why Mr Kamil would not sign the Disputed 2021 Lease at the same time. 182 In summary, the dates of each of the signatures of Mr Savoldelli and Mr Kamil on the Disputed 2021 Lease support the drawing of an inference that Mr Savoldelli did not sign that document as alleged by Mr Kamil. Inconsistency of the witnesses' evidence 183 Mr Kamil, Mr Collie and Mr Allan each gave evidence they were present when Mr Savoldelli signed the Disputed 2021 Lease at the apartment complex. However, their evidence is inconsistent in many respects. 184 Mr Kamil's evidence was Mr Savoldelli came in on a Saturday to sign the Disputed 2021 Lease. He accepted that 1 December 2021, the date appearing below Mr Savoldelli's signature on the Disputed 2021 Lease, was a Wednesday.124 Mr Kamil said he rang Mr Savoldelli before 1 December 2021, spoke to him about the new lease and asked Mr Savoldelli to come in and sign it, which Mr Savoldelli was happy to do. Mr Kamil's evidence was:125 [Q] So then what happened? [A] And then he came in on the day. I was in reception, and Anthony was on my right, and then Joe was on my left. We were talking, and then a - a - a printed copy was given to Joe. He signed it, and then he asked for a copy. [Q] And was he given a copy? [A] Yes, he was. [Q] Who gave him the copy? 124 ts 189. 125 ts 140 - 141. -- 47 of 64 -- [2026] WASC 162 WHITBY J Page 48 [A] I think Anthony. Anthony gave him a copy. 185 Mr Allan's version of events is that he met Mr Savoldelli in reception with Mr Kamil and Mr Collie. He said he observed Mr Kamil and Mr Savoldelli doing paperwork and signatures being exchanged.126 He said he did not see Mr Kamil or Mr Savoldelli leave the reception area at any point.127 Mr Allan said he saw Mr Kamil sign the document.128 186 Mr Collie had a different recollection of what happened. Mr Collie's evidence was he was working at the reception of the apartment complex and Mr Savoldelli came in during working hours.129 Mr Collie said he gave Mr Savoldelli the lease to sign and Mr Savoldelli left reception and came back five to ten minutes later with the signed document.130 Mr Collie did not know Mr Allan.131 187 Mr Collie's version is the least consistent with Mr Kamil's. Mr Collie had significant barriers in communicating with Mr Kamil leading up to the trial, given Mr Collie was incarcerated. Mr Collie only had his affidavit filed in the Kamil Proceedings to 'refresh' his memory. 188 Although Mr Collie and Mr Allan were called by Mr Kamil to corroborate his evidence that Mr Savoldelli signed the Disputed 2021 Lease, their evidence had the opposite effect. The inconsistencies in evidence as to Mr Savoldelli's signing the Disputed 2021 Lease casts doubt upon the credibility and reliability of Mr Kamil's evidence. Contemporaneous documents inconsistent with Mr Savoldelli signing the Disputed 2021 Lease 189 There are several contemporaneous documents that are inconsistent with Mr Savoldelli signing the Disputed 2021 Lease. 190 First is the proxy form Mr Kamil sent on 29 November 2021 by email to Mr Savoldelli for his signature. Mr Kamil accepted in cross-examination that the proxy form was required for an upcoming annual general meeting on 10 December 2021132 and the proxy form 'was the most important thing'.133 The proxy form was returned to 126 ts 247. 127 ts 247 - 248. 128 ts 248. 129 ts 226. 130 ts 222. 131 ts 235. 132 ts 166. 133 ts 173. -- 48 of 64 -- [2026] WASC 162 WHITBY J Page 49 Mr Kamil by Mr Savoldelli by email on 7 December 2021.134 Two things are implausible - one, that Mr Kamil would not have also emailed the Disputed 2021 Lease to Mr Savoldelli for his signature at the same time as the 2021 Proxy Form; and two, that Mr Kamil would not have had Mr Savoldelli sign the 2021 Proxy Form at the same time he signed the Disputed 2021 Lease. 