CATCHWORDS Bankruptcy - bankruptcy notice - time for compliance extended to specified date or further order ~ no further extension sought on specified date ~- whether act of bankruptcy committed. Bankruptcy Act 1966 Cth. HAROLD THURGOOD and HELEN MARY THURGOOD Applicants THE NATIONAL BANK OF AUSTRALASIA LIMITED Respondent NO. B3327 OF 1980 LOCKHART J. ~ FRIDAY 5 JUNE 1981 AT SYDNEY IN THE FEDERAL COURT OF AUSTRALIA ) BANKRUPTCY DISTRICT OF THE STATE OF) NO. B3327 of 1980 NEW SOUTH WALES AND THE ) AUSTRALIAN CAPITAL TERRITORY ) RE: HAROLD THURGOOD and HELEN MARY THURGOOD HAROLD THURGOOD and HELEN MARY THURGOOD Applicants THE NATIONAL BANK OF LASIA LIMITED Respondent REASONS FOR JUDGMENT Friday 5 June 1981 LOCKHART J. This is an application by Harold Albert Thurgood ("the male applicant") and Helen Mary Thurgood ("the female applicant") (I shall refer to them together as "the applicants") to set aside bankruptcy notices, in identical form, each dated 2 July 1980, one served on the male applicant and the other on the female applicant. The applicants are husband and wife. The bankruptcy notices were issued by a District Registrar in Bankruptcy at the request of The National Bank of Australasia Limited ("the respondent") following the entry of judgment by the respondent against the applicants in the District Court of New South Wales on 21 -2- March 1980 in the sum of $4,651.47. The applicants ask this Court to go behind the judgment and to set aside the bankruptcy notices on the ground that there 1s no debt owing by them to the respondent. Before turning to the facts it 1s convenient to refer to a question that arose early in the hearing of the application. It is necessary to relate the curial history of the application to properly understand this question. The application to set aside the bankruptcy notices was first listed for hearing on 20 October 1980 before me. I extended time for compliance with the requirements of the notices up to and including 27 October 1980, gave certain directions as to service of the application and affidavits in support upon the respondent. The application was at that stage ex parte and 20 October 1980 was the last day for compliance with the requirements of the notices. I adjourned the further hearing of the application to 27 October 1980 giving liberty to any party to apply in the meantime to rescind or vary the orders. On 27 October 1980 all parties were represented when the matter came on for further hearing before a Judge of this Court, who, by consent, adjourned the application until 17 November 1980 and extended time for compliance with the requirements of the bankruptcy notices until 4.00 p.m. on that date. On 17 November 1980 the matter again came on for hearing before me. By consent, I adjourned the -3- application until 1 December 1980 and extended time for compliance with the requirements of the bankruptcy notice up to and including 1 December 1980. On 1 December 1980 the application came before a Judge of this Court who adjourned the hearing until 2 February 1981, and ordered that time for compliance with the requirements of the notices be extended up to and including 4.00 p.m. on 2 February 1981 "or further order". On 2 February 1981, the application came before a Judge of this Court who adjourned the application to 9 February 1981 for the purpose of fixing a date for the hearing of the contested application. At no stage did the solicitor who appeared for the applicants seek an order further extending time for compliance with the requirements of the bankruptcy notices. On 9 February 1981 a Judge specially fixed the matter for hearing on 8 April 1981 and gave consequential directions as to the filing and serving of affidavits. On 8 April 1981 the application came on for hearing before me. Soon after the commencement of the hearing of the application I razsed with the parties the question whether acts of bankruptcy had been committed already as no application was made on 2 Februry 1981 to the Court for an order further extending time for compliance with the requirements of the bankruptcy notices; and hence no extension was ~4- granted. No party sought to determine the question as a preliminary point; they all joined in asking me to treat it as but one of the issues in the case and asked that I hear the application on its merits, especially because all parties had filed affidavits in the matter and had witnesses available for cross-examination. I agreed to this course. The point was in due course argued and I shall deal with it first. Time for compliance with the requirements of a bankruptcy notice may be extended pursuant to the powers conferred by s. 41 (6A) of the Bankruptcy Act, 1966. In this case, so far as relevant, the power to extend time is in aid of the application to set aside the bankruptcy notice. An extension of time to comply with the requirements of a bankruptcy notice may be made to a specified date or, alternatively, as in Re Lipov (1979) 24 A.L.R. 616, until further order. As no application was made on 2 February 1981 to the Court to further extend time for compliance with the requirements of the bankruptcy notices, the applicants seek to avoid the consequences of acts of bankruptcy being committed by asserting that the order of the Court of 1 December 1980, upon its proper construction, meant that the time for compliance was extended until further order and that the effect of specifying the date 2 February 1981 was merely to adjourn the application until then. I do not accept this argument. I have read the transcript of the proceedings on 1 December 1980 before the Court and the "Record of -5- Proceedings in Court" sheet customarily made out by the associate of the Judge when sitting in bankruptcy matters 1n Sydney; and they show plainly that the Judge specifically adjourned the application to 2 February 1981 and specifically extended time to comply with the requirements of the bankruptcy notices until that day "or further order". In my opinion, this form of order meant that time for compliance was extended until 2 Februry 1981 unless, in the meantime, a party applied to the Court to terminate that extension. Otherwise the extension to a particular date was unnecessary. The usual form of an interlocutory injunction is to restrain the defendant from doing the proscribed acts until the hearing of the suit or further order; the words "or further order" being an acknowledgement of the fact that the injunction may be terminated before the hearing of the suit 1f application to do so is granted in the meantime. This is consistent with the order of the Court made on 1 December 1980 in the present case. Counsel for the male applicant advanced an alternative argument namely, as I understood it, that the hearing on 2 February 1981 was a continuation of the hearing on 1 December 1980; that the Court was throughout seized of the matter, and specific orders for extension were unnecessary. Reliance was placed on the decision of a Judge of this Court in Re Tamas; ex parte Streimer (9 April 1981 unreported. ) In Tamas an application for extension of time to comply with -6- the requirements of a bankruptcy notice was listed for hearing on 6 April 1981. It was called on and mentioned at least once more during that day's sitting. The parties were ready to proceed but owing to the number of cases in the list it could not be reached that day. Therefore the learned Judge adjourned the application until the following day when the hearing commenced. The point was then taken that, as no extension of time was sought the day before, an act of bankruptcy had been committed. His Honour rejected that submission in these terms:- "But when the matter 1s before Court in the sense that these proceedings were on the 6th inst. with parties ready and intending to proceed and there is an application which has been duly instituted, the Court 1s, in my view, seized of the matter even though owinc to pressure of business it has not been able to enter upon or complete argument but has referred the matter to the following day. In . such circumstances I do not agree that the time even without any specific reference thereto by Counsel (and in this matter neither Counsel referred to this situation when I adjourned the hearing to the next day) will continue to run even though no definitive order is made. In such a circumstance the question of extension of time being as it were, under consideration, that time would not, in my view, continue to run whilst the Court 1s dealing notionally or otherwise with the issues that have been raised." Tamas is distinguishable from the present case. On 1 December 1980 the extension of time was granted until 2 February. No further application for extension was then made and none was granted. It 1s not a correct analysis of the position to say that in those circumstances the Court was in some way seized of the matter and that no specific order for extension was necessary. The circumstances in Tamas were different from those in the present case, and that decision -7- does not bear on the question I have to decide. What this case shows is the necessity for parties to be vigilant when cases of this kind are before the courts. There are various reasons why extensions of time to comply with the requirements of bankruptcy notices are generally limited to specified days, and respondents (judgment creditors) are usually reluctant to agree to extensions of time on the basis of Re Lipov, namely until further order. This lastmentioned form of order has the advantage that it prevents the problem that arose in the present case from arising. I reject this alternative argument of the male applicant. It follows that when the application to set aside the bankruptcy notices came on for hearing before me the acts of bankruptcy had already been committed by the applicants. The parties have filed a large number of affidavits and are prepared to deal with the merits of the applicant's case. There has been cross-examination of witnesses and full argument. The defences of the applicants have not in fact been heard and determined by any Court. In these circumstances I shall not adopt the usual course of dealing first with the question whether I should go behind the judgment and, if that is answered in the affirmative, then turn to the question whether the Court should determine if the debt is in fact due by the applicants to the respondent. I will deal with the case on the footing that the question to be determined is whether the applicants are in truth indebted to the respondent. I take this course solely because of the -8- special circumstances that apply in this case. I turn to the facts. The applicants and their children had a number of cheque and savings accounts with the Narrabeen branch of the respondent over the period December 1976 to September 1978. On 17 December 1976 the applicants signed an application for a "personal loan" from the respondent for two thousand dollars. The money was advanced to them on 21 December 1976. The male applicant gave evidence that during the period July - December 1977 he made enquiries of the respondent about another "personal loan". The circumstances in which these enquiries were said to have been made, and a loan subsequently approved by the respondent, are the subject of a serious conflict of evidence between the male applicant and officers of the respondent. I shall turn a little later to the evidence in detail relating to this question but shall now simply narrate the uncontested facts. On 25 November 1977 a cheque account was opened at the Miller Street, North Sydney, branch of the respondent in the name of the applicants; and on the same day four savings accounts were opened in the names of the applicants and their children or their children. On 23 December 1977 the respondent approved a "personal loan" to the applicants in the sum of $4,000.00. The sum of $3,882.00 was transferred by the respondent to the cheque account of the applicants -9- with the Miller Street branch on 23 December 1977, being the net proceeds of the loan. On the same day a cheque for $3,000.00 was drawn on that account by the male applicant and cashed at the Narrabeen branch. The "personal loan" of the applicants at the Narrabeen branch was discharged that day. On 31 January 1978 the male applicant received a copy of a completed personal loan agreement from the respondent signed by both himself and the female applicant. On at least two occasions, between February and August 1978 Mr. J. R. Campbell-Dick, the accountant of the Miller Street branch, telephoned the male applicant and said:- - "Harold, it appears that your Personal Loan instalments have dropped behind", or words to that effect. The male applicant replied:- "O.K., I'll fix it up", or words to that effect. On at least one occasion, in early 1978, Mr. Campbell-Dick telephoned the female applicant and said: "Mrs. Thurgood, the instalments on the Personal Loan have fallen behind", or words to that effect. The female applicant replied:- "T''1]1 speak to Harold about it", -10- or words to that effect. The male applicant made payments from time to time to the respondent in reduction of the amount borrowed by the applicants in December 1977. For example $109.57 was paid on 23 January 1978, $109.57 on 23 March 1978 and $109.57 on 27 April 1978. On about 28 September 1978, the respondent received a request for a pay-out figure on the "personal loan" account from the solicitors then acting for the male applicant. The respondent replied to that letter on 4 October 1978 stating the pay-out figure as $4,475.97 and enclosing a copy of the loan agreement as requested by the solicitors. Other correspondence then ensued. It is convenient if I relate the curial history of the matter, bo* in the District Court and this Court, as it bears on the credibility of the witnesses. On 4 April 1979 the respondent filed a statement of claim in the District Court of New South Wales seeking to recover the balance outstanding from the applicants on the loan of $4,000.00 plus interest, a total of $4,475.97. On 4 May 1979 the solicitors for the applicants, being different solicitors to the solicitor who wrote the earlier correspondence, confirmed an earlier telephone conversation between the -11- solicitors when it was agreed that the respondent would not object to the defence being filed out of time. The defences were in fact filed on 15 May 1979. On 5 June 1979 particulars of the defences were sought by the respondent's solicitors. On 8 June 1979 the applicants' solicitors wrote to the respondent's solicitors saying that they were seeking instructions to enable the particulars to be given. On 27 June there was a reminder from the solicitors for the respondent in relation to the request for particulars; and on 9 July 1979 the applicants' solicitors provided particulars. On 13 August 1979 the respondent's solicitors served a notice to answer interrogatories on the solicitors for the applicants. These interrogatories were never furnished. On 28 September 1979 the respondent's solicitors wrote to the solicitors for the applicants saying that, unless the interrogatories were answered within seven days, application would be made to the District Court for an order that they be answered. A notice of motion was taken out in the District Court by the respondent for an order that the applicants file answers to interrogatories; and on 23 November 1979 an order was made by the District Court that the answers were to be filed within 21 days. At that hearing a third solicitor acted for the applicants. On 28 November 1979 notices of discovery were filed by the respondent's solicitors and served on 30 November on the solicitor then acting for the applicants. The applicants took out a motion in the District Court -12- proceedings for an order permitting them to file a Notice of Objection to the Jurisdiction of the District Court. This was heard by the Court on 8 February 1980 and dismissed with costs. On 21 March 1980 a notice of motion by the respondent was heard by the District Court seeking orders that the defences of the applicants be struck out and that judgment be entered for the respondent on the ground that interrogatories had not been answered by the applicants and discovery of documents had not been given by them. The applicants were not present or represented on the hearing of that application (but they had been represented on the hearing of the earlier applications) and orders were made striking out the defences. Judgment was then entered. On 2 July 1980 the respondent caused bankruptcy notices to be issued directed to the applicants, served on the female applicant on 4 October 1980 and on the male applicant on 18 October 1980. The subsequent course of proceedings in this Court has already been related by me. The male applicant seeks to set aside the bankruptcy notice served upon him on the ground that the claim of the respondent constitutes a breach of s. 64 (2A) of the Trade Practices Act 1944. That section provides: "A corporation shall not, in trade or commerce, assert a right to payment from a person for unsolicited services unless the corporation has reasonable cause to believe that there is a right to payment." ~13- The male applicant says that he sought to obtain from the respondent not a fresh "personal loan" of $2,000.00, but an advance by way of overdraft on his and his wife's account of $4,000.00 (portion being applied to extinguish the earlier personal loan made in 1976). The interest rate of "Personal