191 Second are the emails that Mr Kamil sent Mr Savoldelli on 1 December 2020 attaching the 2020 Lease and proxy form for Mr Savoldelli to sign135 and on 24 October 2022 attaching a lease for the Apartments requesting Mr Savoldelli to sign and email it back (October 2022 Email).136 The Disputed 2021 Lease is the only lease agreement that Mr Kamil does not email to Mr Savoldelli for him to sign. Mr Kamil accepted in cross-examination that it was his widespread business practice in the early 2020s to send documents for signing by email and receive the signed documents back by email.137 Yet the one document that Mr Kamil did not send by email or ask Mr Savoldelli to sign and return by email is the same document about which a significant dispute arises as to authenticity. In my view, it is implausible that Mr Kamil would have emailed the other leases to Mr Savoldelli to sign and send back by email, but not this one. Mr Kamil's explanation for not sending it by email became more elaborate during the course of his evidence. In examination-in-chief, Mr Kamil said 'I rang [Mr Savoldelli], and I spoke to him about the new agreement, and then he came in and then signed it'.138 In cross-examination Mr Kamil said he did not send Mr Savoldelli the Disputed 2021 Lease by email 'because he was coming in, and we were discussing issues about fixing the apartments and then I asked him to come in and sign'.139 I do not accept Mr Kamil's explanation for not sending this particular document by email. 192 Third is the email Mr Kamil sent to Mr Savoldelli on 30 November 2022 (November 2022 Email) in which he states:140 We hereby notify you in relation to taking the option to rent the above apartments for an extended period of 3 months from the expiration date of your lease. 134 Exhibit 1, pages 30 - 31. 135 Exhibit 1, page 8. 136 Exhibit 1, pages 52 - 57. 137 ts 175. 138 ts 140. 139 ts 176. 140 Exhibit 1, page 175. -- 49 of 64 -- [2026] WASC 162 WHITBY J Page 50 We have sent you the new lease in October to be signed for another 2 years but yet to receive the signed copy from you. Recently you wanted to sell you (sic your) 3 properties to me but decided to withdraw them from sale. Should you send the signed lease thru prior to the expiry period then that option will also be in place. (emphasis added) 193 Although Mr Kamil denied that he believed the 2020 Lease was for a period of two years,141 the words 'another two years' supports the drawing of an inference that Mr Kamil mistakenly believed that the 2020 Lease was for a period of two years and was about to expire in December 2022. This inference is also supported by the highlighting that appears on the clauses on the scanned Disputed 2021 Lease - those clauses are relevant to the issues Mr Kamil raises in this email. The 12-month term of the 2020 Lease (determined by the commencement date and expiry date of the lease) is contained in the Schedule to the 2020 Lease. It is possible that Mr Kamil did not notice the 2020 Lease was for a term of one year and mistakenly assumed it was for a term of two years. 194 Mr Savoldelli's denial of signing the Disputed 2021 Lease was challenged in cross-examination on the basis of three matters: first his failure to respond to the October 2022 Email; second his failure to respond to the November 2022 Email; and third an email he sent to Mr Kamil dated 2 December 2022 (December 2022 Email) in which Mr Savoldelli wrote '… I have decided not to renew the lease and take possession of the apartments giving you 1 months (sic) notice' and attached a notice of termination of the lease (Notice of Termination).142 Counsel for Mr Kamil submitted the December 2022 Email, combined with his failure to respond to the other emails, is consistent with Mr Savoldelli having signed, and believing he was bound by, the Disputed 2021 Lease. Mr Kamil's position is that Mr Savoldelli's conduct in failing to assert there was no lease in effect amounts to an implied admission that he signed the Disputed 2021 Lease. In my view, that finding does not follow for the following reasons. 195 As I have outlined, Mr Savoldelli finished school in year 10 and has been engaged in a trade throughout his working life. This gives 141 ts 158. 142 Exhibit 1, pages 182 - 185. -- 50 of 64 -- [2026] WASC 162 WHITBY J Page 51 context to Mr Savoldelli's conduct vis-à-vis the lease arrangement with Mr Kamil. 