Loans" was higher than with ordinary overdrafts. The female applicant seeks to set aside the notice on the same ground together with an additional ground namely, that at the time she signed the form of application for personal loan (in December 1977), being a printed form, it was blank in the sense that it contained none of the type-written material that 1t subsequently contained. In effect she raises a plea of non est factum. The male applicant has given more than one version of the relevant facts. The first version is given in the affidavit of the male applicant sworn on 20 October 1980, and filed in this application, in which he says:- "23. wae (a) In November 1977 I went, without my wife to the National Bank of Australasia, Narrabeen Branch, where I saw the Accountant, Mr. Campbell-Dick. I requested that the bank advance me a further sum of $2,000.00 by way of loan. By this time my wife and I already had a $2,000.00 personal loan at the National Bank, Narrabeen Branch. (b) Mr. Campbell-Dick gave me an application form for a (c) (d) (e) (£) (g) (h) (i) (3) (k) (1) ~14- personal loan for my wife and I to complete at our leisure. Early in December 1977 I returned the above application to the Accountant at the time at the National Bank Narrabeen, Mr. Griffiths, in a completed form, signed by myself and my wife but not witnessed. Mr. Griffiths advised me that Mr. Campbell-Dick had been transferred to the North Sydney Branch of the National Bank as Accountant. A few days later I was advised by Mr. Griffiths that the application completed by my wife and myself had been declined. He asked me if I wished the application to be sent to Mr. Campbell-Dick and I agreed. A few days later Mr. Campbell-Dick telephoned me and said: "I may be able to get you the loan here, however I can't accept this loan form because all the details on it refer to your dealings at Narrabeen and I did not witness your or your wife's signature. So drop in and see me." I then called to see him. He said to me: "I think I can get you the loan, sign this." By this he referred to a blank personal loan application. I signed it then and there. I understood the transaction to be to enable myself and my wife to sever all our ties with the National Bank, Narrabeen, and to be a $4,000.00 loan on a cheque account overdraft basis, or failing that another $2,000.00 loan on a personal loan basis. On or about the 24th December Mr. Griffiths telephoned me and said: "Mr. Campbell-Dick has put $4,000.00 anto your joint cheque account. I understand that you now want to pay off your previous personal loan of $2,000.00 with us here. Is that correct?" I replied: "Yes." On or about the 3lst January, 1978 my wife and I -15- received by post a completed personal loan agreement, a copy of which is annexed hereto and marked with the letter "E". (m) This document indicated to me that the Bank had given me a new personal loan of $4,000.00 rather than the overdraft I was led to believe I would be granted following Mr. Campbell-Dick's conversation. My wife cannot recall signing the within mentioned document at any time." The second version appears in the male applicant's affidavit of 24 February 1981. Much of what he said in this affidavit corresponded to what he said in the affidavit of 20 October 1980; but there are some important differences which I shall mention later. In his affidavit of 24 February 1981 the male applicant says:- "2. In November 1977 I went to the National Bank of Australasia Limited, Narrabeen Branch, where I saw the Accountant, Mr. Campbell-Dick. I said to him "I need to borrow some money to assist me with . my compensation claim on a cheque account overdraft basis". He said "leave it with me and I will see what I can do". I then left the Bank. 3. Approximately one (1) week later I returned to the National Bank of Australasia Limited, Narrabeen Branch, and again saw Mr. Campbell-Dick. He said to me "I don't think I can help you with a cheque account overdraft, so I will give you this personal loan application to f11l in". He handed me a blank form headed "Application Personal Loan". I took this form home and I completed it and my wife completed it, and we each signed this form and I returned it to the National Bank at Narrabeen, about one (1) week later. 4, Within a few days after that, a man who I now know to be Mr. Griffiths from the National Bank of Australasia Limited at Narrabeen rang me at home and hesaid to me "Mr. Campbell-Dick has been transferred to our North Sydney Branch. I have taken over his position. I have been asked by the Manager, Mr. Hunter, to advise you that yours and your wife's application for a personal loan has been rejected. Do you want me to advise Mr. Campbell-Dick accordingly, in the hope that he might be able to assist you with the Manager up -16- there at North Sydney?" 5. A few days later I arranged to transfer some banking accounts of mine from the National Bank at Narrabeen to the National Bank at North Sydney. A few days after that I had a telephone call from Mr. Campbell-Dick and he said "I may be able to get you the loan here, however, I cannot accept this loan form because all the details on it refer to your dealings with Narrabeen, and I did not witness your and your wife's signatures. So drop in and see me". 6. <A few days later I called in to see him. He said to me "I think I can get you the loan, sign this". He then showed me a blank personal loan application. He said to me "I will try first and foremost to get you a cheque account overdraft, but if I can't I will get you a personal loan, sign this personal loan form for me. I can get the details off your old personal loan form at Narrabeen". I then signed that blank form. He then said to me "I'll let you know how I go". I then left the Bank. 7. %I went home and after I had discussed with my wife what had taken place at the Bank that day, I wrote a letter to Mr. Campbell-Dick the next morning. Annexed hereto and marked with the letter "A" 1s a copy of that letter which I delivered by hand the next day between the hours of 12.00 noon and 1.30 p.m, while Mr. Campbell-Dick was at lunch. I handed the letter to a girl at the Enquiry Counter and I said to her "would you give this letter to Mr. Campbell-Dick". I then watched her take the letter and put it on Mr. Campbell-Dick's desk. I then left the Bank. 8. On or abour (sic) 24 December Mr. Griffiths telephone (sic) me at my home and said "Mr. Campbell-Dick has put $4,000.00 into your joint cheque account. JI understand that you now want to pay off your previous personal loan of $2,000.00 with us here. Is that correct?" I said "yes". On or about 31 January, 1978 my wife and I received, by post, a completed personal loan Agreement. This Agreement had come in an envelope which had been re-directed from Collaroy, Post Code 2097, to Collaroy Plateau, Post Code 2098, apparently by the Dead Letter Office. Annexed hereto and marked with the letter "B" 1s a photo-copy of the personal loan Agreement received at that time. 9. I then telephone (sic) Mr. Campbell-Dick and I -17- said to him "I am upset about receiving this. I didn't want a personal loan, I wanted a cheque account overdraft, as I stated in my letter of 17 December". He said "the loan was already being processed by then. Other people are generally thankful to get money and I was only trying to help you". I said "I'm not going to pay it, I am going to get some legal advice"." This is the first time that the letter of 17 December 1977 from the male applicant to Mr. Campbell-Dick was mentioned by the male applicant in this application. It was never mentioned in the District Court action. The letter is critical to the case for the applicants. The original, if any, of the letter is not in evidence. There 1s no dispute that the copy in evidence was written and signed by the male applicant. The respondent denies ever seeing this letter until it received a copy of the affidavit of 24 February 1981. I shall say more about the letter later. It is sufficient to say at this stage that the respondent alleges that the male applicant concocted the letter, probably between 20 October 1980 and 24 February 1981, for the purpose of bolstering his case. The third version of the facts given by the male applicant is that given by him when giving viva voce evidence before me on 13 May 1981. He "corrected" paragraphs 2. and 5.of his affidavit of 24 February 1981. He was asked in chief by his counsel:- "Are the contents of that affidavit true and correct?" To which he replied:- -18- "No they are not." He was asked to state what part was not correct, to which he said: "with respect, item number 2 on the evidence of the National Bank, I put in November '77; I only know it was at the time Mr. Campbell-Dick was subject to transfer so going on the National Bank's records that should have read in July '77 in item 2." He "corrected" paragraph 5 of his affidavit of 24 February 1981 by saying:- "Yes. In item 5, I have got 'A few days later'. I think it would be more appropriate for 'some time later'." These changes to the evidence of the male applicant are important for reasons which I shall mention later when dealing with his credit. A fourth version of relevant events was given by the male applicant, also in oral evidence before me on 13 May 1981, relating to paragraphs 6 and 7 of his affidavit of 24 February 1981. He said in cross examination by counsel for the respondent:- A "With respect to my solicitor, Mr. Wall, I think there may be a small chapter missing between 6 and 7 an that affidavit. Q. Do you want to correct your affidavit again, Mr. Thurgood? A. No, I do not wish to correct it at all. If it is not there I cannot correct it... Q. May I take it that when you said in your affidavit -19-— that you discussed with your wife what had taken place at the bank that day, you were referring to the events deposed to in paragraph 6? A. No. Q. Will you agree with me that that is the way your affidavit reads? A. Yes, it reads that way but, no, that isnot what it meant. Q. So your affidavit is incorrect then so far as the events are concerned. A. No it 1s quite correct. All I am saying there could not be - if we went back to Mr. Hawkins' true record we might find that there is an omission of a statement because...." Mr. Hawkins 1s a solicitor presently acting for the male applicant. Later in cross examination he said:- Q. "Now, I put it to you that that affidavit reads as 1£ you wrote the letter on 17 December after the events took place on the Friday which are related in paragraph 6. That is the way the affidavit reads, does it not? A. If you wish to put that interpretation, I do not. There is not a date on the 6th and there is not a date on the 7th. Now, I cannot put a date on the 6th. I do not know, but the date on the 7th is the 16th. Q. Mr. Thurgood, I understood you to say a_ short moment ago that you agreed with me that the affidavit in paragraphs 6 and 7 read...? A. I agreed that that 1s the way you are reading it. Q. Do you agree that that is the way the affidavit reads? A. No, I do not, they are different paragraphs." Later in cross examination he said:- A. Q. A. ~20- "Well your affidavit to say the least gives a confused account of what happened does is not in paragraphs 6 and 7? Yes, I agree with you on that point. Yes it does. In fact little regard can be had to paragraphs 6 and 7 on the basis of what you have just said; is that not so? No it is true as - that iS how I got the form. You have just told his Honour that on the Friday before you wrote that letter you handed back the bank application personal loan form signed by you and your wife? That is correct. That is not what paragraph 6 says is it? As I said paragraph 6 happened some time before paragraph 7 comes into light. To put it bluntly Mr. Thurgood, paragraph 6 is incorrect is it not? No it is not; as it relates to the day that I was issued with the personal loan blank application it is correct. You do not agree that paragraph 6 in its present form 1s incorrect, having regard to your evidence that you have just given that on that day, the Friday, you went back to the bank with the signed form, signed by you and your wife. Look 1f paragraph 6 could say on such and such a date I called at the bank and I picked up that form which I do not know the date and if paragraph 7 said on the 16th I handed it back and then I went home - of December - I then went home, that would be in order; but the events of...paragraph 6 relates to how I got thatblank application form; paragraph 7 relates to how I returned it. I admit with you that it can be confusing. But 7 now must refer to the day I went home. I could say on 16 December I went home after what had happened at the bank that day." There were at least two other versions of relevant -21- material facts which relate to conversations between officers of the respondent and the male applicant between July and December 1977 but I need not refer to them. The female applicant swore in her affidavit of 20 February 1981:- "2. I am married to the male applicant but am living separately and apart from my husband. I left the matrimonial home on or about the 17th day of November 1980 and have not since cohabited with my husband. 3. During our marriage my husband looked after all our banking and financial matters. My husband negotiated a number of bank loans which were made jointly to us. 4. I was aware that my husband and I had prior to November, 1977 a joint loan from the National Bank Narrabeen Branch and that at about that time my . husband was discussing transferring our banking business to the North Sydney Branch of the National Bank. 5. I have sighted a photocopy document entitled "Application for Personal Loan" used by The National Bank of Australasia Limited a copy of which is annexed hereto and marked "A". One of the signatures on the reverse of the document appears to be mine." "The document described as annexure "A" to the female applicant's affidavit contains a copy of the third page and fourth pages of the form of application for "personal loan". "6. I do not recall ever signing the said application nor do I recall making such an application for a personal loan of $4,000.00... 7. Next to my apparent signature on the said application is the signature of a witness. I am informed that the signature is that of Mr. J. Campbell-Dick an officer of the Respondent Bank. I -22- say that I never attended at the National Bank to sign such an application during November and December, 1977. I say that Mr. Campbell-Dick did not attend at my home to witness the signing of any documents by me. I am informed and verily believe that the Respondent Bank admits that Mr. Campbell-Dick did not witness any such signature by me. 8. When the Respondent Bank instituted Court proceedings in respect of the alleged loan my husband undertook our mutual defence. 9. The matters referred to inparagraphs 3, 4, 5, 6, and 7 have not, in so far as I am aware, been placed in evidence in any of the prior proceedings to this application." In cross examination before me the female applicant said, when shown the form of application for "personal loan" produced by the respondent and bearing what purported to be the signature of the applicants, that the signature on the last page which purported to be her. signature was in fact her signature. She says that a discussion took place between herself and her husband in December 1977 or thereabouts relating to the transfer of the loan of $2,000.00 which had been taken out in 1976 with the Narrabeen branch of the bank, not a further loan of $2,000.00. She said that when she signed the loan application form for the 1977 loan it was "a blank document". She adhered to that evidence throughout her cross examination. This was the first time that any suggestion was made by the female applicant to this effect. Previously she had said that she either had not signed or could not recall signing the document. She said: "I do not recall signing anything that was filled in, and the copy I have is filled in." She said again: -23- "I signed a blank form so I do not recall signing one for $4,000.00." She admitted that paragraph 5 of her affidavit was incorrect. She denied that when she swore her affidavit she had in fact seen a photocopy of the application form which is in evidence and marked "JRCD 4", that being the form which plainly she did sign. In summary, the evidence of the female applicant is that she signed all the relevant documents in blank (in the sense of bearing the printing but not the typing)but without really knowing what they were, except she assumed that they related to the transfer of the loan from the Narrabeen branch to the Miller Street branch because the male applicant wanted to remain with the same bank officer, Mr. Campbell-Dick, who had himself moved from the Narrabeen branch to the Miller Street branch. All that she remembered clearly seeing was the last page of the four page document which was then in blank. Probably it was given to her by her husband to sign at home when she was looking after her two young children and not particularly concerned about the matter. There is no doubt that the document bears her signature. The male applicant called two witnesses, a Mr. J. W. Morgan and a Mr. R. K. Leys, to give viva voce evidence. Notwithstanding earlier directions that evidence be given by affidavit, counsel for the male applicant sought the court's leave to lead their evidence viva voce. No notice of this application was given to counsel for