196 Mr Savoldelli was provided with the Notice of Termination form by his settlement agent.143 In my view, Mr Savoldelli's failure to respond to the October 2022 Email and the November 2022 Email and sending the December 2022 Email is wholly consistent with a lay person believing he is not bound by a formal written lease and seeking to bring an end to a periodic lease. This is as opposed to being an acknowledgment by Mr Savoldelli that he had signed and was bound by the Disputed 2021 Lease. This view is also consistent with the email that Mr Savoldelli sent to Mr Kamil's solicitors on 30 December 2022 in which he stated the lease expired on 1 December 2021 and 'nothing has been signed since then'.144 It is also of importance that in neither the October 2022 Email or the November 2022 Email does Mr Kamil refer to the Disputed 2021 Lease. Summary of findings 197 I find that: (1) Mr Savoldelli did not sign the Disputed 2021 Lease; (2) Mr Kamil, or someone at his direction, forged the Disputed 2021 Lease by copying Mr Savoldelli's handwriting and signature from the 2020 Lease, making some minor amendments, and applying that copy to the Disputed 2021 Lease; (3) Mr Kamil cannot rely upon the Disputed 2021 Lease; (4) Mr Kamil had no right of first refusal to purchase the Apartments from the Savoldellis; and (5) the Savoldellis were free to enter into the Wheeler Contracts. 198 While I have detailed numerous matters that support these findings, I make it clear that the following matters are sufficient, when considered as a whole, to support these findings - the evidence of Mr Savoldelli, my observations of the Disputed 2021 Lease and the inconsistencies of Mr Kamil's, Mr Collie's and Mr Allan's evidence. The other matters simply reinforce my findings. 143 ts 90. 144 Exhibit 1, page 211. -- 51 of 64 -- [2026] WASC 162 WHITBY J Page 52 199 The next issue that falls for determination is whether the Savoldellis validly terminated the Wheeler Contracts in July 2023. Did the Savoldellis validly terminate the Wheeler Contracts? Pleadings 200 Mrs Wheeler pleads that the Savoldellis did not validly terminate the Wheeler Contracts. 201 The Savoldellis admit that the Wheeler Contracts were not validly terminated. 202 It is only Mr Kamil, who is not a party to the Wheeler Contracts, who contends that the Savoldellis validly terminated the Wheeler Contracts. Mr Kamil pleads that the Savoldellis were entitled to terminate the Wheeler Contracts for one or more of the following reasons:145 (1) Mrs Wheeler's failure to pay the full amount of the deposits for the Apartments within the time specified in the Wheeler Contracts; (2) Mrs Wheeler's failure to obtain finance approval within the time required in the Wheeler Contracts; (3) settlement of the Wheeler Contracts did not occur within the time specified in the Wheeler Contracts; and (4) the Wheelers being no longer ready willing and able to perform the Wheeler Contracts due to the lapse of finance approval. 203 Mr Kamil pleads that the Salvoldellis' termination of the Wheeler Contracts on 28 July 2023 was valid.146 Mr Kamil's submissions 204 In written opening submissions, Mr Kamil submitted that the Savoldellis were entitled to, and did, terminate the Wheeler Contracts on 28 July 2023 because Mrs Wheeler did not have finance approval for the purchase of the Apartments as at that date and she had not paid the full deposit amounts. 145 Second defendant's further amended defence and counterclaim filed 10 March 2026 [3.1] - [3.5A]. 146 Second defendant's further amended defence and counterclaim filed 10 March 2026 [3.5] - [3.6]. -- 52 of 64 -- [2026] WASC 162 WHITBY J Page 53 205 In closing submissions, counsel for Mr Kamil did not address the Savoldellis' alleged right to terminate the Wheeler Contracts other than on the basis of the failure of Mrs Wheeler to pay the full amount of the deposits for the Apartments. Failure to pay full amount of deposits 206 The Wheeler Contracts provided that the total deposit required for all three Apartments was $20,000. Mrs Wheeler only paid $18,000 towards those deposits on 22 November 2022. 