the -24-— respondent until the morning on which they gave their evidence namely, 8 April 1981. Counsel for the male applicant informed me that he and his instructing solicitors had known for some time that the male applicant: "was in the company of two other persons when he went to the bank on that occasion (i.e. 19 December 1980) but he (the solicitor) had great difficulty in getting hold of them. We knew of their existence only recently and of their availability to come to Court. I was first informed of that this morning." However the evidence given by Mr. Leys was that ain mid-December 1980 he spoke to the male applicant and his solicitor together and the question of his being a witness was then raised for the first time. Some indication was given to him that he would probably be called as a witness. Yet he was never asked to make a written statement. Mr. Leys gave evidence that he has lived at the same address for the last two years and has been in touch with the male applicant about twice a month in person and at least once a month by telephone. He is a friend of the male applicant and there 1s no suggestion that he declined to furnish an affidavit. As to Mr. Morgan, he said in evidence that the last time he had a telephone conversation with the male applicant was about two or three nights before he gave evidence (that 1s, 5th or 6th April 1981) and the male applicant reminded him that the Court proceedings were on and that he ought not to be late for them. He said also that 1t was about a month before he gave evidence that he was asked to do so. -25- I have no reason to doubt that what I was told by counsel for the male applicant was based on instructions. But it was on the basis of what I was told that I allowed the two witnesses to be called, because the issue to which their evidence was directed was critical for the case for the applicants. If the facts that I have Just related had been before me when leave was sought to call them to give viva voce evidence I would have refused leave. In some cases where directions of the Court have not been complied with as to the filing of affidavits and other related matters, no doubt it 1s appropriate to adjourn the hearing of a case on terms as to costs or otherwise in order to ensure that justice is done. But where it is plain that directions have not been complied with and no reasons are shown for their not having been complied with; indeed, where the evidence points to the conclusion that they could have been complied with, I think the Court should be slow to take the easy path of adjourning the hearing. Indeed, there is no point in giving directions for the filing of affidavits if they are to be flouted, as there were in this case. However, the evidence of Mr. Morgan and Mr. Leys has been given and, rather than ignore it, I will deal with it. Mr. Morgan is a security officer and a taxi driver. He gave evidence in chief that on Monday 19 December 1977 he met the male applicant, who is a friend of his, and they were then in the course of considering some business arrangement between them. He went with the male applicant to the chambers of the Council of the Municipality of Warringah. The male applicant came out of the Council chambers and -26= they then drove to Miller Street, North Sydney in Mr. Morgan's car where the male applicant left the vehicle. He had with him certain papers and an envelope; but Mr. Morgan could not say what the general nature of the documents was or nor could he describe their contents. He says that the male applicant left the vehicle near 2UE radio station in Miller Street, which it seems is near the premises of the Miller Street branch of the respondent. He does now know if the male applicant went to that branch itself after he left the vehicle. That was about 1.00 p.m. In cross examination Mr. Morgan admitted that he did not remember the precise date of the occurrence but that it was during the week before Christmas and on a week day. He said: "I had to be reminded of the actual date of what took place." It was clear from his evidence that the person who reminded him was the male applicant. He said again: "There was nothing to remind me" (that 1s as to which particular week day it was). "Actually, all I remember quite clearly was it was just before Christmas in 1977." I treat the evidence of Mr. Morgan with caution because of the circumstances surrounding his being called to give evidence to which I have referred; but, more particularly, because he did not know the particular day of the week it was that he drove the male applicant to Miller Street, North Sydney and had to be reminded of the particular date by him. I am also mindful that he is a friend of the male applicant. Also, the fact that he had no independent recollection of the particular day of the week in which he did drive the male applicant ~27- to Miller Street, did not emerge until he was cross examined, the impression conveyed from his evidence in chief being that 1t was in fact on 19 December. Mr. Leys, who is a taxi driver also, gave evidence that he met the male applicant outside the Miller Street branch of the respondent on Monday 19 December 1977 at about 1.40 p.m., he (Leys) intending to see the "manager" of that branch. They both went into the bank, the male applicant spoke to a girl behind the enquiry counter and asked to see the "manager". Mr. Leys said that the name given by the male applicant was a long name and probably hyphenated, he thought it might have been "Campbell-Hughes". The girl said that the "manager" was not in and asked them if they would like to wait. Neither of them waited. The both left "more or less immediately". But, before doing so, the male applicant gave the girl "a letter", being a normal sized envelope about five inches by three inches, and asked the girl to give it to the "manager". Mr. Leys said that he did not know if the date was 19 December or not although he fixed the date as being the Monday before Christmas. He did this because it was the first working day after he had returned from where he had previously lived, namely Narrabri, and he did not get back to Sydney from Narrabri until the Saturday or Sunday. He said that he was first asked to cast his mind back to the relevant events in about mid December 1980 at a conference between himself, Mr. Hawkins,solicitor for the male applicant and the male applicant himself. He was then asked to verify that he had met the male applicant outside the respondent's branch in Miller Street on the Monday before Christmas. -28- I treat the evidence of Mr. Leys with caution for a number of reasons. First, I have already referred to the circumstances in which he was called to give evidence. He is a friend of the male applicant. They often see each other. He has discussed the case with the male applicant since mid December 1980 on more than one occasion, the last one being about three weeks before he gave evidence. At least at that date, no written statement had been requested from him or provided by him. It is plain that the subject matter of the discussions between the male applicant and Mr. Leys concerned his being able to verify that he met the male applicant outside the Miller Street branch of the respondent on the Monday before Christmas. Also, the "manager" of the Miller Street branch of the respondent in December 1977 was not Mr. Campbeli-Dick. He was its accountant; yet Mr. Leys was specific in his recollection that it was the "manager" of the branch that He (Leys) had gone to see; that the male applicant asked to speak to the "manager" and asked the girl behind the enquiry counter to hand the letter to the "manager". Mr. Campbell-Dick gave evidence by affidavit and was cross examined. He was the branch accountant of the Narrabeen branch of the respondent from 5 July 1976 to 26 July 1977 and the branch accountant of the Miller Street branch from 27 July 1977 to 25 August 1978. He swore in his affidavit that on 25 November 1977 he interviewed the applicants at the Miller Street branch who were accompanied by their two children, Louise and Paul, in connection with the opening of -29- accounts by the applicants at that branch. He swore that at the time of that interview the applicants were known to him "by reason of their having been customers at the Narrabeen branch of the bank at which I had formerly been employed as branch accountant prior to my transfer to the Miller Street branch". He swore: "6. On or about 19th December, 1977, I received a visit from Mr. Thurgood at the Miller Street branch. Mr. Thurgood said to me, "I would like to get a loan of $4,000.00 from the Bank to assist with legal proceedings regarding compensation", or words to that effect. I replied, "You will need to fill in a Personal Loan application form in the joint names of you and Helen", or words to that effect. 7. On or about 19th December 1977, I typed or arranged for one of the Bank typists to type a Personal Loan application form in duplicate in the name of Harold Albert and Helen Mary Thurgood. I then handed this typed form to Mr. Thurgood and said, "It has to be signed by both of you", or words to that effect. Mr. Thurgood then said, "Can I take it home and get her to sign 1t?" I replied, "We don't normally allow ait but an_- the circumstances, OK. Helen should sign there," and at the same time I marked a cross with a black biro on the original of the said document, which document together with the duplicate I then handed to Mr. Thurgood. 8. On or about 20th December, but not later than 23rd December, 1977, Mr. Thurgood returned to the Bank and handed to me the said Personal Loan -30- application form in duplicate dated 19th December, 1977, with a signature purporting to be that of Helen Mary Thurgood additional to his own upon it. I then checked the signature against the account card previously exhibited to me and marked "JRC-DIl"held at the branch and was satisfied that it was the signature of Helen Mary Thurgood. Exhibited to me at the time of swearing this my affidavit and marked "JRC-D4" is the Personal Loan application form received by me from Harold Thurgood. 9. Either at the time the said Personal Loan application form was typed or at the time the document was returned to me by Mr. Thurgood, If Ye alised that details of the Thurgood's savings accounts had been omitted from the assets section of the application. I wrote those additional details in, and made a correction to the total amount recorded. I then asked Mr. Thurgood to initial the alteration which he did in my presence. 10. Following receipt of the completed Personal Loan application from Mr. Thurgood, I then processed the loan in accordance with bank practice. The loan was on 23rd December approved by the manager of the Miller Street branch, Mr. Ken . Priest and drawn on that date." Mr. Campbell-Dick denied that he was present at the Narrabeen branch of the respondent in November 1977 and denied that he had a conversation with the male applicant at that branch or any other place as alleged by the male applicant in his affidavit of 20 October 1980. He said that he could not recall having given the male applicant a blank personal loan application as alleged by the male applicant in his October affidavit; that he could not recollect having said the words attributed to him by the male applicant in sub-paragraph (f) of paragraph 23 of the male applicant's October affidavit and did not recollect having telephoned the male applicant in connection with a loan application. He said that he had no recollection of any request being made by either of the applicants for overdraft accommodation. He -31- said: "I can state that it has always been my employer's practice whilst ever I was employed at the Narrabeen and Miller Street branches, that overdraft accommodation may not be granted at fPranch level for amounts in excess of $300.00 on an unsecured basis, and that the only accounts which would be considered for such accommodation would be trading accounts in respect of which' some fluctuation of balance could be anticipated." He denied ever having said anything to the male applicant or the female applicant to the effect that overdraft accommodation could be obtained by him or them. He denied the conversation alleged by the male applicant in sub-paragraphs (q), (h) and (i) of paragraph 23 of his October affidavit. In reference to the affidavit of the male applicant of 24 February 1981 Mr. Campbell-Dick denied substantially the same matters as he did in relation to the October affidavit; but in addition he said he had no knowledge of any letter of 17 December 1978 and swore that he had never seen that letter. He also denied that he had the conversation with the male applicant as alleged in paragraph 9 of the male applicant's affidavit where reference was allegedly made to this letter either at the time alleged by the male applicant or at any time. Under cross-examination he said that he had no _ specific recollection but relied on his and the bank's general practice as to the form of application for personal loan in 1977, having been completed before it was signed. He said it was his invariable practice to complete documents before they were signed by customers of the bank. -32- Mr. Campbell-Dick denied in substance the evidence given by the male applicant occasioned by his changing the dates of relevant conversations with Mr. Campbell-Dick from November to July 1977. Mr. D. P. Griffiths gave evidence by affidavit. He was not cross examined. From 25 July 1977 to 26 February 1979 he was branch accountant at the Narrabeen branch of the respondent. He swore that he did not recollect ever receiving a completed personal loan application form from the male applicant as alleged in paragraph 23 of his affidavit of October 1980; he denied having told the male applicant, in December 1977 or on any date, that Mr. Campbell-Dick had been transferred to the North Sydney branch of the respondent as accountant. He 'denied having told the male applicant that any application by him for a personal loan had been declined or having asked the male applicant if he wished to have the application sent to Mr. Campbell-Dick. He swore that he met the male applicant for the first time on either 25 or 26 July 1977. He made similar denials in relation to the allegations of the male applicant in his affidavit of 24 February 1981. He said that his only knowledge of any personal loan application having been made by the applicants was as to the one approved on 21 December 1976. He said that on the morning of 23 December 1977: "I received advice from the accountant at the ~33- Miller Street, North Sydney branch of the bank Mr. Campbell-Dick that a personal loan of $4,000.00 had been approved in respect of Mr. and Mrs. Thurgood. I then phoned Mr. Thurgood and said 'I understand that your personal loan at Miller Street has been approved-would you be avarlable to call at our branch and finalise the existing debt at our branch?' or words to that effect. He replied, 'O.K. I'll call down before lunch', or words to that effect." Mr. C. Clay gave evidence by affidavit. He was not cross examined. He is the manager of the Miller Street branch of the respondent. He swore that it is the custom of the respondent and its practice to retain all documents other than security documents relating to a customer's account in the one file; that he searched the respondent's file and found no letter or copy of a letter or record of any letter from the male applicant to the respondent or any of its officers dated 17 December 1977; that he searched the security register and found no record of any security packet being held in respect of either of the applicants; and that he made enquiries of the State Administration of the respondent and was informed that no letter dated 17 December 1977 from the male applicant to the respondent or any of its officers has ever been sighted by any officer of the respondent save in so far as the document came into being as annexure "A" to the affidavit of the male applicant of 24 February 1981. Mr. K. C. Priest gave evidence by affidavit. He was not cross examined. From 20 December 1977 until 4 November 1979 he was manager of the Miller Street branch of the bank. He swore that, other than as annexure "A" to the affidavit of the male applicant of 24 February 1981, he had never seen the letter. He denied ever having a conversation with the male applicant as alleged in paragraph 11 of that ~34- affidavit or any conversation similar in any way thereto. He swore that letters were sent in the ordinary course by the Miller Street branch of the bank to the applicants in a standard from in February 1978 drawing their attention to the fact that the personal loan account was in arrears and requiring repayment thereof. The ground relied on by the applicants to set aside the bankruptcy notices namely, an alleged infringement of s. 64 2(A) of the Trade Practices Act 1974, gives rise to a number of interesting questions of construction of that sub-section. But I do not find it necessary to determine them because of the view I have formed as to the facts of this case. The respondent has alleged that the male applicant concocted the letter of 17 December 1977. Because of the seriousness of this charge I have stated most of the principal facts in some considerable detail. Having heard and seen all the witnesses who gave viva voce evidence I accept Mr. Campbell-Dick as a truthful witness. The other bank officers were not cross-examined. I reject the male applicant as