207 The 2022 joint form of general conditions for the sale of land (General Conditions), which are incorporated into the Wheeler Contracts, provided, by cl 1.5 and cl 1.6:147 1.5 Notice of non-payment If the Buyer: (a) does not pay the Deposit in full as required by the Contract; … the Seller may give the Buyer a Notice requiring the Deposit to be paid … within 48 hours of service of the Notice. 1.6 Termination for non-payment (a) If a Notice under clause 1.5 is not complied with: (1) the Buyer is in default; and (2) the Seller may terminate the Contract by giving notice of termination to the Buyer. 208 On 6 December 2022, the settlement agent for the Savoldellis sent an email to the settlement agent for Mrs Wheeler which stated:148 Thank you, also we are waiting for the balance of deposit from your client (I phoned and left our new trust account details on Monday). 209 Mr Kamil pleads that this email constitutes notice under cl 1.5 of the General Conditions. Mr Kamil says that as a result of Mrs Wheeler's failure to comply with that notice to pay the full amount of the deposits, the Savoldellis, by letter dated 28 July 2023, validly 147 Exhibit 1, page 449. 148 Exhibit 1, pages 360 - 361. -- 53 of 64 -- [2026] WASC 162 WHITBY J Page 54 terminated the Wheeler Contracts pursuant to cl 1.6 of the General Conditions. 210 This submission has no merit. The 6 December 2022 email does not constitute a notice for the purposes of cl 1.5 as it does not require the balance of the deposits to be paid within 48 hours of service of the email. Having provided no notice pursuant to cl 1.5, the Savoldellis were not entitled to terminate the Wheeler Contracts pursuant to cl 1.6 of the General Conditions. Finance approval 211 Mrs Wheeler's finance approval was obtained on 19 December 2022 with the last date for drawdown being 17 June 2023. Mr Kamil submits that since Mrs Wheeler did not drawdown on the finance by 17 June 2023, Mrs Wheeler did not have finance approval after that date. Mr Kamil submits that, by cl 1.2 of the Wheeler Contracts, the Wheeler Contracts came to an end without action by either party if the finance application was rejected. Mr Kamil says the expiry of the finance approval was in effect a rejection of finance and this meant the Wheeler Contracts were at an end. 212 Alternatively, Mr Kamil submits that due to the expiry of Mrs Wheeler's finance approval, the Savoldellis had the right to terminate the Wheeler Contracts pursuant to cl 1.3 thereof, which the Savoldellis did on 28 July 2023. 213 These submissions also have no merit for the following reasons. 214 Conditions 1.2, 1.3 and 1.4 in the Wheeler Contracts provide:149 1.2 No Finance Approval by the Latest Time: Non Approval Notice Given This Contract will come to an end without further action by either Party if on or before the Latest Time: (a) the Finance Application has been rejected; or (b) a Non Approval Notice is given to the Seller or Seller Agent. 149 Exhibit 1, pages 59, 100 and 137. -- 54 of 64 -- [2026] WASC 162 WHITBY J Page 55 1.3 No Finance Approval by the Latest Time: No Notice Given If by the Latest Time the Seller or Seller Agent has not been given: (a) an Approval Notice; or (b) a Non Approval Notice; then this Contract will be in full force and effect unless and until either the Seller gives written Notice of Termination to the Buyer or the Buyer terminates this Contract by giving a Non Approval Notice to the Seller or Seller Agent. 1.4 Finance Approval: Approval Notice Given If by the Latest Time, or if Clause 1.5 applies, before the Contract is terminated: (a) Finance Approval has been obtained; or (b) an Approval Notice has been given to the Seller or Seller Agent; then this Clause 1 is satisfied and this Contract is in full force and effect. 215 Clause 1.9 of the Wheeler Contracts provides that:150 (1) a 'Non Approval Notice' is advice in writing that a finance application has been rejected or that a mortgage broker has assessed a proposed credit contract as being unsuitable for the buyer; and (2) an 'Approval Notice' is a statement in writing given by the buyer, a lender or mortgage broker to the seller or seller agent to the effect that finance approval has been obtained. 216 Neither of the two scenarios envisaged by cl 1.2 of the Wheeler Contracts came to pass - Mrs Wheeler's application for finance was not rejected, nor was a Non Approval Notice provided to the Savoldellis by the Latest Time (being four weeks from the acceptance date of each of the contracts). Therefore, the Wheeler Contracts did not automatically come to an end pursuant to cl 1.2. 217 Turning to cl 1.3, which provides that the Wheeler Contracts remain in full force and effect notwithstanding a failure by 150 Exhibit 1, pages 59, 100 and 137. -- 55 of 64 -- [2026] WASC 162 WHITBY J Page 56 Mrs Wheeler to obtain finance approval by the Latest Time, unless or until either Mrs Wheeler or the Savoldellis exercise a right to terminate the contract. 218 The question is: 'Did the Savoldellis have a right to terminate the Wheeler Contracts on 28 July 2023, given Mrs Wheeler's finance approval had expired on 17 June 2023?' In my view, the answer to the question is no, because: (1) cl 1.4 provides that the finance condition contained in the Wheeler Contracts is satisfied in one of two ways - either finance approval is obtained, or an Approval Notice is given to the seller; (2) on 20 December 2022, National Australia Bank approved finance for Mrs Wheeler in the amount of $400,000 for the purchase of non-residential buildings, security for which included the Apartments.151 This constitutes finance approval for the purposes of cl 1.4(a) of the Wheeler Contracts; (3) on 21 December 2022, Mr Wheeler, on behalf of Mrs Wheeler, forwarded Mr Savoldelli an email chain between the National Australia Bank and Mr Wheeler which stated 'Heidi's business loan the purchase of the 3 apartments. $400,000 has been formally approved'.152 In my view, this email constitutes an Approval Notice for the purposes of cl 1.4(b) of the Wheeler Contracts; and (4) by virtue of either or both of Mrs Wheeler obtaining finance approval and the sending of the Approval Notice to the Savoldellis, the finance condition of the Wheeler Contracts was satisfied, and the Wheeler Contracts were in full force and effect from 20 December 2022. 219 For Mr Kamil's submissions to be accepted, the expiry of Mrs Wheeler's finance approval would retrospectively operate as a Non Approval Notice or a rejection of finance for the purposes of cl 1.2. In my view, this cannot be correct. Once finance is approved, cl 1.4 of the Wheeler Contracts is unambiguous in providing that cl 1 (the 'subject to finance' clause in the Wheeler Contracts) is satisfied. 151 Exhibit 1, pages 192 - 205. 152 Exhibit 1, pages 206 - 209. -- 56 of 64 -- [2026] WASC 162 WHITBY J Page 57 It cannot come back into operation at a later date if finance approval subsequently expires. 220 I find that the Savoldellis had no entitlement to terminate the Wheeler Contracts on 28 July 2023. It follows that the Savoldellis did not validly terminate the Wheeler Contracts on 28 July 2023 and the Wheeler Contracts remain in full force and effect. 221 It remains for me to determine whether the Kamil Contracts came to an end by virtue of a special condition. I note however, regardless of my findings on this issue, the Wheeler Contracts were entered into prior to the Kamil Contracts, and therefore have priority as they are first in time.153 222 So as far as Mrs Wheeler is concerned, the only remaining issue is whether she is entitled to specific performance of the Wheeler Contracts. I will deal with this first. Is Mrs Wheeler entitled to specific performance of the Wheeler Contracts? 223 The Savoldellis plead they are willing to convey each of the Apartments to Mrs Wheeler subject to the withdrawal of the Kamil Caveats. 224 Mr Kamil pleads that Mrs Wheeler is not ready, willing and able to complete the Wheeler Contracts because she does not have finance approval for the purchase of the Apartments. 225 Subject to Mrs Wheeler establishing that she is ready, willing and able to complete the Wheeler Contracts, Mrs Wheeler will be entitled to specific performance of the Wheeler Contracts. In order to establish these matters, Mrs Wheeler must persuade me, on the balance of probabilities, that she wishes, intends and has the ability to the complete the Wheeler Contracts at the date of the hearing.154 226 The very fact that Mrs Wheeler commenced these proceedings seeking specific performance of the Wheeler Contracts is evidence of her wish and intention to complete the Wheeler Contracts. Mrs Wheeler 153 Heid v Reliance Finance Corporation Pty Ltd [1983] HCA 30; (1983) 154 CLR 326, 339 (Mason & Deane JJ). 