a witness of truth; and where his evidence conflicts with the evidence of Mr. Campbell-Dick and the other officers of the respondent who gave evidence by affidavit and were not cross-examined, I reject his evidence and accept the evidence of the other witnesses. I base this conclusion not only on the impression I formed from observing the witnesses who gave viva voce evidence but on the probabilities of the case. -35- The male applicant's case is that he wrote the letter dated 17 December 1977 on that day (a Saturday) and delivered it personally to the bank at its Miller Street branch on the following Monday (the 19th). If the bank did receive the letter then why did it not act on it? It would simply make no money available to the applicants at all if the letter had been received because the letter purported to countermand the arrangement previously made for a personal loan. There is no reason why the bank would make an advance to the applicants in these circumstances. Quite the contrary. The bank did not approve the loan until 23 December and the money was made available to the applicants then. Customers who complain about their banks generally do so because they do not receive the money they request. Here 1s a customer who complains because he did get money from his' bank, although, he claims, at an unacceptable rate of interest. Not only was the money advanced by the respondent; but it sent to the applicants a copy of the completed personal loan agreement which was received by the male applicant on 31 January 1978. Plainly the male applicant must have realised, at least, then even on his own case, that the bank had in fact treated the loan as if 1t was a "personal loan". Yet he made payments off the loan on various eccasions including 23 January 1978, 23 March 1978 and 27 April 1978. On about 28 September 1978 the respondent received a request from the solicitors then acting for the male applicant for a pay-out figure of the "personal loan account". The figure was supplied by the respondent on 4 October 1978 which again enclosed a copy of the loan agreement as -36- requested by the solicitors. The male applicant, conscious of the problems created by the matters to which I have referred, seeks to answers them by alleging that he had certain conversations with Mr. Campbell-Dick and Mr. Priest and by relying on certain advice that he alleges he was given by his then solicitor. Paragraphs 9, 10 and 11 of his affidavit of 24 February 1981 are illustrative of this. Yet the two bank officers concerned, Mr. Campbell-Dick and Mr. Priest deny the conversations alleged by the male applicant. Indeed, Mr. Campbell-Dick gave a very sound reason as to why he could not have authorised accommodation by way of overdraft to the applicants, the reason having been referred to by me earlier. I am satisfied that the male applicant concocted the letter of 17 December 1977 for the purpose of bolstering his case and that he invented the conversations with the bank officers to which I have just referred. On various occasions when giving evidence, both by affidavit and orally before me, the male applicant, confronted with obvious difficulties in the path of his case, blamed his solicitors as the convenient scapegoat. The most revealing example is the explanation he gave as to paragraphs 6 and 7 of his affidavit of 24 February 1981. I have already referred to the substance of that evidence and need not repeat it. His explanation that there was something missing between the two paragraphs and that the events deposed to in paragraph 7 were -37- not intended to flow immediately from those deposed to in paragraph 6 is unacceptable. After the male applicant had sworn his affidavit of 20 October 1980, and later the affidavit of 24 February 1981, he read the affidavits of the various officers of the respondent which had been filed during March. He realised that his story deposing to conversations with Mr. Campbell-Dick at the Narrabeen branch of the respondent in November 1977 could not have taken place then. The affidavits of the bank officers, including the personnel officer of the respondent, show plainly that Mr. Campbell-Dick was transferred to the Miller Street, North Sydney branch of the bank on 27 July 1977. So the male applicant changed his story, and this he did, when he gave oral evidence, by placing the initial conversation with Mr. Campbell-~-Dick, referred to in paragraph 2 of his affidavit of 24 February, back in July 1977. I have no doubt that the applicant was conscious of the difficulties created to his story by realising that the initial conversations with the bank officers must have taken place in July, not November 1977; because he now had to account for the substantial gap in time between the initial conversations with the bank officers and the writing of the letter. So he sought to narrow the time gap between July and December in his evidence before me by stretching out the date of the various conversations; including the date of the conversation deposed to in paragraph 5 of his affidavit of 24 February 1981. He said in evidence before me that it was not a few days after the earlier conversation deposed to in paragraph 4 but "some time later". -38- In some cases where there are sharp conflicts of fact, evidence by affidavit is plainly undesirable. It is much better that witnesses give their account for the first time in the witness box. This is not a case of a party having sworn certain matters in his affidavits that are inaccurate in certain respects and later finds himself slightly embarrassed by it and seeks to give a more accurate account in the witness box. It is a case where the male applicant has been advised by various solicitors throughout the dispute between himself and the respondent; has given instructions, pursuant to which particulars were furnished; has sworn affidavits; and then when he has seen the case advanced by the respondent, also by affidavit, realised the predicament he has got himself into. He not only gave evidence of conversations with bank officers (that I have no doubt never occurred in some cases, and in others did not occur in the terms alleged by the male applicant); but he outsmarted himself when he concocted the letter of 17 December because it simply did not fit in comfortably with the time sequence which he had himself created in relation to conversations with bank officers. When he gave evidence before me 1t was clear that he was very conscious of these difficulties and was doing his best to render his oral evidence consistent with his affidavits; but this he failed to do. Not only is the evidence of the bank officers more cogent and probable than any of the accounts given by the male applicant; but he was a very unsatisfactory witness. He sought to project the image of an invalid pensioner who relied on the advice of bank officers and his solicitors and, because of this, found himself in difficulties. This 1s not a true picture of ~39- the male applicant. He may be an invalid pensioner but he 1s an astute man, conscious of the difficulties, mostly of his own making, created in the various accounts of conversations given by him in evidence. He sought to bolster his case at every turn. An allegation that a witness has concocted an important document and concocted conversations between himself and others is serious; but counsel for the respondent did not hesitate to make the allegations; and in my opinion they have been fully made out. I have given careful consideration to all the evidence in the case and to all evidence that might possibly assist the case for the applicants as to the circumstances in which the advance came to be made on 23 December 1977; but at almost every point the case for the applicants 1s unsatisfactory. The matters that could be said to give some objective credence to the story of the male applicant arise from the evidence of Mr. Morgan and Mr. Leys which I have already referred to. I need not repeat the reasons why I prefer not to rely upon it. But even taken at its highest all that evidence points to is that on Monday 19 December 1977 the male applicant handed to a girl behind the enquiry counter at the Miller Street branch of the respondent a normal sized envelope with instructions that it be given to the manager. On the evidence before me, if this event did occur, the envelope could have contained a number of documents and not necessarily the letter of 17 December. It was about that time that the various accounts of the applicants and their children were being transferred to the Miller Street branch and various documents were being signed by the applicants. -40- The respondent did not call any female staff to refute the suggestion that an envelope was handed to her on the occasion in question nor was any explanation offered as to why no such witness was called. Counsel for the male applicant fairly stated that at best he could gain no higher support for his case from this fact than that any evidence which this female member of the respondent's staff could give would not assist the respondent'scase. Although this 1s a factor which must be weighed in the scales to some extent in favour of the case for the applicants, any weight it may have is overborne by the other considerations to which I have referred. The letter of 17 December 1977 was not mentioned in the affidavit of 20 October 1980 of the male applicant nor was it mentioned in any of the letters written by his solicitors from time to time giving particulars or other information relevant to the District Court action where its disclosure was plainly called for, assuming it existed. It is not suggested by the male applicant that he had forgotten about the letter. He gave evidence that he found his copy of the letter when going through family papers after his father's death. I do not accept that so important a document to the male applicant's case as the letter of 17 December was never referred to by him or his solicitors because it was not rediscovered by him until recently when going through family papers. I am satisfied that this letter was not delivered or otherwise sent by or on behalf of the male applicant to the respondent. -Al- Then there is the fact that the male applicant changed his story as to critical events on the various occasions I have referred to. Also the female applicant gave evidence before me denying the discussion which the male applicant alleges he had with her and to which he deposes in paragraph 7 of his affidavit of 24 February 1981 - an important conversation because he says it was after this discussion with his wife that he wrote the letter of 17 December. She said no such discussion took place at all whether in relation to the letter or otherwise and that to the best of her knowledge she never saw the letter or a copy of it. Another matter that tells against the acceptability of the male applicant as a truthful and reliable witness 1s that it was part ef the male applicant's case before this Court that Mr. Campbell-Dick was able to complete the particulars on the form of application for personal loan in 1977, not by recourse to anything that the male applicant told him, but by looking to the form of application for personal loan in 1976 and transferring the relevant items. Mr. Campbell-Dick denied that he had done this and denied also that he ever had the opportunity of doing so. I accept his denial as truthful. But it is plain from a comparison of the particulars that appear on both forms of application that there are substantial differences between many items appearing on each. It 21s plain that the source of most of the material that appears in the 1977 form could not have been taken from the 1976 form. The only feasible explanation is that the -42- information was given to Mr. Campbell-Dick by the male applicant. The male applicant admitted under cross examination that he had, in 1978, applied to a number of banks for a Bankcard for himself, he being an invalid pensioner. He was unable to obtain such a card and was told in effect that as there was a recession, credit could not be extended to him. He then set out to establish some case that he, as an invalid pensioner, was being discriminated against by the banking system in Australia. So he went to the Campbelltown district and spoke to some seven bank managers, told them he was a doctor from New Zealand; that he intended to commence a pathology service in the district and was waiting for certain money to be transferred from New Zealand from the sale of his house and required $3,000.00 for the purchase of a motor vehicle. At the end of the day in question he had collected $15,000.00 and the next day he banked the whole $15,000.00 into the accounts that had been opened for him. Ultimately he derived no financial benefit from the transaction because he banked the money to the credit of those accounts. He was charged on s1x counts of false pretenses. It seems that he pleaded guilty to at least one of the charges. He agreed that his conduct answered the description of dishonestly engaging in making false statements with the intention of deceiving others in a financial transaction. This rather bizarre affair shows that the male applicant is an unusual man who was, at least in 1978, prepared to go to extraordinary lengths to establish some case of discrimination against him. It is also some confirmation of his plausability because he -43- tricked at least five bank managers into providing him with $3,000.00 each. I do not rely on the evidence that was led about these incidents in assessing the credibility or reliability of the male applicant; but 1t does confirm the view I have otherwise formed of him that he would go to extreme lengths to establish a point in his favour. It is for the applicants to satisfy me as to the truth of their case surrounding the circumstances in which the advance came to be made by the bank on 23 December 1977. They have failed to discharge that onus. Indeed, I am affirmatively satisfied that there is no substance in their case and that the evidence as to what occurred given on behalf of the respondent is correct, and I accept it. That disposes of the matter except for the other challenge made by the female applicant namely, that when she signed the form of application for personal loan, it contained printed material but no typed material; it was in that sense in blank in that although she recalls signing it, she did not really know what it was that she was signing, because she assumed that it related in some way to the transfer of the loan account from the Narrabeen branch to the Miller Street branch of the respondent. Plainly the female applicant played little, if any, role in the business affairs of her husband and herself. She looked after her -44- husband and children and was not concerned with business matters. In her affidavit sworn on 20 February 1981, she said that she did not recall ever signing the form of application for personal loan in 1977, nor did she recall making such an application for a personal loan of $4,000.00. There is no doubt that the female applicant in fact signed the form of application for personal loan and probably she did so at her home after her husband handed her the document to sign. Plainly she did not sign it at the Miller Street branch of the respondent. What she deposed to in her affidavit 1s basically consistent with her verified grounds of defence in the District Court action dated 15 May 1979. It is also consistent with what she appears to have told the male applicant's solicitors who wrote to the respondent on 10 October 1978 saying: "We have discussed this matter with our client and his wife, and it would appear that Mrs. Thurgood has no recollection of signing the application..." Yet, when she gave evidence before me she swore during cross examination that she had always recalled signing the document but: "I just know that I had signed a blank form and that is all I signed." This is the first time that any such statement was made by the female applicant or on her behalf. It is a substantially different story to the one that she had previously given. -45- In these circumstances I treat her evidence with considerable caution, and as it is for her to establish that the bankruptcy notice should be set aside, I am not satisfied that she has made out her case. Even if I were to accept as correct what she said in the witness box namely, that she signed the document in blank in the sense of bearing printing but nothing else, in my opinion, a plea of non est factum could not succeed. Her case was not put on any other basis. In Gallie v. Lee [1971] A.c. 1004 Lord Reid said at p. 1016: "The plea" (non est factum)"cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisers without - making any enquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case. Similar statements were made by Lord Wilberforce at p. 1026, Lord Pearson at pp. 1032, 1033 and 1034. In the result the application to set aside the bankruptcy notices fails. I order that the application be dismissed and that the -46- applicants pay the costs of the respondent of the application including reserved costs. Pe ney bie ft net mre edt Se Lot Te mbes CATCHWORDS Bankruptcy - bankruptcy notice - time for compliance extended to specified date or further order - no further extension sought on specified date ~ whether act of bankruptcy committed. Bankruptcy Act 1966 Cth. HAROLD THURGOOD and HELEN MARY THURGOOD Applicants THE NATIONAL BANK OF AUSTRALASIA LIMITED Respondent NO. B3327 OF 1980 LOCKHART J. FRIDAY 5 JUNE 1981 AT SYDNEY IN THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE ) ) ) } No. B3327 of 1980 ) ) AUSTRALIAN CAPITAL TERRITORY RE: HAROLD THURGOOD and HELEN MARY THURGOOD HAROLD THURGOOD and HELEN MARY THURGOOD - Applicants THE NATIONAL BANK OF AUSTRALASIA LIMITED Respondent ORDERS JUDGE MAKING ORDERS: LOCKHART J. WHERE MADE: AT SYDNEY DATE OF ORDERS: FRIDAY 5 JUNE 1981 THE COURT ORDERS THAT: 1. The applacation be dismissed 2. The applicants pay the respondent's costs of the application including reserved costs. IN THE FEDERAL COURT OF AUSTRALIA ) BANKRUPTCY DISTRICT OF THE STATE OF) NO. B3327 of 1980 NEW SOUTH WALES AND THE ) AUSTRALIAN CAPITAL TERRITORY ) RE: HAROLD THURGOOD and HELEN MARY THURGOOD HAROLD THURGOOD and HELEN MARY THURGOOD Applicants THE NATIONAL BANK OF AUSTRALASIA LIMITED ' Respondent REASONS FOR JUDGMENT Friday 5 June 1981 LOCKHART J. This is an application by Harold Albert Thurgood ("the male applicant") and Helen Mary Thurgood ("the female applicant") (I shall refer to them together as "the applicants") to set aside bankruptcy notices, in identical form, each dated 2 July 1980, one served on the male applicant and the other on the female applicant. The applicants are husband and wife. The bankruptcy notices were issued by a District Registrar in Bankruptcy at the request of The National Bank of Australasia Limited ("the respondent") following the entry of judgment by the respondent against the applicants in the District Court of New South Wales on 21 -2- March 1980 in the sum of $4,651.47. The applicants ask this Court to go behind the judgment and to set aside the bankruptcy notices on the ground that there is no debt owing by them to the respondent. Before turning to the facts 1t is convenient to refer to a question that arose early in the hearing of the application. It 1s necessary to relate the curial history of the application to prcperly understand this question. The application to set aside the bankruptcy notices was first listed for hearing on 20 October 1980 before me. I extended time for compliance with the requirements of the notices up to and including 27 October 1980, gave certain directions as to service of the application and affidavits in support upon the respondent. The application was at that stage ex parte and 20 October 1980 was the last day for compliance with the requirements of the notices. J adjourned the further hearing of the application to 27 October 1980 giving liberty to any party to apply in the meantime to rescind or vary the orders. On 27 October 1980 all parties were represented when the matter came on for further hearing before a Judge of this Court, who, by consent, adjourned the application until 17 November 1980 and extended time for compliance with the requirements of the bankruptcy notices until 4.00 p.m. on that date. On 17 November 1980 the matter again came on for hearing before me. By consent, I adjourned the ~3- application until 1 December 1980 and extended time for compliance with the requirements of the bankruptcy notice up to and including 1 December 1980. On 1 December 1980 the application came before a Judge of this Court who adjourned the hearing until 2 February 1981, and ordered that time for compliance with the requirements of the notices be extended up to and including 4.00 p.m. on 2 February 1981 "or further order". On 2 February 1981, the application came before a Judge of this Court who adjourned the application to 9 February 1981 for the purpose of fixing a date for the hearing of the contested application. At no stage did the solicitor who appeared for the applicants seek an order further extending time for compliance with the requirements of the bankruptcy notices. On 9 February 1981 a Judge specially fixed the matter for hearing on 8 April 1981 and gave consequential directions as to the filing and serving of affidavits. On 8 April 1981 the application came on for hearing before me. Soon after the commencement of the hearing of the application I raised with the parties the question whether acts of bankruptcy had been committed already as no application was made on 2 Februry 1981 to the Court for an order further extending time for compliance with the requirements of the bankruptcy notices; and hence no extension was ~4- granted. No party sought to determine the question as a preliminary point; they all joined in asking me to treat it as but one of the issues in the case and asked that I hear the application on its merits, especially because all parties had filed affidavits in the matter and had witnesses available for cross-—examination. I agreed to this course. The point was in due course argued and I shall deal with it first. ? Time for compliance with the requirements of a bankruptcy notice may be extended pursuant to the powers conferred by s. 41 (6A) of the Bankruptcy Act, 1966. In this case, so far as relevant, the power to extend time is in aid of the application to set aside the bankruptcy notice. An extension of time to comply with the requirements of a bankruptcy notice may be made to a specified date or, alternatively, as an Re Lipov (1979) 24 A.L.R. 616, until further order. As no application was made on 2 February 1981 to the Court to further extend time for compliance with the requirements of the bankruptcy notices, the applicants seek to avoid the consequences of acts of bankruptcy being committed by asserting that the order of the Court of 1 December 1980, upon its proper construction, meant that the time for compliance was extended until further order and that the effect of specifying the date 2 February 1981 was merely to adjourn the application until then. I do not accept this argument. I have read the transcript of the proceedings on 1 December 1980 before the Court and the "Record of ) eet dad te A -5- Proceedings in Court" sheet customarily made out by the associate of the Judge when sitting in bankruptcy matters in Sydney; and they show plainly that the Judge specifically adjourned the application to 2 February 1981 and specifically extended time to comply with the requirements of the bankruptcy notices until that day "or further order". In my opinion, this form of order meant that time for compliance was extended until 2 Februry 1981 unless, in the meantime, a party applied to the Court to terminate that extension. Otherwise the extension to a particular date was unnecessary. The usual form of an interlocutory injunction is to restrain the defendant from doing the proscribed acts until the hearing of the suit or further order; the words "or further order" being an acknowledgement of the fact that the injunction may be terminated before the hearing of the suit if application to do so is granted in the meantime. This is consistent with the order of the Court made on 1 December 1980 in the present case. Counsel for the male applicant advanced an alternative argument namely, as I understood it, that the hearing on 2 February 1981 was a continuation of the hearing on 1 December 1980; that the Court was throughout seized of the matter, and specific orders for extension were unnecessary. Reliance was placed on the decision of a Judge of this Court in Re Tamas; ex parte Streimer (9 April 1981 unreported. ) In Tamas an application for extension of time to comply with -6- the requirements of a bankruptcy notice was listed for hearing on 6 April 1981. It was called on and mentioned at least once more during that day's sitting. The parties were ready to proceed but owing to the number of cases in the list it could not be reached that day. Therefore the learned Judge adjourned the application until the following day when the hearing commenced. The point was then taken that, as no extension of time was sought the day before, an act of bankruptcy had been committed. His Honour rejected that submission in these terms:- "But when the matter 1s before Court in the sense that these proceedings were on the 6th inst. with parties ready and intending to proceed and there is an application which has been duly instituted, the Court 1s, in my view, seized of the matter even though owing to pressure of business it has not been able to enter upon or complete argument but has referred the matter to the following day. In . such circumstances I do not agree that the time even without any specific reference thereto by Counsel (and in this matter neither Counsel referred to this situation when I adjourned the hearing to the next day) will continue to run even though no definitive order is made. In such a circumstance the question of extension of time being as itwere, under consideration, that time would not, in my view, continue to run whilst the Court is dealing notionally or otherwise with the issues that have been raised." Tamas is distinguishable from the present case. On 1 December 1980 the extension of time was granted until 2 February. No further application for extension was then made and none was granted. It 1s not a correct analysis of the position to say that in those circumstances the Court was 1n some way seized of the matter and that no specific order for extension was necessary. The circumstances in Tamas were different from those in the present case, and that decision ' a ~7- Goes not bear on the question I have to decide. What this case shows is the necessity for parties to be vigilant when cases of this kind are before the courts. There are various reasons why extensions of time to comply with the requirements of bankruptcy notices are generally limited to specified days, and respondents (judgment creditors) are usually reluctant to agree to extensions of time on the basis of Re Lipov, namely until further order. This lastmentioned form of order has the advantage that it prevents the problem that arose in the present case from arising. I reject this alternative argument of the male applicant. It follows that when the application to set aside the bankruptcy notices came on for hearing before me the acts of bankruptcy had already been committed by the applicants. The parties have filed a large number of affidavits and are prepared to deal with the merits of the applicant's case. There has been cross~examination of witnesses and full argument. The defences of the applicants have not in fact been heard and determined by any Court. In these circumstances I shall not adopt the usual course of dealing first with the question whether I should go behind the judgment and, if that is answered in the affirmative, then turn to the question whether the Court should determine if the debt is in fact due by the applicants to the respondent. I will deal with the case on the footing that the question to be determined 1s whether the applicants are in truth indebted to the respondent. I take this course solely because of the ~8- special circumstances that apply in this case. I turn to the facts. The applicants and their children had a number of cheque and savings accounts with the Narrabeen branch of the respondent over the period December 1976 to September 1978. On 17 December 1976 the applicants signed an application for a "personal loan" from the respondent for two thousand dollars. The money was advanced to them on 21 December 1976. The male applicant gave evidence that during the period July - December 1977 he made enquiries of the respondent about another "personal loan". The circumstances in which these enquiries were said to have been made, and a loan subsequently approved by the respondent, are the subject of a serious conflict of evidence between the male applicant and officers of the respondent. I shall turn a little later to the evidence in detail relating to this question but shall now simply narrate the uncontested facts. On 25 November 1977 a cheque account was opened at the Miller Street, North Sydney, branch of the respondent in the name of the applicants; and on the same day four savings accounts were opened in the names of the applicants and their children or their children. On 23 December 1977 the respondent approved a "personal loan" to the applicants in the sum of $4,000.00. The sum of $3,882.00 was transferred by the respondent to the cheque account of the applicants -9- with the Miller Street branch on 23 December 1977, being the net proceeds of the loan. On the same day a cheque for $3,000.00 was drawn on that account by the male applicant and cashed at the Narrabeen branch. The "personal loan" of the applicants at the Narrabeen branch was discharged that day. On 31 January 1978 the male applicant received a copy of a completed personal loan agreement from the respondent signed by both himself and the female applicant. On at least two occasions, between February and August 1978 Mr. J. R. Campbell-Dick, the accountant of the Miller Street branch, telephoned the male applicant and said:- . "Harold, it appears that your Personal Loan instalments have dropped behind", or words to that effect. The male applicant replied:- "O.K., I'll fix it up", or words to that effect. On at least one occasion, in early 1978, Mr. Campbell]~Dick telephoned the female applicant and said: "Mrs. Thurgood, the instalments on the Personal Loan have fallen behind", or words to that effect. The female applicant replied:- "I'll speak to Harold about it", -10- or words to that effect. The male applicant made payments from time to time to the respondent in reduction of the amount borrowed by the applicants in December 1977. For example $109.57 was paid on 23 January 1978, $109.57 on 23 March 1978 and $109.57 on 27 April 1978. On about 28 September 1978, the respondent received a request for a pay-out figure on the "personal loan" account from the solicitors then acting for the male applicant. The respondent replied to that letter on 4 October 1978 stating the pay-out figure as $4,475.97 and enclosing a copy of the loan agreement as requested by the solicitors. Other correspondence then ensued. It is convenient if I relate the curial history of the matter, bo* in the District Court and this Court, as 1t bears on the credibility of the witnesses. On 4 April 1979 the respondent filed a statement of claim in the Distract Court of New South Wales seeking to recover the balance outstanding from the applicants on the loan of $4,000.00 plus interest, a total of $4,475.97. On 4 May 1979 the solicitors for the applicants, being different solicitors to the solicitor who wrote the earlier correspondence, confirmed an earlier telephone conversation between the -ll- solicitors when it was agreed that the respondent would not object to the defence being filed out of time. The defences were in fact filed on 15 May 1979. On 5 June 1979 particulars of the defences were sought by the respondent's solicitors. On 8 June 1979 the applicants' solicitors wrote to the respondent's solicitors saying that they were seeking instructions to enable the particulars to be given. On 27 June there was a reminder from the solicitors for the respondent in relation to the request for particulars; and on 9 July 1979 the applicants' solicitors provided particulars. On 13 August 1979 the respondent's solicitors served a notice to answer interrogatories on the solicitors for the applicants. These interrogatories were never furnished. On 28 September 1979 the respondent's solicitors wrote to the solicitors for the applicants saying that, unless the interrogatories were answered within seven days, application would be made to the District Court for an order that they be answered. A notice of motion was taken out in the District Court by the respondent for an order that the applicants file answers to interrogatories; and on 23 November 1979 an order was made by the District Court that the answers were to be filed within 21 days. At that hearing a third solicitor acted for the applicants. On 28 November 1979 notices of discovery were filed by the respondent's solicitors and served on 30 November on the solicitor then acting for the applicants. The applicants took out a motion in the District Court -12- proceedings for an order permitting them to file a Notice of Objection to the Jurisdiction of the District Court. This was heard by the Court on 8 February 1980 and dismissed with costs. On 21 March 1980 a notice of motion by the respondent was heard by the District Court seeking orders that the defences of the applicants be struck out and that judgment be entered for the respondent on the ground that interrogatories had not been answered by the applicants and discovery of documents had not been given by them. The applicants were not present or represented on the hearing of that application (but they had been represented on the hearing of the earlier applications) and orders were made striking out the defences. Judgment was then entered. On 2 July 1980 the respondent caused bankruptcy notices to be issued directed to the applicants, served on the female applicant on 4 October 1980 and on the male applicant on 18 October 1980. The subsequent course of proceedings in this Court has already been related by me. The male applicant seeks to set aside the bankruptcy notice served upon him on the ground that the claim of the respondent constitutes a breach of s. 64 (2A) of the Trade Practices Act 1944. That section provides: "A corporation shall not, in trade or commerce, assert a right to payment from a person for unsolicited services unless the corporation has reasonable cause to believe that there is a right to payment." -13- The male applicant says that he sought to obtain from the respondent not a fresh "personal