154 Cardydis v Merrag Pty Ltd [2007] NSWSC 1220 [33] - [38]. -- 57 of 64 -- [2026] WASC 162 WHITBY J Page 58 confirmed she would still like to buy the Apartments.155 It is her ability to complete the Contracts that was put in issue by Mr Kamil. 227 Mrs Wheeler's unchallenged evidence in relation to her ability to complete the Wheeler Contracts was she owns a house in Coolbinia, a unit in Maylands, apartments 307 and 320 in the apartment complex, and her only debt is $260,000 secured by her house in Coolbinia. Mrs Wheeler received an offer of finance from the National Australia Bank in December 2022 for $400,000 to purchase the Apartments. Since December 2022, Mrs Wheeler purchased a share in a block of land in New South Wales and does not owe any debt in relation to that block of land.156 Mr Gregory Wheeler, Mrs Wheeler's husband, has a high security fencing company that specialises in work outside of airports and in prisons. Mr Wheeler is prepared to provide a personal guarantee for Mrs Wheeler to obtain finance to purchase the Apartments.157 228 On the basis of this evidence, I am satisfied that Mrs Wheeler has the ability to complete the Wheeler Contracts. 229 I find that Mrs Wheeler is entitled to specific performance of the Wheeler Contracts. 230 Although the Kamil Contracts are later in time and do not have priority over the Wheeler Contracts for that reason, I am still required to determine if Mr Kamil is entitled to damages from the Savoldellis arising out of an alleged failure to complete the Kamil Contracts. I turn now to consider whether the Kamil Contracts automatically terminated pursuant to special conditions of the Kamil Contracts. Did the Kamil Contracts automatically terminate pursuant to special conditions thereof? 231 Mr Kamil pleads that the Savoldellis represented, by letter dated 28 July 2023 from their solicitors to Mr Kamil, that they had terminated the Wheeler Contracts. Mr Kamil submits he relied on that representation in entering into the Kamil Contracts and paying the deposits.158 155 ts 63. 156 ts 63 - 64. 157 ts 66. 158 Outline of Second Defendant's Submissions filed 5 March 2026 [56]. -- 58 of 64 -- [2026] WASC 162 WHITBY J Page 59 232 By his counterclaim, Mr Kamil pleads that the Savoldellis are estopped from denying that they terminated the Wheeler Contracts. 233 The Savoldellis plead, by their defence to this counterclaim, that the Kamil Contracts automatically terminated pursuant to special conditions 2 and 3 of the Kamil Contracts. 234 In his reply, Mr Kamil pleads that if the Wheeler Contracts are binding and the Savoldellis were never able to complete the Kamil Contracts, the Savoldellis were in breach of the Kamil Contracts and Mr Kamil has suffered loss and damage as a result of that breach. Mr Kamil pleads that he waived the special conditions and affirmed the Kamil Contracts. Effect of Encumbrance Condition 235 Special conditions 2 and 3 of the Kamil Contracts provide:159 2. Encumbrances: This Contract is subject to and conditional upon: (a) any leases and lease extensions, current or historical, registered on the Certificate of Title to the Property, and any caveat registered in respect of the same, being withdrawn prior to, or contemporaneously with, Settlement conducted on the Settlement Date; and (b) there being no Encumbrances as defined in clause 26.1 of the 2022 General Conditions registered on the Certificate of Tile to the Property on the Settlement Date, being the Encumbrances Condition. 