loan" of $2,000.00, but an advance by way of overdraft on his and his wife's account of $4,000.00 (portion being applied to extinguish the earlier personal loan made in 1976). The interest rate of "Personal Loans" was higher than with ordinary overdrafts. The female applicant seeks to set aside the notice on the same ground together with an additional ground namely, that at the time she signed the form of application for personal loan (in December 1977), being a printed form, it was blank in the sense that it contained none of the type-written material that it subsequently contained. In effect she raises a plea of non est factum. The male applicant has given more than one version of the relevant facts. The first version is given in the affidavit of the male applicant sworn on 20 October 1980, and filed in this application, in which he says:- "23. cee (a) In November 1977 JI went, without my wife to the National Bank of Australasia, Narrabeen Branch, where I saw the Accountant, Mr. Campbell-Daick. I requested that the bank advance me a further sum of $2,000.00 by way of loan. By this time my wife and I already had a $2,000.00 personal loan at the National Bank, Narrabeen Branch. (b) Mr. Campbell~Dick gave me an application form for a (c) (da) (e) (£) (g) (1) (3) (k) (1) -14- personal loan for my wife and I to complete at our leisure. Early in December 1977 I returned the above application to the Accountant at the time at the National Bank Narrabeen, Mr. Griffiths, in a completed form, signed by myself and my wife but not witnessed. Mr. Griffiths advised me that Mr. Campbell-Dick had been transferred to the North Sydney Branch of the National Bank as Accountant. A few days later I was advised by Mr. Griffiths that the application completed by my wife and myself had been declined. He asked me 1f I wished the application to be sent to Mr. Campbell-Dick and I agreed. A few days later Mr. Campbell-Dick telephoned me and said: "I may be able to get you the loan here, however I can't accept this loan form because all the details on it refer to your dealings at Narrabeen and I did not witness your or your wife's signature. So drop in and see me." I then called to see him. He said to me: "I think I can get you the loan, sign this." By this he referred to a blank personal loan application. I signed it then and there. I understood the transaction to be to enable myself and my wife to sever all our ties with the National Bank, Narrabeen, and to be a $4,000.00 loan on a cheque account overdraft basis, or failing that another $2,000.00 loan on a personal loan basis. On or about the 24th December Mr. Griffiths telephoned me and said: "Mr. Campbell-Dick has put $4,000.00 into your Joint cheque account. I understand that you now want to pay off your previous personal loan of $2,000.00 with us here. Is that correct?" I replied: "Yes." On or about the 31st January, 1978 my wife and I -15- received by post a completed personal loan agreement, a copy of which is annexed hereto and marked wath the letter "E". (m) This document indicated to me that the Bank had given me a new personal loan of $4,000.00 rather than the overdraft I was led to believe I would be granted following Mr. Campbell-Dick's conversation. My wife cannot recall signing the within mentioned document at any time." The second version appears in the male applicant's affidavit of 24 February 1981. Much of what he said in this affidavit corresponded to what he said in the affidavit of 20 October 1980; but there are some important differences which I shall mention later. In his affidavit of 24 February 1981 the male applicant says:- "2. In November 1977 I went to the National Bank of Australasia Limited, Narrabeen Branch, where I saw the Accountant, Mr. Campbell-Dick. I said to him "I need to borrow some money to assist me with . my compensation claim on a cheque account overdraft basis". He said "leave it with me and I will see what I can do". I then left the Bank. 3. Approximately one (1) week later I returned to the National Bank of Australasia Limited, Narrabeen Branch, and again saw Mr. Campbell-Dick. He said to me "ZI don't think I can help you with a cheque account overdraft, so I will give you this personal loan application to fill in". He handed me a blank form headed "Application Personal Loan". I took this form home and I completed it and my wife completed it, and we each signed this form and I returned it to the National Bank at Narrabeen, about one (1) week later. 4. Within a few days after that, a man who I now know to be Mr. Griffiths from the National Bank of Australasia Limited at Narrabeen rang me at home and hesaid to me "Mr. Campbe]1-Dick has been transferred to our North Sydney Branch. 1 have taken over his position. I have been asked by the Manager, Mr. Hunter, to advise you that yours and your wife's application for a personal loan has been rejected. Do you want me to advise Mr. Campbell-Dick accordingly, in the hope that he might be able to assist you with the Manager up -16- there at North Sydney?" 5. A few days later I arranged to transfer some banking accounts of mine from the National Bank at Narrabeen to the National Bank at North Sydney. A few days after that I had a telephone call from Mr. Campbell-Dick and he said "I may be able to get you the loan here, however, I cannot accept this loan form because all the details on it refer to your dealings with Narrabeen, and I did not witness your and your wife's signatures. So drop in and see me" 6. A few days later I called in to see him. He said to me "I think I can get you the loan, sign this". He then showed me a blank personal loan application. He said to me "I will try first and foremost to get you a cheque account overdraft, but if I can't I will get you a personal loan, sign this personal loan form for me. I can get the details off your old personal loan form at Narrabeen". I then signed that blank form. He then said to me "I'll let you know how I go". I then left the Bank. 7. %I went home and after I had discussed with my wife what had taken place at the Bank that day, I wrote a letter to Mr. Campbell-Dick the next morning. Annexed hereto and marked with the letter "A" is a copy of that letter which I delivered by hand the next day between the hours of 12.00 noon and 1.30 p.m, while Mr. Campbell-Dick was at lunch. I handed the letter to a girl at the Enquiry Counter and I said to her "would you give this letter to Mr. Campbell-Dick". I then watched her take the letter and put it on Mr. Campbell-Dick's desk. I then left the Bank. 8. On or abour (sic) 24 December Mr. Griffiths telephone (sic) me at my home and said "Mr. Campbell-Dick has put $4,000.00 into your joint cheque account. I understand that you now want to pay off your previous personal loan of $2,000.00 with us here. Is that correct?" I said "yes". On or about 31 January, 1978 my wife and I received, by post, a completed personal loan Agreement. This Agreement had come in an envelope which had been re-directed from Collaroy, Post Code 2097, to Collaroy Plateau, Post Code 2098, apparently by the Dead Letter Office. Annexed hereto and marked with the letter "B" 1s a photo-copy of the personal loan Agreement received at that time. 9. I then telephone (sic) Mr. Campbell-Dick and I a -17- said to him "I am upset about receiving this. I didn't want a personal loan, I wanted a cheque account overdraft, as I stated in my letter of 17 December". He said "the loan was already being processed by then. Other people are generally thankful to get money and I was only trying to help you". I said "I'm not going to pay it, I am going to get some legal advice"." This is the first time that the letter of 17 December 1977 from the male applicant to Mr. Campbell-Dick was mentioned by the male applicant in this application. It was never mentioned in the District Court action. The letter is critical to the case for the applicants. The original, if any, of the letter is not in evidence. There 1s no dispute that the copy in evidence was written and signed by the male applicant. The respondent denies ever seeing this letter until it received a copy of the affidavit of 24 February 1981. I shall say more about the letter later. It is sufficient to say at this stage that the respondent alleges that the male applicant concocted the letter, probably between 20 October 1980 and 24 February 1981, for the purpose of bolstering his case. The third version of the facts given by the male applicant 1s that given by him when giving viva voce evidence before me on 13 May 1981. He "corrected" paragraphs 2. and 5.of his affidavit of 24 February 1981. He was asked 1n chief by his counsel:- "Are the contents of that affidavit true and correct?" To which he replied:- said: 1981 by ~18- "No they are not." He was asked to state what part was not correct, to which he "With respect, item number 2 on the evidence of the National Bank, I put in November "773 I only know it was at the time Mr. Campbell-Dick was subject to transfer so0 going on the National Bank's records that should have read in July '77 in item 2." He "corrected" paragraph 5 of his affidavit of 24 saying: - "Yes. In item 5, I have got 'A few days later'. I think it would be more appropriate for 'some time later'." February These changes to the evidence of the male applicant are important for reasons which I shall mention later when dealing with his credit. applicant, paragraphs 6 and 7 of his affidavit of 24 February 1981. A fourth version of relevant events was given by the male also in oral evidence before me on 13 May 1981, relating to cross examination by counsel for the respondent:- A "With respect to my solicitor, Mr. Wall, I think there may be a small chapter missing between 6 and 7 in that affidavit. Do you want to correct your affidavit again, Mr. Thurgood? No, I do not wish to correct it at all. If it as not there I cannot correct it... May I take it that when you said in your affidavit He said in -19- that you discussed with your wife what had taken place at the bank that day, you were referring to the events deposed to in paragraph 6? A. No. Q. Will you agree with me that that is the way your affidavit reads? A. Yes, it reads that way but, no, that isMmot what it meant. Q. So your affidavit is incorrect then so far as the events are concerned. A. No it is quite correct. All I am saying there could not be - if we went back to Mr. Hawkins' true record we might find that there 1s an omission of a statement because...." Mr. Hawkins is a solicitor presently acting for the male applicant. Later in cross examination he said:- Q. "Now, I put 1t to you that that affidavit reads as if you wrote the letter on 17 December after the events took place on the Friday which are related in paragraph 6. That is the way the affidavit reads, does 1t not? A. If you wish to put that interpretation, I do not. There is not a date on the 6th and there is not a date on the 7th. Now, I cannot put a date on the 6th. I do not know, but the date on the 7th is the 16th. Q. Mr. Thurgood, I understood you to say a_=e short moment ago that you agreed with me that the affidavit in paragraphs 6 and 7 read...? A. I agreed that that is the way you are reading it. Q. Do you agree that that is the way the affidavit reads? A. No, I do not, they are different paragraphs." Later in cross examination he said:- -20- "Well your affidavit to say the least gives a confused account of what happened does is not in paragraphs 6 and 7? Yes, I agree with you on that point. Yes it does. In fact little regard can be had to paragraphs 6 and 7 on the basis of what you have just said; is that not so? No it 1s true as - that 1S how I got the form. You have just told his Honour that on the Friday before you wrote that letter you handed back the bank application personal loan form signed by you and your wife? That 1S correct. That is not what paragraph 6 says is it? As I said paragraph 6 happened some time before paragraph 7 comes into light. To put it bluntly Mr. Thurgood, paragraph 6 158s incorrect 1s it not? No it is not; as it relates to the day that I was 1ssued with the personal loan blank application it is correct. You do not agree that paragraph 6 in its present form 1s incorrect, having regard to your evidence that you have just given that on that day, the Friday, you went back to the bank with the signed form, signed by you and your wife. Look if paragraph 6 could say on such and such a date I called at the bank and I picked up that form which I do not know the date and if paragraph 7 said on the 16th I handed it back and then I went home - of December - I then went home, that would be in order; but the events of...paragraph 6 relates to how I got thatblank application form; paragraph 7 relates to how I returned it. I admit with you that it can be confusing. But 7 now must refer to the day I went home. I could say on 16 December I went home after what had happened at the bank that day." There were at least two other versions of relevant and -21- material facts which relate to conversations between officers of the respondent and the male applicant between July and December 1977 but I need not refer to them. 1981:- The female applicant swore in her affidavit of 20 February "2. I am married to the male applicant but am living separately and apart from my husband. I left the matrimonral home on or about the 17th November 1980 and have not since cohabited with my husband. 3. During our marriage my husband looked after all our banking and financial matters. My husband negotiated a number of bank loans which were made jointly to us. 4. I was aware that my husband and I had prior to November, 1977 a joint loan from the National Bank Narrabeen Branch and that at about that time my husband was discussing transferring our banking business to the North Sydney Branch of the National Bank. 5. I have sighted a photocopy document entitled "Application for Personal Loan" used by The National Bank of Australasia Limited a copy of which is annexed hereto and marked "A". One of the signatures on the reverse of the document appears to be mine." day of "The document described as annexure "A" to the female applicant's affidavit contains a copy of the third page and fourth pages of the form of application for "personal loan". "6. I do not recall ever signing the said application nor do I recatl making such an application for a personal loan of $4,000.00... 7. Next to my apparent signature on the _ said application is the signature of a witness. I am informed that the signature is that of Mr. J. Campbell-Dick an officer of the Respondent Bank. I -22- say that I never attended at the National Bank to sign such an application during November and December, 1977. I say that Mr. Campbell-Dick did not attend at my home to witness the signing of any documents by me. I am informed and verily believe that the Respondent Bank admits that Mr. Campbell-Dick did not witness any such signature by me. 8. When the Respondent Bank instituted Court proceedings in respect of the alleged loan my husband undertook our mutual defence. 