3. If the … Encumbrances Condition is not satisfied, then, unless the Parties agree otherwise in writing on the Settlement Date, this Contract shall terminate automatically on the Settlement Date and in that case: (a) The Seller shall refund the Deposit to the Buyer; and (b) Save for any claim which existed prior to termination, neither Party will have any rights or claims against the other Party in respect of the termination at law or in equity. (The Special Conditions) 159 Exhibit 1, pages 307 - 308. -- 59 of 64 -- [2026] WASC 162 WHITBY J Page 60 236 The definition of 'Encumbrance' contained in cl 26.1 of the General Conditions includes a caveat.160 237 The Wheeler Caveats were registered against the titles to each of the Apartments on 8 August 2023. Therefore, settlement of the Kamil Contracts could not occur on 16 August 2023, the Settlement Date as defined by the Kamil Contracts. 238 Counsel for Mr Kamil submitted, in closing, that the Settlement Date had been extended from 18 August 2023 to 31 August 2023 by reference to correspondence between the parties' settlement agents.161 This correspondence is in relation to the settlement date of the Wheeler Contracts - there was no extension of the Settlement Date for the Kamil Contracts. Any submission that the Special Conditions had not been triggered due to an extension of the Settlement Date is without merit. 239 On 30 August 2023, the Savoldellis, by their solicitors, wrote to Mr Kamil advising that the Kamil Contracts automatically terminated on 16 August 2023 due to the Wheeler Caveats being registered against the title of each of the Apartments and requested details for the repayment of the deposits to Mr Kamil.162 240 In closing submissions, counsel for Mr Kamil referred to an oral 'antecedent agreement' entered into between Mr Kamil and Mr Savoldelli on or about 27 July 2023, pursuant to which:163 (1) the Savoldellis agreed to sell the Apartments to Mr Kamil for $400,000; (2) the Savoldellis agreed to terminate the Wheeler Contracts; (3) the Savoldellis and Mr Kamil would enter into the Kamil Contracts; and (4) Mr Kamil agreed to discontinue the Kamil Proceedings. 241 The fatal flaw in these submissions is that Mr Kamil did not plead that he and the Savoldellis entered into an antecedent agreement prior to entering into the Kamil Contracts and he did not run his case at trial on that basis. He is therefore precluded from relying upon any alleged antecedent agreement in these proceedings. 160 Exhibit 1, page 464. 161 Exhibit 1, page 335. 162 Exhibit 1, pages 343 - 345. 163 ts 270. -- 60 of 64 -- [2026] WASC 162 WHITBY J Page 61 242 Counsel for Mr Kamil submitted that the Special Conditions were waived by Mr Kamil on 6 September 2023,164 because they were conditions that were inserted into the Kamil Contracts for the benefit of Mr Kamil and he was entitled to waive them. Although expressed as a 'waiver' of rights, in my view the better description is election by affirmation of the Kamil Contracts.165 243 However, the Special Conditions protected, and were also for the benefit of, the Savoldellis. 244 If Mrs Wheeler lodged caveats over the Apartments, something which Mr Kamil himself said would 'definitely' happen,166 then, but for the Special Conditions, the Savoldellis would be in breach of the Kamil Contracts by not being able to complete. The Special Conditions protected the Savoldellis from being in breach of the Kamil Contracts in the event that Mrs Wheeler registered caveats against the titles to the Apartments. Mr Kamil was not entitled to unilaterally elect to affirm the Kamil Contracts by not seeking to rely on the Special Conditions that were for the benefit of the Savoldellis.167 245 In any event, Mr Kamil's purported election to affirm the Kamil Contracts was not communicated to the Savoldellis until after the Kamil Contracts had already automatically terminated in accordance with the Special Conditions. There were no Kamil Contracts in force to affirm. Estoppel 246 Mr Kamil gave the following evidence in cross-examination:168 [Q] So I put it to you that you clearly understood at the time you signed that … August 2023 contracts that the effect of clauses 2 and 3, which I've taken you to, was that the contracts would terminate if caveats had not been withdrawn from the title prior to settlement? [A] Yes. 164 Exhibit 1, page 346. 165 Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 277 CLR 445. 166 ts 206. 167 Gange v Sullivan [1966] HCA 55; (1966) CLR 418, 430 (Barwick CJ); Bellmere Park Pty Ltd v Benson [2007] QCA 102 [46] (Muir J). 168 ts 206. -- 61 of 64 -- [2026] WASC 162 WHITBY J Page 62 [Q] And that would include any additional caveat that might be placed on the property prior to settlement that was not already on the title? [A] Yes. Yes. [Q] And you knew that there was a reasonable possibility that Mrs Wheeler might lodge a caveat prior to settlement, despite the first defendant's termination notice? [A] I knew definitely she would put one on there. 247 Mr Kamil entered into the Kamil Contracts and agreed to discontinue the Kamil Proceedings in the full knowledge that the Kamil Contracts would terminate if Mrs Wheeler placed a caveat on the Apartments and that she 'definitely' would put a caveat on the Apartments. It is also important to recognise the Kamil Contracts did not contain a special condition to the effect that the Savoldellis must terminate the Wheeler Contracts. 248 In my view, counsel for the Savoldellis and counsel for Mrs Wheeler both correctly characterised Mr Kamil's conduct as engaging in a 'race' with Mrs Wheeler to complete the Kamil Contracts before Mrs Wheeler lodged the Wheeler Caveats. 249 Mr Kamil's acceptance of the propositions put to him in cross-examination, which I have set out above, is fatal to his estoppel argument. Putting to one side my strong reservations as to whether any of the pleaded representations were made by Mr Savoldelli, Mr Kamil clearly did not in fact rely upon any such representations. Mr Kamil knew a purported termination of the Wheeler Contracts would not prevent Mrs Wheeler lodging caveats, and he knew that caveats on the Apartments, at the Settlement Date, would terminate the Kamil Contracts. Determination 250 I find that the Kamil Contracts automatically terminated on 16 August 2023 pursuant to the Special Conditions due to the lodgement of the Wheeler Caveats. 251 The Savoldellis plead that, since 2 January 2022, Mr Kamil has been unlawfully trespassing on the Apartments and unlawfully maintaining the Kamil Caveats and they have suffered loss and damage as a result. -- 62 of 64 -- [2026] WASC 162 WHITBY J Page 63 252 Given my finding that Mr Kamil forged the Disputed 2021 Lease and was therefore not entitled to a right of first refusal to buy the Apartments, it follows that he did not have, at any time, an interest capable of supporting the Kamil Caveats or a right to be in possession of the Apartments from 2 January 2022 (the date the Notice of Termination required vacant possession to be delivered up to the Savoldellis). Conclusion 253 I find that: (1) Mr Savoldelli did not sign the Disputed 2021 Lease. (2) Mr Kamil, or someone at his direction, forged the Disputed 2021 Lease and the Screenshot. (3) Mr Kamil cannot rely upon the Disputed 2021 Lease. (4) Mr Kamil had no right of first refusal to purchase the Apartments. (5) Mr Kamil had no right of first refusal which constituted an interest capable of supporting the Kamil Caveats. Mr Kamil lodged the Kamil Caveats without a proper legal basis to do so. (6) The Savoldellis did not validly terminate the Wheeler Contracts. (7) Mrs Wheeler is ready willing and able to perform the Wheeler Contracts. (8) Mrs Wheeler is entitled to specific performance of the Wheeler Contracts. (9) The Kamil Contracts automatically terminated on 16 August 2023 pursuant to the Special Conditions due to the registration of the Wheeler Caveats. (10) Mr Kamil has unlawfully trespassed on the Apartments since 2 January 2022 and unlawfully registered and maintained the Kamil Caveats. (11) Mrs Wheeler is entitled to damages from Mr Kamil for the delay of settlement of the Wheeler Contracts. -- 63 of 64 -- [2026] WASC 162 WHITBY J Page 64 (12) The Savoldellis are entitled to damages from Mr Kamil for unlawful trespass and unlawful registration and maintenance of the Kamil Caveats. 254 I am of the view that costs should follow the event. Mr Kamil has been wholly unsuccessful and ought to pay the costs of Mrs Wheeler and the Savoldellis. I will, however, hear from the parties as to the appropriate orders and as to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CS Associate to the Hon Justice Whitby 1 MAY 2026 -- 64 of 64 --