9. The matters referred to inparagraphs 3, 4, 5, 6, and 7 have not, in so far as I am aware, been placed in evidence in any of the prior proceedings to this application." In cross examination before me the female applicant said, when shown the form of application for "personal loan" produced by the respondent and bearing what purported to be the signature of the applicants, that the signature on the last page which purported to be her. signature was in fact her signature. She says that a discussion took place between herself and her husband in December 1977 or thereabouts relating to the transfer of the loan of $2,000.00 which had been taken out in 1976 with the Narrabeen branch of the bank, not a further loan of $2,000.00. She said that when she signed the loan application form for the 1977 loan it was "a blank document". She adhered to that evidence throughout her cross examination. This was the first time that any suggestion was made by the female applicant to this effect. Previously she had said that she either had not signed or could not recall signing the document. She said: "I do not recall signing anything that was filled an, and the copy I have is filled in." She said again: were -23- "I signed a blank form so I do not recall signing one for $4,000.00." She admitted that paragraph 5 of her affidavit was incorrect. She denied that when she swore her affidavit she had in fact seen a photocopy of the application form which 1s in evidence and marked "JRCD 4", that being the form which plainly she did sign. In summary, the evidence of the female applicant is that she signed all the relevant documents in blank (in the sense of bearing the printing but not the typing)but without really knowing what they were, except she assumed that they related to the transfer of the loan from the Narrabeen branch to the Miller Street branch because the male applicant wanted to remain with the same bank officer, Mr. Campbell-Dick, who had himself moved from the Narrabeen branch to the Miller Street branch. All that she remembered clearly seeing was the last page of the four page document which was then in blank. Probably 1t was given to her by her husband to sign at home when she was looking after her two young children and not particularly concerned about the matter. There is no doubt that the document bears her signature. The male applicant called two witnesses, a Mr. J. W. Morgan and a Mr. R. K. Leys, to give viva voce evidence. Notwithstanding earlier directions that evidence be given by affidavit, counsel for the male applicant sought the court's leave to lead their evidence viva voce. No notice of this application was given to counsel for the -24- respondent until the morning on which they gave their evidence namely, 8 April 1981. Counsel for the male applicant informed me that he and his instructing solicitors had known for some time that the male applicant: "was in the company of two other persons when he went to the bank on that occasion (i.e. 19 December 1980) but he (the solicitor) had great difficulty in getting hold of them. We knew of their existence only recently and of their availability to come to Court. I was first informed of that this morning." However the evidence given by Mr. Leys was that in mid-December 1980 he spoke to the male applicant and his solicitor together and the question of his being a witness was then raised for the first time. Some indication was given to him that he would probably be called as a witness. Yet he was never asked to make a written statement. Mr. Leys gave evidence that he has lived at the same address for the last two years and has been in touch with the male applicant about twice a month in person and at least once a month by telephone. He 1s a friend of the male applicant and there is no suggestion that he declined to furnish an affidavit. As to Mr. Morgan, he said in evidence that the last time he had a telephone conversation with the male applicant was about two or three nights before he gave evidence (that 1s, 5th or 6th April 1981) and the male applicant reminded him that the Court proceedings were on and that he ought not to be late for them. He said also that it was about a month before he gave evidence that he was asked to do so. -25- I have no reason to doubt that what I was told by counsel for the male applicant was based on instructions. But it was on the basis of what I was told that I allowed the two witnesses to be called, because the issue to which their evidence was directed was critical for the case for the applicants. If the facts that I have just related had been before me when leave was sought to cail them to give viva voce evidence I would have refused leave. In some cases where directions of the Court have not been complied with as to the filing of affidavits and other related matters, no doubt it is appropriate to adjourn the hearing of a case on terms as to costs or otherwise in order to ensure that justice is done. But where 1t is plain that directions have not been complied with and no reasons are shown for their not having been complied with; indeed, where the evidence points to the conclusion that they could have been complied with, I think the Court should be slow to take the easy path of adjourning the hearing. Indeed, there is no point in giving directions for the filing of affidavits if they are to be flouted, as there were in this case. However, the evidence of Mr. Morgan and Mr. Leys has been given and, rather than agnore it, I will deal with it. Mr. Morgan 1s a security officer and a taxi driver. He gave evidence in 'chief that on Monday 19 December 1977 he met the male applicant, who 1s a friend of his, and they were then in the course of considering some business arrangement between them. He went with the male applicant to the chambers of the Council of the Municipality of Warringah. The male applicant came out of the Council chambers and -26- they then drove to Miller Street, North Sydney in Mr. Morgan's car where the male applicant left the vehicle. He had with him certain papers and an envelope; but Mr. Morgan could not say what the general nature of the documents was or nor could he describe their contents. He says that the male applicant left the vehicle near 2UE radio station in Miller Street, which it seems is near the premises of the Miller Street branch of the respondent. He does now know if the male applicant went to that branch itself after he left the vehicle. That was about 1.00 p.m. In cross examination Mr. Morgan admitted that he did not remember the precise date of the occurrence but that it was during the week before Christmas and on a week day. He said: "I had to be reminded of the actual date of what took place." It was clear from his evidence that the person who reminded him was the Male applicant. He said again: "There was nothing to remind me" (that is as to which particular week day it was). "Actually, all I remember quite clearly was it was just before Christmas in 1977." I treat the evidence of Mr. Morgan with caution because of the circumstances surrounding his being called to give evidence to which I have referred; but, more particularly, because he did not know the particuler day of the week it was that he drove the male applicant to Miller Street, North Sydney and had to be reminded of the particular date by him. I am also mindful that he is a friend of the male applicant. Also, the fact that he had no independent recollection of the particular day of the week in which he did drive the male applicant -27- to Miller Street, did not emerge until he was cross examined, the impression conveyed from his evidence in chief being that 1t was in fact on 19 December. Mr. Leys, who is a taxi driver also, gave evidence that he met the male applicant outside the Miller Street branch of the respondent on Monday 19 December 1977 at about 1.40 p.m., he (Leys) intending to see the "manager" of that branch. They both went into the bank, the male applicant spoke to a girl behind the enguiry counter and asked to see the "manager". Mr. Leys said that the name given by the male applicant was a long name and probably hyphenated, he thought it might have been "Campbell-Hughes". The girl said that the "manager" was not in and asked them if they would like to wait. Neither of them waited. The both left "more or less immediately". But, before doing 60, the male applicant gave the girl "a letter", being a normal sized envelope about five inches by three inches, and asked the girl to give it to the "manager". Mr. Leys said that he did not know if the date was 19 December or not although he fixed the date as being the Monday before Christmas. He did this because it was the first working day after he had returned from where he had previously lived, namely Narrabri, and he did not get back to Sydney from Narrabri until the Saturday or Sunday. He said that he was first asked to cast his mind back to the relevant events in about mid December 1980 at a conference between himself, Mr. Hawkins,solicitor for the male applicant and the male applicant himself. He was then asked to verify that he had met the male applicant outside the respondent's branch in Miller Street on the Monday before Christmas. ~28- I treat the evidence of Mr. Leys with caution for a number of reasons. First, I have already referred to the circumstances in which he was called to give evidence. He is a friend of the male applicant. They often see each other. He has discussed the case with the male applicant since mid December 1980 on more than one occasion, the last one being about three weeks before he gave evidence. At least at that date, no written statement had been requested from him or provided by him. It is plain that the subject matter of the discussions between the male applicant and Mr. Leys concerned his being able to verify that he met the male applicant outside the Miller Street branch of the respondent on the Monday before Christmas. Also, the "manager" of the Miller Street branch of the respondent in December 1977 was not Mr. Campbeli-Dick. He was its accountant; yet Mr. Leys was specific in his recollection that it was the "manager" of the branch that He (Leys) had gone to see; that the male applicant asked to speak to the "manager" and asked the girl behind the enquiry counter to hand the letter to the "manager". Mr. Campbell-Dick gave evidence by affidavit and was cross examined. He was the branch accountant of the Narrabeen branch of the respondent from 5 July 1976 to 26 July 1977 and the branch accountant of the Miller Street branch from 27 July 1977 to 25 August 1978. He swore in his affidavit that on 25 November 1977 he interviewed the applicants at the Miller Street branch who were accompanied by their two children, Louise and Paul, in connection with the opening of -29- accounts by the applicants at that branch. He swore that at the time of that interview the applicants were known to him "by reason of their having been customers at the Narrabeen branch of the bank at which I had formerly been employed as branch accountant prior to my transfer to the Miller Street branch". He swore: "6. On or about 19th December, 1977, I received a visit from Mr. Thurgood at the Miller Street branch. Mr. Thurgood said to me, "I would like to get a loan of $4,000.00 from the Bank to assist with legal proceedings regarding compensation", or words to that effect. I replied, "You will need to fill in a Personal Loan application form in the joint names of you and Helen", or words to that effect. 7. On or about 19th December 1977, I typed or arranged for one of the Bank typists to type a Personal Loan application form in duplicate in the name of Harold Albert and Helen Mary Thurgood. I then handed this typed form to Mr. Thurgood and said, "It has to be signed by both of you", or words to that effect. Mr. Thurgood then said, "Can I take it home and get her to sign 1t?" I replied, "We don't normally allow ait but in the circumstances, OK. Helen should sign there," and at the same time I marked a cross with a black biro on the original of the said document, which document together with the duplicate I then handed to Mr. Thurgood. 8. On or about 20th December, but not later than 23rd Lecember, 1977, Mr. Thurgood returned to the Bank and handed to me the said Personal Loan -30- application form in duplicate dated 19th December, 1977, with a signature purporting to be that of Helen Mary Thurgood additional to his own upon it. I then checked the signature against the account card previously exhibited to me and marked "JIRC-Dl"held at the branch and was satisfied that it was the signature of Helen Mary Thurgood. Exhibited to me at the time of swearing this my affidavit and marked "JRC-D4" 1s the Personal Loan application form received by me from Harold Thurgood. 9. Either at the time the said Personal Loan application form was typed or at the time the document was returned to me by Mr. Thurgood, I re alised that details of the Thurgood's savings accounts had been omitted from the assets section of the application. I wrote those additional details in, and made a correction to the total amount recorded. I then asked Mr. Thurgood to initial the alteration which he did in my presence. 10. Following receipt of the completed Personal Loan application from Mr. Thurgood, I then processed the loan in accordance with bank practice. The loan was on 23rd December approved by the manager of the Miller Street branch, Mr. Ken . Priest and drawn on that date." Mr. Campbell-Dick denied that he was present at the Narrabeen branch of the respondent in November 1977 and denied that he had a conversation with the male applicant at that branch or any other place as alleged by the male applicant in his affidavit of 20 October 1980. He said that he could not recall having given the male applicant a blank personal loan application as alleged by the male applicant in his October affidavit; that he could not recollect having said the words attributed to him by the male applicant in sub-paragraph (f) of paragraph 23 of the male applicant's October affidavit and did not recollect having telephoned the male applicant in connection with a loan application. He said that he had no recollection of any request being made by either of the applicants for overdraft accommodation. He ~31- said: "I can state that it has always been my employer's practice whilst ever I was employed at the Narrabeen and Miller Street branches, that overdraft accommodation may not be granted at branch level for amounts in excess of $300.00 on an unsecured basis, and that the only accounts which would be considered for such accommodation would be trading accounts in respect of which some fluctuation of balance could be anticipated." He denied ever having said anything to the male applicant or the female applicant to the effect that overdraft accommodation could be obtained by him or them. He denied the conversation alleged by the male applicant in sub-paragraphs (g), (h) and (i) of paragraph 23 of his October affidavit. In reference to the affidavit of the male applicant of 24 February 1981 Mr. Campbell-Dick denied substantially the same matters as he did in relation to the October affidavit; but in addition he said he had no knowledge of any letter of 17 December 1978 and swore that he had never seen that letter. He also denied that he had the conversation with the male applicant as alleged in paragraph 9 of the male applicant's affidavit where reference was allegedly made to this letter either at the time alleged by the male applicant or at any time. Under cross-examination he said that he had no specific recollection but relied on his and the bank's general practice as to the form of application for personal loan in 1977, having been completed before it was signed. He said it was his invariable practice to complete documents before they were signed by customers of the bank. -32- Mr. Campbell-Dick denied in substance the evidence given by the male applicant occasioned by his changing the dates of relevant conversations with Mr. Campbell-Dick from November to July 1977. Mr. D. P. Griffiths gave evidence by affidavit. He was not cross examined. From 25 July 1977 to 26 February 1979 he was branch accountant at the Narrabeen branch of the respondent. He swore that he did not recollect ever receiving a completed personal loan application form from the male applicant as alleged in paragraph 23 of his affidavit of October 1980; he denied having told the male applicant, an December 1977 or on any date, that Mr. Campbell~Dick had been transferred to the North Sydney branch of the respondent as accountant. He denied having told the male applicant that any application by him for a personal loan had been declined or having asked the male applicant if he wished to have the application sent to Mr. Campbell-Dick. He swore that he met the male applicant for the first time on either 25 or 26 July 1977. He made similar denials in relation to the allegations of the male applicant in his affidavit of 24 February 1981. He said that his only knowledge of any personal loan application having been made by the applicants was as to the one approved on 21 December 1976. He said that on the morning of 23 December 1977: "I received advice from the accountant at the -33- Miller Street, North Sydney branch of the bank Mr. Campbell-Dick that a personal loan of $4,000.00 had been approved in respect of Mr. and Mrs. Thurgood. I then phoned Mr. Thurgood and said 'I understand that your personal loan at Miller Street has been approved-would yaw be available to call at our branch and finalise the existing debt at our branch?' or words to that effect. He replied, 'O.K. I'll call down before lunch', or words to that effect." Mr. C. Clay gave evidence by affidavit. He was not cross examined. He is the manager of the Miller Street branch of the respondent. He swore that it 1s the custom of the respondent and its practice to retain all documents other than security documents relating to a customer's account in the one file; that he searched the respondent's file and found no letter or copy of a letter or record of any letter from the male applicant to the respondent or any of its officers dated 17 December 1977; that he searched the security register and found no record of any security packet being held in respect of either of the applicants; and that he made enquiries of the State Administration of the respondent and was informed that no letter dated 17 December 1977 from the male applicant to the respondent or any of its officers has ever been sighted by any officer of the respondent save in so far as the document came into being as annexure "A" to the affidavit of the male applicant of 24 February 1981]. Mr. K. C. Priest gave evidence by affidavit. He was not cross examined. From 20 December 1977 until 4 November 1979 he was manager of the Miller Street branch of the bank. He swore that, other than as annexure "A" to the affidavit of the male applicant of 24 February 1981, he had never seen the letter. He denied ever having a conversation with the male applicant as alleged 1n paragraph 11 of that -34- affidavit or any conversation similar in any way thereto. He swore that letters were sent in the ordinary course by the Miller Street branch of the bank to the applicants in a standard from in February 1978 drawing their attention to the fact that the personal loan account was 1n arrears and requiring repayment thereof. The ground relied on by the applicants to set aside the bankruptcy notices namely, an alleged infringement of s. 64 2(A) of the Trade Practices Act 1974, gives rise to a number of interesting questions of construction of that sub-section. But I do not find it necessary to determine them because of the view I have formed as to the facts of this case. The respondent has alleged that the male applicant concocted the letter of 17 December 1977. Because of the seriousness of this charge I have stated most of the principal facts in some considerable detail. Having heard and seen all the witnesses who gave viva voce evidence I accept Mr. Campbell-Dick as a truthful witness. The other bank officers were not cross-examined. I reject the male applicant as a witness of truth; and where his evidence conflicts with the evidence of Mr. Campbell-Dick and the other officers of the respondent who gave evidence by affidavit and were not cross-examined, I reject his evidence and accept the evidence of the otter witnegses: I base this conclusion not only on the impression I formed from observing the witnesses who gave viva voce evidence but on the probabilities of the case. -~35- The male applicant's case is that he wrote the letter dated 17 December 1977 on that day (a Saturday) and delivered it personally to the bank at its Miller Street branch on the following Monday (the 19th). If the bank did receive the letter then why did it not act on it? It would simply make no money available to the applicants at all if the letter had been received because the letter purported to countermand the arrangement previously made for a personal loan. There is no reason why the bank would make an advance to the applicants in these circumstances. Quite the contrary. The bank did not approve the loan until 23 December and the money was made available to the applicants then. Customers who complain about their banks generally do so because they do not receive the money they request. Here 18 a customer who complains because he did get money from his_ bank, although, he claims, at an unacceptable rate of interest. Not only was the money advanced by the respondent; but it sent to the applicants a copy of the completed personal loan agreement which was received by the male applicant on 31 January 1978. Plainly the male applicant must have realised, at least, then even on his own case, that the bank had in fact treated the loan as if it was a "personal loan". Yet he made payments off the loan on various occasions including 23 January 1978, 23 March 1978 and 27 April 1978. On about 28 September 1978 the respondent received a request from the solicitors then acting for the male applicant for a pay-out figure of the "personal loan account". The figure was supplied by the respondent on 4 October 1978 which again enclosed a copy of the loan agreement as -36-+ requested by the solicitors. The male applicant, conscious of the problems created by the matters to which I have referred, seeks to answers them by alleging that he had certain conversations with Mr. Campbell-Dick and Mr. Priest and by relying on certain advice that he alleges he was given by his then solicitor. Paragraphs 9, 10 and 11 of his affidavit of 24 February 1981 are illustrative of this. Yet the two bank officers concerned, Mr. Campbell-Dick and Mr. Priest deny the conversations alleged by the male applicant. Indeed, Mr. Campbell-Dick gave a very sound reason as to why he could not have authorised accommodation by way of overdraft to the applicants, the reason having been referred to by me earlier. I am satisfied that the male applicant concocted the letter of 17 December 1977 for the purpose of bolstering his case and that he invented the conversations with the bank officers to which I have just referred. On various occasions when giving evidence, both by affidavit and orally before me, the male applicant, confronted with obvious difficulties in the path of his case, blamed his solicitors as the convenient scapegoat. The most revealing example is the explanation he gave as to paragraphs 6 and 7 of his affidavit of 24 February 1981. I have already referred to the substance of that evidence and need not repeat it. His explanation that there was something missing between the two paragraphs and that the events derfosed to in paragraph 7 were -37- not intended to flow immediately from those deposed to in paragraph 6 is unacceptable. After the male applicant had sworn his affidavit of 20 October 1980, and later the affidavit of 24 February 1981, he read the affidavits of the various officers of the respondent which had been filed during March. He realised that his story deposing to conversations with Mr. Campbell-Dick at the Narrabeen branch of the respondent in November 1977 could not have taken place then. The affidavits of the bank officers, including the personnel officer of the respondent, show plainly that Mr. Campbell-Dick was transferred to the Miller Street, North Sydney branch of the bank on 27 July 1977. So the male applicant changed his story, and this he did, when he gave oral evidence, by placing the initial conversation with Mr. Campbell-Dick, referred to in paragraph 2 of his affidavit of 24 February, back in July 1977. I have no doubt that the applicant was conscious of the difficulties created to his story by realising that the anitial conversations with the bank officers must have taken place in July, not November 1977; because he now had to account for the substantial gap in time between the initial conversations with the bank officers and the writing of the letter. So he sought to narrow the time gap between July and Necember in his evidence before me by stretching out the date of the various conversations; including the date of the conversation deposed to in paragraph 5 of his affidavit of 24 February 1981. He said in evidence before me that it was not a few days after the earlier conversation deposed to in paragraph 4 but "some time later". -38- In some cases where there are sharp conflicts of fact, evidence by affidavit is plainly undesirable. It is much better that witnesses give their account for the first time in the witness box. This is not a case of a party having sworn certain matters in his affidavits that are inaccurate in certain respects and later finds himself slightly embarrassed by it and seeks to give a more accurate account in the witness box. It is a case where the male applicant has been advised by various solicitors throughout the dispute between himself and the respondent; has given instructions, pursuant to which particulars were furnished; has sworn affidavits; and then when he has seen the case advanced by the respondent, also by affidavit, realised the predicament he has got himself into. He not only gave evidence of conversations with bank officers (that I have no doubt never occurred in some cases, and in others did not occur in the terms alleged by the male applicant); but he outsmarted himself when he concocted the letter of 17 December because it simply did not fit an comfortably with the time sequence which he had himself created in relation to conversations with bank officers. When he gave evidence before me it was clear that he was very conscious of these difficulties and was doing his best to render his oral evidence consistent with his affidavits; but this he failed to do. Not only 1s the evidence of the bank officers more cogent and probable than any of the accounts given by the male applicant; but he was a very unsatisfactory witness. He sought to project the image of an invalid pensioner who relied on the advice of bank officers and his solicitors and, because of this, found himself in difficulties. This 1s not a true picture of -39- the male applicant. He may be an invalid pensioner but he is an astute man, conscious of the difficulties, mostly of his own making, created in the various accounts of conversations given by him in evidence. He sought to bolster his case at every turn. An allegation that a witness has concocted an important document and concocted conversations between himself and others is serious; but counsel for the respondent did not hesitate to make the allegations; and in my opinion they have been fully made out. TI have given careful consideration to all the evidence in the case and to all evidence that might possibly assist the case for the applicants as to the circumstances in which the advance came to be made on 23 December 1977; but at almost every point the case for the applicants is unsatisfactory. The matters that could be said to give some objective credence to the story of the male applicant arise from the evidence of Mr. Morgan and Mr. Leys which I have already referred to. I need not repeat the reasons why I prefer not to rely upon it. But even taken at its highest all that evidence points to is that on Monday 19 December 1977 the male applicant handed to a girl behind the enquiry counter at the Miller Street branch of the respondent a normal sized envelope with instructions that it be given to the manager. On the evidence before me, 1f£ this event did occur, the envelope could have contained a number of documents and not necessarily the letter of 17 December. It was about that time that the various accounts of the applicants and their children were being transferred to the Miller Street branch and various documents were being signed by the applicants. -40- The respondent did not call any female staff to refute the suggestion that an envelope was handed to her on the occasion in question nor was any explanation offered as to why no such witness was called. Counsel for the male applicant fairly stated that at best he could gain no higher support for his case from this fact than that any evidence which this female member of the respondent's staff could give would not assist the respondent'scase. Although this is a factor which must be weighed in the scales to some extent in favour of the case for the applicants, any weight it may have is overborne by the other considerations to which J have referred. The letter of 17 December 1977 was not mentioned in the affidavit of 20 October 1980 of the male applicant nor was it mentioned in any of the letters written by his solicitors from time to time giving particulars or other information relevant to the District Court action where its disclosure was plainly called for, assuming it existed. It is not suggested by the male applicant that he had forgotten about the letter. He gave evidence that he found his copy of the letter when going through family papers after his father's death. I do not accept that so important a document to the male applicant's case as the letter of 17 December was never referred to by him or his solicitors because it was not rediscovered by him until recently when going through family papers. I am satisfied that this letter was not delivered or otherwise sent by or on behalf of the male applicant to the respondent. -41- Then there is the fact that the male applicant changed his story as to critical events on the various occasions I have referred to. Also the female applicant gave evidence before me denying the discussion which the male applicant alleges he had with her and to which he deposes in paragraph 7 of his affidavit of 24 February 1981 - an important conversation because he says it was after this discussion with his wife that he wrote the letter of 17 December. She said no such discussion took place at alli whether in relation to the letter or otherwise and that to the best of her knowledge she never saw the letter or a copy of it. Another matter that tells against the acceptability of the male applicant as a truthful and reliable witness is that 1t was part of the male applicant's case before this Court that Mr. Campbel1l-Dick was able to complete the particulars on the form of application for personal loan in 1977, not by recourse to anything that the male applicant told him, but by looking to the form of application for personal loan in 1976 and transferring the relevant items. Mr. Campbell-Dick denied that he had done this and denied also that he ever had the opportunity of doing so. I accept his denial as truthful. But it 1s plain from a comparison of the particulars that appear on both forms of application that there are substantial differences between many items appearing on each. It is plain that the source of most of the material that appears in the 1977 form could not have bcen taken from the 1976 form. The only feasible explanation is that the -42- information was given to Mr. Campbell-Dick by the male applicant. The male applicant admitted under cross examination that he had, in 1978, applied to a number of banks for a Bankcard for himself, he being an invalid pensioner. He was unable to obtain such a card and was told in effect that as there was a recession, credit could not be extended to him. He then set out to establish some case that he, as an invalid pensioner, was being discriminated against by the banking system in Australia. So he went to the Campbelltown district and spoke to some seven bank managers, told them he was a doctor from New Zealand; that he intended to commence a pathology service in the district and was waiting for certain money to be transferred from New Zealand from the sale of his house and required $3,000.00 for the purchase of a motor vehicle. At the end of the day in question he had collected $15,000.00 and the next day he banked the whole $15,000.00 into the accounts that had been opened for him. Ultimately he derived no financial benefit from the transaction because he banked the money to the credit of those accounts. He was charged on six counts of false pretenses. It seems that he pleaded guilty to at least one of the charges. He agreed that his conduct answered the description of dishonestly engaging in making false statements with the intention of deceiving others in a financial transaction. This rather bizarre affair shows that the male applicant 1s an unusual man who was, at least in 1978, prepared to go to extraordinary lengths to establish some case of discrimination against him. It is also some confirmation of his plausability because he -43- tricked at least five bank managers into providing him with $3,000.00 each. I do not rely on the evidence that was led about these incidents in assessing the credibility or reliability of the male applicant; but it does confirm the view I have otherwise formed of him that he would go to extreme lengths to establish a point in his favour. It is for the applicants to satisfy me as to the truth of their case surrounding the circumstances in which the advance came to be made by the bank on 23 December 1977. They have failed to discharge that onus. Indeed, I am affirmatively satisfied that there is no substance in their case and that the evidence as to what occurred given on behalf of the respondent is correct, and I accept it. That disposes of the matter except for the other challenge made by the female applicant namely, that when she signed the form of application for personal loan, it contained printed material but no typed material; it was in that sense in blank in that although she recalls signing it, she did not really know what it was that she was Signing, because she assumed that it related in some way to the transfer of the loan account from the Narrabeen branch to the Miller Street branch of the respondent. Plainly the female applicant played little, if any, role in the business affairs of her husband and herself. She looked after her ~44- husband and children and was not concerned with business matters. In her affidavit sworn on 20 February 1981, she said that she did not recall ever signing the form of application for personal loan in 1977, nor did she recall making such an application for a personal loan of $4,000.00. There is no doubt that the female applicant in fact signed the form of application for personal loan and probably she did so at her home after her husband handed her the document to sign. Plainly she did not sign it at the Miller Street branch of the respondent. What she deposed to in her affidavit 1s basically consistent with her verified grounds of defence in the District Court action dated 15 May 1979. It 1s also consistent with what she appears to have told the male applicant's solicitors who wrote to the respondent on 10 October 1978 saying: "We have discussed this matter with our client and his wife, and it would appear that Mrs. Thurgood has no recollection of signing the application..." Yet, when she gave evidence before me she swore during cross examination that she had always recalled signing the document but: "I just know that I had signed a blank form and that 1s all I signed." This 1s the first time that any such statement was made by the female applicant or on her behalf. It is a substantially different story to the one that she had previously given. -45-— In these circumstances I treat her evidence with considerable caution, and as it is for her to establish that the bankruptcy notice should be set aside, I am not satisfied that she has made out her case. Even if I were to accept as correct what she said in the witness box namely, that she signed the document in blank in the sense of bearing printing but nothing else, in my opinion, a plea of non est factum could not succeed. Her case was not put on any other basis. In Gallie v. Lee [1971] A.c. 1004 Lord Reid saad at p. 1016: . "The plea" (non est factum)"cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisers without . making any enquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case. " Similar statements were made by Lord Wilberforce at p. 1026, Lord Pearson at pp. 1032, 1033 and 1034. In the result the application to set aside «re bankruptcy notices fails. I order that the application be dismissed erd that the es * -46- applicants pay the costs of the respondent of the application including reserved costs. Dicer to tas ona the per te fied (48) | przese og marie cre tod cory ci the eet gy Wet Merl. of P's Fo onour Neo Cachoe Lo. "art Miprt sid " esgGis 73| | ____|